The Judgment of the Court was delivered by

Vaidialingam, J.:— This is an application under Art. 226 of the Constitution to call for the records relating to order No. 74.Genl/57 dated 18-10-1957 passed by the first respondent, the Central Road Traffic Board, Trivandrum and quash the same by the issue of a writ of certiorari or other appropriate writ, direction or order. The order sought to be quashed is marked Ext. B in these proceedings.

2. According to the petitioner, he holds a permit for the stage carriage KLQ 1484 (TCQ 1081) running on the Kottayathukadavu — Kallad route via Kundara. The second respondent holds a permit for stage carriage TCQ 47 and 2149 running on the Kottayathukadavu — Kundara route, the terminal point for which has been fixed at Kundara by the Road Traffic Board as C.P Junction, Kundara. The order fixing the said C.P Junction as the terminal point is the one dated 30-3-57 and marked as Ext. A. Against the order of the Road Traffic Board fixing the terminal point, the second respondent filed a revision before the first respondent, the Central Road Traffic Board, which by its order dated 18-10-1957, Ext. B set aside the order of the Road Traffic Board and fixed the terminal point of the route for the second respondent's buses at Arurnurikkada, a place nearly 2 miles east of C.P Junction, Kundara. The petitioner contends that the order, Ext. B of the first respondent is illegal, ultra vires and passed without jurisdiction.

3. The order is also challenged as being malafide and that under the guise of fixing a terminal point, the second respondent has been allowed to run his buses on a route without complying with the provisions of the Motor Vehicles Act.

4. It is also contended that the first respondent has no jurisdiction to entertain the revision against the order of the Road Traffic Board. The basis of this contention, according to the applicant, is that the constitution of the first respondent Board is contrary to the provisions of S. 44 of the Act. The Chairman and Sri N.R Srinivasa Iyer, Deputy Inspector General of Police are disqualified to be members of the Board, since both of them are members of the State Transport Advisory Board which deals with finances and other matters of the State Transport undertaking.

5. On all these grounds the applicant prays for an order to call for the records and quash the order of the first respondent, Ext. B.

6. The second respondent has filed a counter-affidavit challenging the various allegation of the petitioner. It is stated that he was given two permits for the two buses for operating between Kottayathukadavu and Kundara first in 1951 and subsequently renewed in 1954. Ever since 1951, he has been operating the two services between Kottayathukadavu and Arumurikada in Kundara without the objection of anybody. The petitioner appears to have moved the Regional Transport Authority on 24-1-1957 for refixing the terminal points of the second respondent's buses. The Regional Transport Authority by its order dated 30-3-1957 passed an improper and illegal order placing certain restrictions on the operation of the two buses and contrary to the terms of the permits originally granted. Therefore, the order of the Regional Transport Authority was challenged in revision before the State Transport Authority (The original Central Road Traffic Board). The latter set aside the illegal order of the Road Traffic Board and fixed the termini for the two buses as Kottayathukadavu — Arumurikada. That order, Ext. B is one passed with jurisdiction and also a legal and proper order.

7. It is also stated that the petitioner himself has applied to the Regional Transport Authority, Quilon for varying his permits so as to enable his bus to proceed from Pallimukku to Arumurikada and back again to Pallimukku and then to Kallada. I am not really concerned in these proceeding with this application stated to have been filed by the petitioner.

8. The statement that the distance between C.P Junction and Arumurikada is about 2 miles is denied and it is stated that the distance is only 9 furlongs.

9. It is also stated in paragraph 12 of the counter-affidavit that the second respondent was granted a permit for operating buses between Kottayathukadavu and Kundara and he has been operating only on the route sanctioned in the permits validly granted and that Arumurikada is a place in Kundara itself.

10. The charge of malafides against the said respondents has been refuted. The contention regarding the constitution of the second respondent based on the provisions of Section 44 are also challenged. It is stated that neither the Chairman nor Sri. Srinivasa Iyer are disqualified to be members of the Board. In any event, it is stated that the petitioner is not entitled to take this objection before this court in the writ proceedings when he has not raised this objection before the second respondent himself when the matter was being enquired into in the presence of and after notice to the petitioner.

11. In paragraph 18, it is stated that there has been absolutely no change either in the time schedule or the fares mentioned in the original permit. On all these grounds the second respondent prays for dismissal of this application.

12. The petitioner has filed a supplementary affidavit (strictly a reply affidavit) to the counter-affidavit filed by the second respondent. In this affidavit it is stated that because the applicant objected to the second respondent's running his buses to Arumurikada, the order, Ext. A and the subsequent order, Ext. B were passed. It is further stated that Arumurikada is not in Kundara. It is a place nearly one mile and seven furlongs east of C.P Junction, Kundara and is outside the limits of Kundara. Arumurikada is in Kottarakara Taluk within the jurisdiction of the Ezhukone Panchayat where as Kundara is in Quilon Taluk within the jurisdiction of the Kottarakara Panchayat. C.P Junction, Kundara is a very important and busy place in Kundara.

13. This affidavit further states that the time-sheet given to the buses of the second respondent mentioned only a distance of 8 miles and the time-sheet filed along with this affidavit is marked as Ext. C. There is another very significant statement as follows:

“Even if it is permissible to fix a terminal at a very short distance beyond the 8 miles for which alone permit is granted, with due reference to the importance of the place and other relevant considerations, it is respectfully submitted that the authorities have no jurisdiction to fix a place far beyond these 8 miles and which is outside the limits of the place to which permit is granted as the terminal.”

14. Finally, it is stated that the order fixing the terminal beyond the approved distance for which permit is granted, is a variation in the condition of the permit and is liable to be quashed.

15. The first respondent which is now the State Transport Authority has also filed a counter-affidavit challenging the statements of the petitioner.

16. In this counter-affidavit it is stated that the terminus of the buses of the second respondent were fixed as Kottayathukadavu to C.P Junction, Kundara by the Regional Transport Authority (the old Road Traffic Board, Quilon). It is also admitted that the first respondent set aside the said order and fixed the termini as Kottayathukadavu to Arumurikada. That order has been passed within the powers vested in the State Transport Authority under Section 64A of the Act and the said order is in no way malafide. The said order has been passed in accordance with law by the first respondent after considering the several circumstances and hearing the applicant himself.

17. In paragraph 5 it is stated that Arumurikada is a place in Kundaracherri, Kottarakara village of the Quilon Taluk and the order, Ext. B does not in any way result in granting an extension to the second respondent over the sanctioned route. It is only specifying the termini of the route already allowed and granted in the original permit.

18. It is admitted that Sri. K.P.K Menon, Second Member, Board of Revenue and Sri. N.R Srinivasa Iyer, Deputy Inspector General of Police, South Zone, are members of the State Transport Authority, the former being its Chairman. They are also members of the State Transport Board. But it is stated that they are not persons disqualified under section 44 of the Act. In any event, it is stated that the petitioner not having raised this objection before the State Transport Authority, cannot now be permitted to agitate it for the first time in this court in writ proceedings. It is stated:

“The petitioner submitted to the jurisdiction of the State Transport Authority without demur and he is now estopped from questioning it in this Honourable Court.”

