Tirath S. Thakur, J.:—

These Writ Petitions filed by the Karnataka Road Transport Corporation raise common Questions of Law and are therefore being disposed of by this common Judgment.

2) The grievance made by the petitioner-Corporation in all these Petitions is directed against the grant of stage carriage permits to the Respondent-grantees by the Regional Transport Authority, Shimoga. The petitioner contends that the grants in question are in violation of the Shimoga Scheme which totally excludes the private operators from the routes notified under the same. According to the petitioner, the grants in question over-lap the notified routes and are therefore wholly incompetent and in blatant violation of Section 104 of the Motor Vehicles Act, 1988.

3) I have heard Mr. Prakash Shetty, learned Counsel appearing in all these Petitions on behalf of the Corporation and Mr. Krishna Swamy, learned Counsel appearing for some of the grantees. The rest of the grantee-Respondents have remained absent even though served.

4) Mr. Shetty argued that the grants in question were in violation of the principles of Natural Justice as the same had been made without a due and proper notice to the petitioner-Corporation who was entitled to oppose the making of any such grants in respect of routes on which it enjoyed total monopoly under the Shimoga Scheme. In the alternative, he submitted that the grants in question were hit by the provisions of Section 104 of the Motor Vehicles Act, as the permits in question had been granted by the R.T.A concerned, in respect of the routes which were duly notified under the Scheme in question.

5) Mr. Krishnaswamy, learned Counsel appearing for the Respondent-Grantees on the other hand urged that the present Writ Petitions were not maintainable as the petitioner-Corporation had an equally efficacious remedy available to it by way of a revision before the Karnataka State Transport Authority, in terms of Section 90 of the Motor Vehicles Act. He contended that the question as to whether there was or was not any over-lapping on a notified route was a mixed question of law and fact which cannot be determined in the extraordinary Writ Jurisdiction exercised by this Court under Article 226. Placing heavy reliance upon a Single Bench Judgment of this Court in K.S.R.T.C v. Vasthanna . ILR 1995 KAR 591. Mr. Krishnaswamy urged that whenever such a question was raised for adjudication, the party doing so is duty bound to resort to the alternate remedy available to him under law. In the alternative Mr. Krishnaswamy, urged that the Respondent-Grantees having made substantial investments on the purchase of vehicles etc., should be allowed to continue plying the said vehicles till such time the matter was re-examined by the R.T.A concerned. He submitted that such a course had been adopted by this Court in similar Cases while remitting the matters back to the R.T.A concerned for re-consideration and fresh orders.

6) The legal effect of a Scheme published under Section 100(3) of the M.V Act, 1988, which corresponds to Section 68(d)(3) of the 1939 Act, is no longer res-integra having been authoritatively settled by the Apex Court in a large number of Judgments starting with Abdul Khader Saheb v. Mysore Revenue Appellate Tribunal . 1973 1 SCC 357 where the Apex Court approved the view taken by this Court that when once on a route or a portion of the route there is total exculsion of the operation of the Stage carriage services by operators other than State Transport Undertaking by virtue of a clause in an approved Scheme, the Authorities granting permits under the Motor Vehicles Act, should refrain from granting any permit contrary to the Scheme.

7) This position was reiterated by the Supreme Court in a later Judgment in the case of Mysore State Road Transport Corporation v. Mysore State Transport Appellate Tribunal . 1974 2 SCC 750 in which the legal position was summed up thus:—

“Any route or area either wholly or partly can be taken over by a State Undertaking under any Scheme published, approved and notified under the provisions of Chap. IV-A of the Act inserted by Section 62 of Act 100 of 1956. If therefore, the Scheme prohibits private transport owners to operate on the notified area or route or any portion thereof, the Regional Transport Authority cannot either renew the permit of such private owners or give any fresh permit in respect of a route which overlaps the notified route. In considering the question whether when one party has a monopoly over a route, a licence can be granted to any other party over any part of that route, the distinction between “route” and “highway” is not at all relevant. Where a private transport owner makes an application to operate on a route which overlaps even a portion of the notified route, then that application has to be considered only in the light of the scheme as notified. If any conditions are placed then those conditions have to be fulfilled and if there is a total prohibition then the application must be rejected. There is no justification for holding that the integrity of the notified scheme is not affected if the overlapping is under five miles or because a condition has been stipulated in the permit that the operators will not pick up or set down any passengers on the overlapped route”.

