Madhu Limaye v. State of Maharashtra

This is an appeal by special leave from the order of the Bombay High Court rejecting the application in revision filed by the appellant under section 397(1) of the Code of Criminal Procedure, 1973 hereinafter to be referred to as the 1973 Code or the new Code, on the ground that it was not maintainable in view of the provision contained in subsection (2) of section 397. The High Court has not gone into its merits.

It is not necessary to state the facts of the case in any detail for the disposal of. this appeal. A bare skeleton of them will suffice. In a press conference held at New Delhi on the 27^th September, 1974 the appellant is said to have made certain statements and handed over a press hand-out" containing allegedly some defamatory statements concerning Shri A. R. Antulay, the then Law Minister of the Government of Maharashtra. The said statements were published in various newspapers. The State Government decided to prosecute the appellant for an offence under section 500 of the Indian Penal Code as it was of the view that the Law Minister was defamed in respect of his conduct in the discharge of his public functions. Sanction in accordance with section 199 (4) (a) of the 1973 Code was purported to have been accorded by the State Government. Thereupon the Public Prosecutor filed a complaint in the Court of the Sessions Judge, Greater Bombay. Cognizance of the offence alleged to have been committed by the appellant was taken by the Court of Sessions without the case being committed to it as permissible under sub-section (2) of section 199. Process was issued against the appellant upon the said complaint.

The Chief Secretary to the Government of Maharashtra was examined on the 17^th February, 1975 as a witness in the Sessions Court to prove the sanction order of the State Government. Thereafter on tile 24^th February, 1975 Shri Madhu Limaye, the appellant, filed an application to dismiss the complaint on the ground that the Court had no jurisdiction to entertain the complaint. The stand taken on behalf of the appellant was that allegations were made against Shri Antulay in relation to what he had done in his personal capacity and not in his capacity of discharging his functions as a Minister. Chiefly on that ground and on some others, the jurisdiction of the Court to proceed with the trial was challenged by the appellant.

The appellant raised three contentions in the Sessions Court and later in the High Court assailing the validity and the legality of the trial in question. They are :-

(1) That even assuming the allegations made

against Shri Antulay were defamatory, they

were not in respect of his conduct in the

discharge of his public functions and hence

the aggrieved person could file a complaint in

the Court of a competent Magistrate who after

taking cognizance could try the case or commit

it to the Court of Sessions if so warranted in

law. The Court of Sessions could not take

cognizance without the committal of the case

to it.

(2) The sanction given was bad in as much as

it was not given by the State Government but

was given by the Chief Secretary.

(3) The Chief Secretary had not applied his

mind to the entire conspectus of the facts and

had given the sanction in a mechanical manner.

The sanction was bad on that account too.

The Sessions Judge rejected all these contentions and framed a charge against the appellant under section 500 of the Penal Code. The appellant, thereupon, challenged- the order of the Sessions Judge in the revision filed by him in the High Court. As already 'stated, without entering into the merits of any of the contentions raised by the appellant, it upheld the preliminary objection as to the maintainability of the revision application. Hence this appeal.

The point which falls for determination in this appeal is squarely covered by a decision of this Court to which one of us (Untwalia was a party in Amar Nath and Others v. State of Haryana & Anr But on a careful consideration of the matter and on hearing learned counsel for the parties in this appeal we thought it advisable to enunciate and reiterate the view taken by two learned judges of this Court in Amar Nath's case but in a somewhat modified and modulated form. In Amar Nath's case, as in this, the order of the Trial Court issuing process against the accused was challenged and the High Court was asked to quash the criminal proceeding either in exercise of its inherent power under section 482 of the 1973 Code corresponding to section 561A of' the Code of Criminal Procedure, 1898-hereinafter called the 1898 Code or the old Code, or under section 397(1) of the new Code corresponding to section 435 of the old Code. Two points were decided in Amar Nath's case in the following terms :-

(1) "While we fully agree with-the view

taken by the learned Judge that where a

revision to the High Court against the order

of the Subordinate Judge is expressly barred

under sub-s. (2) of s. 397 of the 1973 Code

the inherent powers contained in s. 482 would

not be available to defeat the bar contained

in s. 397(2)."

(2 The impugned order of the Magistrate,

however, was not an interlocutory order.

