(1) This Appeal is from the order of Gopal Rao Ekbote J in Writ Petition NO. 494 of 1961 whereby he refused to remove on Certiorari the order of the Government of Andhra Pradesh in G. O. Ms. No. 765. Home (Transport 11) Department dated 18-4-1961 reversing the order of the State Transport Authority dated 1-8-1960 and restoring the order of the Regional Transport Authority dated 28-8-1959, granting one state carriage permit on the route Ellampeta to Cuddapah to one Khassim Saheb, respondent No. 4 herein. The facts are few and may be shortly dated. In response to a notification issued by the Regional Transport Authority, Cuddapah calling for applications for grant of one stage carriage permit on the route Ellampeta to Cuddapah, 12 persons including the appellant, submitted their applications. The appellant was the 7th applicant Regional Transport Authority consisting of 1. Sri P. L. Sivaram, I. A. S., Collector and Chairman, R. T. A., Cuddapah 2 Sri P. N. Rama. chandrareddi, B. A., Superintendent of Police and Vice Chairman, R. T. A., Cuddapah and 3, Sri R. Orabhala, B. E., A. M. I. E., Divisional Engineer (H) and Member, R. T. A. Cuddapah (all officials) at the meeting held on 28th August, 1959, considered all the applications in the light of the provisions of Section 47 of the Motor Vehicles Act and Rule 153-B and granted permit to the 4th respondent, Khasim Sahib.
While assessing the relative merits of the applicants the authority was of opinion that though both the appellant and the 4th respondent were similarly circumstanced so far as their marks are concerned as both of them obtained six marks each, which are the highest the case of the 4th respondent for grant of permit was to be preferred as his history sheet is not so bad as that of the appellant. The appellant and five others then went in appeal to the State Transport Authority under Section 64 of the Motor Vehicles Act. 1939 (hereinafter referred to as the Act), Sri N. Ramesan, I. A. S., the Chairman of the State Transport Authority after considering the case on merits came to the conclusion that the 4th respondent was entitled to only five marks as against six given by the Regional Transport Authority that in that case the appellant had the advantage of the largest number of marks to his credit and that as to completely eliminate him he was entitled to the permit in preference to all the other applicants. On this ground he reversed the order of the Regional Transport Authority and granted the permit to the appellant herein.
Aggrieved by this, two of the applicants including the 4th respondent went in revision before the Government on 1-8-1960 and the Government on a consideration of the case on merits came to the conclusion that the appellant also could not get more than five marks and his history sheet was worst and so he cannot be preferred to Khassim Sahib. In this view of the matter they set aside the order of the State Transport Authority and restored that of the Regional Transport Authority. The appellant thereupon came to this Court praying for issuance of a Writ of Certiorari quashing the order of the Government of Andhra Pradesh on the main ground that the State Government had no jurisdiction to revise the order of the State Transport Authority in purported exercise of its powers under the Madras amendment of Section 64-A of the Motor Vehicles Act. It was urged that the Madras amendment of Section 64-A is inconsistent with and repugnant to Section 64-A as introduced by the Central Act 100 of 1956 and therefore, is hit by Art 254 of the Constitution of India, and that at any rate after the advent of Section 64-A as introduced by the Central Act, the Madras Amendment should be deemed to have automatically ceased to have effect. A further ground raised was that even as a Revisional authority the Government was not competent to interfere with the order except on an error. omission or irregularity that must have occasioned failure of justice. Evidently the appellate authority's order sufferred from no such defect. The order passed by the Government on that ground also was without jurisdiction. Further it was arbitrary and discriminatory.
