G.M. Lodha, J.
1. This writ petition should fail as it fails to satisfy the prerequisite condition of 'Substantial Injury' or 'Substantial failure of justice' to petitioner under Article 226(1)(b) and (c) of the Constitution.
2. The principal point raised by Mr. Mehta is that a temporary Bus permit has been granted to respondent No. 2, Madan Lal on Ramganj-Mandi Rawat-bhata route where an application for non-temporary permit is already pending. Mr. Mehta submits that it is well established law that a temporary permit cannot be granted on a route where applications for grant of non-temporary permits, were invited and the same are pending.
3. Mr. Mehta, the learned counsel for the petitioner, has further contended that the grant of permit is, therefore, without jurisdiction and illegal.
4. It was further submitted that the non-mention of temporary purpose in the application and the order also makes it illegal because no temporary permit can be granted for a regular service.
5. I may agree with the legal proposition enunciated by Mr. Mehta, but in view of the view, which I am taking on other preliminary point, it is not necessary to consider them much less to decide them.
6. An important rider, placed in Clause (b) & (c) of Article 226 of the Constitution, is insistence of requirement of substantial injury in Clause (b) and substantial failure of justice in Clause (c) requires consideration first before a writ can be admitted and considered in limine.
7. It is admitted that the scope fixed by the R.T.A. on the above route is of three permits of two returning journeys each. It is also admitted that out of that, travelling public is getting benefit of two vehicles, as only two non-temporary permits have been granted so far. That being so, the petitioner by virtue of non-temporary permit which was granted to him was supposed to be one out of three permit holders and to get benefit of earning only to that extent. Contrary to it the travelling public was supposed to have the benefit of three vehicles plying at the route. Out of that admittedly the public is being deprived of one permit,
8. Mr. Mehta submits that there is no such loss to the public as the two permit holders are plying their vehicles and performing two return journeys.
9. Be that as it may, the question which requires consideration is whether by grant of one permit of a temporary nature instead of third non-temporary permit, which is bound to be granted to somebody else and may be granted to respondent No. 2, the petitioner can claim that any substantial injury is being caused to him or that any substantial failure of justice has been occasioned.
10. Mr. Mehta has relied on the averment in his writ petition, in para 8, Sub-clause (b):
'That a temporary permit can be granted for any one of the purposes as specified in Section 62 (1) (a), (b) and (c). None of the aforesaid reasons were mentioned by the non-petitioner No. 2 in his application for the grant of a temporary permit. The Regional Transport Authority also in its resolution has not mentioned any one of the grounds as required under Section 62 (1) of the Motor Vehicles Act for the grant of a temporary permit. Thus, the grant of a temporary permit is contrary to the provisions of the Act and the authoritative decisions laid down by this Hon'ble High Court on a number of occasions.'
According to Mr. Mehta this has resulted in infringement of his rights.
11. Mr. Mehta has also relied upon the judgment of Bombay High Court--Shantilal Ambalal Mehta v. M. A. Ranga-swamy, (1977) 79 Bom LR 633 (FB). This court has held in the case of Ratan Kumar Pareek v. State of Rajasthan, Civil Writ Petn. No. 573 of 1977 decided on 1-3-1978, that the petitioner is required to show substantial injury for redress of which the writ is being sought.
12. While considering this question in Miss Bharti Chaturvedi v. State of Rajasthan, Civil Writ Petn. No. 770 of 1978 decided on January 2, 1979, I have observed as under;--
'The Parliament in its wisdom put these two riders, which of course are alternative, to circumscribe and put fetters on the jurisdiction of this court under Article 226. This plenary power of the Legislature cannot be challenged. Tt is also a matter of common knowledge that even earlier to it the High Courts used to insist upon the proof of substantial injury or injury to the petitioner in most of the writ applications'.
'Unless the facts showing 'substantial injury' or 'substantial failure of justice' are specifically pleaded, a writ petition cannot be entertained under Article 226(1)(b) and (c) of the Constitution, and deserves to be dismissed 'in limine'.
