SYED YAKOOB versus K.S. RADHAKRISHNAN & OTHERS

October 9

SYED YAKOOB

K.S. RADHAKRISHNAN & OTHERS (P.B. GAJEN!JRAGADKAR, K. SUilllA RAO, K.N.

WANC!IOO, J.C. SHAH AND RAGHUilAR DAYAL .I.I.)

Certiorari-(Jrou1ul\· <~(issue-0'taKC carriage pcr111ir-1~rihu11al's finding that applicant had 110 irorkshop at tern1.i11ii-Abse11ce <~l reasons-if. error of la1v a1;pare11t on the face Qf the Record-1¥rit jurisdiction of High Court-Co11stitutio11 o.f India, Art. 226-Motor Vehicles Act, !939(4 of 1939), s. 47.

The Stale Transport Authority issued notilication under the Motor Vehicles Act, 1939, calling for applications for the grant of two stage carriage permits for the route Madras to Chidambaram. large number of applications were received. The authority granted the first permit to. one of the applicants and for the second it decided to call for fresh applications. The appellant, as also number of other applicants, appealed to the State Transport Appellate Tribunal. The Tribunal confirmed the grant of the first permit and as regards the second it allowed the appeal of the appellant and directed that it should be granted to him. Respon-dent No. I moved the High Court under Art.226 of the Constitution for the issue of writ of certiorari and the single Judge who heard the matter held that the Appellate Tribunal had overlooked relevant considerations, and allowed irrelevant considerations to prevail and so made the Rule absolute. Letters Patent appeal was preferred by the appellant. The Division Bench affirmed the order of the single Judge on the ground that the Appellate Tribunal had overlooked material considerations in favour of the respondent No. I and dismissed the appeal. The appellant came to this Court by special leave and it was contended on his behalf that in issuing the writ of certiorari the High Court exceeded its jurisdiction under Art. 226 of the Constitution.

Heid: (per Gajendragadkar, Wanchoo, Shah and Dayal J.J.). The contention raised on behalf of the appellant was well founded and must prevail.

\Vrit of certiorari is issued !'or correcting errors of jurisdic~ tion com1nitted by courts or tribunals, in cases \Vhcre they exceed their jurisdiction or fail to exercise it or exercise it illegally or im-properly, i.e. where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to principles of natural justice.

The jurisdiction to issue writ of cerriorari is supervisory one and in exercising it, the court is not entitled to act as court of appeal. That neces;arily means that the findings of fact arrived at by the inferior court or tribunal arc binding.

An error of law apparent on the face of the record can, however, be corrected by writ of cel"tioral"i, but not an error of fact however grave it may appear to be.

Syed Yakoob v. Radhakrish-nan

writ of certiol"ari can also be issued if it is shown that in v. recording finding of fact, admissible and material evidence has Ks Radhakrish-not been admitted, or inadmissible evidence affecting the impugned · · finding has been admitted . finding of fact based on no evidence nan would also be an error of law and as such amenable to such writ.

But finding of fact cannot be challenged in such proceeding on the ground that the relevant and material evidence was insuffi-cient to sustain the finding. Adequacy or sufficiency of evidence or an inference of fact to be drawn from the evidence or finding of fact are entirely within the jurisdiction of the Tribunal.

Hal"i Vishnu Kamath v. Syed Ahmed Ishaque, [1955] I S.C.R. 1104, Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam, [1958] S.C.R. 1240 and Kaushalya Devi v. Bachittal" Singh, A.LR. 1960 S.C. 1168, relied on.

It is neither possible nor desirable to define or describe all cases of errors which can be said to be errors of law apparent on the face of the record. Whether or not an error is such an error would depend on the facts and circumstances of each case and the nature and scope of the law misconstrued or contravened.

It was not open to party on the authority of the decision of this Court in K.M. Shamnugam v. S.R. V.S. (P) Ltd., to come to the High Court under Art. 226 to have all questions of fact recon-sidered so as to invoke the plea of'public interest' under s. 47 of the Motor Vehicles Act.

KM. Shannwgam v. S.R.V.S. (P) I.Id., l [1964] I S.C.R. 809, held inapplicable.

In the present case the controversy centered round the fact whether the respondent No. I had workshop at Chidambaram, one of the two terminii of the route and that the tribunal had failed to duly consider some evidence in that connection. That argument was an argument related to appreciation of evidence and as such was outside the purview of proceeding for writ of certioral"i. The High Court was therefore, in error in issuing the wnt of certiorari.

In issuing writ and in making it absolute, care should be taken to draw the order accurately. .

Unless allegations are made against them, the State Transport Authority or the Appellate. Trib.unal should not be represented through lawyers. The1r position ll1 ordinary cases is just the same as that of courts and other tribunals.

. Pel" Subba Rao J.-Where the tribunal ignores or fails to rnvestigate material circumstance germane to question of public

I SCl/64-5

interest under s. 47 of the Act put forward by claimant for permit and gives finding against him, that finding is vitiated by an error of law apparent on the face of the record and is liable to be quashed by writ of certiorari.

Syed Yakoob v.