19. It may be stated that the applicant did not file any reply affidavit regarding the counter-affidavit filed by first respondent.

20. Mr. T.N Subramonia Iyer raised several contentions regarding the validity of the order covered by Ext. B.

21. The first contention was that the order of the first respondent amounted to effecting a variation in the conditions of the permit granted to the second respondent and as such, it should have followed the procedure mentioned in the Act for dealing with an application for a fresh permit. Mr. Subramania Iyer referred to sub-clause 3 of clause 3 of section 48 of the Motor Vehicles Act in support of his contention that copies of the time-table of the service or of particular stage carriages approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area. Mr. Subramania Iyer contended that this sub-clause will show that the time-table granted to the second respondent is a condition of the permit. Running a longer distance will naturally result in the original time-table granted to the second respondent being altered which will amount to a variation of the condition of the permit. He also referred to certain rules namely, Rules 220, 289, 291 and 298 of the rules framed by the Travancore-Cochin Government under the Act.

22. Mr. Govindan Nair, on the other hand, contends that there has been absolutely no change in the time-table or fares in respect of his client's service. The original permits admittedly were issued from Kottayathukadavu to Kundara. Arumurikada is a place in Kundara. It is perfectly open to the authorities to refix the terminii within the terms of the original permit. The termini refixed by the first respondent is in accordance with law and it does not in any way amount to a variation of the condition of the permit.

23. Though the petitioner has challenged the statement of the second respondent that Arumurikanda is not in Kundara, I have before me the affidavit filed on behalf of the first respondent which definitely states that Arumurikada is a place in Kundaracherri of the Quilon Taluk. This statement has not been controverted by the applicant in these proceedings. He has not filed any reply affidavit challenging the statements made in the counter-affidavit of the first respondent. Therefore, whatever may be the controversy between the first respondent and the second respondent as to the Panchayat within which Arumurikada may be situated, the affidavit filed by the first respondent clearly shows that Arumurikada is a place in Kundara. If that is so, it is unnecessary for me to go into this matter any further, because I have already held in my judgment in P.C Oomen v. Road Traffic Board, Kottayam (O.P 340/57 58 K.L.J 57) that the fixing of the termini within the limits of the original permit, though it may involve running of an additional distance in the same route, is not an alteration of the conditions of the permit. I am not able to accept the conditions of Mr. Subramania Iyer that the time-table is a condition of the permit. What section 48(3)(iii) refers to is only to the exhibition on the vehicles and at other places mentioned therein copies of the time-table of the service approved by the Regional Transport Authority. In any event, there is no dispute that in this particular case, there has been no change even in the time-table originally granted to the second respondent. Even otherwise in my judgment referred to above, I have followed the judgment of the Division Bench of the Madras High Court consisting of the Hon'ble the Chief Justice and Mr. Justice Venkatarama Ayyar in Kali Mudaliar v. Vedachala (A.I.R 1952 Mad. 543) that the timings fixed by the Regional Transport Authority at the time of the grant of permit is not a condition of the permit. It may also be stated that in the supplementary affidavit dated 26th November, 1957 of the petitioner and filed on 28-11-57 in paragraph 4, even the applicant seems to have no objection to fixation of a terminal enlarging a distance more than that covered by the original permit. But the objection in this case is that the relaxation involves a distance of 2 miles whereas the second respondent says that it is only about 8 or 9 furlongs. But what is the principle? If it is only a question of refixation of the termini so as not to exceed the limit of the places already mentioned in the permit, in my opinion, there is absolutely no violation of any of the conditions of the original permit. This objection of Mr. Subramania Iyer fails.

24. Mr. Subramania Iyer next contended that the order, Ext. A cannot be considered as improper or illegal so as to warrant an interference in revision by the first respondent under section 64-A of the Act. There is no substance in this contention because the question whether an order is improper or illegal is a matter for the State Transport Authority to be satisfied about. The order, Ext. B clearly shows that the first respondent has applied his mind to these aspects before reversing the order of the Regional Transport Authority.

25. Section 64-A of the Motor Vehicles Act gives power to the State Transport Authority either on its own motion or on application made to it to call for the record of any case in which an order has been made by a Regional Transport Authority in cases where no appeal lies. The section further provides that if it appears to the State Transport Authority that the order of the Regional Transport Authority is improper or illegal, the State Transport Authority may pass such order in relation to the case as it deems fit. The proviso to the said section states that an application invoking its jurisdiction is to be made within 30 days of the order to the State Transport Authority and that no order by the State Transport Authority to the prejudice of any party is to be made without giving him a reasonable opportunity of being heard. It is not the case of the petitioner that the conditions stated in the provisos have not been fulfilled in this case.

26. The argument of the learned counsel Mr. Subramania Iyer amounts to this: that there are two stages for the exercise of the power by the State Transport Authority under section 64-A. The first stage is the condition precedent for assumption of jurisdiction for the exercise of that power. A collateral fact as to whether the order passed by the Regional Transport Authority was in fact illegal or improper, had to be decided. Only when the decision is in the affirmative could the State Transport Authority have jurisdiction to revise the order of the Regional Transport Authority. The court has got the power to decide whether the order namely, Ext. A subsequently revised by the State Transport Authority Ext. B was not illegal or improper. The reasons given by the State Transport Authority for revising the order of the Regional Transport Authority are not valid in law and the soundness or otherwise of those reasons can be gone into by this court under Art. 226. A reading of the order Ext. B will clearly show that there is an error apparent on the face of the record because there is no question of any curtailment of the rights of the second respondent by the Regional Transport Authority.

27. That the contentions of the learned counsel on this aspect of the matter cannot be accepted is clear from the decision of the Supreme Court reported in Raman & Raman Ltd. v. Government of Madras (1955 S.C.J 368). In that case, their Lordships had to consider the scope of the powers conferred on the State Government by virtue of section 64-A inserted by Madras Act, XX of 1948. That section 64-A conferring powers on the State Government to interfere and revise the orders of subordinate authorities was more or less substantially the same as the powers, given under the present section 64A of the Motor Vehicles Act on the State Transport Authority. The only material difference is that the Madras Act gave an additional power to the State Government to interfere in its opinion if the order was considered to be not regular also. The question of legality and propriety as contained in the present section were also in the Madras Amendment.

28. Before their Lordships of the Supreme Court, Mr. Pathak advanced similar contentions that are advanced before me by Mr. T.N Subramania Iyer. Their Lordships rejected those contentions and held at page 371 of the reports as follows:—

“In the present case, if there was at all any collateral fact to be decided, it was whether the appropriate authority had in fact passed any order in respect of which powers under section 64A could be exercised. It is not disputed that in fact orders were passed by the Regional Transport Authority and the Board, authorities subordinate to the State Government, and that these orders existed when the appellant and respondent No. 2 moved that Government to exercise its powers under section 64A. The condition precedent and the existence of a collateral fact in that way for the exercise of powers under that section were therefore present when the State Government exercised its powers. In order to satisfy itself whether the order of an authority subordinate to it was legal, regular or proper, the State Government was not deciding the existence of a collateral fact but the issue itself as to the legality, regularity or the propriety of the order. The satisfaction of the State Government in this respect would be an expression of its opinion and not the determination of a fact upon which depended its jurisdiction to exercise its powers under section 64A”.

