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Sheik HussaIn and Sons Vs. State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 84, 88, 164, 173, 181, 182, 331, 340, 341, 354, 355, 368, 370, 371, 373, 400, 409 an
Judge
Reported inAIR1964AP36
ActsMotor Vehicles Act, 1939 - Sections 44 and 44(2); Motor vehicles (Amendement) Act, 1956
AppellantSheik HussaIn and Sons
RespondentState of Andhra Pradesh and ors.
Appellant AdvocateP. Babulu Reddy, ;M.V. Ramana Reddy, ;E.P.K. Sikhamani, ;B. Lakshmanarao, ;M. Rama Krishna Reddy, Advs., ;Kumari Vijaya Lakshmi, Adv. for ;K. Amareswari, ;K. Srinivasamurty, ;P. Ramachandra Rao, ;G.
Respondent AdvocateGovernment Pleader
DispositionPetitons allowed
Excerpt:
motor vehicles - jurisdiction of tribunal - section 44 of motor vehicles act, 1939 (as amended by act 100 of 1956) - chairman of tribunal alone heard and decided matter - aggrieved party challenged order under article 226 of constitution - petition referred to full bench - high court observed that chairman alone is not competent to decide matter even when no objection is raised from rest member of tribunal - held, chairman acted without jurisdiction. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is.....satyanarayana raju, j.1. these petitions have been posted before a full bench because of a conflict of opinion between the decisions of two division benches of this court, namely ramamurthy naidu v. state of andhra pradesh, : air1961ap344 and narasimha rao v. state of madras (now andhra) (un'reported judgment in w. p. 462 of 1953, d/-29th july, 1955).2. one of these petitions, w. p. no. 84 of i960, was referred to a division bench by mr. justice seshachalapathi. the division bench, consisting of mr. justice jaganmohan reddy and mr. justice ananthanarayana ayyar, referred that petition and the connected cases for the decision of a full bench.3. these petitions, under article 226 of the constitution, are for the issue of writs of certiorari to quash the orders of the state government under.....
Judgment:

Satyanarayana Raju, J.

1. These petitions have been posted before a Full Bench because of a conflict of opinion between the decisions of two Division Benches of this Court, namely Ramamurthy Naidu v. State of Andhra Pradesh, : AIR1961AP344 and Narasimha Rao v. State of Madras (Now Andhra) (Un'reported Judgment in W. P. 462 of 1953, D/-29th July, 1955).

2. One of these petitions, W. P. No. 84 of I960, was referred to a Division Bench by Mr. Justice Seshachalapathi. The Division Bench, consisting of Mr. Justice Jaganmohan Reddy and Mr. Justice Ananthanarayana Ayyar, referred that petition and the connected cases for the decision of a Full Bench.

3. These petitions, under Article 226 of the Constitution, are for the issue of Writs of Certiorari to quash the orders of the State Government under the Motor Vehicles Act. All of them raise identical questions for determination.

4. It is enough to set out the material facts in W. P. No. 84 of 1960. The petitioner therein is a transport operator having a stage carriage permit. On a check by the Sub-Inspector of Police on June, 9, 1957, his vehicle was found to be overloaded. The Regional Transport Authority called for his explanation, and by its order dated 21st August, 1957, directed the suspension of his permit for three months. The petitioner filed an appeal to the State Transport Authority. The Chairman of the State Transport Authority, in his order dated September 31, 1958, confirmed the order of the Regional Transport Authority. The petitioner thereupon filed a revision petition before the Government. That revision petition was dimissed by the Government on January 18, 1960. The Writ petition is directed against the order of the Government. The other Writ Petitions arise out of similar facts.

5. The main point raised in these writ petitions is that the orders of the State Transport Authority were without jurisdiction as they were passed by the Chairman sitting and hearing the appeals alone and, therefore, contrary to the provisions of Section 44 of the Motor Vehicles Act, as amended by Act 100 of 1956.

