S.C.R.

SUPREME COURT REPORTS 247

assets of the assessee and that aspect of the question 1956 was not at all considered by the Privy Council. It Th c .. • . • e otn11usstone,. is not, therefore, necessary t? express any ?J.:>lllln of Income Tax and on the correctness or otherwise of that dec1s10n m Excess Profits Tax, this case. , Madras Having regard to all the circumstances adverted to v. h h f The South India above, it is, therefore, clear t at t e payment o Pictures Ud., Rs. 26,000 received by the assessee from the producers Karaikudi was in consideration of the surrender by the assessee of the capital assets which it had acquired from the Bhagu•atiJ. producers under the three agreements in question and constituted a capital receipt not liable to tax for the assessment year 1946-47. The answer given by the High Court to the referred question was, therefore, correct and I would dismiss the appeal with costs.

ORDER.

BY THE CouRT:-In accordance with the Judgment of the majority, the appeal is allowed wjth costs throughout.

VEMIREDDY SATYANARAYAN REDDY AND

THREE OTHERS

THE STATE OF HYDERABAD.

[VIVIAN BOSE and CHANDRASEKHARA AIYAR JJ.]

Crime, perpetration of-A person present but not aiding or abetting-Whether principal or accessory-Corroboration of the statement of a single witness against accused-What the law requires.

There is no warrant for the extreme proposition that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded in law as an accomplice and that he could be put in the dock with the actual criminals.

A person may be present, and, if not aiding and abetting, be neither principal nor accessory; as, if A, happens to be present at a murder and takes no part in it, nor endeavours to prevent it, or to apprehend the murderer, this course of conduct will not of Itself ren der him either principal or accessory.

Russell on Crime, 10th Edition, p. 1846, referred to.

March 14

Ve1nireddy Sat yanarayan

Reddy and three others v.

The State of Hyderabad

In the matter of corroboration of the evidence of a single witness against the accused what the law requirss is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can he regarded as a truthful witness. The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. The nature of the corroboration will depend on and vary according to the particular circumstances of each case.

Bez v. Baskerville (1916) 2 K.B.D. 658, referrsd to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals No. 28 to 31 of 1955.

Appeals by special leave from the judgment and order dated the 11th February, 1953 of the Hyderabad High Court in Criminal Appeals Nos. 1260 to 1263 of 1951/1952 arising out of the judgment and order dated the 6th November, 1951 of the Court of the Sessions Judge at w,.rangal in Original Criminal Case No. 127 of 1950.

H. J. Umrigar, for. appellant No. 1.

K. R. Olwuilhry, for appellants Nos. 2 to 4.

Porus A. Mehta and P. G. Golchale, for the respondent.

1956. March 14. The Judgment of the Court was delivered by

CHANDRASEKHA.RA AIYAR J.-The four appellants and two others named Sheshaya and Pitchi Reddy, who are all communists, were charged with the murder of one V enka takrishna Sh as try who was a Congress worker or leader.

The appellants were convicted of the offence but the other two were acquitted by the Sessions Judge, Warangal, Hyderabad State, on the astounding ground that no overt acts were proved against them.

The appellants preferred appeals to the High Court at Hyderabad and there was the usual reference for confirmation of the death sentences imposed on them.

The appeals were heard by a Bench consisting of Deshpande J. and Dr. Mir Siadat Ali Khan J. and

they disagreed with each other. Deshpande J. held that the evidence did not establish the. guilt of the appellants and he acquitted them. On the other hand, Dr. Mir Siadat Ali Khan came to the conclusion that the prosecution had established its case beyond reasonable doubt. He confirmed the convictions but reduced the sentences to imprisonment for life. Owing to this difference of opinion, the matter was referred to a third Judge, Manohar Persbad J. and he agreed with the finding of guilty given by his learned brother Dr. Mir Siadat Ali Khan. We granted special leave to the appellants to come before this court.

The facts of the occurrence, as alleged by the prosecution, are these. On the evening of 19-1-1949, the deceased Venkatakrishna "Shastry of the village of Maturpeta and five other persons, who were Congress workers like him, were returning to the village from a tank. One of the communist leaders called Nagabhushan Rao had been arrested a month or two previously and the communist party believed that

Venkatakrishna Shastry was responsible for the arrest. So a large group of communists, about 25 or 30 in number including the accused, armed with guns and swords, paid a visit to Maturpeta to wreak vengeance against the Congress group led by .Venkatakrishna. Shastry. They ran into the Congress group as they were getting back to the village after the evening stroll. P. W. 14, a dhobi boy named Gopai was one of the camp followers of this communist group.

