judgement:
Appeal No. 315 of 1962.
Appeal by special leave from the judgment and order dated November 16,1960 of the Andhra Pradesh High Court in A.S. No. 397 of 1957.
A. Ranganadham Chetty, A. Vedavalli and A. V. Rangam, for the appellant.
D.Narasaraju, Advocate General for the State of Andhra Pradesh, T.V.R. Tatachari and P.D, Xenon, for the respondent.
January 25.
The judgment of the Court was delivered by GAJENDRAGADKAR, J.
The short question which arises in this appeal is whether the suit instituted by the appellant, Firm of Illury Subbayya Chetty & Sons, in the court of the Subordinate judge at Kurnool, seeking to recover Rs. 8,349/ from the respondent, the State of Andhra Pradesh, on the ground that the said amount had been illegally recovered from it under the Madras General Sales Tax Act, 1939 (Mad. IX of 1939) (hereinafter called the Act) for the years 1952 54 is competent or not ; and this question has to be determined in the light of the scope and effect of section 18 A of the Act.
756 The appellant is a firm of merchants carrying on commission agency and other business at Kurnool and as such, it purchases and sells ground nuts and other goods on behalf of principles for commission.
For the year 1952 53 the Sales tax authorities included in the appellant 's taxable turnover an amount of Rs. 3,45,488/12/10 representing groundnut sales and collected the tax on the total turnover from it in September, 1953 when the amount of the said tax was determined and duly adjusted.
The said turnover of Rs. 3,45,488/12/10 in fact represented sales of groundnuts and not purchases and tax was recovered from the appellant on the said amount illegally inasmuch as it is only on purchase of groundnuts that the tax is leviable.
As a result of this illegal levy, the ' appellant had to pay Rs. 5.398/4/3 for the said year.
Similarly, for the subsequent year 1953 1954 the appellant had to pay an illegal tax of Rs. 1,159/11/,9.
In its plaint, the appellant claimed to recover this amount together with interest @ 12% per annum and that is how the claim was valued at Rs. 8,349/ .
This claim was resisted by the respondent on two grounds.
It was urged that the suit was incomepetent having regard to the provisions of section 18 A of the Act; and on the merits it was alleged that the transactions in regard to groundnuts on which s lestax was levied and recovered from the appellant were transactions of purchase and not of sale.
In this connection, the respondent referred to the fact that the appellant itself had included the transaction in question in the return submitted by it in form A and that it was making payments tentatively every month to be adjusted after the final assessment was made at the end of the year.
Accordingly, the final adjustment was made in September and the total amount due from the appellant duly recovered.
Thus, the appellant having voluntarily made the return and paid the taxes, it was not open to him to 757 contend that the transactions in regard to groundnuts were not taxable under the Act.
Besides, the appellant had not preferred an appeal either to the Deputy Commissioner of Commercial taxes or to the Sales Tax Appellate Tribunal ; and so, it had not availed itself of remedies provided by the Act.
On these pleadings, the trial Court framed three principal issues.
The first issue was whether the suit was barred by section 18 A of the Act; the second was whether there had been excess collection of sales tax for the two years in question and if so, how much ? And the third issue was whether the appellant was estopped from questioning the validity of the assessment ? According to the trial court, the respondent had failed to prove its pleas against the apppellant 's claim and so, it recorded findings in favour of the appellant in all the three issues.
In the result, a decree followed in favour of the appellant for the recovery of Rs. 6,558/ with interest 6% per annum from November 12, 1955 till the date of payment.
This decree was challenged by the respondent by preferring an appeal before the High Court of Andhra Pradesh.
It appeared that the decision of the said High Court in the case of State of Andhra Pradesh vs Shri Krishna Cocoanut Co. (1), was in favour of the view taken by the trial Court ; but the respondent urged before the High Court that the said decision was erroneous in law and require reconsideration.
That is why the respondent 's appeal was placed before a Full Bench of the High Court.
The Pull Bench has upheld the contentions raised by the respondent.
It has held that in view of the provisions of section 18 A of the Act, the suit is incompetent.
Alternatively, it has found that on the merits, the claim made by the appellant was not justified.
The result of these findings was that the respondent 's appeal was allowed and the appellant 's suit was dismissed (1) (1960) 1 Andhra W.R.279. 758 with costs.
The appellant had filed cross objections claiming additional interest on the decretal amount, but since its suit was held to be incompetent by the High Court, its cross objections failed and were dismissed with costs.
it is against this decree that the appellant has come to this Court by special leave.
Mr. Ranganathan Chetty for the appellant contends that the High Court was in error in coming to the conclusion that the appellant 's suit was incompetent because he argues that the High Court has misjudged.the effect of the provisions of section 18 A In dealing With the question wether civil courts jurisdiction to entertain suit is barred or not it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary.
The exclusion of the jurisdiction of Civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature .The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the , civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute.
It is, therefore,necessary to enquire whether s.18 Aexpressly or by necessary implication excludes the jurisdiction of the civil court to entertain a suit like the present.
Section 18 A provides that no suit or other Proceeding shall, except as expressly provided in this Act.
be instituted in any Court to set aside or modify any assessment made under this Act.
It is common ground that there is no express provision made in the Act under which the present 759 suit can be said to have been filed, and so, it falls under the prohibition contained in this section.
The prohibition is express and unambiguous and there can be no doubt on a fair construction of the section that a suit cannot be entertained by a civil court if, by instituting the suit, the plaintiff wants to set a side or modify any assessment made under this Act.
There is therefore, no difficulty in holding that this section excludes the jurisdiction of the civil courts in respect of the suits covered by it.
It is, however, urged by Mr. Chetty that if an order ',of assessment has been made illegally by the appropriate authority purporting to exercise its powers under the Act, such an assessment cannot be said to be an assessment made under this Act.
He contends that the words used are "any assessment made under this Act" and the section does not cover cases of assessment which are purported to have been made under this Act.
In support of this argument he has referred us to the provisions of section 17 (1) and section 18 where any act done or purporting to be done under this Act is referred to.
It would, however, be noticed that having regard to the subject matter of the provisions contained in sections 17 (1) and 18 it was obviously necessary to refer not only to acts done, but also to acts purporting to be done under this Act.
Section 17 (1) is intended to bar certain proceedings and section 18 is intended to afford an indemnity and that is the reason why the legislature had to adopt the usual formula by referring to acts done or porting to be done.
It was wholly unnecessary purl to refer to cases of assessment purporting to have been made under this Act while enacting section 18 A, because all assessments made under this Act would attract the provisions of section 18 A and that is all that the legislature intends section 18 A to cover.
The expression " 'any assessment made under this Act" is, in our opinion, wide enough to coverall 760 assessments made by the appropriate authorities under this Act whether the said assessments are correct or not.
It is the activity of the assessing officer acting as such officer which is intended to be protected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment that clearly falls within the scope of s.18 A. The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law, the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act.
Whether or not an assessment has been made under this Act will not depend on the correctness or the accuracy of the order passed by the assessing authority.
In determining the applicability of s.18 A. the only question to consider is: "Is the assessment sought to be set aside or modified by the suit instituted an assessment made under this Act or not?" It would be extremely anomalous, to hold that it is only an accurate and correct order of assessment which falls under s.18 A.
Therefore, it seems to us that the orders of assessment challenged by the appellant in its suit fall under s.18 A.
In this connection, it is necessary to emphasise that while providing for a bar to suits in ordinary civil courts in respect of matters covered by s.18 A, the legislature has taken the precaution of safeguarding the 'citizens ' rights by providing for adequate alternative remedies.
Section 11 of the Act provides for appeals to such authority as may be prescribed; section 12 confers revisional jurisdiction on the authorities specified by it; s.12 A allows an appeal to the appellate Tribunal; s.12 B provides for a provision by the High Court under the cases specified in it; s.12 C provides for an appeal to the.
High Court; and section I 2 D lays down that petitions, applications and appeals to High Court should be heard by a Bench of not 761 less than two judges.
