judgement:
Appeal No. 19 of 1964.
Appeal by special leave from the judgment and order dated October 29, 1963, of the Madras High Court in Writ Appeal No. 214 of 1962.
section Mohan Kumar amagalam, M. N. Rangachari, R. K. Garg, M. K. Ramamurthi, for the appellant.
R. Ganapathy Iyer, for respondents Nos. 2 and 3.
A. Ranganadham Chetty and A. V. Rangam, for respondent No. 4.
M. C. Setalvad, N. C. Krishna Iyengar and 0.
C. Mathur, for Intervener.
March 5, 1964.
The judgment of the Court was delivered by GAJENDRAGADKAR, C.J.
The short but important point of law which has been raised for our decision in this appeal by special leave is whether G.O. No. 1298 issued by the Gov ernment of Madras on April 28, 1956 in exercise of its powers conferred by section 43A of the (Central Act IV of 1939) (hereinafter called the Act) inserted by the Madras Amending Act 20 of 1948, is valid.
Mr. Mohan Kumaramangalam who appears for the appellant contends that the impugned Government order is invalid for the simple reason that it is outside the purview of section 43A.
The impugned order was issued as early as 1956 and since then, its validity 3 has never been impeached in judicial proceedings.
Litigation in regard to the grant of permits under the relevant provisions of the Act has figured prominently in the Madras High Court in the form of writ petitions invoking the said High Court 's jurisdiction under article 226 of the Constitution and several aspects of the impugned order have come to be examined.
The echoes of such litigation have frequently been heard in this Court and this Court has had occasion to deal with the impugned order, its character, its scope and its effect , but on no occasion in the past, the validity of the order appears to have been questioned.
The legislative and judicial background of the order and the course of judicial decisions in regards to the points raised in the enforcement of this order would prima facie and at the first blush suggest that the attack against the validity of the order may not be wellfounded and that would tend to make the initial judicial response to the said challenge more hesitant and reluctant.
But Mr. Kumaramangalam contends that section 43A under which the order purports to have been passed would clearly show that the said order is outside the purview of the authority conferred on the State Government and is therefore invalid.
It is obvious that if this contention is upheld, its impact on the administration of the system adopted in the State of Madras for granting permits under the Act would be very great and so though the question lies within a narrow compass, it needs to be very carefully examined.
The facts which lead to the present appeal conform to the usual pattern of the permit litigation in which the grant or refusal to grant a permit is chal lenged under the writ jurisdiction of the High Court under article 226.
The appellant B. Rajagopala Naidu is a bus operator in the State of Madras and he runs a number of buses on various routes.
On June 26, 1956, the State Transport Authority by a notification invited applications for the grant of two stage carriage permits on the route Madras to Krishnagiri.
The buses on this route were to be run as express service.
The appellant and 117 bus operators including respondents 2 and 3 D. Rajabahar Mudaliar, proprietor of Sri Sambandamoorthy Bus Service and K. H. Hanumantha Rao, proprietor of Jeevajyoti Bus Service respectively, submitted applications for the two permits in question.
The State Transport Authority considered the said applications on the merits.
In doing so, it proceeded to award marks in accordance with the principles prescribed by the impugned order and came to the conclusion that the appellant satisfied the requirements enunciated by the State Transport Authority for running an efficient bus service on this long route, and so, it granted the two permits to the appellant on May 8, 1958.
L/P(D)1SCI 1(a) 4 Against this decision, 18 appeals were preferred by the unsuccessful applicants including respondents 2 and 3.
All these appeals were heard together by the State Transport Ap pellate Tribunal, Madras in June 1959.
It appears that before the appeals were thus heard, the State Government had superseded the principles enunciated in the order in so far as they related to the grant of stage carriage permits and had issued another direction under section 43A known as G.O. 2265 on August 9, 1958.
Incidentally, it may be added that by this order, different criteria had been prescribed for selection and a different marking system had been devised.
The Appellate Tribunal considered the claims of the rival bus operators and allotted marks in accordance with the principles laid down by the earlier order.
As a result, respondents 2 and 3 secured the highest marks and their appeals were allowed, the order under appeal was set aside and two permits were granted to them.
This order was passed on July 4, 1959.
The appellant then invoked the jurisdiction of the Madras High Court under article 226 of the Constitution by this writ petition No. 692 of 1959.
In his writ petition the ap pellant challenged the validity of the order passed by the Appellate Tribunal on several grounds.
One of them was that the impugned order on which the decision of the Appellate Tribunal was based, was invalid.
This plea along with the other contentions raised by the appellant failed and the learned Single Judge who heard his writ petition dismissed the petition, on October 18, 1962.
The appellant then challenged the correctness of this decision by a Letters Patent Appeal No. 214 of 1962 before a Division Bench of the said High Court.
The Division Bench, however, agreed with the view taken by the Single Judge and dismissed the Letters Patent Appeal preferred by the appellant.
The appellant then moved the said High Court for leave, but failed to secure it, and that brought him here with an application for special leave which was granted on November 14, 1963.
It is with this special leave that the appellant has brought this appeal before us for final disposal.
Before dealing with the points raised by the appellant, it is necessary to consider the background of the impugned order, and that takes us to the decision of the Madras High Court in Sri Rama Vilas Service Ltd. vs The Road Traffic Board, Madras, by its Secretary(1).
In that case, the appellant had challenged the validity of a Government order No. 3898 which had been issued by the Madras Government on December 9, 1946.
This order purported to direct the transport authorities to issue only temporary permits as the Government intended to nationalise motor transport.
Accordingly, instruction No. 2 in the said order had provided that when (1) 5 applications were made for new routes or new timings in existing routes, then small units should be preferred to old ones.
In accordance with this instruction, when the application for permit made by the appellant, Sri Rama Vilas Service was rejected, the order stated that it so rejected in the interests of the public generally under section 47(1)(a) of the Act.
The appellant preferred , in ' appeal against the order to the Central Board namely the Provincial Transport Authority which had been constituted by the Government under section 44 of the Act.
His appeal failed and so, he moved the Madras High Court under section 45 of the Specific Relief Act for an order directing the respondent the Road Traffic Board, Madras to consider the application of the appellant in accordance with the provisions of the Act and the rules made thereunder for renewal of the permit for plying buses.
The High Court held that G. O. No. 3898 was in direct conflict with the proviso to section 58 sub section
(2) of the Act, and so, was invalid.
This decision showed that there was no authority or right in the State Government to issue instructions such as were contained in the said Government order.
In reaching this decision, the High Court emphasised the fact that the Central Transport Board and the Regional Transport Board were completely independent of the Government except that they must observe the notifications made pursuant to section 43 of the Act.
It was conceded that if and when the Government acted as an Appellate Tribunal, it had judicial functions to discharge.
But these functions did not include the power to give orders to any Board which was seized of an application for renewal of permits.
That is how it was established by this decision that as the Act stood, the State Government had no authority to issue directions as to how applications for permits or their renewal should be dealt with by the Tribunals constituted under the Act.
This judgment was pronounced on November 19, 1947.
As a result of this judgment, the Madras Legislature amended the Central Act by Act XX of 1948 which came into force on December 19, 1948.
Amongst the amendments made by this Act was the insertion of section 43A with which we are concerned in the present appeal.
This section clothed the State Government with powers to issue certain directions and orders.
As we have already indicated, the point which we are, considering in the present appeal is whether the impugned order falls within the purview of the power and authority conferred on the State Government by this section.
We will read this section later when we address ourselves to the question of its construction.
The amendment of the Central Act led to the next round of controversy between the bus operators and the State Gov ernment and that resulted in the decision of the Madras High 6 Court in C.S.S. Motor Service Tenkasi vs The State of Madras and another(1).
In that case, the validity of several provisions of the Act including the provisions introduced by the Madras Amendment Act were challenged.
It will be recalled that at the time when this challenge was made, the Constitution had come into force and the appellant C.S.S. Motor Service urged before the High Court that under article 19(1)(g) it had a fundamental right to ply motor vehicles on the public pathways and the impugned provisions of the Act invaded its aforesaid fundamental right and were not justified by article 19(6).
The High Court elaborately considered the first part of the contention and it took the view, and we think rightly, that a citizen has a fundamental right to ply motor vehicles on the public pathways for hire or otherwise and that if any statutory provision purports or has the effect of abridging such fundamental right, its validity would have to be judged under the relevant clause of article 19.
