JUDGMENT

(Delivered by Govinda Menon, J.)

This is an appeal under Cl. 15 of the Letters Patent against the judgment of our learned brother Subba Rao. J. in W.P No. 176 of 1951 by which he refused to set aside the order of the State of Madras dated 1st June 1951, which in its turn set aside the order of the Regional Transport Authority, East Godavari, and granted a stage coach permit to the 2nd respondent for the route Rajahmundry to Tuni via Pithapuram.

On 22nd June 1949, the Regional Transport Authority, East Godavari, by notification under S. 57(3) of the Motor Vehicles Act, 1939, notified a new route Rajahmundry to Tuni via Pithapuram, and invited applications for the grant of one pucca stage carriage permit for operating on the said route. The appellant and the 2nd respondent herein, along with a number of other people, applied for the permit. The Regional Transport Authority granted the permit to the appellant, which order was confirmed on appeal, by the Central Road Traffic Board. Under S. 64-A of the Motor Vehicles Act, an application to revise the order of the Regional Transport Authority was made to the Government who set aside the order of the Regional Transport Authority and issued a permit to the second respondent. Thereupon the appellant applied to this Court for issuing a Writ of Certiorari quashing the order of the State of Madras. Our learned brother, Subba Rao, J. held that there were no grounds for interfering with the order of the State Government and dismissed the application. Hence this appeal against that order.

A preliminary objection is taken by Mr. D. Narasaraju for the 2nd respondent that no appeal lies against an order of a single Judge either issuing, or refusing to issue, a Writ of Certiorari, and that Cl. 15 of the Letters Patent has no application. This is controverted by the learned counsel for the appellant. While contending that the order appealed against should not be interfered with, the learned Advocate-General controverts the position taken by the 2nd respondent that in matters like this no appeal lies. We have therefore to decide whether the contention put forward on behalf of the 2nd respondent can be acceded to or not.

The old Supreme Court of Madras, which was the predecessor of this High Court, inherited the jurisdictional powers of the King's Bench of England under the Charter of 1800, and as such it could issue such prerogative writs within the ordinary original jurisdiction of the High Court. The view once held as laid down in In re Kochunni Elaya Nair(1) and In re Govindan Nair(2) that this Court can issue such writs throughout the entire ambit of its appellate jurisdiction has been held to be unsustainable by the Judicial Committee in Ryots of Garbandho v. Zamidar of Parlakimedi(3) where Viscount Simon L.C in delivering the judgment of the Board held that the High Court at Madras had no power to issue a Writ of Certiorari beyond the limits of the Presidency Town of Madras except in a limited manner as regards British subjects. But this position has been altered by the enactment of Art. 226 of the Constitution which gives power to the High Court, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them. It need therefore hardly be said that this Court has got the power to issue such writs under Art. 225 of the jurisdiction of, and the law administered in, any existing High Court and the respective powers of the Judges therefore in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution. Under this provision therefore this High Court framed rules regulating the proceedings under Art. 226 of the Constitution which is added as Appendix VII to the Appellate Side Rules and is published in the Fort St. George Gazette on the 28th April 1951. Rule 4 therein is as follows:

“Petitions involving an interpretation of the Constitution, or questioning the validity of any Act of Parliament or of the Legislature of any State, shall be posted before a Bench of two Judges. All other petitions shall be posted before a single Judge. Provided that the Judge may direct any petition posted before him to be posted before a Bench of Judges.”