The matter can even be brought to this Court by way of a petition under article 130 of the Constitution.
It would thus be seen that and dealer who is aggrieved by an order of assessment passed in respect of his transactions, can avail him self of the remedies provided in that behalf by these sections of the Act.
It is in the light of these elaborated alternative remedies provided by the Act that the scope and effect of s.18 A must be judged.
Thus considered, there can be no doubt that where and order of assessment has been made by an appropriate authority the provisions of this Act, any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or the revisional forum prescribed by the relevant provisions of the Act.
A suit instituted for that purpose would be barred under section 18 A.
The facts alleged by the appellant in this case are somewhat unusual.
The appellant itself made voluntarly returns under the relevant provisions of the Act and included the groundnut transactions as taxable transactions.
It was never alleged by the appellant that the said transactions were transactions of sale and as such, not liable to be taxed under the Act.
It is true that under s.5A(2) groundnut is made liable to tax under s.3(1) only at the point of the first purchase effected in the State by a dealer who is not exempt from taxation under section 3(3), but at the rate of 2% on his turnover.
When the appellant made its voluntary returns and paid the tax in advance to be adjusted at the end of the year from time to time, it treated the groundnut transactions as taxable under s.5A(2).
In other words, the appellant itself having conceded the taxable character of the transactions in question, no occasion arose for the taxing authority to consider whether the said transactions could be taxed or not; and even after the impugned orders of assessment were made, the appellant did not choose to file an appeal and urge 762 before the appellate authority that the transactions were sale transactions and as such, were outside the purview of s.5A(2).
If the appellant had urged that the said transactions were outside the purview of the Act and the taxing authority in the first instance had rejected that contention, there would be no doubt that the decision of the taxing authority would be final, subject, of course, to the appeals and revisions provided for by the Act.
The position of the appellant cannot be any better because it did not raise any such contention in the assessment proceedings under the Act.
If the order made by the taxing authority under the relevant provisions of the Act in a case where the taxable character of the transaction is disputed is final and cannot be challenged in a civil court by a separate suit, the position would be just the same where the taxable character of the transaction is not even disputed by the dealer who accepts the order for the purpose of the Act and then institutes a suit to set it aside or to modify it.
The question about the exclusion of the jurisdiction of the civil courts to entertain civil actions by virtue of specific provisions contained in special statutes has been judicially considered on several occasions.
We may in this connection refer to two decisions of the Privy Council.
In Secretary of State vs Mask.
& Coy., (1) the Privy Council was dealing with the effect of the provisions contained in section 188 of the Sea Customs Act (VIII of 1878).
The relevant portion of the said section provides that every order passed in appeal under this section shall, subject to the power 'of revision conferred by section 191, be final.
Dealing with the question about the effect of this provisions the Privy Council observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied.
Lord Thankerton who delivered the opinion of the Board, however, proceeded to add that (1) (1940) 67 I.A. 222,236, 763 "it is also well settled that that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
" It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with.
Non compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction.
Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question.
It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute.
In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have no doubt that the contention of the appellant that on the merits, the decision of the assessing authority was wrong, cannot be the subject matter of a suit because section 18 A clearly bars such a claim in the civil courts.
The next decision to which reference may be made was pronounced by the Privy Council in the 764 case of Releigh Investment Coy.
Ltd. vs GovernorGeneral in Council (1).
In that case the effect of section 67 of the Indian Income tax Act fell to be considered.
The said section, inter alia, provides that no suit shall be brought in any civil court to set aside or modify any assessment made under this Act.
It would be noticed that the words used in this section are exactly similar to the words used in section 18 A with which we are concerned.
In determining the effect of section 67, the Privy Council considered the scheme of the Act by particular reference to the machinery provided by the Act which enables an assessee effectively to raise in courts the question whether a particular provision of the Income tax Act bearing on the assessment made is or is not ultra vires.
The presence of such machinery observed the judgment, though by no means conclusive, marches with a construction 'of the section which denies an alternative jurisdiction to enquire into the same subject matter.
It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income tax Act; and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him, it would be open to him to raise that point before the taxing authority and take it for a decision before the High Court under section 66 (1) of the Act. ' It is not necessary for us to consider whether this assum ption is well founded or not.
But the presence of the alternative machinery by way of appeals which a particular statute provides to a party aggrieved by the assessment order on the merits, is a relevant consideration and that consideration is satisfied by the Act with which we are concerned in the present appeal.
The clause "assessment made under this Ace ' which occurs in section 18 A. also occurs in section 67 with (1)(1947) 74 I.A. 50, 68. 765 which the privy Council was concerned, and in construing the said clause, the Privy Council observed that "the phrase "made under this Act" describes the provenance of the assessment : it does not relate to its accuracy in point of law.
The use of the machinery provided by the Act, not the result of that use, is the test " These two Privy Council 's decisions support the conclusion that having regard to the scheme of the Act, section 18 A must be deemed to exclude the jurisdiction of civil courts to entertain claims like the present.
In the result, we must hold that the view taken by the High Court is right and so, the appeal fails and is dismissed.
There would be no order as to Appeal dismissed.

summary/full:
The appellant filed a suit against the respondent for a decree for Rs. 8339/ on the ground that the said amount had been illegally recovered from it under the Madras General Sales Tax Act, 1939, for the years 1952 54.
The respondent 753 resisted the claim on the ground that the suit was incompetent under section I 8 A of the Act.
On the merits, it was contended that the transactions in regard to groundnuts on which sales tax was levied and recovered from the appellant were transactions of purchase and not of sale, and it was urged that the appellant having voluntarily made the return and paid the taxes, it was not open to it to contend that the transactions were not taxable under the Act.
Besides it was argued that the appellant had not preferred an appeal either to the Deputy Commissioner of Commercial Taxes or to the Sales Tax Appellate Tribunal against the assessments and bence the suit was not maintainable.
The suit was decreed by the trial court but the High Court reversed that decision and dismissed the suit on the ground that in view of the provisions of section 18 A of the Act, the suit was incompetent.
Alternatively.
it was found on merits that the claim made by the appellant was not justified.
The appellant came to this Court by special leave.
Held, that section 18 A excludes the jurisdiction of Civil Courts to set aside or modify any assessment made under the Act.
There is no express provision in the Act under which the suit can be said to have been filed and it falls under the prohibition contained in this section.
The prohibition is express and unambiguous and no suit can be entertained by a Civil Court, if by instituting the suit.
the plaintiff wants to set aside or modify any assessment made under the Act.
Where an order of assessment has been made by an appropriate authority under the provisions of the Act, any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or revisional forum prescribed by the relevant provisions of the Act.
A suit instituted for that purpose is barred under section 18 A. When the appellant made its voluntary returns and paid the tax in advance to be adjusted at the end of the year from time to time, it treated the groundnut transactions as taxable.
The appellant having conceded the taxable character of the transactions in question, no occasion arose for the taxing authorities to consider whether the said transactions could be taxed or not.
Even after the impugned orders of assessment were made, the appellant did not choose to file an appeal and urge before the appellate authority that.
the transactions were sale transactions and as such were outside the purview of section 5A (2).
If an order made by a taxing authority under the relevant provisions of the Act in a case where the taxable character of a transaction is disputed, is final and cannot be challenged in a civil court by a separate suit, the position is just 754 the same where the taxable character of the transactions is not even disputed by the dealer who accepts the order for the purposes of the Act and then institutes a suit to set aside or modify it.
The expression "any assessment made under this Act" is wide enough to cover all assessments made by the appropriate authorities under this Act whether the said assessments arc correct or not.
It is the activity of the assessing officer acting as such officer which is intended to be projected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment, that clearly falls within the scope of section 18 A.
The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act.
Whether or not an assessment has been made under this Act will not depend on the correctness or accuracy of the order passed by the assessing authority.
There is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and such a remedy could be held to be barred only on very clear and unmistakable indications to the contrary.