The High Court found that the State Transport Authority and the Appellate Tribunal failed to consider the specific claim of the respondent 1 as to the existence of his workshop at Chidam-baram and was, therefore, right in setting aside their orders. The High Court could not be said to have exceeded its jurisdiction under Art. 226 of the Constitution.

K.S. Radhakrish-nan

This was clear case where the Tribunal made finding that was based on no evidence and was contrary to the specific claim made before it. Since the first respondent had secured the highest number of marks, this claim, if substantiated, would tilt the balance in his favour. This Court would not interfere in such matter in the exercise of its extraordinary jurisdiction under Art. 136 of the Constitution to set aside the High Court's order.

CIVIL APPELLATE JuRISDICTJON: Civil Appeal No. 593 of 1963.

Appeal by special leave from the judgment and order dated December J 9, 1962, of the Madras High Court in Writ Appeal No. 157 of 1961.

M.C. Setalvad, and R. Gopalakris/11w11, for the appellant.

G.S. Pathak, O.C. Afathur, J.B. Dadac!w11ji and

Ravinder Narain, for respondent No. 1.

A. Ra11ganadlza111 Chelly and A. V. Ra11gal/l, for

respondents Nos. 2 and 3.

The Judgment of P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, Ragubar Dayal JJ. was delivered by Gajendragadkar J. Subba Rao J. delivered dissenting opinion.

GAJENDRAGADKAR J.-The short question which this appeal raises for our decision relates to the limits of the jurisdiction of the High Court in issuing writ of certiorari while dealing with orders passed by the appropriate authorities granting or refusing to grant permits under the provisions of the Motor Vehicles Act, 1939 (hereinafter called 'the Act').

Gajendragadkar

5 S.C.R. SUPREME COURT REPORTS

The State Transport Authority, Madras, (here-1963 -inafter referred to as Authority) issued notification on the 4th July, 1956, under section 57(2) of the Syed Yakoob Act calling for applications for the grant of two stage v. carriage permits to run as an express service on the K.S. Radhakrish-route Madras to Chida111baram. 107 applications were nan received in response to the said notification; some of these were rejected as time-barred or otherwise Gajcndragadkar defective, and the others which were in order were J. exa111ined by the Authority.

On the 8th May, 1957, the Authority found that Provincial Transport (Private) Ltd., Madras, was the 111ost suitable a111ongst the applicants and granted one per111it to it. As regards the second permit, the Authority held that none of the other applicants was suitable, and so , it refused to grant the said permit to anyone of them: it decided to call for applications afresh under s. 57(2) of the Act.

Against this order, appeals were preferred by 18 claiman\s for permits before the State Transport Appellate Tribunal (hereinafter called "the Appellate Tribunal); amongst them was the appellant Syed Yakoob and respondent No. I K.S. Radhakrishnan. The Appellate Tribunal confirmed the grant of the first per111it to the Provincial Transport (Pvt.) Ltd: and so far as the second permit was concerned, it allowed the appeal preferred by the appellant and directed that the said second permit should be issued to him; respondent No. ! 's claim for the said permit was accordingly rejected. This order was passed on the 7th July, 1958.

The validity of this order was challenged ~y respondent No. I by his writ petition No., 4.4 of 19)9 filed in the High Court of Madras. Snmvasan J., who heard the writ petition held that the Appellate Tribunal had overlooked material considerations in deciding the question of. the .grant of the second permit and allowe~ co1~siderallons not ~ermane to the question to vitiate its order., That 1s why the rule issued on the wnt pct1t1on filed by respondent No. I was made absolute.

1963 This order was challenged by the appellant before Division Bench of the said High Court by an appeal Syed Yakoob preferred under Clause 15 of the Letters Patent. v. . Tl~e Division Bench has held that the order passed by K.S. Radhakns!z- Snnivasan J. could be sustained on the ground that nan the Appellate Tribunal had overlooked material con-G . -siderations in favour of respondent No. 1, and so, a;endragadkar it has affirmed the decision of the learned single Judge 1· on that grQund alone. In regard t'o the finding of the rearned single Judge that an irreieyant consideration had vitiated the finding of the Appellate Tribunal, the Division Bench held that the consi-deration in question was not irrelevant, and so, it differed from the view taken by Srinivasan J. In the result, the appeal preferred by the appellant before the Division Bench was dismissed. lt is against this order that the appellant has come to this Court by special leave and to his appeal he has impleaded respondent No. I and has added the Authority and the Appellate Tribunal as respondents 2 arid 3 . Mr. Setalvad for the appellant contends that in issuing writ of certiorari in respect of the impugned order passed by the Appellate Tribunal, the High Court has clearly exceeded its jurisdiction under Art. 226 of the Constitution. In our opinion. this contention is well-founded and must be accepted.The question about the limits of the jurisdiction of High Courts in issuing writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. writ of certiorari can be issued for correct-ing errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jursidiction, or in excess of it, or as result of failure to exercise jurisdictions. writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the