It is in pursuance to R. 4 that this writ petition came on for hearing before a single Judge with the result which we have mentioned above. The learned Counsel contends that since Art. 226 provides for the issuing of a writ by the High Court and since the power was already exercised by a single Judge of the High Court in accordance with the rules framed under Art. 225, the power of the High Court to issue a writ in this, case has been exhausted and there can be no appeal to the High Court from the decision of the High Court. In other words, what he contends is, the High Court, when once a single Judge has disposed of the matter, has become functus officio because the order must be deemed to have been passed by the High Court as such and not by any single Judge. In this connection our attention was invited to Arts. 132 and 133. Art. 132 deals with the appellants jurisdiction of the Supreme Court in appeals from High Courts in certain cases and this Article provides that an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceedings, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution and Art. 133 deals with the appellate jurisdiction of the Supreme Court in appeals from High Courts in regard to civil matters. Pointed reference was made to Cl. 3 of Art. 133 wherein it is laid down that notwithstanding any thing in this Article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court. The contention that is put forward is that in the case of ordinary civil proceedings where the judgment, decree, or final order is made by a single Judge of the High Court, there shall be no appeal to the Supreme Court. But under Art. 132 even where a single Judge decides a question which involves a substantial question of law as to the interpretation of the Constitution, an appeal shall lie to the Supreme Court. Therefore the learned Counsel wants us to hold that the proceeding regarding the issuing of or the refusal to issue, a writ of certiorari is not a proceeding under Art. 133 but should be deemed to be a proceeding as envisaged under Art. 135, the residuary Article regarding appealability, or might come under Art. 132, and such being the case it should be held that when an appeal lies from the decision of a single Judge straight to the Supreme Court, it will be anomalous to hold that an appeal lies to a Bench of this Court. We have to exclude from consideration Art. 132 because it is admitted that the proceedings in question do not involve any substantial question of law as to the interpretation of the Constitution for, if it involved, the matter would have been heard by a Bench of this Court under R. 4 and this vexed question regarding appealability would not have therefore arisen. Does Art. 133 relating to the appellate jurisdiction of the Supreme Court in appeals from High Court regarding civil matters include writs of certiorari where no question regarding the interpretation of the Constitution is involved? In C.M.P Nos. 3345, 3346 and 3347 of 1950 to which one of us was a party, the scope and ambit of Arts. 132 and 136 have been considered by this Court and the portion of the judgment relating to this aspect of the matter is as follows:

“By a process of reasoning based upon necessary and explicit exclusion, if we are to consider the meaning of the word “matter” in Art. 135, it seems to us that the word “matter” used in Art. 135 should not be understood as meaning a civil or criminal proceeding, because both these subjects were specifically dealt with under Arts. 133 and 134. Art. 132 refers to civil, criminal or other proceeding and is all-comprehensive and therefore in whatever nature of proceedings, be it civil, criminal, admiralty, intestate or matrimonial, a question regarding the interpretation of the Constitution arises, then an appeal will lie under Art. 132. So far as other proceedings are concerned, Art. 133 lays down the scope and limit of the right of appeal in civil appeals. In the same way, does Art. 134 provide for the scope and limit of the right of appeal in a criminal proceeding? Therefore it seems to us that the matter referred to in Art. 135 should be understood as meaning a matter which is neither civil nor criminal and by the application of the maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another—it seems to us that the word “matter” in Art. 135 should be deemed to exclude both civil and criminal proceedings.”

It therefore becomes evident that if the subject-matter of a writ of certiorari is a civil proceeding, then Art. 133 is the provision of law which provides for an appeal to the Supreme Court and in such a case from the decision of a single Judge of a High Court there will be no appeal to the Supreme Court unless Parliament by law otherwise provides in such a matter. Cl. 15 of the Letters Patent will apply and there will be an appeal to a Bench from the decision of a single Judge.

We do not feel any doubt regarding the question as to whether the matter involved in this appeal is a civil proceeding or not. It is not a criminal proceeding nor is it in the nature of miscellaneous proceedings such as matrimonial, testamentary, admiralty or other jurisdictions of the High Court. At page 874 of Vol. 9 of Halsbury's Laws of England, 2nd Edn., it is stated as follows:

“The House of Lords has jurisdiction to issue a writ of certiorari to any Court in which an indictment has been found against a peer for treason or felony, requiring such indictment to be removed into the High Court of Parliament or into the Court of the Lord High Steward,

All other original jurisdiction to grant the writ of certiorari now resides in the High Court of Justice, any division of which may exercise any part of the jurisdiction of the High Court, subject, however, to any express provision of the rules of the Supreme Court or of the Crown office.

