(1) This is an application for leave to file an appeal in the Supreme Court against the decision of this court in W. A. No. 74 of 1964. The petitioner contends that the judgment of this court even though the appeal was dismissed is one of variance. The petitioner was one of the applicants before the Regional Transport Authority, South Arcot, for a stage carriage permit on the route between Neiveli and Kumbakonam. The first respondent herein became the successful applicant, and the petitioner preferred an appeal and directed the grant of the permit to the petitioner. The original grantee, the first respondent herein, there upon filed the petition out of which the present application arises for quashing the order of the Tribunal under Art. 226 of the Constitution. Following the decision of the Supreme Court in C. A. 19 of 1964, where it was held that G. O. No. 1298 issued by the Government of Madras in 1956 in exercise of the powers conferred by S. 43-A of the Motor Vehicles Act was a fetter on the exercise of the quasi judicial function of the appropriate Tribunals constituted under the Act and was out side the purview of S. 43-A which authorised the State Government to issue orders and directions of an administrative nature, Veeraswami J., allowed the writ petition and quashed the order of the Appellate Tribunal W. A. No. 74 of 1964 is the appeal therefrom to the Division Bench of this court and this court in appeal confirmed the order of Veeraswami J., quashing the appellate order of the Tribunal. An argument was addressed in the appeal as to the consequences that followed the quashing of the order of the Tribunal. There were several applicants for the permit and a few of them only had appealed to the Tribunal. It transpires before the Tribunal filed writ petitions. All these have been allowed in the light of the decision of the Supreme court.
It was submitted that it would not be open to those appellants before the Tribunal who had not come to the High Court with writ petitions to have their cases reheard by the Appellate Tribunal and any fresh consideration of the matter by the Tribunal should be restricted only to the writ applicants and respondents. On this, the Division Bench has observed that it was a case where the disposal of the appeals buy the Tribunal had been found to have departed from known principles of judicial procedure, that the taint affected the entire appellate order, that all the appeals were disposed of as a result of a single appellate order and in that view, it followed that the result of quashing the appellate order of the Tribunal should revive all the appeals before the Appellate Tribunal. The petitioner contends that by reason of the aforesaid observations the decision of this court in appeal ceases to be one of affirmance and as the subject-matter is of the value of over Rupees 20,000 he is entitled to leave as of right. It is argued that the learned judge, Veeraswami J., who quashed the order of the Tribunal in the first instance has not said anything about the other appeals before the Tribunal and that as a result of the observations in the writ appeal, six other appeals before the Tribunal would get revived even though they had not come up to the High Court by way of writ petitions.
(2) As regards the valuation there is no serious contest. It is stated that the permit in question is valid up to October 1965 and the earnings therefrom would for exceed Rupees 20,000. This court has consistently held that permit is 'property' and the judgment now sought to be appealed against involves indirectly if not directly a claim or question respecting to property not less than Rs. 20,000 in value.
(3) The real question therefore for consideration is whether the judgment or final order of this court in appeal is one of variance. A reference to Art. 133 of the Constitution and S. 110 C.P.C., shows that the affirmance or variation must be in relation to the subject-matter in dispute in the proceeding the final order in which its sought to be taken in appeal to the Supreme Court. It seems toys that any variance with reference to extraneous matters or no matters consequential on the final order therein will not be sufficient to take the case of the class of orders of affirmance. That this is so cannot be seriously disputed. In Deputy Commr., Hardoi v. Ramakrishna, : AIR1953SC521 it is observed:
'Costs are not taken into consideration and are treated as extraneous to the subject-matter of a suit, and variation in the matter of costs does not make the decree of the appellate court a decree of variance'.
We think that the directions as to the disposal of the matter by the Appellate Tribunal on the quashing are extraneous to the subject-matter of the writ proceedings and relates to the consequences of the quashing. What forms the subject-matter of proceedings under Art. 226 of the Constitution has been the subject of consideration in a Full Bench of five Judges in Southern Roadways (P) Ltd. v. P. M. Veeraswami, : AIR1964Mad194 (FB) to which one of us was a party. Therein it is observed as follows:
'The merits of the controversy in proceedings under Art. 226 cannot, therefore, be equated to the controversy regarding the rights or privileges asserted or claimed before the inferior tribunal whose order is sought to be quashed in those proceedings; the only question in the writ proceedings will be whether a fundamental right of the party has been infringed or whether the order of the Tribunal is outside the authority conferred on it by the statute'.