8) In Adarsha Travels Bus Services v. State of U.P . 1985 4 SCC 557 the Supreme Court held that where a route is nationalised under Chapter IV(A) of the 1939 Act, a private operator plying a stage carriage permit over another route but which has a common over-lapping sector with the nationalised route cannot ply his vehicle over that part of the over-lapping common Sector, even with corridor restrictions that is not to pick-up or drop passengers on the over-lapping part of the route.

9) In Ramakrishna Varma v. State of U.P . 1992 2 SCC 620 the Supreme Court held that a draft Scheme under Section 68(c) and approved under Section 68(d) of Chapter IV(A) of the repealed Act, was the law and had over-riding effect. The Court further held that the Scheme operated against every one unless modified and excludes private operators from the area/route or a portion thereof covered under the Scheme except to the extent permitted under that Scheme itself. The right of private operators to apply for and to obtain permits under Chapter IV of the repealed Act, stood frozen and prohibited. The result was that the nationalisation of a route became final and to that extent a Regional Transport or State Transport Authority, could not grant a permit which had the effect of offending in any manner the Scheme or the spirit behind the same.

10) Let us then turn to the provisions of Chapter VI of the 1988 of which relates to the State Transport Undertaking. What is significant is that Section 98 of the Act which appears in this Chapter gives to the provisions of Chapter VI over-riding effect over those contained in Chapter V. In terms of Sections 99 and 100 if a State Government is of the opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated Road Transport Service, it is necessary in public interest that the Road Transport Service in general or any particular class of such service in relation to any area, or route or a portion thereof should be run and operated by the Transport Undertaking, whether to the exclusion, complete or partial, or otherwise, the State Government may formulate a proposal regarding a Scheme giving particulars of the nature of the services proposed to be rendered, the area or the route proposed to be covered and other relevant particulars respecting thereto. In terms of Section 100 upon publication of any such proposal, regarding a Scheme and upon consideration of objections if any received in response thereto, the State Government may approve or modify such a proposal. The Scheme relating to the proposal as approved is in terms of sub-section (3) of Section 100, final from the date it appears in Official Gazette and is called the ‘Approved Scheme’. Section 104 of Act, places restrictions on the State Transport Authority, as well as the R.T.A as the case may be, against the grant of any permit except in accordance with the provisions of the Scheme. The provisions of Section 104 may be extracted at this stage.

“Section 104 Where a Scheme has been published under sub-section (3) of Section 100 in respect of any 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 an approved Scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permit to any person in respect of such notified X X X X route.”

The grant of permits is governed by Chapter V of the Act. Section 71 of the Act prescribes the procedure to be followed by R.T.A in considering an application for grant of a Stage Carriage Permit. It inter alia provides that the Regional Transport Authority, shall, while considering an application for a Stage Carriage Permit have regard to the Objects of the Act. Similarly, Section 80 of the Act, which also appears under Chapter V regulates the procedure in applying for and granting permits. It inter alia provides that an application for a permit of any kind may be made at any time and that the R.T.A shall not ordinarily refuse to grant an application for a permit of any kind made at any time under the Act.

11) From a plain reading of Sections 71 and 80 of the Act, it is apparent that while the Act, has substantially liberalised the provisions relating to the grant of permits, the Authorities granting the same, are of necessity required to keep the purpose of the Act in view, while granting or refusing any such applications. This position was noticed by the Supreme Court in Mithilesh Garg v. Union of India Etc. Etc. . 1992 1 SCC 168 where the Apex Court held that the liberal policy of grant of permits under Section 80 of the Act, was directed to eliminate corruption and favouritism in the process of granting permits, eliminate monopoly of a few persons and make the operation on a particular route economically viable and encourage healthy competition to bring about efficiency in the trade. The laudable objects behind the liberalisation in the matter of grant of permits notwithstanding the Supreme Court in Ramkrishna Varma's Cases, categorically ruled that since the provisions of Chapter V under which the grant of permits is regulated are subject to the provisions of Chapter VI by reason of the over-riding effect given to the provisions of the latter by Section 98 of the Act, the existing Schemes under the repealed Act, or those made under Chapter VI of the 1988 Act, shall have over-riding effect on Chapter V notwithstanding any right given to private operators in Chapter V of the Act.

