Taj Mahal Transports... v. The Secretary, Regio...

1. These related appeals, which are upon practically identical facts, have been instituted from the judgment of Srinivasan J. in W. P. 1466 and 1467 of 1964, under the following circumstances. In both the appeals, the appellant is Taj Mahal Transport (P) Ltd., a stage-carriage operating concern in Tirunelveli Dt. There was a particular route, Palayapettai to Tirunelveli Jn. via Tirunelveli town and Kurukutturai, for which two permits had been assigned. In 1961, a certain Muthiah Asari was the holder of the permits. The appellant concern has a bus relating to another permit and route, namely, Tirunelveli Town to Melapalayam via Kurukutturai and Melanatham. This route and the route relating to the permits of Muthiah Asari, to which we have just referred, have both a common sector of one mile between Tirunelveli Town and Kurukkuturai. Muthiah Asari applied for a variation of the route of his permits, so as to enable his also to ply between Kurukuthurai and Melapalayam. The contention of the appellant is that if this variation be permitted, it would virtually amount to an operation by Muthiah Asari on the identical route for which the appellant has the sanction to operate.

(2) The application by Muthiah Asari for variation of the route was duly notified under the Motor Vehicles Act, but, on that date, the appellant concern had not become an operator on the route Tirunelveli Town to Melapalayam. Hence, the appellant had no opportunity to advance objections to the approval of the proposed variation. After the appellant obtained his permit, he was served with notice in the proceedings by the Regional Transport Authority, in respect of the proposed variation; in the meantime, R. Subba Reddi (second respondent) had become the transferee of the property rights of Muthiah Asari. Admittedly, Subba Reddi (second respondent) made no independent application, nor was there any notification of such an application. He was throughout been seeking to continue the notified applications of Muthiah Asari for variation, claiming to be the successor-in-interest by virtue of the transfer recognised under R. 196 of the Madras Motor Vehicles Rules, and the succeeding rules specifying the procedure.

(3) It was in this situation that the Taj Mahal Transports (P) Ltd., instituted these writ proceedings before the learned Judge (Srinivasan J.), for a writ of prohibition, on the following grounds. Firstly, it is strenuously contended that the proposed variation is not one permitted by the Amended Act, within the ambit of the powers of the Regional Transport Authority. Since, in effect, the approval of such a variation will gravely prejudice the appellant concern, by inevitable competition for the number of trips on the identical route, this attempt by the Regional Transport Authority to assume a jurisdiction that the authority does not possess, should be restrained by the issue of a writ of prohibition. It is the law that such a writ can issue to restrain an inferior tribunal from proceeding beyond its jurisdiction, or erroneously assuming jurisdiction; the writ is of right, and the existence of an alternative remedy, after the variation has been granted, through a statutory appeal, is no bar to the issue of the writ. A writ ought to issue in order to prevent the mischief. Secondly, there has been no independent application by Subba Reddi (second respondent), which has been notified under the law. The second respondent cannot claim to be the successor-in-interest of Muthiah Asari, entitled to continue the applications of that individual for the variation. The Motor Vehicles Act is a self-contained Code, with its own procedure under the provisions of the Act and the rules thereunder; there is no provision for the continuance of such a notified application by a successor-in-interest, and, in the absence of such a provision, the continuance will be illegal. These are the main grounds upon which the issue of the writ of prohibition, in these two related cases, which are identical on the facts was sought for by the appellant.