Proceeding to deal with the dispute on this basis, the High Court examined the validity of the several impugned provisions of the Act.
In regard to section 43A, the High Court came to the conclusion that the said section was valid though it took the precaution of adding that the orders passed thereunder might be open to challenge as unconstitutional.
It is, however, necessary to emphasise that the main reason which weighed with the High Court in upholding the validity of this section was that the High Court was satisfied that the said section was "intended to clothe the Government with authority to issue directions of an administrative character." Thus, section 43A was held to be valid in this case and the correctness of this conclusion is not disputed before us.
In other words, we are dealing with the appellant 's challenge against the validity of the impugned order on the basis that section 43A itself is valid.
This judgment was pronounced on April 25, 1952.
Some years after this judgment was pronounced, the impugned Government order was issued on April 28, 1956.
This order purported to issue instructions or directions for the guidance of the Tribunals constituted under the Act.
In fact, it refers to the judgment of the Madras High Court in the case of C.S.S. Motor Service.
It would appear that the Madras Government wanted to give effect to the said decision by issuing appropriate directions under its authority derived from section 43A which was held to be valid.
The impugned order deals with five topics.
The first topic has relation to the instructions which had to be borne in mind whilst screening the applicants who ask for permits.
This part of the order provides that the applicants may be screened and disqualified on one or more of the principles enunciated in cls.1 to 4 in that part.
The second part deals with the system of assigning marks to (1) A.L.R. 7 the several claimants, under four columns.
In laying down these principles, the impugned order intended to secure precision in the disposal of claims for permits and to enable quick consideration of the merits of such claimants.
This part of the order, however, made it clear that in cases where the system of marking worked unfairly the Regional Transport Authority may ignore the marks obtained for reasons to be stated.
It is this ' part of the order which has introduced the marking system which has been the special feature of adjudication of claims for permits in the State of Madras.
These two parts are described as "A." in the Government order.
Part 3 deals with the variation, or extension of routes granted under the permits.
Part 4 deals with the revision of timings and Part 5 has reference to suspension or cancellation of permits.
That in brief is the nature of the directions issued by the impugned order.
After this order was issued and the Tribunals constituted under the Act began to deal with applications for permits in accordance with the principles prescribed by it, the decisions ,of the said Tribunals came to be frequently challenged before the Madras High Court and these disputes have, often been brought before this court as well.
In these cases, the character of the order passed by the Tribunal was examined, the nature of the instructions issued by the impugned order was considered and the rights of the parties aggrieved by the quasi judicial decisions of the tribunals also fell for discussion and decision.
A question which was often raised was whether it was open to a party aggrieved by the decision of the Tribunal to contend that the said decision was based either on a misconstruction of the impugned order or in contravention of it, and the consensus of judicial opinion on this part of the controversy appears to be that the proceedings before the Tribunals constituted under the Act are quasijudicial proceedings and as such liable to be corrected under article 226 of the Constitution.
It also appears to be well estab lished that the impugned order is not a statutory rule and has therefore no force of law.
It is an administrative or executive direction and it is binding on the tribunals; it does not, however, confer any right on the citizen and that means, that a citizen cannot be allowed to contend that a misconstruction of the order or its contravention by any decision of the Tribunal functioning under the Act should be corrected under Article 226.
In M/s Raman and Raman Ltd. vs The State of Madras and others(1), this Court by a majority decision held that section 43A of the Act as amended by the Madras Amendment Act, 1948 must be given a restricted meaning and the jurisdiction it conferred on the State Government to issue orders and directions must be confined to administrative functions.
An order or (1) 8 direction made thereunder by the State Government was con sequently denied the status of law regulating rights of parties.
and was treated as partaking of the character of an administrative order.
Similarly, in R. Abdulla Rowther vs The State Transport Appellete Tribunal, Madras and others(1) this Court held by a majority decision that the orders and directions issued under section 43A were merely executive or administrative in character and their breach, even if patent, would not justify the issue of a writ of certiorari.
It was also observed that though the orders were executive and did not amount to statutory rules, they were rules binding on the transport authorities for whose guidance they have been issued, but that did not confer any right on the citizen and so a plea that a contravention of the orders should be corrected by the issue ,of an appropriate writ was rejected.
Such contravention, it was held, might expose the Tribunal to the risk of disciplinary or other appropriate action, but cannot entitle a citizen to make a complaint under article 226.
It is necessary to emphasise that in both these cases no argument was urged that the impugned order was itself invalid and should have been ignored by the Tribunals exercising quasi judicial authority under the relevant provisions of the Act.
The Court was no doubt called upon to consider the character of the impugned order and some of the reasons given in support of the conclusion that the impugned order is administrative or executive seem to suggest that the said order would, prima facie, be incon sistent with the provisions of section 43A which received a narrow and limited construction from the court.
Nevertheless, since the point about the validity of the impugned order was not raised before the court, this aspect of the question was not examined and the discussion and decision proceeded on the basis that the impugned order was valid.
Now that the question has been raised before us, it has become necessary to examine the validity of the impugned order.
Before proceeding to examine the scope and effect of the provisions of section 43A, it is necessary to bear in mind two general considerations.
The first broad consideration which is relevant has relation to the scheme of the Act in general and the scheme of Ch.IV in particular.
The Act consists of 10 chapters and deals mainly with administrative problems in relation to motor vehicles.
Chapter 11 deals with licensing of drivers of motor vehicles.
Chapter IIA deals with licensing of conductors of State carriages and Chapter III with registration of motor vehicles.
Chapter IV is concerned with the control of transport vehicles and in this chapter are included the relevant provisions for the applications for grant of permits, the consideration of those applications and other allied topics.
Chapter IVA includes the provisions relating to (1) A.I.R. (1959) S.C. 896. 9 State Transport Undertakings.
Chapter V addresses itself to the construction, equipment and maintenance of motor vehi cles, Chapter VI deals with the control of traffic, Chapter ' VII has reference to motor vehicles temporarily leaving or visiting India, Chapter VIII with the question of insurance of motor vehicles against third party risks, Chapter IX prescribes offences, penalties and procedures to try the offences and Chapter X contains miscellaneous provisions.
This scheme shows that the hierarchy of transport autho rities contemplated by the relevant provisions of the Act is clothed both with administrative and quasi judicial functions and powers.
It is well settled that sections 47, 48, 57, 60, 64 and 64A deal with quasi judicial powers and functions.
In other words, when applications are made for permits under the relevant provisions of the Act and they are considered ,on the merits, particularly in the light of the evaluation of the claims of the respective parties, the transport authorities are exercising quasi judicial powers and are discharging quasijudicial functions, and so, orders passed by them in exercise of those powers and in discharging those functions are quasijudicial orders which are subject to the jurisdiction of the High Court under article 226, vide New Prakash Transport Co. Ltd. vs New Suwarna Transport Co. Ltd.(1) and M/s Raman and Raman Ltd. vs The State of Madras and others(3) and R. Abdulla Rowther vs The State Transport Appellate Tribunal Madras and others(3) so that when we examine the question about the validity of the impugned order, we cannot lose sight of the fact that the impugned order is concerned with matters which fall to be determined by the appropriate transport authorities in exercise of their quasi judicial powers and in discharge of their quasi judicial functions.
The other broad consideration relevant in dealing with the present controversy is that there are three sets of provi sions under the Act which confer legislative, judicial and administrative powers respectively on the State Government.
Section 67 which confers on the State Government power to make rules as to stage carriages and contract carriages and section 68 which confers power on the State Government to make rules for the purposes of Ch.IV are obviously legislative powers, and in exercise of these powers, when the rules are framed, they become statutory rules which have the force of law.
Naturally, the exercise of these legislative powers is controlled by the safeguard provided by section 133 of the Act.
This latter section requires that when power is exercised by the State Government to make rules, it is subject to the condition that the rules must be previously published before they are (1) p. 118.[1959] 2 S.C.R. p. 227.A.I.R. (1959) S.C. 896.10 made.
That is the effect of section 133(i).
Sub cl.(2) of section 133 provides that all rules made under this Act shall be published in the Official Gazette after they are made and shall, unless some later date, is appointed, come into force on the date of such publication.
Clause 3 is important.
