1. This petition underArticle 226 of the Constitution of India was filed in October, 1976 and was admitted for final hearing by a Division Bench on 2-11-1976.
2. By this petition, the petitioner-Madhya Pradesh State Road Transport Corporation claims writ quashing the order made by the Regional Transport Authority, Jabalpur granting extension of route under the stage carriage permit held by respondent No. 2, The application for grant of extension was duly published and the petitioner filed an objection to the grant of extension on the ground inter alia that the proposed extension on Mandla-Jabalpur route forms part of the exclusive route as specifiedunder scheme No. 8, the approved scheme for nationalisation and as such the grant of extension was in violation of the aforesaid approved scheme under Chapter IV-A of the Motor Vehicles Act, 1939. However, according to the Regional Transport Authority, the provisions of the scheme, as construed, did not make the route in question an exclusive route and therefore, the extension sought for was granted subject to the condition that respondent No. 2 shall not pick up or set down passengers between certain portions of the route, namely, Jabalpur-Barela and Phoolsagar-Mandla. The petitioner, being aggrieved by the said order instead of preferring an appeal or availing the remedy of revision provided under the Act, approached this Court to invoke the jurisdiction under Article 226 of the Constitution of India. The grounds relied for challenging the order impugned are that according to the provisions of the scheme, the route in question was a route of exclusive operation and, therefore, the Regional Transport Authority had no jurisdiction to grant any extension in respect of the said route which actually amounted to grant of a fresh permit which was otherwise not possible. It was argued that the construction put by the Regional Transport Authority on the clauses of the scheme in question was wrong and the prohibition contained in the scheme also covered the case of grant of extension.
3. During the pendency of this petition, the Constitution (42nd Amendment) Act, 1976 (hereinafter referred to as 'the Amendment Act') came into force on 1-2-1977. On July 14, 1977, respondent No. 2 made an application to declare this petition to have already abated on 1-2-1977 by the operation of the provisions of Section 58 (2) of the Amendment Act. This application was registered as Interlocutory Application No. 2090 of 1977 and was placed before the Division Bench on 18-7-1977. Shri Dabir, learned counsel for the petitioner, while opposing the said application, contended that he was going to move an application for amendment of the petition challenging the vires of the Amendment Act itself and the question whether a case was made out for making a reference under Article 131A of the Constitution of India will have to be examined. At this statement, the Division Bench did not treatthe petition as abated and directed thatthe question, whether a reference under Article 131A of the Constitution of India can be made or not, will be considered at the time of final hearing.
4. After the aforesaid interlocutory orders, the petitioner moved an application seeking leave to amend the petition for incorporating certain grounds relating to the challenge to the constitutionality of the Amendment Act. This application for amendment of the petition was registered as Interlocutory Application No. 2143 of 1977 and was laid before the Division Bench on 26-7-1977. Since the question of allowing the application for amendment was inter-linked with the question of abatement of the petition in pursuance of the provisions of Section 58 (2) of the Amendment Act the parties were again heard on the question of abatement of the petition also. Looking to the importance of the point involved, the Division Bench thought it proper to refer the case to a larger Bench and accordingly this case has been placed before us.
5. It was not disputed by either side that the occasion for allowing or disallowing the application for amendment will arise only when it was found that the petition does not stand abated by operation of Section 58 (2) of the Amendment Act, and therefore, the parties were heard on this aspect alone and the hearing of the application for leave to amend the petition on merits was accordingly deferred.
6. On behalf of respondent No. 2, it was contended that since the order impugned was appealable in accordance with the provisions of Section 64 of the Motor Vehicles Act, the petition stands abated in pursuance of the provisions of Section 58 (2) of the Amendment Act. It was also contended that apart from there being a provision for appeal, the remedy for seeking the redress as sought in the present petition was also available by way of revision as provided under Section 64-A of the Motor Vehicles Act.