(4) Per contra, what was really in the nature of a preliminary objection was sought to be urged on behalf of the second respondent. This was simply to the effect that since, admittedly, objections had not been urged to the applications for variation by the appellant concern, under S. 57(3) and (4) of the Act, though this might be inevitable since the appellant concern was not a stage-carriage operator at all in this area in 1961, the appellant concern was precluded altogether from being heard. This is upon the authority of the dicta in Purushotham Bhai Punnambhai v. State Transport Appellate Authority M. P., C. A. No. 762 of 1963 (SC) (5) The learned Judge has referred to, and discussed, all these related aspects, in his judgment. He has considered the effect of Madras Act 3 of 1964, amending both Ss. 48 and 57 of the Motor Vehicles Act, following the observations of this court in the Full Bench decision in Natesa Mudaliar v. Dhanapal Bus Service Private Ltd., Kancheepuram, (FB), particularly the enunciation of the law that a route was not a condition of a stage carriage permit, and that S. 57(8) was not a substantive provision enacting the terms of a stage-carriage permit, but only a rule of procedure. On the question whether Subba Reddi (second respondent) could continue the application of Muthiah Asari, the learned Judge was inclined to think that this could be done, on the authority of Kuppuswami v. Ramachandran, , a decision to which one of us was a party. In any event, the learned Judge thought that it would be difficult to substantiate the contention that the proposed variation was not one permitted by law, within the competence of the power of the Regional Transport Authority. Without finally deciding this point, he was of the view that this should be left to the Tribunal, and could not be assumed to be a matter of erroneous jurisdiction, justifying the issue of a writ of prohibition. The learned Judge was also quite clearly of the view, on the authority of C. A. No. 762 of 1963 (SC), that the appellant concern could not object at all, not having raised these objections at the time of the notification under Sec. 57(3) and (4) of the Act.

(6) There can be no doubt that the arguments, which we have tersely set forth above, do involve certain significant and interesting questions of fact and law. First, there is the question whether the proposed variation is one within the ambit of the power of the Regional Transport Authority. If, patently, that is not the case the contention is at least conceivable that the authority should be restrained by a writ of prohibition. The purpose of this writ is to inhibit or restrain inferior Tribunals from usurping jurisdiction, or proceeding patently beyond the bound of jurisdiction. But, on the contrary if this question of the permissible character of the variation is itself one demanding scrutiny and the assessment of facts, a very important principle is involved in allowing the writ of prohibition to proceed in such a case. For, it could well be maintained that a tribunal has the jurisdiction and power to investigate the existence of its own jurisdiction, or the absence of it : that the Tribunal would do so and arrive at an erroneous conclusion, cannot be assumed. If this is not permitted, quasi-judicial Tribunals simply cannot function, for parties could seek to stifle them by writs of prohibition, sought for on the ground of a possible absence or excess of jurisdiction, has (sic) constraining this court, under Art. 226 of the Constitution, to investigate and to decide this matter, on the merits, in every case. Beyond doubt, this aspect of the principle is of some importance and, for this reason, it might be necessary to refer, briefly, to the catena of decisions available on this aspect, and the vicissitudes of the writ of prohibition in the United Kingdom. There is, next, the question whether the second respondent can be recognised as a transferee for the purpose of continuing as successor-in-interest, the applications originally filed by Muthiah Asari Admittedly, the second respondent had filed no independent applications, nor have such applications been notified. Thirdly, and lastly, there is the question whether the appellant concern should be precluded from advancing its objections, because it did not object and, indeed could not have objected when the applications of Muthiah Asari were notified under S. 57(3) and (4) of the Act.

(7) We are of the view that the question whether the proposed variation is one within the ambit of the power of the Regional Transport Authority, cannot be decided ex facie, upon admitted facts of record, and without the assumption by this court of the task of an enquiry, which is by no means germane to writ jurisdiction. The relevant aspect of this matter can be stated as follows. Following (FB), the legislature enacted Madras Act 3 of 1964, introducing amendments both to Ss. 48 and 57(8) of the Motor Vehicles Act. IV of 1939. Part of the amendment to S. 48 enabled the Regional Transport Authority to vary, extend or curtail the route or routes or the area specified in the permit. But an important saving clause was also enacted, both in the case of variation, and in the case of extension. In the case of variation, the saving clause was that "the termini shall not be altered, and the distance covered by the variation shall not exceed 24 kilometers". In the case of extension, the proviso was that "the distance covered by the extension shall not exceed 24 kilometers from the termini"