12) It therefore follows that an application made to the Regional or the State Transport Authority, by any one seeking a permit has to be considered by the Authorities concerned by reference to the provisions of Chapter V and VI both. While under Chapter V, and in particular in terms of Section 80 of the Act, the Authority concerned, is not supposed to ordinarily refuse the grant of a permit, in terms of Section 104 of the Act contained in Chapter VI there is prohibition against the grant of any such permit except in accordance with the provisions of any Scheme notified under Section 100(3) of the Act. This implies that while an Authority, considering an application for the grant of a permit can look to the enabling provisions of Section 80 of the Act, it can hardly afford to ignore the disabling provisions contained in Section 104. For a proper exercise of jurisdiction by the Authority, it is necessary that it keeps the provisions of both the Sections in view while taking a final decision in the matter. This is so because, any decision taken by the Authority, without having regard to the restrictions placed upon it, by the provisions of a Statute would invalidate such a decision and amount to an improper exercise of power vested in it. Stated conversely any exercise of power by the Authority concerned under Section 80 of the Act, would be defective if the same does not measure upto the provisions of Section 104. In other words, the jurisdiction of an Authority, to grant a permit depends upon the absence of any disabling feature as envisaged by Section 104. In case there is a disabling factor as contemplated by Section 104 the Authority considering the application for the grant of the permit would have no jurisdiction to grant a permit no matter the power to do so is liberally conferred upon it by Section 80. What follows is that the Authority is under an obligation to show respect to the provisions of Section 104 and go into the question as to whether there exist a Scheme under Section 100(3) of the Act, and if so, whether the same is one of partial or total exclusion of the private operators. It is only if the Authority addresses itself to these questions that it can possibly take a proper decision in the matter. To arrive at a proper decision, on these questions the Authority shall be required to examine the Scheme as also the question as to whether the route on which the petitioner seeks a permit would over-lap either wholly or in part any notified route under any such Scheme. This may inturn require a route survey or collection of the requisite facts by some other mode by which the Authority can with reasonable certainty arrive at a proper conclusion. Since the very jurisdiction of the Authority to grant or refuse to grant a permit would depend upon the existence or non-existence of a Scheme and the possible overlapping on the route notified thereunder the determination of these facts can be safely styled as determination of jurisdictional facts.

I am supported in the view that I have taken by a Single Bench Judgment of this Court in K.S.R.T.C v. R.T.A . 1985 1 KLJ 199., Swami, J., as His Lordship then was relying upon a Full Bench Judgment of this Court in M.S.R.T.C v. M.R.A.T . 1976 1 KLJ 148. observed thus:—

“Therefore, it becomes necessary for the R.T.A or the S.T.A as the case may be, in all such cases where the routes applied for overlap the notified routes included in the approved Schemes of total exclusion, to determine whether there is overlapping or not. Such a determination is a condition precedent for the exercise of jurisdiction by the authority in as much as if there is overlapping, the application will have to be rejected without going into the merits in as much as the authority will not have jurisdiction to grant permit on such a route. On the contrary, if there is no overlapping, the authority will have jurisdiction to consider the application on merits.

Even in cases where the approved scheme is one of partial exclusion as per the aforesaid decision of the Full Bench, the authority is required to be satisfied that by such grant or renewal of the permit the Scheme will not be impaired. Therefore, in such cases also, it becomes necessary to find out the extent of overlapping which fact is necessary and relevant for the purpose of deciding whether the Scheme will be impaired or not”.