dispute is opposed to principles of natural justice. 1963 There is, however, no doubt that the jurisdiction to issue writ of certiorari is supervisory jurisdiction Syed Yakooh and the Court exercising it is not entitled to act as v. an appellate Court. This limitation necessarily meansK.S. Radhakrish· that findings of fact reached by the inferior Court nan or Tribunal as result of the appreciation of evidence . ---cannot be reopened or questioned in writ proceedings. Ga;endragadkm An error of law which is apparent on the face of the J. record can be corrected by writ, but not an error of fact, however grave it may appear to be. In regard to 11 finding of fact recorded by the Tribunal, writ of certiorari can be issued if it is shown that in record-ing the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similar-ly, if finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that finding of fact recorded by the Tribunal cannot be challenged in proceedings for writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on point and the inference of fact to be drawn from the said finding are within the exclusive jurisdic-tion of the Tribunal, and the said points cannot be agitated before writ court. lt is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed lshaquet[1]i, Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Acssamt[2]i, and Kausha/ya Devi v. Bachittar Sing/i'[3]i.

It is, of course, not easy to define or adequately describe what an error of law apparent on the face of

(I) [!955] l S.C.R.1104.

(2) [1958] S.C.R. 1240.

(3) A.LR. 1960 S.C. 1168.

1963 the record means. What can be corrected by writ has to be an error of law; but it must be such an error Syed Yakoob oflaw as can be regarded as one which is apparent on the is apparent on the apparent on the v. face of the record. Where it is manifest or clear K.S Radhakrish· that the conclusion of law recorded by an inferior nan Court or Tribunal is based on an obvious mis-inter-. --pretation of the relevant statutory provision, or Ga1endragadkar sometimes in ignorance of it, or may be, even in J. disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by writ of certiorari. In all these cases, the impugned conclusion should be so plainly_ in-consistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. ft may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by writ of certiorari is an error of law and the said error must, on the whole, be of such character as would satisfy the test that it is an error of law apparent on the face of the record.· ff statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not. necessarily or always be open to correction by writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately des-cribed as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.

Syed Yakoob oflaw as can be regarded as one which is apparent on the is apparent on the apparent on the v. face of the record. Where it is manifest or clear K.S Radhakrish· that the conclusion of law recorded by an inferior nan Court or Tribunal is based on an obvious mis-inter-

Jn the present case, the question raised by the

appellant presents no difficulty whatever. The point which was raised before the High Court by respondent

No. 1 lies within very narrow compass; it is very 1963 short and simple question of fact. It appears that in dealing with the rival claims of the appellant and Sved Yakonb respondent No. I for the second permit on the route v. in question, the Appellate Tribunal was ultimate!yK.S. Radhakrish-influenced by the fact that the appellant had work-nan shop at Madras which is one terminus of the route . ----in question, whereas respondent No. l had work- Ga1endragadkar shop and place of business only at Cuddalore which 1· is an intermediate station on the route and did not possess workshop at either of the terminii of the route; the other terminus being Chidambaram. In fact, that appears to be the effect of the finding made by the Authority also. Respondent No. 1 urged before the High Court that in coming to the conclusion that he had no workshop at Chidambaram, the Appellate Tribunal had failed to consider material evidence adduced by him. ft is on this narrow ground that writ has been issued in favour of respondent No. 1. Mr. Setalvad contends that the question as to whether respondent No. I had workshop at Chidambaram is pure question of fact and the High Court had no .. jurisdiction to interfere with the finding recorded by the Appellate Tribunal and seek to correct it by issu-ing writ of certiorari. In this connection, he relies on the fact that both the Authority and the Appellate Tribunal have, in substance, found that respondent No. I had no workshop at either of the two terminii on the route and the fact that no reasons have been given in support of the said finding would not justify the interference of the High Court in its jurisdic-tion under Art. 226. Jt may be conceded that it would have been better if the Appellate Tribunal had indicated why it rejected the case of respondent No. 1 in regard to his alleged workshop at Chadam-baram, but we do not think that the failure of the Appellate Tribunal to give reason in that behalf, or to refer specifically to the evidence adduced by res-pondent No.J, would, by itself, constitute such an error in its decision as to justify the issue of writ of certiorari under Art. 226. Jn this connection, we ought to add that it has not been suggested by

1963 respondent No. l that in dealing with his claim for permit, admissible evidence which he wanted to adduce Syed Yakoob had been excluded by the Tribunal from the record; the v. argument that some evidence was not duly considered K.S. Radhakrish· by the Tribunal, would normally pertain to the realm nan of the appreciation of evidente and would, as such, . - -be outside the purview. of an enquiry in proceedings Ga;endragadk"r for writ of certiorari under Art. 226. J.

It appears that when respondent No. I applied for the permit, he sent letter dated 11th July, 1956, in which he had stated that he had workshop at Chidambaram and that he was running it in order to maintain the service efficiently and without any breakdown whatsoever. The argument is that this letter has not been challenged by any party to the proceedings and has been completely ignored by the Authority and the Appellate Tribunal when they reached the conclusion that respondent No. I did not possess workshop at Chidambaram. As we have already pointed out, neither the Authority nor the Appellate Tribunal has given reasons in support of the findings of fact recorded by it; but the said fact alone does not, in our opinion, justify the con-clusion of the High Court that the letter in question had not been considered by the said Authorities, and so, the High Court was not right in issuing writ of certiorari on that basis alone.

