Mr. M.R.V Achar, Mr. A.S Vishwanath, Mr. M. Rangaswamy for Petitioners
Mr. P.R Ramesh, HCGP for R-1; Mr. C.S Shanthamallappa for R-2
NOTE: AFFIRMED IN WAs. Nos. 1439 TO 1441 OF 1988 DATED 25-10-1988
Balakrishna, J.:—
These Writ Petitions are directed against the resolution passed by the Regional Transport Authority, Dakshina Kannada, at its meeting held on 18-6-1988 in Subject No. 2/88-89, in respect of application dated 19-1-1988 of respondent-2 for grant of pucca stage carriage permit on the route Varahi Irrigation Project-Mani Dam to Mangalore via Huiikal Gate, Balebare, Hosangadi. Siddapura, Ampar, Kandlur, Basroor, Kundapur, Kota, Sastan Brahmavar, Odupi, Mulki, Mangalore - one round trip; Varahi to Kundapur - shuttle service; Kundapur to Mangalore - Express service with halts at above said stations for a period of five years as per the notified timings, the petitioners being rival applicants.
2. The common grievance of the petitioners is that the impugned resolution of the R.T.A deserves to be quashed for non-compliance with the requirements of natural justice since the R.T.A declined to club together the applications of the petitioners along with the application of respondent-2 dated 19-1-1988 and for failure to consider the said applications together though they related to substantially the same route and also since all the applications were ripe for consideration.
In W.P No. 9555/88, the petitioner applied before the R.T.A in October, 1987 for grant of stage carriage permit on the inter-regional route between Sagar and Mangalore via Bheemanakone, Heggodu, Battemallappa, Hosanagar, Nagar, Mundalli, Chakranagar, Mundalli, Masthikatte, Hulikal Gate, Balebare, Siddapur, Kundapur, Brahmavar, Udupi and Mulki. The application was duly published under Section 57(3) of the Motor Vehicles Act, 1939 (The Act’ for short) read with Rule 97 of the Karnataka Motor Vehicles Rules, 1963 (‘the Rules’ for short) in the Karnataka Gazette dated 29-10-1987 inviting objections and fixing the last date for receiving objections as 30-11-1987. The said application was notified to be considered at a meeting to be held on 19-12-1987 under notification Annexure-A. The application of respondent-2 dated 19-1-1988 for grant of stage carriage permit on the inter-regional route between Varahi Irrigation Project-Mani Dam and Mangalore via Hulikal Gate etc., was published under Section 57(3) of the Act read with Rule 97 of the Rules on 10-3-1988 inviting objections with the last date for receiving objections being 1-4-1988. The said application was notified for consideration on 16-4-1988 vide Karnataka Gazette Annexure-D. According to the petitioner, he is an existing operator having a common route of 150 K.Ms from Hulikal Gate to Mangalore which constitutes a major portion of the route in question and therefore he filed his objections opposing the grant of stage carriage permit to respondent-2. The R.T.A issued a corrigendum dated 26-3-1988 published in the Karnataka Gazette on 12-5-1988 seeking to rectify the mistake in the earlier publication dated 10-3-1988. Later on, the application of respondent-2 was taken up for consideration on 18-6-1988 by the R.T.A at its meeting under Subject No. 2/88-89. As stated earlier, according to the petitioner, the route in question is a common route measuring 167 K.Ms in length out of which the petitioner is an existing operator of a length of 150 K.Ms The application of the petitioner was not clubbed along with the application of respondent-2 which, according to the petitioner, is wrong particularly because the application of the petitioner is much anterior to that of respondent-2 in respect of substantially the same route, his application being ripe for consideration. It is also stated by the petitioner that what was considered by the R.T.A in respect of the route for which respondent-2 applied is materially different from the route mentioned in the application of respondent-2 which in term is also at variance with the corrigendum issued by the R.T.A and, therefore, the impugned resolution of the R.T.A is vitiated.