For the reasons stated hereinafter we think that the statement of the law apropos point no. 1 is not quite accurate and needs some modulation. But we are-going to reaffirm the decision of the Court on the second point. Under section 435 of the 1898 Code the High Court had the power to "call for and examine the record of any proceeding before any inferior Criminal Court 'situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed. and as to the regularity of any proceedings of such inferior Court", and then to pass the necessary orders in accordance with the law engrafted in any of the sections following section 435. Apart from the revisional power, the High Court possessed and possesses the inherent powers to be exercised ex debito justitiae to do the real and the substantial 'justice for the administration of which alone Courts exist. In express language this power was recognized and saved in section 561A of the old Code. Under section 397(1) of the 1973 Code, revisional power has been conferred on the High Court in terms which are identical to those found in section 435 of the 1898 Code. Similar is the position apropos the inherent powers of the High Court. We may read the language (1) Criminal Appeal No. 124 of 1977 decided on the 29^th July, 1977.

of section 482 (corresponding to section 561A of the old Code) of the, 1973 Code. It says

"Nothing in this Code shall be deemed to limit

or affect the inherent powers of the High

Court to make such orders as may be necessary

to give effect to any order under this Code,

or to prevent abuse of the process of any

Court or otherwise to secure the ends of

justice."

At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions :-

(1) That the power is not to be resorted to

if there is a specific provision in the Code

for the redress of the grievance of the

aggrieved party ;

(2) That it should be exercised very

sparingly to prevent abuse of process of any

Court or otherwise to secure the ends of

justice;

(3) That it should not be exercised as

against the express bar of law engrafted in

any other provision of the Code.

In most of the cases decided during several decades the inherent power of the High Court has been invoked for the quashing of a criminal proceeding on one ground or the other. Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court. In the background aforesaid we proceed to examine as to what is the correct position of law after the introduc-tion of a provision like sub section (2) of section 397 in, the 1973 Code.

As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally, More often than not, the revisional power of the High Court was resorted to in relation to inter-locutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2), in section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of section 482, however, it would follow that nothing in the Code, which would include subsection (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is-the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code. the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of, a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction. then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order. does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure, the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with section 482 of the 1973 Code. even assuming. although not accepting, that invoking the revisional power of the High Court is impermissible. In R. P. Kapur v. The State of Punjab (1) Gajendragadkar J.. as he then was, delivering the judgment of this Court pointed out, if we may say so with respect, very succinctly the scope of the inherent power of the High Court for the purpose of quashing a criminal proceeding. Says the learned Judge at pages 392-93 :–

"Ordinarily criminal proceedings instituted

against an accused person must be tried under

the provisions of the Code, and the High Court

would be reluctant to interfere with the said

proceedings at an interlocutory stage. It is

not possi-

(1) [1960] 3 SCR. 388.

ble, desirable or expedient to lay down any

inflexible rule which would govern the

exercise of this inherent jurisdiction.

However, we may indicate some categories of

cases where the inherent jurisdiction can and

should be exercised for quashing the

proceedings. There may be cases where it may

be possible for the High Court to take the

view that the institution or continuance of

criminal proceedings against an accused person

may amount to the abuse of the process of the

court or that the quashing of the impugned

proceedings would secure the ends of justice.

If the criminal proceeding in question is in

respect of an offence alleged to have been

committed by an accused person and it

manifestly appears that there is a legal bar

against the institution or continuance of the

said proceeding the High Court would be

justified in quashing the proceeding on that

ground. Absence of the requisite sanction

may, for instance, furnish cases under this

category. Cases may also arise where the

allegations in the First Information Report or

the complaint, even if they are taken at their

face value and accepted in their entirety, do

not constitute the offence alleged; in such

cases no question of appreciating evidence

arises; it is a matter merely of looking at

the complaint or the First Information Report

to decide whether the offence alleged

is disclosed or not. In such cases it would

be legitimate for the High Court to hold that

it would be manifestly unjust to allow the

process of the criminal court to be issued

against the accused person. A third category

of cases in which the inherent jurisdiction of

the High Court can be successfully invoked may

also arise. In cases falling under this

category the allegations made against the

accused person do constitute an offence

alleged but there is either no legal evidence

adduced in support of the case or evidence

adduced clearly or manifestly fails to. prove

the charge'. In dealing with this class of

cases it is important to bear in- mind the

distinction between a case where there is no

legal evidence or where there is evidence

which is manifestly and clearly inconsistent

with the accusation made and cases where there

is legal evidence which on its appreciation

may not support the accusation in question.

In exercising its jurisdiction under s. 561-A

the High Court would not embark upon an

enquiry as to whether the evidence in question

is reliable or not. That is the function of

the trial magistrate, and ordinarily it would

not be open to any party to invoke the High

Court's inherent Jurisdiction and contend that

on a reasonable appreciation of the evidence

the accusation made against the accused would

not be sustained."