Venkatakrishna Shastry and his co-workers were tied up with their own clothes and were led to the village chavadi over which a Congress flag was flying. A rope was brought from the house of P.W. 17 and the members of the Congress group were tied with this rope and led some distance away from the village to a red-gram field, and all of them were beaten by their enemies; except Shastry, the rest were driven away from the place.

Shstry was tied with the rope and taken in the eastern direction by Mangapaty (the dalam or troop leader) and the accused. P.W. 14 was following the group carrying a bundle of their clothes on his head. After a short halt at the village of

Vemireddy Satyanarayah

Reddy and three other$

The State of Hyderabad

ChandrasekharR

Aiyar J.

Vemireddy Satyanarayan

Reddy and three others

The State of

Hyderabad

Chandrasekhara

Aiyar J.

Suknevedu, where some food was taken, the party went toward.s a mango-tope near a brook, four or five miles away leading Venkatakrishna Shastry as the captive. The deceased, Gopai (P.W. 14) and some of the accused remained on the hank of the brooklet.

The others went a little beyond and one of them came back with orders that Venkatakrishna Shastry should be fetched. Venkatakrishna Shastry was taken along and when the moon was at the meridian, the rope with which he was led was tied round the neck of the deceased into a noose. Two of the accused pulled one end of the rope and two others at the other end in opposite directions.

Venkatakrishna Shastry was thus strangled to death. A pit was dug and the body of Venkatakrishna Shastry was buried in the river-bed. P. W. 14 saw all this from a distance of twenty yards in clear moonlight.

Two or three days later, after some wanderings in the jungle and mountain-dens P.W. 14 left the company of his masters who were implored by the boy's father P. W. 7 to permit him to take the boy away.

Next morning a report was sent by P.W. 2 the police pate! about the abduction of Venkatakrishna Shastry and investigation was begun. On 8-2-1949, that is about twenty days after the occurrence, some bones of a human-body were discovered in the riverbed as the result of crows and vultures hovering round the place. The police Patwari (P. W. 10) sent a report about this discovery. The police arrived on the scene and exhumed the body which was identified as that of Venkatakrishna Shastry. This was on 9-2-1949. It was sent for post-mortem examination.

The condition in which the body was at the time of exhumation is stated in a panchnama that was then prepared. The results of the post-mortem examination are spoken to by the doctor P.W. 7.

Being the only witness for the commission of the crime, the dhobi boy (P. W. 14) was subjected to severe criticism by Mr. Umrigar who held the dock brief for the appellants. He described him as an accomplice and as an unmitigated liar and he asked us not even to look at his evidence. P.W. 14 does not satisfy the

definition of an accomplice; he falls somewhat short of the requirements which would confer on him this status.

According to the evidence, he left his parents' roof after a quarrel with his father and while wandering in the jungles he was picked up by the communists only 3 days before and taken as their servant on promise to give him food. His main duty appears to have been to go with the group carrying their bundles of clothes on his head. It was in this capacity that he was not only able to see the abduction of the deceased but also to witness the actual murder. He took no part whatever in the commission of the offence or in any active or passive preparations for the same. He was not a particeps crimines. After securing his release from his temporary masters, he went back with his father to the village.

It is true he did not divulge the secret of the murder to any one else except to his own father. But who would, in view of the. atrocities and terrorism that prevailed in that region during the relevant time?

It required a very courageous man to have proclaimed the truth, needless of consequences to himself, and we cannot credit the dhobi boy with so much of fearlessness. The learned counsel urged that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded in law as an accomplice and that he could be put in the dock with the actual criminals. There is, however, no warrant for such an extreme proposition.

On the other hand, the following short passage from Russell on Crime, 10th Edition, page 1846, will show its untenability:-

"But a person may be present, and, if not aiding and abetting, be neither principal nor accessory; as, if A, happens to be present at a murder and takes no part in it, nor endeavours to prevent it, or to apprehend the murderer, this course of conduct will not of itself render him either principal or accessory".

Indeed, there can be no doubt that the evidence of a man like P. W. 14 should be scanned with much caution and we must be fully satisfied that he is a witness of truth, especially when no other person

Vemireddy Satyanarayan

Reddy and three others v.

The State of

Hyderabad

Chandrasekhara

MyarJ.

Vemireddy Satyanarayan Reddy and three others v.

