1. These are two petitions, one No. 275 of 1952, by the Dholpur-Co-operative Transport and Multipurposes Union Ltd. (to be hereinafter referred to as the Union), and the other No. 276 of 1952 by the Dholpur Motor Transport Association (to be hereinafter referred to as the association), under Article 226 of the Constitution of India. Both are directed, inter alia, against the Appellate Authority (Transport) Rajasthan, the State Transport Authority Raja-sthan, and the Regional Transport Authority Jaipur Region, In Petition No. 275 Satya Narayan Singh and in petition No. 276 Choudhary Khazan Singh have also been made opposite parties. The facts, so far as they are necessary for the disposal of these two petitions, are that applications for stage carriage permits were invited inter alia, on the Dholpur-Agra route, vide notification dated 28-6-1951, of the Office of the Transport Commissioner, Rajasthan, Jaipur published in the Rajasthan Gazette dated 7-7-1951. The applications were to be submitted within ten days of the publication of the said notification. Applications made in pursuance of this notification and names of 50 applicants were published in the Rajasthan Gazette, No. 87 dated 15-9-1951, in connection with the permits on Dholpur-Agra route, vide notification No. 5/RTA/51, dated 22-8-1951. Among the applicants the names of Bijai Singh, Girraj Kishore, Rajendra Singh Sandhu, Ram Dayal, Rajendra Singh, Puranchand, Mansingh, Harbilas, Raghubar Dayal, Kishan Singh, Ram Chand, Radhelal, Dholpur Motor Transport Association, and Satya Narayan Singh were published with their address as Dholpur.
The case of the Union is that after the publication of the names of the applicants for permits in the Gazette, the aforesaid persons, with the exception of Satya Narain Singh and the Dholpur Motor Transport Association, formed the Dholpur Co-operative Transport and Multi-purposes Union Ltd. On a consideration of the applications and representations which were filed against them, the Regional Transport Authority, Jaipur, granted four permits to the Association and two to the Union from Dholpur side. Satya Narayan Singh was not granted any permit. He consequently filed an appeal on 26-10-1951, before the Appellate Authority (Transport) Rajasthan, Khazan Singh wrote to the Regional Transport Authority, Jaipur, on the 16-11-1951, that he be granted a permit but his request was refused. Against this refusal Khazan Singh filed an appeal before the Appellate Authority (Transport) Rajasthan on 19-11-1951. Both these appeals were heard by Shri Bhola 'Nath, Minister for Transport, Shri Kishorelal, Chief Engineer, P. W. D., and Shri Yugalkishore Chaturvedi. Shri Bhola Nath purported to act as Chairman, and Shri Kishorelal and Shri Yugalkishore Chaturvedi as members cf the appellate authority (Transport) Rajasthan. By the order dated 30-7-1952, the appeals of Satya Narain Singh and Khazan Singh were allowed, and both these persons were permitted to run ona bus each of Dholpur-Agra route from Dholpur side. As four permits had already been granted to the Association and two to the Union, and under the arrangement with U. P. Government it was not possible to run more than six buses per day from the Dholpur side, an arrangement was made that out of these 8 buses only six may run per day in rotation.
2. Dissatisfied with the above order, the Union and the Association filed these two petitions, and one of their contentions is that the so-called Appellate Authority was not duly constituted, and, therefore, it had no jurisdiction to hear the appeal against the decision of the Regional Transport Authority, Jaipur. Other contentions have also been raised, but in view of the decision which I have come to on the above point regarding the invalidity of the constitution of the Appellate Authority, it is not necessary for me to express any opinion on them.
3. The prayer of the petitioners is that a writ of prohibition be issued against opposite parties 1, 2 and 3 to issue a permit to opposite party 4 or to allow opposite, party 4 to run a bus by any other method in pursuance of the order dated 30-7-1952, by the alleged Appellate Authority, and to opposite party 4 not to run a bus over his route. It has also been prayed that the files of opposite parties 1, 2 and 3 be summoned, and the proceedings taken by opposite parties 1, 2 & 3' in the above matter may be quashed, and particularly the order of opposite party 1, dated 30-7-1952, be quashed by a writ of certiorari. It has further been prayed that any other appropriate writ, order or direction may be issued.
4. As the question about the validity of the constitution of the Appellate Authority is common to both the petitions, they can be disposed of by a single judgment.