(2) These grounds did not commend to our learned brother who, on the authority of a Division Bench of this Court, decided that the Central Act did not take away the supervisory powers of the Government vested under Section 64-A and hence the State Government had undoubted jurisdiction to consider the propriety, justice and legality of the order passed by the State Transport Authority. The learned Judge further found that the order passed by the Government was manifestly under Section 64-A of the Act, and that the State Government, in exercising the discretion, has not gone wrong in anywise, that may necessitate interference by this Court. Thus he dismissed the writ petitions. Aggrieved by this order, the appellant were unsuccessfully raised in the Writ Petition have been reiterated in the Memorandum of appeal dated 10-2-64. During the pendency of the appeal, however, the appellant sought permission to raise a fresh ground bearing on the question of initial lack of jurisdiction of the Regional Transport Authority Cuddapah, as it was not properly constituted in accordance with Section 44 (2) of the Motor Vehicles Act for want of non-official element therein. The application for raising this ground was made on 3-9-64 and the other side was put on notice thereof. In this appeal the learned counsel for the respondent demurred that a point like this which was never made a ground of attack at any stage of the litigation should not be permitted to be taken at this stage. In this behalf the learned counsel Sri Babulu Reddi, invited our attention to various authorities which we will presently consider. The points which arise then for determination in this appeal are:
1. Whether the order passed by the Regional Transport Authority is invalid in law as the authority passing the same was not properly constituted in accordance with Section 44 (2) of the Act because of the absence of non-official element therein.
2. Whether such a ground can be permitted to be taken at this stage?
(3) We take up the first point: Section 44 of the Act which is the relevant provision occurs in Chapter IV headed 'Control of Transport Vehicles'. As in case of some other provisions, this provision also has been subjected to certain amendments from time to time both by the Parliament and the State Legislature. The first sub-section of the said section authorises the State Government to constitute a State Transport Authority to exercise and discharge the powers and functions specified in Sub-section (3) and also the Regional Transport Authorities to exercise and discharge such functions as may be specified in the notification Sub-section (2) which is material for our purpose deals with the composition or constitution of such authorities. Section 44 (2) as originally enacted in the Motor Vehicles Act of 1939 reads thus:
'A Provincial Transport Authority or Regional Transport Authority shall consist of such number of officials and non-officials as the Provincial Government may think fit to appoint'
(4) A proviso to this was enacted in 1948 by Act XX of 1948 by the Madras Legislature investing the Government with power to direct that the State Transport Authority or the Regional Transport Authority may consist of a single official. It reads thus:
'Provided that if the State Government thinks fit the State Transport Authority or a Regional Transport Authority may consist of a single official'
The rule framed by the Madras Government in exercise of the powers conferred by the Act further provided also for the quoram for the meeting Apparently there was some inconsistency between the operative portion of sub-section (2) of Section 44 of the Act and the proviso added by the Madras Legislature. Consequently the validity of the proviso was brought into question in some of the cases in this Court. Amarvathi Motor Transport Co. v. State of Andhra, 1956 Andh WR 400: AIR 1956 Andhra 232 was the first case in which the contention was raised that the Regional Transport Authority without any non-officials being included in it has no jurisdiction to discharge any of the duties of a transport authority. That contention was repelled by a Division Bench of which one of us was party holding that it was not incumbent upon the State Government to appoint non-officials, although the Legislature expected the Government to give an opportunity to non-officials also, that 'Officials and non-officials' were treated as one unit and it was made the field of selection, discretion being given to the Government to appoint out of the two groups, that the Legislature gave wide discretion to the Government enabling them to select either from both the groups or from the one only and that it was to achieve this subject that the conjunction 'and' was used instead of 'or'. Then came the Central Amendment Act of 1956 which amended Section 44 in the following manner;
'A State Transport Authority or a Regional Transport Authority shall consist of a chairman who has judicial experience and such other officials and non-officials, not being less than two, as the State Government may think fit to appoint.........'