To the same effect is another Judgment of a Single Judge of this Court (BABU J.) delivered in Writ Petitions No. 23697 to 23701/1992 and connected matters, decided on 18th November 1992 where this Court observed:—

“Section 104 referred to earlier of the Motor Vehicles Act, mandates that the Authority cannot grant permits in case where the route in respect of which the permit is sought for, overlaps the route which is notified under the scheme and scheme is held to be law for all purposes. So there is an obligation on the part of the R.T.A to take note of the law and give effect to the same and in doing so must examine before grant of permit whether it overlaps on the notified route or not. That exercise has not been done by the authority at all. Therefore, the authority has not appropriately exercised its jurisdiction. If it is to be held that the routes overlap the notified routes, then the authority had no jurisdiction to grant permits”.

The above Judgment was upheld by a Division Bench of this Court in W.A Nos. 2353 and 2354 of 1992 decided on 6th of April, 19939 Speaking for the Bench, Hakeem, J., observed thus:—

“It is the contention of the K.S.R.T.C that the Schemes provide for complete exclusion of private transport operators in view of the provisions of Chapter VI of the Motor Vehicles Act, 1988. Whenever an application is made for grant of a permit, the basic question that arises for consideration is whether the applied route overlaps any portions of the route covered by the schemes. As such an obligation is cast upon the authorities concerned to examine the said question having regard to the road survey report to ascertain whether the route applied for in fact overlaps the notified routes. Without examining this aspect of the matter, the application for grant cannot be satisfactorily adjudicated. Section 104 of the Act requires that the authority concerned cannot grant permits in case where the routes in respect of which permit was sought for overlap the routes notified in the Scheme and the ‘Scheme’ is held to be law for all practical purposes”.

The following principles can therefore be safely deduced:—

1) That a Scheme duly published under Section 100(3) of the Motor Vehicles Act, 1988 is the law and the violation of the same would be viewed in the same manner as the violation of any other provision, of the Statute;

2) That in terms of Section 104 of the M.V Act, the R.T.A or the State T.A as the case may be is disabled from issuing a permit except in accordance with the provisions of the Scheme published under Section 100(3);

3) That for a proper exercise of its power under Section 80 of the Act, the Authority concerned shall have to keep in view the provisions of Section 104 of the Act and make sure that the grant of permit by it is not in violation of any scheme duly published under Section 100(3);

4) That jurisdiction of the Authority, to grant a permit would depend upon the existence or non-existence of a Scheme and the total or partial ban it may contain against any private operator, operating a service on a notified route. Determination of these facts, would be essential as the same are jurisdictional facts without which the Authority concerned, cannot take a proper decision in the matter;

5) That the failure on the part of the Authority concerned, to address itself to the provisions of Section 104, and to make an order consistent therewith would amount to failure on its part to exercise its jurisdiction properly and an error of law which would vitiate the order passed by it.

Coming then to the facts of the instant Cases, it is not in dispute that in none of the grants made by the R.T As concerned the order passed by the Authority demonstrates application of mind by it to the relevant considerations under Section 104. So much so, there is not even an observation made in the orders of grant passed by the Authorities concerned to the effect that the permit in question is being granted to the applicants-grantees concerned for routes which are not covered by Shimoga Scheme or that the permits do not over-lap the notified routes covered by the said Scheme. It appears from a plain reading of the orders passed by the R.T.A that it has remained wholly oblivious of the requirements of Section 104 of the Act. It is also not in dispute that no route survey was ever conducted nor any other material assembled in the course of the proceedings before the R.T.A for determining whether or not the grant of the permits in question would result in any overlapping by the notified routes nor the Scheme.

That apart, the R.T.A has not in most of the cases issued any notice to the petitioner-Corporation to oppose the grant of the permits in question. If a notified Scheme is the law as held by the Apex Court, there is no reason why the law cannot be deemed to be within the notice of the Authority concerned. If that be so, there is no reason why, the Authority could not have issued a notice to the petitioner Corporation for it is only the petitioner Corporation who could have been affected, by the grant of any permit, in respect of any route covered by the said Scheme. Unfortunately, however this procedure has not been followed by the R.T.A and there is no good reason forthcoming either from the orders or from any other source to justify the omission of the authority for not doing so. Mr. Singh, learned Counsel appearing for Respondent-Authorities has also not been able to justify the non-issue of a notice to the Corporation even when the Authority is presumed to have known the existence of the Scheme and the possible prejudice which the Corporation would suffer in case a permit in respect of any route covered by the said Scheme or any portion of any route governed by the said Scheme was to be issued by it. In that view therefore the impugned orders of grant can hardly be said to have been made in accordance with law nor can the exercise of powers by the R.T.A be said to be proper.