29. Their Lordships further considered the scheme of the Act and the several functions to be performed by the Regional Transport Authority, the Board and the State Government in the matter of granting or refusing to grant a permit. Ultimately, their Lordships observed that by enacting section 64A, the Legislature clearly intended that the State Government should have the powers to intervene if it was satisfied that the order in question was either illegal, irregular or improper. Their Lordships finally observed:

“In clothing the State Government with such power the Legislature clearly intended the State Government to decide the issue as to whether any order in question was illegal, irregular or improper. It would not be open to a court exercising the power of certiorari to intervene merely because it might be of the opinion that the view taken by the State Government was erroneous”.

30. In my opinion, the reasoning of their Lordships fully apply on all fours to the case before me. Therefore it is not possible for me to accept the contentions of Mr. Subramania Iyer, on this point either.

31. The last contention of Mr. Subramania Iyer is that the State Transport Authority which passed the order, Ext. B is not a properly constituted tribunal and as such, the order passed by that tribunal is one passed without jurisdiction and as such void and a nullity. This contention is to be found in paragraph 3(d) of the petitioner's affidavit. The contention is that the constitution of the first respondent is illegal and contrary to the provisions of section 44 of the Motor Vehicles Act. The Chairman and Sri. Srinivasa Iyer, D.I.G of Police are disqualified to be members of the Board, since they are both members of the State Transport Advisory Board dealing with the finances and other matters of the State Transport undertaking.

32. The second respondent has controverted these statements in paragraph 14 of his counter-affidavit and has stated that the provisions of section 44 of the Act have not been in any manner violated. It is further particularly stated that neither the Chairman, nor Sri. Srinivasa Iyer are disqualified to be members of the Board, as they are not persons who will fall under section 44. A further point also is taken that no such objection was taken by the applicant before the first respondent at the time of the hearing of the revision petition and as such it is not open to him to raise this question for the first time in certiorari proceedings in this court.

33. The first respondent has filed a counter-affidavit sworn to by its Secretary. In Paragraph 6 of his counter-affidavit, the Secretary admits that Sri K.P.K Menon, Second Member, Board of Revenue and Sri N.R Srinivasa Iyer, D.I.G of Police, South Zone, are members of the State Transport Authority, the former being its Chairman. It is also admitted that these two gentlemen are also members of the State Transport Board. But it is contended that they are not persons who are disqualified under section 44 of the Motor Vehicles Act to be members of the State Transport Authority. They also raised the further contention that the petitioner did not raise any such objection before the first respondent in the course of the hearing of the revision and such, he cannot be permitted to raise this point for the first time in this court in proceedings under Art. 226 of the Constitution. It is further stated:

“The petitioner submitted to the jurisdiction of the State Transport Authority without demur and he is now estopped from questioning it in this Honourable Court.”

34. Before considering the contentions regarding the submission of the jurisdiction or otherwise, I shall discuss the question as to whether the two gentlemen referred to above are disqualified to be members of the State Transport Authority by virtue of section 44 of the Motor Vehicles Act.

35. The fact that these two gentlemen are members of the State Transport Authority is admitted by the first respondent and the only question is whether they can be members of the first respondent tribunal also.

36. The power to constitute the State Transport Authority and Regional Transport Authorities are given in sub-sections (1) and (2) of section 44 of the Act which runs as follows:

“44. TRANSPORT AUTHORITIES-(1) The State Government shall, by notification in the Official Gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in sub-section (3), and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas (in this Chapter referred to as regions) as may be specified in the notification, in respect of each Regional Transport Authority the powers and functions conferred by or under this Chapter on such authorities:

Provided that in (the Union territories) the State Government may abstain from constituting any Regional Transport Authority:

Provided further that the area specified as the region of a Regional Transport Authority shall in no case be less than an entire district, or the whole area of a Presidency town.

(2) A State Transport Authority or a Regional Transport Authority shall consist of (a chairman who has had judicial experience and such other officials and non-officials, not being less than two, as the State Government may think fit to appoint); but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking shall be appointed as or continue as a member of a State or Regional Transport Authority, and, if any person being a member of any such Authority acquires a financial interest in any transport under-taking he shall, within four weeks of so doing, give notice in writing to the State Government of the acquisition of such interest and shall vacate office:

(Provided that nothing in this sub-section shall be construed as debarring an official-other than an official connected directly with the management of operation of a transport undertaking-from being appointed as or continuing as a member of any such Authority merely by reason of the fact that the Government employing the official has, or acquires, any financial interest in a transport undertaking)”.

37. The proviso to clause 2 of section 44 extracted above seems to indicate that an official connected directly with the management or operation of a transport undertaking should not be a member of either the State Transport Authority or a Regional Transport Authority.

38. According to Mr. Subramania Iyer, the two officers in question are members of the State Transport Board which is directly connected with the management or operation of the State Transport undertakings under Chapter IV-A of the Act.

39. The learned Government Pleader appearing for the first respondent and Mr. P. Govindan Nair appearing for the second respondent have contended that the State Transport Board of which the two gentlemen are members is not a body connected directly with the management or operation of a transport undertaking. When the State Transport Board itself is not one connected directly with the management or operation of a transport undertaking, the two officials mentioned above, who are members of that Board, cannot be said to be in any way officials connected directly with the management or operation of a transport undertaking. To appreciate the contentions of both sides regarding this matter, it is necessary to find out what are the functions of the State Transport Board. According to the learned counsel for the petitioner, it is directly connected with the management of the State Transport undertakings whereas, according to the respondents, the Board has no voice in the management, but its functions are purely advisory in character.

40. The learned Government Pleader has placed before me a copy of the proceedings of the Government of Kerala, Public Works Department (Transport ‘A’) dated 20-7-1957. That document has been marked as Ext. 1 in these proceedings. The subject is stated to be:

“Transport — Boards and Committees — State Transport Board — Re-constitution of — Ordered.”

41. The Order R. Dis. 7914/57.PW runs as follows:

“With a view to contributing to the efficient working of the State Transport Department and to allowing the participation of the representative of the employees of the Department in its management the Government are pleased to reconstitute the State Transport Board with the following personnel:—

1) Minister for Transport (Chairman)

2) Secretary to Government (Finance Department)

3) Secretary to Government (Public Works Department)

4) The Chairman, Central Road Traffic Board

5) The Deputy Inspector-General of Police (Taxation)

6) The Chief Engineer (Buildings and Roads)

7) The Labour Commissioner

8) One Representative of the employees of the State Transport Department nominated by the Kerala State Transport Employees' Union.

Secretary: The Director of Transport shall be the Secretary to the Board”.