(5) This substituted the words 'a Chairman who has had judicial experience and such other officials and non-officials not being less than two' for the words 'such number of officials and non-officials'. Whatever the situation created by the proviso, the decision in 1956 Andh WR 400: AIR 1956 Andh Pra 232 after the Central Amendment Act (100 of 1956) it is obvious that the Madras amendment of the proviso was impliedly repealed. Of course such an argument did not find favour with a Bench of this Court in Sri Satyanarayana Transport (private) Ltd. v. R. T. A. Guntur, 1962-2 Andhra WR 32 but, the Supreme Court in Rajagopala Naidu v. Government of Andhra Pradesh, Civil Appeal No. 769 of 1963 decided on 5-8-1964 (SC) by the Supreme Court has held that there was implied repeal of the proviso added by the Madras Legislature by the enactment introduced by the Amendment Act (100 of 1956) of the provision relating to constitution of transport authorities. This view was followed in T. N. Raghunatha Reddi v. M. Akbar Saheb, Civil Appeal 927 of 1963 decided by the Supreme Court on 4-12-1964 (SC). It follows therefore, that unless the composition of the authorities, whether Regional or State Transport Authority is in due accordance with the provisions of Section 44, as amended by Central Act (100 of 1956), they will not be properly constituted authorities and the order made by them will be invalid in law. It is common ground that the Regional Transport Authority which granted the permit to Khasim Saheb the 4th respondent was not composed of any non-official member. This defect is apparent on the fact of the record. It was not a properly constituted body according to the provisions of Section 44 and so it would not validly discharge power of functions conferred on it by the Statute. The order passed by such body of course must be held as invalid in law. This indelible stamp of invalidity or vice attached to the order could not be obliterated or cured or even ignored by reason of the orders on merits of the appellate or revisional authorities as they were made on the assumption that the appeal or revision was against an order made by a competent authority. The result of the above discussion is that the order of the Government cannot stand as it failed to note the initial lack of jurisdiction of the original authority, the order of which it affirmed. The first point must thus be held in favour of the appellant. But that does not mean that the appellant automatically became entitled to a permit. As observed by their Lordships of the Supreme Court in Civil Appeal No. 769 of 1963 dated 5-8-1964 (SC) (Supra) the decision in favour of the appellant would in such case be merely a starting point of a fresh ground of litigation for the applications for grant of permits if properly invited will as a result of the appeal, have to be considered by a Regional Transport authority constituted according to law. The above consequence will follow in this case only if the next point is decided in favour of the appellant.
(6) The next point therefore, that falls for consideration is whether the plea of jurisdiction which was not taken at the earliest opportunity before the Regional Transport Authority itself can now be permitted to be raised. In other words, whether the omission to do so is fatal and disentitles the party from challenging the jurisdiction in later proceedings started under Art. 226 of the Constitution of India. This question was considered by a Division Bench of this Court in Ramamurty Naidu v. State of Andhra Pradesh, : AIR1961AP344 where while holding that the order of the Regional Transport Authority was illegal in that the authority was not properly constituted, the learned Chief Justice observed that the petitioner was not entitled to any relief because he had not raised the objection at the hearing of the matter before the Chairman. It was so observed on the authority of a Full Bench of the Madras High Court in Latchmanan Chettiar v. Corporation of Madras. ILR 50 Mad 130: (AIR 1927 Mad 130) (FB) and the Supreme Court in Pannalal Brinjraj v. Union of India, : 1SCR233 while holding so the learned Judges distinguished the cases in United Commercial Bank Ltd. v. Their Workmen, : (1951)ILLJ621SC and also the Full Bench decision in Madhava Rao v. Suryarao, : AIR1954Mad103 (FB); : (1951)ILLJ621SC was distinguished on the ground that the objection was in fact raised in that case that the two members alone could not decide the dispute.
