M. Anantanarayanan, C.J.
1. This proceeding by Messrs. Swami Motor Transport (P.) Ltd., for the issue of a writ of certiorari quashing the respective orders of the Regional Transport Authority, Thanjavur, and the State Transport Appellate Tribunal, granting a Variation of the route from Nagarapatti to Tirukattupalli (via) Thanjavur, etc., involves two related questions of law, that are of some interest and importance. A brief statement of certain essential facts and dates will suffice, as constituting the background in which the problems have to be viewed.
2. In May, 1961 Government passed, an order (G.O. Ms. No. 1486) sanctioning the variation, or directing it as in the public interest. Originally, a certain A.P, Subbu Reddiar applied for this variation, and there was a judgment of this Court in Writ Petition Nos. 774 and 775 of 1961, directing the Regional Transport Authority to deal with the application for variation, ignoring the Government order or administrative fiat. Messrs. Muftigan Transports Limited (first respondent) obtained a transfer of permits from A.P. Subbu Reddiar, and applied in March, 1963, for this variation. The variation was held necessary, by the Regional Transport Authority, Tiruchirappalli, on nth July, 1963. As a result of Writ Petition No. 808 of. 1963, filed by Messrs. Swami Motor Transports (P.) Ltd. (present petitioner), the Regional Transport Authority, Thanjavur, was directed to decide the matter independently, without being influenced either by the decision of the Regional Transport Authority, Tiruchirappalli, or the Government order that we earlier referred to.
3. With reference to the application for variation by Messrs. Murugan Transports Ltd. (first respondent) this was notified by the Regional Transport Authority, Thanjavur, on 3rd May, 1964, and the extension itself was granted on 11th August, 1964. In the meantime, on 19th February, 1964, Madras Act (III of 1964) had been passed, amending the Motor Vehicles Act in certain important respects. This Act will be the subject of subsequent analysis, but, for the present, it is sufficient to note that by the amendment of Section 48(3)(xxi)(a) the Regional Transport Authority was clothed with a power to vary, extend or curtail the route, but with a restriction that the variation should not exceed twenty-four kilometres. In the present case, it undoubtedly does so, and one vital question is, whether, after this Act came into force, the Regional Transport Authority, Thanjavur, would have the jurisdiction to sanction such variation on nth August, 1964.
4. On 24th August, 1964, Writ Petition No. 1290 of 1964 was filed by the petitioner Messrs. Swami Motor Transports (P.) Ltd., to quash the order, but it was dismissed, on the ground that there was an alternative remedy before the State Transport Appellate Tribunal. But this concerned revision proceeding (R.P. No. 133 of 1964), was dismissed by the Tribunal on 24th December, 1964, on the ground that it did not possess revisional jurisdiction. The present writ petition was filed by Messrs. Swami Motor Transports (P.) Ltd., on 6th September, 1965, with a delay of about nine months which is also one of the grounds, adverted to during the arguments, for the dismissal of the writ proceeding.
5. We cannot better illustrate the two related problems of law presented against the background of these facts, by Sri M.K. Nambiyar on behalf of the first respondent and the learned Advocate-General for the petitioner, than by a terse conspectus of the arguments themselves. But before we proceed to these, we may note another development, apart from Madras Act (III of 1964). This is that in Writ Petition Nbs. 83, 87, and 163 of 1964, Veeraswami, J., has occasion to refer to the Full Bench decision in Natesa v. Dhanapal. Bus Service (P.) Ltd. (1964) 2 M.L.J. 23 : I.L.R. (1964) Mad. 288 , and to the following development of the law embodied in amending Act (III of 1964). In expounding these significant changes in the structure of the law of motor transport in this State, the learned Judge made one observation, though it was, in a certain sense, incidental to his reasoning, and not the substance of it. The essential dictum is as follows:
Where the (Regional Transport Authority) exercise its administrative power under Clause (xxi)(a) of Sub-section (3) of Section 48, it is subject to the limitation embodied in the proviso above referred to. The proviso does rot, however, appear to limit the quasi-judicial power of the Regional Transport Authority under Section 57(8).