There is a right of appeal to a Judge in chambers from the decision of a master in the King's Bench division granting or refusing the writ of certiorari and to a divisional Court from a Judge in chambers in the King's Bench Division.

An appeal lies to the Court of appeal and thence to the House of Lords from a decision of a Judge of the Chancerry Division granting or refusing the writ of certiorari in an equity action or matter.

An appeal to the Court of Appeal and thence to the House of Lords lies from a decision of the King's Bench Division granting or refusing the writ of certiorari except in cases which are of a criminal character.”

When once it is conceded that it is a civil proceeding, the question may then arise as to whether it is the original jurisdiction or appellate jurisdiction. In Ryots of Garabando Etc., villages v. Zamindar of Parlakimedi Leach, C.J, and Madhavan Nair, J., at page 818 observe as follows:

“Under clause (b) a litigant has the right of appeal to His Majesty from any decree or final order passed by a High Court in the exercise of its original civil jurisdiction. It is conceded by the learned Advocate for the respondent that the issue of a writ of certiorari means the exercise of original jurisdiction, but he says that it does not mean the exercise of “original civil jurisdiction” within the meaning of the clause. The distinction here is between “civil” and “criminal”. The order complained of referred to a civil matter as opposed to a criminal matter, namely, a decision of a Revenue Court in a revenue case. It was admittedly passed in the exercise of original jurisdiction and in the circumstances it could only have been passed in the exercise of civil jurisdiction. Therefore it was an order passed in the exercise of original civil jurisdiction.”

Therefore, unless the matter expressly relates to criminal jurisdiction, it must be taken that the issuing of writs of certiorari will ordinarily be an original civil proceeding. Observations of a like nature can be found at page 497 in the judgment of the Privy Council in Ryots of Garabando v. Zamindar of Parlakimedi . In Moulvi Hamid Hussan Nomani v. Banwarilal Roy their Lordships of the Judicial Committee in dealing with the jurisdiction to issue a writ of quo warranto observe as follows:

‘It cannot be disputed that the issue of such writs is a matter of original jurisdiction.”

Again at page 36 it is stated:

“It is plain that in a matter coming before the Court on a high prerogative writ there could be no local Court having jurisdiction.”

In Venkataratnam v. Secretary of State for India (4), it is observed that since the jurisdiction to issue a writ of certiorari is original it cannot be directed against the Government. These authorities make it plain that the power to issue the writ is original and the jurisdiction exercised is original jurisdiction. It may be that under S. 205 of the Government of India Act, 1935, an appeal lay direct to the Federal Court from the decision of a single Judge of a High Court where the matter involved was one regarding the interpretation of the Constitution. But even in such a case it has been held that if the appellant preferred to exercise his right of appeal to the Federal Court in preference to first exercising a right of appeal to a Division Bench of the High Court, then he loses the right to raise any other questions which he is allowed to argue under Sub-R. (2) of S. 205 [See Rao Bahadur Kunwarlal Singh v. The Central Provinces and Berar (5)]. This decision has been followed in Iqbal Ahmed v. All. High Court(6) where it is observed that the judgment of a single Judge of the Allahabad High Court was capable of being challenged in the Federal Court without taking an appeal in the first instance to a Division Bench of the same High Court. But all these would not show that where the matter is one which comes under Art. 135, the prohibition regarding an appeal direct to the Supreme Court without having recourse to a Bench of the High Court can be nullified. The reason for prohibiting an appeal from a single Judge's decision to the Privy Council has been considered in Hurish Chunder Chowdry v. Kali Sundari Debi(7) and these observations have been followed in Sabapathi Chetty v. Narayanaswami Chetti (8). In this connection we may refer also to Vaman Ravji v. Nagesh Vishu (9). We may also refer to the circumstances that in Emberumanar Jeer Swamigal v. H.R.E Board, Madras(10) an appeal was entertained against the decision of a single Judge under Cl. 15 of the Letters Patent refusing to issue a writ of certiorari and it is noteworthy that eminent lawyers like the present Chief Justice and the late Mr. B. Sitarama Rao who appeared for the respondents did not think it worthwhile to raise even a contention that no appeal lies under Cl. 15 of the of the Letters Patent. That the order appealed against is a “judgment” is clear from the definition of the word “judgment” in Tuljaram Row v. Alagappa Chettiar and we need not elaborate on that aspect of the matter any further.