42. The same notification further defines the powers of the Board as also their responsibilities. There are several clauses dealing with its powers.

43. Clause 1 provides for the management of the State Transport Department to be under the administrative control of the Board.

44. Clause 2 gives power to the Board to incur expenditure limited to the extent mentioned therein. It is enough to state that the Board is authorised to incur capital expenditure up to Rs. 50,000/- per quarter in respect of land, buildings, plant, machinery, furniture and Ferry service. Sub-clauses (ii) and (iii) authorise the Board to incur working expenditure and fund expenditure within the limits of the budget provision and of the Code respectively. There are other clauses giving a right to the Board to control the strength of the rolling stock and allied items, to control capital expenditure on equipment and buildings, to recommend to the Government acquisition and extension of lines and giving power to the Board to arrange for survey of new routes and services existing and to make a report to the Government.

45. Clause 6 gives power to recommend to Government proposals for fixing fares and rates. Power is given to the Board to review monthly reports of the working of the various sections of the Department (clause 7).

46. Under clause 8 the Board is to arrange for sending quarterly statements of accounts for the department to be prepared and submitted to the Government.

47. Under clause 9 power is given to the Board to review the annual report and audited statement of accounts prepared by the Director and to be submitted to the Government ultimately with the members' remarks.

48. Under clause 10 Half-yearly accounts of the department are to be submitted to the Board.

49. Clause 11 gives power to the Board to delegate with the approval of the Government all or any of their powers to the Director of Transport with powers of re-delegation.

50. Clause 12 gives power to settle claims and sanction expenditure for compensation which are recoverable from parties upto a limit of Rs. 500/- at a time.

51. Clause 13 provides for approval in audit of all sanctions accorded by the Board.

52. There is another head in the said notification styled ‘responsibilities’. Under this head, clause 1 makes the Board responsible to Government for the management of the Transport department including the appointment of staff and for the control of the finance of the department including the revenue and capital balances.

53. Clause 2 makes it obligatory on the Board to give effect to policies approved by the Government. It is also provided that the Board will examine whether a permanent sub-committee is necessary or not.

54. A perusal of the several powers and responsibilities mentioned in the said notification leaves no room for doubt, in my mind, to conclude that the State Transport Board is an Authority connected directly with the management or operation of a transport undertaking. Mr. Subramania Iyer, learned counsel for the petitioner is well-founded in his contention that the two officers mentioned above are officials connected directly with the management or operation of a transport undertaking. It is not possible for me to accept the contentions of the respondents that the State Transport Board functions only as an advisory Board and that it is not connected directly with the management or operation of a transport undertaking. It is unnecessary to repeat the several clauses excepting to mention that according to the terms of the notification, Ext. 1, the State Transport Board is re-constituted with a view to contribute to the efficient working of the Transport Department and for allowing the participation of the representative of the employees of the department in its management. There is provision for management of the State Transport Department under the administrative control of the Board. Power is given to the Board to incur capital working and fund expenditure within certain limits. The strength of the rolling stock and allied items is controlled by the Board. Capital expenditure on equipment and buildings is similarly controlled by the Board. Acquisition and extension of lines are to be recommended by the Board and the Board is competent to arrange for the survey of new routes and services. Power is also given to the Board to recommend the fixation of fares and rates. There are other subsidiary provisions regarding review of the reports of the various sections of the department and scrutinising of accounts.

55. It was contended that the only official who could be considered to be connected directly with the management or operation of transport undertaking is the Director of State Transport. It will be seen from the notification that the Director of Transport is to be secretary to the Board. He cannot certainly have the powers of the Board as such. In fact, clause 11 makes it very clear that the Board can delegate all or any of their powers to the Director of Transport only with the approval of the Government. The fact that some powers exercisable by the Board have been delegated to the Director of Transport will not ultimately make the Board a body not directly connected with the State Transport undertaking. Even in cases where the Director of Transport exercises the delegated powers, he is really exercising the powers of the Board. In fact, it will be seen that under clause 11 even the Director of Transport can be given power to re-delegate the powers given to him to such subordinate authorities as he may deem fit. If really the Director has exercised the power of re-delegation to his subordinate officials, can it be contended that even the Director of Transport is not an official directly connected with the State Transport undertaking and that it is only those subordinate officers that will come within the mischief of section 44 as officers directly connected with the State Transport undertakings? I do not think such a contention can be accepted. It may be that the Director of Transport and his subordinate officials may be actively in day-to-day touch with the working of the Transport undertakings. But that does not mean that the State Transport Board is a body not connected directly with the management or operation of the State Transport undertaking. The whole scheme of the notification and the purpose for which the State Transport Board is constituted together with the powers and responsibilities of the State Transport Board mentioned therein clearly, in my opinion, makes the Board a body connected directly with the management or operation of a transport undertaking namely in this case, the State Transport undertakings. In consequence, any official who is a member of such a body will also be an official connected directly with the management or operation of a transport undertaking and will come within the prohibition mentioned in the proviso to clause 2 of section 44 of the Act. It follows that the two officials mentioned above, namely, (1) Sri. K.P.K Menon, Second Member, Board of Revenue and Sri. N.R Srinivasa Iyer, D.I.G of Police, South Zone, could not be members of the State Transport Authority inasmuch as they are members of the State Transport Board. Then the question arises as to the effect of those two members taking part in the proceedings which culminated in this decision evidenced by Ext. B. There is also the further question whether the petitioner is entitled to challenge those proceedings as illegal or void in this court when he has not raised the question of the jurisdiction of the tribunal to hear the revision filed by the second respondent.

56. The contention of Mr. Subramania Iyer is that if the two persons cannot be members of the first respondent tribunal, the whole proceedings covered by Ext. B is illegal and void and that he is entitled to challenge the same in proceedings under Article 226 in this court notwithstanding the fact that such an objection was not raised before the tribunal itself. According to Mr. Subramania Iyer, it is not a mere over-exercise of jurisdiction by the tribunal, but it is a case of a total lack of jurisdiction and any amount of submission or consent on the part of his client will not cure the original lack of jurisdiction in the tribunal. He also contended that in such a circumstance, there is no question of estoppel or waiver where there is a fundamental lack of jurisdiction.

57. On the other hand, the learned Government Pleader for the first respondent and the learned counsel Mr. P. Govindan Nair for the second respondent contended that at the most the participation by these two officials in the proceedings of the first respondent will only be a defect or irregularity not going to the root of the jurisdiction of the tribunal. In any event, it is not a case of a total lack of jurisdiction in the tribunal because the tribunal admittedly consisted of 5 members and the decision of these two members could not have in any way influenced or altered the decision of the first respondent. They finally contended that whatever may be the position regarding such matters with regard to regular suits, the position is entirely different when the extraordinary jurisdiction of this court is invoked by the petitioner. The petitioner is not entitled as of right to get relief under Article 226. Therefore, this court should not exercise a discretion in favour of the petitioner when he has submitted to the jurisdiction of the tribunal and taken part in the proceedings before it without in any way challenging its jurisdiction. It is not open to the petitioner to adopt a policy of wait and see and take a chance as to whether the decision of the tribunal is going to be in his favour or not.