In addition to this, in S. 57(8) of the Act, which, as originally stood, related to an application to vary the conditions of a permit by including a new route or routes, or a new area etc, the words

"or by the variation, extension or curtailment of the route or routes of the area specified in the permit"

were introduced. The argument of Sri Venugopal for the appellant concern may now be briefly stated; it is best appreciated by a reference to the sketch included in the typed papers, the accuracy of which is not in dispute. According to the learned counsel, the proposed variation is not a permitted one, for the simple reason that the two termini of the original permits, namely, Palayapatti and Tirunelveli Junction, are not retained intact. On the contrary, a new terminus is introduced, namely, by the route Palayapatti to Melapalayam, and the other terminus. Tirunelveli Jn. is abandoned. Nor is this a permitted extension within the terms of the proviso. For this reason, the Regional Transport Authority would have no jurisdiction to grant this kind of variation of extension, whichever it might be termed. Such an absence of jurisdiction justifies the argument that the mischief of the possible grant of the variation ought not to be permitted to occur. A writ of prohibition should proceed even before this is done.

(8) Obviously, the very argument carried with it its own refutation, in the sense that it demonstrates that there is no patent lack of jurisdiction, as has been argued. On the contrary, the amendment to S. 57(8) and the amendment to S. 48, introduced by Madras Act 3 of 1964, enable the Regional Transport Authority to grant a variation or extension of a route covered by a permit, as the case may be, upon application, and after hearing objections by those affected. Certainly, there are saving provisions enacted in S. 48 itself. But, it is at least a conceivable argument that these do not affect the generality of the power under S. 57(8) of the Act. This apart, it is exclusively a question of fact whether the provisions apply, or do not, in a particular case. In the present case, at least with regard to the proposed alteration, viewed as an extension, it may be a maintainable argument that the authority would have power, under statute, to grant this variation. We are in entire agreement with the learned Judge (Srinivasan J.) that we ought not to anticipate the Tribunal, in its decision upon this mixed question of fact and law. But, we are quite unable to see how it could be contended that the question admits of no controversy in decision, and that it really exposes a patent and basic absence of jurisdiction.

(9) This takes us to the matter of the history of the writ of prohibition in England, and the kind of situation in which the restraint of inferior Tribunals by the issue of such a writ would be appropriate and justified.

(10) In Halsbury's Laws of England, (Simonds Edn.) Vol. 11, at pages 115 and 116, the effect of the numerous decisions on this aspect has been set forth in a few terse and clear propositions of law. Though the writ of prohibition is not a writ of course, it is a writ of right, and not merely discretionary in character. Where the defect of jurisdiction is apparent on the face of the proceedings, and the application is made by a party, the order goes as of right. The order, however, cannot be claimed as of right, unless the defect of jurisdiction is clear. The writ lies both for excess of jurisdiction and absence of jurisdiction. Where proceedings in an inferior court are partly within and partly without its jurisdiction, prohibition will lie against that which is in excess of jurisdiction.

"......... where the Judge for the purpose of ascertaining whether he has or has not jurisdiction, has decided a question of fact on conflicting evidence, the court will not interfere except on very strong grounds....."

Again,

"In any event, where the jurisdiction of the inferior court depends on the judicial determination of facts, the order does not lie, until the court has wrongfully on these facts given itself jurisdiction."