6. In order to appreciate the correct position, it is necessary to consider the relevant provisions of the Motor Vehicles Act (IV of 1939) (hereinafter referred to as 'the Act'). The Act was enacted by the Central Legislature in the year 1939 for regulating motor traffic. Since then it has been amended from time to time both by the Central Legislature and by the State Legislature. The Act was also amended by the Madras Legislature in its application to the then composite State of Madras.

The Act, as amended by the Madras Legislature, governed the territories comprised in the State of Andhra by virtue of the provisions of the Andhra State Act

7. The Act prescribes an elaborate procedure for the registration of motor transport. It contains ten Chapters. To carry put the objects of the Act, the State Government is authorised to create a hierarchy of Tribunals, such as, the State Transport Authority and the Regional Transport Authority.

8. Chapter IV, with which we are now concerned, is headed 'Control of Transport Vehicles'. Section 44, which occurs in this Chapter, empowers the State Government to constitute a State Transport Authority and Regional Transport Authorities, for notified regions with specified powers and functions.

9. Section 44(2), which is the material provision, runs as follows:

'A State Transport Authority or a Regional Transport Authority shall consist of such number of officials and non-officials as the State Government may think fit to appoint..... Provided that if the State Government thinks fit, the State Transport Authority may consist of a single official'

(Inserted by Madras Act XX of 1948 amending the Act in its application to the Madras State).

10. In exercise of the powers conferred by the Act, the Madras Government made certain rules, known as 'The Madras Motor Vehicles Rules, 1940'. Rule 144 thereof, as it stood before its recent amendment in February 1963 provided as follows:

'The Quorum for a meeting of the State Transport Authority shall be two:

Provided that if within fifteen minutes after the time scheduled for the commencement of the meeting no member turns up, the Chairman may proceed to conduct the meeting without the quorum'.

11. Under Section 44(2), read with Rule 144 of the Madras Motor Vehicles Rules, the State Government was vested with a discretion to constitute a State Transport Authority or a Regional Transport Authority with 'such number of officials and non-officials as the State Government may think fit to appoint'. But Section 44(2) was, however, amended by Motor Vehicles (Amendment) Act, 100 of 1956, in the following way :

'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...'

12. Under Section 44(2), as it now stands, a State Transport Authority should consist of a Chairman, who has had judicial experience, and such other officials and non-officials not being less than two. The composition of the State Transport Authority is thus statutorily fixed.

13. Under Section 44(3), a State Transport Authority has to discharge such functions as may be prescribed. Under Section 64(b), any person aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, may appeal to the prescribed authority which is the State Transport Authority, if the order under appeal is that of the Regional Transport Authority. Where any such appeal is preferred the State Transport Authority, after giving notice tothe parties and giving them a reasonable opportunity of being heard, shall give its decision. Besides the jurisdiction to decide appeals from the decisions of the Regional Transport Authorities, the State Transport Authority is also entrusted with several important duties, and for discharging those duties large powers have been conferred on the Authority.

14. The constitution of the Tribunal (State Transport Authority) having been statutorily settled the intention of the Legislature appears to be obvious. The statutory requirement, therefore, is that the Chairman and the two members, should hear and dispose of matters that have to be decided by the Tribunal under the various provisions of the Act. The Chairman of the Tribunal sitting alone is not competent to hear and dispose of an appeal preferred by the aggrieved parties. The impugned orders were, therefore, prima facie without jurisdiction.

15. It is, however, contended that no objection was taken to the Chairman of the State Transport Authority alone deciding the appeal and that no objection was taken even before the Government when the Revision Petitions were disposed of, and that, therefore, the conduct of the petitioners was such as to preclude them from invoking the jurisdiction of this Court under Article 226 of the Constitution.

16. It, therefore, becomes necessary to decide the larger question as to whether consent can give jurisdiction and want of jurisdiction can be waived. This would turn upon the distinction between want of jurisdiction and irregular exercise or assumption of jurisdiction. A decision made without jurisdiction is void and it cannot be validated by the express or implied consent of a party to the proceedings. No assent can cure a total want of jurisdiction. Irregular exercise or assumption of jurisdiction, on the other hand, can be waived. Though these principles are well settled it is not always easy to make out the distinction between these two classes of cases.