The exclusion of jurisdiction of civil courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to the effect or leads to a necessary and inevitable implication of that nature.
The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute.
There is no justification for the assumption that if a decision has been made by a taxing authority under the provisions of a taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on merits and as such it can be claimed that the provisions of the said statute have not been complied with.
Non compliance with the provisions of the statute must be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction.
If an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and that infirmily may affect the validity of the order passed by the authority in question.
It is cases of this character where the 755 defect or infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute.
Secretary of State vs Mask & Co., (1940) 67 I.A. 222 and Reliegh Investment Co. Ltd. vs Governor General in 'Council, (1947) 74 I.A. 50, relied on.
State of Andhra Pradesh vs Sri Krishna Coconut Co. (1960) 1 Andhra W.R. 279, overruled.


judgement:
Appeal No. 212 of 1961.
From the judgment and decree dated December 11, 1957, of the Bombay High Court in First Appeal No. 640 of 1957.
G. section pathak, N. D. Karkhanis, B. Datta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
C.K. Daphtary, Solicitor General of India, N.S. Bindra and R. H. Dhebar for P. D. Menon, for the respondents.
February 8.
The judgment of the Court was delivered by GAJENDRAGADKAR, J.
The short question which this appeal raises for our decision is whether the appellant Shankar Narayan Ranade has established his title to the running water of the river Valdevi which runs through his Inam village Vadner.
The said village had been granted to the ancestors of 887 the appellant by the Peswa Government in 1773 A.D.
This grant was continued by the British Government when the British Government came in power.
The river Valdevi has its origin in the hills of Trimbak and from those hills it flows to Vadner and then to Chehedi where it joins the river Darna and thus loses its individuality.
The total length of this river is about 25 miles, while its length within the limits of Vadner village is about 2 miles 82 furlongs.
The Darna river after its conjunction with Valdevi proceeds towards Sangvi and there is merged with Godavari river : The appellant is one of the sharers in the Inam village of adner and he brought the present suit No. 12/1950 in the Court of the Civil judge (Senior Division) at Nasik, claiming reliefs against the Union of India and the State of Bombay, respon dents 1 & 2 respectively, on the basis of his title to the running water of the said river.
It appears that in 1942, during the period of the 11 Would War, the Military authorities constructed barracks and other residential quarters for the army personnel within and outside the limits of Vadner.
They also built a dam across the river Valdevi within the limits of Vadner and dug a well near the bank of the river.
This well was fed with water carried by two channels drawn from the river.
When the water reached the well, it was pumped from the well and duly stored in four reservoirs where it was filtered and then it was carried by means of pipes to the residential area occupied by the military personnel.
The appellant then approached the military authorities and also the Government of Bombay and claimed compensation for the use of the water and the lands by the military authorities.
Since his request for adequate compensation was not met, he filed the present suit on March 11, 1950, in a representative character under O. 1 r. 8 C. P. C. 888 In this suit, the appellant speaking for himself and for the other sharers in the Inam village of Vadner alleged that the jagirdars of the village were, full owners of the entire area of that village, including the land, the stream and the water flowing through the stream within the limits of the village.
According to the plaint, the acts of diversion of water committed by the military authorities had deprived the appellant and the other Inamdars of their right to utilise that water for their own gains and thus, had caused injury and damage to them.
As compensation for this damage, the appellant claimed Rs. 1,11,250/ from the respondents.
The appellant further made a claim for Rs. 750/ as compensation for the use of his land by the military authorities.
The diversion of water and the use of land continued from 1942 to 1949.
Some other incidential reliefs were also claimed by the appellant.
Respondent No. 2 contested the appellant 's claim.
It urged that the Inamdars were not the grantees of the soil, but were the grantees of the royal share of the revenue only; and it was urged that in any case, they had no ownership over the flowing water of the Valdevi river.
Respondent No. 1 adopted the written statement of respondent No. 2 and filed the Purshis in that behalf.
According to the respondents, the river Valdevi had become a notified canal by virtue of a notification issued on February 17, 1913 under section 5 of the Bombay Irrigation Act, 1879, and in consequence, the Inamdars had lost their rights, if any, in the waters of the said river and respondent No. 2 had the absolute right of the use of the said water.
A plea of limitation was also made by both the respondents.
The learned trial judge made findings in favour of the appellant on all the issues.
He held that the Inamdars were the grantees of the soil, that the 889 river Valdevi and its flowing water belonged to them, that the notification on which reliance was placed by the respondents was invalid, that the acts of the military authorities were unauthorised and that the appellant was consequently entitled to the compensation for the use, by the military authorities, of the water of the river and his lands and also for the loss of his income from the river bed.
According to the trial Court, the appellant was entitled to this compensation only for two years before the date of the suit and the rest of his claim was barred by time.
Accordingly, it passed a decree in favour of the appellant for an amount of Rs. 26,788/1/as compensation for the use of water up to December 31, 1949, directed that the compensation for the use of water for the period subsequent to January 1, 1950 should be ascertained in execution.
proceedings, and awarded compensation @ Rs. 100/ per annum for the use of the land, and Rs. 50/ per annum for the loss of income from the river bed during the period that the act of the military authorities continued.
This decree was challenged both by the appellant and the respondents by cross appeals Nos.
634/1954 and 640/1953 respectively. 'The appellant claimed a larger amount of compensation, whereas, according to the respondents, no compensation was payable in respect of the alleged diversion of the running water of the river Valdevi.
It appears that before the High Court, the respondents did not dispute the finding of the trial Court that the Inamdars were the grantees of the soil and conceded that the rights of the Inamdars such as they were to the waters of the river Valdevi had not been extinguished by the notification issued under the Bombay Irrigation Act.
It was, however, urged that the Valdevi river being a notified canal, the military authorities could have used its water by making appropriate applications under 890 sections 17 and 27 of the said Irrigation Act; but since there was no evidence to show that any such applications had been made, the said point did not survive.
The main argument urged by the respondents in their appeal was that the appellant was not the owner of the running water of the stream and so, he had no right to claim any compensation for the alleged diversion of the said water by the military Authorities.
The High Court has substantially accepted this contention.
It has held that as owners of the lands in the village situated on both banks of the river the Inamdars were entitled to the use of the water of the river as riparian owners and what belonged to them was water which they took out from the river and appropriated to their use; they were, however, not entitled to claim title over the flowing water of the river and so, the diversion of the flowing water of the river cannot sustain their claim for compensation.
The decree passed by the trial Court in respect of compensation for the wrongful use of the lands was not challenged by the respondents.
In the result, the High Court modified the decree passed by the trial Court by setting aside that part of it which related to, the compensation for the use of the water of the Valdevi river by the military authorities and confirmed the rest of the directions issued by the decree.
It is against this decree that the appellant has come to this Court with a certificate issued by the High Court ; and the main point which has been urged before us by Mr. Pathak on behalf of the appellant is that the high Court was in error in rejecting the appellant 's claim that the Inamdars of the village were the owners of the running water of the river Valdevi during its course within the limits of the Inam village of Vadner.
In support of the appellant 's case, Mr. Pathak has urged that in construing the Sanad on which the appellant 's title is founded, it would be necessary to 891 bear in mind two important considerations.
The first consideration is that the flowing water of a river constitutes property which can belong to a citizen either by grant or otherwise and assistance is sought for this argument from the provisions of section 37 of the Bombay Land Revenue; Code (Act V of 187(9).
Section 37 (1) provides, inter alia, that all public roads, lanes and paths which are not the property of individuals, belong to the Crown, and amongst the items of property specified in this clause are included rivers, streams, nallas, lakes, tanks and all canals and watercourses, and all standing and flowing water The argument is that this sub section Postulates that the items of property specified by it can belong to private individuals, and it provides that if they are not shown to belong to private individuals, they would vest in the State.
Therefore, in construing the Sanad, We ought to remember that the river and its flowing water constitute property which can be granted by the Ruler to a citizen.
