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Gajendra Transports (P) Ltd., Tiruppur Vs. Anamallais Bus Transports (P) Ltd., Pollachi and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 274 of 1968
Judge
Reported inAIR1970Mad379; (1970)1MLJ568
ActsMotor Vehicles Act, 1939 - Sections 47, 47(3), 48, 48(1), 57 and 57(3); Constitution of India - Article 226
AppellantGajendra Transports (P) Ltd., Tiruppur
RespondentAnamallais Bus Transports (P) Ltd., Pollachi and anr.
Appellant AdvocateV.K. Thiruvenkatachari, Adv. for ;C. Ramaswami and ;M. Kalyanasundaram, Advs.
Respondent AdvocateGovt. Pleader, ;N.G. Krishna Iyengar and ;S. Varadachari, Advs.
Cases ReferredCumbum Roadways Ltd. v. Somu Transport Ltd.
Excerpt:
motor vehicle act (iv of 1939)--whether transport authority, without making prior order under section 47(3) of act, limiting number of stage carriages for which permits would be granted on routs had no jurisdiction to proceed with applications under section 57(3)--held it had no jurisdiction--objection to grant of permits on this ground can be taken by aggrieved party at any stage, appeal, revision or even writ proceedings--who can participate in enquiry before regional transport authority--only those who were parties to appeal before tribunal. ; on the question raised as to whether the regional transport authority, without making a prior order under section 47(3) of the motor vehicles act (iv of 1939), limiting the number of stage carriages for which permits would be granted on the.....1. this appeal is from a judgment of ramakrishnan, j., dismissing the appellant's petition under article 226 of the constitution to quash an order of the second respondent, additional state transport appellate tribunal, madras. the regional transport authority coimbatore, out of 42 applicants, selected the appellant for grant of a stage carriage permit to ply an additional bus on the route pollachi to tiruppur (via) kamanaickanpalayam and palladam. three of the disappointed applicants preferred appeals to the second respondent, which allowed them and remitted the matter to the regional transport authority, for being proceeded with in accordance with law. the first respondent, which was one of the applicants, had raised a preliminary objection to the introduction of an additional bus on.....
Judgment:
1. This appeal is from a judgment of Ramakrishnan, J., dismissing the appellant's petition under Article 226 of the Constitution to quash an order of the second respondent, Additional State Transport Appellate Tribunal, Madras. The Regional Transport Authority Coimbatore, out of 42 applicants, selected the appellant for grant of a stage carriage permit to ply an additional bus on the route Pollachi to Tiruppur (Via) Kamanaickanpalayam and Palladam. Three of the disappointed applicants preferred appeals to the second respondent, which allowed them and remitted the matter to the Regional Transport Authority, for being proceeded with in accordance with law. The first respondent, which was one of the applicants, had raised a preliminary objection to the introduction of an additional bus on the route, on the ground that it was not given additional trips for its existing buses, and that further a new route bus had also been introduced between Erode and Pollachi (Via) Tiruppur. The Regional Transport Authority repelled the objection on the view that there was need for introducing more number of buses on the route connecting the important commercial centres, Tiruppur and Pollachi, and that a grant of further permit on the route was ponsidered necessary.

It would appear that there were already six permits on the route. In the appeal filed by the first respondent, it, however, urged for the first-time, a different objection that the Regional Transport Authority without making a prior order under Section 47(3) of the Motor Vehicles Act, limiting the number of stage carriages for which permits would be granted on the route, had no jurisdiction to proceed with the applications under Section 57(3) of the Act, The second respondent accepted the objection as valid, and it was on this sole ground, it is allowed the appeals remitting the matter as aforesaid. The propriety of this view of the second respondent is impeached by the appellant. As the same point is said to arise in a number of other petitions pending disposal in this Court, we have permitted arguments to be addressed to us not merely by counsel in the appeal under consideration, but also other counsel interested on the point,

2. Though the Tribunal's conclusion seems to be supported by abundant authority, as we shall notice presently, Mr. Thiruvengadachari, contends that it went no further than holding that where a limit had been fixed under Section 47(3), the Regional Transport Authority, while considering applications under Section 57(3) would be bound by it under the proviso to the sub-section, and should summarily dismiss the applications if a further grant of permits would transgress the limit. On that view of the decided cases, he has submitted that Section 47(3) contemplates fixation of the maximum limit of the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region, that the limit so fixed is of a general character not affecting or preventing consideration, subject to the general limit fixed, of the question of adequacy of transport service already existing on a specified route, or in the region, or in specified area and that, therefore where there has been no limit fixed under Section 47(3), for a route, area or region, there is no bar to grant of permits under Section 48, subject of course, to the question of adequacy.