17. The leading case on the subject is Ledgard v. Bull, ILR 9 All 191 at p. 203 (PC). That case was decided by the Judicial Committee of the Privy Council as far back as 1886. The suit was for damages and an injunction for infringment of a patent under the Patents and Designs Act. Such a suit can only be brought in a District Court but it was brought in the Court of the Subordinate Judge, who had no jurisdiction to entertain it. The suit was eventually transferred from the Subordinate Judge's Court to the District Court and there heard and decided. The defendant contended that an order for transfer of a suit from one Court to another under-Section 24 could not be made unless the suit has been brought in a Court having jurisdiction but this contention was overruled. The same view was taken by the High Court on appeal. The Judicial Committee held that the suit having been instituted in a Court. which had no jurisdiction, no order of transfer could be made but that the District Court being competent to entertain and try the suit, if it were competently brought, the defendant could waive the objection to the irregularities of its institution but that he had not done so, and the decree of the District Court could not, therefore, stand and it ought to have been set aside by the High Court. Lord Watson in delivering the judgment of the Board said:

'When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process..... But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure which, if objected at the time, would have led to the dismissal of suit.'

18. Several English cases have elucidated the distinction between total want of jurisdiction and irregular assumption or exercise of jurisdiction. In Moore v. Gamgee, (1890) 25 QBD 244 a distinction was drawn between cases where there is a total want of jurisdiction and where there is no want of jurisdiction over the subject-matter of the action but jurisdiction in the particular case is contingent for instance, on leave to sue being obtained. It was held that in the latter class of casess the objection might be waived.

19. In Farquharson v. Morgan, (1894) 1 QB 552, Lord Halsbury pointed out at page 556 as follows :

'It has been long settled that, where an objection to the jurisdiction of an inferior Court appears on the face of the proceedings, it is immaterial by what means and by whom the Court is informed ot such objection. The Court must protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior Court from proceeding in matters as to which it is apparent that it has no jurisdiction. The objection to the jurisdiction does not in such a case depend on some matter of fact as to which the inferior Court may have been deceived or misled, or which it may have unconsciously neglected to observe, and the Judge of such Court, therefore, must or ought to have known that he was acting beyond his jurisdiction. I find no authority justifying the withholding of a Writ of prohibition in such a case.'

Lord Justice Lopes observed at page 557:

'It seems to me that there has always been recognised a distinction between what I will call a latent want of jurisdiction, i.e., something becoming manifest in the course of the proceedings, and what I will call a patent want of jurisdiction i.e., a want of jurisdiction apparent on the face of the proceedings.

While in cases of latent want of jurisdiction there has always been a great conflict of judicial opinion, as to whether the grant of the writ was discretionary or not, the authorities seem unanimous in deciding that, where the want of jurisdiction is patent, the grant of the writ of prohibition is of course.'

20. The principle has been succinctly stated in Halsbury's Laws of England, Simond's third edition Volume 9, page 352, paragraph 824.

'Consent and waiver. Where, by reason of any limitation imposed by statute, charter, or commission, a Court is without jurisdiction to entertain any particular action or matter, neither, the acquiesence nor the express consent of the parties can confer jurisdiction upon the Court, nor can consent give a Court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfilled. Where the Court has jurisdiction over the particular subject-matter of the action or the particular parties, and the only objection is whether, in the circumstances of the case, the Court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case, or a defendant by appearing without protest, or bytaking any steps in the action, may waive his right to object to the Court taking cognizance of the proceedings. No appearance or answer, however can give a jurisdiction to a limited Court.'