The State of Hyderabad

Chandrasekhara

Aiyar }.

was present at the time to see the murder. Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on bis sole testimony unless we feel convinced that he is speaking the truth. Such corroboration need not, however, be on the question of the actual commission of the offence; if this was the requirement, then we would have independent testimony on which to act and there would be no need to rely on the evidence of one whose position may, in this particular case, be . said to be somewhat analogous to that of an accomplice, though not exactly the same. What the law requires is that there should be such corroboration of the material part of the. story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness. In the leading case. of Rex v. Baskerville(') it was pointed by Lord Reading C.J. that "the corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. The nature of the corroboration will depend on and vary according to the particular circumstances of each case. What is required is some additional evidence rendering iti probable that the story of the accomplice is true and that it is reasonably safe to act upon it.

Judged by this test, we can say that the evidence given by P.W. 14 has been amply corroborated.

It was not disputed for the appellants that there is abundant evidence consisting of the testimony of several witnesses in support of the truth of the narrative given by P.W. 14 regarding the abduction of the deceased. This evidence was given not by mere onlookers but by men like P.Ws. 3, 4, 5, 6 and 9, who were with the deceased when the communist group came upon them and who were themselves badly beaten up by the gang before being released from impending death at the merciful intervention of

(1) [1916) 2 K.B.D. 668

some one of them. They say that at the time of the release the accused retained the deceased withthem

and took him away in the direction of Mulgupad.

From this stage, P.W.14takes us to the rivQr bank where the deceased and he were allowed to sit. The accused went into the river bed and later on orders were issued by the appellant ; No. 1, the deceased was led by a rope from the bank by Muthyalu (4th appellant). The rope was tied round the neck of the deceased into a noose and pulled in opposite directions by two of the accused on each side and Shastry

was thus strangled to death. His body was buried in a pit dug in the river bed. The rope which was found round the neck of the dead body when it was exhumed is said to be the rope with whichP.Ws. 3 to 6 and 9 were tied up and as the one that the members of the gang brought from the house of Silam Brahma-. reddi (P.W. 17) earlier that evening when the village was raided and the Congress workers were marched to the Congress flag. .

There is also evidence that the party of the accused when they first encountered the party of the deceased asked who and where was Venkatakrishna.

Shastry. The assailants, who were armed to the teeth, indulged in threats to kill all of them. The deceased was a.. Congress leader and it is not surprising that he was singled out for terrific, punishment, while the others were let off with a good thrashing and admonitions that they should give up their Congress affiliations. It is but natural in the circumstances that they should take a.way the deceased to a distant place to do a.way with him. That he was so led by the group of the accused is also corroborated . by the evidence of Yesob (P.W. 12) who was watching his jawar crop on the night in question in a neighbouring field.

Let us now turn J; o the exhumation of the dead body, the inquest report, the post-mortem certificate, and the evidence of the doctor (P. W. 7). The patwari of Sa.krivedu (P. W. 10) sent a report on the 8th February, 1949, that he had information that a dead body lay buried in the river-bed. The report has not

Vemireddy Satyanarayan

Reddy and three others v.

The State of Hyderabad

Chandrasekhara

Aiyar J,

Vetnircddy Satyanarayan

Reddy and three others

The Stale of

Hyderabad

Chaudrasckliara

Aiyar J.

been filed but its purport about the condition of the body is given in the inquest report as unidentifiable.

Two police sub-inspectors and some constables reached the river-bed the same day and exhumed the body.

Its then condition is described in these words in the inquest report:

"It was noticed that a rope of Chinna and Ambara was wrapped from neck to the waist. Both hands were missing and out of the two legs one was attached to the body with little flesh.

The bones of the other separated leg (the down part of the knee) and the bones of one hand were found in the pit.

There were some hairs in the head. The flesh of the face was rotten and decayed. Teeth are safe and sound. There is rotten flesh from the neck to the buttocks. It appears that this dead body is of a Hindu Brahmin".

The panchnama is signed by two persons, one of whom HAS BEEN EXAMINED AS P.W. 16.

He, along with the witnesses who gave evidence as cosufferers with the deceased in the communist raid of that evening, have identified the body as that of Venkatakrishna Shastry. The doctor's post-mortem certificate is exhibit 2 and according to it the body was putrified and even the marks of strangulation could not be detected; both the palms had been cut out, the left hand was severed completely; there was only the left eye in a rotten condition; the right eye was not found, the right ear was not there. Examined as P.W. 7, the doctor has said that the face of the corpse could not be identified, as the scalp was eaten away by mud, and the bony structure of the face was present.

In the face of this evidence, the learned counsel for the appellants contended with much force that identification must have been impossible and that the witnesses who speak to the same should be disbelieved.

Two factors are, however, overlooked in this argument.

Though the body was in an advanced state of decomposition and many parts of the limbs were missing and even the flesh in the face was gone, it would not have been difficult for close associates of

Venkatakrishna Shastry to say that it was his corpse, from the general features form, outline, contour build of the body, and the appearance of such of the limbs as were available to see.