On the other hand, It Is pressed upon us that the Regional Transport Authority cannot proceed unless a limit had been fixed under Section 47(3) before a notification under Section 57(3). On this submission, prohibition has been asked for in a few petitions against the Regional Transport Authority from proceeding further without a prior order under Section 47(3), On the other view of the matter, orders of the Tribunal are sought to be quashed in certain other cases where the Tribunal had itself taken the point relating to Section 47(3) and set aside the orders of the Regional Transport Authority, granting a permit, or where it had the objection based on Section 47(3) raised in Appeals filed before it by unsuccessful applicant who raised the question either for the first time or not. If the controversy were res integra, it would have been necessary for us to embark on an elaborate consideration of it. But out of deference to the arguments presented before us, we shall first notice the relevant statutory provisions.

3. Chapter IV of the Motor Vehicles Act is devoted to the control of transport vehicles. After providing for necessity for permits for use of any vehicle in a public place, and for power of the State Government to control road transport and to issue orders and directions to Transport Authorities as well as for setting up of hierarchy of Transport Authorities, Sections 35 and 46 state as to whom an application for permit should be made, and what particulars it should contain. Section 47(1) directs that in considering an application for a stage carriage permit, a Regional Transport Authority should have regard to the matters specified in Clauses (a) to (f) and also any representations made by the persons indicated. Among the matters to be so kept in view, are the interests of the public generally, and the adequacy of other passenger transport services operating or likely to operate In the near future, whether by road or other means, between, the places to be served, as well as the benefit to any particular locality or localities likely to be afforded by the service. A stage carriage permit should be refused, as directed by Sub-section (2) if the time table furnished showed that the provisions as to speed limits prescribed by the Act were likely to be contravened. Then comes Sub-section (3):

"A Regional Transport Authority, may having regard to the matters mentioned in sub-section (1), limit the number of stage carriage generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within, the region."

Section 48 empowers a Regional Transport Authority to grant a stage carriage permit on an application made to it. But such a grant shall be subject to the provisions of Section 47. The procedure for applications, and granting permits, has been prescribed by Section 57. An application may be made at any time. But there should be an interval of not less than six weeks between the making of the application, and the date on which the permit is desired to take effect. Subsection (3) requires notification of the applications or their substance in the prescribed manner, with a notice of the date before which representations might be made, and of the time and place at which the applications and representations received would be considered. This sub-section has a proviso:

"Provided that, if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the application relates, beyond the limit fixed in that behalf under Sub-section (3) of Section 47 or Sub-section (2) of Section 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub-section."

The rest of the provisions of Section 57, among other things, provide for a public hearing on the applications notified and representations duly received. Section 55(2) is analogous to Section 47(3) except that it relates to public carrier's permit.