58. I am not satisfied that the whole proceedings will become void ab initio in view of the irregularity in the matter of the participation by these two members in the decision evidenced by Ext. B. It is seen from the order, Ext. B that there were 5 members who have taken part in the proceedings and, in my opinion, the participation by these two members in the proceedings would not result in the entire proceedings being one passed without jurisdiction or void. Section 44(2) of the Act provides for the State Government constituting a State Transport Authority with a chairman and such other officials or non-officials not being less than 2. Therefore, the minimum number required to constitute the Authority is only 3 and in my view, the participation of these two members along with the Other three will not make the decision an ab initio void one. In any event, the further question arises whether it is open to the petitioner to raise that question about the jurisdiction in this court for the first time.

59. According to Mr. Subramania Iyer, as stated already, the proceedings are ab initio void. There is a total lack of jurisdiction in the tribunal and submission to jurisdiction by the petitioner, or any waiver of the question of jurisdiction on his part will not better the position of the first respondent in the eye of law when the decision so given is a nullity.

60. Mr. Subramania Iyer referred to the well-known cases reported in Ladgard v. Bull (I.L.R IX Allahabad 191 P.C); Rajalakshmi Dasee v. Katyayani Dasee (I.L.R 38 Calcutta 639); Gora Chand Halder v. Prafulla Kumar Roy (I.L.R 53 Calcutta 166 F.B); Karashiddayya v. Shree Gajanan Urban Co-operative Bank Ltd. (A.I.R 1943 Bombay 288); and Raghuraj v. Basudeo* (A.I.R 1950 Patna 318). All these decisions cited above relate to the question of jurisdiction that was raised either during the trial of a suit or during the appellate stage or during execution proceedings. But the point to be noted is that every one of the above decisions relate to a decree passed in a suit which decree was challenged as one passed without jurisdiction. The principle laid down in every one of those cases is that where a suit has been decreed by a court having no jurisdiction over the matter, the parties cannot by their mutual consent, convert the proceedings into a judicial process and that where there is no inherent jurisdiction in the court, neither submission to jurisdiction nor acquiescence nor taking part in those proceedings will debar the party from contending that the decree is one passed without jurisdiction. It is not necessary for me to go into the detailed facts of each of the cases cited above, in view of the latest decision of the Supreme Court on the subject namely, the one reported in Kiran Singh v. Chaman Paswan (A.I.R 1954 section S.C 340). That case related to a decree passed in a suit and their Lordships observe at page 342 as follows:

“It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter there can be no doubt that the District Court of Monghyr was ‘Coram non judice’ and that its judgment and decree would be nullities.”

61. But the question is, does the same principle apply in cases where a party invokes the jurisdiction of this court under Art. 226 of the Constitution when he himself has not raised the question before the tribunal itself.

62. The learned counsel for the petitioner, Mr. T.N Subramania Iyer contended that there is absolutely no difference in principle even in cases of proceedings under Art. 226. His contention is that it is open to a party to attack the order of the tribunal as being without jurisdiction notwithstanding the fact that he has submitted to the jurisdiction, taken part in the proceedings and not raised the question of jurisdiction before the tribunal itself. He again relied upon the decisions in Dholpur Co-operative T. & M. Union v. Appellate Authority (A.I.R 1953 Rajasthan 193; Musai Bhant v. Ganga Charan (A.I.R 1953 Allahabad 118); J.K Iron & Steel Co. v. L.A Tribunal of India (A.I.R 1953 Allahabad 624) and the decision of the Supreme Court in U.C Bank v. Their workmen (A.I.R 1951 S.C 230).

63. Taking these decisions one by one, the decision in Dholpur Co-op. T. & M. Union v. Appellate Authority (A.I.R 1953 Rajasthan 193) is that of a Division Bench consisting of Ranawat and Sharma, JJ., constituting the Jaipur Bench. That related, no doubt, to a proceeding under Art. 226 of the Constitution and the point related to the constitution of the appellate authority to hear appeals against the orders of a Regional Transport Authority under the Motor Vehicles Act. It is seen that there were certain fundamental omissions in the matter of constituting the tribunal under the Act and the rules. No objection to such a constitution appears to have been taken before the tribunal itself. When the question of jurisdiction was sought to be raised in the writ proceedings, it was opposed by the contesting respondents that such a question about the jurisdiction cannot be gone into as the applicants did not raise the question of jurisdiction before the appellate tribunal.

64. In dealing with this contention, the learned Judges observed at page 196 of the report:

“coming to the third objection, it is true that if a party does not raise any objection to the jurisdiction of a court or tribunal, which depends upon the allegations and proof of certain facts, that party will not be allowed to raise objection about jurisdiction in an application under Art. 226. Where, however, the lack of jurisdiction is patent, the mere fact that no objection was taken before the statutory authorities would not disable the applicant from raising such question in an application under Art. 226”.

65. It is further seen in the said decision that the decision in Ex parte Philips-Rex v. Williams (1914-1-K.B. 608) was quoted as an authority for the proposition that such a question cannot be allowed to be raised. But the learned Judges held that the said decision in the English case is not applicable as it was not a case of total lack of jurisdiction on the face of the proceedings. It is also seen that the Full Bench decision of the Madras High Court reported in Lakshmanan Chettiar v. Commissioner of Corporation of Madras (I.L.R 50 Mad. 130) was also relied upon in support of the proposition that the question of jurisdiction cannot be taken for the first time in the writ proceedings when it has not been taken before the subordinate tribunal. The learned Judges also remarked about this Full Bench decision that it is not also a case of total want of jurisdiction on the face of the proceedings.

66. The learned Judges considered the case before them as one of total lack of jurisdiction in the appellate authority and as such, there was no question of submission to jurisdiction.

67. I have already held that in the case before me, the appellate tribunal has been properly constituted after all the necessary formalities but there is only a defect in the appointment of the two officials and that it is not a case of a tribunal functioning without any jurisdiction whatsoever. Therefore, the decision Dholpur Co-operative T. & M. Union v. Appellate Authority (A.I.R 1953 Rajashan 193) will not have any application to a case like the one before me. Even otherwise there is also the further fact as seen from the judgment itself that the applicants before the High Court there had filed affidavits to the effect that they did not know about the irregularities and illegalities in the constitution of the tribunal before whom they appeared and contested the proceedings. In the affidavit the applicants have also stated there that in consequence of such absence of knowledge on their part, they were unable to raise any objection as to the jurisdiction of the appellate authority which heard the appeals and these statements were not controverted by the opposite parties and therefore, the learned Judges observed:

“There is, therefore, no wonder if the petitioners were unable to raise any objection on he ground of jurisdiction before the appellate authority”

68. In the case before me, it will be stated that there is no such averment at all in the affidavit filed in support of the application for the issue of a writ. Ultimately, the learned Judges set aside the order as one of total lack of jurisdiction.