'It appears to me that the express addition of the above two phrases in Clauses (b) and (c) in Article 226 was not without significance. The Parliament must have intended to oust and exclude the cases of 'academic interest' only so that the precious time of the court is saved for being utilised for deciding those matters which affect and involve the rights of citizens. The Parliament was conscious of the fact this country cannot afford to waste the court's time for deciding academic or luxurious litigation ......... The High Court should not berequired to enter into controversies of academic interest although they may certainly be very useful and of great interest to the Professors and students of law in Universities. They would be injurious and detrimental to other litigants who are waiting in queue for a decade and are impatient to get justice from High Court'.
''Are we to convert the sacred and pious temples of justice into 'legal gymnastic clubs', 'legal debating societies' or even 'luxurious research centres of law'? Are we to wait and watch help jessly the gimmics of talented logic and brilliant feats of oratory' of those fortunate few, who can afford to have luxury of academic litigation at the cost of those thousands of litigants who are either waiting in jail cells for last 5 or 6 years to get their guilt or innocence decided or those thousands of civil servants or industrial workmen, petty shopkeepers or farmers whose fundamental rights have been invaded by unscrupulous employer or State functionaries and who want to have justice according to law at least if not real justice or social justice, but who are not getting their turn of hearing due to heavy cause-list and arrears of cases. A lakh of such disappointed, helpless, impatient, gloomy, sad faces of litigants involved in about 10,000 pending cases, are staring before me, and remind me of the great importance of giving effect to the 'riders' of 'substantial injury', 'substantial failure of justice' to make room for deciding their awaiting fates and to liberate themfrom 'coma' caused due to suspense of pending cases for more than a decade.'
'Again can we shut our eyes and become blind to the hard reality that lakhs of poor, down trodden, less privileged citizens are those who are still outcast from the realm of courts, justice and law, as they cannot afford to reach and spend in competition of the privileged, resourceful, educated and enlightened litigants; nor can they afford to await in long queue. That being so, even though they deserve consideration and relief from the courts but we are helpless to act as 'watch dogs and sentinel' of Constitution and give justice to them.
While I am sitting in the Court room, my eyes are observing the unending stream of tears rolling from the eyes of 'Saharias of Sahbad' and others (Tillers of Shahbad, Sub-division Kota District) who with their empty bellies and naked skeleton of bones and starving body are helplessly watching their farms being encroached, trespassed and cultivated and crops being harvested by rich, resourceful invaders; but they can never afford to even weep and cry in protest and cannot imagine of either going to a court of law or to obtain relief of getting back possession in spite of 'tall talk of legal aid to poor' and its inclusion in Constitution, It may be that, if I describe the above tragic functioning of our law, courts of justice, enumerating the hard realities, I may for a while take a role of a poet, philosopher or reformer, rather than a Judge but it is this restraint which is responsible for the widespread feelings that 'Judges live in ivory towers', a feeling which even if untrue or partially true, should be repelled by 'imparting speedy, cheap, social, ready and real justice' to the lowest in the ladder, i.e. a tiller, a workman, a cobbler etc.; and not by using handy sword of 'contempt' only'.
'The High Court should literally and faithfully insist on enforcing the riders of 'substantial injury and 'substantial failure of justice' while entertaining the writ petition under Article 226 of the Constitution of India, except when violation of fundamental rights is alleged and proved'.
13. Faced with the above, Mr. Mehta relied upon the following observation of the Full Bench of Bombay HighCourt in Shantilal v. M. A. Ranga-swami (1977-79 Bom LR 633):
'Mr. Bhabha, who appeared on behalf of the Union of India contended that the words 'injury of a substantial nature' contemplated an injury of an 'exceptional monstrous nature'. While discussing the provisions of new Article 226 it will not only be difficult but almost impossible to contemplate all kinds of cases which would be covered by Clause (b) or Clause (c) and whether a case falls under Clause (b) or Clause (c) will have to be decided on the facts of each case. It is, however, difficult to accept the contention of Mr. Bhabha that the injury which is contemplated as enabling a party to claim relief under new Article 226(1)(b) must be something of a monstrous or exceptional nature.