Certain observations of great interest upon the history of this writ, will be found in passages in Mayor and Aldermen of the City of London v. Cox, (1867) LR 2 HL 239. Apparently, at the close of the 17th century, the writ was considered to be purely within the discretion of the court. There was a conflict of case law on this aspect, but later in Burder v. Valey, (1840) 12 Ad and EI 233 (263), the Judges held that if a court of inferior jurisdiction exceeded it, the writ was bound to issue, though there was a possibility of later correction of the defect by appeal. But the writ was not a writ of course, like a writ of summons in an ordinary action. Where an inferior court proceeds into a cause properly within its jurisdiction, prohibition cannot be awarded, till the pleadings raise some issue which the court was incompetent to try. But, if the foundation for jurisdiction was itself defective, prohibition could be immediately applied for. In the Queen v. Justice of Kent, (1890) 24 QBD 181 at 183, Lord Coleridge C. J. Stated that

"if justices have jurisdiction over the subject-matter of the proceedings before them, a prohibition cannot be issued upon the ground that they may make a mistake in law in exercising their jurisdiction"

. A comparatively recent pronouncement in R. v. Tottenham District Rent Tribunal, 1956-2 All ER 863 at pp. 864 and 865 by Lord Goddard C. J. is of great interest on this aspect. The learned Chief Justice observed--

"It would not be at all desirable to lay down any definite rule when a person should go to the Tribunal or when he should come here for prohibition where the objection is that the tribunal has no jurisdiction.... For myself, I should say that where there is a clear question of law not depending on particular facts...... there is no reason why the applicants should not come direct to this court for prohibition rather than wait to see if the decision goes against them, in which case they would have to move for certiorari"

Turning to the cases in this country, we find certain observations of Satyanarayana Rao J. on behalf of the Bench in the Shirur Mutt case; Sri Lakshmindra Theertha Swamier v. Commr. Hindu Religious Endowments, Madras in relation to the writ of prohibition. The learned Judges observed--

"A writ of prohibition lies to prevent an inferior tribunal from exceeding its jurisdiction or even from assuming a jurisdiction which does not vest in it under law...... In deciding the question whether a writ of prohibition should issue or not, the existence of an alternative remedy is, in our opinion, an irrelevant consideration."

In Bengal Immunity Co. Ltd. v. State of Bihar, (S) , the Supreme Court observed that the existence of an alternative remedy may be very material in the context of a writ of certiorari, but where an inferior Tribunal is shown to have usurped jurisdiction which does not belong to it, that consideration is irrelevant, and the writ of prohibition has to issue as of right. In Calcutta Discount Co. Ltd. v. I.T. Officer, , their Lordships were again dealing with an argument that the Tribunal or quasi-judicial Authority could itself dispose of the issue of jurisdiction : the proposition was affirmed that the existence of an alternative remedy, in itself, was per se no ground for declining to issue a writ of prohibition, where it is patent that the tribunal was assuming a jurisdiction that it did not possess.

(11) We have referred to these principles little extensively, for an important reason. The corpus of Administrative law is growing apace, and, everyday, many quasi-judicial and statutory tribunals, which are subject to the jurisdiction of this court under Art. 226 of the Constitution, have to function and dispose of multiple proceedings before them; in many of these proceedings it is conceivable that, inter alia, a contention relating to excess of jurisdiction, involved in the grant of the relief sought for by a party, may be raised. If, in each one of these cases, a party, who might be affected by such a possible decision, can be permitted to come up to this court and ask for prohibition to go, though it might be perfectly probable that the inferior Tribunal would have jurisdiction, upon facts being established in a particular way, this would really imply that many proceedings quite within the competence of such authorities, or which may be ultimately found to be comprised in the jurisdiction, may be stifled at the outset. We do not think that that would be the proper province of the exercise of the power of this court to issue this writ under Art. 226 of the Constitution. If there is jurisdiction over the matter before the Tribunal prima facie and facts canvassed before it, one way or another may affect the issue as to the boundary of that jurisdiction, we think that, the tribunal should be permitted to function, and to determine its own jurisdiction : the writ should not issue to paralyse such an enquiry. In the present case, the argument is put strongly against the issue of the writ. For under the Act as amended, the authority can certainly grant such a proposed variation or extension, provided that certain conditions are fulfilled, the application of which itself will depend upon the precise facts of the case, and the wording of the enactment. We have already stressed that, at least viewed as an extension, it is by no means clear that the proposed variation is one that cannot be granted by the authority. Hence, we entirely agree with the conclusion of the learned Judge that, this is not a proper case at all for the issue of a writ of prohibition.