The two important decisions in this connection, one of the Division Bench of this Court in M. V. Narasimharao v. State of Madras (Now Andhra), unreported judgment of this Court in W. P. No. 462 of 1953 dated 29-7-1955 (Andhra) and the other of the Supreme Court in Arunachalam Pillai v. Southern Roadways Limited, : 3SCR764 which were directly on the point unfortunately were not cited before the said Bench. However, later in Takasi Apparao v. State of Andhra Pradesh (unreported) W. A. No. 63 of 1962 dated 14-11-1962 (AP) the Supreme Court's decision in : 3SCR764 was considered by the Bench consisting of the Chief Justice and Gopalrao Ekbote J. That was a case where the objection that the Regional Transport Authority had no jurisdiction to grant variation as asked for was taken for the first time at the hearing of the writ petition as by that time a Division Bench of the Madras High Court had held that the Regional Transport Authority had no jurisdiction to deal with an application for variation of the conditions of the permit. The learned Judge permitted the ground to be taken and accepted the plea. In appeal the objection was raised that a Writ of Certiorari, a discretionary writ, could not be granted on the ground that there was lack of jurisdiction when the party had already submitted to jurisdiction by not taking the plea in time. This contention was repelled by the Division Bench of the Madras High Court. The Supreme Court upheld the decision on the ground that since the question went to the root of the matter and involved the question of inherent lack of jurisdiction of the Regional Transport Authority, the High Court could not refuse permission to take this plea and to rely on the decision of the Divisional Bench. On the strength of this decision when the contention was raised that Ramamurthy Naidu's Case, : AIR1961AP344 was opposed to the pronouncement of the Supreme Court the learned Judges made the following observations:
'Their Lordships of the Supreme Court were concerned with a case where there was inherent lack of jurisdiction in the Tribunal which varied the conditions of the permit, unlike the present case where the Tribunal could cancel the permit if all the members were present. Further that was a case where the learned Judge who heard the Writ petition permitted the petitioners to raise this ground and accepted the writ petition. This was affirmed by the appellate Court'
(7) However as the conflict between Ramamurthy Naidu's Case. : AIR1961AP344 and M. V. Narasimharao's Case, W. P. No. 462 of 1953 dated 29-7-1955 (Andhra) was obvious enough the question was referred to a Full Bench of this Court. The Full Bench in Sheik Hussain and Sons v. State of Andhra Pradesh, : AIR1964AP36 (FB) on a consideration of the various authorities on the point did not agree with the principle laid down in Ramamurthy Naidu's Case, : AIR1961AP344 that the conduct of the party in not taking the objection as to the initial lack of jurisdiction disentitled him to invoke the jurisdiction under Art. 226 and held that the decision in W. P. No. 462 of 1953 dated 29-7-1955 (Andhra) (Supra) laid down the correct principle. The matter thus being now well settled it is now incontrovertible that pleas of inherent lack of jurisdiction may be permitted to be taken at any stage. The question in this case should then turn upon the point whether the objection taken is in relation to inherent lack of jurisdiction or only irregualr exercise thereof. A distinction must laways be drawn between the elements which are essential for the foundation of jurisdiction and the mode in which such jurisdiction has been assumed and exercised. Lack of initial jurisdiction may inhere in the constitution of the authority itself. It may as well be due to the subject matter of the dispute which falls entirely oout of its domain. In either case the elements essential for the foundation of jurisdiction are lacking and fatal. But if there be properly constituted authority having undoubted jurisdiction over the subject matter, the defect of irregular exercise or non compliance of the procedure prescribed as essential for the exercise of that jurisdiction may be regarded as curable irregularity and be cured by consent, waiver or acquiescence, etc. A decision made without jurisdiction however, being ab initio void cannot be valid and by the express or implied consent of a party to the proceeding. No amount of assent can cure total want of jurisdiction. That was settled as long as in 1886 in Legard v. Bull, (1887) ILR 9 All 191 at p. 203: 13 Ind App 134 (PC) where Lord Watson 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 estalish 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 defendnt cannot subsequently dispute his jurisdiction upon the ground that there were irregularities in the initial procedure which, if objected to at the time, would have led to the dismissal of the suit.'
As stated in Halsbury's Laws of England, Simond's third Edition, vol. 9, page 352, paragraph 824:
'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 acquiescence, 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 by taking any steps in the action, may waive his right to object to the Court taking cognisance of the proceedings. No appearance or answer, however can give a jurisdiction to a limited Court.'