'While discussing the scope of Article 226(1)(b) of the Constitution it was contended by Mr. Seervai that where an order issued by an authority is entirely without jurisdiction, that order must in terms be held to result in substantial injury or prejudice to a person for the purposes of Article 226(1) (b). In our view, this contention must be accepted. If an order is made by a person entirely without jurisdiction and it adversely affects a person it will not be open for the opposite party to contend that the order does not result in substantial injury to the party who is intended to be affected by the said order. We may usefully refer to the decision in Harrington v. Croydon Corporation ((1968) 1 QB 856), relied upon by Mr, Seervai. That was a case in which the question related to the validity of a notice calling upon a person in exercise of the power under Section 27(1) of the Housing Act, 1964, to construct a brick-built ground floor extension as a bathroom which was estimated to cost about 650. That notice was challenged on the ground that the local authority had no power to compel the improvement of property by requiring the owner to construct a new bathroom. The argument on behalf of the Corporation was that though the County Court in the exercise of its appellate jurisdiction under Section 27 (3) of the Act had power to consider the validity of the notice, even if the notice was invalid, it did not substantially prejudice the landlord.'
It has also been observed that-
'The concept of an 'injury of a substantial nature' does not much differ incontent from the concept of 'substantial prejudice'. In Chambers's Twentieth Century Dictionary one of the meanings of the word 'prejudice' is given as 'injury or hurt'. Thus in our view, an order issued in exercise of non-existent power or, in other words, an order which is entirely without jurisdiction must in terms be deemed to result in an injury of a substantial nature'.
14. Mr. Mehta submitted that in view of this judgment of Full Bench wherever it is found that the judgment or finding or order of the lower court or tribunal or State functionary is without jurisdiction, the court should presume substantial injury even though there may not be any injury and without any injury proved and pleaded. The submission of Mr. Mehta is that according to judgment of the Full Bench whenever there is illegality or an order being passed against some law, Article 226 can be invoked and substantial injury is to be presumed.
15. I have carefully considered theview taken by Bombay High Court. Mr.Mehta conceded that it has persuasivevalue only and the court should showgreatest respect to it.
16. It is true that in this judgmentof Bombay High Court an equation hasbeen made by legal inference by adopting the principles of legal fiction; thoughnot said in so many words, that if an order is without jurisdiction or patently illegal, substantial injury, which has been treated as equivalent to substantialprejudice, is to be assumed. In the abovejudgment of Bombay High Court it hasbeen observed:
'While discussing the scope of Article 226(1)(b) of the Constitution it was contended by Mr. Seervai that where an order issued by an authority is entirely without jurisdiction, that order must in terms be held to result in substantial injury or prejudice to a person for the purposes of Article 226(1)(b). In our view, this contention must be accepted.'
17. There is no doubt that the view of Full Bench of Bombay High Court commands greatest respect. With utmost respect, I have failed to persuade myself to hold that such assumption is permissible after the express, clear and categorical legislative intent shown by the express addition of the phrase substantial injury and substantial failure of justice in Clause (b) and (c) of the Constitution, by the 42nd Amendment. Therecan be several cases in which orders car be passed in disregard of some law or rule and by authority which may not have got jurisdiction to do so. However, after the addition of the phrase substantial injury, the High Court is bound to insist on making an inquiry into and then giving a finding whether the petitioner in that case would have real injury. An inference of the nature drawn in Bombay case, with utmost respect to the learned Judges is not permissible in view of the addition of the phrase 'substantial injury' in Art, 226 of the Constitution (1) (b) and 'substantial failure of justice' in Article 226(1) (c).
All illegalities need not cause any injury to all or anyone. Each case can beconsidered only or the basis of thepleadings of that case The decisiongiven in Bombay case is based on legalfiction and abstract presumption, notpermissible on a plain reading of Article 226 Clauses (1) (b)' and (c) of the Constitution of India.
I have discussed this matter at length in the case referred to above and I have come to the conclusion that in spite of patent illegality and an order being patently without jurisdiction, it may not cause any injury whatsoever, to a person coming to the court.
18. It is true that the injury may not be of pecuniary nature and Bombay view to that extent is perfectly correct. It is also true that everything cannot be measured in terms of pecuniary interest but then it has to be seen what is the nature of that injury or loss caused to the petitioner in a given case. A few illustrations would show my intention-
(a) 2 students go in competitive interview. The interview Board has got power of giving 5 marks only. The difference between them on written test is of 6 marks. The interview is held by B instead of A and is therefore, without jurisdiction. In writ petition under Article 226(1)(b) and (c) by the rejected student against selected student, Court cannot hold substantial injury to non-selected candidate, as even if he gets all the 5 marks and the selected candidate gets no marks at all, the result would not be altered. The writ is liable to be dismissed in 'limine'.