It is further contended that even if the power to issue a writ of certiorari is a civil proceeding, still it is in the nature of a revisional proceeding and therefore Cl. 15 of the Letters Patent cannot be made applicable. According to the amended Cl. 15 of the Letters Patent no appeal lies from the decision of a single Judge made in the exercise of revisional jurisdiction. We have already expressed the opinion that the exercise of jurisdiction is in the nature of original civil jurisdiction and not revisional. In order that the jurisdiction should be revisional, there must be judicial proceedings against which a revision is preferred. It cannot be said that the Government of the State, when acting or refusing to act under S. 64-A of the Motor Vehicles Act, is acting as a judicial tribunal though the marginal note to the section refers to the jurisdiction as revisional jurisdiction. The Regional Transport Authority and the Central Road Traffic Board cannot be called Courts of law though they exercise quasi judicial functions and when the Government purports to act under S. 64-A either confirming or setting aside an order of the Central Road Traffic Board or the Regional Transport Authority, it might be exercising a revisional jurisdiction but not functioning as Court of law. The revisional jurisdiction contemplated under Cl. 15 of the Letters Patent refers to revisions from Subordinate Courts and not from inferior quasi judicial tribunals. Neither under S. 115 Civil Procedure Code, nor under S. 107 of the Government of India Act, 1919, did the High Court have any jurisdiction to interfere in revision against any order passed by a quasi judicial tribunal or authority. Such being the case, when Cl. 15 of the Letters Patent speaks of an order made in the exercise of revisional jurisdiction it can only be understood as a jurisdiction exercised by the High Court over a Subordinate Court. We are therefore of opinion that the preliminary objection is devoid of merits and should be overruled.

Turning now to the merits of the appeal, we are pressed with the argument that the State in the order of the Government under S. 64-A dated 5th July, 1951 that the grant of the permit in question to the 2nd respondent will enable him also to have two permits on the route Rajamundry to Tuni via Pithapuram and therefore the appellant and the 2nd respondent who are in all other respects on the same footing will be similarly placed, is based upon an objection not put forward before the original tribunal, viz., the Regional Transport Authority. Subba Rao, J. was of opinion that this circumstance that the appellant was plying two buses on the route Rajahmundry of Tuni via Jaggampeta was before the Central Road Traffic Board in the grounds of appeal. That being the case, it is not quite correct to say that the matter was taken into consideration by the Government for the first time. The procedure to be followed by the Regional Transport Authority in considering applications for stage carriage permits is laid down in S. 57 of the Motor Vehicles Act which should be taken to be the substantive law regarding such matters. S. 57 speaks of the procedure in applying for and granting permits. Sub-S. 3 of that Section postulates that on receipt of an application for a stage carriage permit from a person the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date not being less than thirty days from such publication, on which, and the time and place at which the application and any representations received will be considered. Sub-S. 4 lays down that no representations in connection with an application referred to in Sub-S. 3 shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation. What is contended here is that the 2nd respondent did not make any representation in answer to the appeallant's application for a stage permit to the Regional Transport Authority as contemplated by Sub-Ss. (3) and (4) of S. 57 and therefore it was not competent for the Regional Transport Authority to consider the existence of such an objection in granting or refusing to grant a permit to the appellant. If that is so, the Regional Transport Authority should not have taken notice of such an objection. A fortiori the Central Road Traffic Board should not have considered the objection, and much more so is the Government prevented from considering the objection under S. 64-A in revision. Since the Government has taken into consideration a circumstance which the Regional Transport Authority and the Central Road Traffic Board are prevented from considering under S. 57, Sub-S. 4 the fact that the basis of the reversing order of the Government is such a new fact which it is precluded from considering renders the order of the Government as one made without jurisdiction and therefore ought to be quashed. This is the gist of the argument of the learned Counsel for the appellant. Our, attention was invited to S. 12 Cl. (3) of the Madras, Buildings (Lease and Rent Control) Act wherein there is a provision that the appellate authority has the power to make further enquiry; whereas, under the Motor Vehicles Act S. 64 does not confer upon the appellate authority any power other than what the original tribunal had. S. 13 of the Madras Buildings (Lease and Rent Control) Act was also brought to our notice. By it the Government is empowered to act in certain circumstances. No useful propose can be served by comparing the powers vested in the Government or subordinate quasi-judicial authorities arising under circumstances which are not similar to the conditions necessary for the grant of stage carriage permits and we therefore, do not wish to elaborate that aspect of the question. The Full Bench decision of the Allahabad High Court in Motilal v. Utter Pradesh Government interpreting the various sections in the Motor Vehicles Act and laying down that it was open to the State Government to take upon itself the task of restricting the use of highways and other allied subjects was very much relied upon by the learned Counsel for the appellant. Even here, it seems to us that for the decision of the present dispute nothing much useful can be obtained from that decision. The substance of that decision is that it is open to the Government to restrict the use of the highways by particular individuals or bodies, by which act the Government is empowered to run its own stage carriages. As the decision in Sri Rama Vilas Service Ltd. v. The Road Traffic Board, Madras was prior to the enactment of S. 64-A of the Motor Vehicles Act, we do not think it necessary to consider the points of law elaborately discussed in that judgment. It is now settled that the power of the Government in exercising its revisional functions should not be arbitrary, wanton or mala fide. The only question is whether in the present case the Government has acted in that manner.