7. While meeting the objection raised by the respondent, it was contended that according to some High Courts, appeal against an order of the nature as involved in the present case could lie under Clause (b) of Section 64 (1), whereas according to some High Courts, it lies under Clause (f) of the same. According to the view taken by this Court in Jasram v. State Transport Authority, AIR 1961 Madh Pra 81 such orders are appealable under Clause (f)and this view has been followed by the Mysore High Court also in B. B. Mali Patil v. Sreedar Rao Patil, AIR 1970 Mys 60. In any case, undisputedly an appeal does lie against such orders, may be under Clause (b) according to some High Courts.
8. Shri Dabir, learned counsel appearing for the petitioner then contended that an appeal against the order impugned is barred by the specific prohibition contained in Section 68-F (3) of the Motor Vehicles Act. In our opinion, this objection is not at all tenable, because the order impugned is not an order as contemplated by Sub-section (1) or (2) of Section 68-F of the Motor Vehicles Act. Even otherwise, the remedy by way of revision as provided under Section 64-A of the Act was undoubtedly available.
9. Lastly it was contended that since the order made by the Regional Transport Authority is without jurisdiction being in violation of the scheme of nationalisation duly approved according to the provisions of Chapter IV-A of the Act, the provisions of Section 58 (2) of the Amendment Act regarding abatement will not be attracted to the present case, even if the remedies of appeal or revision were available. According to him, the provisions of Section 58 (2) of the Amendment Act are not attracted to a case which involves challenge to such orders which are void ab initio, being without jurisdiction. He placed reliance on a decision of the Full Bench of Gujarat High Court reported in Abad Cotton Mfg. Co Ltd. v. Union of India, AIR 1977 Guj 113.
10. In our opinion, the present petition is hit by the provisions of Section 58 (2) of the Amendment Act for the reasons stated hereinafter. If we look to the scheme of the Amendment Act in the context of the object and purpose intended to be achieved, we find that the jurisdiction under Article 226(1) before the amendment was very wide. The issuance of writ was not confined only for enforcement of the fundamental rights. The jurisdiction under the said Article could be invoked even for 'other purposes'. This jurisdiction could be exercised even in such cases where there was existence of other alternative remedy. It is true that by way of self imposed limitations, the Courts were not inclined to invoke this extraordinary jurisdiction in such cases where it was found that adequate alternative remedy existed under thelaw and was not exhausted. Since it was a case of self restraint only, the Courts entertained petitions by invoking the extraordinary jurisdiction in such suitable cases where the act or order challenged was apparently illegal and without jurisdiction and it was thought unjust to drive the petitioner to take recourse to ordinary remedy available under the law. But after the amendment, the jurisdiction under Article 226(1) of the Constitution has been restricted in many respects and a further fetter has been imposed under Article 226(3) that no such petition for redress of injury referred to in Sub-clauses (b) and (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. Undoubtedly, this fetter does not apply to a case falling under Sub-clause (a) of Article 226(1) relating to enforcement of; fundamental rights. But so far as the petitions falling under Sub-clause (b) or (c) are concerned, the fetter imposed by Article 226(3), as reproduced below, prohibits entertainment of the petition itself:--
'226 (3) No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (1) shall be entertained if any other remedy for such redress isprovided for by or under any other law for the time being in force.'
(Underlining is ours).
The jurisdiction for the specified purposes in Clauses (b) and (c) can now be invoked only if there is no other remedy for such redress provided for by or under any other law for the time being in force. The learned counsel for the petitioner specifically stated that the present petition did not fall under Sub-clause (a) and was for the specified purposes of Sub-clauses (b) and (c) only. Section 58 of, the Amendment Act, thereafter gives retrospective effect, however, in a limited manner inasmuch as it applies to writ petitions and interlocutory orders of stay, which have been pending on the appointed day. From the language of Article 226(3), it is apparent that the words 'any other remedy for such redress' are significant in disclosing the intention of the Parliament that the fetter will apply only to such cases where the other remedy is capable of giving such redress as specified in Sub-clause (b) and (c) of Article 226(1). It would be, therefore, always necessary for the Courts to examine the facts and circumstances of each case. The redress sought and the scope of the other remedy provided under any other law for the time being in force and consequently the applicability of the fetter imposed by Section 58 and Article 226(3) will always depend on the facts and circumstances of each case. It will not be possible under these circumstances to lay any hard and fast rule in this respect.