In W.P No. 10700/88, the petitioner is an applicant before the R.T.A for grant of stage carriage permit in respect of the route in question for substantially the same route. His application dated 27-8-1987 was duly notified in the Gazette dated 24-9-1987 inviting objections. The application of the petitioner was set down for disposal on 21-11-1987 at the meeting of respondent-1. However, the application of the petitioner was not considered and disposed of along with the application of respondent-2 when the R.T.A considered and allowed the application of respondent-2 on 18-6-1988. According to the petitioner, the route for which the petitioner applied is common to the route in respect of which respondent-2 applied to the extent of 95% and was therefore, substantially the same route. On 18-6-1988, it is stated, that the petitioner pointed out to the R.T.A that his application was not placed in the agenda on that day though the route is substantially the same to the extent of 95% in length and that the consideration of respondent-2's application should be deferred. However, the R.T.A proceeded to pass the resolution in favour of respondent-2.
In W.P No. 10702/88, the petitioner is an applicant for grant of stage carriage permit on the route Sampekatte to Thalapady via Kollur, Coondapur, Udupi, Mulky and Mangalore by virtue of his application filed in November, 1987 before the R.T.A The application was notified in the Gazette dated 3-12-1987 in accordance with law and, according to the petitioner, the application was ripe for consideration when respondent-2 filed his application and the R.T.A did not consider the application at all and the same is pending. The petitioner states that the R.T.A without disposing of the application of the petitioner filed in November, 1987 though ripe for consideration and anterior to the application of respondent-2, considered the application of respondent-2 only and resolved to grant permit in his favour. According to the petitioner, the route in question is substantially the same route having a common route between Coondapur and Mangalore for a length of 100 K.Ms and the distance between the entire route in respect of which the R.T.A resolved to grant permit to respondent-2 is about 150 K.Ms
The common feature alleged in all the three Writ Petitions is that the applications for grant of stage carriage permits in respect of substantially the same route as that of respondent-2 were filed before respondent-2 filed his application on 19-1-1988, and that the facts disclose that the applications of all the petitioners in these Writ Petitions were ready and ripe for consideration on the date when the impugned resolution was passed by the R.T.A
All the petitioners are aggrieved by the impugned resolution and have sought for quashing of the same.
3. Since common questions of law and facts are involved in these Writ Petitions, they are disposed of by this common order.
4. There is no dispute about the fact that the petitioners applied for grant of stage carriage permits much earlier to the application filed by respondent-2. Obviously, the petitioners are the earlier applicants. A mere cursory glance at Annexures ‘A’ to ‘E’ would reveal the fact of material variation in the description of the route by respondent-2. In the application for grant of permit, respondent-2 has described the route as Varahi Irrigation Project-Mani Dam to Mangalore via Hulikal Gate, Balebare, Hosangadi, Siddapura, Ampar, Kandlur, Basroor, Kundapura, Kota, Sastan Brahmavar, Udupi, Mulki, Mangalore (One R.T) Varahi to Kundapur shuttle service, Kundapur to Mangalore - express service with halts at above said stations. Annexure-D is the notification issued by the Secretary, R.T.A, D.K, Mangalore under Section 57(3) of the Act in respect of the application of respondent-2. In this notification, the route described is Varahi Irrigation Project, Mani to Mangalore via Hulikal Ghat, Balebare, Hosangadi, Siddapura. Ampar, Kandlur, Basrur, Kundapur, Kota, Sastan, Brahmavar, Udupi, Mulki, Mangalore (One R.T), Tarahi to Kundapur shuttle service, Kundapur to Mangalore express service with halts at above said stations. Annexure-E is the corrigendum issued on 28-3-1988 correcting the mistakes found in the notification dated 19-1-1988 under Annexure-D. According to the corrigendum, the description of the route is Varahi Irrigation Project, Mani Dam to Mangalore via Hulikal Gate, Balebare, Hosangadi, Siddapur, Ampar, Kandlur, Basrur, Kundapur, Kota, Sasthan, Brahmavar, Udupi, Mulki, Mangalore (One R.T), Tarahi to Kundapur shuttle service, Kundapur to Mangalore express service with halts at above said stations. In the application of respondent-2, in the description of the route, is found the words “Varahi to Kundapur shuttle service” whereas in the notification dated 19-1-1988, the corresponding description is Tarahi to Kundapur and in the corrigendum it is shown as Tarahi to Kundapur shuttie service. Similarly, in the application under Annexure-B, the description of the route commences with the words “Varahi Irrigation Project-Mani Dam to Mangalore, whereas in Annexure-D the corresponding description is Varahi Irrigation Project Mani to Mangalore and in the corrigendum the description is Varahi Irrigation Project Mani Dam to Mangalore. It is also noticed that the corrigendum was issued on 28-3-1988 and representations to make in this connection were required to be made on or before 31-3-1988 and the Gazette notification of the corrigendum was published on 12-5-1988. From these glaring discrepancies which are material for the purpose of grant of stage carriage permit which are staring in the face, added to the corrigendum having been published in the Gazette on 12-5-1988 inviting objections or representations to be made before the dead-line of 31-3-1988, there could be no getting away from the position that the notification and description of the route were inherently defective and, therefore, the conclusion that could be reasonably drawn is that these material irregularities and defects constitute errors apparent on the face of the record.