It provides that all rules made under the Act shall be laid for not less than fourteen days before the appropriate Legislature as soon as possible after they are made, and shall be subject to such modifications as the appropriate Legislature may make during the session in which they are so laid.
So that if statutory rules are made by the Government in exercise of legislative powers conferred on it by sections 67 and 68, they are subject to the control of the appropriate legislature which can make changes or modifications in the said rules if it is thought necessary or expedient to do so.
Publication before the rules are made and publication after they are made also afford another statutory safeguard in that behalf.
That is the nature of the legislative power conferred on the State Government.
Section 64A confers judicial power on the State Transport Authority, because the said authority is given revisional jurisdiction to deal with orders therein specified, subject to the limitations and conditions prescribed by the two provisos to the said section.
This is a clear provision conferring judicial power on the State Transport Authority.
Along with the legislative and judicial powers which have thus been conferred, there is the administrative power con ferred on the State Government by section 43A. Section 43A reads thus: ,,The State Government may issue such orders and directions of a general character as it may consider necessary, in respect of any matter relating to road transport, to the State Transport Authority or a Regional Transport Authority; and such Transport Authority shall give effect to all such orders and directions".
It is the construction of this section which is the basis of the challenge to, the validity of the impugned rules in the present appeal.
It may be conceded that there are some words in the section which are against the construction for which Mr. Kumaramangalam contends.
The words "in respect of any matter relating to road transport" are undoubtedly wide enough to take in not merely administrative matters but also matters which form the area of the exercise of quasi judicial authority by the Tribunals constituted under the Act.
Prima facie, there are no words of limitation in this clause and it would, therefore, be possible to take the view that these are matters which are scrutinised by the appropriate authorities in exercising their quasi judicial jurisdiction.
Similarly, the State Transport Authority and the Regional Transport 11 Authority to which reference is made in this section are clothed not only with administrative power but also with quasijudicial jurisdiction so that reference to the two authorities and reference to any matter relating to road transport would indicate that both administrative and quasi judicial matters come within the sweep of section 43A.
But there are several other considerations which support Mr. Kumaramangalam 's construction.
The first is the setting and the context of the section.
As we have already seen, this section has been introduced by the Legislature in response to the decision of the Madras High Court in C.S.S. Motor Service case(1) and that would indicate that the Madras Legislature intended to confer on the State Government power to issue administrative orders or directions of a general character.
Besides, the two preceding sections section 42 and section 43 and section 44 which follows support the argument that the field covered by section 43A like that covered by sections 42, 43 and 44 is administrative and does not include the area which is the subjectmatter of the exercise of quasi judicial authority by the relevant Tribunals.
Then again, the use of the words 'orders and directions ' would not be appropriate in regard to matters which fall to be considered by authorities exercising quasi judicial powers.
These words would be appropriate if they have reference to executive matters.
And lastly, the provision that the relevant transport authority shall give effect to all orders and directions issued under section 43A would be clearly inappropriate if the instructions issued under the said section are meant for the guidance of quasi judicial bodies.
If the direction is issued by the appropriate Government in exercise of its powers under section 43A and it is intended for the guidance of a tribunal discharging its quasi judicial functions, it is hardly necessary to say that the authority shall give effect to such directions.
Section 43A being valid, if the orders and directions of a general character having the force of law can be issued within the scope of the said section, then such orders or directions would by themselves be binding on the transport authorities for whose guidance they are made; and it would be superfluous to make a specific provision that they are so binding.
On the other hand, if the orders and directions are in the nature of administrative orders and directions, they do not have the force of statutory rules and cannot partake of the character of provisions of law, and so, it may not be inappropriate to that the said orders and directions shall be followed by the appropriate tribunals.
Therefore, it seems to us that on a fair and Leasonable construction of section 43A, it ought to be held that the said section authorises the State Government .R. 12 to issue orders and directions of a general character only tin respect of administrative matters which fall to be, dealt with by the State Transport Authority or Regional Transport Authority under the relevant provisions of the Act in their administrative capacity.
In reaching this conclusion, we have been influenced by certain other considerations which are both relevant and material.
In interpreting section 43A, we think, it would be legitimate to assume that the legislature intended to respect the basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi judicial function, the tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment.
It is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State.
If the exercise of discretion conferred on a quasi judicial tribunal is con trolled by any such direction, that forges fetters on the exercise of quasi judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well accepted notion of judicial process.
It is true that law can regulate the exercise of judicial powers.
It may indicate by specific provisions on what matters the tribunals constituted by it should adjudicate.
It may by specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters.
The. scope of the jurisdiction of the Tribunals constituted by statute can well be regulated by the statute and principles for guidance of the said tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution.
But what law and the provisions of law may legitimately do cannot be permitted to be done by adminis trative or executive orders.
This position is so well established that we are reluctant to hold that in enacting section 43A the Madras Legislature intended to confer power on the State Government to invade the domain of the exercise of judicial power.
In fact, if such had been the intention of the Madras Legislature and had been the true effect of the provisions of section 43A, section 43A itself would amount to an unreasonable contravention of fundamental rights of citizens and may have to be struck down as unconstitutional.
That is why the Madras High Court in dealing with the validity of section 43A had expressly observed that what section 43A purported to do was to clothe the Government with authority to issue directions of an administrative character and nothing more.
It is somewhat unfortunate that though judicial decisions have always emphasised this aspect of the matter, occasion did not arise so long 13 to consider the validity of the Government order which on the construction suggested by the respondent would clearly invade the domain of quasi judicial administration.
There is another consideration which is also important.
If section 43A authorises the State Government to issue directions or orders in that wide sense, section 68 would become redundant and safeguards so elaborately provided by section 133 while the State Government purports to exercise its authority under section 68, would be meaningless.
If orders and directions can be issued by the State Government which are not distinguishable from statutory rules, it is difficult to see why section 68 would have dealt with that topic separately and should have provided safeguards controlling the exercise of that power by section 133.
It is likewise significant that the directions and orders issued under section 43A are not required to be published nor are they required to be communicated to the parties whose claims are affected by them.
Proceedings before the Tribunals which deal with the applications for permits are in the nature of quasijudicial proceedings and it would, indeed, be very strange if the Tribunals are required to act upon executive orders or directions issued under section 43A without conferring on the citizens a right to know what those orders are and to see that they are properly enforced.
The very fact that these orders and directions have been consistently considered by judicial decisions as administrative or executive orders which do not confer any right on the citizens emphatically brings out the true position that these orders and directions are not statutory rules and cannot therefore seek to fetter the exercise of quasi judi cial powers conferred on the Tribunals which deal with applications for permits and other cognate matters.
It is, however, urged that the principles laid down in the impugned order are sound principles and no challenge can be made to the validity of the order when it is conceded that the order enunciates very healthy and sound principles.
This order, it is argued, can be considered as expert opinion the assistance of which is afforded by the State Government to ,he Tribunals dealing with the question of granting permits.
We are not impressed by this argument.
It is not the function of the executive to assist quasi judicial Tribunals by issuing directions in the exercise of its powers conferred under section 43A.
Besides, if section 43A is valid and an order which is issued under it does not fall outside its purview, it would be open to the State Government to issue a direction and require the Tribunal to follow that direction unquestionably, in every case.
It is true that in regard to the marking system evolved by the im pugned rule, liberty is left to the Tribunal not to adopt that system for reasons to be recorded by it.
This liberty in practice 14 may not mean much; but even theoretically, if the impugned order is valid, nothing can prevent the State Government from issuing another order requiring that the marking system prescribed by it shall always be followed.
We have already seen that section 43A itself provides that effect shall be given to the orders issued under it, and so, if an order issued under section 43A itself were to prescribe that it shall be followed, it will have to be followed by the Tribunal and no exception can be made in that behalf.
Therefore, we cannot accept the argument strongly pressed before us by Mr. Ganapathy Iyer on behalf of respondent No. 1 that the validity of the order cannot be challenged on the ground that the principles laid down by it are sound and healthy.
We have, therefore, come to the conclusion that the impugned order is outside the purview of section 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the Tribunals constituted under the Act and which have to be dealt with by these Tribunals in a quasi judicial manner.