5. It was argued by learned counsel for the petitioner that on 1-4-1951, the Indian Motor Vehicles Act was applied to Rajasthan. The case is governed by the said Act. Under Section 64 of the Act, any person aggrieved by the, refusal of a Regional Transport Authority to grant a permit or by any condition attached to a permit granted to him, may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard. The word 'prescribed' in the Act is defined as 'prescribed by rules made under the Act'. No rules have yet been made in Rajasthan under the Indian Motor Vehicles Act, but rules were framed by the Rajasthan Govt under the Rajasthan Motor Vehicles Act (Adaptation) Ordinance, 1950 (hereinafter to be referred to as the Rajasthan Ordinance), which was replaced on 1-4-1951, by the Indian Motor Vehicles Act. 1939 vide the Part B States (Laws) Act, 1951 under Section 6 of the Part B States (Laws) Act, 1951, any rules framed under any law existing before the Indian Motor Vehicles Act came into force shall be deemed to have been framed under the corresponding provision of the Indian Motor Vehicles Act, and shall continue to be in force unless and until superseded by anything done or any action taken under the Act.
According to Rule 108, Rajasthan Motor Vehicles Rules, 1951, the authority prescribed to decide an appeal against the orders of a Regional Transport Authority under Clauses (a), (b), (c), (d), (e), and (f) of Section 64 of the Act is the Chairman and two members of the State Transport Authority from time to time appointed by the Government and the time prescribed was 30 days. The appeals purported to be under Section 64(a), Motor Vehicles Act. For its valid constitution, the Appellate Authority ought to consist of the Chairman of the State Transport Authority and any two of its members. Under Section 44, Indian Motor Vehicles Act, a State Transport Authority should be constituted by notification in the official Gazette, and should consist of such number of officials or non-officials as the State Government might think fit to appoint. The State Transport Authority was constituted by notification dated 9-1-1951, published in Rajasthan Gazette dated 20-1-1951, by which the Transport Commissioner of Rajasthan was made the Chairman of the State Transport Authority. Both according to Rule 76, Rajasthan Motor Vehicles Rules, 1951 and the notification dated 9-1-1951, for the valid constitution of the State Transport Authority, its Chairman ought to have been the Transport Commissioner, of Rajasthan, who would ex officio be the Chairman of the Appellate Authority, vide Rule 108 of the said Rules.
The Government, however, by its notification dated 11-6-1951, published in the Rajasthan Gazette, dated 18-6-1951, reconstituted the State Transport Authority with Chairman, Rajasthan Board of Revenue, as its Chairman, This was against the Rules, and the Chairman of the Board of Revenue could not ex officio be the Chairman of the State Transport Authority, and consequently of the Appellate Authority. However the appellate Authority, which heard the appeals of Satya Narayan Singh and Khazan Singh, did not even have the Chairman, Board of Revenue, as its Chairman, but Shri Bhola Nath, Transport Minister acted as Chairman of the said Appellate Authority. It was never notified, as required by Section 44, that the Transport Minister shall be the Chairman of the said Transport Authority. His acting as a Chairman was also against the provisions of Rule 76, which required the Transport Commissioner to be the ex officio Chairman of the State Transport Authority. The Appellate Authority, therefore, with Shri Bhola Nath as its Chairman, which heard the two appeals, was not validly constituted, and had no jurisdiction to hear and decide the said two appeals. It was argued that the proceedings were quasi-judicial proceedings, and, therefore, the orders of the Appellate Authority should be quashed by a writ of certiorari, and the opposite parties should be prohibited from giving effect to that order.
6. On behalf of the opposite parties preliminary objections have been taken. They are as follows : 1. Both the petitioners concealed the material fact of their consenting or acquiescing in the order of rotation fixed by the Appellate Authority, and obtained an order of stay from this Court. Their application is, therefore, liable to be dismissed on this ground. 2. Their consent or acquiescence for rotation of the buses for which they hold permits and the buses for which Satya Narayan Singh and Khazan Singh had permits also disentitles them to bring these applications. 3. The petitioners did not raise any question about jurisdiction before the Appellate Authority at the time of hearing of the appeal, and, therefore, they have got no right to bring these applications under Article 226 of the Constitution.
On merits, it was argued that the Appellate Authority, which heard the appeals of Satya Narayan Singh and Khazan Singh, was validly constituted, as Shri Bhola Nath, Transport Minister, was made the Chairman of the State Transport Authority by an unpublished notification dated 3-7-1951, by which notification dated 11-6-1951, was amended, inasmuch as the Minister for Public Works Department was substituted as Chairman of the State Transport Authority for the Chairman, Board of Revenue. Shri Bhola Nath is Minister for Public Works. Reliance was also placed upon a proposed amendment in Rule 76, which is published in the Rajasthan Gazette dated 13-9-1952, by which the Minister for Transport would be the Chairman of the State Transport Authority.