But apart from this aspect of the matter, the record shows that the assertion of respondent No. l that he had workshop at Chidambaram was con-tradicted by one of the claimants for permit and is entirely inconsistent with the reports submitted to the Authority and the Appellate Tribunal by the department. D. Kanniah Pillai, one of the applicants for the permit, had specifically averred in his application that the other applicants amongst whom respondent No. 1 was included, were all for away from the Head-quarters having no workshop at Chidambaram. Thus, it would not be right to assume that the claim made by respondent No. I that he had workshop at Chidam-baram was not disnuted by any other competitor.

(. ......

What is more significant, however, is the evidence 1963 -supplied by the report made by the Regional Transport Officer, South Arcot. This report is made under Syed Yokooh different columns. Column 4 speaks about the posses-v. sion of workshop or repair or maintenance facilities K.S. Radhakrish-and its location. The report is made in respect of nan each one of the applicants. In regard to respondent No. 1 under column 4, the report shows that he was Gajendragadkar maintaining workshop as per Government Order J. at Cuddalore, and column 5 speaks about the location of his residence or place of business as Cuddalore. similar report has been submitted about the appellant and that shows that the appellant had workshop facilities at Madras and that he had residence and place of business at the terminus.When the present dispute went before the Appellate Tribunal, fresh report appears to have been called for, and this report which has been made by the Secretary, State Transport Authority, also shows that respondent No. 1 had workshop at Cuddalore on the route, whereas the appellant had workshop at Madras. ft would thus be clear that on the question as to whether respondent No. l had workshop at Chidambaram, there was his own as.sertion stating that he had such workshop. and there were the two reports made by the Transport Officers which con-tradicted the said assertion; the said assertion was also challenged by one of the applicants,· On this state of the record, it was, we think, not permissible to the High Court to consider these questions of fact and to hold that the finding recorded by the Appellate Tribunal was finding without any evidence. To say that material considerations were ignored by the Appellate Tribunal in holding that respondent No. 1 did not own workshop at Chidambaram would be plainly unreasonable when it is remembered that the evidence disclosed sharp conflict between the versions of the parties, and the version of respondent No. 1 was inconsistent with the reports made by the Transport Officers which must have been treated as more reliable by the Appellate Tribunal. There

can be little doubt that if respondent No. I had owned workshop at Chidambaram. it would have been mentioned in col. 4, because the said column is ob-v. vi.ously intended to indicate all places where the

Sred Yakoob

K.S. Radlwkrish- claimant owns workshop and possesses repair nan facilities.

Tt appears that before Srinivasan J. the appellant's J. learned counsel conceded that the allegation made by respondent No. I that he owned workshop at Chidam baram had not been challenged before the Transport Authorities, and naturally Srinivasan J. was considerably impressed by the said concession; but as the Division Bench which heard the Letters Patent Appeal has pointed out, the said concession was not correctly made; in fact, the record distinctly shows that the claim made by respondent No. I was challenged by one of the applicants for permit and was plainly inconsistent with the reports to which we have just referred. Therefore, the concession on which Srinivasan J., relied has been properly left out of account by the Division Bench in dealing with the appeal. The Division Bench thought that apart from the said concession, it did appear that the Appel-late Tribunal had overlooked the claim made by respondent No. l in his letter of the I Ith July, 1956. As we have already indicated, we find it difficult to sustain this finding. In our opinion, apart from the fact that the plea raised by respondent No. I could not be validly raised under Art. 226, even on the merits the said plea is not well-founded. The question on which respondent No. I sought for the intervention of the High Court under Art. 226 was simple question of fact, and we are satisfied that on that question of fact, the Appellate Tribunal was justified in coming to the cvnclusion that the claim made by respondent No. 1 about the existence of workshop at Chidam-baram was not well-founded; but even if the said finding did not appear to the High Court to be satis-factory, that would be no reason for issuing writ under Art. 226. There was evidence in support of the finding of the Appellate Tribunal and it is not

Gajendragadkar

case where the finding is based on no evidence at 1963 all. We ought also to add that though the Division Bench was satisfied that the concession on which Sl'ed Yakooh Srinivasan J., substantially acted had been wrongly v. made before him, its attention does not appear to K.S. Radhakrish-have been drawn to the reports made by the Transport nan Officers to which we have just referred. We have . --no doubt that if the Division Bench had taken into Ga1endmgadkar account those reports, it would have hesitated to 1· confirm the finding made by Srinivasan J.lt appears that Srinivasan J., was inclined to take the view that the decision of the Appellate Tribunal was vitiated by the fact that it took into account certain irrelevant considerations. The Division Bench has held that the said considerations cannot be said to be irrelevant. These considerations centre round the question as to whether preference should be given to an applicant for permit who has his headquarters at the terminus as against another who has only branch office at the said terminus. The practice usually followed by the Tribunals under the Act appears to be to give one mark under col. 3 to the applicant who has his headquarters at the terminus and give only 1;2 mark to an applicant who has only branch office at the terminus. Having held that the consideration on which marks are thus allotted cannot be said to be irrelevant, the Division Bench has indicated that the policy underlying the said practice may be open to doubt. In our opinion, it would have been better if the Division Bench had not expressed any opinion on this aspect of the matter, particularly when it came to the conclusion that the said matter was primarily for the decision of the Appellate Tribunal.