The other consideration on which Mr. Pathak has relied is that tinder the provisions of section 8 of the Transfer of Property Act, it should be assumed that unless a different intention is expressly or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof.
Mr. Pathak contends that assuming that prior to the grant, the Peshwa Government as the ruling power of the day was the owner of the river and its flowing water,, when the said Government made a grant to the appellant 's predecessors, the principle enunciated by section 8 of the Transfer of Property Act should be applied and the grant should be construed to include all rights, title and interest of the grantor, unless there is a contrary provision either expressly made, or implied by necessary implications.
892 Bearing those two considerations in mind, let us consider the terms of the Sanad itself.
The Sanad is drawn in terms which are consistent with the pattern prevailing in that behalf in those days and contains the usual familiar recitals.
The relevant portion of the Sanad reads as follows : " 'Seeing the respectable Erahsins, performing Snan Sandhya (bath and prayer) leading ascetic life, devoted to the performance of their duties as laid down in Shrities and Smrities, the Government has constructed houses there and given to (them).
Thinking that if the same are given to them, it would be beneficial to the Swami and to the Kingdom of Swami, the village of mouje Vadner, Pargana aforesaid in (a) (b) Swarajya as well as Moglai Dutarfa (on both sides) has been given to them as Nutan (New) (c) (d) Inam together with Sardeshmukhi, Inam Tizai, (e) (f) (g) Kulbab Kulkanu, Hali Patti, and Pestr Patti excluding (the rights of) Hakkadar and Inamdar and together with water, trees, grass, wood stones and hidden treasures, for maintenance of their families." The Sanad then defines the shares in the current revenue of the said village amongst the respective shares.
In the concluding portion, it makes certain other provisions with which we are not concerned in the present appeal.
This Sanad was executed in 1773 A. D. During the British rule, this Sanad was confirmed in 1858 A. D.
It is common ground that the material terms which have been construed for the purpose of determining the title of the appellant are contained in the earlier sanad.
It would be noticed that the Sanad refers to the rights in water, trees, grass, wood, stones and hidden 893 treasures.
It is well settled that the word "water (jal)" refers to water in tanks or wells and does not refer to the flowing water of the river.
Indeed, if a grant of the river including its flowing water is intended to be made, the Sanad would have definitely used the word " 'river (nadi)", because it is wellknown that when rivers, drains or culverts are intended to be gifted, the Sanads usually use the words "nadi and nalla".
Therefore, on a plain construction of the relevant words used in the Sanad, there can be no doubt that what is conveyed to the grantee by the Sanad is stationary or static water in the ponds or wells and not the flowing water of the river.
The specific reference to water meaning water of the well or the pond serves two purposes ; it defines the kind of water which is conveyed, and by necessary implication, excludes the grant of flowing water of the river.
Sanads containing words like these have frequently been considered by the Bombay High Court in the past and it has been consistently held that the word "water" means only water in the ponds or wells and does not refer to the flowing water of the river, vide Annapurnabai Gopal vs Government of Bombay (1).
Therefore, the two considerations on which Mr. Pathak strongly relied in support of his construction of the Sanad do not really assist him.
The language of the Sanad precisely defines the nature of the water that is conveyed and in doing so, by necessary implication, excludes the flowing water of the river.
Mr. Pathak, however, suggests that it is not disputed by the respondents that the Sanad in question grants title to the soil of the village and is not confined to the royal share of the revenue only ; and he, argues that the grant of the soil necessarily means the grant of the bed of the river while it flows within the limits of the Inam village.
If the bed of the river has been granted to the appellant 's predecessors by the Sanad, why does it not follow that the water flowing (1) , 894 on the said bed during the said limits belongs to the appellant ? The title to the running water of the river must, Mr. Pathak says, go with the title to the bed of the river.
There are two difficulties in accepting this contention.
The first difficulty is that the use of the word "water (jal)" in the Sanad, as we have already held, excludes the running water of the river.
Besides, it is by no means clear that the title to the flowing water of the river necessarily goes with the title to the bed of the river.
As was observed by Lord Selborne in Lyon vs Fish mongers ' Company. " 'The title to the soil constituting the bed of a river does not carry with it only exclusive right of property in the running water of the stream, which can only be appropriated by severance, and which may be lawfully so appropriated by every one having a right of access to it.
Therefore, the argument that the grant of the soil of the village including the bed of the river must necessarily include the grant of the title to the flowing water of the river can not be accepted.
In this connection, it is necessary to remember that the river Valdevi flows through the village only for the distance of 2 miles & 2 furlongs.
It is not a case where the whole of the stream of the river from its origin to its merging in another river runs entirely through this village.
If a river takes its origin within the limits of an Inam village and its course is terminated within the limits of the same village, that would be another matter.
In the present case, if the appellant 's right to the following water of the river is conceded, it would mean that the Inamdars would be able to divert the water completely and destroy the rights of the other riparian owners whose lands are situated outside the village.
They may be able to pollute the water or do anything with it to the prejudice of the said riparian owners.
Such rights cannot be claimed by the appellant unless the Sanad in his favour makes the grant 895 of,the running water in terms.
As we have already seen, the Sanad not only does not make any such grant, but by necessary implication also excludes the running water from the purview of the grant.
Mr. Pathak then attempted to argue that the diversion of the water of the river Valdevi during the relevant period affected the appellant 's right as the riparian owner and that, according to him, would furnish him with a cause of action for claiming damages against the respondents.
In this connection, Mr. Pathak invited our attention to the observations of Parke, B. in Embrey vs Owen.
(1). "Flowing water," said Parke, B., "is public juris in this sense only that all may reasonably use it who have a right of access to it, and that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only.
The right to have a stream of water flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes ; but this is not an absolute and exclusive right to the flow of all the water, but only subject to the right of other riparian proprietors to the reasonable enjoyment of it; and consequently it is only for an unreasonable and unauthorised use of this common benefit that any action will lie." In this connection, Mr. Pathak has also referred us to the decision of the Privy Council in the Secretary of State for India vs Subbararayudu (1).
In that case, the Privy Council has elaborately considered the nature and extent of the rights which a riparian owner can claim.
"A riparian owner observed Viscount Dunedin, "is a person who owns land abutting on a stream and who as such has a certain right to take water from the stream.
In ordinary cases, the fact that his land abuts on the stream makes him the proprietor of the bed of the (1)(1851) 6 E,.c.
353 : ; (2) (1931) L,R. 59 I.A. 56, 63 64, 896 stream usque ad medium filum.
But he may not be.
He may be ousted by an actual grant to the person on the other side, or he may be and often is ousted by the Crown when the stream is tidal and navigable, the solum of the bed belongs to the Crown.
" It was also observed that "the right of a riparian owner to take water is first of all, for domestic use, and then for other uses connected with the land, of which irrigation of the lands which form the property is one.
This right is a natural right and not in the strict sense of the word an easement, though in many cases it has been called an easement.
" We do not, however, think that it is possible for us to allow Mr. Pathak to raise this alternative argument before us, because it is clear that the reliefs claimed by the appellant were based only on one ground and that was, the title to the flowing water of the river.
In paragraph 8 of the plaint the appellant has specifically stated that he was claiming the amount of compensation for the use of water belonging to the plaintiff and in paragraph 3 it has been clearly averred that the running water of the river belongs to the appellant and so, by the unauthorised acts of the military authorities, the appellant and the Inamdars were not able to let out their bed of the stream for the plantation of water melons etc., and were thus put to loss.
In other words, the plaint has made no allegation even alternatively that the appellant and the other Inamdars of the 'village had certain rights in the flowing water of the river as riparian owners and the illegal acts of the military authorities had affected the said rights and thereby caused damage to them.
In fact, as the High Court has pointed out, there is no evidence on the record which would sustain the appellant 's claim that the acts of the military authorities had prejudicially affected the appellant 's rights as a riparian owner to the use of the water, and that means, on the record 897 there is nothing to show that any damage had been caused to the Inamdars of the village as a result of the diversion of the water caused by the military authorities.