Section 64(1) (a) gives a right of appeal to person aggrieved by a refusal of the appropriate authority to grant a permit, and Section 64-A gives powers of revision to the State Transport Authority, in respect of orders of a Regional Transport Authority and from which no appeal lies. In the foregoing setting of the statutory provisions, Sections 45, 46, 47(1) and (2) and 50 are related to making of applications for permits, the particulars which the applications should contain, and the matters which the Regional . Transport Authority must have regard to. Section 57, as we said, prescribes the procedure for disposing of such applications. Section 48(1) provides for the power of the Regional Transport Authority to grant, subject to Section 47, stage carriage permits, and Section 51(1) for the grant, subject to Section 50, of a contract carriage permit. Section 54 provides for an application for a public carrier's permit, and Section 55(1) contains matters which the Regional Transport Authority should take into account in considering such an application. Subject to Section 55, a Regional Transport Authority may grant a public carrier's permit. The orders contemplated under Sections 48, 51 and 56(1) are ad hoc, so to speak, in nature, and are related to particular grants of permits on applications made therefore, and the grants made on a selection basis after taking into account the relevant statutory considerations mentioned by the statutory provisions and subject to the limits fixed under Sections 47(3) and 55(2), Orders fixing limits under Sections 57(3) and 55(2) are not related to any particular application for any kind of permit, but are of a general character, though in making such orders the Regional Transport Authority is directed to bear in mind the matters specified by Sections 47(1) and 55(1) which include not merely public interest in general, but also the adequacy. But "adequacy" in the context of Sections 47 (3) and 55(2) should be understood, as we think, not in the context of granting particular applications for permits, but in a general way so as to prescribe the maximum number of permits that may be granted in a region, area or any specified route within the region, for stage carriages generally, or stage carriages of any specified type, or of transport vehicles generally or transport vehicles of any specified type.

The approach to the consideration of adequacy cannot, therefore, be the same in considering grant of permits on a route, or for an area as for fixing the limit, which is indicative of the maximum number of stage carriages, or public carriers generally or of any specified type for which permits may be granted in the region or area or on a specified route as a whole. When a limit is fixed under Section 47(3) or 55(2) it should be adhered to by the Regional Transport Authority in granting permits because of the proviso to Section 57(3). If grant of a permit will be in excess of the limit fixed under Sections 47(3) and 55(2), the Regional Transport Authority should summarily refuse the application therefore without notifying it. So far there is no difficulty. But where no limit has been fixed under Section 47(3) or Section 55(2), is it required that there should first be such a fixation of limit before reception or notification of an application for a permit? Mr. Thiruvenkatachari says that the answer should be in the negative. He submits that the opening words of Sections 48(1) and 56(1) read with the proviso to Section 57(3), should not, and cannot be construed as expressly or by implication naming any such requirement. If a limit has been fixed under Section 47(3) or 55(2) of the maximum number of permits that could be granted in any region, area or route, and if the permits for which applications have been made are within such maximum, no difficulty may arise, though even in such cases the question of adequacy may be open before the Regional Transport Authority which may think, on the representations made before it, that notwithstanding the maximum fixed, transport facility already existing in the region, area or on the route was adequate or sufficient, and no grant of further permits was necessary. It was urged that the position can be no different if a limit has not been fixed under Sections 47(3) and 55(2), and there is nothing in the opening words of Sections 48(1) and 56(1) read with Sections 47(3), 55(2) and the proviso to Section 57(3), which points to a requirement that the notification of applications under Section 57(3) should be preceded by an earlier order either under Section 47(3) or 55(2) as the case may be.

On a careful consideration of the argument, in our view, it is not possible to say that it is without force. Our attention has been invited to the structure of Section 50 which seems to assist the contention. But the construction which Thiruvenkatachari wants us to place, as aforesaid, on the relative statutory provisions is not open to us in view of the well settled authorities to the contrary. The formidable difficulty in the way of Mr, Thiruvenkatachari's argument is the structure of the relative statutory provisions and their interrelation. Particularly, the proviso to Section 57(3) contemplates an order under Section 47(3) prior to the reception of applications for permits. The limit under Section 47(3) cannot also be decided in, or simultaneously with the proceedings under Section 57(3), the object of which is to select the best out of competing applicants, while Section 47(3) proceedings are devoted to determination of the ceiling for grant of stage carriage permits in a region, area or route.

There is also the further indication in the opening words of Section 48(1) that any permit issued for a stage carriage can only be subject to the provisions of Section 47(3), which means not only the limit fixed under Section 47(3), cannot be exceeded, but without fixation of any limit, in our view, the power to grant permits under Section 48(1) cannot be exercised.