We think the law as stated above is not affected by section 397(2) of the new Code. It still holds good in accordance with '.section 482.

Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606

"……. a judgment or order may be final for

one purpose and interlocutory for another, or

final as to part and interlocutory as to part.

The meaning of two words must therefore be

considered separately in relation to the

particular purpose for which it is required."

In para 1607 it is said :

"In general a judgment or order which

determines the principal matter in question is

termed "final"."

In para 1608 at pages 744 and 745 we find the

words

"An order which does not deal with the final

rights of the parties, but either (1) is made

before judgment, and gives no final decision

on the matters in dispute, but is merely on a

matter of procedure, or (2) is made after

judgment, and merely directs how the

declarations of right already given in the-

final judgment are to be worked out, is termed

"interlocutory". An interlocutory order,

though not conclusive of the main dispute, may

be conclusive as to the subordinate matter

with which it deals."

In S. Kuppuswami Rao v. The King(1) Kania C. J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186. Lord Esher M. R. said in Salaman v. Warner(2) "If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory." To the same effect are the observations quoted from the judgments of Fry L. J. and Lopes L. J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court (at that time, there was no bar like section 397 (2) was not a "final order" within the meaning of section 205 (1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied in interpreting the words 'interlocutory order" occurring in section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by section 397(1). On such a 'strict interpretation,.

(1)[1947] Federal Court Reports, 180.

(2) [1891] 1 Q.B. 734.

only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the, 1898 Code. In what cases then the High Court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior Criminal court ? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies ? Such cases will be very few and far between. It has been pointed out repeatedly, vide, for example, The River Wear Commissioners v. William Adamson(1) and R. M. D. Chamarbaugwalla v. The Union of India ( 2) that although the word occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but, yet it may not be an interlocutory order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we, think that the bar in sub-section (2) of section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of subsection (2) of section 397. In our opinion it must be taken to be an order of the type falling in the middle course.

In passing, for the sake of explaining ourselves, we may refer to what has been said by Kania C. J. in Kuppuswami's case at page 187 by quoting a few words from Sir George Lowndes in the case of Abdul Rahman V. D. K. Cassim and Sons(3). The learned law Lord said with reference to the order under consideration in that case : "The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important, and even a vital, issue in the case, but it left the suit alive, and provided for its trial in the ordinary way. Many a time a question (1) [1876-77] 2 A.C. 743.

(3) [1933] 60 Indian Appeals, 76.

(2) [1957] S.C.R. 930.

arose in India as to what is the exact meaning of the phrase "case decided" occurring in section 1 1 5 of the Code of Civil Procedure. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many others had however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not approve of either of the two extreme lines. In Baldevdas v. Filmistan Distributors (India) Pvt. Ltd.(1) it has been pointed out :

"A case may be said to be decided, if the

Court adjudicates for the purposes of the suit

some right or obligation of the parties in

controversy :"

We may give a clear example of an order in a civil case which may not be a final order within the meaning of Article 133 (1) of the Constitution, yet it will not be purely or simply of an interlocutory character. Suppose for example, a defendant raises the plea of jurisdiction of a particular Court to try the suit or the bar of limitation and succeeds, then the action is determined finally in that Court. But if the point is decided against him the suit proceeds. Of course, in a given case the point raised may be such that it is interwoven and interconnected with the other issues in the case, and that it may not be possible to decide it under Order 14 Rule 2 of the Code of Civil Procedure as I preliminary point of law. But, if it is a pure point of law and is decided one way or the other, then the order deciding such a point may not be interlocutory, albeit-may not be final either. Surely, it will be a case decided, as pointed out by this Court in some decisions, within the meaning of section 115 of the Code of Civil Procedure. We think it would be just and proper to apply the same kind to test for finding out the real meaning of the expression 'interlocutory order' occurring in section 397(2).

In Amar Nath's case, reference has been made to the decision of this Court in Mohan Lal Magan Lal Thacker v. State of Gujarat(2) After an enquiry under section 476 of the 1898 Code an order was made directing the filing of a complaint against the appellant. It was affirmed by the High Court. The matter came to this Court on grant of a certificate under Article 134(1) (c). A question arose whether the order was a "final order" within the meaning of the said constitutional provision. Shelat J., delivering the judgment on behalf of himself and two other learned Judges, said that it was a final order. The dissenting judgment was given by Bachawat J., on behalf of himself find one other learned Judge. In the majority decision four tests were culled out from some English decisions. 'they are found enumerated at page 688. One of the tests is "If the order in question is reversed would the action have to go on ?" Applying that test to the facts of the instant case it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceeding as initiated and instituted against him cannot go on. If, however, he loses on the merits of the preliminary point the proceeding will go on. Applying the test of Kuppuswami case such an order will (1) A. T. R. 1970 S.C. 406.