His friend Madhusudhana Rao, P. W. 15, was working with the deceased for some years in the Congress office and knew him well indeed.

There is his evidence about identification.

More important still is the identification of the rope round the neck of the body, the dhoti with the violet border that was on its waist, and the janjam or the holy thread. The rope was brought from the house of Brahma Reddy (P.W. 17).

It was the one which was tied in loops round each member of the Congress group as they were led from the village to the redgram field; it was the rope that was used to lead Venkatakrishna Shastry to the brooklet; and it was the rope that was found round the neck of the dead body when it was unearthed.

The bordered dhoti which was on the corpse belonged to Venkatakrishna Shastry. From these external marks, and the general features, friends of the deceased like P.Ws. 3 to 6 and 9 and P.W. 17 in whose house Shastry was living could say, we think, that the body buried in the waist-deep pit in the bed of the river was that of Venkatakrishna Shastry.

Whether he is regarded as an accomplice or as the sole witness of the offence P.W. 14 has been corroborated in such a manner that his evidence about the steps taken by the accused immediately prior to the perpetration of the murder carries conviction to our minds. The connection of the accused with the crime must be held to have been made out.

We have also to accept that the dead body recovered was that of Venkatakrishna Shastry and no question of the absence of the body arises.

For this gruesome and revolting murder the appellants have got only imprisonment for life for which they must be thankful to the difference of opinion that arose among the learned Judges of the High Court.

The appeal fails and is dismissed.

Vemireddy Satyanarayan

Reddy and three other&

The State of Hyderabad

Chandrasekhara

Aiyar J.

Madras

Karaikudi

THE STATE OF HYDERABAD

VIVIAN BOSE

CHANDRASEKHARA AIYAR JJ.

Ve1nireddy Sat yanarayan

State of Hyderabad

H. J. Umrigar

K. R. Olwuilhry

Porus A. Mehta

P. G. Golchale

CHANDRASEKHA.RA AIYAR

Sheshaya

Pitchi Reddy

V enka takrishna Sh

High Court at Hyderabad

Deshpande

Mir Siadat Ali Khan

Manohar Persbad

Mir Siadat Ali Khan

Venkatakrishna "Shastry

Maturpeta

Nagabhushan Rao

Venkatakrishna Shastry

.Venkatakrishna. Shastry

Gopai

chavadi

Shastry

Shstry

Mangapaty

Vemireddy Satyanarayah

Reddy

ChandrasekharR

Aiyar

Vemireddy Satyanarayan

State of

Hyderabad

Chandrasekhara

Gopai

Umrigar

Russell

Reading

Mulgupad

Muthyalu

Silam Brahma-. reddi

Venkatakrishna

Yesob

Sa.krivedu

8th February, 1949

Vemireddy Satyanarayan

Reddy

Chandrasekhara

Vetnircddy Satyanarayan

Chinna

Ambara

Madhusudhana Rao

Brahma Reddy

Venkatakrishna Shastry

Reddy

State of Hyderabad

Chandrasekhara


March 15

SUPREME COURT REPORTS [1956)

RAMAN & RAMAN LTD. v.

THE STATE OF MADRAS AND ANOTHER.

[VIVIAN BosE, JAGANNADHADAS, B. P. SINHA, JAFER IMAM and CHANDBASEKBABA AIYAB JJ.)

Road Ttan•port-PoJi.,. of the Stat. ao,,.,.,.,,..,., to IOI and• orders of 3Uburdinat. authoriti•&-High Court's pow., to int.rfer• bv writ of CBTtiorari-Motor Vehicle• Act (IV of 1989), as amended by the Motor Vehicle• (Madras Amendment) Act (XX of 1948), •· 64A -Oon•titulion of India, Art. 226.

The appellant and respondent No. 2 along with others applied for stage-carriage permits for two routes and the Regional Transport Authority granted a permit for one route to the appellant and for the other route to the respondent No. 2.

Both sppesled to the Central Road Traffic Board but the sppeals were dismissed. Neither the Regional Authority nor the Board recorded any finding as to which of them had the better facilities for transport operation or thst they were of equal merit.

They applied to the Stste Government under s. 64-A of the Motor Vehicles Act of 1939 as amended by the Motor Vehicles (Madras Amendment) Act of 1948 and the State Government set aside the orders passed by the said subordi

nate authorities and issued permits for both the routes to the res pondent No. 2 on the ground tbst he bad better facilities for opera tion and would serve the public better.

Against this order of the Stste Government the appellant moved the High Court for a writ of certiorari snd a single Judge issued the writ.