(b) In a no-confidence motion against Chairman of Municipal Board, 18 members out of 20, vote against Chairman. The Presiding Officer in law is Collector but Additional Collector, not having Collector's powers presides. The ousted Chairman applies under Article 226 on the ground that the entire proceedings are without jurisdiction. The High Court under Article 226 would refuse to entertain such writ as the Chairman cannot show any substantial injury or failure of justice, merely on account of Additional Collector presiding over it.
(c) In an election to the office of Chairman of an Institution, statutory rules are violated and authority accepts nominations of two ineligible persons also in addition to one eligible person. The ineligible persons get no votes at all and eligible person is elected. Any of the ineligible persons or any other person cannot challenge the election as he cannot prove substantial injury under Article 226(1)(b) of the Constitution. Even in an election petition material effect on the result of election is required to be shown.
19. If Bombay view is followed in each of the above cases, 'substantial injury' will be presumed because impugned order or act is patently without jurisdiction. With greatest respect, I cannot subscribe to this view as it would be making the provision nugatory. I am, therefore, of the view that the general terms in which Bombay High Court has expressed itself while agreeing with the contention of Mr. Seervai requires much more to be considered. I cannot treat it as the last word on the interpretation of substantial injury and substantial failure of justice used in Article 226(1)(b) and (c) of the Constitution.
20. Now, that being so, I have to consider whether in the instant case the petitioner has been successful prima facie in proving that any injury of substantial nature has been caused to him on account of grant of temporary permit to a third party. Admittedly the petitioner is not the contestant for the third non-temporary permit as Mr. Mehta has admitted that the applications which are pending are of other persons. Moreover, in the very nature of the things a third permit holder is bound to come and ply vehicle sooner or later, because of the scope of three permits. The petitioner has not earlier challenged the jurisdiction of the R.T.A. in this case as the permit has been granted for four months only as can be done under the law and that period started on 16th of December, 1978 and would expire on the expiry offour months from that date. This means that the vehicle of the respondent is being plied at the moment and on the route and the travelling public is taking benefit of it.
21. In the pleadings all that has been said is in Clause (b) which again is an averment not supported by an affidavit 'that there would be loss of Rs. 700 per month to the petitioner as he would be deprived of 10 trips return in a month'. As perusal of the affidavit would show that this ground which is contained in Clause (b) of para 8 has been excluded because whereas affidavit says that paras Nos. 1 to 7 of writ petition are true to his personal knowledge, paras C and D of that para 8 too are true based on legal advices. There is no mention of Sub-clause (b) of para 8, in whole of the affidavit.
22. Even if it would have been there, the petitioner should have further made an averment about total income in a month and relationship of this income as a whole to the amount alleged in Sub-clause (b). This having not been done, 1 am of the opinion that the petitioner has failed to show that simply by giving temporary permit to respondent No. 2 that too for a period of 4 months out of which three weeks have already expired, substantial injury would be caused to him.
23. I am also of the view that merely because a Bus-holder's income is reduced to some extent and that too because of the fact that third non-temporary permit holder was not plying the vehicle so far, otherwise normally on account of his permit he was only en-titled to be one of the three; no substantial injury is caused to the permit holder. Again the injury caused to the travelling public is to be the primary consideration in the matter of the disputes and debates of grant or non-grant of permits to Bus-holder may be temporary or non-temporary.
24. A citizen travelling in a bus is not concerned whether the bus holder gets a permit which is temporary or non-temporary, but he is concerned more with the facilities and the frequencies of bus facilities, which are allowed by the Transport Authorities. That being so, I am of the opinion that the petitioner has failed to make out a case of substantial injury or substantialfailure of justice having been caused to him as required by Sub-clauses (b) and (c) of Clause (1) of Article 226 of the Constitution of India.
25. The writ petition, therefore, fails and is dismissed in 'limine'.