(2) [1968] 2 S.C.R. 685.

not be a final order. But applying the fourth test noted at in Mohan Lal's case it would be a final order. The real point of distinction, however, is to be found at page 693 in the judgment of Shelat, J.The passage runs thus :

"As observed in Ramesh v. Patni-[1966] 3

S.C.R. 198 the finality of that order was not

to be judged by correlating that order with

the controversy in the complaint,viz. whether

the appellant had committed the offence

charged against him therein. The fact that

that controversy still remained alive is

irrelevant."

The majority view is based upon the distinction pointed out in the above passage and concluding that it is a final order within the meaning of Article 134(1) (c). While Bachawat J., said at page 695 : "It is merely a preliminary step in the prosecution and therefore an interlocutory orders." Even though there may be a scope for expressing different opinions apropos the nature of the order which was under consideration in Mohan Lars case, in our judgment, undoubtedly, an order directing the filing of a complaint after enquiry made under a provision of the 1973 Code, similar to section 476 of the 1898 Code will not be an interlocutory order within the meaning of 'section 397(2). The order will be clearly revisable by the High Court. We must, however, hasten to add that the majority decision in Mohan Lal's case treats such an order as an order finally concluding the enquiry started to find out whether a complaint should be lodged or not, taking the prosecution launched on the filing of the complaint as a separate proceeding. From that point of view the matter under discussion may not be said to be squarely covered by the decision of this Court in Mohan Lal's case. Yet for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of section 397(2).

We may also refer to the decision of this Court in Parmeshwari Devi v. State and Anr.(1) that an order made in a criminal proceeding against a person who is not a party to the enquiry or trial and which adversely affected him is not an interlocutory order within the meaning of section 397 (2). Referring to a passage from the decision of this Court in Mohan Lals case- the passage which is to be found in Halsbury's Laws of England, Volume 22, it has been said by Shinghal J., delivering the judgment of the Court, at page 164 :

"It may thus be conclusive with reference to

the stage at which it is made, and it may also

be conclusive as to a person who is not a

party to the enquiry or trial, against whom it

is directed."

As already mentioned, the view expressed in Mohan Lal's case may be open to debate or difference. One such example is to be found in the (1) [1977] 2 S.C.R. 160.

decision of this Court in Prakash Chand Agarwal & Ors. v. M/s Hindustan Steel Ltd.(1) wherein it was held that an order of the High Court setting aside an ex-parte decree in the suit and restoring the suit to the file of the Trial Court is not a final order within the meaning of Article

133. It is to be noticed that if the High Court would have refused to set aside the ex-parte decree, the proceeding for setting it aside would have finally ended and on some of the principles culled out by the majority in Mohan Lars case, such an order would have been a final order. We are, however, not under any necessity to enter into this controversial arena. In our opinion whether the type of the order aforesaid would be a final order or not, surely it will not be an interlocutory order within the meaning of sub-section (2) of section 397 of the 1973 Code. Before we conclude we may point out an obvious, almost insurmountable, difficulty in the way of applying literally the test laid down in Kuppuswami Rao's case and in holding that an order of the kind under consideration being not a final order must necessarily be an interlocutory one. If a complaint is dismissed under section 203 or under section 204(4), or the Court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make section 398 of the new Code otiose. Does it stand to reason, then, that an accused will have no remedy to move the High Court in revision or invoke its inherent power for the quashing of the criminal proceeding initiated upon a complaint or otherwise and which is fit to be quashed on the face of it ? The legislature left the power to order further inquiry intact in 'section

398. Is it not, then, in consonance with the sense of justice to leave intact the remedy of the accused to move the High Court for setting aside the order adversely made against him in similar circumstances and to quash the proceeding ? The answer must be given in favour of the just and reasonable view expressed by us above.

For the reasons stated above, we allow this appeal, set aside the judgment and order of the High Court and remit the case back to it to dispose of the appellant's petition on merits, in the manner it may think fit and proper to do in accordance with the law and in the light of this judgment.

P.H.P. Appeal allowed.

(1) [1971] 2 S.C.R. 504.

Separate opinion

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1214 and 1292 of 1977.