Therefore, we are satisfied that the appellant cannot now make an alternative case on the ground of his rights as a riparian owner.
The result is, the appeal fails and is dismissed with costs, two sets; one hearing fee.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was one of the sharers in the Inam village of vadner and brought a suit against respondents claiming relief on the basis of his title to the running water of river valdevi.
During World War 11, the military authorities constructed residential quarters within and outside the limits of vadner.
They built a dam across the river within the limits of vadner and dug a well near the bank of the river which was fed by the river water and the water was carried to the residential areas.
The diversion of water and the use of land continued from 1942 to 1959, which deprived the appellant and the other Inamdars of their right to utilise that water for their own gain and of others ; this had caused injury and damage to them, for which, the appellant claimed compensation from the respondents.
According to the respondents, by virtue of a notification under section 5 of the Bombay Irrigation Act, 1879, the river had become a notified canal and consequently the Inamdars had lost their rights, if any, in the waters of the said river.
They also took a plea of limitation.
The trial court decreed the suit and held that the appellant was entitled to the compensation only for two years before the date of the suit and the rest of his claim was barred by time.
The decree was challenged both by the 886 appellant and the respondents by cross appeals in the High Court.
The High Court dismissed the appeal with modifications.
Then followed an appeal to this court on certificate.
Held, that the use of the word "water " in the sanad, pro perly construed, excludes the running water of the river and it could not be said that title to the flowing water of the river went with the title to the bed of the river.
If the sanad made no grant of the running water in terms, the appellant could not claim the same as the riparian owner.
Anapurnabai Gopal vs Government of Bombay (1931) 47 Bom.
L. R. 839 and Lyen vs Fish Mongers ' Company [1876] 1 App.
Cas. 662, referred to.
Held, further, that the appellant could not be allowed to make an alternative case on the ground of his rights as a riparian owner as there was neither any allegation in the plaint nor any evidence on the record to that effect.


judgement:
Appeal No. 697 of 1962.
Appeal by special leave from the judgment and order dated March 21, 1962, of the Madras High Court in Writ Appeal No. 154 of 1960.
B. Sen, Ravinder Narain, O. C. Mathur and J.B. Dadachanji, for the appellant.
A. V. Visvanatha Sastri, and R. Gopalakrishnan, for respondent 1.
A. Ranganadham Chetty and A. V. Rangam, for respondent Nos. 2 and 3. 1963.
February 6.
The judgment of the Court was delivered by 811 SUBBA RAO J.
This appeal by special leave is directed against the judgment of a division Bench of the High Court of judicature for Madras confirming that a single judge of that Court allowing.
the petition filed by the respondent under article 226 of the constitution and quashing the order made by the State Transport Appellate Tribunal granting a stage carriage permit to the appellant for the route Tanjore Mannargudi via Vaduvoor.
The facts relevant to the question raised may be briefly stated.
The Regional Transport Authority, Tanjore, called for applications in respect of the issuing of a stage carriage permit for the route Tanjore Mannargudi via Vaduvoor.
11 persons applied for the permit.
The Regional Transport Authority, adopting the marking system prescribed in ' G.O. Ms. No. 1298 (Home) dated April 28,1956, awarded marks to different applicants : the appellant of the highest number of Marks, viz., 7, and the first respondent got only 4 1/4 marks, with the result the appellant was preferred to the respondent and a permit was issued to him.
It is not necessary to notice the marks secured by the other applicants before the Regional Transport Authority, for they are not before us.
Total of the said marks secured by each of the said two parties was arrived at by gadding the marks given under the following heads: Viable Work Resi Experi Special To Unit shop dence ence circums tal tances.
1 2 3 4 5 K.M.S 4 1 1 1/2 1/4 7 S.R.V.S. 1 1 1 1 1/4 4 It would be seen from the said table of marks that if the 4 marks secured by the appellant under the 812 first column "Viable Unit" were excluded from his total, he would have got only a total of 3 marks under the remaining heads and the first respondent would have got a total of 41 marks under the said heads.
Under the said G.O., as interpreted by this Court, the marks under the first column, i.e., those given under the head "Viable Unit", would be counted only if other things were equal; that is to say, if the total number of marks obtained by the said two applicants under Cols.2 to 5 were equal.
It is, therefore, obvious that on the marks given the Regional Transport Authority went wrong in issuing, a permit in favour of the appellant, as he should not have taken into consideration the 4 marks given under the 1st Column since the total marks secured by him under Cols.
2 to 5 were less than those secured by the first respondent.
Aggrieved by the said order, the first respondent preferred an appeal to the State Transport Appellate Tribunal, hereinafter called the Appellate Tribunal.
The said Appellate Tribunal recast the marks in respect of the said two .parties in the following manner: Viable Work Resi Experi Special To Unit shop dence ence circums tal tances 1 2 3 4 5 K.M.S. 4 2 1 3/4 1/4 8 S.R.V.S. 2 1 1 4 It would be seen from the marks given by the Appellate Tribunal that the total of the marks secured by the appellant under Cols.
2 to 5 is equal to that secured by the first respondent under the said columns, each of them securing 4 marks.
It was contended before the Appellate Tribunal that the first respondent was entitled to some mark under the column "Residence or place of business" on the ground 813 that it had the places of business at Tanjore and Mannargudi and that the Regional Transport Authority had given one mark to the first respondent under the said column ; but the Appellate Tribunal rejected that contention on the ground that the first respondent had a branch office at Kumbakonam and, therefore, the office at Tanjore or Mannargudi could not be treated as a branch office.
Aggrieved by that order, the first respondent filed a petition before the High Court under article 226 of the Constitution for setting aside that order.
Ramachandra lyer, J., who heard the said application allowed it.
The main reason given by the learned judge for allowing the petition was that the Appellate Tribunal omitted to give any mark in respect of residential qualification, which amounted to refusal to take into consi deration the admitted fact, namely, the existence of a workshop at Mannargudi and therefore, it amounted to a breach of section 47 (1) (a) and (c) of the Motor Vehicles Act.
The same idea was expressed by the learned judge in a different way thus: It. . in regard to residential qualification, it (the Appellate Tribunal) declined to consider whether the office workshop at Mannargudi are sufficient to entitle the petitioner to any marks under head for the mere reason that it was a branch of a branch office." He held that the said refusal was an error apparent on the face of the record; and he accordingly quashed the order and at the same time indicated that the result 'was that the State Transport Appellate Tribunal would have to dispose of the appeal afresh.
The Letters Patent appeal filed by the appellant was heard by a division Bench consisting of Anantanarayanan and Venkatadri, jj.
The learned judges dismissed the appeal and the reason of their decision is found in the following remarks "In essence, the judgment really proceeds on the basis that with regard to the claim of the 814 respondent to some valuation under Col. 3, arising from the existence of an alleged branch office at Mannargudi there has been no judicial disposal of the claim.
" They also observed "The Tribunal is, of course, at liberty to adopt its own criteria for the valuation under Col. 2, provided they are consistently applied, and based upon some principle." In dismissing the appeal the learned judges concluded ". . we desire to make it clear that we are not in any way fettering the discretion of the State Transport Appellate Tribunal to arrive at its own conclusion on the claims of the two parties irrespective of any observations that might have been incidentally made by this Court on those claims.
" The appellant has preferred the present appeal by special leave against the said order.
It will be seen from the aforesaid narration of facts that the High Court issued the writ as it was satisfied that there was a clear error apparent on the face of the record, namely, that the Appellate Tribunal refused to take into consideration the existence of the branch office at Mannargudi for awarding marks under the head "residence" on the ground that there was another office of the first respondent at Kumbakonam.
While it gave marks to the appe llant for his residence, it refused to give marks to the first respondent for its office on the aforesaid ground.
Mr. Sen, learned counsel for the appellant, raised before us the following points (1) The.