21. Their Lordships of the Supreme Court have considered this question in United Commercial Bank Ltd. v. Their Workmen, : (1951)ILLJ621SC . That case arose under the Industrial Disputes Act, 1947. The Central Government constituted an Industrial Tribunal, consisting of three members, of whom Mr. Chandrasekhara Aiyar was one, for deciding certain disputes. The Tribunal commenced its sittings in September, 1949. In November, 1949, Mr. Chandrasekhara Aiyar was appointed a member of the Indo-Pakistan Boundary Disputes Tribunal and his services ceased to be available to the Industrial Tribunal with the result that during his absence, which covered a period of nearly three months, the proceedings were continued before the Chairman and the remaining members, and certain interim awards were made by them during that period. Mr. Chandrasekhara Aiyar rejoined the Tribunal on February 20, 1950, and ultimately all the members made and signed an award on July 31, 1950, which was duly published on August 12, 1950. Before their Lordships of the Supreme Court the question was raised whether the Tribunal had jurisdiction to make the award, and also whether the interim awards by the Chairman and one other member were without jurisdiction. The jurisdiction of the Tribunal to make the awards was disputed on two grounds, namely, that when Mr. Chandrasekhara Aiyar's services ceased to be available, the remaining two members had to be reappointed to constitute a Tribunal, and that when Mr. Chandrasekhara Aiyar began to sit again with the others from February 20, 1950, it was imperative to issue a notification constituting a Tribunal tinder Section 7 of the Industrial Disputes Act. The prayer before the Supreme Court was to declare the award as well as the earlier interim awards void and inoperative on these grounds.

22. Kania, C. J. who spoke for the majority of the Supreme Court, pointed out (at page 237) as follows:

'It is obvious that for making the award all the three persons worked together and were jointly responsible for the resultant award ..... In thisview of the matter, the final award put before the Court is clearly without jurisdiction.....

The final contention that the sittings 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 overruled, no question of acquiescence or estoppel arises. 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 acquiescence or consent can give a jurisdiction to a Court of limited jurisdiction which it does not possess. In our opinion, the position here clearly is that the responsibility to work and decide being the joint responsibility of all the three members, if proceedings are conducted and discussions on several general issues took place in the presence of only two, followed by an award made by three, the question goes to the root of the jurisdiction of the Tribunal and is not a matter of irregularity in the conduct of those proceedings. The absence of a condition necessary to found the jurisdiction to make the award or give a decision deprives the award or decision of any conclusive effect. The distinction clearly is between the jurisdiction to decide matters and the ambit of the matters to be heard by a Tribunal having jurisdiction to dead with the same. In the second case, ths question of acquiescence or irregularity may be considered and overlooked. When however the question is of the jurisdiction of the Tribunal to make the award under the circumstances summarized above, no question of acquiescence of consent can affect the decision.'

23. Mr. Justice Mukherjea, who was in the minority, observed (at page 245) as follows:

'Having regard to the language of Section 7 which admittedly contemplates that the members of a Tribunal must act all together, it would, in my opinion, be perfectly legitimate view to take that if the Legislature did intend to make an exception to this rule, it would have done so in clear terms instead of leaving it to be gathered inferentially from the provision of another section which itself is not couched in unambiguous language.....

I am not impressed by the argument of Mr. De that a Tribunal is to be conceived of as an entity different from the members of which it is composed and whatever changes might occur in the composition of the Tribunal the indentity of the Tribunal remains intact. A distinction undoubtedly exists between the Court and the Judges who preside over it, but if the constitution of the Court requires that it is to be composed of a certain number of Judges, obviously a lesser number could not perform the functions of the Court.'

24. The same view was taken by a Division Bench of the Madras High Court, consisting of Rajamannar, C.J., and Venkatarama Ayyar, J., in Kama Umi Isa Ammal v. Rama Kudumban, : AIR1953Mad129 . That decision was rendered in the following circumstances: The provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act provided for a Tribunal composed of three members, one of whom should be a judicial officer of the status of a District Judge, the other of the status of a Subordinate Judge, and the third, an officer of the Revenue Department of the Government. This was provided by Section 8 of the Act. By means of a rule, made by the Government, defining the procedure to be followed by Tribunals constituted under Section 8 of the Act, it was provided that 'not less than two members shall be necessary to constitute a sitting of a Tribunal'. The learned Judges held that the intention of the Legislature was that the Tribunal should consist of Chairman 'and two members and the rule, which allowed two members of the Tribunal to function, was inconsistent with the expressed intention of the Legislature contained in Section 8(2), and that therefore, the rule was ultra vires and that the orders passed by the two members, were without jurisdiction. It may be incidentally noted that the learned Judges there observed that their decision would have the effect of rendering not only the order in question but every similar order passed by two members invalid, that all those orders might be treated as passed without jurisdiction and, therefore, void, and instructions might be issued for the reposting of the appeals disposed of by two members for fresh disposal according to law.