Appeals by Special Leave from the Judgment and Order dated 31-3-1976 of the Allahabad High Court in Second Appeal Nos. 64 and 63 of 1976 respectively and

Civil Appeal No. 1293 of 1977 Appeal by Special Leave from the Judgment and Order dated 26-4-76 of the Allahabad High Court in Civil Misc. Writ No. 652/76 and

Civil Appeal No. 1342 of 1977 Appeal by Special Leave from the Judgment and Order dated 29-4-77 of the Allahabad High Court in Civil Misc. Writ No. 11466/ 75 and Civil Appeal Nos. 1487, 1341 and 1412 of 1977 Appeals by Special Leave from the Judgment and Order dated 6-10-76 of the Allahabad High Court in S.A. Nos. 160, 182 & 183/ 76.

A. K. Sen (in CA 1214/77) M/s. J. P. Goyal & Shreepal Singh for the Appellants in CA Nos. 1214, 1292, 1293 & 1342/77.

S. N. Kacker, Sol. Genl., (in CA 1214/77) O. P. Rana & M. V. Goswami, Advs. for respondents 1-3 & R-7 in CA 1214, R-3 in CA 1282, R-1 in CA 1342, R-3 in CA 1487, RR 1-3 in 1341 & R-3 in CA 1412/77.

B. Sen, (Oper. R. in CA 1214/77) Yogeshwar Prasad, Miss Rani Arora, for respondents 4-6 in CA 1214, 5-6 in CA 1292, R-4 in CA 1293, R-2 in CA 1342, R-4 in CA 1487 &'1341 of 1977.

Miss Rani Arora, for R-4 in CA 1412/77.

S. Markandeya, Adv. and Miss Chitra Bhadri, for the Appellant in CA 1487, 1341 & 1412/77.

M/s. R. K. Garg, S. C. Agarwala & V. J. Francis, Advs. for Caveator in CA 1293/77.

The, Judgment of the Court was delivered by UNTWALIA, J.-In this batch of seven appeals by special leave the points involved are identical. It is a glaring example of unnecessary litigation between the various stage carriage operators, which could have been avoided if the State Government of Uttar Pradesh would not have come out with varying laws and oscillating policies. The facts of all the appeals are similar and common except in regard to the parties, routes in question, and some other consequential details.

We proceed to- state the facts from Civil Appeal No. 1214 of 1977 only. Under section 47(3) of the Motor Vehicles Act, 1939-hereinafter to be referred to as the Central Act the Regional Transport Authority, Meerut had limited the number of stage carriage permits to be thirty only for the, route Meerut-Rohta-Sinali-Baraut. In or about the year 1971 an advertisement was made calling for the applications to fill up eight vacancies, as twenty-two permits out of the limit of thirty having been already granted were operative and in force. In October, 1971 the Regional Transport Authority granted eight permits to the respondents in one appeal or the other. Fifty applicants who were not granted permits by the Regional Transport Authority filed appeals before the State Transport Appellate Tribunal (for brevity, hereinafter, the Appellate Tribunal) under section 64 of the Central Act. While the said appeals were pending, The U.P. Motor Vehicles Amendment ordinance No. 9 of 1972 was promulgated on March 16, 1972. It was. replaced by The Motor Vehicles (Uttar Pradesh Amendment) Act, 1972-U.P. Act No. 25 of 1972-hereinafter called the U.P. Act of 1972. By the Ordinance followed by the Act aforesaid, section 43A was inserted in the Central Act after ,section 43 authorising the State Government to "issue such directions of a general character as it may consider necessary or expedient in the public interest in respect of any matter relating to road transport" to the various Transport Authorities. The object of the Act was to do away with the limit on the number of permits to be granted for stage carriages. Sub-section(2) of section 43-A, in particular, empowered the State Government in public interest to issue a direction by a notification in the Gazzette to grant permits to all eligible applicants except in respect of routes or areas for which schemes had been published under Section 68C of the Central Act. Some amendments were brought about in section 47 of the Central Act. But for the purposes of these appeals the one to be pin-pointed is the deletion of sub-section (3) from section 47, the consequence of which was to delimit the number of permits to be granted for a particular route. On March 30, 1972, a notification was issued by the State Government under Section 43-A(2) of the U.P. Act of 1972 directing the Transport Authorities to grant stage carriage permits to all the eligible applicants. Some of the stage carriage permit holders on various routes in U.P., including some of the respondents, challenged the validity of the U.P. Ordinance followed by the U.P. Act of 1972 and the notification dated March 30, 1972 by filing writ petitions in the Allahabad High Court. The High Court dismissed their writ petitions. They came up in appeal to this Court. The appeals were dismissed and the constitutional validity of the impugned law and the notification was upheld by a Bench of four learned Judges including one of us (Goswami J.). The decision of this Court is reported in Hans Raj Kehar & Ors. v. The State of U.P. and Ors. (1) The decision of this Court was handed down on December 4, 1974. The appeals remained pending before the Appellate Tribunal because of (1) [1975]2S.C.R. 916=A.T.R. 1975 S.C. 389.