13. That brings me to the other question urged by Mr. Krishnaswamy, namely, that the petitioner ought to have filed a Revision before the Appellate Tribunal, instead of filing the present Petitions in this Court. Alternative remedy, it was contended, was not only available to the petitioner but was equally efficacious and therefore ought to have been resorted to. I am not impressed by this submission either. The existence of an alternate remedy, particularly in so far as Writs of Certiorari are concerned, is not an absolute bar. The Rule regarding existence of an alternative remedy is a Rule of Prudence more than a Rule of Law. It is a self imposed restraint which the Courts have evolved that is invoked while asking a party to have resort to the alternate remedy. It is not as though, the Courts lack inherent jurisdiction to look-into the matter where an alternate remedy is available to the party concerned. It is only because the Courts are less inclined to interfere where an alternate remedy is available and is equally efficacious. In any event the Rule of Prudence formulated over the years, by the Courts have also known a few well recognised and time tested exceptions. These are:—

1) Where a Statute under which the impugned action is taken is itself under challenge in the Writ Proceedings filed before the High Court;

2) Where the Authority exercising the power is ex facie shown to have had no jurisdiction to do so;

3) Where the orders impugned are passed in violation of the principles of Natural Justice;

14. In the instant case it is no doubt true that the provisions of the M.V Act, under which the impugned orders have been issued are not under challenge, yet the other two exceptions in my opinion squarely govern the present batch of cases. The exercise of authority by the R.T.A being in disregard of the provisions of Section 104, is an exercise which on the face of it is unsustainable, and renders the impugned orders improper and illegal. That apart most of the orders passed in the present case, by the R.T.A are without prior notice to the petitioner Corporation. In that sense therefore these orders can be said to be in violation of the Principles of Natural Justice, particularly when it is not in dispute before me that the Scheme relied upon by the petitioner does exist. In the circumstances, the petitioner-Corporation was entitled to a notice, before the grant in question was made. The argument advanced by Mr. Krishnaswamy, that the existence of an alternate remedy by way of Revision is a bar to these proceedings, therefore does not hold good.

That brings me to the question as to what relief should be granted to petitioner in the circumstances of the case. Mr. Krishnaswamy, learned Counsel appearing for the grantees relied upon a Judgment of this Court in W.P Nos. 16854/1993 decided on 13th of July, 1993, in support of his submission that even when the grants have been found to be prima facie defective, since the Respondent-grantees have invested substantial amounts in purchasing the vehicles the quashing of the grants will cause serious prejudice to them. He submitted that in a similar situation this Court had while remitting the matters to the R.T.A concerned directed that the R.T.A shali complete the process of consideration of the matter and pass fresh orders on the subject within a period of two months during which period the grantees would be entitled to continue operating their services.

Mr. Prakash Shetty, learned Counsel appearing for the petitiones-Corporation was not averse to this course of action being adopted in the present Writ Petitions also, so long as the R.T.A was directed to complete the process of consideration of the matter afresh within a specific period.

In the case relied upon by Mr. Krishnaswamy, this Court had while allowing the Writ Petition directed the R.T.A, to have a route survey conducted in the presence of the parties, and to consider the request for the grant of permit to the petitioner afresh depending upon the result of the said route survey, and having regard to the fact whether the proposed grant would in any manner over-lap any notified route covered by the Scheme. I see no reason why the same course of action cannot be adopted even in the present batch of Cases looking to the fact that consequent upon the grants made in their favour the Respondent-grantees may have invested substantial amounts for purposes of arranging vehicles for being operated on their respective routes.