25. Now, under Section 44(2) of the amended Motor Vehicles Act, it is provided that the 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. The position clearly is that the statutory responsibility of hearing and disposing of appeals is specifically vested in the State Transport Authority, which shall consist of a Chairman and not less than two members. Therefore, the conclusion is irresistible that no valid order could be nude by the State Transport Authority except when the matter brought before it, was heard and disposed of by all the three members composing it.

26. Inasmuch as in these cases admittedly the orders of the State Transport Authority were made only by the Chairman, they are manifestly in contravention of Section 44(2) of the Motor Vehicles Act. This was indeed the conclusion reached by the learned Chief Justice and Ramachandra Rao, J., in : AIR1961AP344 . There it was observed by the learned Chief Justice as follows:

'It is manifest from this section (Section 44(2)) that the Legislature desired that the State Transport Authority as well as the Regional Transport Authority should consist of three members. That being so, it is not open to two only of the members to deal with any matter. In order that the Regional Transport Authority should constitute a valid Tribunal it should compose of three members. Whatever might have been the position if a quorum was prescribed in the absence of such a provision, we think that the matter should be heard by all the three members of the Regional Transport Authority.'

27. So far as the competency of the Tribunal is concerned, there is no dispute. Indeed, the learned Judges stated:

'We do not think that this position could be seriously contested. The result is that there can be a valid sitting of the Regional Transport Authority only if all the three should sit for the meeting.'

28. We now come to the controversial area. The point in controversy is whether the petitioners are entitled to raise the question as to the illegality of the order of the State Transport Authority at this stage.

29. It would be convenient, at this juncture, to consider the decisions of the Division Benches which have occasioned this reference. The first of them, in point of chronological sequence, is the decision in (unreported Judgment in W.P. No. 462 of 1953, D/- 29th July, 1955) (Andhra). That was a case in which the Tribunal for Disciplinary Proceedings started an enquiry against a person appointed as Deputy Tahsildar and Sub-Magistrate. On the recommendation of the Tribunal, the Government dismissed the Sub-Magistrate. In the Writ petition filed by him, it was argued that as he was functioning as a Sub-Magistrate he should be deemed to be a member of the Judicial Department and that no enquiry could be made by the Tribunal for Disciplinary Proceedings. This objection was rot taken before the Tribunal. It was contended before the Division Bench, consisting of Subba Rao C.J., (as he then was), and Bhimasankaram, J., that the petitioner could not raise the objection in the writ petition, he not having taken it before the Tribunal, That objection was repelled and it was observed that the principle of the Full Bench decision in Latchmanan Chettiar v. Commissioner of Corporation of Madras, ILR 50 Mad 130: 61 Mad LI 742: (AIR 1927 Mad 130^ would notapply to a case where there was a total absence of jurisdiction.

30. In : AIR1961AP344 , while holding that the order of the Regional Transport Authority was illegal, the learned Judges observed that the petitioner was not entitled to any relief because he had not raised any objection at the hearing by the Chairman. It was then observed:

'In our opinion, this conduct of the appellant disentitles him to claim any relief in this writ appeal. We feel that the appellant, who allowed the matter to be decided by two of the members without demurring to it, is debarred from seeking to repudiate the competence of two of the members to decide it.'

31. In reaching this conclusion, the learned 3udges relied upon the decision of the Full Bench of the Madras High Court in ILR 50 Mad 130: 51 Mad LJ 742: (AIR 1927 Mad 130) (FB), and the decision of the Supreme Court in Messrs. Pannalal Binjraj v. Union of India, : [1957]1SCR233 where the observations in Latchmanan Chettiar's case, ILR 50 Mad 130: 51 Mad LJ 742: (AIR 1927 Mad 130) (FB) were approved.