12-951 SCI/77 this first round of litigation. Eventually the appeals were allowed on February 19, 1975 by the Appellate Tribunal and each one of the fifty applicants was granted one permit over and above the eight already granted by the Regional Transport Authority. Pursuant to, the order of grant made by the Appellate Tribunal, permits, were to be issued by the Regional Transport Authority if the grantee produced a fit vehicle, meaning there by roadworthy vehicle registered in his name by the 31^st March, 1975 and if by the said date he filed an affidavit sworn by him before the Regional Transport Authority to the effect that he had not been convicted of any Criminal offence under the Indian Penal Code during the preceding five years. The Appellate Tribunal, in its order, had further made it clear that the time fixed by it for the implementation of the order of grant was under no circumstances to be extended and if any of the applicants failed to comply with it, sanction of the permit in favour of the defaulting applicant was to, stand automatically revoked. The appellants, however, complied with the order and fulfilled the conditions of the, grant within time. But before permits could be actually issued, another round of litigation started at the instance of Rama Kant Ahluwalia and others who had been granted eight permits by the Regional Transport Authority as per its Resolution pissed on October 29, 1971. 'They challenged the order of the Appellate Tribunal by filing a writ petition in the High Court which was summarily dismissed on February 27, 1975. Three more writ petitions filed by some other operators challenging the very same order of the Appellate Tribunal were also dismissed after hearing on September 10, 1975. It may be stated here at this stage that permits were not actually issued even though the High Court had vacated the stay orders sometime in June or July, 1975.

After dismissal of the writ petitions by the High Court, came another notification issued by the State Government on September 24, 1975 under section 43-A of the U.P. Act of 1972 proposing to change their policy of granting permits to all eligible applicants. In the main, we shall be concerned in these appeals with the true meaning and effect of this notification the relevant portions of which will be quoted hereinafter. The notification of September 24, 1975 was considered by this RegionalTransport Authority as putting a bar to the issuance of the permits. The appellants, therefore, filed Civil Miscellaneous Writ Petition No. 12238 of 1975 in the High Court challenging the notification as also the U.P. Ordinance 35 of 1975 which had been promul-gated in the meantime on November 12, 1975. They prayed for an order or a writ of mandamus directing the Regional Trans port Authority to issue the permits pursuant to the order dated 19.2.1975 of the, Appellate Tribunal. The writ petition was dismissed by a learned single Judge of the High Court on February 12, 1976. The appellants went up in appeal under the letters patent. The, appeals were dis-missed by a Division Bench on March 31, 1976. Hence these appeals.

U.P. Ordinance 35 of 1975 followed by Ordinance 9 of 1976 promulgated on February 16, 1976 was replaced by U. P. Amendment Act 15 of 1976 which came into force on May 1, 1976. Although the Division Bench of the High Court has not rested its judgment, and in our opinion rightly, upon the Ordinance and U.P. Act of 1976, the learned single Judge had done so. We shall briefly refer to the change of law brought about by the said Ordinance and the Act because the learned Solicitor General appearing for the State of Uttar Pradesh endeavoured to make some point out of it. So did the other counsel appearing for the operator respondents.

The main question, however, which falls for our determination in these appeals is as to whether the Regional Transport Authority failed to do its legal duty in refusing to issue the permits pursuant to the order of the Appellate Tribunal in view of the notification of the State Government issued on September 24, 1975 under section 43-A of the U.P. Act of 1972 and whether the High Court was right in not granting the writ asked for by the appellants. The, Appellate Tribunal in its order dated the 19^th February, 1975 following the notification of the State Government issued on March 30, 1972 had ordered the grant of permits to all the applicants. The relevant words of the order are as follows :-

"It would, therefore, appear to be reasonable

that these appellants may also be granted one

permit each on this route, if they can produce

a fit vehicle within the given time and they

can satisfy the RTA as to their antecedents,

by means of an affidavit."

All the fifty appeals were allowed. The order of the Regional Transport Authority was set aside and the operative portion of the order was made in terms as mentioned below :-

"Without disturbing the grant of permit in

favour of the respondents, these 50 appellants

will also be granted one regular stage

carriage permit each. on this route, provided

they produce a fit vehicle duly registered in

their own name by 31^st March, 1975, and during

this period they also rile their own personal

affidavits before the RTA to this effect that

they have not been convicted of any criminal

offence under I.P.C. during the last 5 years.