5. Undisputedly, the applications for grant of stage carriage permits filed by the petitioners were much anterior to the application of respondent-2. The applications of the petitioners for grant of stage carriage permits were notified by the Secretary, R.T.A, D.K, Mangalore. The route sketch produced in this Court exfacie shows that the length of the route to a great extent is common to the petitioners and respondent-2. In other words, the route sketch, the correctness of which is not disputed, drives home the point that the routes applied for by the petitioners are substantially the same as the route of respondent-2. Based on this factual determination, the rule of law emanating from the principle of natural justice as recognised by the Courts applicable to the facts of this case is that where there are two or more applications for grant of stage carriage permit in respect of a route which is the same or substantially the same, if the applications are ripe for consideration, the legal duty of the R.T.A or the S.T.A as the case may be is to consider such applications together after clubbing the applications and dispose them of on merits in accordance with law. This is based on the sound principle which is succinctly stated in the case of K. Pandyaraja Ballal v. State Transport Appellate Tribunal, Bangalore . W.P Nos. 1200, 1215 & 1216 of 1960 DD-10-11-1961., by a Division Bench of this Court:
“…….If two persons make an application for the grant of a permit and if the routes to which their applications relate are substantially the same, it is obvious that under the provisions of the Motor Vehicles Act, the Regional Transport Authority cannot take up only one of those applications and refuse to consider the other. If it does so, it would be acting beyond its powers. In my opinion, the procedure by which the Regional Transport Authority granted the permit to Achuthan was so defective and so irregular as to justify the conclusion that the permit granted by the adoption of that procedure was not validly granted.”
6. The more important principle underlying the need to club together applications for grant of stage carriage permits in respect of the same or substantially the same route when the applications so made are ripe for consideration is to be found in the decision of a Division Bench of this Court rendered in the case of K.S.R.T.C v. R.T.A* . AIR 1984 Karnataka 4.:
“The second answer to Sri Sundaraswami's contention is that the requirement that all the rival applications should be clubbed and considered together stems from the rules of natural justice. There were rival claims as to the additional trips relating substantially to the same route. There are statable possibilities in this case that if an application for additional trips or for grant of a new permit was allowed in favour of one of the applicants, that circumstance might possibly be weighed against the similar prayer of other applicants particularly when the prayer is considered outside the inter-state agreement where the question of need would have to be examined. All these questions in the matter of grant of reliefs, either as sought by the rival applicants or in any modified form, would depend upon a consideration and inter-play of a variety of diverse factors a satisfactory consideration and assessment of the effects of which could be ensured only when all the applications were dealt with together. It is not possible to predict what conclusion the ‘STA’ would reach on each of these applications if a cumulative assessment of these rival and diverse claims put forward by petitioner and respondents 6, 8 and 10 was made. It is an over simplification of the situation to say that the grant of application of petitioner Pungappa would not come in the way of grant of prayers made by other applicants such as respondents 6, 8 and 10. It might come in the way; or it might not. In such a situation the question would equally well arise as to whose application is to be taken up first. It is, therefore, not possible to subscribe to the contention of Sri Sundaraswami that there would be no legal infirmity stemming from a consideration of the application of petitioner Pungappa in isolation. The non-observance of the rules of natural justice would by itself, without more, vitiate the proceedings as such non-observance is itself an injury and no further injury need be demonstrated. The Supreme Court in S.L Kapoor v. Jagmohan, (1980) 4 SCC 379 : AIR 1981 SC 136 at page 147 said:
“24……In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary……”
7. Therefore, in view of the legal position, the question is whether the Writ Petitions questioning the impugned resolution of the R.T.A passed without clubbing the applications of the petitioners along with the application of respondent-2 when they were ripe for consideration and particularly when the applications of the petitioners were much earlier to the application of respondent-2 should be entertained on the ground of error of law conspicuously patent on the face of the record.
