K.K. Narendran, J.
1. These Original Petitions wherein the very same order of the Regional Transport Authority, Cannanore is questioned were heard together. The grievance of the petitioners is against the grant of a temporary permit by the Regional Transport Authority, Cannanore-Ist respondent. The ambit of the preferential treatment to be given to a co-operative society under section 47 of the Motor Vehicles Act, 1939, arises for consideration in these Original Petitions. The fate of these Original Petitions also depends upon a decision of the question whether the petitioners can invoke the jurisdiction of this Court under Article 226 of the Constitution without exhausting the alternative remedy provided by the Statute.
2. The petitioner in O, P. No. 5169 of 1974 is a Stage Carriage Operator within the jurisdiction of the 1st respondent, holding 9 pucca stage carriage permits and 3 temporary permits, He is operating a regular service in the Koothuparamba-Caiman ore route for which the temporary permit in question is also granted. The vacancy arose when one P. Satyabhama who was granted a pucca permit could not put a suitable vehicle on the route. The case of the petitioner is that from 16-10-1971 till 25-11-1974 he was making arrangements for operating this route by sending his spare buses though the permit used to be issued in the name of the said Satyabhama, Proprietress, Anil Roadways, Cannanore for technical reasons. Ext. P-l series (14 in number) produced in the case shows that temporary permits were issued for the buses mentioned in the Original Petition as belonging to the petitioner in the Cannanore-Kinavakkal route. The petitioner states that for the period 28-8-1974 to 25-11-1974 temporary permits in the route Cannanore-Kothuparamba were issued in his name in respect of vehicle K. L. C. 3747 by the 2nd respondent when the sanction for the grant of a pucca permit to the said P. Satyabhama was again revoked for not producing a suitable vehicle.
3. The petitioner's case is that he purchased a new vehicle K. L. H. 2496 for operating this route. The 1st respondent instead of raking regular steps for the grant of a pucca permit on the route proceeded to grant a temporary permit in the route though the petitioner was operating on the route. Seven applications including those of the petitioner and the 3rd respondent for temporary permits came up for consideration before the 1st respondent on 23-11-1974. The petitioner entered appearance through counsel and pointed out that the petitioner who possessed a Z974 model vehicle was the best qualified applicant and he was already operating the route in question from 16-10-1971. It was also pointed out that the 3rd respondent-Cooperative Society, did not have as much qualification as the petitioner was having. But the 1st respondent granted a temporary permit to the 3rd respondent and it was under the above circumstances that the petitioner filed this Original Petition against the above grant. Subsequent to the filing of this Original Petition, the petitioner has produced the proceedings of the 1st respondent dated 23-11-1974 granting the temporary permit as Ext. P-2, The petitioner has sought for a writ of certiorari to quash Ext. P-2.
4. The 3rd respondent has filed two counter-affidavits, one in the C. M. P. and the other in the Original Petition. The statement in para. 6 of the first counter-affidavit is that the temporary permit was already issued to the 3rd respondent as per Ext. R-1 and the vehicle has commenced operation on 26-11-1974. The statement in paragraph 2 of the above counter-affidavit is that the 3rd respondent is a Stage Carriage Operator with 8 pucca permits covering the entire route by its existing service. It is further alleged that the petitioner applied for the permit in respect of a 1966 model vehicle, that the broad sheet showed that the petitioner suffered one punishment and that there were arrears of tax due from the petitioner. The assertion in the second counter-affidavit is that the petitioner was not better qualified than the respondent-society. The petitioner has filed a reply affidavit answering the contentions raised in the counter-affidavits. It is pointed out in paragraph 2 that the 3rd respondent had suffered three punishments during the course of one year.
5. The petitioner in O. P. No. 5245 of 1974 is an operator who possesses no pucca permit on any route. He has got a 1971 model vehicle and he has operated substituted services on various routes on a number of occasions and on the route in question namely Koothuparamba-Cannanore. The petitioner and six others applied for the temporary permit but the 1st respondent by Ext. P-1 proceedings dated 23-11-1974 granted the permit to the 2nd respondent-society. The case of the petitioner is that the route in question being a short one new entrants like the petitioner are to be preferred under Rule 177 (sic) of the Kerala Motor Vehicles Rules, 1961 and 2nd respondent being a fleet owner having 8 pucca permits cannot be granted the temporary permit in question. The statement in the counter-affidavit filed by the 2nd respondent is that under Rule 177 (A) (2) of the Kerala Motor Vehicles Rules, 1961 and under Section 47 (1) of the Motor Vehicles Act, 1939 the Regional Transport Authority made the statutory preference in favour of the society assuming that all other applicants had all necessary qualifications. Tt is pointed out in para. 5 of the counter-affidavit that before invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution the petitioner ought to have exhausted the alternative remedy available under the Act.