Mr. Pathak for respondent No. l has relied on recent decision of this Court in K.M. Shanmugam v. The S.R. V.S. (P) Ltd.<[1]i in support of his contention that the error committed by the Appellate Tribunal really amounted to contravention of s. 47 of the Act. He argues that the Appellate Tribunal was (!J [T964].fs.c~1C809.

1963 under an obligation, in considering the question about the grant of permit, to take into account the in-Syed Yaknoh terests of publir generally under s. 47(a) and inasmuch v. as the Appellate Tribunal has ignored the fact that K.S. Radhakris'1-respondent No. 1 owns workshop at Chidambaram nan and thereby has refused his application for permit, . --the interests of the public generally have been sacrificed. Gajendragadkar This argument prima facie appears to be far-fetched 1· and fanciful; but Mr. Pathak urges that the observa-tions made by this Court in the case of K.M. Shanmu-gam are in his favour. In our opinion, the said decision does not lend any assistance to Mr. Pathak's conten-tion. Jn that case, !his Court was satisfied that "the Tribunal made clear error of law inasmuch as it held that in the case of the first respondent, as it had branch at Kurnbakonam, its other branch at Manmargudi should be ignored." The judgment shows that this Court took the view that it was ob-viously an untenable proposition to hold that even if company has well-equipped office on route in respect of which permit is applied for, it shall be ignored if the company has some other branch somewhere unconnected with that route, and it was observed that that was precisely what the Appellate Tribunal had held and that, according to the Court, clearly was an error apparent on the face of the record. Jt is in that connection that this Court referred to the mandatory provisions of s. 47. We do not think that this decision can be legitimately pressed into service by Mr. Pathak in the present case. It is only after it is proved that respondent No. 1 had workshop at Chidambaram that any subsequent question about the interests of the public generally can possibly arise. If, as in the present case, the Appellate Tribunal has held that respondent No. l did not own workshop at Chidambaram, no con-sideration of public interests can arise at all, and it is with this question that the present writ proceed-ings are concerned. We ought to add that the decision in the case of K.M. Shanmugam cannot justify party whose application for permit has been rejected by the authorities under the Act, to move the High

s s.c.R.

Court under Art. 226 and invite it to consider all

questions of fact on the plea that the decision on the said questions of fact may assist him to invoke the [5];·ed Yakoob provisions of s. 47. That clearly is not the effect v. . of the said decision. .K.S. Radhaknsh-Radhaknsh-

v. . .K.S. Radhaknsh-Radhaknsh-nan --

Mr. Pathak has also urged that even if we come

to the conclusion that the High Court was not competent to issue writ in the present proceedings, having regard to the nature of the questions raised before it by respondent No. I, we should not reverse the decision of the High Court under Art. 136 of the Constitution. The jurisdiction of this Court under Art. 136, though very wide, is exercised by the Court in its discretion, savs Mr. Pathak, and he contends that where the order under appeal furthers the ends of justice, we should not reverse the said order on technical grounds. We are not impressed by this plea. It may be conceded that in proper case this Court may refuse to exercise its jurisdiction under Art. D6 where the interests of justice patently indicate the desirability of adopting such course; but we do not see how plea of such kind can be entertained where it is clearly shown that the im-pugned orders passed by the High Court are without jurisdiction. If Mr. Pathak's argument were to be accepted, in majority of cases if the High Court interfered with questions of fact in issuing writs of certior.1ri against the decisions of special Tribunals, it may always be urged that what the High Courts have done is in the interests of justice and this Court should not interfere with the decisions of the High Courts. In the circumstances of the present case, we do not see how considerations of justice can really arise. The Tribunals of fact have found that res-pondent No. I does not own workshop at Chidam-baram and having regard to the other relevant circum-stances which the Tribunals have considered, the fact that he does not own workshop at Chidam-bararn has ultimately proved decisive against res-pondent No. l and in favour of the appellant. If that be so, decision based on facts found by the

not Gc(iendragadkar J.