8. The material discrepancies pointed out earlier in the description of the route as between the application of respondent-2, the notification issued by the Secretary, R.T.A and the corrigendum published thereafter should weigh in the consideration of the question whether the Writ Petitions deserve to be entertained by a reason of glaring error apparent on the face of the record.
9. By analogy of facts which are not in dispute, I must hold that the petitioners can invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution without reference to any remedy however efficacious it be. The existence of an alternative remedy is not a bar to the Writ Petitions. In this regard, I am supported in my view by the ratio of the decision in K.S.R.T.C v. R.T.A*;
“……Even where an equally efficacious alternative remedy exists, where, however, fundamental rights are affected where rules of natural justice are violated, or where there is a failure on the part of the authority concerned to confine itself within the bounds of its legitimate jurisdiction or where there is a failure to exercise a jurisdiction vested in it or where there is an error of law apparent on the face of the record, a person aggrieved can invoke the extraordinary jurisdiction of this Court under Article 226 without reference to any remedy however equally efficacious it be. The existence of an alternative remedy does not oust the jurisdiction of the High Court under Article 226. The rule that the Court does not entertain a petition under Article 226 when there is an equally efficacious alternative remedy is not a rule of law, but is a principle the Courts have evolved for the guidance of their own discretion.
In regard to the effect of the existence of an alternative remedy in the context of certiorari Halsbury (IV Edn.) Vol. 11, para 1528 states:
There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy; and, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute.”
Though it was contended on behalf of respondent-2 that an equally efficacious alternative remedy is available by way of appeal provided under Section 64(1)(a) of the Act, the Writ Petitions filed without exhausting the statutory remedy ought not to be entertained, such a plea cannot be accepted for the reasons already stated.
10. The learned Counsel for respondent-2 relied on the decision in R. Siddamma v. Regional Transport Authority, Kolar . AIR 1982 Karnataka 148.. What was held in that case was that every intending applicant in respect of a given route cannot hold up the proceedings in respect of an applicant whose application was ready for hearing. But since the delay in getting the application which was actually ready for hearing was due to the illegal endorsement issued by the Secretary, R.T.A it was directed that if the authority had not disposed of the earlier application, it could think of clubbing the application with pending application after publication under Section 57(3) of the Act. In the case on hand, not only the applications of the petitioners were earlier to that of respondent-2 but they were also ripe for hearing and needless to say the routes were substantially the same. The decision cited by the learned Counsel for respondent-2 will be of no assistance to him.
11. In Venkataswami Reddy v. R.T.A . 1965 1 Mys. L.J 488. it was held:
“Ordinarily the High Court will not entertain a petition for a Writ under Article 226 of the Constitution, where the petitioner has an alternative remedy, which without being unduly onerous provides an equally efficacious remedy.
Where the RTA declined to grant a stage carriage permit to the petitioner, the right of appeal provided by Section 64(1)(a) Motor Vehicles Act is an adequate remedy and unless there are compelling reasons the High Court will not interfere under Article 226.
Where the objection is that only three out of four members of the RTA were present at the meeting and therefore it was not properly constituted, it ought to have been raised before the RTA itself and the objection cannot be permitted to be taken in the petition under Article 226.”