6. The parties and exhibits are referred to in this judgment as they are in O. P No. 5169 of 1974.
7. Shri K. Neelakanta Menon, learned counsel for the petitioner in O. P. No. 5169 of 1974, refers to the proviso to Section 47 of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) and Rule 177A (2) of the Kerala Motor Vehicles Rules, 1961 (hereinafter referred to as the Rules) and contends that an absolute preference to a co-operative society is not contemplated by the Act and in view of the fact that the petitioner is more qualified the 1st respondent went wrong in rejecting the petitioner's application. The proviso to Section 47 (1) of the Act reads:
'Provided that other conditions being equal,--
(a) an application for a stage carriage permit from the Kerala State Road Transport Corporation shall, as far as may be, be given preference over other applications; and
(b) subject to Clause (a), an application for a stage carriage permit from a co-operative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners.'
Rule 177A (2) of the Rules reads:
'In granting permits, other conditions being equal an application for a stage carriage permit from a Co-operative Society registered or deemed to be registered under any law for the time being in force shall, as far as may be, be given preference over applications from individual owners.'
The learned counsel relies on two decisions of this Court in Private Motor Workers Industrial Co-operative Society v. State Transport Appellate Tribunal (1961 Ker LT 553) and Malabar Motor Transport Co-operative Societies Ltd. v. State Transport Appellate Tribunal, (1963 Ker LT 78). In Malabar Motor Transport Co-operative Societies Ltd. v. State Transport Appellate Tribunal (1963 Ker LT 78) M. S. Menon C. J., speaking for the Court has said:
'It is clear from the proviso that the fact that an applicant is a co-operative society can be used only to tilt the scales in its favour when they are equally balanced and not for earning marks in a comparative evaluation as indicated in paragraph 2A (5) of the Madras G. O. dated 26-4-1956. In other words there is a clear conflict on this aspect between the G. O. and the proviso.'
In Private Motor Workers Industrial Co-operative Society v. State Transport Appellate Tribunal (1961 Ker LT 553) this Court said: 'If that be so, the proviso to Section 47 of the Motor Vehicles Act can have no application. What the proviso says is that an application from a Co-operative Society shall, as far as may be, be given preference over applications from individual owners, provided the other conditions are equal. If on considering the merits of the respective claims is found by the S. T. A. T. that respondents 3 and 4 are definitely more qualified, this question of preference on the ground of being a co-operative society does not arise'. The learned counsel points put that the 1st respondent has not compared the rival claims of the applicants and this has greately affected the rights of the petitioner for a pucca permit in the route. The learned counsel has relied on the decision of this Court in Joseph v. Secapathi (1970 Ker L. T. 1102) wherein Raman Nayar C. J. speaking for the Court has said:
'Once a permanent need is found, a temporary need pending the grant of a pucca permit would necessarily follow, and operation on the route on a temporary permit would be a qualification for a pucca permit'.
8. On the question that the petitioner has approached this Court without exhausting the alternative remedy provided by the statute the learned counsel relies on the decisions of the Supreme Court in A. V. Venkateswaran v. R. S. Wadhwani (AIR 1961 SC 1506) and State of Uttar Pradesh v. Mohammad Nooh (AIR 195S SC 86). In A. V. Venkateswaran v. R. S. Wadhwani (AIR 1961 SC 1506) Rajagopala Ayyangar J. speaking for the Court said:
'The rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion.'
In para. 10 of the above judgment the Supreme Court further said:
'.....the two exceptions which the learned Solicitor-General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.'
In State of Uttar Pradesh v. Mohammad Nooh (AIR 1958 SC 86) Das C. J. speaking for the Court said:
'It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute- The fact that the aggrieved party, has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion oi statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.'
The learned counsel further contends that the order of the 1st respondent does not contain a discussion of the relevant factors that have to be takep into consideration in granting the permit. The learned counsel has referred to the decision of the Supreme Court in P. B. Pvt. Ltd. v. S. T. A. Tribunal, Punjab (AIR 1974 SC 1174) wherein Bhagavati J, speaking for the Court has said:
'We do not find in the order of the State Transport Appellate Tribunal any discussion oi the question as to what the interest of the public in general requires and who from amongst the rival claimants would be able to provide the most efficient and satisfactory service to the public ..... The question that has to be considered is not as to what would be fair as between the appellant and the 3rd respondent, but what does the interest of the public, which is to be provided with an efficient and satisfactory service, demand.'