11. In view of the discussion made above, the position which emerges is that it there is any other remedy provided for seeking the redress as contemplated by Sub-clause (b) and (c) of Article 226(1), the letter of Clause (3) will apply and by operation of Section 58 of the Amendment Act, the petitions pending on the appointed day for such redress will abate as hit by the same. Earlier, the practice, that the High Courts entertained the writ petitions in suitable cases irrespective of the fact that there was an alternative remedy and the petitioner had not exhausted the same, cannot now be continued because the self-imposed restraint for not ordinarily entertaining such petitions by invoking the writ jurisdiction has now been made statutory restraint.
12. In the present case, what we have to see is whether by availing the remedy of appeal or revision as provided under the Motor Vehicles Act against the order impugned, the petitioner can seek the redress which he wants by invoking the jurisdiction under Article 226, Sub-Clauses (b) and (c). In this case, the main contention of the petitioner is that the order impugned is bad in law because it violates the provisions of duly approved scheme of nationalisation. The provisions of the scheme as construed by the Regional Transport Authority do not make the portion of the route in question as one reserved for exclusive operation. This aspect of the case and various other grounds raised in this petition can always be examined and decided by the appellate or revisional authority. The scope of appeal and revision as provided by Sections 64 and 64-A of the Motor Vehicles Act, as reproduced below, is wide enough:
64. Appeals:-- (1) Any person-... ..... ..... ..... .....
(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof;... ..... ..... ..... .....
(f) being a local authority or police authority or an association which, or aperson providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto,... ..... ..... ..... .....
may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under Sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final.
(2) The State Government shall constitute for the State a State Transport Appellate Tribunal which shall consist of a whole-time judicial officer not below the rank of a District Judge.... ..... ..... ..... .....
64-A. Revision.-- The State TransportAppellate Tribunal may, either on its own motion or on an application made to it, call for the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority and in which no appeal lies, and if it appears to the StateTransport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit, and every such order shall be final:_
Provided that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a State Transport Authority or Regional Transport Authority, unless the application is made within thirty days from the date of the order:
Provided further that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being' heard.'
(Underlining is ours)
13. In the present case, the order impugned has been made under Section 57 (8) of the Motor Vehicles Act. This section empowers the Regional Transport Authority to grant extension of routes under the existing permit subject to such restrictions as provided by the Act or the Rules made thereunder. The Regional Transport Authority had jurisdiction, therefore, to consider whether grant of extension was permissible or not While doing so, the said authority alsohad jurisdiction to decide whether grant of extension applied for is hit by the provisions of Chapter IV-A or not. In order to decide the same, it wag required to construe the provisions of the approved scheme. Under these circumstances, even if the construction put by the Regional Transport Authority and the decision taken may be ultimately found to be wrong, it cannot be said that there was inherent lack of jurisdiction, so as to say that the order is ex facie without jurisdiction and thereby a complete nullity. If the appellate or the revisional authority ultimately held that the Regional Transport Authority was wrong in coining to the conclusion that the route in question was available for conjoint operation and was not made exclusive and that the extension has been illegally granted it may set aside the same.