Logically, therefore, grant of permits first, and then fixation of the ceiling next or simultaneously, will not be permissible. It follows further that any question related to fixation of limit under Section 47(3) cannot be within the purview of Section 64(1). The point as to adequacy will be relevant, as the proceedings under Section 57(3) will be subject to the limit fixed of the number of stage carriages for which permits can be granted in a region, area or on a route. This view of the effect of the relevant provisions of the Act is abundantly supported by authority. 4. In Adbul Mateen v. Ram Kailash, which was concerned with the Motor Vehicles Act as

amended by Bihar Act 27 of 1950, the Supreme Court, after referring to the related sections held:--

"The Scheme of the Act therefore, is that a limit is fixed under Section 47(3) and the applications received are dealt with in the manner provided by Section 57 and permits can be granted under Section 48 subject to the limit fixed under Section 47(3)."

The Court earlier pointed put that, although the power to fix a limit under Section 47(3) and the power to grant permit under Section 48(1) following the procedure prescribed by Section 57, are vested in the same Regional Transport Authority, nevertheless, fixation of any limit or its modification is not a matter for consideration when the Regional Transport Authority is dealing with an actual grant of permit under Section 48 read with Section 57, for, at that stage what the Regional Transport Authority has to do is only to choose between "various applicants who may have made applications under Section 46 read with Section 57. The Court proceeded to say:--

"That in our opinion is not the stage where the general order passed under Section 47(3) can be re-considered, for the order under Section 48 is subject to the provisions of Section 47, which includes Section 47(3) under which a general order limiting the number of stage carriages etc, may have been passed."

That was a case of a new route in respect of which applications were invited for grant of two stage carriage permits. Two of the applicants were granted each a permit. One of the unsuccessful applicants who had failed before the appellate authority, took the matter in revision to the State Government of Bihar. While declining to interfere with the appellate order, the State Government considered that an additional service could be allowed on that route, and that would add to the facility provided for without affecting the efficiency of existing service, and on that view, granted a permit to the petitioner before it. Another disappointed applicant who moved the Government to exercise its revision powers, but failed to get a permit, filed a writ petition before the High Court challenging the order of the Minister for Transport The High Court held, and its conclusion was upheld by the Supreme Court, that the State Government had no power when dealing with an application under Section 64-A to increase the number of permits to be granted from two (fixed by the Regional Transport Authority) to three, and quashed the order of the Government granting the third permit. Dealing with the contention that there were no permits fixed by the Regional Transport Authority, and, therefore, it was open to the State Government to increase the number of permits from two to three the Supreme Court held, again agreeing with the High Court, that the route being a new one, it should be deemed from the notification calling for applications for two permits that the Regional Transport Authority had fixed the, limit at two.

In expressing that view, the Supreme Court stated:--

"It may be conceded that it may not be generally possible to conclude from the number of vacancies shown in an advertisement of this kind that that is the number fixed under Section 47(3) by the Regional Transport Authority. There is, however, in our opinion, one exception to this general rule, and that is when a new route is being advertised for the first time.

In the case of a new route it is clear that the Regional Transport Authority must have come to some conclusion as to the number of stage carriages which were to be permitted to operate on that route and the advertisement would only be issued on behalf of the Regional Transport Authority calling for applications for the number so fixed.

Otherwise, it is impossible to understand in the case of a new route why the advertisement was only for two vacancies and not (say) for four or six.

Where the advertisement is with respect to an old route the fact that the advertisement mentions a particular number of vacancies would not necessarily mean that that was the number fixed under Section 47(3) for the number fixed may be much more and there may be only a few vacancies because a few permits had expired."

Jaya Ram Motor Service v. S. Raiarathinam. (1967) 2 SCWR 857 substantially accepted the view in as to the scheme, scope and effect of Sections 47, 48 and 57. The Regional Transport Authority, Ramanathapuram had in that case decided earlier to introduce a new bus route, and called for applications for a permit. While considering the applications under Section 57(3), it modified its earlier decision and decided to refuse all applications on the ground that there was no longer any need for any such permit. The Supreme Court held that the order of the Regional Transport Authority was contrary to its previous order passed under Section 47(3). On an examination of the Scheme of the Act, the Supreme Court observed:--