This time for Placing the vehicle and for

filing the affidavits, will not be extended on

any grounds, and if the compliance, as above

is not made in the given time, the sanction of

the permit in favour of the defaulting

appellants will automatically stand revoked." In Kundur Rudrappa v. The Mysore Revenue Appellate Tribunal & Ors(1). It was held by a Division Bench of this Court, to which both of us were parties, that appeal under section 64 of the Central Act lies only against the grant of permit and not against the order issuing a permit.made in pursuance of the order granting the permit. "Issuance of the permit is only a ministerial act necessarily following the grant of the permit" was the distinction pointed out at page 190. Then came the change of policy notification involving the parties in further litigation. The Preamble of this notification dated September 24, 1975 states that the State Government is of opinion that the policy of granting such permits to all eligible applicants requires (1) [1976] 1 S.C.R. 188.

review and since such review was likely to take sometime in the meantime it was necessary to stay "the disposal of all pending applications for permits or entertainment of fresh applications." The notification dated the 30^th March, 1972 was rescinded with immediate effect by clause (1) and thereafter clause (2) provided :

"The consideration of applications for stage

carriage permits pending with any Transport

Authority shall stand postponed until further

directions are issued in this behalf by the

State Government."

The High Court thought that since permits has not been issued, they could not be issued because, of the notifica-tion dated September 24, 1975. Although not in form, in substance, the High Court thought that the effect of the order of the Appellate Tribunal was to remand the cases to the Regional Transport Authority for granting permits to the appellants on being satisfied that the vehicles put by them were roadworthy and that their antecedents were not undesirable. In our judgment the High Court has fallen into an error in this regard. AR the parties were agreed before us that clause (2) of the notification had not the effect of recalling, revoking or cancelling the permits which had been granted and issued pursuant to the notification dated 30.3.1972. It was, also, beyond any debate or doubt that if the applications for the grant of stage carriage permits were pending with any Transport Authority when the notification was issued it stood postponed until further directions were issued in this behalf by the State Government. But the scope for litigation and argument in these cases cropped up because they did not clearly and precisely fall in one line or the other. If on the special facts of these cases consideration of the applications could be taken to be pending with any Transport Authority, then they bad to remain pending until further directions were issued. But if, on the other hand, on a correct appreciation of the legal position the applications had been finally disposed of by the order of the Appellate Tribunal and they were not pending for any consideration then they did not stand postponed and permits had to be issued pursuant to the order of the Appellate Tribunal. The Regional Transport Authority had no discretion or power in the matter to dispose of the applications one way or the other.

To our mind the problem does not present much difficulty. The applications filed by the appellants for grant of permits to them were rejected by the Regional Transport Authority in October, 1971. They were finally disposed of and permits were granted to them by the order of the Appellate Tribunal made on 19-2-1975. The consideration of the applications for grant of permits was no longer pending after the said order. What remained pending was a mere ministerial act to be performed by the Regional Transport Authority or by any delegate of that authority in accordance with Rule 44A of the U.P. Motor Vehicles Rules, 1940. According to the terms of the order of the Appellate Tribunal, nothing substantial or unsubstantial was to be decided by the Regional Transport Authority in connection with the grant of permits. The Regional Transport Authority could not say that it refused to grant the permit on one ground or the other. What was left to be done by it was only to find out whether a particular applicant had complied with the terms of the order and within the time granted by the Appellate Tribunal. If the terms were not complied with by the specified time the grant stood revoked not because the Regional Transport Authority could revoke it but because the Appellate Tribunal had specified it to be so. As already stated, all the applicants had complied with the terms of the Appellate order within time, actual issuance of the permits could not be done because of the stay orders made by the High Court in the earlier writ petitions. In sum and substance, therefore, the appellants became entitled to the issuance of the permits in their favour by 31^st March, 1975. It is difficult to understand as to in what sense their applications remained pending after 31^st March, 1975 and how did they remain pending even in the remotest sense of the term after the vacation of the stay order by the High Court and the dismissal of the writ petitions on the 10^th of September, 1975. When the notification dated September 24, 1975 was issued the position was absolutely clear that nothing in any sense was pending except that in the physical sense a paper containing the permit was not actually issued. Clause (2) of the said notification was not meant to cover nor did it cover a case of this kind. The Regional Transport Authority failed in its legal duty in not implementing the order of the Appellate Tribunal and issuing the permits as a result thereof. It was, therefore, just. and proper to grant the writ of mandamus as asked for by the appellants. We may now briefly deal with the additional points urged by the Solicitor General and M/s B. Sen and Yogeshwar Prasad. For the purpose of appreciating some of those points it would suffice to refer to the provisions of U.P. Act 15 of 1976 which were almost in identical terms to the two Ordinances which had preceded it. Section 21 of this Act amended section 43-A with retrospective effect. The effect of this was to bring into force section 47(3) of the Central Act and with retrospective effect. Sub-section (3) of section 21, however, provided : "Any direction under sub-section (1) may be issued with retrospective effect." Then sub-section (5) is in the following terms