Court has no jurisdiction to issue a writ of certiorari under 816 article 226 of the Constitution to quash an order of a Tribunal on the ground that there is an apparent error of fact on the face or the record, however gross it may be, and that, in the instant case, if there was an error, it was only one of fact; (2) this Court has held that directions given under section 43 of the Motor Vehicles Act are only administrative in character and that an order made by a Tribunal in breach thereof does not confer a right on a party affected and, therefore, the Appellate Tribunal 's order made in derogation of the said directions could not be a subject matter of a writ.
The argument of Mr. Viswanatha Sastri, learned counsel for the first respondent, may be summarized thus : The petitioner (appellant herein) has a fundamental right to carry on business in transport.
The Motor Vehicles Act is a law imposing reasonable restrictions in public interest on such right.
The Appellate Tribunal can decide, on the material placed before it, whether public interest would be better served if the permit was given to the appellant or the first respondent within the meaning of section 47 of the said Act.
The Government, in exercise its powers under section 43 of the said Act, gave administrative directions embodying some principles for enabling the Tribunal to come to a conclusion on the said point.
The Tribunal had jurisdiction to decide the said question on the basis of the principles so laid down or dehors them.
In either view, it only decides the said question.
The first respondent raised before the Tribunal that public interest would be better served if a permit was issued to it as it had a well equipped branch office at Mannargudi.
The said question was relevant.
in an inquiry under section 47 of the said Act, whether the Tribunal followed the instructions given by the Government or ignored them.
In coming to a conclusion on the said 816 question, the Tribunal made a clear error of law inasmuch as it held that in the case of the first respondent, as it had a branch at Kumbakonam, its other branch at Mannargudi should be ignored.
This, the learned counsel contends, is an error apparent on the face of the record.
He further contends that the scope of an inquiry under article 226 'is wide and that it enables the court to issue an appropriate direction even in a case of an error of fact apparent on the face of the record.
It is not necessary to express our opinion on the wider question in regard to the scope and amplitude of article 226 of the Constitution, namely, whether the jurisdiction of the High Court under the said Article to quash the orders of Administrative tribunals is confined only to circumstances under which the High Court of England can issue a writ of certiorari or is much Wider than the said power, for this appeal can satisfactorily and effectively be disposed of within the narrow limits of the ambit of the English Court 's jurisdiction to issue a writ of certiorari as understood by this Court.
If it was necessary to tackle the larger question, we would have referred the matter to a Bench of 5 judges as it involved a substantial question of law as to the interpretation of the Constitution; and under article 145 thereof such a question can be heard only by a Bench of at least 5 judges.
In the circumstances a reference to the decisions of this Court cited at the Bar, which are alleged to have expressed conflicting views thereon, is not called for.
We shall therefore, confine ourselves to the narrow question.
Adverting to the scope of a writ of certiorari in common law, this Court, in Hari Vishnu Kamath vs Syed Ahmed Ishaque(1) laid down the following propositions: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior (1) ; ,1121, 1123.
817 Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exer cise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.
(3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction.
One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings e.g., when it is based on clear ignorance or disregard of the provisions of law.
This view was followed in Nagendra Nath Bora, vs The Commissioner Hills Division and Appeals, Assam (1), Satyanarayan vs Mallikarjun (2) Shri Ambica Mills Co. vs section B. Bhutt (3) and in Provincial Transport Services vs State Industrial Court, Nagpur (4 ).
But the more difficult question is, what is the precise meaning of the expression " 'manifest error Apparent on the face of the proceedings ?" Venkatarama Ayyar, J., attempted to define the said expression in Hari Vishnu Kamath 's Case (5) thus "Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J., in Botuk K. Vyas vs Surat Municipality (1), that no error could be said to be apparent on the face of the record if it was (1) ; (2) [1960] 1 S.C.R. 8140 (3) (4) [1963] 3 S.C.R. 650.
(5) ; ,1121, 1123 (6) A.I.R. 1953 Bom.
133. 818 not self evident, and if it required an examination or argument to establish it.
This test might afford a satisfactory basis for decision in the majority of cases.
But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one judge as self evident might not be so considered by another.
The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.
" It would be seen from the said remarks that the learned judge could not lay down an objective test, for the concept necessarily involves a subjective element.
Sinha,J., as he then was speaking for the Court in Nagendra Nath Bora 's Case (1), attempted to elucidate the point further and proceeded to observe at p. 1269 70 thus : " 'It is clear from an examination of the authorities of this Court as also of the courts in England, that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked is an error of law apparent on the face of the record and every error either of law or fact, which can be corrected by a superior court, in exercise of its statutory powers as a court of appeal or revision.
" This decision assumes that the scope of a. writ in the nature of certiorari or an order or direction to set aside the order of an inferior tribunal under article 226 of the Constitution is the same as that of a common law writ of certiorari in England we do not express any opinion on this in this case.
This decision practically accepts the opinion expressed (1) ; 819 by this Court in Hari Vishnu Kamath 's Case (1).
The only addition it introduces is the anti thesis it made between " 'error of law and error of fact" and "error of law apparent on the face of the record.
" But the question still remains in each case whether an error is one of law or of fact and that falls to be decided on the facts of each case.
Das Gupta, J., makes yet another attempt to define the expression when he says in Satyanarayan vs Mallikarjun (2), at p. 141 thus : "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of record.
As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has.
to be established, by lengthy and complicated arguments.
" The learned judge here lays down the complex nature of the arguments as a test of apparent error of law.
This test also may break, for what is complex to one judicial mind may be clear and obvious to another : it depends upon the equipment of a particular judge.
In the ultimate analysis the said concept is comprised of many imponderables : it is not capable of precise definition, as no objective criterion can be laid down, the apparent nature of the error, to a large extent, being dependent upon the subjective element.
So too, in some cases the boundary between error of law and error of fact is rather thin.
A tribunal may hold that 500 multiplied by 10,000 is 5 lakhs (instead of 50 lakhs); another tribunal may hold that a particular claim is barred by limitation by calculating the period of time from 1956 instead of 1961 ; and a third tribunal may make an obvious error deciding a mixed question of fact and law.
The question whether the said errors are errors of (1) ; ,1121, 1123.
(2) [1960] 1 S.C.R. 890.
820 law or fact cannot be posited on a priori reasoning., but falls to be decided in each case.
We do not,, therefore, propose to define with any precision the concept of "error of law apparent on the face of the record"; but it should be left, as it has always been done, to be decided in each case.
The only question therefore, is whether the State Transport Appellate Tribunal committed an error of law apparent on the face of the record.
A look at the provisions of section 47 and section 43 of the , as amended by the Madras Legislature, will facilitate the appreciation of the problem.
Under section 47, a Regional Transport Authority in considering an application for a stage carriage permit is enjoined to have regard, inter alia, to the interests of the public generally.
Section 43 A, introduced by the Madras Legislature by the Motor Vehicles (Madras Amendment) Act, 1948, says that the State Government may issue such orders and directions of a general character as it may consider necessary in respect of any matter relevant to road transport to the State Transport Authority or to a Regional Transport Authority and such Transport Authority shall give effect to all such orders and directions.
It has been held by this Court in M/s. Raman & Raman Ltd. vs The State of Madras (1), that section 43A conferred a power on the State Government to issue administrative directions, and that any direction issued thereunder was not a law regulating rights of parties.
It was also pointed out that the order made and the directions issued under section 43 A of the Act cannot obviously add to, or subtract from, the consideration prescribed under section 47 thereof on the basis of which the tribunal is empowered to issue or refuse to issue a permit, as the case may be.
It is, therefore clear that any direction given under section 43A for the purpose of considering conflicting claims for a permit by applicants can only be to enable the Regional Transport (1) [1959] Supp. 2 S.C.R. 227. 821 Authority to discharge its duties, under section 47 of the Act more satisfactorily, efficiently and impartially.
To put it differently,the directions so given cannot enlarge or restrict the jurisdiction of the said tribunal or authority but only afford a reasonable guide for exercising the said jurisdiction.