The Full Bench observes further:
'It must follow that the finality of an order under Article 226 cannot be made to depend on the revival or pendency or otherwise of the controversy before the Tribunal............ The result of the quashing will, therefore, be to restore the proceedings before the Tribunal. But at the same time, such a restoration is not by virtue of any order of remand passed by the High Court, but is merely the consequence of the order of the Tribunal alone having been quashed'.
While noticing the competency of courts in India to give directions to Tribunals below in appropriate cases while quashing the order, the Full Bench has also observed that the existence of such a power does not alter the essential character of the proceedings.
(4) It follows therefore that where a writ of certiorari is issued so far as the High Court is concerned, it has completely disposed of the matter and when the Appellate Tribunal takes up the matter for rehearing, it is not necessarily because that this court has directed it to do so. The revival of the appeal before the Appellate Tribunal is a consequence of the quashing and the direction of the Division Bench sets out the result in the circumstances of the case of the final order of the court and does not modify the decision on the subject-matter of the writ. The decision quashing the order of the Tribunal has been upheld in the appeal and the appeal has been dismissed. It cannot, therefore, be held that the reference in the judgment that all the appeals before the Tribunal will get revived will make the decision in the writ appeal one of variance.
(5) Mr. G. Ramaswami, the learned counsel for the petitioner, draws our attention to the decision of the Supreme Court in Rajaram v. Radhakrishnayya Chetty, : 2SCR452 , and some of the cases referred to therein and contends that on the principle of the decision the instant case should be held to be one of variance. He draws our attention in particular to paragraphs 4, 7 and 14 in the AIR series of the report of the case. The point that arose for decision in that case was whether the variation in the decision of the trial court by the High Court in favour of the party who intended to prefer an appeal to the Supreme Court would exclude the decree from the category of a decree of affirmance. The matter arose out of a suit and dealing with clause (c) of Article 133(1) of the Constitution, their Lordships observed:
'Reading the clause as a whole and giving the material words their plain meaning it seems prima facie to show that the test affirmance prescribed by the clause can best be satisfied it we take the appellate decree in its entirety and enquire whether the said decree affirms the decision of the trial court considered in its entirety'. The question whether any variation in respect of incidental matters consequential on the decree in the suit and considered extraneous to the subject-matter of the suit would also be a variation contemplated under Art. 133(1)(c) did not arise for consideration in that case. The penultimate paragraph in the judgment of their Lordships in fact supports the view we are taking. After observing that a variation in regard to the order as to costs is not a variation that would affect the character of the decree and pointing out that the position with regard to interest would however be different, their Lordships observed:
'Unlike the order of the costs which is entirely in the discretion of the court under S. 35 C.P.C. an order as to interest which the court can make under S. 34 of the Code forms part of a dispute between the parties, and in that sense if a variation is made in regard to it, it is an integral part of the decision or the decree.............
The principle of affirmance on which the provision rests postulates either affirmance or variation by the appeal Court as an act of adjudication and that necessarily means the decision of the appeal court on the merits'.
It must be noticed that the appellants in the appeals before the Tribunal which it has been observed would get revived are not even parties in the present proceedings for the issue of writ of certiorari. The expression of a different view in the appeal as to the consequences flowing from the particular adjudication on the merits of the dispute between the parties in the writ petition cannot in our opinion make the decision in the appeal one of variance with that of the first court as required under Art. 133(1)(c) of the Constitution.
(6) The learned counsel for the petitioner next contends that substantial questions of law arise for consideration and as the requirement as to value is fulfilled, he is entitled to leave as of right. Our attention is once again drawn to the points of law argued in the appeal. It is pressed upon us that there are several cases where the same questions of law arise for consideration and that at any rate would make the questions of law substantial. We do not consider the questions raised substantial within the meaning of Art. 133 of the Constitution. It is not seriously argued that the case is otherwise a fit one for appeal to the Supreme Court.
(7) The application therefore fails and is dismissed. No costs.
(8) Application dismissed.