14. On going through the decision of the Full Bench of the Gujarat High Court referred above, we find that no such hard and fast rule has been laid down in the matter of deciding the applicability of the fetter imposed by Article 226(3) and the provisions of Section 58 of the Amendment Act to pending petitions. In paras 27 and 28 of the judgment, as reproduced below, it has been clearly observed that while considering the question of applicability of fetters imposed by Article 226(3) of the Constitution and the provisions of Section 58 (2) of the Amendment Act, the amplitude of appeal or revision in each and every case will have to be examined:
'27. Every Act would have to be examined when such a question of the existence of alternative remedy arises and it would have to be found out as to what is the amplitude of the normal Act remedies for appeal or revision so that the question of real or purported order would be decisive. In the Act remedy is so wide as to cover even purported orders so that no part of the activity of the authority is collateral activity, the Act having provided for direct remedies to such a wide extent, that remedy would have to be first exhausted. On the other hand, where the Act remedies are not of such wide amplitude but only orders under the Act, in cases of such purported orders, the appeal remedy could not come in the way of the petitioner as it could not be said to have been provided for such purported orders which are null and void and which it would not be obligatory for the petitioner to exhaust for the simple reason that such an appeal remedy would not be able to cure the defect even if the appeal confirms the original order bearing this indelible mark of nullity.''
'28. Similarly in cases where the question raised is of legislative competence or of excessive delegation, the authorities created by the Act being creatures of the statute, such questions of ultra vires of the provisions of the Act would be foreign to the scope of that jurisdiction and they could not dispose of such questions of ultra vires of the provisions of the statute, orders, rules or instruments made thereunder as per the settled legal position after the decision in Venkataraman & Co. v. State of Madras, AIR 1966 SC 1089. The same would be true of the orders which are totally de hors the Act and therefore, ex facie without jurisdiction even in the narrow sense as complete nullities which could be ignored as creating the rights and obligations whatever. The amplitude of the appeal provision would be a relevant consideration in cases of purported orders without 'jurisdiction' as interpreted in the wider sense as explained in the Anisminic decision [(1069) 1 All ER 208].
15. In view of the discussion made above, we are of the opinion, that in the present case, the scope of remedies of appeal or revision provided under Section 64 and Section 64-A respectively of the Motor Vehicles Act is wide enough for seeking such redress as sought for in this petition and therefore, it is held to have abated by operation of the provisions of Section 58 of the Amendment Act.
16. Lastly it was contended that since on 1-2-1977 or thereafter up to the date of presentation of the application for amendment, no order holding the petition as having abated has been made, the petition remained a pending petition and recourse to Article 131A of the Constitution will be permissible if the Court is satisfied that a case is made out for reference to the Supreme Court on the question of the constitutional validity of the 42nd Amendment Act. The argument was that, according to the scheme contemplated by Section 58 of the Amendment Act, the event of abatement depended upon the decision of the question whether the petition should have been admitted under the provisions of the amended Article 226 if it would have been in force on the date when the petition was actually admitted and entertained. This means that after the appointed day, the matter will have to be examined by the Court and after applying its mind to the question whether the petition should have been admitted under the new Article, an order declaring abatement will have to be made if the Court is of the view that the petition could not have been admitted under the new Article. Shri Dabir contended that in the context of the aforesaid situation, the words 'the petition shall abate' as used In Section 58 should be construed to mean that the abatement will take effect from the date of the order made by the Court holding the petition as having abated. Reliance was placed by Shri Dabir on a decision of the Full Bench of Maharashtra High Court in Shantilal's case, (1977 Mah LJ 567). On going through the discussion beginning from para 98 of the judgment, we find that the Full Bench of the Maharashtra High Court, in the context of the question of exclusion of the period during which the proceedings relating to the petition actually remained (pending and the question when a stay order made in such petition stands vacated, observed that looking to the provisions contained in Section 58 providing for exclusion of the period during which proceedings relating to such petition were pending in the High Court, it is apparent that the period sought to be excluded would cover the period even after 1-2-1977 up to the date of the order declaring the petition to have abated. It was also observed that the provisions made in Section 58 of the Amendment Act in respect of exclusion of time were in substance the extension of the provisions of Section 14 of the Limitation Act on principles to petitions hit by Section 58 (2) of the Amendment Act. As regards the date on which orders of stay or injunction etc. already made in such petitions found to have abated, it was observed that such orders will cease to have effect from the date of the order made by the Court declaring the petition as having abated.