On behalf of the 2nd respondent it has been contended before us that there is nothing in the Motor Vehicles Act which prohibits the Regional Transport Authority or the Central Road Traffic Board from taking into consideration matters other than the representations contemplated by S. 57, Sub-Cl. (c). In this connection we have to carefully consider the implications of S. 47 of the Act, which, as we have already stated, lays down the substantive law regarding the procedure of the Regional Transport Authority in considering the application for stage carriage permits. In deciding whether to grant or refuse a stage carriage permit the Regional Transport Authority shall have regard to the matters mentioned in Sub-Cls. (a) to (f) of Sub-S. (1) of S. 47.

Sub-S. (1) of S. 47 is in the following terms:

“A Regional Transport Authority shall in deciding whether to grant or refuse a stage carriage permit have regard to the following matters, namely:—

(a) the interest of the public generally;

(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;

(c) the adequacy of existing road passenger transport services between the places to be served, the fares charged by those services and the effect upon those services of the service proposed;

(d) the benefit to any particular locality or localities likely to be afforded by the service;

(e) the operation by the applicant of other transport services and in particular of unremunerative services in conjunction with remunerative services, and

(f) the condition of the roads included in the proposed route or routes,”

and shall also take into consideration any representation made by persons already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority within whose jurisdiction any part of the proposed route or routes lie or by an association interested in the provision of road transport facilities.”