69. I have pointed out the distinction between the facts of the present case and the case that was dealt with by the Rajasthan High Court. Therefore, that decision, in my opinion, has no application to the case before me.

70. The next decision relied upon by Mr. Subramania Iyer is the one reported in Musal Bhant v. Ganga Charon (A.I.R 1953 Allahabad 118). That was a decision by a Division Bench of that court comprising of Sapru and Agarwala, JJ. In that case, the application before the High Court was under Art. 226 of the Constitution for quashing the conviction and sentence passed against the applicants therein by a Panchayat Adalat. The grounds on which the writ was asked for was on the ground that none of the 5 Panchas who convicted the petitioner therein resided in the village of the accused or the area of the Gaon Sabha. This allegation was not controverted by the opposite parties in that case. The learned Judges on a construction of section 49 of the U.P Panchayat Raj Act, 1947 held that it was essential for the Panchayati Adalat which convicted the applicants therein, to include one Panch who resides in the area of the Gaon Sabha in which the complainant resided and one Panch residing in the area of the Gaon Sabha in which the applicants were residing. The finding of the court was:

“It is quite clear that in this case none of the Panchas resided in the village of the applicants or the area of their Gaon Sabha”.

71. and in this view the learned Judges set aside the conviction of the applicants therein and issued the writ prayed for. The substantial allegation in that case was that none of the 5 Panchas who constituted the tribunal resided in the village of the accused as was necessary under the provisions of section 49 of the U.P Panchayat Raj Act, 1947. That was probably a case of no tribunal at all existing in the eye of the law. It is also seen from that judgment that the objection as to jurisdiction raised before the High Court had been raised before the subordinate tribunals, because the learned Judges observed that such an objection was taker though not in very clear terms.

72. In view of the fact that in the Allahabad case the question was taken before the subordinate tribunal and also because of the fact that was a case of a total non-existence of the Panchayati Adalat in the eye of law, that decision, in my opinion, cannot support the contention of Mr. Subramania Iyer.

73. The decision in J.K Iron & Steel Co. v. L.A Tribunal of India (A.I.R 1953 Allahabad 624) of Raghubar Dayal and Mukerji, JJ., related to a question under the U.P Industrial Disputes Act. It is seen that one of the points raised before the learned Judges was that the petitioners failed to raise an objection before the subordinate tribunal with respect to the latter having no jurisdiction to act as an adjudicator after a particular date. On this ground it was contested that the petitioners should not be allowed to question the jurisdiction of the tribunal in certiorari proceedings. The Full Bench decision of the Madras High Court in Lakshmana Chettiar v. Commissioner of Corporation of Madras (I.L.R 50 Mad. 130) and the decision in Rex v. Willims (1914-I-K.B 608) were relied upon in support of this contention. In that case the petitioner's counsel contended that the decisions in the Madras Full Bench case and that of the English case will not apply and he relied upon the well-known case of Ledgard v. Bull reported in (I.L.R 9 Allahabad 191). Their lordships after considering this contention observed as follows:—

“Even if the adjudicator had ceased to have jurisdiction, it was for the petitioners to raise the objection before the adjudicator with respect to his jurisdiction and to raise it again before the appellate tribunal. Their failure to raise this objection could be excused only if they were ignorant of it. This is not alleged.”

74. The learned Judges further observed at page 630;

“We are of opinion that the writ of certiorari, which is in the discretion of the court to issue under Art. 226 of the Constitution should not be issued ordinarily in cases where the applicant had failed to urge the grounds on which he claimed a writ of certiorari before the other Tribunals where he could have properly urged the grounds, unless he could show that he was unaware of those grounds when the matter was before the other Tribunals”.

75. These observations of the learned Judges make it very clear that it is not open to a party to raise for the first time in certiorari proceedings the question of jurisdiction of the subordinate tribunal unless he has challenged the jurisdiction before that tribunal itself or he satisfies the court that he was unaware of the circumstances which will put him on an inquiry as to the lack of jurisdiction of the subordinate tribunal. In my view, this decision relied upon by Mr. Subramania Iyer is really against his contentions that he is entitled to raise the question for the first time in this court no matter whether it was raised or not raised before the subordinate tribunal.

76. Lastly, Mr. Subramania Iyer placed very great reliance on the decision of the Supreme Court in U.C Bank v. Their Workmen (A.I.R 1951 S.C 230). That matter arose under the Industrial Disputes Act. In that case their Lordships by a majority judgment after considering in detail the various provisions of the Industrial Disputes Act and the rules framed thereunder regarding the constitution and functions of the Industrial Tribunal, came to the conclusion that the tribunal was not properly constituted according to law and in this view, their Lordships held that was a matter going to the root of the jurisdiction of the tribunal. The learned Chief Justice observes as follows at page 237 of the reports:

“Nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled. No appearance or consent can give a jurisdiction to a court of limited jurisdiction which it does not possess. The distinction clearly is between the jurisdiction to decide matters and ambit of the matters to be heard by a Tribunal having jurisdiction to deal with the same. In the second case, the question of acquiescence or irregularity may be considered and over-looked. When however the question is of the jurisdiction of the tribunal to make the award under the circumstances summarized above, no question of acquiescence or consent can affect the decision.”

77. In my view, the decision of the Supreme Court referred to above has no application to the present case. In the first place, as Chief Justice Kania has pointed out at page 237 of the reports that an objection was raised before the tribunal itself about the sitting of the two members as a tribunal and this makes a lot of difference as the learned Chief Justice himself observes at page 237:

“The final contention that the sittings in the interval constituted only an irregularity in the proceedings cannot again be accepted because, in the first place, an objection was raised about the sitting of the two members as the Tribunal. That objection, whether it was raised by the appellants or the other party, is immaterial. The objection having been over-ruled, no question of acquiescence or estoppel arises.”

78. Therefore this decision is not an authority for the position now taken up by the learned counsel for the petitioner that such a question can be raised for the first time in certiorari proceedings. Their Lordships do not lay down any such proposition. It is also not known as to how that question came to be raised — whether in writ proceedings or in prosecution launched against the applicants for failure to comply with the award. Even if that matter arose in writ proceedings, that decision has no application because as stated by their Lordships, the question of jurisdiction has been raised before the tribunal itself which over-ruled that objection and their Lordships held that the taking part in the further proceedings before the tribunal after their objection has been overruled cannot amount either to acquiescence or estoppel.