9. Shri, M. P. Menon, the learned counsel for the petitioner in O. P. No. 5245 of 1974 contends that Rule 177A does not provide that when a co-operative society is an applicant the permit should invariably be given to it. What the rule says is that the grant in favour of the co-operative society should be made only when other qualifications are equal. Rule 177A has to be interpreted in the light of Section 47 of the Act and the words used in Section 47 are 'as far as may be'. The route in question being a short route, the preference must be in favour of the petitioner who is a new entrant. It is also submitted that the order granting the permit should show that the 1st respondent applied its mind to the real question involved. The learned counsel relies on a decision of this Court in New Kerala Bus Transports v. Regional Transport Authority, Cannanore (1965 Ker LT 1039). In this decision, Govin-dan Nair J. (as he then was) speaking for the Court said:
'Speaking generally and in a broad way, it could not be seriously denied that encouraging bus operators who do not own a fleet of buses and discouraging monopoly on the route is consistent with the interests of the general public which is of paramount importance under Section 47 (1) (a). It follows that it will be open to the Tribunal to choose a new entrant in the interests of the public'. On the question of not exhausting the alternative remedy provided by the statute the learned counsel relies on the decision of the Supreme Court in State of West Bengal v. North Adjai Coal Co. Ltd. (1971) 1 SCWR 133), In the above decision, j. C. Shah C. J. speaking for the Court has said:'It is urged that the High Court was incompetent to entertain the writ petition because the respondent had failed to exhaust the statutory remedies permissible under the Bengal Finance (Sales Tax) Act, It was submitted that a revision application lay to the Board of Revenue and without moving the Board of Revenue, the respondent could not file petition before the High Court. There is no substance in this contention. It is true that normally before a petition under Article 226 is entertained the High Court would insist that the Party aggrieved by the order of a quasi-judicial Tribunal should have recourse to the statutory authorities, which have power to give relief, But that is a rule of practice and not of jurisdiction. In apppropriate cases the High Court may entertain a petition even if the aggrieved party has not exhausted the remedies available under a statute before the departmental authorities. In the present case, in the view of the High Court, a case was made out for its interference with the order passed by the Deputy Commissioner and there is no reason to hold that the High Court had not properly exercised jurisdiction in this case. The facts were apparently not in dispute, and the only question was whether in the facts and circumstances of the case, the respondents were entitled to the exemption claimed by them, In the circumstances the High Court cannot be said to have acted improperly in entertaining the petition under Article 226.'
The learned counsel points out that there are no disputed questions of fact to be decided in deciding the validity of the order of the 1st respondent dated 23-11-1974. That the route in question is a short route and that the petitioner in O. P. No. 5245 of 1974 is a new entrant are not facts which are in dispute. It is also clear from the order of the 1st respon dent that the 1st respondent has not even adverted to the fact that only when other conditions are equal an applicant who is a con-operative society can tilt the scales in its favour.
10. Shri V. Sivaraman Nair, learned counsel for the 3rd respondent in O P. No. 5169 of 1974 and respondent No. 2 in O. P. No. 5245 of 1974, contends that it is immaterial whether the 1st respondent has stated in the order that other conditions of the grantee-society and the petitioners ip the two original petitions are equal or not. Unless it is shown to be otherwise, the presumption will be that other conditions are equal. The learned cousel relies on the decision of the Supreme Court in C. M. P. Co-operative Societies v. State of Madhya Pradesh (AIR 1967 SC 1815) and contends that no express finding that other conditions are equal is necessary to make the order valid. The above case arose from an order of the Government of Madhya Pradesh modifying a scheme for State Transport undertakings under Sections 68-C and 68-D oi the Act. A contention was taken that the orders approving or modifying the schemes do not show that the authority had applied its mind to the question whether the schemes were such as to subserve the purposes of providing an efficient, adequate, economical and properly co-ordinated transport service. The Supreme Court repelling the above contention said;
'There is no express provision in these two sections laying down that the authority hearing objections must come to some finding of fact as a condition precedent to its final older. As such no express finding as envisaged in the American cases is necessary under Section 68-C read with Section 68-D that the scheme provides an efficient, adequate, economical and properly co-ordinated road transport service. Besides we are of opinion that the whole object of hearing objections under Section 68-D is to consider whether the scheme provides an efficient, adequate, economical and properly co-ordinated road transport service. After hearing objections the State Government, or the officer authorised by it has either to approve or modify or if necessary, to reject the scheme. Where the scheme is ap-troved or modified it necessarily follows in our opinion that it has been found to provide an efficient, adequate, economical and properly co-ordinated transport service; if it is not of that type, the State Government or the authority appointed to hear objections would reject it. In the absence of a provision requiring an express finding in these two sections it seems to us that the very order of the State Government or the authority appointed by it to hear objections must be held to mean either, where the scheme is approved or modified, that it subserves the purposes mentioned in Section 68-C, or, where it is rejected, that it does not subserve the purposes. Section 68-D (2) does not require in our opinion any express finding, and even if there is none in the present case, it would not invalidate the orders passed by the authority hearing the objections'.
