1. By this petition, the petitioner has prayed for a direction in the nature of writ of certiorari, for quashing the resolution Annexure-A, dated 27-12-1993 annexed to the writ petition. In relief Clause (2), the date has been wrongly given as 8-3-1993. The correct date of Annexure-A as appears from Annexure-A is 27-12-1993. This fact that 8-3-1993 mentioned in the relief clause in the writ petition is a typographical error stands fortified from the fact that in the interim relief clause, the date of Annexure-A ‘is mentioned as 27-12-1993 as is given in Annexure-I.

2. That as per, Annexure-A, the Regional Transport Authority (RTA) in its meeting dated 27-12-1993 considered the application of Rule 1 for grant of permit to run the mini bus in Bellary City on the route mentioned in OPD-CB, Bellary-Mothi Circle, Vaddarabande, Sangam Circle, Gadagichannappa Circle, Durgamma Temple, Havambhavi (up and down) for 10 trips per day, on trial basis and has further directed the secretary to conduct the timing meeting with KSRTC authorities, Bellary, before issue of permit. Feeling aggrieved by the above order of granting permit, this petition has been filed. Notice was issued of this petition, and the service thereof has been deemed to have been made on Rules 1 and 2. I desired that the service be made again, but the petitioner's counsel insisted on hearing and decision of the petition on merit ex parte Learned counsel drew my attention to the earlier order of the court dated 16-8-1989 passed on his application for declaration that notice has been properly served and submitted that the said application has been allowed. No doubt, the service has been accepted to have been made. So I do proceed with the hearing of writ petition ex parte.

3. I have heard the learned counsel for the petitioner. The learned counsel for the petitioner has been required in the first instance to satisfy the court if the petitioner has got any alternative remedy if yes, why the petition is not liable to be dismissed on that ground, in the light of the principles of law laid down by the Supreme Court in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop (India) Limited . 1985 1 SCC 260. In this case, their Lordships have laid down that Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up that the prevention of public injury and the vindication of public justice require it that recourse may be allowed to be had to Article 226 of the Constitution particularly keeping in view that it is a case where there exist good and sufficient reasons to by-pass the alternative remedy provided by statute.

4. The learned counsel for the petitioner submitted that though remedy is provided under the Act vide Section 90 by way of the revision but here is a case where the permit could not be granted as the route in respect of which permit has been granted to run mini-bus i.e, on the route in question is part of nationalised route and is covered by Bellary Approved Scheme, as such in view of Section 104 of the Act the order is without jurisdiction and so the petition need not be thrown or dismissed on the ground of alternative remedy. In support of his contention the learned counsel for the petitioner placed reliance on the Single Judge decision of this Court in Karnataka State Road Transport Corporation v. State of Karnataka . W.P Nos. 23697 to 23704 of 1992, DD. The learned counsel further made a reference to the Division Bench decision of this Court in Kalaivani Ammal v. Karnataka State Road Transport Corporation . W.A Nos. 2388 and 2389 of 1992, DD. He invited my attention to another Single Judge decision of this Court in the case of Karnataka State Road Transport Corporation v. Regional Transport Authority . 1985 1 Kar. L.J 199..

5. I have applied my mind to the above contentions of the learned counsel for the petitioner and to the facts of the case as well as to the authorities referred to above and in my opinion there is no substance in petitioner's counsel's submission and petitioner is to be relegated to have recourse to remedies available under the Act for the reasons hereinafter.

6. It is no doubt true that alternative remedy by itself does not create a bar to this Court's jurisdiction under Article 226 as rule of law. It is a rule of guidance for exercise of judicial discretion that ordinarily the jurisdiction under Article 226 should not be exercised where the party has got an alternative remedy. But there may be some exceptional cases in the sense that either the tribunal or the subordinate court has acted under a provision which is ultra vires or that tribunal or court has exercised jurisdiction not vested in it at all, that the order suffers from lack of jurisdiction or that order impugned is the result of gross negligence of the judicial authority and exercise of the jurisdictional power by the authority in violation or in breach of principles of natural justice and fair play or the like where this Court does exercise its jurisdiction under Article 226 of the Constitution. There may be cases where order is such that the consciousness of the Court is touched, in those cases also the court may, no doubt, exercise its jurisdiction under Article 226 but it is well settled principle of judicial guidance that any party should not be allowed to take recourse under Article 226 of the Constitution to circumvent the remedies provided under law.

7. Learned counsel for the petitioner while submitting that the order is without jurisdiction invited my attention to Section 104 of the Motor Vehicles Act, Section 104 of the Motor Vehicles Act reads thus:—

“Restriction on grant of permits in respect of notified area or notified route:— Where a scheme has been published under sub-section (3) of Section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be shall not grant any permit except in accordance with the provisions of the scheme:

Provided that where no application for a permit has been made by the State Transport undertaking in respect of any notified area or notified route in pursuance of approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area, or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to State Transport undertaking in respect of that area or route”.

8. In view of Section 104 of the Act, if any notified route forms part of the Scheme published under Section 100(3) of the Act, no doubt, permits can not be issued except in accordance with the provisions of the scheme. Whether the notified route is covered by the Scheme issued under Section 100(3) of the Act is a question of fact, such a question of fact has got to be raised that the particular route falls within the scope of the scheme, published under Section 100(3) of the Act, and it is to be asserted and shown by person concerned. Under the scheme there may be total or partial prohibition in the matter of granting of permit. When these questions are raised before the Regional Transport Authority, then the authority may be said to be required to consider and to form an opinion as well as to come to the conclusion if the route in question is covered by such a scheme and whether there is a case of complete prohibition or partial prohibition and thereafter on the basis of the findings on the above question the authority may come to a finding if it can or cannot and should or should not grant permit. Further, whether the notified area is under the scheme of nationalisation is a question of fact and that question of fact had to be raised before RTA or STA concerned in view of Section 104 of the Act. Any way, this question, I am not deciding in one way or the other, as regards the plea that the authority acted without jurisdiction in granting permit at this stage of writ petition. It does not appear to me nor it has been shown or established that it is a pure question of law. There is a mixed question of fact and law. The proper course for the aggrieved party was that they should have raised that plea before the RTA or should have made representation and in such cases where a mixed question of law and fact arises, it is open to this Court to refuse to exercise jurisdiction under Article 226 and compel the party to have the statutory remedy under law.