We cannot overlook the fact that the validity of the Act particularly in reference to its provisions prescribing the grant and refusal of permits, has been sustained substantially because this important function has been left to the decision of the Tribunals constituted by the Act and these Tribunals are required to function fairly and objectively with a view to exercise their powers quasijudicially, and so, any attempt to trespass on the jurisdiction of these Tribunals must be held to be outside the purview of section 43A.
We are conscious of the fact that the impugned order was issued after and presumably in response to the decision of Madras High Court in the case of C.S.S. Motor Service(1) though it Would appear that what the High Court had suggested was presumably the making of the rules under section 68 of the Act.
It cannot also be disputed that the main object of the State Government in issuing this order was to avoid vagaries, and introduce an element of certainty and objec tivity, in the decision of rival claims made by applicants in respect of their applications for permits.
It may have been thought by the State Government that if the Tribunals are allowed to exercise their discretion without any guidance, it may lead to inconsistent decisions in different areas and that may create dissatisfaction in the public mind.
It does appear, however, that in some other States the problem of granting permits has been resolved without recourse to the marking 15 system.
But apart from that, even if it is assumed that the, marking system, if properly applied, may make the decisions in regard to the grant of permits more objective, fair and consistent, we do not see how that consideration can assist the decision of the problem raised before us If the State Government thinks that the application of some kind of marking system is essential for a fair administration of the Act, it may adopt such course as may be permissible under the law.
Section 47(1)(a) requires inter alia that the interests of the public generally have to be borne in mind by the Regional Transport Authority in considering applications for stage carriage permits.
The said section refers to other matters which have, to be borne in mind.
It is unnecessary to indicate them for our present purpose.
The Legislature may amend section 47 by indicating additional considerations which the Transport Authority has to bear in mind; or the Legislature may amend section 47 by conferring on the State Government expressly and specifically a power to make rules in that behalf or the State Government may proceed to make rules under section 68 without amending section 47.
These are all possible steps which may be taken if it is thought that some directions in the nature of the provisions made by the impugned order must be issued.
That, however, is a matter with which we are not concerned and on which we wish to express no opinion.
As this court has often emphasised, in constitutional matters it is of utmost importance that the court should not make any obiter observations on points, not directly raised before it for its decision.
Therefore, in indicating the possible alternatives which may be adopted if the State Government thinks that the marking system helps the administration of the Act, we should not be taken to have expressed any opinion on the validity of any of the courses specified.
That leaves only one point to be considered.
Mr. Ganapathy Iyer urged that even though the impugned order may be valid, that is no reason why the order passed by the Appellate Tribunal which has been confirmed by the High Court in the present writ proceedings should be reversed.
He argues that what the Appellate Tribunal has done, is to act upon the principles which are sound and the fact that these principles have been enunciated by an invalid order should not nullify the decision of the Appellate Tribunal itself.
Thus presented, the argument is no doubt plausible; but a closer examination of the argument reveals the fallacy under lying it.
If the Appellate Transport Authority had considered these, matters on its own without the compulsive force of the impugned order, it would have been another matter , but the order pronounced by the Appellate Authority clearly and unambiguously indicates that it held and in a sense rightly, that it was bound to follow the impugned order unless in the exercise of its option it decided to depart from it and was prepared to record its reasons for adopting that course.
It would, We think, be idle to suggest that any Transport Authority functioning in the State would normally refuse to comply with the order issued by the State Government itself.
Therefore, 16 we have no hesitation in holding that the decision of the Appellate Tribunal is based solely on the provisions of the impugned order and since the said order is invalid, the decision itself must be corrected by the issue of a writ of certiorari.
In the result, we allow the appeal, set aside the order passed by the High Court in Writ Petition No. 692 of 1959 and direct that the said Writ Petition be allowed.
There would be no order as to costs throughout.
In accordance with this decision a writ of certiorari shall be issued setting aside the order passed by the Appellate Tribunal and remanding the matter to the Regional Transport Authority for disposal in accordance with law.

summary:
The appellant is a bus operator in the State of Madras.
On an invitation for applications for the grant of two stage carriage permits he submitted his applications along with many others.
The State Transport Authority considered the merits of the application awarding marks in accordance with the principles prescribed by Madras G.O. No. 1298, dated April 28, 1956 issued under section 43A of the inserted by the Madras Amending Act 20 of 1948.
The Transport Authority on this basis granted the two permits to the appellant.
Against this order a number of appeals were filed by some of the unsuccessful applicants including respondents Nos. 2 and 3 in the present appeal.
The Appellate Tribunal re allotted marks in accordance with the above G.O. and respondents 2 and 3 having secured the maximum number of marks were granted the permits.
On the rejection of a petition under article 226 of the Constitution and after appealing without success to a Division Bench the appellant applied for a certificate to appeal to this Court which rejected.
The present appeal was filed on special leave granted by this Court.
It was contended on behalf of the appellant before this Court that since Madras G.O. No. 1298, dated April 28, 1956, purports to issue direction to the Transport Authority in the discharge of its quasi judicial functions it is beyond the powers conferred by section 43A of the which authorises only the issue of directions to the said authority in the discharge of its administrative functions and therefore it is bad.
Held, (i) Section 43A confers power on the State Government to issue orders and directions to the State Transport Authority only in relation to its administrative functions.
M/s. Raman and Raman vs The State of Madras [1959] 2 S.C.R. 227, relied on.
(ii)It is well settled that sections 47, 48, 57, 60, 64 and 64A deal with quasi judicial functions and when the transport authorities are dealing with applications for permits and evaluating the respective claims of the parties, the transport authorities are discharging quasi judicial functions and their orders are quasi judicial orders subject to the jurisdiction of the High Court under article 226.
L/P(D)1SCI 1 2 New Prakash Transport Co. Ltd. vs Suwarna Transport Co. Ltd. M/s Raman and Raman Ltd. vs State of Madras, , B. Abdulla Rowther vs State Transport Appellate Tribunal, Madras, A.I.R. 1959, S.C. 896, relied on.
(iii) In interpreting section 43A it is legitimate to assume that the legislature intended to respect the basic and elementary postulate of the, rule of law that in exercising their authority and discharging their quasi judicial functions, the tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgement.
It is of the essence of fair and objective administration of law that the decision of judges or tribunals must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State.
(iv) The impugned order is outside the purview of section 43A inasmuch as it purports to give directions in respect of matters which have been entrusted to the tribunals constituted under the Act and which have to be dealt with by them in quasi judicial manner.
(v) The decision of the appellate Tribunal is solely based on the provisions of the impugned order and since the said order is invalid, the decision is also bad.


judgement:
No. 87 of 1962.
Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
section section Shukla, for the petitioner.
N. section Bindra and R. H. Dhebar, for respondent No. 1.
M. C. Setalvad and D. N. Mukherjee, for respondent No. 2.
March 6, 1964.
The Judgment of the Court was delivered by GAJENDRAGADKAR C. J.
This is a writ petition filed under article 32 of the Constitution by which the eight petitioners challenged the validity of section 87B of the Code of Civil Procedure.
These petitioners claim that they and respondent No. 2, His Highness Maharaja Kirit Vikram Kishore Deb Varman, are members off a joint Hindu family governed by the Dayabhaga School of Hindu Law.
Under a family custom which, it is alleged, has prevailed in this family for centuries, the Raj as well as the Zamindari properties belonging to the family are held by a single individual and the other members of the family are entitled to maintenance according to the status of the family with the right to succession to the Raj as well as the Zamindari properties under the general rule of succession which prevails and which is not inconsistent with the family custom.
The head of the family was, by family custom, called the Chief and he was chosen from among the members of the Ruling Deb Barman family and used to be installed on the Gaddi or Throne.
The petitioners further alleged that the Ruler when so chosen and installed held the State and Zamindari as life tenant subject to the usual charges for maintenance of the members of the Ruling Family.
In course of time, the maintenance allowance of the members of the Ruling family came to be fixed arbitrarily by the Rulers without any regard to their status and their legiti mate needs, and that led to discontent among them which re sulted in a serious agitation raised by them during the lifetime of the late Maharaja Bir Bikram.
In consequence, at the time of Regency of Her Highness Rajmata during the minority of the last Ruler Maharaja Kirit Bikram, a Committee was appointed on the 20th June, 1949, to consider the question of allowances payable to the members of the Ruling family.
However, before the Committee could submit its report, the State of Tripura merged with and became part of India and was constituted into a separate Province under the Chief Commissioner.