Referring to the decision of the Supreme Court in State of West Bengal v. North Adjai Coal Co. Ltd. ((1971) I SCWR 133) relied on by the petitioner's counsel, the learned counsel for the respondent submits that if an investigation of facts is necessary the remedy is y way of a regular appeal. The learned counsel further submits that no indication of the subjective satisfaction of the authority need be there in the order and a presumption can be there that the authority was satisfied on the facts and circumstances of the case before the order was issued. The learned counsel also relies on the following decisions of the Supreme Court in Thansingh v. Superintendent of Taxes (AIR 1964 SC 1419) and Tata Engineering and Locomotive Co. Ltd. v. Assistant Commr. Commercial Taxe, (AIR 1967 SC 1401). In Thansingh v. Superintendent of Taxes (AIR 1964 SC 1419) Shah J. (as he then was) speaking for the Court said:
'Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact and does not by assuming jurisdcition under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where ft is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up.'
In Tata Engineering and Locomotive Co. Ltd. v. Assistant Commr. of Commercial Taxes (AIR 1967 SC 1401) Hidayatullah J. (as he then was) speaking for the Supreme Court said:
'In spite of the very wide terms in which this jurisdiction is conferred, the High Courts have rightly recognised certain limitations on this power. The jurisdiction is not appellate and it is obvious that it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence. The High Court, there-fore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if -they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed. To these there are certain exceptions. One such exception is where action is being taken under an invalid law or arbitrarily with-out the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Article 226 were not allowed to be invoked'.
The learned counsel also referred to the decision of the Supreme Court in H. C. Nara-yanappa v. State of Mysore (AIR 1960 SC 1073) and contends that though under Section 68-D of the Act the State Government is to act judicially, absence of detailed reasons in the order cannot be reason for challenge in Supreme Court. The learned counsel also has a case that no interference can be made as long as there is no manifest injustice and in this case no manifest injustice is caused. It is also pointed out that under Rule 177A of the rules all orders granting permits are to be accompanied by a tabular statement containing the marks awarded to each applicant and the reasons for awarding marks and in view of this fact the absence of reasons in the order is immaterial. Moreover, Section 62 does not insist that reasons should be given in the order. The learned counsel contends that reasons need be given only when a permit is refused and even in that case absence of detailed reasons cannot be a reason for interference, In support of this contention the learned counsel relies on the decision of the Travancore-Cochin High Court in Kunju Menon v. Secretary, R. T. B. Trichur (AIR 1957 Trav Co. 254) wherein it has been said: 'Where reasons are given by the Road Traffic Board in the order refusing an application for permit the fact that the order could with advantage have been written in a more detailed and elaborate fashion is no reason to hold that it does not comply with the provisions of Sub-section (7) of Section 57 of the Motor Vehicles Act, 1939'.
11. Shri K. Neelakanta Menon, learned counsel for the petitioner, in his reply refers to the decision of the Supreme Court in P. B. Pvt. Ltd. v. S. T. A. Tribunal Punjab (AIR 1974 SC 1174) and contends that the main considerations in the grant of both pucca permits and temporary permits are the same and the failure to take into account any of these considerations and proceeding as if the stage carriage permits are a largesse to be divided fairly and equitably among the rival claimants is a wholly erroneous approach. The learned counsel also referred to the decision of the Supreme Court in B Rajagopala v. S. T. A. Tribunal (AIR 1964 SC 1573) in support of his contention that the quasi-judicial function exercised by the Regional Transport Authority is subject to the jurisdiction of this Court. A decision of my learned brother George Vadakkel J. in P. E. George v. R. T. A. Palghat (O. P. Nos. 1256 and 1258 of 1974 (Ker) was also pressed into service by the learned counsel. In the above decision George Vadakkel J. said:
'The order is a cryptic and laconic order. It is not a speaking order. The Regional Transport Authority has failed to consider the rival claims of the applicants Nos. 2, 4 to 6 (both inclusive) and 8 to 12 (both inclusive). In the nature of the order it has to be set aside'.