7. I proceed to consider first the preliminary objections. Reliance was placed on behalf of the opposite parties on a ruling of this Court in which it was held that suppression of any material fact will entitle the Court to dismiss the application for writ or direction under Article 226 of the Constitution. The case in point is --'Kaboolchand v. Deputy Custodian, Alwar', AIR 1952 Raj 146 (A). The facts of that case are, however, easily distinguishable from the facts of the present case. In that case the applicant obtained several opportunities from the Deputy Custodian to vacate certain premises which had been declared to be evacuee property. This he did not mention in his application for writ. The applicant also said that no notice was given to him informing him that his lease had been determined, which was found to be false. These facts were considered to be relevant and material facts, and the application was dismissed on the ground that a person who suppressed relevant and material facts had no right to a constitutional remedy under Article 226 of the Constitution,
In the present case, the only complaint that has been made against the petitioners is that they did not say in their writ application or in their applications for stay that they had consented to the order of rotation fixed by the Appellate Authority after allowing the appeal of Khazan Singh and Satya Narayan Singh. The petitioners filed the order of the Appellate Authority, and in that order it is mentioned that some sort of order of rotation was fixed and that the petitioners had no objection to it. The petitioners did not fight shy of filing a copy of this order. Both at the time of admission of the petitions as well as issuing the order of stay, the Court had before it the order passed by the Appellate Authority. There is nothing to show that these orders were not perused at the time of admission or ordering stay. Normally they are perused before petns. under Article 226, which relate to such orders, are admitted or orders of stay are made. In any case, it cannot be said that the petitioner deliberately kept anything back, which would have disclosed to the Court that they did not object to the order of rotation fixed by the Appellate Authority after allowing the two appeals. It cannot, therefore, be said that the petitioners deliberately concealed this fact from Court. The ruling, therefore, does not apply to the facts of this case.
8. Coming to the second preliminary point, there is nothing to show in the order of the Appellate Authority that the petitioners have their consent to the allowing of the appeals of Khazan Singh and Satya Narayan Singh. The order on the contrary shows that both the appeals were hotly contested. It is only after the order allowing the appeal was made that to make virtue of necessity the petitioners did not raise any objection to the rotation being fixed. Had they dons so, they would not have been able to run their buses at all. After the order allowing the appeal was madey the petitioners had no other choice but to raise no objection to the order of rotation. They were compelled on account of the allowing of the appeals not to raise any such objection to the order of rotation, and it cannot be said that they either acquiesced or consented to the order granting permit to Khazan Singh or Satya Narayan Singh.
9. Coming to the third objection, it is true that if a party does not raise any objection to the jurisdiction of a Court or tribunal, which depends upon the allegations and proof of cer-tain facts, that party will not be allowed to raise objection about jurisdiction in an applica-tion under Article 226. Where, however, the lack of jurisdiction is patent, the mere fact that no objection was taken before the statutory authorities would not disable the applicant from raising such question in an application under Article 226. In a Division Bench case, 'Nisar Ahmad v. Addl. Commissioner, Jodhpur, AIR 1952 Raj 104 (B), the applicant did not raise any objection to the jurisdiction of the Additional Commissioner or the Minister, although there was patent lack of jurisdiction. After the final order was made, he applied for the review of that order. It was contended on behalf of the Additional Commissioner, Jodhpur, that the applicant having raised no objection as to jurisdiction of the Additional Commissioner or Minister, and having himself filed an application for review, had no right to obtain a writ from the Court. It was held that the applicant had not taken the case of the Additional Commissioner, but it was taken by his adversary.
He had only to defend him when an order was made against him he was compelled to make an application for review and when the applica-tion for review was rejected, he applied in revision before the Minister because the view had prevailed that Section 4 of the Rajasthan City Municipal Appeals (Regulation) Act, 1950, gave revisionary powers to Government. It was, therefore, the force of circumstances which compelled the applicant to apply to the Additional Commissioner or to the Minister. In the present case also it was not the petitioners who took their case to the Appellate authority, which decided the appeals, but the appeals were filed by Khazan Singh and Satya Narayan Singh, and they appeared before the appellate Authority only when they were called by the said body. It was, therefore, the force of circumstances in this case also which compelled them to appear before the Appellate Authority and contest the appeals. Then if the contention of the petitioners is correct, there was total absence of jurisdiction in the appellate Authority, which heard the appeal, and according to the case of -- 'Farquharson v. Morgan', (1894) 1 QBD 552 (F) cited in the case of 'Nisar Ahmad (B)', and approved by the Division Bench, the High Court is bound to issue a prohibition in the case of total absence of jurisdiction on the face of the proceedings, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court.