After merger, the then Chief Commissioner Mr. Hazra submitted a proposal to the Ministry of States on the 12th April, 1951, recommending a revision of allowance paid to the 57 maintenance holders.
The ministry of States did not accept this proposal and refused to make any increase in the total expenditure on the allowances to the maintenance holders. 'This order was passed on the 23rd May, 1951.
Later, the then ,officiating Chief Commissioner Maj.
Chatterjee stopped the maintenance allowances paid to some of the maintenance,holders without justification and that led to the appointment of another Committee to go into the matter, but the Committee could never function with the result that the condition of the majority of the maintenance holders grew worse day by day.
That is why the present eight petitioners desire to file a suit against respondent No. 2 for appropriate reliefs.
They want to implead the Union of India also to that suit, because it is their case that either the Ruler or the Union of India is responsible to pay them appropriate and adequate maintenance allowance.
Before filing a suit in a competent court of law against respondent No. 2, the petitioners are required to obtain the sanction of the Union Government under section 87B C.P.C., as respondent No. 2 is a Ruler of a former Indian State within ,the meaning of the said section.
A request made by the petitioners for such sanction was rejected by the Central Government.
That is how the present petition has been filed challening the validity of the said section.
The petitioners contend that the said section is ultra vires, because it contravenes articles 14 and 19(1)(f) of the Constitution and as such, the condition precedent prescribed by it which requires the previous sanction of the Central Government before filing a suit against the Ruler of an Indian State therein mentioned, is invalid and inoperative.
That is the genesis of the present writ petition.
At the hearing of this writ petition, Mr. Shukla for the petitioners fairly conceded that the challenge to the validity of section 87B, C.P.C., on the ground that it contravenes article 14 has been repelled by a recent decision of this Court in Mohan Lal Jain vs His Highness Maharaja Shri Sawai Man Singhji(1).
He, however, attempted to argue that some aspects of the problem had not been pressed before the Court when it decided the case of Mohan Lal Jain (1), and so, he wanted us to reconsider that question.
We have not allowed Mr. Shukla to raise this contention, because we are satisfied that the decision in Mohan Lal Jain 's case concludes the point and it would not be reasonable to reconsider it as suggested by him.
We ought to add that we are dealing with Mr. Shukla 's argument that section 87B, C.P.C., is invalid because it contravenes article 19(1)(f), on the basis that the case of Mohan Lal Jain(1) has correctly repelled the challenge against the said section ,under article 14.
(1) [1962] 1 S.C.R. 702.
58 That leaves the challenge under article 19(1) (f) to be considered.
In dealing with this point, it will be necessary to examine the background, both historical and legislative, of section 87B. Section 87B(1) provides that the provisions of section 85 and of sub sections
(1) and (3) of section 86 shall apply in relation to the Rulers of any former Indian State as they apply in relation to the Ruler of a foreign State.
Section 87B(2) defines a 'former Indian State ' and a "Ruler".
It is not necessary to refer to these provisions, because it is common ground that respondent No. 2 is a Ruler of a former Indian State within the meaning of section 87B(2).
In appreciating the effect of section 87B(1), it is necessary to consider section 86.
Section 86 deals with suits against foreign Rulers, Ambassadors and Envoys.
Section 86(1) provides that no Ruler of a foreign State may be sued in any court other wise competent to try the suit, except with the consent of the Central Government certified in writing by a Secretary to that Government to that effect.
The proviso excepts from the application of section 86(1) cases where tenants of immovable property seek to sue such a Ruler.
Section 86(2) lays down that the consent prescribed by section 86(1) may be given either with respect to specified suits or to several specified suits, or with respect to all suits of any specified class or classes, and it requires that the sanction should specify in the case of any suit or class of suits the court in which the Ruler may be used.
It then adds that such consent shall not be given unless it appears to the Central Government that the Ruler satisfies one or the other of the four conditions prescribed by clauses (a) to (d).
Section 86(3) prohibits the arrest of any Ruler of a foreign state under the Code and provides that except with the consent of the Central Government certified in writing by a Secretary to that Government, no decree shall be executed against the property of any such Ruler.
Section 86(4) extends the application of section 86 to the persons specified in clauses (a) to (c) of that sub section.
The result of the extension of section 86(1) and (3) to the cases falling under section 87B(1) is that the sanction of the Central Government is a condition precedent to the institution of a suit against the Ruler of any former Indian State.
It is this requirement which the petitioners have not been able to comply with in respect of the suit which they intend to file against respondent No. 2, because the Central Government has refused to accord sanction to the said intended suit.
Now, the legislative background of the provisions contained in section 86 and section 87B is well known.
Prior to the present Constitution, Part IV of the Code of Civil Procedure contained provisions in respect of suits in specified cases.
These cases were divided into three parts.
Section 79 to 82 covered cases of suits by or against the Crown or Public Officers in their official capacity.
Sections 83 to 87 dealt with suits by aliens and by or against foreign Rulers and Rulers of Indian States; and 59 section 88 had reference to interpleader suits.
After the Constitution came into force, the President made certain adaptations by the Adaptations of Laws Order, 1950.
As a result of article 372, the protection afforded to Foreign Rulers and Rulers of Indian States continued, and that is how section 87B came to be enacted in the statute book.
It is in the light of this legislative background that the plea raised by the petitioners in the present proceedings has to be examined.
The legislative background to which we have referred cannot be divorced from the historical background which is to be found for instance, in article 362.
This Article provides that in the exercise of the power of Parliament or of any legislature of any State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in clause (1) of article 291 with respect to the personal rights, privileges and dignities of a Ruler of an Indian State.
This has reference to the ,covenants and agreements which had been entered into between the Central Government and the Indian Princes before :all the Indian States were politically completely assimilated with the rest of India.
The privilege conferred on the Rulers ,of former Indian States has its origin in these agreements and covenants.
One of the privileges is that of extra territoriality and exemption from civil jurisdiction except with the sanction of the Central Government.
It was thought that the privilege which was claimed by foreign Rulers and Rulers of Indian States prior to the independence of the country should be continued even after independence was attained and the States had become part of India, and that is how in 1951, the Civil Procedure Code was amended and the present sections 86, 87, 87A and 87B came to be enacted in the present form.
Considered in the light of this background, it is difficult to see how the petitioners can successfully challenge the validity of the provisions contained in section 87B.
In the case of Mohan Lai Jain(1) this Court has held that the ex Rulers of Indian States form a class by themselves and the special treatment given to them by the impugned provisions cannot be said to be based on unconstitutional discrimination.
There is, of course, discrimination between the ex Rulers and the rest of the citizens of India, but that discrimination is justified having regard to the historical and legislative background to which we have just referred.
If that be so, it would follow that the restriction imposed on the petitioners ' fundamental right guaranteed by article 19(1)(f) cannot be said to be unreasonable.
The restriction in question is the result of the necessity to treat the agreements entered into between the Central Government and the ex Rulers of Indian, States as valid and the desirability, of giving effect to the assurances given to them during the (1) [1962] 1 section C. R. 702.
60 course of negotiations between the Indian States and the Central Government prior to the merger of the States with India.
We have to take into account the events which occurred with unprecedented swiftness after the 15th August, 1947, and we have to bear in mind the fact that the relevant negotiations carried on by the Central Government were inspired by the sole object of bringing under one Central Government the whole of this country including the former Indian States.
Considered in the context of these events, we do not think it would be possible to hold that the specific provision made by section 87B granting exemption to the Rulers of former Indian States from being sued except with the sanction of the Central Government, is not reasonable and is not in the interests of the general public.
It is true that the restriction works a hardship so far as the petitioners are concerned; but balancing the said hardship against the other considerations to which we have just referred, it would be difficult to sustain the argument that the section itself should be treated as unconstitutional.
Before we part with this matter, however, we would like to invite the Central Government to consider seriously whether it is necessary to allow section 87B to operate prospectively for all time.
The agreements made with the Rulers of Indian States, may, no doubt, have to be accepted and the assurances given to them may have to be observed.
But considered broadly in the light of the basic principle of the equality before law, it seems somewhat odd that section 87B should continue to operate for all time.
For past dealings and transactions, protection may justifiably be given to Rulers of former Indian States; but the Central Government may examine the question as to whether for transactions subsequent to the 26th of January 1950, this protection need or should be continued.