In the above case the petitioner in one of the original petitions approached this Court without filing an appeal from the order of the Regional Transport Authority,
12. Shri M. P. Menon, learned counsel for the petitioner, points out that the relief claimed in the original petition is a writ of certiorari to quash Ext. P-1. Rule 177A (2) of the rules does not mean that irrespective of qualifications a co-operative society should be given preference in the grant of permits. Section 47 of the Act also does not insist so. So, the Regional Transport Authority has really misconstrued the provisions of law when it grants the permit to the respondent-society saying that as per Rule 177A (2) preference has to be given to the co-operative society. This is an error of law apparent on the face of the record. The learned counsel also points out that the decision of the Supreme Court in C. M. P, Co-operative Societies v. State of Madhya Pradesh (AIR 1967 SC 1815) relied on by the counsel for the respondent-society is not applicable to the facts of this case as the decision questioned in that case was a policy decision of the Government.
13. On a consideration of the contentions advanced by the counsel appearing in the case in the light of the facts and circumstances of the case, I come to the follow-ng conclusions, The High Court has always the jurisdiction under Article 226 of the Constitution to issue a writ of certiorari when there is an error of law apparent on the face of the record in an order or a subordinate au-thority exercising quasi-judicial functions. This jurisdiction does not depend upon the fact whether there is or there is not an alternative remedy provided by the statute. Normally as a matter of practice when there is an alternative remedy provided by the statute and if the same is not exhausted this Court will decline to interfere. But this is not an in-lexible rule. It is only a rule of practice and not a rule of law. As said by Das C. J., provided the requisite grounds exist, certiorari will He although a right of appeal has been conferred by the statute. In a ease like this where it is clear from the order itself that the subordinate authority has misconstrued a provision of law there is no reason why this Court should refuse, to exercise the discretion vested under Article 226 of the Constitution, simply because the petitioners have not ex-hausted the remedy of appeal provided by the statute. Moreover, no investigation on disputed questions of facts is necessary for giving a decision. For that reason also, this Court cannot refuse to exercise the discretion vested under Article 226 of the Constitution. On the merits also the order 'is wrong. The Re-gional Transport Authority has proceeded on the basis that if a co-operative society is an applicant for a permit, as per Rule 177A (2) the permit has to be issued to that co-operative society and that co-operative society alone irrespective of the fact whether the co-operative society has got as much qualification as the other applicants who are not co-operative societies. This is not what is insisted by Section 47 (1) of the Motor Vehicles Act, 1939. As per Section 47 (1) of the Act the matters that are to be given due regard in considering the application for a permit are those enumerated in clauses (a) to (f) of the subsection. The proviso to Section 47 (1) only says that an application by a co-operative society shall, as fas as may be, be given preference over applications from individual owners, Rule 177A of the Kerala Motor Vehicles Rules, 1961 contains the guiding principles to be followed in the matter or grant of permits. As per Rule 177A (2) other conditions being equal an application for a permit from a co-operative society shall, as tar as may be, be given preference over applications from individual owners, So it goes without saying that an applicant who is a cooperative society cannot nave a simple walkover over applicants who are not co-operative societies. In the words of M. S. Menon C. J., the fact that an applicant is a co-operative society can be usea only to tilt the scales in its favour when they are equally balanced. This is the aspect which has to be kept in mind in granting a permit to a co-operative society. There is no indication in the order that the Regional Transport Authority has adverted to this aspect in granting the permit. On the other hand, whatever indication that is there in the order is that the Regional Transport Authority has not adverted to this aspect of the matter which is the aspect which should be considered. The Regional Transport Authority has misconstrued the relevant provisions of the Act and the Rules.
14. For the reasons stated above, I quash Ext. P-2, in O. P. No. 5169 of 1974 and Ext. P-1 in O. P. No. 5245 of 1974. The 1st respondent-Regional Transport Authority. Cannanore is directed to consider the question of granting the temporary permit in question afresh and pass orders in accordance with law. The Original Petitions are allowed. There will be no order as to costs.