Learned counsel for the opposite parties had referred to the case of the -- 'Rex v. Williams (Justices of Swansea); Ex parte Phillips', (1914) I KB 608 (G). But that case is distinguishable from the present case. In that case, a baker was charged under Section 4 of the Bread Act, 1836, and by Section 14 of the Act, no person who was concerned in the business of baker was capable of acting or could be allowed to act as a justice of the peace under the Act. The petitioner did not raise any objection when, the case was before the Justices of the Peace & that one of them was a balcer. This was a question of fact, which ought to have been raised by the petitioner in order to oust the baker from the tribunal. It was, therefore, held that having not taken that objection when the case was before the Justices of the Peace, the petitioner had no right to obtain a writ of certiorari. It was not a case of total lack of jurisdiction on the face of the proceedings.
Another case referred to is -- 'Latchmanan Chettiar v. Corporation of Madras', AIR 1927 Mad 130 (FB) (C). But that is also not a case of total want of jurisdiction on the face of the proceedings. In that case the jurisdiction was challenged on the ground that the tribunal was empowered to inquire into disabilities appearing on the face of the nomination paper, but they travelled outside their jurisdiction, and went into a matter of substance, which was arguable only on grounds not appearing on the face of the nomination paper. The ruling, therefore, does not help the opposite party. Reliance was also placed on the case of -- 'Giusti Patents Engineering Works, Ltd. v. Maggs', (1923) l Ch 515 (D). But in that case the plaintiff who voluntarily sued in a county Court which, owing to a defence there raised, had no jurisdiction, was held not entitled to remove the proceedings to the High Court by certiorari. This case is clearly distinguishable, because the plaintiff chose the forum of his own accord, and in spite of the objection raised by the defence persisted in having a decision from that Court. Under the particular circumstances of that case it might not have been considered equitable to grant relief to the applicant by way of a writ. In the present case, as has been' said above, it is not the petitioners who took their case before the Appellate Authority, which decided the appeals. A Division Bench of the Bombay High Court also in the case of -- 'Karashidayya Shiddayya v. Shree Gajanan Urban-Co-operative Bank Ltd', AIR 1943 Bom 288 (E) held that:
'There are some defects of jurisdiction which may be waived by submission to the jurisdiction. But that is not so when there is an inherent want of jurisdiction, as where the tribunal in question is not under any circumstances competent to try the case or competent to try it in respect of the parties before it.'
In the present case there was total lack of jurisdiction in the Appellate Authority, which had as its Chairman a person who had no authority to act as Chairman either under the Rules or under any Notification published in the Rajasthan Gazette. The petitioners have also sworn in their affidavits that they did not know that no notification was published in the Rajasthan Gazette appointing the P. W. D. Minister as Chairman of the Stale Transport Authority, and, therefore, they were unable to raise any objection as to the jurisdiction of the Appellate Authority which heard the appeals. There is nothing on behalf of the opposite parties to contradict the statements in these affidavits, and there is, therefore, no wonder if the petitioners were unable to raise any objection on the ground of jurisdiction before the Appellate Authority, and on this ground too, the objection of the opposite parties deserves to be repelled. All the preliminary grounds) therefore, fail.
10. Coming to the merits of the case, there can be no doubt that the decision of the Regional Transport Authority was under Section 64 (a). Under Rule 108 of the Rajasthan Motor Vehicles Rules, 1951, framed under the Rajasthan Ordinance which continue in force even after the Indian Motor Vehicles Act, 1939, came into force in Rajasthan by virtue of Section 6 of the Part B States (Laws) Act, 1951, an appeal against the order of a Regional Transport Authority under Clauses (a), (b), (c), (d), (e) and (f) 9f Section 64 shall lie before an authority consisting of the Chairman and two members of the State Transport Authority from time to time appointed by the Government, Now the Appellate Authority, which could have jurisdiction to hear the appeals of Khazan Singh and Satya Narayan Singh should have consisted of the Chairman and two members of the State Transport Authority appointed by the Government. Under Rule 76 of the Rules, the State Transport Authority was to consist of the Transport Commissioner, who was to be the Chairman and five other persons, out of whom one was to be Inspector General of Police, one the Chief Engineer (Roads and Buildings), and one the Deputy Transport Commissioner. Out of the remaining two, one was to be the representative of the Railways in Rajasthan to be selected by the Government in consultation with the Railway Board, and one or two members not being the servants of the Government or any local authority, nominated by the Government.