"Where any direction is issued under sub-

section (1)

with retrospective effect then-

(a) any Transport Authority or the State

Transport Appellate Tribunal may review any

order passed earlier by it with a view to

making it conform to such directions, and may

for that purpose cancel any permit already

issued ;

(b) Any Transport Authority may apply to the

High Court for review of any order passed by

such Court earlier with a view to enabling

such Authority to comply with such direction." The argument on behalf of the State was that the order of the Appellate Tribunal became illegal as being against the law which was by a legal fiction, made to come into force by its retroactive action when the said order was passed. Reliance was placed upon the decision of this Court in The Commissioner of Income Tax, Bihar & Orissa v. Maharaja Pratap Singh Bahadur of Gidhaur(1). In our opinion the argument is, devoid of any substance. There was nothing in the Ordinance or the U.P. Act of 1976 to make the order of the Tribunal illegal. The order when made was legal and with jurisdiction. The retrospective change in law had not the effect of nullifying the order. It is to be further emphasised that if the order was complete and final, in the sense we have explained above, then two formalities had to be gone into in order to get rid of that order. Firstly, a special direction had to be issued under 'sub-section (1). No such direction issued was brought to our notice. Secondly, the procedure of review had to be followed as provided for in sub-section (5) of section 21 of the Amending Act of 1976. In Maharaja Pratap Singh's case (supra) the amendment of the law with retrospective effect had made the proceeding void ab initio. The law was retro-spectively amended during the pendency of the appeals before the Appellate Assistant Commissioner. Any order made in such a proceeding was, therefore, held to be void. The ratio of that case is wholly, inapplicable for nullifying the order of the Appellate Tribunal.

It was then submitted by learned counsel for the parties that because of the change in law in 1976, this Court should not for the sake of justice allow these appeals filed on grant of special leave under Article 136 of the Constitution and issue a writ of mandamus which will have the effect of directing the Regional Transport Authority to do something contrary to the present law. In our opinion, there is no substance in this point either. The High Court refused to issue the writ on a misapprehension of the correct position in law and by misreading the order of the Appellate Tribunal and the notification dated September 24, 1975. Retrospective change in law brought about in 1976 cannot justify allowing the wrong to continue. The injustice done to the appellants must be rectified. The result of the writ will not be tantamount to asking the Regional Transport Authority to do something which will run contrary to section 47(3) or the proviso to section 57(3) of the Central Act. It would be merely asking the Regional Transport Authority to obey the valid order of the Appellate Tribunal which has not been rendered void on any ground whatsoever. Mr. A. K. Sen, learned counsel for the appellants drew our attention to what S.A. de Smith has pointed out at page 59 of the third edition of his well-known treaty "Judicial Review of Administrative Action" :-

"It may describe any duty, the discharge of

which involves no element of discretion or

independent judgment. Since an order of

mandamus will issue to compel the performance

of a ministerial act, and since, moreover,

wrongful refusal to carry out a ministerial

duty may give rise to (1) [1961] 2 S.C.R. 760.

liability in tort, it is often of practical

importance to determine whether discretion is

present in the performance of a statutory

function. The cases on mandamus show,

however, that the presence of a minor

discretionary element is not enough to deter

the courts from characterising a function as

ministerial."

We think that the Regional Transport Authority, pursuant to the order of the Appellate Tribunal, had merely to perform a ministerial duty and the minor discretionary element given to it for finding out whether the terms of the Appellate Order had been complied with or not is not enough to deter the Courts from characterising the function as ministerial. On the facts and in the circumstances of this case by a writ of mandamus the said authority must be directed to perform its function.

For the reasons stated above,, we allow these appeals and direct the Regional Transport Authority or Authorities, as the case may be, to implement the orders of the Appellate Tribunal, issue the permits to the appellants in all the cases. We would, however, Eke to make it clear that permits were to be issued for a period of three years only. Temporary permits were issued to the appellants or some of them from time to time in pursuance of the interim order made either by the High Court or by this Court. The total period of such temporary permits in the case of any of the appellants must be deducted and adjusted as in the present situation of the law it would be just to do so, from the period of three years. In the circumstances, we make no order as to costs in any of the appeals.

M.R. Appeals allowed.