17. In the present case we are at this stage not concerned either with the question of exclusion of time for the purpose of computing the period of limitation or the actual date on which any interim order by way of injunction or stay is to stand vacated. These questions are on different footing. Language, as used in Section 58 (2) and the proviso appended to it, is reproduced below:
'58 (2) In particular, and without prejudice to the generality of the provisions of Sub-section (1), every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38 if such petition had been made after the appointed day, shall abate and any interim order (whether by way of injunction or stay in any other manner) made on or in proceedings relating to, such petition shall stand vacated:Provided that nothing contained in this sub-section shall affect the right of the petitioner to seek relief under any other law for the time being in force in respect of the matters to which such petition relates and in computing the period of limitation, if any, seeking such relief, the period during which the proceedings relating to such petition were pending in the High Court shall be excluded.' (Underlining is ours),.
Perusal of the above provisions makes it clear that for the purpose of giving the benefit of exclusion of time in computing the period of limitation, the period, during which the proceedings relating to such petition (i. e. the petition which has abated) remained pending in the High Court, shall be excluded, because the parties to such petition cannot be themselves made a judge to decide whether the petition in question would not have been admitted by the High Court according to the provisions of new Article if such petition had been made after the appointed day. As observed by the Full Bench of Maharashtra High Court, this question has to be decided by the Court itself and since the abatement of a petition is dependent on this fact, the proceedings relating to even such a petition which has abated will naturally remain pending till the applicability of Sub-section (2) of Section 58 is decided by the Court. Similarly, a party cannot be expected to take recourse to the other remedy that may be open to him even before the decision whether the petition abates or not. On the same reasoning, the vacating of the interim order or injunction or stay being the result of abatement of the petition, it could not be said that the parties for themselves would decide whether the stay order is in force or not. However, as stated earlier since we are not concerned at present with the question of exclusion of time for computing the period of limitation, or of stay, it is not necessary to deal further with this aspect of the case.
18. The question before us is whether the present petition which we have found as having abated by virtue of the provisions of Section 58 (2) could be treated as a petition pending like other pending petitions, which are not hit by the provisions of Section 58 (2). From the perusal of the language used in Sub-section (3) of Section 58 of the Amendment Act, as reproduced below, it is apparent that the scheme, as contained in various sub-sections of Section 58 of the Amendment Act contemplates two types of pending petitions-- one category is of such pending petitions which have abated under Sub-section (2) of Section 58 and the other of such pending petitions which have not abated under Sub-section (2):
'58 (3) Every interim order (whether by way of injunction or stay or in any other manner) which was made before the appointed day, on or in any proceedings relating to, a pending petition not being a pending petition which has abated under Sub-section (2) and which is in force on that day, shall unless before the appointed day copies of such pending petition and of documents in support of the plea for such interim order had been furnished to the party against whom such interim order is made and an opportunity had been given to such party to be heard in the matter, cease to have effect if not vacated earlier.' (Underlining is ours).
19. Thus, in our opinion, since the present petition is of the category of such pending petitions which have abated under Sub-section (2) of Section 58, we are not inclined to consider and allow the application for amendment of such a petition. For the reasons stated above, as the present petition cannot be said to be a pending petition, which has not abated, there is no scope for considering or allowing the application for amendment by taking it out from the purview of Sub-section (2) of Section 58. Once it is declared that the petition was such as has abated by virtue of the provisions of Section 58 (2) of the Act, the effect of the declaration will be that such petition was not in force on the appointed day.
20. The application moved by respondent No. 2 for declaring this petition as having abated by operation of Section 58 of the Amendment Act is allowed and the application for amendment of the petition is consequently dismissed as in-fructuous.
21. This petition accordingly abates and shall be consigned to the record room. In the circumstances of the case, parties will bear their own costs. The amount of security deposit, if any, may be refunded to the petitioner.