"Therefore, Section 47 envisages two stages of the inquiry; (i) the fixing of the number of permits under Section 47(3) and (ii) the consideration thereafter of the application for grant of a permit and the representations if any by the persons mentioned in Section 47 (1) ... ... ... ... ...Therefore, once the limit is fixed, if the grant of an application does not have the effect of exceeding that limit the only question before the Authority would be whether the applicant is a person fit to be granted the permit or not in the light of the matters set out in sub-section (1) of Section 47. The question of the number of permits to be granted, having been already canvassed and decided, cannot become the subject at that stage of any further controversy. This is clear from the fact that Section 48(1) which empowers the Authority, to grant or refuse to grant the permit starts with the words "subject to the provisions of Section

47." it is therefore, clear that the Authority has first to fix the limit and after having done so, consider the application or representation in connection therewith in accordance with the procedure laid down in Section 57."

The question in Lakshmi Narain Agarwal v. State Transport Authority U. P., was whether a revision lay under Section 64-A

against an order under Section 47(3), which was answered in the affirmative. The Supreme Court declined to accept as valid the view of the State Transport Authority that the only way to question the order under Section 47(3) was by means of a representation to be made under Section 57(3), and in case the representation was rejected, the representator would have a right of appeal before the State Transport Appellate Tribunal. The High Court had dismissed the writ petition to quash that order on the view that an existing operator had no say in the matter of determination of the strength on a route under Section 47(3), and it was in the discretion of the Regional Transport Authority to determine the strength on a route, after considering various matters enumerated in Clauses (a) to (f) of sub-section (1) of Section 47. Since the High Court" also considered that the order under Section 47(3) was a good one on its merits, it did not think it necessary to decide whether a revision lay under Section 64-A against an order under Section 47(3). The Supreme Court was, for the purpose of the case, unable to say that no existing operator could be aggrieved against an order made under Section 47(3), and felt that it would depend on the facts and circumstances of each case.

The importance of lies in the fact that in effect it held that an order under Section 47(3) could not be questioned in proceedings under Section 57, but only by way of revision under Section 64-A.

In Baluram v. State Transport Authority, Madhya Pradesh, C. A. No. 727 of 1965 (SC), the Scheme of the sections under consideration was reviewed over again. The actual decision there was that once a ceiling has been fixed under Section 47(3), it could not be exceeded while considering applications under Section 57, because the modification of an order under Section 47(3) was not within the scope of the power of the Regional Transport Authority when it was dealing with grant of permits under Section 48, read with Section 57, for, at that stage what the Regional Transport Authority had to do was but to choose between the various applicants who may have made applications to it under Section 46 read with Section 57. The Court expressed its view in the following manner:--

"In our opinion, that is not the stage where the general order passed under Section 47(3) can be re-considered, for the order under Section 48 is subject to the provisions of Section 47 which includes Section 47(3) under which a general order limiting the number of stage carriages etc., may have been passed. In other words, in exercising its power under Section 57 the Regional Transport Authority is only considering whether the applications made before it are to be granted or not, and has to choose between various applicants where there are more applicants than the number of vacancies which might have been advertised or there are more applicants than the number limited under Section 47(3). The Scheme of the Act therefore, is that a limit is fixed under Section 47(3) and the applications received are dealt with in the manner provided by Section 57 and permits can be granted under Section 48 subject to the limit fixed under Section 47(3). The View that we have expressed is borne out by the decision of this Court in AIR 1963 SC 64 wherein it was held that where a limit has been fixed under Section 47 (3) by the Regional Transport Authority, and thereafter the said authority proceeds to consider applications for permits under Section 48 read with Section 57 the Regional Transport Authority must confine the number of permits issued by it to those limits and on an appeal or revision by an aggrieved person, the Appellate Authority or the Revisional Authority must equally be confined to the issue of permits within the limits fixed under Section 47(3). In our opinion, the principle of this decision applies to the preent case where the material facts are almost similar in character." On that view, the order of the State Transport Authority was quashed.