1963 Tribunal cannot be reopened on the plausible plea that further enquiry should be made btcause that Syed Yakoob would be just. If findings of fact were allowed to v. . . be disturbed by High Courts in such writ proceedings, K.S. Radha/,mh-that may lead to an interminable search for correct """ findings and would virt1.1ally convert the High Courts r,en ragacKar /[" ]d 1[, ]into Appellate Courts competent ff Tl . I l. l . to deal with questions . . . J. ~ act. lat 1s w 1~ we t_11!1 c, m enterta111mg pct1-t1ons for wnts of cert10rari, 1t 1s necessarv to remember that findings of fact recorded by special Tribunals which have been clothed with jurisdiction to deal with them, should be treated as final between the parties, unless, of course, it is shown that the impugned finding is cased on no evidence. Therefore, we do not think the plea made by Mr. Pathak that in the interests of justice we should refrain from ~etting aside the order under appeal, can be upheld.There is one more point to which reference must be made. It appears that in the writ petition filed by respondent No. I he claimed that the orders passed by the Authority and the Appellate Tribunal should be set aside, and rule was issued in terms of the prayer made in the said petition. Ultimately, the said rule has been made absolute. It is obvious that in the writ petition, respondent No. l did not challenge the grant of the permit to the Provincial Transport (Pvt.) Ltd., but unfortunately, having regard to the prayer made by respondent No. I in his writ petition, the orders ultimately passed in the said proceedings may, if technically construed, mean that the orders of the Authority as well as the Appellate Tnbu nal have been set aside and that clearly was not and could not have been the intention of the High Court in issuing the writ. lt would, we think, be better if in issuing writ on writ petition and in making it absolute in case the writ petition succeeds, care is taken to draw the order more accurately.

The result is, the appeal is allowed, the order passed by the High Court is set aside and the writ

-' ,...,

5 S.C.R.

petition filed by respondent No. I is dismissed: Res-pondent I to pay the cost of the appellant in this Court.

Syed Yakuub v.

Mr. Ranganathan Chetty who appears for res-v. p~ndent~ 2 and 3 has asked for his costs. We do not K.S. Radhakrisfi· tl11nk tins request can be accepted. It may be that J1(/ 11 in such proceedings, the Authority and the Appellate Tribunal are proper and necessary parties, but unless Gajendragadkar allegations are made against them which need reply · J. from them, it is not usual for the authorities to be represented by lawyers in Court. Tn ordinary cases, their position is like that of courts or other Tribunals against whose decisions writ proceedings are filed; they arc not interested in the merits of the dispute in any sense, and so, their representation by lawyers in S!ich proceedings is wholly unnecessary and even inappropriate. That is why we direct that respondents 2 and 3 should bear their own costs.

SUBBA RAO .T.--I have had the advantage of peru-sing the judgment of my learned brother, Gajendragad-kar J. I cannot agree. The facts lie in small compass and they are as follows: The State Transport Authori-ty, Madras, called for applications for the grant of two stage carriage permits on the route Madras to Chidam-baram. 107 applications were received by the said Au-thority. The appellant and the first respondent are two of the said applicants. The Staie Transport Autho· rity gave one of the permits to the Provincial Transport (P1 ivate) Limited, Madras: we are not concerned with this permit. As regards the second permit, the said Authority found none of the applicants suitable and, therefore, refused to grant the same to any one of them and directed fresh applications to be called for. Against the said order, the appellant, first respondent and others preferred appeals to the State Transport Appellate Tribunal. The appellant herein was res-pondent 16 and respondent I herein was appellant 7 before the said Appellate Tribunal. The first res-pondent secured the highest total marks, viz., 7~, under columns I to 5 under the scheme of marking sanctioned by the State Government. The appellant got only 41 marks. Ignoring the highest total of

Subba Raa J.

1963 marks secured by the first respondent, the Appellate Tribunal rejected his claim on the ground that he Syed Yakoob had his workshop and place of business en route K.S. Ra;hakrish- at Cuddalore and not at either of the terminii of the nan route. Excluding the first respondent, the Appellate Tribunal, for the reasons mentioned in the order, Subba Rao J. preferred the appellant in competition between him and appellant 14 before the Tribunal. The main ground of preference was that the appellant had got his workshop in the headquarters at Madras. In the result, the Appellate Tribunal rejected the applica-tion of the first respondent and gave the permit to the appellant. The first respondent filed writ petition under Art. 226 of the Constitution in the High Court of Judicature at Madras for the issue of writ of certiorari for quashing the order of the said Tribunal. The said petition was heard by Srinivasan J., and he quashed the order of the Appellate Tribunal mainly on the ground that the Tribunal did not take into consideration material and relevant circumstance to the enquiry before it, namely, that the petitioner had the necessary repair and maintenance facilities at Chidambaram, one of the terrninii of the route in question. ln that view the learned Judge quashed the order of the Appellate Tribunal. On Letters PatentAppeal, Division Bench of the High Court, consisting of Ramachandra Iyer C.J., and Venkata-raman J., held that the learned Judge should not have given finding on the question whether the first res-pondent had the above said facilities at Chidambaram, but agreed with him that the Appellate Tribunal had overlooked the claim made by the first responden't to the effect that he had such facilities at Chidam-baram. Hence the appeal.

Mr. Setalvad, learned counsel appearing for the appellant, contended that the Appellate Tribunal had held on the material plac~d before it that the first respondent had no such facilities at the terminal and that, therefore, the High Court had no jurisdiction to interfere with the finding of fact arrived at by the Appellate Tribunal.