79. Mr. Subramania Iyer finally relied upon the decision of Mr. Justice Mehrotra reported in Shyam Kishore v. Licensing Board (A.I.R 1957 Allahabad 773). In that case after construing the provisions of the U.P Excise Act and the rules framed thereunder regarding the constitution of the Licensing Board, the learned Judge came to the conclusion that the Licensing Board was not properly constituted and that any decision taken by such body will necessarily be without jurisdiction. The learned Judge also held that the mere fact that the applicants before him applied along with others for the grant of a license to the said improperly constituted Board, will not bar the applicants from challenging the constitution of the Board itself under Article 226 of the Constitution. The learned Judge further held that where there is no proper constitution of a statutory body any action taken by such a body will be without jurisdiction and there can be no waiver of the right to point out that the statutory body was not properly constituted at all. This authority was relied upon by the learned counsel to support his contention that his client can agitate the question of jurisdiction under Article 226. But when the facts of that case are scrutinised, it will be seen that the very appointment of members to the Licensing Board itself was absolutely without jurisdiction and it was a case as if there is no Board at all which could function, in the eye of the law. But as pointed out by me earlier, that is not the case here. There is a validly constituted Board with the required number of members necessary under the Statute, but it contained also two other members whose appointment was only defective. The decision of the Madras High Court in Surya Rao v. Board of Revenue (A.I.R 1953 Mad. 472) of Mr. Justice Subba Rao was referred to and the learned judge observes as follows at page 777 of the reports:

“In the cases where a person submitted to the jurisdiction of a Tribunal different considerations may arise when a relief of certiorari is claimed for.”

80. These observations of the learned Judge clearly indicate that where there are only certain defects in the constitution of the subordinate tribunal the party must challenge the jurisdiction of that tribunal before raising that issue in proceedings under Article 226. Therefore, in my opinion, this decision of the Allahabad High Court has no application to the present case.

81. The learned Government Pleader appearing for the first respondent and Mr. Govindan Nair appearing for the second respondent have also relied upon certain decisions bearing on the point.

82. The leading case that is often referred to on a matter like this by the Indian High Courts is the decision in Rex v. Williams (1914-I-K.B 608). In that case a baker was charged under section 4 of the Bread Act of 1836 with selling bread otherwise than by weight and was convicted by two Justices of the Peace. By section 16 of the Act it was provided that no person who shall be concerned in the business of a baker shall be capable of acting or shall be allowed to act as a Justice of the Peace under the Act. Notwithstanding this provision, one such person constituted the Bench which convicted the accused. The accused did not, during the trial, before the Justices object to the competence of that court to deal with the matter, nor did he state in the affidavit before the High Court that he was not aware of this disqualification of one of the Justices of the Peace at the time when he was convicted.

83. He applied for the issue of a writ to quash the conviction mainly on the ground that section 16 of the Bread Act, 1836 has been contravened and therefore the conviction is illegal and void.

84. This contention was negatived by the court. Channell, J., at page 613 observes as follows.

“No objection was taken to the jurisdiction of the court below at the hearing before that court; that being so, it is the rule of this court not to grant a writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the court below of the facts on which he bases his objection. That rule is established on good grounds. It applies equally whether the objection is on grounds which make the act of the Justices voidable or void.”

85. Then at page 614 the learned Judge further observes:

“In my view the writ is discretionary. A party may by his conduct preclude himself from claiming the writ ex debito justitia, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not effect the principles on which the court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitia to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugne them.”

86. The other two learned Judges Rowlatt and Atkin agreed with the reasoning of Channell, J. and ultimately the application for the issue of a writ was rejected. As Rowlatt, J. observed at page 615:

“It is a very salutary rule that a party aggrieved must either show that he has taken his objection at the hearing below or state in his affidavit that he had no knowledge of the facts which would enable him to do so”

87. This decision has been considered by a Full Bench of the Madras High Court in Lakshmanan Chettiar v. Commissioner of Corporation of Madras (I.L.R 50 Mad. 130). The High Court was invited to issue a writ of certiorari against the officers mentioned therein and to quash their orders. The interference of the High Court was invoked on the ground that the officers mentioned therein have acted without jurisdiction. The application was opposed by the contesting respondent on the ground that the writ should not be issued in as much as the applicant therein has by his conduct taken the chance of a pronouncement in his favour by the subordinate tribunal without in any way challenging the jurisdiction of these tribunals. It was frankly conceded on behalf of the petitioners that the question of jurisdiction was not raised before the tribunals themselves. The learned Judges observed at page 134:

“The English authorities which were cited prima facie establish the proposition that in such circumstances the applicant cannot obtain a writ of certiorari ex debito justitia but the court is exercising a purely discretionary power”.

88. In dealing with the contention that failure to object to jurisdiction of this tribunal only debars the applicant when the objection is one involving the investigation of facts which were or should have been within the knowledge of the applicant when he was before the lower court, and does not apply to a contention of law, the learned Judges observed as follows:

“We see no warrant in the cases for drawing any such distinction because in our opinion the test that they lay down is whether the applicant armed with a point either of law or of fact which would oust the jurisdiction of the lower court has elected to argue the case on its merits before that court. If so, he has submitted himself to a jurisdiction which he cannot be allowed afterwards to seek to repudiate. We are of opinion that the applicant has so conducted himself as to preclude this court from exercising a discretionary jurisdiction in his favour”.

89. In this view the learned Judges dismissed the application for the issue of a writ and I may also state that one of the English cases quoted therein is the decision in Rex v. Williams (1914 I K.B 608) already referred to.

90. A similar question arose before Mr. Justice Subba Rao in the decision reported in M.U.M Services Ltd. v. R.T Authority, Malabar (A.I.R 1953 Mad. 59) and Surya Rao v. Board of Revenue (A.I.R 1953 Mad. 472). The decision reported at page 59 arose under the Motor Vehicles Act. It was contended before the learned Judge that the Regional Transport Authority had no jurisdiction to deal with a particular matter and the learned Judge at page 60 observed as follows:—

“If the petitioners thought that the Regional Transport Authority had no jurisdiction, they should have raised that plea without taking a chance of getting a decision in their favour. Designedly or ignorantly they kept quiet — or they expected that it would decide in their favour. It is too late to question the jurisdiction of a Tribunal to which they have submitted”.

91. The learned Judge referred with approval the decision of the Full Bench in Lakshmanan Chettiar v. Commissioner, Corporation of Madras (I.L.R 50 Mad. 130 F.B) already dealt with. On that reasoning the learned Judge declined the point of jurisdiction to be raised in proceedings before him under Article 226.

92. The decision of the same learned Judge reported at page 472 in Surya Rao v. Board of Revenue (A.I.R 1953 Mad. 472) again dealt with the same position under Article 226. A question arose under the Madras Estates Abolition Act and in the High Court it was contended that the Government had no jurisdiction to delegate its powers to the Revenue Board which had dealt with the matter. The learned Judge held that this contention raises a question of jurisdiction and disposed it of saying:

“The petitioner who has submitted to the jurisdiction of the Revenue Board is precluded from questioning the jurisdiction in a writ of certiorari.”

93. To a similar effect is the decision of Misra, Chief Justice and Mr. Justice Mohd. Ahmed Ansari in Blanak Ramakka v. State (A.I.R 1955 Hyderabad 97). It was contended before the learned Judges that the decision of a Revenue Minister and of the Revenue courts in that case were wholly without jurisdiction. The learned Judges observed that throughout the proceedings the petitioner had submitted himself to the jurisdiction of the Revenue Minister and the Revenue courts and that it is rather too late in the day for him to press the plea of want of jurisdiction in proceedings under Article 226. At page 98 the learned Judges observed:

“It is well known that in the matter of issue of a writ by way of certiorari, the High Court's powers are discretionary and where the applicant armed with the point which would oust the jurisdiction of the subordinate tribunal has elected to get the case decided by the court on its merits, he must be taken to have submitted to its jurisdiction and he cannot be allowed later to repudiate that decision in a petition for a writ of certiorari.”

