M. Naina Mohammed v. K. A. Natarajan & Others

Judgment

CIVIL APPELLATE JURISDICTION '. Civil Appeal No. 98 of 1975. From the Judgment and Order dated 25-7-1974 of the Madras High Court of Judicature at Madms in Writ Appeal No. 519 of 196&. K. S. Ramamurthi and A. T. M. Sampath, for the appellant. M. K. Ramamurthi and Vineet Kumar, for respondent no. 1. The Judgment of the Court was delivered by KRISHNA IYER, J.-A spiral of reversals is the fate of this litigative battle between the appellant and the first respondent over a permit to ply a bus on the route between Madurai and Paramakkudi, m Tamil N adu. While its admission into this Court was by special leav~, the first round of the contest was fought before the RTA (Regional Tran_sport Authority) which, on an evalU'ation of the relative merits and demerits of the rivals. granted the permit to the present appellant, but this victory was short-lived because, at the second stage of the legal bout, the STAT (State Transport Appellate Tribunal) held that the M. NAINA V. K. A. NATARAJAN (Krishna lyer, /.)

1()3 rcsponde;1t before us had better claims. The worsted appdlant invoked the writ jurisdiction of the High Court under Art. 226 aad the learned Single Judge, who heard the petition, re-judged the relevance and weight of the points, pro and con, and as a result of this adjudicatory exercise of facts, demolished the order of the STAT. Tc1c learned Judg" disagreed with the conclusion of the STAT instead ot sending the case back for a fresh look at the meri,s of the matter. set aside the permit granted to the respondC'at and affirmed the award in favour of the appellant. Thereupon, the respondent moved a Division Bench of that Court which felt that a full-scale re-appraisal of the points lor and against such cJoaimant was in excess of the jurisdiction of the Single Judge Jnder Art. 226, although it noticed that certain factors not rcleva.it to the adjudication had been taken into consideration by the STAT.

Consequently, the order of the learned Judge was ;ct aside, the result being that the respondent's permit was restored. The appellant urged that the decision of the Division Bench of the High Court was utterly wrong and somewhat casual, while that of the learned Single Judge was careful, elaborate and correct. Of course, this view of the matter was hotly controverted by counsel for the 1st respondenl but, niter haviag heard both Shri K. S. R>amamurthy, for the appellant, and Shri M. K Ramamurthy, for the respondent, we are satisfied that the reluctant course of remitting the whole case to the ST AT for a de nova disposal is called for as a matter of Jaw and in the interests of justice The boundaries of the High Court's jurisdiction under Art. arc clearly and strongly built and carraot be breached without risking jmi,prudcntial confusion (Sn' Rama Vilas Service (P) Ltd. v. Chandrasekharan(').

The power is supervisory in nature, although tbe Judges at both the tiers, in the instant case, have unwittingly slipped into the subtle, but fatal, error of exercising a ki'ad of appeliak review. Shri M. K. Ramamurthy, for the respondent, was right in pointing out that the learned Single Judge went into the factmn 'and weight of the claims which could be put in the scales in choosing the better of the two applicants for the permit. However, the Court rightly poiated out that some relevant factors had be~a ignored by the STAT (for example. 'that the first respondent's history sheet was not clean') and included in the judicial verdict factors which were extraneous, such as "that the bus of the petitioner did not, in fact, ply from 2-9-65 to 4-12-65', this being attributable to non-payment of surcharge rather than operational inefficiency. A reading of the learned Single Jud~e's iudoment leaves us in no doubt that he had undertaken an evaluallon br the merits on his own.

This, undoubtedly, was beyond the jurisdiction of the High Court. Nor is it possible to support the direction that if there were errors of law vitiating the STAT's finding, the case aeed f'Ol go back for fresh consideration but could be finally decided by the High Court itself. In Writ Appeal, the leaned Chief Justice, sp~aking for the Division Bench of the High Court, disposed of the case m a. short paragraph which hardl.y did justice to the order appealed agamst. May be that (i)-(i964)-S C.-S R-:-869. SUPREME COURT REPORT order was wrong and unsustainable, but while reversing it valid reasons had to be adduced. All that we find in the appellate judgment is a partial admission that extraneous cmsiderations were inputs of the order of tile ST AT and a brief \disposal of the whole matter in a single •cete~ce, as it were-"Even so, there is nothing in the order of the Tnbunal to support it." While the Division!

Bench was perh-aps justifiec in observing that while sitting on the writ side, judicial r~view should have bee.1 more restricted that while sitting on the appellate side, its own judgment was vulnerable because of the plain finding that what was not pertinent was taken into consideration by the STAT. For instance, the learned Chief Justice observed : 'It is no doubt true that the no,1-pcrformancc of service after the grant was made, cannot go into the computation and the reference relating to night-halt might we11 have been avoided in its discussion.' 'The non performance of service', which is slightly obscure, but we read it in the context as meaning the failure to ply the bus on the route la question subsequent to the gr<Lnt of the permit.

We express no opinion on the soundness of the observation but it is clear that the Division Bench itself has plainly accepted the position that what was not, according to it, relevant had gone into the reckoning wheµ the STAT awarded the permit to the -appellant. In this view, this judgment cannot also be sust~ined. The fair course would, therefore, be to set aside the judgment under appeal and send the whole case back to the ST AT to hear the case afresh, consider relevant factors bearing upon 'public interest' as highlighted in s.4'i of the Motor Vehicles Act and dispose of the appeal before it in accordance with law, guided by the decisions of this Court and untrammelled 'by any observations made either by the Single Judge or by the Division Bench. Currently, the respondent is plying his bus O'.l the route and we direct that the status quo be maintained and he will continue to operate on the route until the appeal is disposed of by the STAT.

Of course, the RTA passed its orders as early as 1966 November and if it thinks that public interest demands the need for an extra bus to ply on the route to cope with the traffic, it will be open to the RTA to gmnt a permit, pending disposal of the appeal, to the present appellant. The fluctuating fortunes of the combatants for the permit have been such that it is appropriate to direct both parties to bear their costs throughout. P.B.R. Case remanded. I