32. The decision of the Madras Full Bench. in ILR 50 Mad 130: 51 Mad LJ 742: (AIR 1927 Mad 130) (FB) which has been frequently referred to has given rise to an apparent conflict in the reported cases, and it is necessary to scrutinise the facts of that decision for a proper elucidation of the principle laid down by it. There the facts were these : Lakshmanan Chettiar was nominated on August 17, 1926, as a candidate for one of the divisions of the Municipal Corporation of the City of Madras. It was not in dispute that his nomination paper was regular on the face of it. But it was said that he was disqualified from contesting the election by virtue of Section 52(b)(iv) of the Madras City Municipal Act of 1919, which disqualified a Presidency Magistrate from contesting the election. On 11th August, Lakshmanan Chettiar, no doubt, having the above provision in his mind, tendered his resignation. The resignation reached the Government on the 14th August, The Government immediately passed an order withdrawing the powers of Honorary Presidency Magistrate for the City of Madras previously conferred on Lakshmanan Chettiar. On the 20th August, an objection was put forward by the contesting candidates alleging that the withdrawal by Lakshmanan Chettiar from his appointment as Presidency Magistrate only took effect by virtue of the Government Order withdrawing his powers which was subsequent to his nomination and that, therefore, the nomination was bad- The objection was heard by the Commissioner of the Corporation and subsequently there was a revision before the Chief Judge of the Small Cause Court. Both the officers found the nomination to be invalid and struck off his 'name from the list of nominations. Lakshman Chettiar then filed an application before the High Court of Madras for the issue of a Writ of Certiorari directed to the Commissioner of the Corporation and the Chief Judge of the Court of Small Causes. . The interference of the High Court was invoked on the ground that both the officers acted without jurisdiction and therefore, their orders should be quashed. The broad ground on which the jurisdiction of these officers was challenged was that whereas they were only empowered to enquire into disabilities appearing on the face of the nomination paper they in fact travelled outside the jurisdiction and went into a matter of substance which was arguableonly on grounds not appearing on the face of the nomination paper. The respondents took a preliminary objection that certiorari would not lie where the person who applied for that writ had by his conduct taken the chance of a pronouncement in his favour by the lower Court on the merits. It was conceded by the petitioner that the case was argued on the merits both before the Commissioner and before the Chief Judge and that he did not only not confine himself to the contention that those officers had no jurisdiction to entertain an objection to the jurisdiction but that he did not take this point at all. Upholding the objection the learned Judges of the Full Bench pointed out

'The point taken by Mr. Krishnaswami Ayyangar is that failure to object to the jurisdiction of the Court whose order is sought to be quashed 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. 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.'

33. In the case before the Full Bench, there was no inherent lack of jurisdiction in the officers whose orders were in question. By virtue of the relevant statutory provisions, both the Commissioner as well as the Chief Judge were competent to hear the objection and to pronounce upon it.

34. The decision was approved by their Lordships of the Supreme Court in (S) : [1957]1SCR233 , their Lordships observed:

'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. Union of India, (S) : [1956]29ITR717(SC) was pronounced on 20th March, 1956, that these petitioners woke up and asserted their alleged rights, the Amritsar group on 20th April J956, 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.'

35. There the Commissioner of Income-tax and the Central Board of Revenue transferred the cases of the petitioners from the file of one Income-tax Officer to the file of another. The assessees never raised any objection to their cases being transferred; and, in fact, submitted to the jurisdictions of the Income-tax Officers to whom their cases were transferred. It was under these circumstances that their Lordships of the Supreme Court held that the petitioners had acquiesced in the jurisdictions of the Income-tax Officers to whom their cases were transferred and they were certainly not entitled to invoke the jurisdiction of the Supreme Court under Art. 32. Here again, there was no question of any inherent want of jurisdiction in the officers who disposed of the assessments of the petitioners.