Therefore the Regional Transport Authority should consider matters mentioned in these sub-clauses before granting or refusing to grant a permit. One of them is Sub-Cl. (a), namely, the interest of the public generally and another is Sub-Cl. (e) namely, the operation by the applicant of other transport services and in particular of unremunerative services in conjunction with remunerative services. In addition to the matters, the Regional Transport Authority shall also take into consideration any representations made by persons already providing road transport facilities along or near the proposed route or routes, representations made by any local authority or police authority within whose jurisdiction any part of the proposed route or routes lie or by any association interested in the provision of road transport facilities. It is therefore clear that apart from the objections put forward by individuals against the granting of permits, the Regional Transport Authority shall also consider these matters. In our opinion, the consideration mentioned in S. 47 should be in addition to the objections raised under Sub-S. (3) to S. 57. On behalf of the State Government various decisions where the meaning of the expression “having regard to” occurring in other statutes were considered and decided were cited before us. In Venkanna v. Receiver, Medur Estate the expression “having regard to” in S. 40, Sub-S. 3 of the Estates Land Act had to be discussed. In this case the expression was “due regard to the consideration in Sub-Cls. (a) to (c) of Cl. (3)”, and this was interpreted by Sadasiva Aiyar and Spencer JJ. as “not restricting the authority to the three considerations referred to in those sub-clauses and that it does not mean that any one of the considerations is entitled to more weight than the others.” That is, the trend of the learned Judge's observations is to the effect that when the authority or a Court is directed to pay due regard to certain considerations it does not necessarily mean that such authority or Court cannot take into consideration matters other than those specifically mentioned therein. All that the direction necessitates is that these considerations should not be left out of account. There is no inhibition against the taking into consideration of matters other than these considerations. To the same effect is the decision in Mardda Samigadu v. Paida Srinivasalu Reddi . Similar observations that the authority or Court is not strictly bound to adhere only to such considerations where the expression used is “having regard to” or “due regard” can be found in Valluri Narasimha v. The Ryots of Faddamamidipalli and Ryots of Garabandho v. Zamindar of Parlakimedi . This aspect of the matter has been recently considered by Subba Rao J. in a Writ Petition No. 177 of 1951 on the 14th instant, and we are in entire agreement with the observations made by the learned Judge. As the matter has been elaborately discussed in that judgment, we do not propose to re-state them again. As observed by the learned Judge,

“one of the principles is that under S. 47 of the Act, the Regional Transport Authority in issuing or refusing to permit shall have regard to all matters mentioned in the section. The section is not exhaustive. Though the authority has no jurisdiction to issue or refuse a permit without taking the matters mentioned therein (into consideration), the section does not in terms exclude from the consideration other matters germane to the question to be decided.”

It cannot be disputed that the fact that appellant had two stage carriage permits on the route Rajahmundry to Tunni via Jaggampeta on that date when the Regional Transport Authority considered the grant of permit, now under consideration was a circumstance existing on that date and known to the Regional Authority and therefore could be taken by it into consideration apart from representations under S. 57(3) as well as matters referred to in Sub-Cls. (a) to (f) of Sub-S. 1 of S. 47 of the Act. If it is possible for the Regional Transport Authority to take these matters into consideration, in our opinion, there is nothing that prevents the Government from considering them. But Mr. Nambiar argues that there is nothing to show that the Regional Transport Authority considered this aspect of the case, and if it did not, for the first time it is not open to the Government to refer to a matter of this kind in setting aside the order of the Central Road Traffic Board. We are not satisfied that the existence of a fact so well known to the Regional Transport Authority was not before its mind when it granted the permit to the petitioner. The following observations of Subba Rao, J. in W.P No. 176 of 1951 from which this Letters Patent Appeal has arisen have our entire concurrence:

“It is a question of fact and also of opinion in each case whether the grant of a particular permit to an individual will be in the interests of the public or not. It may be, one tribunal may think that issuing permits to the same individual may be in the interests of the public. Another tribunal may come to a different conclusion. The Government obviously thought that giving equal opportunities to the two competing applicants would avoid unnecessary competition between them which ultimately might be in the interests of the public.”

We are, therefore, of opinion that the action of the Government in considering the fact that the appellant had two carriage permits between Rajahmundry and Tuni via Jaggampeta can fall within Sub-Cl. (a) or (e) of Sub-S. 1 of S. 47.

It is next contended that there is an obvious error on the face of the record because at the time the Government passed the order the appellant had only one permit, the other permit having already been transferred after the order of the Regional Transport Authority. The second respondent contends that the said transfer was benami because the transferee is the son-in-law of the appellant. We are not called upon to decide that question in this appeal because at the time the Regional Transport Authority passed its order, the appellant was in possession of two permits and whatever happened subsequent to that date is not a matter relevant for consideration when the Government passed its order. It seems to us, therefore, that the order of the learned Judge is perfectly correct and cannot be interfered with.

This appeal fails and is dismissed. Since the preliminary objection has failed we direct each party to bear his own costs.

V.C.S