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Gandhinagar Motor Transport Society Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 886 of 1953
Judge
Reported inAIR1954Bom202; (1953)55BOMLR922; ILR1954Bom247
ActsConstitution of India - Articles 226 and 227; Motor Vehicles Act
AppellantGandhinagar Motor Transport Society
RespondentState of Bombay
Appellant AdvocateN.K. Gamadia, ;Khemchand Gopaldas, Advs. and ;Dayalji & Dipchand
Respondent AdvocateM.P. Amin, Adv. General, ;Little and Co., ;M.M. Dharia and ;V.R. Gupte, Advs.
Excerpt:
- - 2. two preliminary objections have been taken by the advocate general, and in our opinion both the objections are good and must beupheld. a suit may well be filed within the period of limitation; ' 5. now, this principle was very clearly and very emphatically laid down in -rex v......not pursue a legal remedy. the remedy he pursued was extra-legal or extra-judicial. once the final decision of government is given, a representation is merely an appeal jfor mercy or indulgence, but it is not pursuing la remedy which the law gave to the petitioner. but even assuming that that time should be condoned, the petitioners did not make a representation to government till 15-2-1953, a month after the order was passed, and even when they received the final decision of government on 3-4-1953, they waited a month more before this petition was presented. therefore, in our opinion, there has been such delay in the presentation of this petition as would disentitle the petitioner to any relief at our hands. 3. but there is another objection which is equally serious. the main ground on.....
Judgment:

Chagla, C.J.

1. In February 1949 the petitioners were granted a permit to run a transport bus for carrying passengers on the Kolhapur-Valivade route under the provisions of the Motor Vehicles Act. On 23-5-1951, the petitioners applied to the Regional Transport Officer for a permit to run a second bus. The Regional Authority held a meeting on January 30, 1952, to consider the application, and on 3-3-1952, he granted a permit to the petitioners. Respondent 4 and 2 others had also applied for a permit, but their application was rejected. Respondent 4 appeal- ' ed to the State Transport Authority, and on 30-6-1952, the appeal of respondent 4 was dismissed. Respondent 4 went in appeal to Government and the Government by their order dated 15-1-1953, reversed the decision of the Regional Transport Officer and directed that a permit should be granted to respondent 4. It is that order which is challenged before us by the petitioners.

2. Two preliminary objections have been taken by the Advocate General, and in our opinion both the objections are good and must beupheld. The first objection is as to delay. Theorder which is challenged was passed on 15-1-1953, and the petition challenging it was preferred to this Court on 11-5-1953. The explanation that is given by Mr. Gamadia on behalf of the petitioners for this delay is that on 19-2-1953, the petitioners made a representation to Government to reconsider their decision and the Minister concerned rejected that representation on 28-3-1953, and the petitioners received the final order of Government on 3-4-1953. Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy. The remedy he pursued was extra-legal or extra-judicial. Once the final decision of Government is given, a representation is merely an appeal jfor mercy or indulgence, but it is not pursuing la remedy which the law gave to the petitioner. But even assuming that that time should be condoned, the petitioners did not make a representation to Government till 15-2-1953, a month after the order was passed, and even when they received the final decision of Government on 3-4-1953, they waited a month more before this petition was presented. Therefore, in our opinion, there has been such delay in the presentation of this petition as would disentitle the petitioner to any relief at our hands.

3. But there is another objection which is equally serious. The main ground on which the order of the Government is challenged is that Government had no jurisdiction to sit in appeal over the decision of the State Transport Authority and that the decision given by the State Transport Authority was the final order which became conclusive and no appeal lay from that order. 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 corning to us in order to exercise our jurisdiction under the Constitution.

4. Now, as we shall presently point out, the English Courts have taken the view, and in our [opinion rightly, that before a question of jurisdiction is raised on a petition, objection to jurisdiction must be taken before the tribunal whose order is being challenged. It is not as if by the petitioner not challenging the jurisdiction of the tribunal that he confers jurisdiction upon that tribunal if that tribunal has no jurisdiction. But what the English Courts have said is that the High Court has been asked to exercise a special jurisdiction, not an ordinary jurisdiction, and the High Court is entitled to know what the tribunal has to say on the question of jurisdiction which the petitioner wants to agitate before the Court. There is another principle underlying this view, & that is that the tribunal which is brought before the Court should itself be given an opportunity to decide that it has no jurisdiction, before the High Court is called upon to give its decision.

It must be borne in mind that in exercising its jurisdiction under Articles 226 and 227 the High Court is not exercising an ordinary jurisdiction. It is always open to a petitioner to assert his rights in a suit properly filed, but when he chooses to assert his rights by calling upon the High Court to exercise its special jurisdiction, the High Court must itself lay down certain principles for the exercise of that jurisdiction and must not make the exercise of that jurisdiction a matter of ordinary occurrence. A suit may well be filed within the period of limitation; the Judge trying the suit does not nonsuit the plaintiff because he came to Court towards the end of the period of limitation; but this Court tells the petitioner 'you must come to this Court expeditiously.'

Equally so a defendant may not raise the question of jurisdiction in the Court of first instance, he may not raise the question of jurisdiction in the appellate Court, he may postpone raising the question of jurisdiction up to the stage of the Privy Council or the Supreme Court, yet if the Court has no jurisdiction the highest Court in the land will allow the point to be raised and decide it in favour of the defendant. 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.'

5. Now, this principle was very clearly and very emphatically laid down in -- 'Rex v. Williams; Philips, Ex parts', (1914) 1 KB 608 (A). There a person was disqualified from acting as a Justice of the Peace if he was concerned in the business of a baker. A baker who Was alleged to have committed an offence under the Bread Act was put up before a bench of two Justices of the Peace & one Justice of the Peace was alleged to be disqualified from action as a Justice of the Peace because he was concerned in the business of a baker, & the accused baker wanted to raise the question of the incapacity of one of the Justices of the Peace before the High Court by a petition, and the High Court refused to give him relief holding that as he had not taken the point before the bench of the Justices of the Peace he had disentitled himself from obtaining any relief. Channell J. points out (P. 614):

'.....A party may by his conduct precludehimself from claiming the writ 'ex debito justitiae', 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 affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted 'ex debito justitiae' 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 impugn them.'

Therefore, this is a clear answer to the argument advanced by Mr. Gamadia that the fact that the petitioners did not challenge the jurisdiction of the Government did not by consent or waiver confer jurisdiction upon the Government. As we have already pointed out, the question is not that if the Government's deci-sion was without jurisdiction it became a competent decision merely because the petitioners did not object to the jurisdiction. But the question is whether the petitioners not having challenged the jurisdiction of the Government, this Court will give them relief by exercising its very special and discretionary jurisdiction. Rowlatt J. in a very short judgment emphasises the fact that the rule that the Courts in England have adopted is a very salutary rule. This is what he says (p. 615):

'.....It is a very salutary rule that a partyaggrieved must either shew that he has taken his objection at the hearing below or state on his affidavit that he had no knowledge of the facts which would enable him to do so.'

We see no reason why in this particular casewe should not give effect to this salutary rule.

6. The result is the petition fails and is dismissed with costs.

7. Petition dismissed.


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