9. The case of Regional Transport Authority, supra, is of no assistance to the petitioner in view of the facts of the case and in that case not only the plea was raised to the effect the route in respect of which respondents-2 and 3 of that case had applied for grant of permit, did overlap the notified route included in Kolar Pocket Scheme and as such respondent No. 1 had no jurisdiction to grant the permit to private operators, but further in that case prayer was as well made for the appointment and issuance of commission to inspect the route and to find out whether there was any overlapping of notified area or notified route. But the authority did not consider the matter at all nor did try to find out if there was any overlapping. It is the context of these facts of the case that learned Single Judge took the view that there was a case jurisdiction involved, as without investigating the question if route in question did or did not overlap the scheme route (Nationalised Route) the RTA had granted permit to private persons. So it was case exercise of jurisdiction not vested and the observations made therein have got to be read in light facts of the case. Here in the present case no such plea was raised before RTA nor was he required to consider if route in question did form part of scheme published under Section 100(3) of the Act or did that route in question did overlap the notified route.

10. In the case of KSRTC v. State of Karnataka, supra, the learned Single Judge after making reference to the observations made by the Supreme Court has opined that:—

“Therefore, there is an obligation on the part of the concerned RTAs, and STAs, to examine the question whether the route in respect of which the permit is sought for falls within the notified area or notified route, covered by a scheme under Section 103 of the Act. In some of the cases, in fact, the petitioners raised objections for the grant of permits and in fact stated that route survey has to be done to ascertain whether the route overlaps or otherwise over the notified routes. Without examining this aspect of the matter, whether objections are raised or not, the RTAs or the KSTAs. have granted permits to respondents”.

11. The learned Single Judge further observed that:—

“So there is an obligation on the part of the concerned RTA to take notice of the law and give effect to the same and in doing so, must examine before grant of permit whether it overlaps the notified route or not. That exercise has not been done by the authority at all”.

12. Considering the facts and circumstances of the case, the learned Single Judge remitted the matter to the STA for fresh consideration in accordance with law. Aggrieved by this order writ appeals were preferred (Writ Appeal Nos. 2388 and 2389 of 1992). The Hon'ble Judges constituting the Division Bench have observed at page 2 as under:—

“The learned Single Judge has accepted the contention of the KSRTC that the STA ought to have considered the question as to whether the route in question overlaps the nationalised route viz., Kolar Pocket Scheme, Anekal Scheme and Kanakapura Scheme; that the STA has not examined this aspect of the matter and there is no indication in the resolution of the STA that it has applied its mind to this aspect of the matter. The learned Single Judge has taken a view that whenever the question is as to whether the route overlaps the nationalised route, it is the duty of the STA to examine whether there is overlapping or there is only an intersection with reference to the provisions of the scheme as per Section 103(2) read with Section 104 of the Motor Vehicles Act, 1988 (hereinafter be referred to as the ‘Act’)”.

13. The Division Bench after considering the matter took the view that the authorities committed a mistake in granting permit.

14. In the present case, it does not appear that the said question has been raised, as no copy of the objections if any, filed before the RTA has been annexed to this writ petition to show that really the question was raised to the effect that the notified route in respect of which the permit is going to be granted forms part of the nationalised route or route covered under Section 103(2) of the Act or there is overlapping and further there is complete exclusion of private operators from the said route under the scheme. In the present writ petition it is stated that the petitioner's representative had appeared before the second respondent and objected for granting a permit to the first respondent on the ground that entire route is ‘Bellary approved scheme’. But it is not clear whether there is complete or partial exclusion. The proceedings before the RTA do not indicate any such plea to have been raised. What has been contended before the authority is quoted in paragraph 2 of the resolution which reads as under:—

“The D.T.O, KSRTC, Bellary, was present and heard. He has stated that the above permit sought is to be rejected as the said authorities are providing 22 city services in Bellary City to cater to the need of the public, even also they are serving the said services to school-going children and also pleaded that at present two mini buses are kept ready for the said purpose and to be registered immediately and once the said route was granted, it will affect the revenue collection to the KSRTC and requested strongly to reject the said grant”.

15. It appears from the perusal of the above paragraph that no such plea was raised before the RTA that the route in respect of which the permit to run mini bus is being granted to respondent-1 is a part and parcel of the nationalised route or of the scheme under Section 100(3) of the Act. It does not appears to have been pleaded that there was total exclusion of the private operators under the scheme. Any way, I do not record any final finding or observation on the question if permit was granted to respondent in excess of jurisdiction or the like as in its questions of fact and of law are involved in this case and determination of facts is also required which ought to have been raised before the RTA. I hereby dismiss the petition only with the observation that no clear cut question of law relating to jurisdiction or error of jurisdiction has been raised nor is involved as such, so as not to relegate the party to the alternative remedy of filing a revision or moving the authority for granting of a permit in accordance with law, after bringing out necessary facts, so that they may consider and investigate on this question of fact, and to see whether the permit could be granted or not.

16. Petition is hereby dismissed on the ground that the petitioner has got an alternative remedy to approach the statutory authority in the matter by way of filing a revision. Any observation made herein shall not be considered to be affecting the mind of the authority concerned when they are called upon to decide on the question.