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Aswini Transports (P) Ltd., Pollachi Vs. Pollachi Roadways (P) Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberWrit Appeal Nos. 34 and 45 of 1972
Judge
Reported inAIR1973Mad172
ActsConstitution of India - Article 226; Motor Vehicles (Tamil Nadu Second Amendment) Act 1971; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantAswini Transports (P) Ltd., Pollachi
RespondentPollachi Roadways (P) Ltd. and ors.
Cases ReferredHari Vishnu Kamath v. Ahmed Ishaque
Excerpt:
.....june 18, 1971, since the tribunal under motor vehicles act (iv of 1939) has to be regarded as a civil court subordinate to the high court for purposes of section 115 of the code civil procedure (v of 1908), on that ground no writ can issue to the tribunal, it being a court subordinate to the high court. further, as there is an alternative remedy by way of revision, no writ petition can any longer be entertained after the amending act came into force. hence, the transport appellate tribunal has not been abolished by the amending act; it very much continues as before under the principal act; only for purpose of section 115 of the code of civil procedure (v of 1908), the tribunal should be deemed to be a court subordinate to the high court. having regard to the frame of section 10 of the..........the practice of this court. so, an and from 18-6-1971, since the tribunal has to be regarded as a civil court subordinate to the high court for purposes of section 115, civil procedure code, on the ground that no writ can issue to a civil court subordinate to the high court and on the further ground that there is an alternative remedy by way of revision, no writ petition can any longer be entertained after the amending act came into force.2. ramaprasada rao, j., was of the view that even the pending petitions for writs could not be proceeded with in view of the amending act. the learned judge, however, at the request of the appellants, permitted conversion of the petitions into civil revision petitions under sections 115, civil procedure code. it is not disputed that against orders.....
Judgment:
1. The appellants had filed petition under Article 226 of the Constitution in which rules nisi went out. They related to grant of stage carriage permit and sought certiorari against the orders of the Transport Appellate Tribunal dated respectively 28-11-1969 and 8-2-1971. On 30-7-1971 the Motor Vehicles (Tamil Nadu Second Amendment) Act 1971, was passed which has force from 18-6-1971. Section 10 of the Amending Act provides:--

"Revision by High Court: The State Transport Appellate Tribunal shall be deemed to be a court subordinate to the High Court for the purposes of Section 115, Civil Procedure Code, 1908 (Central Act V of 1980), and its orders shall be liable to revision by the High Court under the provisions of the said section".

In 1962, Issardas S. Lulla v. Smt. Hari, , held that Article 226 of the Constitution did not clothe the High Court with jurisdiction to quash orders of the subordinate courts. Since then that has been the practice of this court. So, an and from 18-6-1971, since the Tribunal has to be regarded as a civil court subordinate to the High Court for purposes of Section 115, Civil Procedure Code, on the ground that no writ can issue to a civil court subordinate to the High Court and on the further ground that there is an alternative remedy by way of revision, no writ petition can any longer be entertained after the Amending Act came into force.

2. Ramaprasada Rao, J., was of the view that even the pending petitions for writs could not be proceeded with in view of the Amending Act. The learned Judge, however, at the request of the appellants, permitted conversion of the petitions into civil revision petitions under Sections 115, Civil Procedure Code. It is not disputed that against orders passed in exercise of revisional jurisdiction, no appeal lies under the Letters Patent. But the contention is that petitions should not have been treated as revision petitions but dealt with only as petitions under Article 226 of the Constitution. In other words, it is urged that the Amending Act has no application to pending applications for writs.

3. If, pending writ petitions, the forum, the orders of which are impugned in such petitions, is abolished, the question whether still writs can be issued will depend upon the nature of the rule to be issued. If it is mere certiorari, which means simply removing the erroneous order from record, there will be no bar to the issue of a rule, as the abolition of the forum in the meantime will not affect the matter. But, if, on the other hand, a direction is to be given, it will very much depend upon whether the forum still exists. Hari Vishnu Kamath v. Ahmed Ishaque, , observed-

"If it is the record of the decision that has to be removed by 'certiorari', then the fact that the tribunal has become 'functus officio' subsequent to the decision could have no effect on the jurisdiction of the court to remove the record. If it is a question of issuing directions, it is conceivable that there should be in existence a person or authority, to whom they could be issued, and when a certiorari other than one to quash the decision is proposed to be issued, the fact that the tribunal has ceased to exist might operate as a bar to its issue. But, if the true scope of certiorari to quash is that it merely demolishes the offending order, the presence of the offender before the court, though proper, is not necessary for the exercise of the jurisdiction or to render its determination effective."

4. But the position here is peculiar. The Transport Appellate Tribunal has not been abolished by the Amending Act; it very much continues as before under the principal Act; only for purposes of Section 115, Civil Procedure Code, the Tribunal should be deemed to be a court subordinate to the High Court. Having regard to the frame of Section 10 of the Amending Act, its only result, as it appears to us, is that the order of the Tribunal will be subject to revision under Section 115, Civil Procedure Code, and treating it as a court subordinate to the High Court, the High Court will not entertain a writ petition against such orders. The reason is two-fold. One is, Article 226 does not clothe the High Court with jurisdiction to quash the orders of the subordinate court. The other is, where there is an alternative remedy, a petition under Article 226 of the Constitution will not normally be entertained, permitting the party to bypass that remedy. Section 10 of the Amending Act does not, therefore, seem to affect petitions pending under Article 226 of the Constitution. This is because the orders were passed before the Amending Act came into force and the writ petitions initially were validly entertained. Further, the tribunal, except for the purposes of Section 115, Civil Procedure Code, has not ceased to exist as such. Section 11 of the Amending Act says that all applications for, and proceedings relating to one or the other of the four things mentioned therein, and pending before any court, transport, authority or officer on the 18th June 1971, and appeal or revision, if any, arising from such pending application or proceedings, shall be disposed of under the principal Act, as amended by the Amending Act. In our opinion, this section does not solve the problem as to what we should do with petitions pending under Article 226 of the Constitution when the Amending Act came into force. This is because of the limited phraseology of Section 10 of the Amending Act, that is to say, it is only for the purpose of Section 115, Civil Procedure Code, that the Tribunal is to be deemed to be a Court Subordinate to the High Court, which, in our opinion, will not apply to orders passed by the Tribunal prior to the Amending Act.

5. We think, therefore, that the appeals are maintainable.

6. Order accordingly.


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