On a Letters Patent appeal that decision was set aside.

The appellant contended that the State Government had acted in excess uf its powers under s. 64-A of the Act in setting aside the orders of the subordinate authorities and that the seetion itself was invalid.

Held, that the State Government was within its powers in passing the order it did and the appeal must be dismissed.

That it was within the competence of the State Legislature to insert s. 64-A into the Act and its legality could not be questioned and the clear intention of the legislation was to empower the State Government to decide the legality, regularity or propriety of any orders passed by the subordinate authorities in the interest of the general public. ·

That the State Government was the final authority to decide which of the rival applicants had the better facilities for operation of the bus service and where it bad come to a decision in favonr of

an applicant, its decision conld not be interfered with under Ari. 226 of the Constitution merely because its view might be erroneous,

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1 of 1956.

On appeal from the judgment and order dated the 2nd/21st day of September 1955 of the Madras High Court in vVrit Appeal No. 65 of 1955 arising out of the order dated the 5th day of May 1955 of the said High Court in Writ Petition No. 158 of 1955.

G. S. Pathak, R. Ganapathy Iyer and G. Gopalakrishan, for the appellant.

M. 0. Setalvad, Attorney-General for India, B.K.B.

Naidu and Naunit Lal, for respondent No. 2.

1956. March 15. The Judgment of the Court was delivered by

IMAM J.-This appeal comes before us on a certificate granted by the Madras High Court that the case was a fit one for appeal to this Court as it involved two important questions, n; i, mely, the powers of the Government under section 64-A of the Motor Vehicles Act, 1939, as amended by the Motor Vehicles (Madras Amendment) Act, 1948 for the State of Madras (hereinafter referred to as the Act), to interfere with the orders of subordinate Transport Authorities on the ground of propriety and the limits of judicial review which the courts have under article 226 of the Constitution of India.

The appellant and respondent No. 2 had applied for stage-carriage permits in the Mayuram Town Service for routes Nos. I and 2.

These applications, along with others, were considered by the Regional Transport Authority, Tanjore.

By its order dated the 31st of M; ay, 1954, it granted a permit for route No. I to the appellant and for route No. 2 to respondent No. 2. Both the appellant and respondent No. 2 being dissatisfied appealed under section 64 ofthe Act to the appropriate authority, the Central Road Traffic Board (hereinafter referred to as the Board), but the appeals were dismissed by its order dated the 18th of August, 1954. As section 64-A conferred upon the State Government certain powers, which have

Ramanand RamanUd.

The State of Madras and - another

Raman and RamanUd.

The State oj 1.fadras and

another

lmt11n J.

been described in this case as revisional powers, the appellant and respondent No. 2 filed representations thereunder before the State Government against the orders of the Regional Transport Authority and the Board. The State Government set aside the orders passed by the aforesaid authorities and directed that permits for both the routes Nos. l and 2 be issued to respondent No. 2.

Against this order, the appellant filed an application under article 226 of the Constitution in the High Court for the issue of a writ of certiorari. The application was heard by a single Judge who issued the requisite writ. Against his decision there was a Letters Patent appeal by respondent No. 2, which was allowed and the decision of the single Judge was set aside.

The ground upon which the Regional Transport Authority granted the appellant and respondent No. 2 permits for routes Nos. 1 and 2 respectively was that they were experienced and were operating town buses at Kumbakonam. This opinion was approved by the Board which also thought that a certain amount of healthy competition was required in the Mayurarn Town routes. It also considered that the Regional Transport Authority was within its rights in not considering the aspect of sector coverage by muffassil buses of the appellant and respondent No. 2. It appears that respondent No. 2 was covering the entire route No. 1 and the appellant was covering a portion of route No.'2. The State Government in setting aside the orders of the' Regional Transport Authority and the Board passed the' following order: . "As between the claims of Sri Raman & Raman Ltd. and Sri Sathi Vilas Bus Service, the Government consider that it will be in the interest of the public to grant both the permits to Sri Sathi Vilas Bus Servic!ol, Poryar, since he has better facilities fciioperation and will be able to serve the public better. The Government of Madras therefore sets aside as improper the order of the Central Road Traffic Board No.

R 27792/A2/54 dated the 18th of August, 1954 in so far as it confirms the order of the Regional Transport Authority, Tanjore granting one permit of route

No. 1 to Sri Raman & Raman Ltd. and directs that the two permits in question be granted to Sri Sathi Vilas Bus Service, Poryar".