5 S.C.R.

Mr. Pathak, learned counsel for the first respon-1963 dent, argued that though the first respondent cle<irly stated in his letter dated July 11, 1956, to the Transport Syed Yaktch Authority that he had such facilities, the State Trans-v. port Authority as well as the State Transport Appellate K.S. Radlwkrish-Tribunal had ignored that material circumstance nan which was germane to the question of public interest under s. 47 of the Motor Vehicles Act, 1939, and, Sabha RaoJ. therefore, the High Court had rightly quashed that order under Art. 226 of the Constitution and directed the Tribunal to dispose of the appeal on merits. Alternatively he contended that though there might be some material for the Appellate Tribunal to come to the conclusion that the first respondent had no such facilities, three learned Judges of the High Court, on the admissions made and the material placed before them, have held that the Tribunal did not decide that question and that they only gave further opportunity to the Appellate Tribunal to decide the appeal on merits and that in the circumstances it is not fit case for this Court to interfere under Art. 136 of the Constitution.The first respondent has fundamental right to carry on business in transport. The Motor Vehicles Act is law imposing reasonable restrictions in public interests on such right. Under s. 47 of the said Act the Regio11al Transport Authority shall, in considering an application for stage carriage permit, have regard, inter alia, to the interests of the public generally. The fact that the first respondent has separate workshop or at any rate has the necessary repair and maintenance facilities at one of the terminii of the route, l'i::., at Chidambaram, is certainly consideration germane to the question of public interest. Indeed, the scheme of marking system suggested by the Government also recognizes the importance of such facilities at either of the terminii of the route. If the first respon-dent had placed before the authorities concerned the said circumstance in support of his claim for permit and if that was ignored or not investigated into by the said authorities, the High Court would certainly

have jurisdiction under Art. 226 of the Constitution

to quash the order of the authorities and direct them Syed Yakoob to ascertain whether the claim of the first respondent v. was true, and if it was true, to take that into considera-K.S. Radhakrish- tiun before issuing the permit to one or other of the """ claimants before them. Jn such an event the High Subba Rau J. Court would not be interfering with the finding of fact arrived at by the Appellate Tribunal based on the material placed before it, but would only be quashing the order on the ground that an important and material circumstance was ignored or not investi-gated into by the Tribunal. If Tribunal ignores or fails to investigate material circumstance put forward by claimant and gives finding against him, the said finding can certainly be said to be vitia-ted by an error of law apparent on the face of the record.

In the present case, the State Transport Authority

was considering the competing claims of 107 persons for two permits. The said Authority gave its decision on May 8, 1957. The first respondent filed his applica-tion for permit on July 11, 1956. On the same day he addressed letter to the said Authority to the following effect:

"Chidambaram is one of the terminii of this proposed route. separate office and workshop are located at Chidambaram in order to maintain the service efficiently and without any break-down or whatsoever."

None of the innumerable applicants in his application denied specifically the claim of thco first respondent that he had separate office and workshop at Chidarn-bara•n. This fact was conceded before Srinivasan J., though the learned Judge put the concession some-what higher than was actually made. Nor did the learned counsel for the appellant go back 011 the limited concession before the Division Bench. But one Kanniah Pillai, who was applicant No. 43-D, stated in his application thus:

"The applicant Nos. 43, 57, 69, 78 and 81 are residents of Chidambaram but No. 57 is fleet

owner. Nos. 69 and 78 have no workshop.

No. 8 I is new entrant. The rest all are far away from the headquarters having no workshop Syed Yakoob at Chidambaram." v.

v. """ Subba Rao J.

Except this vague and implied denial by Kanniah K.S. Radlwkrish-Pillai, there is nothing on the record to suggest that """ any other applicant denied the claim of the first res-Subba Rao J. pondent. The fact remains that the appellant did not at any stage of the proceedings refute the claim of the first respondent.

With this background let me first look at the order of the State Transport Authority. The said '· Authority has ignored the said letter of the first r~s­pondent claiming to have workshop at Chidambaram, but it stated in an omnibus clause that the first res-' pondent and some of the other applicants were resi-dents either in the middle or off the route and they were not so well situated as an applicant who had facilities at one end of the route with all the necessarv facilities. ft may be stated that this is an implied ,. finding against the first respondent, but the complaint ·· of the first respondent is that it is made in utter dis-regard of his claim. So too, the Appellate Tribunal observed in its order disposing of the 18 appeals before it that the first respondent, who had secured • the highest number of marks, including those in -column 1 place of business of the mark list, had his workshop and en route at Cuddalore and not at either of the tenninii of the route. This observation ..;j was also made in utter disregard of the claim made by the first respondent that he had workshop 11t Chidambaram, one of the terminii of the route, and though the other applicants, except one, had not denied the said fact. The High Court, therefore, found on the material placed before it that the said Authority as well as the Tribunal had failed to con-sider the specific claim made by the first respondent in regard to his workshop at Chidambaram and, therefore, rightly set aside the order of the Appellate Tribunal so that the L\ppc!late Tribunal might con-__...,) sider the claim made by the first respondent. I

do not see any flaw in the reasoning of the High Court. ,... Nor can I say that it has exceeded its jurisdiction under Art. 226 of the Constitution.