5. In R. Obliswamy Naidu v. Addl. State Transport Appellate Tribunal, Madras, (1969) 1 SCWR 569 which ,was decided by the Supreme Court in February 1969 the Scheme of the sections was again considered. This was a case of a new route, and there was no prior order under Section 47(3). The appellant before the Supreme Court, applied to the Regional Transport Authority, Coimbatore for a permit to ply a stage carriage on the route. The application was published under Section 57(3). Certain operators made representations against the application on the ground that there was no need to grant a stage carriage permit for the route. The objection having been overruled, the appellant was granted a permit. An appeal against the order was allowed by the Additional State Transport, Appellate Tribunal, on the view that the procedure adopted by the Regional Transport Authority was not in accordance with law, inasmuch as it had failed to determine the question of the need for a service in that route before entertaining the application for stage carriage permit. The High Court declined to interfere with the Tribunal's order, and the Supreme Court concurred with it.

The Supreme Court, while reviewing the relevant provisions, accepted the ratio of (1967) 2 SCWR 857 and held:

"On an examination of the relevant provisions of the Act and the purpose behind Sections 47 and 57, we are convinced that before granting a stage carriage permit two independent steps have to be taken. Firstly there should be determination by the R. T. A. under Section 47(3) of the number of stage carriages for which stage carriage permits may be granted in that route. Thereafter applications for stage carriage permits in that route should be entertained. The R. T. A. is not competent to grant stage carriage permits for more carriages than fixed under Section 47(3)."

This is clear authority that without a prior order under Section 47(3), applications for stage carriage permits for the relevant route could not be entertained, and the Regional Transport Authority is not competent to grant stage carriage permits for more carriages than fixed under Section 47(3). This means that an order under Section 47(3) is a condition precedent to the exercise of power under Section 48(1) read with Section 57. Though was also concerned with a new route, there, the Regional Transport Authority concerned started with a notification calling for applications tot two permits, and the Supreme Court held that in such a case it should be deemed that there had been a decision under Section 47(3) fixing the limit of stage carriage at two. But in (1969) 1 SCWR 569 there was no such notification calling for applications for any specified number of permits.

6. In Sri Raja Rajeswari Bus Service v. Regional Transport Authority. South Arcot, a Division Bench of this Court expressed the view:--

"Equally it will be open to the objector to state, where no limit has been fixed, that the route is well served or the condition of the road is such that more buses cannot ply on the road etc., all germane and relevant considerations under Section 47(1). Such representations can quite properly find a place in the representations made, when called for, under Section 57. The rule that where an inquiry under Section 47(3) is necessary, it must precede the disposal of applications for permit on their merits, does not preclude the raising of all germane objections and relevant representations within the time prescribed. Once the objections raised and representations made, call for a determination under Section 47(3), under the rulings it is incumbent upon the Regional Transport Authority to take proceedings under Section 47(3) first before embarking upon the merits of the applications under Section

57."

If by this observation, the Division Bench meant that even where there is no prior order under Section 47(3) applications for stage carriage permit on a route have been filed and are notified, and an objection is raised and found to be well founded as to the absence of a prior order under Section 47(3), it would be open to the Regional Transport Authority to take proceedings under Section 47(3) separately, while keeping the proceedings under Section 57(3) pending and before embarking upon the merits of the applications, we are of the view that such a procedure would go against the tenor of the view of the Supreme Court in (1969) 1 SCWR 569 that first there should be an order under Section 47(3) and only thereafter applications for grant of stage carriage permits could be entertained. The right course in such cases would be to dismiss the applications, in limine on the ground that there had been no prior order under Section 47(3), and not keep the applications pending in order to await an order under Section 47(3).