94. In support of this reasoning the learned Judges relied upon the decisions in Rex v. Williams (1914-I K.B 608), Lakshmanan Chettiar v. Commissioner, Corporation of Madras (I.L.R 50 Mad. 130) Surya Rao v. Board of Revenue (A.I.R 1953 Mad. 472) and certain other decisions.

95. I may also refer to the decision of Chagla, Chief Justice and Mr. Justice Dixit in G.M.T Society v. Bombay State (A.I.R 1954 Bombay 202). That was a case which arose under the provisions of the Motor Vehicles Act. The Regional Transport Authority had granted a permit to the petitioners therein. The matter was taken on appeal before the State Transport Authority and the appeal was dismissed. A further appeal was taken to the Government and the Government reversed the decision of the Regional Transport Authority. The party who had obtained the permit from the Regional Transport Authority and who lost before the Government filed application under Article 226 for quashing the order of the Government as being without jurisdiction. The learned Advocate-General appearing for the respondents there took a preliminary objection that the applicants were not entitled to raise this question of jurisdiction for the first time in the High Court when they had not raised it before the tribunal and when they have submitted to the jurisdiction of the tribunal. The learned Judges observed at p. 203 as follows:

“The petitioners never raised the point as to the jurisdiction of Government when Government heard the matter. The petitioners were quite content to permit Government to hear the appeal preferred by respondent 4. If Government had decided in favour of the petitioners we would not have heard anything further about the jurisdiction of Government to hear appeals from the decision of the State Transport Authority, but it is because Government have decided against the petitioners that the petitioners have thought of coming to us in order to exercise our jurisdiction under the Constitution”.

96. The learned Judges have very exhaustively considered this question and they accept the principle laid down in the decision reported in Rex v. Williams (1914-I-K.B 608). The learned Judges observed at p. 203:

“It must be borne in mind that in exercising its jurisdiction under Arts. 226 and 227 the High Court is not exercising an ordinary jurisdiction”.

97. After pointing out the rights of parties in a suit and the right to take up the question of jurisdiction at any stage, the learned Judges observed:

“But the principle is different when the petitioner comes to this court for a writ. The court must tell the petitioner ‘It was open to you to raise that point before the tribunal whose order you are challenging. You have sat on the fence, you have taken a chance of the tribunal deciding in your favour, and it is not open to you now to come to us and ask for a writ’.”

98. In the end the learned Judges rejected the application for the issue of a writ.

99. To a similar effect is the decision of the T.C High Court of Mr. Justice Joseph Vithayathil, reported in John v. State (1955 K.L.T 568). The learned Judge following the decision of the Bombay High Court referred to above, has held that the question of the tribunal's jurisdiction cannot be raised for the first time under Art. 226.

100. I may also refer to a decision of my learned brother Mr. Justice Raman Nayar reported in Venkitasubramania Iyer v. Catholic Bank (1957 K.L.T 411, 1957 K.L.J 380). The learned Judge following the Bombay decision and the decision of Mr. Justice Joseph Vithayathil referred to above, has held that an applicant under Art. 226 cannot be heard to raise the question of jurisdiction for the first time under Art. 226.

101. I may also refer to the decision of Ramaswami, C.J and Prasad, J. of the Patna High Court reported in Sarju Prasad v. S.B.R Transport Authority (A.I.R 1957 Patna 732). There the question was as to whether a person who had a ‘financial interest’ could be a member of the State or Regional Transport Authority under section 44(2) of the Act. It was argued before the learned Judges that one member was disqualified from being a member of the Regional Transport Authority as he was having a ‘financial interest’ in other transport undertakings. It was contended by the learned Government Advocate that this objection could not be raised before the High Court as no such objection to the constitution of the Regional Transport Authority on this ground was taken when the proceedings were conducted by the petitioner before that tribunal. The learned Judges accepted the contentions of the Learned Government Advocate and declined to permit the applicant therein to raise the question of jurisdiction.

102. Reference also be made to the recent decision of the Supreme Court reported in Pannalal Binjraj v. Union of India (A.I.R 1957 S.C 397). These proceedings arose under Art. 32 of the Constitution questioning the validity of orders of transfer of their Income-tax files and also the subsequent proceedings including the assessment orders on the ground that section 5(7A) of the Income-tax Act was ultra vires of the Constitution and in consequence, the whole proceedings were without jurisdiction and void. It is not necessary for me to go into the several matters considered by their Lordships in that decision. In dealing with a group of petitions namely, the Raichur Group and Amritsar Group whose cases were transferred to other jurisdictions and their contention that the orders of transfer and the further proceedings were with out jurisdiction, their Lordships observed at p. 412 as follows:—

“There is moreover another feature which is common to both these groups and it is that none of the petitioners raised any objection to their cases being transferred in the manner stated above and in fact submitted to the jurisdiction of the Income-tax Officers to whom their cases had been transferred. It was only after our decision in Bidi Supply Co. v. The Union of India (B) (supra) was pronounced on 20th March, 1956, that these petitioners woke up and asserted their alleged rights, the Amritsar group on 20th April, 1956, and the Raichur group on 5th November, 1956. If they acquiesced in the jurisdiction of the Income-tax Officers to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of this court under Art. 32. It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this court (Vide Halsbury's Laws of England, Vol. II, 3rd Edn., p. 140, para 265; Rec. v. Tabrum: Ex parte Dash, (1907) 97 L.T 551 (U) Lakshmanan Chettiar v. Corporation of Madras (I.L.R 50 Mad. 130)”.

103. Based on this reasoning their Lordships held that the orders of transfer made by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, against these groups, cannot therefore be challenged by them as unconstitutional and void.

104. It will be seen from the above extract that their Lordships have accepted as correct the principle laid down by the Full Bench decision in Lakshmanan Chettiar v. Corporation of Madras (I.L.R 50 Mad. 130) referred to already. According to their Lordships, if there has been a submission to jurisdiction or acquiescence in the jurisdiction of the subordinate tribunal, if is not open to them to attack the jurisdiction of the subordinate tribunal for the first time in the court. If a party has not raised the question of jurisdiction before the subordinate Tribunals, that conduct would disentitle him to any reliefs at the hands of the court. The decision further shows that the same principle applies to proceedings under Art. 226 also. Therefore, relying upon the decisions cited on behalf of the respondents and dealt with above, I hold that it is not open to the applicants to raise the question about the defective constitution of the State Transport Authority for the first time in this court under Art. 226. The petitioner has submitted to the jurisdiction of the State Transport Authority and by such conduct, the petitioner has disentitled himself to get any relief from this court in these proceedings.

105. In the result this writ petition is dismissed with costs of the first and second respondents fixed at Rs. 100/- each.