The facts of that case are self-explanatory and do not bear any similarity to the facts as well as the point urged in the instant case. Further, the Division Bench significantly observed that interference under Article 226 is not permissible unless there are compelling reasons. I am of the opinion that there are compelling reasons in this case which warrant interference.
12. In Chandavarkar Sita Ratna Rao v. Ashalatha . 1986 4 SCC 447 the Supreme Court was considering questions arising under Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) in a Writ Petition filed under Articles 226 and 227 of the Constitution of India. The Supreme Court held:
“It is well-settled that the High Court can set aside or ignore the findings of fact of an appropriate Court if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Courts below have come or in other words a finding which was perverse in law…………. If there is evidence on record on which a finding can be arrived at and if the Court has not misdirected itself either on law or on fact, then in exercise of the power under Article 226 or Article 227 of the Constitution, the High Court should refrain from interfering with such findings made by the appropriate authorities.”
In the instant case, there is adequate material apparent even at a first glance of record on which it is possible for me to hold that the R.T.A has misdirected itself both on law and facts and, therefore, the decision, in my view, supports interference under Article 226.
13. Now, I wish to refer to the impugned resolution of the R.T.A dated 18-6-1988 passed in Subject No. 2/88-89. The relevant portion of the resolution reads thus:
“The preliminary objections raised by the objector Sri Sadananda Chathra that his application for the route Sagar to Mangalore is pending for consideration before this Authority. The same may also be considered along with this application.
Sri V.D Kumar argued that the application is pending for substantial portion of the route, it could be taken now since the application of Sri S.S Chathra also sought for the same route and ripe for consideration.
Sri C.V Kumar, Counsel for the objector H.T Co. argued that the substantial portion of the route, the application of his client is pending which may also be taken along with this application.
The preliminary objections raised by Mr. S.S Chathra, Hanuman and others are not maintainable since their applications are not ripe and ready for consideration, for, the concurrence sought for from the neighbouring authority no reply is received either for or against and the routes are also entirely different. Hence, these applications will be considered when they are ready and ripe for consideration.”
On page 4 of the resolution, the following is the portion relevant in the context:
“By way of reply Sri C.S Shanthamallappa argued that the objections raised by the objectors are not maintainable……………..The application of Mr. Chathra and H.T Co. were filed for the different route and different destination and not on the identical route and their applications are also not ripe for consideration and as such question of those applications does not arise at this juncture, his client is already operating 2 services to the best satisfaction of the general public without any blemish as well as to the best satisfaction of this Authority.”
On page 5 of the resolution, the relevant portion is:
“R.T.A perused the records. The applicant has produced all the requisite certificates, viz.. Solvency, Income-tax clearance certificate. R.T.A Shimoga has granted the concurrence for the grant of the Stage Carriage Permit on the route in question. In considering the contention of the objectors to consider their earlier applications for the substantial same route is not ripe for consideration, since the concurrence sought for from the neighbouring RTA, no reply is received so far either for or against and more-over, their applications for different destinations and not on the identical route.”
A bare look at these observations of the R.T.A would indicate a patent misdirection of the R.T.A in its failure to consider the relevant points before reaching a conclusion on a question of law. The exercise of jurisdiction of the R.T.A is what is in question. If the jurisdiction of the R.T.A is based on jurisdictional error and since that is the case of the petitioners, there is no reason why this Court should not exercise the jurisdictional control in order to review the jurisdictional conduct of the R.T.A
On the one hand, the R.T.A observes that the applications are not ripe and ready for consideration for the reason that the concurrence sought for from the neighbouring authority has not yet been received and, on the other, in another portion of the resolution not only the R.T.A holds that the applications of the petitioners are for different destinations but also not on the identical route. The misdirection of the R.T.A is that the intimation of its counter-part had not yet been received and, therefore, the applications were not ready and ripe for consideration. According to settled law, if the result of consultation or the opinion of the R.T.A from whom the opinion is sought is not received before the expiry of 90 days from the date of communication to the said R.T.A, the need to await opinion is obviated. In such a situation, there is deemed consultation and, therefore, the R.T.A had committed an error of law in not clubbing the applications for consideration and disposal. Another reason assigned by the R.T.A to hold that the applications were not ready and ripe for consideration is that the applications are for different destinations and not on the identical route. This is again another instance of misdirection on the part of the R.T.A The law does not provide that if the destinations are different the routes cannot be substantially the same. On the one hand, the R.T.A holds that the applications are not ready and ripe for consideration and, on the other, it holds that the applications are for different destinations and not on the identical route. These observations are patent contradictions in terms. In these circumstances, it is possible to hold that there is a patent error of law and a substantial error of law on the face of the record which calls for intervention under Article 226 of the Constitution.