(8) These makes it abundantly clear that initial lack of jurisdiction cannot be cured by consent of the parties though irregular exercise of jurisdiction may be cured by consent or waiver. The distinction between these two classes of cass, of course, in certain set of circumstances may happen to be very thi vet as it is real there can be no mistake or difficulty in its recognition. It follows therefore, that in cases where there is inherent lack of jurisdiction the question that the objection was not taken at the earliest opportunity assumes little importance as the order passed without jurisdiction or by an incompetent authority is invalid in law and may as well as be removed on certiorari in view of its invalidity apparent on the face of the record. So then if the plea is sought to be raised it may be permitted at any stage. The plea of acquisence in such case in out of the place. In W.P. No. 462 of 1953 dated 29-7-1955 (Andhra) (Supra) though the objection was not taken before the tribunal as its inherent lack of jurisdiction it was permitted to be taken in the High Court at a late stage. It was observed by the learned Judges there that the principle of the Full Bench decision in ILR 50 Mad 130: (AIR 1927 Mad 130) (FB) (Supra) would not apply to a case where there is total absence of jurisdiction. A similar view was expressed by the Madras Full Bench in : AIR1954Mad103 (Supra) where the contention was raised that the plea of initial lack of jurisdiction cannot be taken before the Full Bench as it was not raised at any earlier stage and not even before the Deputy Registrar where it ought to have been raised and therefore it must be deemed that the party has acquiesced in the exercise of jurisdiction by the Deputy Registrar. The Full Bench negatived contention by distinguishing ILR 50 Mad 130: (AIR 1927 Mad 130) (FB) (Supra). In this connection the learned Judges made following observations.
'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 there fore, must be overruled.'
(9) The principle laid down in W.P. No. 462 of 1953 dated 29-7-1955 (Andhra) as already observed has been accepted by the Full Bench of this Court in : AIR1964AP36 (Supra). As already noticed, in the instant case we are concerned with the question of initial lack of jurisdiction. The plea of total want of jurisdiction raised here is made to rest on the absence of an essential preliminary with regard to the composition of the tribunal. The absence of non-official element in the constitution of the Regional Transport Authority in violation of Sec. 44(2) of the Act is a telling circumstance going to the root of jurisdiction. The plea bearing thus on inherent lack of jurisdiction must be permitted even in the Court of last resort. In fact the Supreme Court in Civil Appeal No. 927 of 1963 dated 4-12-1964 (SC) (Supra) while permitting such a plea to be taken at the hearing of the appeal observed thus:
'It is true that this point was not raised by the appellant either before the learned Single Judge or before the Letters Patent Bench, but it is a point of law chich arises on face of the record. The constitution of the Regional transport authority and the State Transport Authority appears in the record and there is no dispute that both the bodies are composed exclusively of three official members, one of them being the Chairman of each of them. Therefore, Mr. Ram Reddi is right in contending that the proceedings taken before the Regional Transport Authority and the State Transport Authority are altogether invalid and the matter has to be considered afresh by the Transport Authorities in accordance with law.'
(10) Such being the position in law, the second plea taken by respondent fails.
(11) The result of the above discussion is that the order passed by the Regional Transport Authority must be held to be invilid and since the Government in making its own order in exercise of its powers of revision has failed to take this into account even though the defect was apparent on the face of the record, this Court, in exercise of is powers under Art 226 muyst quash the order of the Government. The appeal therefore is allowed. The order of the Government is quashed. As a result the applications for grant of permit shall have to be considered afresh by the Regional Transport Authority constituted according of law. There the learned single Judge.
W.A. No. 108 of 1964.
(12) We then turn to W.A. No. 108 of 1964 which raised the same questions in W.A. No. 60 of 1964. It is unnecessary to state the factsin the detail. Suffice it to way that it relates to the grant of permit in respect of different routes and is directed gainst the order of the Government which failed to take into account the fact that the Regional Transport Authority was not properly constituted. Of course, this objection was not raised before the Tribunal or before the Government or event in the writ petition. It has been raised for the first time at the stage of pel. That the Regional Trnsort Autority was constittuted exclusively of official element is apprarent on the face of the record. That being the case, the decision in W.A. No. 60 of 1964 would govern this case also. The result is that W.A. No. 108 of 1964 is allowed and the order of the Government is quaashed. but there will be no order as to costs either here or before the learned single judge. The applicattions for grant of permits, if properly notified, shall be considered by the dculy constituted authority in accordance with law.
(13) Appeals allowed.