Before dealing with the submissions made on behalf of the appellant, it:would be desirable to make reference to certain provisions of the Act concerning . the grant of permits. Section 42 of the Act prohibits an owner of a transport vehicle from using or permitting it to be used in any public place save in accordance with the conditions of a permit granted by a Regional Transport Authority. Section 43 gives certain powers to the State Government to control road transport. Section 44 authorises the State Government to constitute a State Transport Authority as well as a Regional Transport Authority to perform certain functions mentioned therein. Section 47 sets forth certain matters which a Regional Transport Authority shall bear in mind in deciding to grant or to refuse a stage carriage permit. Section 64 enables a person aggrieved by the order of the Regional Transport Authority, with respect to matters mentioned therein, to appeal to the prescribed authority.

Section 64-A states: "The State Government may, of its own motion or on application made to it, call for the records of any order passed or proceeding taken under this Chapter by any authority or officer subordinate to it, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding and after examining such records, may pay pass such order in reference thereto as it thinks fit".

Mr. Pathak, for the appellant, contended that having regard to the terms of section 64-A, there were two stages for the exercise of power thereunder by the State Government. The first stage was the condition precedent for assumption of jurisdiction for the exercise of that power. A collateral fact had to be decided, namely whether the order passed by any authority or officer subordinate to. the State Government was in fact illegal, irregular or improper. If the decision was in the affirmative, then and then only would the State Government have jurisdiction to revise the

Raman and RamanUd,

The State of Madras and another

ImamJ.

Raman and RamanUd.

The State of Madras and another

Imam}.

order complained against. The decision of the State Government both with respect to questions of fact and law could be examined by a court in a proceeding for the issue of a writ of certiorari and such court in doing so could decide whether the order which was revised by the State Government was or was not illegal, irregular or improper. In the present case, there was no question of illegality or irregularity in the orders of the Regional Transport Authority and the Board. The only question was as to whether these orders were improper. The propriety of an order does not necessarily mean that it must be correct order.

There must be something extraneous to the order itself which made it improper. Merely because the State Government took a different view of the facts to that of the authority or officer subordinate to it would not make the order of such authority or officer improper. The second stage, namely, the passing of an order as the State Government thought fit, could only be reached after a decision had been arrived at on the condition precedent conferring jurisdiction on the State Governµient to revise an order. The substantial ground upon which the State Government revised the order of the authority subordinate to it was that respondent No. 2 had better facilities for operation and would, therefore, be able to serve the public better. The authorities subordinate to the State Government, however, had the representations of the appellant and respondent No. 2, as well as other applicants, which fully stated all material particulars in this respect and it could not be said that these matters were not considered by them. The orders of the subordinate authorities accordingly must be read to mean that as between the appellant and respondent No. 2 both had equal facilities for operation and that things being equal between them in every way, one permit should be _granted for one route to the appellant and another for another route to respondent No. 2.

There could be nothing improper in this. The condition precedent to the exercise of jurisdiction to revise the order was therefore absent and the State Government acted in excess of its

jurisdiction in revising the orders of its subordinate authorities.

Mr. Pathak further contended that there was an error on the face of the .record in the order passed by the State Government as it had refused to consider seniority or experience in motor transport as a factor for the granting of a permit and it thought that it could come to any conclusion it liked and reference was made to paragraph 8 of the affidavit filed on behalf of the State Government in the High Court. On

the!basis of that affidavit and that paragraph, it was also urged that the error on the face of the record was that the Government acted on an erroneous idea of its own jurisdiction.

He further contended that section 64-A was an in valid provision.

In the alternative, he urged that a court or authority, in the exercise of its revisional powers, cannot take a contrary view of the facts to that taken by the subordinate court or authority. Exercise of such revisional power could only be made in cases where the subordinate court or authority had taken a perverse view of the facts and had arrived at a conclusion which no reasonable person could have arrived at.

In support of his first contention, Mr. Pathak relied upon paragraph 116 at page59 ofHalsbury's Laws of England, third edition, Vol. ll.

It appears from an' examination of that paragraph and paragraph 117 at page 60 of the same Volume that there may be cases where the jurisdiction of an inferior tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact.

Such a fact is collateral to the actual matter which the inferior tribunal has to try, and the determination of whether it exists or not is logically and in sequence prior to the determination of the actual question which the inferior tribunal has to try.

In such a case, in certiorari proceedings, a court can enquire into the correctness of the decision of the inferior tribunal as to the collateral fact and may reverse that decision if it appears to it, on the

Raman and Raman Ltd. v.

The State o/ Madras anc.

attother

Ra, nanand Ra1nanLtd. v.

The State of Madras and another

Inia1nJ.

materials before it, to be erroneous.