Concretely stated, an applicant in advancing his claim for a permit may place before the Authority an important circumstance in his favour, namely, that he has a branch office on the route in respect whereof he seeks for a permit.
He may contend that he has an office on the route, and that the interests of the public will be better served, as the necessary amenities or help to meet any even tuality in the course of a trip will be within his easy reach.
The Government also under section 43A may issue instructions to the Regional Transport Authority that the existence of an office of a particular applicant on the route would be in the interests of the public and, therefore, the said applicant should be given a preferential treatment if other things are equal.
The issue of such an instruction only emphasizes a relevant fact which an authority has to take into consideration even if such an instruction was not given.
But if the Authority under a manifest error of law ignores the said relevant consideration, it not only disobeys the administrative directions given by the Government, but also transgresses the provisions of section 47 of the Act.
The disobedience of the instructions which are administrative in nature may not afford a cause of action to an aggrieved party, but the transgression of the statutory law certainly does.
What is the position in the present.
case ? The Government issued G. O. No. 1298 (Home), dated April 28, 1956, introducing a marking system for assessing the merits of applicants for stage carriage permits.
Column 3 reads thus "Location of residence or place of business of the applicant on the route or at the terminal : 822 This qualification not only is in favour of local enterprise but also secures that the owner will pay prompt and frequent attention to the service entrusted to him.
One mark may be assigned to this qualification.
" Under this instruction the location of the residence or the place of business is considered to be in the interests of the public, for whose benefit the service is entrusted to a permit holder.
The first respondent contended before the Regional Transport Authority that he had branch offices at Tanjore and mannargudi and therefore that fact should be taken into consideration and a mark should be given to him thereunder.
The Regional Transport Authority gave one mark to the appellant and also one mark to the first respondent under that column.
But the Appellate Tribunal refused to give any mark under that column to the first respondent for the following reasons : "On behalf of the other appellants and the Respondent it is contended that appellant No. 1 (1st respondent before the Supreme Court) is a Private Ltd. Company having its registered office at Madras, that their offices at Kumba konam is only a branch office, that the offices, if any at Tanjore or at Mannargudi cannot be treated as branch offices, and that, as such they are not entitled to any mark in column 3 of the mark list.
This contention is a valid one." In regard to the Tanjore office the said appellate Tribunal has given an additional reason by holding on the facts that it was not an office at all.
We can, therefore, ignore the Tanjore office for the purpose of this appeal.
So far as the mannargudi office is concerned, the decision of the Appellate Tribunal was based upon an obvious error.
It took the view that if a company bad a branch office at 823 one particular place, it could not have in law any other branch office though it had one in fact.
Whatever conflict there may be, on which we do not express any opinion, in a tax law or the company law, in the context of the marking system and the evaluation of an amenity in the interest of the public, it is obviously an untenable proposition to hold that even if a company has a well equipped office on a route in respect of which a permit is applied for, it shall be ignored if the company has some other branch somewhere unconnected with that route.
That was what the Appellate Tribunal held and in our view it is an error apparent on the face of the record.
On that erroneous view, the Appellate Tribunal did Dot decide the relevant question raised, namely, whether the respondent has any such office at mannargudi.
Both Ramachandra Iyer, J., at the first insta nce, and Anantanarayanan and Venkatadri, jj., in 'appeal, rightly pointed out this error.
As this is an error apparent on the face of the record, they quashed the order of the Appellate Tribunal and left the question open for decision by it.
In our view, the conclusion arrived at by the High Court is correct.
It remains only to notice the decisions on which strong reliance is placed by learned counsel for the appellant in support of his contention.
In M/s. Raman and Raman Ltd. vs The State of Madras (1), the relevant facts were : the appellant and the 4th respondent therein, along with others, were applicants for a stage carriage permit.
The Regional Transport Authority granted the permit to the appellant on the basis of instructions issued by the State Government under section 43A of the ; on appeal, the Central Road Traffic Board set aside that order on the footing of fresh instructions issued by the Government; and a division Bench of the Madras High Court dismissed the writ petition filed by the appellant.
It was, (1) [1959] Supp. 2 S.C.R. 227.
824 inter alia, contended before this Court that the ins tructions given under section 43A being law regulating rights of parties, the appellate authority could not ignore that law and set aside the order of the Regional Transport Authority on.
the basis of subsequent instructions.
The contention was rejected on the ground that instructions under section 43A were not law, but were only administrative directions and that the fact that the appellate tribunal ignored them would not affect its jurisdiction if it had come to a decision having regard to the considerations laid down in section 47 of the Act.
The question before the tribunal was whether a small unit or a large one would be viable or would be in the interest of the public.
There was scope, for taking different views on the question, and the appellate tribunal, contrary to the earlier directions, came to the conclusion that smaller units would be more in the interest of the public than larger ones.
This judgment, therefore, is an authority only for the position that a tribunal in issuing or refusing to issue a permit to an applicant would be acting within its jurisdiction notwithstanding the fact that it ignored the administrative directions given by the Government under section 43A of the Act, provided it had come to a decision on the relevant considerations laid down in section 47 of the Act.
In Abdulla Rowther vs The State Transport Appellate Tribunal, Madras (1), the Regional Transport Authority issued a permit each to the appellant therein and to one Gopalan Nair.
On appeal, the Appellate Tribunal set aside that order and gave the permits to respondents, 3 and 4.
Both the Regional Transport Authority and the Appellate Tribunal considered the applications on the basis of G.O. No. 1298 issued by the Government of Madras on April, 28, 1956.
The Regional Transport Authority gave 4 marks each to the appellant and Gopalan Nair under Col. 1, which dealt with the building (1) A.I.R. 1959 S.C. 896.
825 strength to viable units, and refused, to give any marks to respondents 3 and 4 under the said column on the ground that they were fleet owners; with the result that the appellant and Gopalan Nair secured more marks than respondents 3 and 4 and were, therefore, given the permits.
But the Appellate Tribunal held that the appellant and Gopalan Nair were not entitled to claim the benefit of the marks under Col. 1, as they had secured less marks than respondents 3 and 4 under Cols.
3 to 5, for they held, on a fair obstruction of the said G.O., that it was only when the marks obtained by applicants under Cols.
2 to 5 were equal, recourse could be had to 'Col. 1.
On that basis, the Appellate Tribunal quashed the order of the Regional Transport Authority and gave the permits to respondents 3 and 4.
The appellant challenged the said order by an application under article 226 of the Constitution for a writ of certiorari in the High Court of Madras.
Rajagopalan, J., dismissed the application on two grounds, namely, (1) that the construction of the G.O. was not shown to be wrong and (2) that even if the G. O. was misconstrued, it would not justify the issue of a writ of certiorari, as the said G. O. embodied only administrative directions.
The Letters Patent Appeal filed against the said order was dismissed.
The appeal filed to this Court was also dismissed.
This Court followed the decision in M/s. Raman and Raman Ltd. vs The State of Madras (1), and held that the instructions given under section 43 A of the were only administrative directions and that, therefore, even if the rule as to the assignment of marks was infringed, it was not an error of law at all.
This decision only follows the earlier decision and lays down that instructions given under section 43A of the are only administrative directions and that a wrong construction of the said instructions would not enable the party affected to apply for a writ of certiorari.
The instructions laid down a method of evaluation (1)[1959] Supp. 2 S.C.R. 227.
826 of the respective claims vis a vis 'the considerations laid down in section 47 of the Act.
The Regional Transport Authority and the Appellate Tribunal have borne in mind the said considerations, in deciding upon the rival claims, though they may have wrongly interpreted one of the instructions.
It may be pointed out that in that case the interpretation put upon the instructions was a correct one, though this Court proceeded on the assumption also that they might have been wrongly interpreted.
But the decision cannot obviously be an authority for the position that on a wrong interpretation of the administrative directions or dehors the said directions, a tribunal can ignore the relevant considerations laid down in section 47 of the.