If under the Constitution all citizens are equal, it may be desirable to confine the operation of section 87B to past transactions and not to perpetuate the anomaly of the distinction between the rest of the citizens and Rulers of former Indian States.
With the passage of time, the validity of historical considerations on which section 87B is founded will wear out and the continuance of the said section in the Code of Civil Procedure may later be open to.
serious challenge.
There is also another aspect of the matter to which we must refer in this connection.
In considering the question as to whether sanction should be granted to a person who intends to sue a Ruler of a former Indian State, it is advisable that the authority concerned should ordinarily, if not as a matter of course, allow such sanction, because in the present set up it does not appear very satisfactory that an intended action against the Ruler of a former Indian State should be stifled by refusing to grant the litigant sanction under section 87B.
Where frivolous claims are set up by intending litigants, refusal to 61 give sanction may be justified ; but where genuine disputes arise between a citizen and a Ruler of a former Indian State and these disputes, prima facie, appear to be triable in a court of law, it would not be fair or just that the said citizen should be prevented from inviting a court of competent jurisdiction to deal with his dispute.
If the power to grant sanction is exercised in a sensible way and is not used for stifling claims which, are not far fetched or frivolous, that may prevent the growth of discontent in the minds of litigants against the artificial provision prescribed by section 87B.
In the present proceedings, it does appear, prima facie, that the petitioners have a genuine grievance against the Central Government 's refusal to, accord sanction to them to get a judicial decision on the dispute between them and respondent No. 2.
That, naturally is a matter for the Central Government to consider.
However, since it is not possible to accede to the petitioner 's argument that section 87B is invalid, we see no alternative but to dismiss the writ petition.
In the circumstances, there would be no order as to costs.
Petition dismissed.

dataset_name: IN-Abs

summary:
The petitioners applied for the consent of the Central Government under section 87B of the Code of Civil Procedure to sue the Maharaja of Tripura, Ruler of a former Indian State, which has merged with India.
They wanted to implead the Union of India as well, as party to the suit as their case was that they were entitled, as members of a joint Hindu family to receive either from the said Ruler or from the Union appropriate maintenance allowance under the custom of the Ruling family.
Consent having been refused, they applied to this Court under article 32 of the Constitution.
Their case was that section 87B of the Code in granting exemption to Rulers of former Indian States from being sued except with the consent of the Central Government contravened articles 14 and 19(1)(f) of the Constitution.
Held, that in view of the previous decision of this Court section 87B of the Code of Civil Procedure was no longer open to challenge under article 14 of the Constitution.
Mohan Lal Jain vs His Highness Maharaja Shri Sawai Man Singhji [1962] 1 S.C.R. 702, referred to.
Regard being had to the legislative and historical back ground of section 87B of the Code, it could not be said that, that section in giving special treatment to ex Rulers had imposed an unreasonable restriction on the petitioner 's fundamental rights.
Motivated as it was by the sole object of bringing the entire country including the former Indian States under one Central Government, it must be held to be reasonable and in the interest of the general public.
But considered in the light of the basic principle of equality before law it would be odd to allow the section to continue prospectively for all time to come.
It would therefore, be for the Central Government to consider whether it should not be confined to dealings and transactions previous to January 26, 1950.
Nor should the section be used to stifle claims except such as are clearly far fetched or frivolous and consent should ordinarily if not as matter of course, be granted in the case of a genuine dispute which prima facie appears to be triable by a court of law such as the present one.


judgement:
minal Appeal No. 156 of 1961.
Appeal from the judgment and order dated June 15, 1961, of the Calcutta High Court in Criminal Appeal No. 745 of 1959.
D. N. Mukherjee, for the appellant.
P. K. Chakraborty and P. K. Bose, for the respondent.
March 6, 1964.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
Sunil Kumar Paul has preferred this appeal, after obtaining a certificate from the Calcutta High Court under article 134(1)(c) of the Constitution.
The facts leading to the appeal are these.
The appellant was a clerk in the office of the Sub Divi sional Health Officer at Barrackpore in 1955 56.
He used to prepare bills of the establishment, to present them at the ,Sub treasury and later present them at the State Bank at Barrackpore, to receive payment in cash and to make over that amount to the Sub Divisional Health Officer.
Certain bills were drawn under the heading '38 Medical '.
Certain bills were to be drawn under the heading '39 Public Health '.
Some other bills were drawn under other headings.
On October 5, 1956, the appellant presented a bill for Rs. 1,769 out of Which a sum of Rs. 5 10 0 was to be credited in the Postal Life Insurance Ledger and the balance of Rs. 1,763 6 0 was to be received in cash.
This bill was duly passed by the Sub Treasury and was subsequently presented to the Bank on October, 6, 1956 for payment of Rs. 1,763 6 0. 'The Bank paid this amount to the appellant.
The amount was 72 not paid to the Sub Divisional Health Officer.
In fact, the records of the Office of the Sub Divisional Health Officer did not refer to any such bill being prepared and submitted to the Sub Treasury and the Bank for payment.
A bill for practically the same items which were mentioned in the bill cashed on October 6, was however presented on October 1, 1956.
It was for an amount of ' Rs. 1,767 out of which Rs. 5 10 0 were to be credited to the PLI account ledger and the balance of Rs. 1,761 6 0 were to be paid in cash.
The amount of this bill was received on October 1, and was duly handed over to the Sub Divisional Health Officer.
It may be mentioned that this bill.
cashed on October 1, 1956 was at first prepared for Rs. 1,769 and the amount to be received in cash was to be Rs. 1,763 6 0 but prior to this encashment, a correction was made at some stage ', and the bill was reduced by Rs. 2 in the total amount and consequently in the amount to be paid in cash.
The fact of the presentation of a bill for its encashment of Rs. 1,763 6 0 on October 6, 1956 came to the notice of the.
Divisional Health Officer at the instance of the Accountant General and on enquiry it was found that no such bill had been actually presented by his office for encashment and that no such amount was received by him.
This led to a complaint and further enquiries and investigation which ended in the prosecution of the appellant.
The case was made over to the Special Judge by the Government in view of the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (W. B. Act XXI of 1949), hereinafter called the Act, as it involved an offence punishable under section 409 I.P.C.
The Special Judge tried the appellant for that offence and convicted him and sentenced him to rigorous imprisonment for two years and to pay a fine of Rs. 2,000.
The appellant went in appeal to the High Court of Calcutta.
The High Court agreed with the appellant 's contenion that no offence under section 409 I.P.C. had been made out, but held.that he was proved to have committed an offence under section 420 I.P.C.
It accordingly altered his conviction from an offence under section 409 I.P.C. to one under section 420 I.P.C., for cheating the employees of the State Bank, Barrackpore, by representing that the bill for Rs. 1,769 gross and Rs. 1.763 6 0 cash drawn on October 6, 1956, was a genuine bill drawn by the Sub Divisional Health Officer, and thereby dishonestly inducing the Bank 's staff to make over the sum of Rs. 1,763 6 0 to him and sentenced him to rigorous imprisonment for one year and to fine of Rs. 2,000.
It is against this order that this appeal, has been preferred.
73 The facts found by the High Court are sufficient to justify the finding that the appellant committed the offence under section 420 I.P.C. Learned counsel for the appellant has, urged the following points: (1) A case involving an offence under section 420 I.P.C. cannot be allotted for trial to a Special Court by the State Government when such an offence is not committed by a public servant while purporting to act as such public servant.
(2) The Special Court could not take recourse to the provisions of section 237 Cr.
P.C., and if it could, the requiremen ts of section 237 Cr.
P.C. were not satisfied in the present case, and that consequently the High Court could not have altered the conviction of the appellant from an offence under section 409 I.P.C. to one under section 420.
(3) The ingredients of an offence under section 420 I.P.C. were neither alleged nor proved by the prosecution.
(4) The accused has been prejudiced on account of the absence of the necessary allegations and the omission to frame a charge for an offence under s.420 I.P.C. and therefore the provisions of section 537 Cr. P. C. would not cure this defect in trial.
To appreciate the first contention, reference may be made to the relevant provisions of the Act.
They are: "4(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable by Special Courts only: Provided that when trying any case, a Special Court may also try any offence other than an offence specified in the Schedule, with which the accused may under the Code of Criminal Procedure, 1898., be charged at the same trial.