14. The latest trend in Administrative Law is in taking a new position that every error of law by a Tribunal must necessarily be jurisdictional. “The House of Lords in England extended the concept of jurisdictional error of law to such a point that the concept of non-jurisdictional error may disappear” - Anisminic case (1969) 85 LQR 198. For the present purpose, it would mean that any error of law made by a Tribunal when material to its decision may render the decision ultra-vires. What is relevant is the actual matter committed to the decision of the Tribunal. The power of the Court to consider whether there is jurisdiction to make or confirm the order is the power to review the vital findings on which the existence of the jurisdiction relied upon depends. Jurisdictional control has a firm constitutional base.
As held by Lord Denning M.R:
“No Court or Tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it” - Pearlman v. Harrow School Governors (1979) QB 56.
In certiorari proceedings, the underlying policy is that all inferior Courts and authorities have only limited power or jurisdiction and, therefore, they ought to be kept within their legal bounds. Certiorari would issue where the order of the Tribunal shows error on the face of record and hence voidable even if the decisions are intra-vires.
Lord Hailsham L.C observed:
“Un-reasonableness is a generalised rubric covering not only sheer absurdity or caprice but also illegitimate motives and purposes, a wide category of errors commonly described as “irrelevant considerations and mistakes and misunderstandings which can be classed as self-misdirection or addressing one's self to the wrong question.”
I am inclined to hold that the impugned resolution suffers from unreasonableness.
Recent advances in Administrative Law indicate a new ground of judicial review of administrative action. Grounds such as misunderstanding or ignorance of an established and relevant fact, or acting upon an incorrect basis of fact, would justify interference by the High Court. Administrative Law, Fifth Edition, H.W.R Wade, page 295, Error of material fact: Recent cases contain suggestions of a new ground of judicial review, ‘misunderstanding or ignorance of an established and relevant fact’, or acting ‘upon an incorrect basis of fact.’ In a case where the Secretary of State had power to give directions if he was satisfied that the local education authority were acting unreasonably, Lord Wilberforce, in explaining that such powers were to some extent subject to judicial review, said:
“If a Judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must inquire whether those facts exists, and have been taken into account, whether the Judgment has been upon a proper self-direction as to those facts, whether the Judgment has not been made upon other facts which ought not to have been taken into account. If those requirements are not met, then the exercise of Judgment, however bona fide it may be, becomes capable of challenge.”
In the same page, the relevant portion of the extract reads thus:
“and he approved a remark by Lord Denning M.R in another case that the Court could intervene if a minister plainly misdirects himself in fact or in law. In New Zealand Cooke, J. held that a minister's decision was invalid for failure to take into account the true facts, a medical referee having misled him by an inadequate report.”
Benjamin Nathan Cardozo said:
“Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters for the night is not the journey's end. The Law like the traveller must be ready for the morrow. It must have a principle of growth.”
15. I am convinced that on the facts and in the circumstances of these cases, the impugned resolution deserves to be struck down.
16. In the result rule is issued and made absolute. The Writ Petitions are allowed. The impugned resolution is quashed. Respondent-1 is directed to notify the application of respondent-2, club it along with the applications of the petitioners as well as those of others that are ready and ripe for consideration as on the date of this order provided the applications are in regard to the same or substantially the same route. The applications shall be disposed of together on merits within ninety days from the date of receipt of this order by respondent-1.
There shall be no order as to costs.
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