These Rules have the force of law as they were framed under the Rajasthan Ordinance, and unless any amendment was made in Rule 76, nobody, except the Transport Commissioner, could be the Chairman of the State Transport Authority, and for the matter of that of the Appellate Authority (Transport). The first notification, which was made, was also in consonance with these rules, and the Transport Commissioner was appointed as Chairman of the State Transport Authority. After that there was a notification dated 11-0-1951, by which the Chairman, Board of Revenue, was made ex-officio Chairman of the State Transport Authority. I have no necessity to say what would have been the effect if the Chairman, Board of Revenue, had presided over the Appellate Authority, which heard the appeals of Satya Narain. Singh and Khazan Singh, as the appeals were not heard by such an Appellate Authority. Suffice to it to say that Shri Bhola Nath, who is the Minister for P. W. D. and Transport was neither appointed a member and Chairman of the State Transport Authority under the rules, nor was his appointment as such notified in the official Gazette of Rajasthan as required by Section 44 of the Motor Vehicles Act. He had, therefore, no authority to sit upon the Appellate Authority and the Appellate Authority, which decided the two appeals of Khazan Singh and Satya Narain Singh, with Shri Bhola Nath Minister for P. W. D. & Transport as Chairman, could not be said to be validly constituted. It had total lack of jurisdiction, and the order passed by it is, therefore, altogether unauthorised.
Reliance was placed upon a notification of 3-7-1951, amending the previous notification by which the, Transport Commissioner was appointed Chairman of the State 'Transport Authority. But mere making of a notification, unless it is published in the Gazette, as required by Section 44, Motor Vehicles Act, will not be enough for the constitution of a valid State Transport Authority. Moreover, this notification was against Rule 76, and unless the said rule was amended, in my opinion, no Chairman of the State Transport Authority could be appointed in contravention of the said rule. Our attention was drawn to a proposed amendment in Rule 76, which is published in the Rajasthan Gazette of 13-9-1952, and by which the Minister for transport is to be made the Chairman of the State Transport Authority in place of the Transport Commissioner. The publication of the draft of the proposed amendment can have no force, unless the rule is framed in accordance with the draft. It may be that the Government have now considered that the Minister for Transport shall be a more proper Chairman for the State Transport Authority than the Transport Commissioner. Considering that this cannot be done, unless Rule 76 is changed, they are now thinking of amending the rule. But so long as the rule is not amended, it cannot have the force of law, and the Minister for transport or P. W. D. cannot have any jurisdiction to act as the Chairman of the Appellate Authority, and any decision made by such an Appellate Authority is altogether without jurisdiction, and has no froce.
11. It was argued that the applicants have no locus standi to file these applications, as they cannot be considered to be persons aggrieved by the order of the Appellate Authority. It is clear that by the introduction of two more buses by an illegal order, the income of the petitioners is likely to decrease. It is admitted by the learned counsel for the opposite parties himself that there will be some loss to them, and that it cannot exceed Rs. 200/- monthly at the most. Even so the loss is quite substantial, and cannot be said to be normal. It cannot be said that the petitioners are not substantially affected by the order of the Appellate Authority. They are the aggrieved persons, and to my mind, they have got a perfect right to challenge that order on the ground of total lack of jurisdiction by an application, under Article 226 of the Constitution of India.
12. The Appellate Authority is certainly a quasi-judicial Authority, if not a judicial Authority. The approach which it is required to make is a judicial approach, because it is required to hear the persons concerned & pass its decision after hearing them. It is to be considered an inferior Court. The present is, therefore, a fit case for a writ of certiorari as well as prohibition.
13. Both the applications are allowed, the order purporting to be passed by the Appellate-Authority, dated 30-7-1952, allowing Satya Narayan Singh and Khazan Singh to ply their buses on Dholpure-Agra route is quashed, and a duly constituted Appellate Authority in accordance with the Motor Vehicles Act and the rules thereunder shall hear & decide the appeals of Satya Narayan Singh & Khazan Singh in accordance with law Both the petitioners shall get their costs from opposite party 4 in their respective petitions, including Rs. 100/- as the petitioner's counsel's fee in each of the two cases.
14. I agree.