(2) The distribution amongst Special Courts of cases involving offences specified in the Schedule, to be tried by them, shall be made by the State Government.
(2) Save as provided in sub section (1). . the provi sions the Code of Criminal Procedure, 1898, shall, so far as they are not inconsistent with this Act, apply to the pro ceedings of a Special Court; and for the purposes of the said provisions, a Special Court shall be deemed to be a Court of Session trying cases without a Jury, and a person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor.
" THE SCHEDULE * * * 2.
An offence punishable under section 409 of the Indian Penal Code.
, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government in respect of property with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent.
An offence punishable under section 417 or section 420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government, while purporting to act as such public servant or agent.
The Government notification allotting the present case to the Special Court is not on the record and therefore what its actual contents were cannot be stated with any precision.
It may however be assumed that it mentioned the offence involved in the case to be that under section 409 I.P.C., and, possibly, did not state the various facts which went to establish that offence against the appellant.
Section 409 I.P.C. is mentioned in the Schedule referred to in sub section
(2) of section 4 of the Act.
The State Government was therefore competent to allot the case involving that offence to the Special Court.
In fact it had to allot the case to the Special Court in view of the provision of sub section
(1) of section 4 to the effect that the offences specified in the Schedule shall be triable by Special Courts only.
The question therefore really is whether the Special Court could try the appellant 75 for the offence under section 420 I.P.C. An offence under section 420 I.P.C. when committed in certain circumstances is also men tioned in the Schedule.
It has to be tried by Special Courts only when it is committed by a public servant while purporting to act as such.
There is no doubt that the appellant is a public servant.
This has not been disputed.
Learned counsel for the appellant, Mr. Mukherjee, has urged that the expression 'while purporting to act as such public servant ' be construed to mean 'while purporting to act in the discharge of official duties ' and that presentation of a false bill could not be in the discharge of official duty.
Such presentation may not be in the discharge of official duty, but the question is different and is as to whether the presentation of a false bill was made by the public servant purporting to do so in the discharge of his duties.
The appellant did present the false bill purporting to present it in the discharge of his duties as a clerk of the Office of the Sub Divisional Health Officer who was duly authorised to present bills and cash them.
Reliance is placed on the case reported as Bhajahar Mondal vs The State or West Bengal(1) in support of the contention that the appellant should not have been tried by the Special Court of the offence under section 420 I.P.C. when the case was allotted as one involving an offence under section 409 I.P.C. The facts of that case were very different.
The order allotting the case mentioned the offence of which the accused was to be tried to be an offence under section 161 read with section 116 I.P.C. The order was made on November 27, 1952.
Prior to this date, on July 28, 1952, abetment of an offence under section 161 I.P.C. was made a distinct offence under section 165 A I.P.C. by the Criminal Law Amendment Act XLVI of 1952 An offence under section 165A was not mentioned in the Schedule to the Act as it stood on November 27, 1952.
This Court held that the notification of the Government making over the case to the Special Court was bad as the case made over related to no existing offence.
Such cannot be said of the Government notification allotting the case in the present appeal to the Special Court, as on the date of such notification there existed an offence under section 409 I.P.C. and it was included in the Schedule to the Act.
On the facts proved, it is not to be doubted that the appellant presented the bill for Rs. 1,763 6 0 at the State Bank oil October 6, purporting to act as the clerk of the Sub Divisional Health Officer.
The bill presented was on be half of that officer.
The Bank made the payment to him a (1) ; 76 the messenger of that officer duly authorised to receive payment in cash.
It follows that the offence under section 420 committed by the appellant would be committed by him as a public servant purporting to act as such, and that a case involving this offence also could have been allotted to the Special Court by the State Government for trial.
The Special Court was therefore competent to try the accused for this offence if the facts proved established it.
Apart from the consideration that the offence of cheating of which the appellant accused has been convicted fell within the offences mentioned in the Schedule, the appellant could be tried by the Special Court for this offence in view of the proviso to section 4.
The proviso authorizes the Special Court, when trying a case involving an offence specified in 'he Schedule to try any offence other than that offence with which the accused may be charged at the same trial in accordance with the provisions of the Code of Criminal Procedure.
The accused could be charged with an offence under section 420 I.P.C. if he could be tried for this offence at the trial for an offence under section 409 I.P.C. He could be so tried in view of is.
236 and 237 Cr. P. C.
It is urged for the appellant that the provisions of section 236 Cr. P. C. would.apply only to those cases where there be no doubt about the facts which can be proved and a doubt rises as to which of the several offences had been committed on the proved facts.
Sections 236 and 237 read: "236.
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
Illustrations (a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating.
He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating.
77 237.
If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different, offence for which he might have been charged ' under the provisions of that section, he may be, convicted of the offence which he is shown to have committed, although he was not charged with it.
Illustration A is charged with theft.
It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods.
He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be) though he was not charged with such offence.
" The framing of a charge under section 236 is, in the nature of things, earlier than the stage when it can be said what facts have been proved, a stage which is reached when the court delivers its judgment.
The power of the Court to frame various charges contemplated by section 236 Cr. P. C. therefore arises when it cannot be said with any definiteness, either by the prosecutor or by the Court, that such and such facts would be proved.
The Court has at the time of framing the charges, therefore to consider what different offences could be made out on the basis of the allegations made by the prosecution in the complaint or in the charge submitted by the investigating agency or by the allegations made by the various prosecution witnesses examined prior to the framing of the charge.
All such possible offences could be charged in view of the provisions of section 236 Cr. P. C. as it can be reasonably said that it was doubtful as to which of the offences the facts which could be ultimately proved would constitute.
The facts which must have been alleged prior to the stage of the framing of the charge in the present case must have been what had been stated in the charge sheet submitted by the Investigating Officer, 24 Parganas, which is printed at p. 3 of the appear record.
This charge sheet narrates in the column meant for the name of offences and circumstances connected with it: "that on the 6th October 1956 Sunil Kumar Paul, a Public servant in the employment of the office of the Sub Divisional Health Officer, Barrackpore i.e., (clerk) dishonestly drew Rs. 1,763 6 0 excluding Postal Life Insurance deduction of Rs. 5 10 0 from the State Bank of India, Barrackpore Branch by submitting a false duplicate Estt.
Pay Bill 78 for the office of the said S.D.H.O., Barrackpore.
The money drawn was not credited to the office of the Sub Divisional Health Officer, Barrackpore.
" It is practically on these facts that the conviction of the appellant for an offence under section 420 I.P.C. has been found ed.
It follows that the Special Court could therefore have framed a charge under section 420 I.P.C. at the relevant time if it had been of the opinion that it was doubtful whether these facts constitute an offence under section 409 I.P.C. as stated in the charge sheet or an offence under section 420 I.P.C. When a charge under section 420 I.P.C. could have been framed by the trial Court by virtue of section 236 Cr.
P.C. that ,Court or the appellate Court can, in law, convict the appellant of this offence instead of an offence under section 409 I.P.C. if it be of the view that the offence of cheating bad been established.
This would be in accordance with the provisions of section 237 Cr.
P. C In Begu vs The King Emperor(1) sections 236 and 237 were construed by Viscount Haldane thus: "The illustration makes the meaning of these words quite plain.
A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.
That is what happened here.
The three men who were sentenced to rigorous imprisonment were convicted of making away with the evidence of the crime by assisting in taking away the body.
They were not charged with that formally, but they were tried on evidence which brings the case under section 237.
" This was approved by this Court in Ramaswamy Nadar vs The State of Madras(2).
In this case, the accused, acquitted of an offence under section 420 I.P.C. was convicted by the High Court of an offence under section 403 I.P.C.
This Court held that the High Court could do so.
On facts, however, this Court did not find the offence under section 403, proved.
In the State of Andhra Pradesh vs Kandimalla Subbaiah(3) it was held that while a Special Judge appointed under section 6 of the Criminal Law Amendment Act (XLVI of 1952) had juris diction to try cases under section 5 of the Prevention of Corruption Act, he could, under section 7(3) of the Criminal Law Amendment (1) 52 I.A. 191.
(2) (3) , 203.
79 Act try other offences under the Code of Criminal Procedure if the accused could be charged with them at the same trial and that therefore the accused could be tried at the trial for an offence under section 5 of the Prevention of Corruption Act for an offence under section 120B read with sections 466, 467, 420 I.P.C. and that the other accused who had abetted the commission of these offences could also be tried.