There may be tribunals, however, which, by virtue of legislation constituting them, have the powers to determine finally the preliminary facts on which the further exercise of their jurisdiction depends.

With respect to them, in such cases, their decision even if wrong on facts or law cannot be corrected by a writ of certiorari. In cases where the fact in question is a part of the very issue which the inferior tribunal has to enquire into, a court will not issue a writ of certiorari, although the inferior tribunal may have arrived at an erroneous conclusion with regard to it. In the present case, if there was at all any collateral fact to be decided, it was whether the appropriate authority had in fact passed any order in respect of which powers under section 64-A could be exercised. It is not disputed that in fact orders were passed by the Regional Transport Authority and the Board, authorities subordinate to the State Government, and that these orders existed when the appellant and respondent No. 2 moved that Government to exercise its powers under section 64-A.

The condition precedent and the existence of a collateral fact in that way for the exercise of powers under that section were therefore present when the State Government exercised its powers. In order to satisfy itself whether the order of an authority subordinate to it was legal, regular or proper, the State Government was not deciding the existence of a collateral fact but the issue itself as to the legality, regularity or the propriety of the order.

The satisfaction of the State Government in this respect would be an expression of its opinion and not the determination of a fact upon which depended its jurisdiction to exercise its powers under section 64-A.

What is the nature of the functions performed under the Act by the Regional Transport Authority, the Board and the State Government in the matter of granting or refusing to grant a permit may now be considered. That they are not judicial is accepted, but, it is said, they are not administrative but quasijudicial and therefore amenable to the jurisdiction of

a court possessing the power to issue a writ of certiorari. In proceedings under sections 4 7, 64 and 64-A of the Act there is no determination of any individual's rights and from that point of view the functions of these authorities may be regarded as executive or administrative. On the other hand, it may be said that a person has the fundamental right to carry on his business of plying buses and therefore has the right to have the statutory functions of these authorities properly exercised in which case they would be quasi-judicial functions.

Assuming this to be so, it has yet to be seen whether the State Government acted in excess of its legal authority.

Chapter IV of the Act contains provisions concerning the control of transport vehicles:· The Act authorises the State Government to constitute a State Transport Authority and Regional Transport Authorities, and under section 43, subject to its provisions, it can control road transport. In the first instance, the authority to grant or refuse to grant a permit is vested in the Regional 'I'ransport Authority, but its order is not final as a dissatisfied party can appeal against the order under section 64 to the appropriate authority.

Before section 64-A was inserted into the Aqt by an Act of the legislature of the State of Madras, it might have been possible to contend that the order of a Regional Transport Authority which had not been appealed against and the order of the appropriate authority under section 64, where an appeal had been made, were incapable of interference by the State Government for lack of statutory authority. By enacting section 64-A, the legislature clearly intended that that should not be so and that the State Government should have the powers to intervene, if it was satisfied that the order in question was either illegal, irregular or improper. In clothing the State Government with such power th~ legislature clearly intended the State Government to decide the issue as to whether any order in question was illegal, irregular or improper. It would not be open to a court exercising the power of certiorari to intervene merely because it might be of the opinion that the view taken

Raman and Raman Ud.

....

The State of Madras and

another

lmamJ.

Ranian and Raman Ud.

The State of Madras and another

Imam]~

by the State Government was erroneous.

The word "propriety" has nowhere been defined in the Act and is capable of.a variety of meanings. In the Oxford English Dictionary (Vol. VIII), it has been stated to mean "fitness; appmpriateness; aptitude suitability; appropriateness to the circumstances or conditions; conformity with requil'.ement, rule or principle; rightness, correctness, justness, accuracy".

If the State Government was of the opinion that respondent No. 2 had better facilities for operation than the appellant and their service to the public would be more beneficial, it could not be said that the State Government was in error in thinking that the order of the Board confirming the order of the Regional Transport Authority was improper.

It is to be remembered that under section 47 of the Act a Regional Transport Authority in deciding whether to grant or to refuse .a permit shall have regard, amongst other things, to the interest of the public generally and the advantages to the public of the service to be provided. Assuming that in the matter of experience there was nothing much to choose between the appellant and respondent No. 2, better facilities for operation of the bus service possessed by respondent No. 2, would be to the interest of.the public generally and an advantage to the public of the service to be provided and therefore was an overriding factor when other things were equal. As between the appellant and respondent No. 2 neither the Regional Transport Authority nor the Board recorded a finding as to which of thetn had the better facilities for transport operation or that such facilities as existed between them were of equal merit.

The State Government did not have, therefore, the advantage of knowing, on the face of the orders of these authorities, what view they took of this matter.