It is then contended for the appellant that as the objection based on the absence of a prior order under Section 47(3) had not been raised before the Regional Transport Authority, neither the appellant before the Tribunal could be permitted to raise it before it for the first time in the appeal, nor would it be right for the Tribunal itself to take up the point and allow it on that ground. In our view, as we have held that without a prior order under Section 47(3), no application for a permit could be entertained for notification under Section 57(3), the absence of such an order goes to the root of the jurisdiction of the Regional Transport Authority to exercise its powers under Section 48(1) read with Section 57. We are, therefore, of the view that the point as to such an absence of prior order could be raised at any stage of the proceedings under Section 57(3), or thereafter, and its admissibility at any further stage, should not be made dependent on representations in that regard having been made in time under Section 57(3). The representations contemplated by Section 57(3) pertain to matters specified in clauses (a) to (f) of Section 47(1), particularly those which bear on the selection of rival applicants for a permit. Once it is clear that Section 47(3) proceedings are different from, and independent of proceedings under Section 57, and the latter would proceed only with reference to a prior order under Section 47(3), it follows that the representations and especially the question of adequacy in the context of selection of a proper operator for grant of a permit, cannot relate to considerations on which a decision as to limit under Section 47(3) is to be taken. But that is not to say, where proceedings under Section 57(3) have been initiated without there being a prior order under Section 47(3), no representations can be made as to the absence of such an earlier order, but only the failure to make such a representation will not conclude in further proceedings the question of there having been no earlier order under Section 47 (3). From the standpoint of certiorari, it was urged on the basis of O. A. O. K. Lakshmanan Chettiar v. Commr., Corpn. of Madras, ILR 50 Mad 130 = (AIR 1927. Mad 130) that the point should not be allowed to be taken for the first time in a petition under Article 226 of the Constitution, In that case, a Full Bench of this Court held that failure to object to jurisdiction before the lower Court was a bar to obtaining a writ of certiorari, whether the objection to jurisdiction is based on a pure point of law or based on facts which were or should have besn within the knowledge of the applicant during the proceedings in the lower court. That case was decided long before the Constitution came into force, and the position then was that this court was following the practice of the King's Bench in England in Certiorari, and on that hypothesis, rules laid down by the English Court in the decided English cases as to the scope and limitation of its jurisdiction in certiorari were applied. But that is not the case now, as Article 226 of the Constitution is of a much wider scope and confers powers on the High Court to make any direction including writs in the nature of certiorari, that was not a case of total want of jurisdiction, and on the facts, the Court proceeded on the basis that the objection as to jurisdiction could have been taken at the early stage, and the point having not been raised, certiorari could not issue ex debito justitiae. No doubt, this Court undoubtedly has discretion in certiorari petitions to exercise its power, or in any given circumstances. But in our opinion, in a case like this, where initial jurisdiction is totally wanting because of the absence of an earlier order under Section 47(3), this Court in the exercise of the discretion, will not be prepared to ignore the ground merely on the basis that it had not been taken at the earlier stages, and allow an order to continue in force, although it was made without such jurisdiction.

Whether there was a prior order under Section 47(3) does not involve elaborate enquiry into facts, and is easily and readily found out. That the first respondent had participated in the contest for the permit before the Regional Transport Authority without raising objection of want of a prior order under Section 47(3) did not, therefore, disentitle it from raising the point in its appeal before the Tribunal. Even it it had not raised the point in such an appeal, but raised, for the first time in certiorari or prohibition, in this Court, we would be prepared to entertain it in proceedings under Article 226 of the Constitution, and it would not be shut out from raising it.

7. One other point is as to which of the applicants before the Regional Transport Authority would be entitled to reconsideration when the matter went back before it for disposal pursuant to the remit order by the Tribunal. On this question, we are of the view that the proceedings before the Regional Transport Authority should then be confined to only those who were parties to the appeals before the Tribunal, and those who failed before the Regional Transport Authority, but were content not to prefer appeals would not be entitled to participate any more, in the contest for permit, after the remit order. This principle should naturally have to be extended to proceedings under Article 226 of the Constitution as well. Those disappointed before the Tribunal, but did not Question its orders by petitions under Article 226, or were not parties to proceedings under Article 226, should not be allowed to take advantage of an order of this Court in such proceedings and to have a fresh opportunity of entering into the contest Our view on this matter seems to derive support fromCumbum Roadways Ltd. v. Somu Transport Ltd., .

8. An attempt was made before us to show with reference to an earlier traffic survey conducted that there was a fixation of limit on the route in question. We have verified the records in this respect, but find that there was no order under Section 47(3) relevant to the route. The appeal is dismissed with costs.

9. Counsel's fee Rs. 250/-.


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