Sub section
(3) of section 7 of the Criminal Law Amendment Act provided that when trying any case a Special Judge might also try any offence other than an offence specified in section 6 with which the accused might, under the Code of Criminal Procedure, 1898, be charged at the same trial.
In support of his contentions, learned counsel for the appellant referred to the case reported as Nanak Chand vs The State of Punjab.(1) wherein it was stated at p. 1212: "The provisions of section 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can ' be framed and tried or alternative charges can be framed. . .
In the present case there is no doubt about the facts and if the allegation against the appellant that he had caused the injuries to the deceased with takwa was established by evidence, then there could be no doubt that the offence of murder had been committed.
" This does not help the appellant 's contention as the alle gations in that case if proved could establish, according to the Court, the offence of murder only and therefore there was no room for any doubt about the nature of offence com mitted and for the application of section 236 Cr. P. C.
In that case, the appellant was tried along with others for an offence under section 302 read with section 149 I.P.C.
The Sessions Judge convicted the appellant and a few others under section 302 read with section 34 I.P.C.
The High Court acquitted the others and altered the conviction of the appellant to the offence under section 302 I.P.C.
It was, in this setting, that this Court held that on the basis of the specific allegation that the appellant had struck the deceased with a takwa, there could be no doubt of that fact constituting an offence under section 302 and not an offence under section 302 read with section 149 I.P.C. We therefore hold that at the trial of the appellant for an offence under section 409 I.P.C., in this case, the appellant could have also been charged for an offence under section 420 I. P. C. in view of section 236 of the Code of Criminal Procedure.
(1) ; 80 It is then urged for the appellant that under the proviso to section 4 of the Act, the Special Court can try any other offence only when the accused is specifically charged with that offence.
The language of the proviso does not lead to such a conclusion.
It provides for the trial of the accused for any other offence provided the accused could be charged with that offence at the same trial under the provisions of the Code of Criminal Procedure.
The proviso does not say that the charge must be framed, though of course, if the trial Court itself tries the accused for a certain offence, it will ordinarily frame a charge.
The proviso empowers a Court to try the accused for that offence and has nothing to do with the power of the trial, court or of the appellate Court to record a conviction for any other offence when an accused is being tried with respect to an offence mentioned in the Schedule.
The Court 's power to take recourse to the provisions which empower it to record a conviction for an offence not actually charged, depends on other provisions of the Code and the Act.
Section 5(2) of the Act provides that the provisions of the Code of Criminal Procedure so far as they are not incon sistent with the Act, would apply to the proceedings of the Special Court and for the purposes of these provisions, the Special Court could be deemed to be a Court of Sessions.
There is nothing in the provisions of section 237 of the Code of Criminal Procedure which is inconsistent with the provisions of the Act.
Section 237 simply empowers the Court to convict an accused of the offence with which he could have been charged under section 236, even when he had not been charged with it.
Section 237 really deals with the final orders which the Court can pass on a trial of an accused for a certain offence.
In view of the proviso to sub section
(1) of section 4, the Special Court could have tried the appellant for the offence under section 420 I.P.C.
It did not actually try him for that offence.
It was however open to it and to the appellate Court to convict him of the offence under section 420 I.P.C. when trying for an offence under section 409 I.P.C. in view of section 237 of the Code.
It has also been urged for the appellant that the proviso to section 4 does not give any power to the Special Court to try an offence which be independent of the offence mentioned in the allotment order.
That is to say, the Special Court, in this case, could have tried the appellant only for such offences which will be in some way related to the offence under section 409 I.P.C.
It is further urged that the ingredients of the offence under section 420 I.P.C. are absolutely different from the ingredients of the offence under section 409 I.P.C. 81 The ingredients of two must be different from one another and it is therefore not necessary to consider whether the ingredients of the two offences are in any way related.
The Court has to see, for the purpose of the proviso, ' whether the accused could be charged with any offence, other than the one referred to in the allotment order, in view of the provisions of the Code.
There is nothing in the proviso which could lead to the construction that any limitations other than those laid down by the provisions of the Code of Criminal Procedure were to affect the nature of the offence which could be tried by the Special Court.
We are therefore of opinion that the Special Court could try the appellant for the offence under section 420 I.P.C. and that therefore the High Court was right in altering his conviction from that under section 409 to section 420 I.P.C.
We have already referred to the statement in the chargesheet that the appellant presented a false bill to the State Bank and cashed it.
This allegation is sufficient for the pur pose of the offence under section 420 I.P.C.
It was not necessary to allege or to prove that the appellant himself had prepared the false bill.
Such an allegation could not be made in the present case in particular, as the bill which was cashed on October 6, could not be traced.
The presentation of the bill for encashment carries with it the representation that it is a genuine bill and therefore the allegations in the case attributed misrepresentation to the appellant at the time he presented the bill.
It may be mentioned here that if the bill had been a genuine bill, the offence made out in the present case would have been an offence under section 409 I.P.C.
In the circumstances, therefore, the appellant cannot be said to be prejudiced in his conviction under section 420 I.P.C. on account of the non framing of the charge, and consequent non trial, under section 420 I.P.C.
In fact, in the circumstances of the case, no question of irregularity in the trial arises.
The framing of the charge under section 420 I.P.C. was not essential and section 237 Cr.
P. C. itself justifies his conviction of the offence under section 420 if that be proved on the findings on the record.
The last contention for the appellant was that the sentence is severe.
We do not consider a sentence of 1 year 's rigorous imprisonment and a fine of Rs. 2,000 severe.
The appeal therefore fails and is dismissed.
Appeal dismissed.

summary:
The appellant was tried and convicted by the Special Judge for an offence under section 409 I.P.C. and sentenced to rigorous imprisonment for two years and to pay a fine of ' Rs. 2,000.
On appeal, the High Court altered his conviction from an offence under section 409 to one under section 420 I.P.C. for cheating the employees of the State Bank, by representing a, bill as a genuine bill drawn by the Sub Divisional Health Officer, and thereby dishonestly inducing the Bank 's Staff to make over the sum of Rs. 1,763 6 0 to him and sentenced him to rigorous imprisonment for one year and to a fine of Rs. 2,000.
On appeal by certificate the appellant mainly contended (i) that a case under section 420 I.P.C. could not be allotted for trial to a Special Court by the Government when such an offence was not committed by a public servant while purport ing to act as such public servant: (ii) that the Special Court could not take recourse to the provision of section 237 Code of Criminal Procedure and if it could, the requirements of section 237 Code of Criminal Procedure were not satisfied and consequently the High Court could not have altered the conviction from section 409 I.P.C. to one under section 420 and (iii) that the accused had been prejudiced ' on account of the absence of a charge under section 420 I.P.C. Held (i) that on the facts proved it must be held that the offence under section 420 committed by the appellant would be committed by him as a public servant purporting to act as such, and that a case involving this offence also could have been allotted to the Special Court by the Government for trial.
The Special Court was, therefore, competent to try the accused for this offence if the facts proved established it, Besides, the appellant could be tried by the Special Court for this offence in view of the proviso to section 4 of the West Bengal Criminal Law Amendment Act.
Bhajahari Mondal vs State of West Bengal, [1959] S.C.R. 1276, distinguished.
(ii) that at the trial of the appellant for an offence under section 409 I.P.C., in this case, the appellant could have also been charged for an offence under section 420 I.P.C., in view of section 236 of ' the Code of Criminal Procedure.
71 In view of the proviso to sub section (1) of section 4 of the Act, the Special Court could have tried the appellant for the offence under section 420 I.P.C.
It did not actually try him for that offence.
It was however, open to it and to the appellate court to convict him of the offence under section 420 I.P.C., when trying for an offence under section 409 I.P.C., in view of section 237 of the Code of Criminal Procedure.
(iii) that in the present case the appellant could not be said to be prejudiced in his conviction under section 420 I.P.C. on account of the non framing of the charge, and consequent non trial, under section 420 I.P.C.
In fact, no question of irregularity in the trial arises.
The framing of the charge under section 420 I.P.C. was not essential and section 237 Code of Criminal Procedure itself justifies his conviction of the offence under section 420 if that be proved on the findings on the record.
Case Law discussed.