36. The decision of the Full Bench in ILR 50 Mad 130: 51 Mad LI 742: (AIR 1927 Mad 130) (FB) was distinguished by another Full Bench of the Madras High Court in Madhava Rao v. Suryarao, : AIR1954Mad103 (FB). There a dispute relating to the election of the members to the Board of Management of a. Co-operative Society was set aside by the Deputy Registrar. No exception was taken by the petitioners, who were respondent before the Deputy Registrar, regarding the exercise of jurisdiction by him . The respondents filed a revision petition against the order of the Deputy Registrar before; the Registrar of Cooperative Societies, under Section 51 of the Madras Co-operative Societies Act. The Registrar made an order superseding the Board of Management and appointed a Co-operative Sub-Registrar as Special Officer for a period of six months to manage the affairs of the Bank. A petition under Article 226 was then filed for an appropriate Writ to call for the records and quash the-order of the Registrar of Co-operative Societies, superseding the Board. Before the Full Bench, the 1st respondent raised a preliminary objection on the ground that as no exception was taken by the petitioners (who were respondents before the Deputy Registrar), regarding the exercise of jurisdiction by the Deputy Registrar, and as the petitioners had acquiesced in the exercise of jurisdiction by him, they were precluded from thereafter raising the objection and reliance was placed upon the Full Bench decision of the Madras High Court in ILR SO Mad 130: 51 Mad LJ 742: (AIR 1927 Mad 130) (FB). The learned Judges of the Full Bench observed:

'The decision relied on was not a case of initial want of jurisdiction. As pointed out by the Supreme Court in the decision : (1951)ILLJ621SC , no amount of consent would cure the initial want of jurisdiction. It is not open to a person to confer jurisdiction by consent and no amount of acquiescence would confer jurisdiction upon a tribunal or a Court where such jurisdiction did not exist. The contention raised by the petitioners, if well-founded would go to the root of the matter, and it would be a case of total lack of jurisdiction, which cannot be cured by consent or acquiescence. The objection, therefore, must be overruled'.

37. The same view was taken by one of us. (Justice Gopalkrishnan Nair) in Jawhar Singh v. Custodian General AIR 1960 J and K 29 at p. 33. There the facts were : The provisions of the Evacuee's (Administration of Property) Act did not confer any jurisdiction on the Custodian General to interfere with an order passed by the Deputy Custodian General. The respondent preferred a revision to the Custodian General against the order of the Deputy Custodian General, and the Custodian-General allowed the revision. An application by the petitioner for a review of the order was dismissed. It was held that this was a case of inherent lack of jurisdiction which clearly appeared on the face of the proceedings and the order of the Custodian General should therefore be quashed by the issue of a; Writ of Certiorari. After a consideration of all the relevant decisions, both English and Indian, it was observed as follows :

'The several authorities referred to above amply bear out that acquiescence or consent cannot cloths a Tribunal with jurisdiction where it is inherently devoid of jurisdiction. It is pointed out that proceedings by way of certiorari are 'not of course' and that it is discretionary with the court to grant or refuse a Writ of certiorari. It may be taken that failure of a party to raise the question of jurisdiction before an inferior Tribunal will ordinarily disentitle him to raise that question before this Court in application for a writ of certiorari, unless he is able to show that the facts on which the plea of lack of jurisdiction could be founded were not known to him when the proceedings were pending before the inferior Tribunal. This rule, which may legitimately be called a salutary rule of practice, can not properly be applied to a case where under no circumstances the inferior Tribunal could have assumed jurisdiction, that is to say, where the proceedings were ab initio void. But even if it be assumed that the above mentioned rule of practice may be supplied to both the classes of cases, I consider that the proper exercise of discretion in the latter class of cases where there is total lack of jurisdiction throughout will be for the court to overlook the failure of the party to raise the question of jurisdiction before the inferior Tribunal in such cases would be much more to blame than the unfortunate party who was brought before it by his adversary because it plainly usurped jurisdiction when in fact it did not have even a vestige of jurisdiction'.