(12) The next argument of Sri Venugopal for the appellant can be quite briefly dealt with. Indisputably, the Motor Vehicles Act and the rules framed thereunder, may be termed as a comprehensive and complete Code; and, ordinarily, there should be no need to invoke the provisions of other enactments of the pro-cessual law, such as the Civil Procedure Code. But, where, under this Act, the transfer of a permit is not merely recognised, but a procedure is prescribed for such recognition, the question is with regard to the recognition of this substantive right and the incidents thereto, and not merely whether some rule has or has not been framed to enable the transferee to continue the application for a variation of the permit originally filed by his predecessor-in-interest. Even the most self-contained Code may exhibit lacunae in minor particulars, and where the right is indisputable, the Tribunal will not be without inherent power to enforce or recognise the right. In , the Bench specifically held that a revision proceeding against an order declining to grant a variation, may be continued by the legal representative of the deceased applicant; on a parity of reasoning, the second respondent would certainly be entitled to continue the applications of Muthiah Asari. The main point is that the right of property embodied in a permit is transferable and heritable, that this has been recognised, and that such a devolution of interest must carry with it all incidental rights pertaining thereto, such as the right to continue an application for variation by the original holder. For, apart from the property in the permit itself, the application can have no independent existence, and is meaningless. Nor is it essential that, where such a continuance is permitted, there should again be a notification under S. 57(3) and (4) of the Act. This point has also to be held against the appellant.

(13) But, with great respect to the learned Judge, we are unable to agree with him that, on the authority of the dicta in C. A. No. 762 of 1963 (SC), it follows that the appellant cannot be heard at all with regard to the objections to the proposed variation. On the contrary, the facts of that appeal before the Supreme Court were very different, and the decision is totally distinguishable. That was a case in which a concerned society had applied only for one permit, and it put forward no representations whatever with regard to the other route, under S. 57(3) and (4) of the Act, though it could well have done so. Since the objections of the Society were not notified in time, the Society could not intervene and object with regard to the other route, at any stage of the proceedings. The facts here are widely different. The appellant was not in existence as a stage-carriage operator at the time of the notification of the proposed variations, and, naturally enough, no objections were then filed by him. Had it been a mere question of delay in the hearing of those applications by the original applicant Muthiah Asari, we certainly agree that the appellant should be precluded from advancing any objection. But the present situation is that the applications are being continued to an alleged successor-in-interest. If we suppose a case in which the successor-in-interest has no locus standi, though he may claim it, it will at once be obvious that the authority of the judgment of the Supreme Court referred to above, would have no application to that kind of context. Objections can relate either to the proposed variation, or to the capacity of the party to claim to be entitled to continue the application, or may be even personal to the party, such as, unfitness upon any ground of public interest. It is very important to note that though the appellant became a stage-carriage operator subsequent to the Notifications of the applications of Muthiah Asari, his existence has not been ignored; he has been given notice by the Regional Transport Authority, when the successor-in-interest claimed to continue those applications. He has thus a right to be heard, nor is it conceivable that such a right can be restricted to some particular aspect of objection, but as objections personal to the successor-in-interest. We are quite unable to see how the appellant can be precluded from advancing his objections, when it is the successor-in-interest who is claiming the benefit of the variation sought for by the original applications.

(14) Under the circumstances, the writ appeals fail and are dismissed. But we desire to make it clear that no part of our observations in the judgment must be construed as final on the issue of jurisdiction, or the permitted nature of the variation. Those matters must be decided by the Regional Transport Authority, independently, on the facts and the law, and the parties will, of course, have liberty to work out their further remedies as provided for by the law. No order as to costs.

II/D.R.R.

(15) Appeals dismissed.