Syed Yakoob v. K.S. Radhakrish-nan

But, Mr. Setalvad contended that there was

nan material before the Tribunal and that the Tribunal gave its finding on the basis of that material. He Subba Rao J. relied upon an extract from the report of the Regional Transport Authority, South Arcot, dated January 31, 1957. That was report sent by the said Authority to the State Transport Authority. Against the name of the first respondent in column 4 under the heading "possession of workshop or repair or maintenance facilities and its location" it is stated, "maintaining ·" workshop at per G.O. at Cuddalore". Again in the report sent by the State Transport Authority to the State Transport Appellate Tribunal, against the name of the first respondent in column 8 under the heading "Place of residence or principal place of business and the nearest distance" the entry is "Cuddalore-on the route". This information given by the Trans-port Authority is presumably gathered from the earlier .. " report of the Regional Transport Authority. Reliance is placed upon letter dated January 10, 1957, written by the first respondent to the Secretary, State Trans-port Authority, in support of the contention that even the first respondent, though on July 11, 1956, • he claimed to have had workshop at Chidambaram, did not mention it therein. But perusal of that letter shows that he did mention that he had the sector and terminal qualifications. Basing the argument (( on the said documents, it was contended that there was material on which the Appellate Tribunal could have come to the finding which it did, viz., that the first respondent had no workshop at either of the terminii of the route. Firstly, these documents were not expressly relied upon by the Tribunal for holding that the first respondent bad no workshop at Chidam-baram. Secondly, these documents were not relied upori by the appellant either before Srinivasan J., or before the Division Bench to the effect that the Appellate Tribunal gave finding on the basis of the {.,-

~......_, 5 S.C.K

said material. Thirdly, one of the said documents, 1963 viz., the letter of the first respondent, does not support the contention. The other two reports did not say Syed Yakoob that the first respondent had no workshop at Chidam-v. . baram. The officers who made the report did not K.S. Radhaknsh-make any enquiry as regards the fact whether the first nan respondent had workshop at Chidambaram on the Subba Rao J. basis of the claim made by him. There is, therefore, absolutely no evidence to controvert the first respon-dent's claim and that is the reason why the appellant did not place the said documents before the High Court in support of his contention that there was material before the State Transport Authority and the State Transport Appellate Tribunal for holding that tne first respondent had no workshop at Chidambaram. perusal of the two orders shows that presumably in view of the innumerable applications, the specific claim of the first respondent was completely missed by the Transport Authority and the Appellate Tribunal. This is, therefore, clear case of finding made by the Tribunal without any evidence to support it and · by ignoring specific claim made before it. 1 am, therefore, of opinion that the High Court rightly set aside the order of the Appellate Tribunal.The next question is whether this is fit case for interference under Art. 136 of the Constitution in exercise of this Court's extraordinary jurisdiction thereunder. Srinivasan J., and, on appeal, the Divi-sion Bench on the basis of the material placed and the concession made before them, came to the con-clusion that the Appellate Tribunal had ignored the specific claim set up by the first respondent. The first respondent had secured the highest number o_f marks. His claim, if substantiated, would certainly tilt the balance in his favour. The material placed before us was not relied upon by the appellant before the High. Court. The High Court gave further opportunity to the Appellate Tribunal to consider the claim of the first respondent. Though the High Court quashed the order of the Tribunal the observa-tion in the judgment clearly shows that' the Tribunal

J ,,...-,

86 SUPREME COURT RF.PORTS

1963 could reconsider the matter. Indeed, learned counsel for the first respondent conceded that fact. The .~red Yakooh appellant would have every opportunity to establish v. . that the first respondent has no workshop at Chidam-K.S. Radhakmh-baram. Instead of following the straight course, nan he is trying to shut out further enquiry to arrive at the truth. ln the circumstances l am of the view Subba Rao .I. that this is not case which calls for the exercise of this Court's extraordinary jurisdiction to set aside the order of the High Court.

In the result, the appeal fails and is dismissed with costs of the first respondent.

ORDER BY COURT

In accordance with the opinion of the majority the appeal is allowed and the Writ Petition filed by Respondent No. l is dismissed. Respondent No. ·1 to pay the costs of the appellant in this Court. Res-pondents 2 and 3 to hear their own costs.

MOHD. IKRAM HUSSAIN

Ocroher 9 STATE OF U.P. & OTHERS

(M. HIDAYATULLAH AND K.C. DAS GUPTA JJ.)

Habeas Curpus-Perition for custody of alleged wife-Power of Court to order inquiry into facls-Contempt of Court-Punish- <:ct'. ment for-Constitution ·of India, Art. 226-Code of C1·imina/ Pro-cedure, 1898 (Act S of 1898), s. 491.

Proceedings under s. 491 of the Code of Criminal Procedure and Art. 226 of the Constitution of India were started by one Mahesh for writ~ order or direction in the nature of writ of habeas corpus to release his alleged wife Kaniz Fatima alias Sheela from unlawful detention by the appellant, her father and for delivery of the said Kaniz Fatima to him. On August 26, 1960, the High Court passed an order by which the objections of the appellant were ovenuled and he was directed to bring before the Court Kaniz Fatima alleged to be held in unlawful confinement. The appellant was given ten days time to obey the direction. As the direction was ( not complied with and Kaniz Fatima was not produced in Court