38. Admittedly in these cases, the order of the State Transport Authority was made only by the Chairman and was manifestly in contravention of Section 44(2) of the Motor Vehicles Act. The only point in controversy is whether, by reason of their not having raised objection before the State Transport Authority, the petitioners have disentitled themselves to ask for the present relief in these petitions. As pointed out in a recent judgment of their Lordships of the Supreme Court in Hiralal Patni v. Kali Nath, : [1962]2SCR747 , the competence of the Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. The same principle applies to a Statutory Tribunal.

39. It only remains to consider a contention raised by the learned Government Pleader that by virtue of the notification published by the Government subsequent to the amended Act, the Tribunal was properly constituted and, therefore, there is no warrant for holding that the Tribunal itself was not properly constituted. The objection raised in these writ petitions is not with regard to the constitution of the Tribunal but it is with regard to the competency of the Chairman to deal with the matters brought before the Tribunal. It is, no doubt, true that the Tribunal was properly constituted. But the jurisdiction to decide appeals from decisions of Subordinate Tribunals is vested in the Tribunal, consisting of the Chairman and two members; and it is that Tribunal which is legally competent to dispose of the matters brought before it.

40. We may now summarise our conclusions : The State Transport Authority is a statutory Tribunal created by the Motor Vehicles Act forcertain purposes. Its constitution and composition is provided for by Section 44(2) of the Motor Vehicles Act. The jurisdiction of the Tribunal is limited by the stipulations contained in the statute. By 'jurisdiction' is meant the authority which the Tribunal has to decide matters that are litigated before it. The limitation to the exercise of jurisdiction by a Tribunal may be either as to the kind and nature of the action and matters of which the particular Tribunal can take cognizance or as to the area over which its jurisdiction extends; or it may be with regard to its constitution and composition. In the present cases, we are concerned with a limitation with regard to the composition of the Tribunal.

41. The Motor Vehicles Act provides that a question arising under the statute shall be determined by a specified Tribunal consisting of a Chairman and a particular number of members. Therefore, by reason of the limitation imposed by the statute, this Tribunal can exercise its jurisdiction only when its composition is in conformity with the requirements of the statute. If the statute requires that the Tribunal should be composed of a certain number of members, obviously a lesser number cannot perform the functions of the Tribunals. A Tribunal, whose composition is not in accordance with the statutory requirements, has no jurisdiction to decide a question arising under the statute. So much is conceded. All the decided cases to which we have referred are unanimous in holding that the decision of a Tribunal, which is not in accordance with the statute, is without jurisdiction. The first part of the decision in : AIR1961AP344 lays down the same principle. In such a case, the question goes to the root of the jurisdiction of the Tribunal and is not a matter of mere irregularity in the conduct of its proceedings. Want of jurisdiction in these cases arises from the absence of an essential preliminary with regard to the composition of the Tribunal. The constitution and composition of a Tribunal being a condition precedent to the exercise of its jurisdiction, there is an initial lack of jurisdiction which renders its proceedings void.

42. The only question then is whether the Tribunal has or has not jurisdiction; and immediately this Court is satisfied that the Tribunal has exceeded its jurisdiction, a Writ of Certiorari must issue in spite of the acquiescence of the applicant or want of objection on his part. The principle in such a case is that the exercise of an unauthorised jurisdiction amounts to an usurpation of jurisdiction and renders the decision of the Tribunal a nullity. It is the duty of this Court to remove the void order by issuing a writ of Certiorari.

43. With respect, we are unable to agree with the latter part of the decision in : AIR1961AP344 , wherein it was held that the conduct of the parties in not objecting to the jurisdiction of the Tribunal at the anterior stages disentitles them to invoke the jurisdiction of this Court under Art. 226. We hold that the decision in unreported Judgment in W.P. No. 462/ 1953, D/- 29th July, 1955 (Andh Pra) lays down the correct principle.

44. In the result, we direct that a writ of certiorari shall issue in each of these petitions quashing the order of the State Transport Authority or the confirmatory order of the Government. We would, however, like to observe that our judgment will not preclude the State Transport Authority from disposing of the appeals preferredto it afresh in accordance with law. The petitioners are entitled to recover their costs from the respondents in all these petitions. We fix the advocate's fee at Rs. 50/- (Rupees fifty only) in each petition.


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