Even if it is assumed that their orders meant that the facilities for operation as between the appellant and respondent No. 2 were of equal merit, still the State Govenment was not in a position to know on what material this opinion was based or that it was a reasonable view. In order to satisfy itself the State

Government examined the materials available to it and came to the conclusion that respondent No. 2 had the better facilities, in other words, it would be unreasonable to hold that respondent No. 2 had not the better facilities. The learned single Judge of the High Court more than once held that he couldnot find that there was no material before the State Government to justify its finding that respondent No. 2 had the better facilities, and he further held that that was a factor which restricted the jurisdiction of the High Court under article 226 of the Constitution.

That should have concluded the matter so far as the High Court was concerned. He, however, thought that it could not be said that the conclusion reached by the State Government was the only •Conclusion possible and a mere disagreement on the conclusions to be drawn from the available materials, wher~ either view was a reasonable one, was not enough to establish that the orders passed by the Board and the Regional Transport Authority were improper within the meaning of section 64-A. The State Government had therefore acted in excess of its jurisdiction. It seems to us, that the order of the State Government as it stands cannot be said to be in excess of its jurisdiction nor can .it be said that in recording a finding that respondent No. 2 had the bet.ter facilities for operation and would serve the public better, it went beyond its powers, in the absence of a finding to the contrary by the authorities subordinate to it. The interests of the public and the advantages to it of the service to be provided were very, if not the most, important factors to be taken into consideration in the matter of granting or refusing to grant a permit.

In the conflicting claims of the appellant and respondent No. 2 concerning the facilities available to them for operation of the bus service, the State Government was bound to decide, in the interests -of the public generally, which of these had the better facilities. It was within the scope of its authority to decide this and a court in certiorari proceedings ought not to interfere with that decision. To hold that the opinion of the Regional Transport Authority and the

Raman and Raman Ud.

The State of Madras and

another

Imam}.

Raman and RamanUd.

The State of Madras and

another

Imam}.

Board that the facilities for operation were equal as between these persons was a reasonable view would be to constitute the court as the final authority in a matter, in which, by the provisions of the Act, that function was accorded to the State Government. We are aot prepared therefore to say that the State Government acted in excess of its statutory authority.

There is no error on the face of the record so far as the order of the State Government is concerned and reference to paragraph 8 of the State Government's affidavit in the High Court does not establish any such thing.

That paragraph was in answer to paragraphs 13 and 14; of the appellant's affidavit and it set out the contentions of the State Government as to fts powers. There is nothing in that paragraph to establish that in fact the State Government had declined to consider seniority or experience in the matter of selection.

No substantial ground was put forward for supposing that section 64-A was an illegal provision. It was within the competence of the State Legislature to insert section 64-A into the Act. It was a reasonable provision in keeping with the entire scheme of the Act concerning transport vehicles and control of road transport.

As to the extent of powers of revision in a court or authority we do not intend to expre.ss any opinion in this case having regard to the view we take that the order of the State Government cannot be interfered with by the issue of a writ of certiorari. .

As regards the limits of judicial review which the courts have under article 226 which is one of the grounds on which the certificate was issued by the High Court, that question has since been considered in the various decisions of this Court, which do not .require recapitulation.

In our opinion, tQ.is is not a case in which it would be reasonable to hold that the State Government acted in excess of its jurisdiction.

The appeal is accordingly dismissed with costs to be paid to respondent No. 2. ·

RAMAN & RAMAN LTD

THE STATE OF MADRAS AND ANOTHER

VIVIAN BosE

JAGANNADHADAS

B. P. SINHA

JAFER IMAM

Art. 226

Central Road Traffic Board

Stste Government

s. 64

Motor Vehicles Act

s. 64

s. 64

G. S. Pathak

R. Ganapathy Iyer

G. Gopalakrishan

B.K.B.

Naidu

Naunit Lal

IMAM

Madras High Court

section 64

Motor Vehicles Act, 1939

State of Madras

article 226

Constitution of India

Mayuram Town Service

Regional Transport Authority, Tanjore

section 64

18th of August, 1954

section 64

Ramanand RamanUd

State of Madras

article 226

Kumbakonam

Mayurarn Town

Raman & Raman Ltd.

Sathi Vilas Bus Service

Sathi Vilas Bus Servic!ol,

Poryar

Government of Madras

Section 42

Section 43

Section 44

Section 47

Section 64

Section 64

Pathak

section 64

Raman

RamanUd

section 64

section 64

section 64

section 64

sections 4

Chapter IV of the Act

section 43

section 64

section 64

Madras

section 64

section 64

Raman Ud

Ranian

section 47

article 226

section 64

Raman

Raman

section 64

section 64

article 226