Act or on the basis of an error of law apparent on the record wrongly refuse to decide on any of such considerations.
To the same effect is the decision of this Court in Ayyaswami Gounder vs M/s. Soudambigai Motor Service (1).
There, the Regional Transport Authority followed the marking system as laid down by the Government of Madras and gave to the appellant (therein) 5 marks and to the respondent 6 marks.
Though the respondent got 6 marks, he was not given the permit, as in the view of the said Authority he was guilty of misconduct.
As between the other applicants, the appellant having secured the highest number of marks, he was given a permit.
But on appeal the Appellate Tribunal reallotted the marks and under the reallotment the appellant got the highest number of marks; and because of that fact and also for the reason that he was a small operator of two buses, who should be given an opportunity to build up a viable unit as quickly as possible, he was given the permit by the Appellate Tribunal upholding the order of the Regional Transport Authority.
One of the question raised there was whether the appellant was entitled to marks under Col. 2 for repair and maintenance, facilities at Dharapuram the (1) Civil Appeal No. 198 of 1962 (decided on 17 9 1962).
827 Appellate Tribunal found that he had such facilities.
The appellant filed a writ in the High Court and the learned single judge thought that some mistakes had been committed by the Appellate Tribunal in the allotment of marks and that it acted in contravention of the directions given by the Government under the said G. O., but dismiss the petition on the ground that, as the said instructions are Only executive directions, their contravention did not confer any right on the parties before the tribunal.
On Letters Patent Appeal a Division Bench of that Court set aside that order on the ground that the Appellate Tribunal had taken into consi deration the following two irrelevant considerations: (i) the appellant 's claim should suffer because of the punishment for his past misconduct, and (ii) the third respondent being a small operator, he would be entitled to better Consideration than the appellant who was a monopolist.
On appeal, this court followed the decision in M/s. Raman and Raman Ltd. vs The State of Madras (1) and Abdullah Rowther vs The State Transport Appellate Tribunal (2) and held that under the said G. O. the Government issued only administrative directions and that the failure of the transport authorities to follow them would not entitle the respondents to a writ.
As regards the two reasons given by the High Court, this Court came to the conclusion that they were not irrelevant considerations, but were considerations germane in the matter of issue of permits.
In the result this Court allowed the appeal.
This decision accepts two propositions, namely, (1) misconstruction or even disregard of the instructions, given by the Government does not confer a right upon an aggrieved party to file a writ, for the said instructions are only administrative directions, and (2) the decision implies that if the Tribunal decides on irrelevant considerations, the Court can issue a writ.
But in that case it came to the conclusion that no such irrelevant considerations weighed with the Tribunal.
(1) [1959] Supp. 2 S.C.R. 227 (2) A.I.R. 1959 S.C. 896. 828 The last of the cases relied upon is that in Sankara Ayyer vs Narayanaswami Naidu (1).
There too.
, the Regional Transport Authority and the State Transport Appellate Tribunal considered the applications for the grant of a permit for anew route on the basis of the administrative directions given by the State Government.
The regional Transport Authority gave the appellant 3 marks on the basis that he was a small operator, but the Appellate Tribunal came to the conclusion that he was not entitled to any marks as a small operator.
A single judge of the High Court set aside the order of the Appellate Tribunal on the ground that it misconstrued the directions contained in the Government Order relating to small operators.
But a division Bench of that Court in Letters Patent appeal held, relying upon the earlier decision of this Court, that the said directions were only administrative in nature and that they did not confer any legal rights and in that view allowed the appeal.
This Court again following the earlier decisions dismissed the appeal holding that by construing the administrative directions the Tribunal did not take irrelevant consi derations or refused to take relevant considerations in the matter of issue of permits.
It is always a controversial question whether the issue of a permit to a small operator or to a big operator would be in the interest of the public and a Tribunal is certainly entitled to take either view.
It will be seen from the aforesaid decisions that this Court only laid down that the instructions given under section 43A of the were only administrative directions and that the infringement of those instructions by the Tribunal did not confer any right on a party to apply to a High Court for a writ under article 226 of the Constitution.
In all those cases the Tribunal either ignored the instructions or misconstrued them, but nonetheless decided the question of issue of permits on considerations relevant (1) Civil Appeal No. 213 of 1960 (decided on 10 10 1960).
829 under section 47 of the Act.
They are not authorities on the question whether a writ of certiorari, would lie, where a Tribunal had on an obviously wrong view of law refused to decide or wrongly decided on a consideration relevant under section 47 of the Act, whether or not it was covered by the instructions given under section 43 A.
For if on the basis of such an error of law, it refuses to decide a relevant question, the fact that the Government also issued instructions to the Tribunal to apply some objective standards in deciding such a question does not make the said question anytheless a relevant consideration under section 47 of the Act.
That is the position in the present case.
As we have already indicated, on the basis of an error manifest on the record, namely, that a company cannot have a branch office on the route in question, if it has another branch elsewhere, it refused to take into consideration a relevant fact, namely, whether the respondent has an office on the said route.
The High Court, therefore, was right in quashing the order of the Appellate Tribunal and giving an opportunity to the Tribunal to decide that question on merits.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
On applications for permits made to it the Regional Transport Authority, applying the markinig system prescribed by the Government order issued under section 43A of the Motor Vehicles Act, granted the permit to the appellant.
On appeal by the first respondent, the State Transport Appellate Tribunal recast the marks but in doing so did not allot any mark to the first respondent under the head of "residence or place of business" and thereby treating the appellant and the first respondent as equal, gave the appellant the further advantage of four marks under the head "viable unit".
The first respondent challenged the order of the Appellate Tribunal before the High Court under article 226 on the ground that the Appellate Tribunal had failed to allot him any mark in respect of his admitted residential qualification and had thereby committed a breach of section 47 (1) (a) and (c) of the Motor Vehicles Act.
This contention was accepted by the learned single judge of the High Court who quashed the order of the Appellate Tribunal and directed it to proceed according to law.
On appeal the Division Bench confirmed the issue of the writ.
On appeal by special leave by the appellant it was contended in this Court that the High Court has no jurisdiction to issue a writ of certiorari, as the error, if any, was one of fact and that the directions issued by the Government under section 43A of the Motor Vehicles Act being only administrative in character, order made in breach thereof did not give rise to an error of law which could be the subject matter of a writ.
Held, that the question whether or not there was such an error apparent on the face of the record as to enable the High Court to interfere under article 226 of the Constitution was one to be determined in each case and no particular test can or need be laid down as a general rule.
810 Hari Vishnu Kamath vs Syed Ahmad Ishaque, [1955] 1 section C. R. 1104, Nagendra Nath Bora vs Commissioner of Hills Division and Appeals, Assam ; , Satya narayan vs Mallikarjun, [1960] 1 section C. R. 890, Shri Ambica Mills Co. vs section B. Bhatt, ; , Provincial Transport Service vs State Industrial Court [1963] 3 section C. R. 650, Batuk Vyas vs Surat Municipality, A. I. R. 1953 Bom.
133 and M/s. Raman & Raman Ltd. vs The State of Madras, [1959] Supp. 2 section C. R. 227, referred to.
Held, further, that though the directions issued under section 43A of the Act were administrative, they were intended to facilitate an objective, judgment of the considerations laid down in section 47 of the Motor Vehicles Act and if applying the directions to a given case result in the breach of section 47, namely, ignoring a relevant consideration, it must give rise to a manifest error of law and furnish a ground for interference under article 226 of the Constitution.
M/s. Raman & Baman Ltd. vs State of Madras [1959] Supp. 2 section C. R. 227, Abdulla Rowther vs State Transport Appellate Tribunal, Madras, A. 1.
R. , Ayyasswani Gounder vs M/s. Soudambigai Motor Service C. A. No. 198 of 1962 decided on 17 9 62 and Sankara Ayyar vs Marayanaswami Naidu, C. A. No. 213 of 1960 decided on 10 10 60, distinguished.