Before parting with the matter I cannot help addressing myself to the yet another aspect of the case. This pertains to the repeated violation by the R.T.As concerned of the directives contained in the Judgments delivered by this Court in so far as the procedure that they are supposed to adopt in these matters is concerned. This Court had in K.S.R.T.C v. Regional Transport Authority noticed on the basis of past experience that the R.T.As and K.S.T.As functioning in the State and exercising power under the Motor Vehicles Act, in the matter of granting Stage Carriage Permits had been proceeding to grant such permits without determining the question as to whether the routes applied for over-lapped the notified routes including in a Scheme of total or partial exclusion even though objections to that effect were raised before them. Reference was made to W.P Nos. 12871 and 72/1984 decided on 27th August, 198410 in that connection. This Court felt that it was necessary to lay down the procedure and norms to be followed by the R.T.As and S.T.As, in all such cases in order to see that the Schemes published under sub-section (3) of Section 68(D) of the old Act, corresponding to Section 100 sub-section (3) of 1988 Act are not violated. The Court accordingly proceeded to issue directions in the following terms.

“Therefore, in all such cases, it is necessary for the R.T.A or the S.T.A as the case may be, either to undertake inspection of the routes applied for, by itself or appoint its Secretary or any other Officer as agreed to by parties to inspect the routes applied for and collect the information on the points referred to above, and then decide the question as to whether the routes applied for overlap the notified route included in the scheme of total or partial exclusion as the case may be. If the decision of authority is that there is no overlapping, it can proceed to consider the application on merits. On the contrary, if the decision is otherwise, the application will have to be rejected. In the case of the notified route included in the Scheme of partial exclusion, the authority while considering the application on merits, shall have to decide the question as to whether by grant or renewal of the permit, the Scheme will or will not be impaired.”

To the same effect is the view expressed by a Division Bench of this Court in W.A Nos. 2353 and 2354 of 1992 reference whereto has been made even earlier where also this Court stated the position thus:—

“Accordingly, the authorities are directed to consider and dispose of the applications for grant of permits involved in these cases within 8 weeks from the date of receipt of this order. During that period, the grantees shall be permitted to operate their permits, provided such permits are subsisting and are in operation. It is needless to emphasise that before taking any decision in the matter, the authorities have to necessarily direct the road survey made in the presence of the parties, including the KSRTO, to ascertain as to whether the routes involved overlap the notified routes or not. All the contentions raised in these petitions are left open for consideration by the authorities concerned.”

Despite the observation made in the Judgments mentioned above the R.T.As appear to be persisting in the following their own procedure and ignoring the provisions of Section 104 while issuing permits without having the route surveys conducted or even addressing themselves to the question whether or not a Scheme does or does not exist in a particular area or in respect of a particular route. This process of open and persistent defiance of law, would in my opinion continue unless the same is checked by issuing appropriate directions in this regard. The issue of directions will not only streamline the procedure for consideration of such applications at least hereafter, but would prevent avoidable litigation in future, saving all those concerned with the grant or refusal of permits from unnecessary inconvenience, expense and botheration.

In the result I make the following Order:

a) The Respondent-Regional Transport Authority, Shimoga, shall cause a route survey to be made in presence of the parties in order to determine whether or not the routes on which the Respondent grantee have been granted permits over-laps any portion of the notified route under the Shimoga Scheme;

b) Upon such route survey if the R.T.A finds that there is any over lapping which is impermissible under law the Route may be curtailed appropriately to make the grant compatible with the Scheme in question. On the contrary if R.T.A comes to the conclusion that there is no over-lapping, the permit granted in favour of the Respondent-grantees need not be disturbed;

c) The process of conducting the Route Survey and fresh orders on the basis thereof shall be completed within a period of two months from today;

d) Pending decision by the R.T.A in terms of the above directions the Respondent-grantees shall be entitled to continue operating their services on the routes for which they have secured the permits.

e) The Secretary to Government, Transport Department shall take steps and issue instructions to all the R.T.As concerned to follow the procedure set-out in the body of this Judgment while considering applications for the grant of permits.

f) The Writ Petitions are allowed but only to the extent indicated above, with costs assessed at Rs. 500/- in each one of the petitions.