6. It is undisputed that Madras Act (III of 1964) was enacted, to do away with the anomalies and difficulties that arose in the actual working of the law of motor transport, because of the Full Bench decision in Natesa v. Dhandapal Bus Service (P.) Ltd. (1964) 2 M.L.J. 23 : I.L.R. (1964) Mad. 288 . A related decision which is also pertinent, is the Division Bench decision in Kuppuswamy v. Ramachandran (1963) 2 M.L.J. 355 : I.L.R. (1963) Mad. 627, a judgment of Ramachandra Ayyar, C.J. and one of us. The learned Advocate-General has drawn our attention to the statement of objects and reasons made in the Legislature, at the time of introducing of the. Bill by the Minister for Industries, which sufficiently explains the situation in which the amending Act was felt to be essential. Indeed, the following outline of the situation was common ground during the arguments, Natesa v. Dhanapal Bus Service (P.) Ltd. (1964) 2 M.L.J. 23 : I.L.R. (1964) Mad. 288 was itself the consequence of the conflict created by the grant of variations of permits, treating the route as a condition of the permit, by Regional Transport Authorities, on the one hand, and on the other the introduction of Section 48, Sub-clause (2) by Central Act C of 1956. Jagadisan, J., observed in the crucial portion of the judgment at page 295 as follows:
The phraseology of Section 48, is in our opinion, quite explicit and leaves no room for doubt that the route is not a condition of the permit... The provision emphasises that the route is part of the permit itself and not its mere appendage. It seems to us that as regards the stage carriage permit the route is of its essence and a permit without a route would be a mere husk without grain.
7. The learned Judge, delivering the judgment on behalf of the majority, then stressed that it was curious that even after the amendment by the Centre in 1956, the Madras Amendment under Section 48-A, still retained its original form. Two other parts of this judgment, which are of some importance for our present analysis are an earlier part where the learned Judge extracts Rule 208 of the rules framed under the Act, and a later part where he stresses, that, for reasons given, Section 57(8) ought to be construed as purely procedural, and not as a substantive provision, Which embodies any independent source of power. Kuppuswamy v. Ramachandran (1963) 2 M.L.J. 355 : I.L.R. (1963) Mad. 627, held that an application for an alteration of a permit, which Would enable the permit-holder to take up an altered route and reach a new destination, must be construed as one for the grant of a new permit, and not as a mere variation. The State Transport Appellate Tribunal had no jurisdiction to grant such an application.
8. The indisputable consequence was that Government found it necessary to amend the Act, so that the practice of granting Variations could be brought within the law. Madras Act III of 1964, sought to do this, and its provisions are vitally significant, for the present arguments. Section 48(2) was deleted. In Sub-section (3) of Section 48, a new Clause (3)(1-a) was introduced, to the effect that the stage carriage should be used only on a specified route or routes or in a specified area. Next, for Sub-clause (a) of Clause (xxi) clauses were substituted to enable the Regional Transport Authority to vary, extend or curtail a route, but introducing a restriction of twenty-four kilometres in respect of both variation and extension. Sections 48-A, 51-A, and 56-A of the principal Act were deleted by Section 3 of the Amending Act III of 1964.
9. In View of the relevance and importance of this, we set forth verbatim below the changes introduced in Sub-section (3), and the text of Section 4 of Madras Act III of 1964 amending Section 57(8) of the principal Act, and also of Section 5 (1) and (2) of the Madras Act III of 1964.
(ii) in Sub-section (3):
(a) Clause (i) shall be numbered as Clause (i-a) and before that clause as so renumbered, the following clause shall be inserted, namely,
'(i) that the stage carriage or stage carriages shall be used only on a specified route or routes or in a specified area.'
(b) for Sub-clause (a) of Clause (xxi), the following sub-clauses shall be substituted, namely:
'(a). Vary, extend or curtail the route or routes or the area specified in the permit.
Provided that in the case of - (1) variation, the termini shall not be altered, and the distance covered by the variation shall not exceed twenty-four kilometres;
(2) extension, the distance covered by the extension shall not exceed twenty-four kilometres from the termini;
(aa) vary any other condition of the permits';
* * * * * *
4. In Sub-section (8) of Section 57 of the principal Act, after the words 'by the inclusion of a new route or routes or a new area, 'the words' or by the variation, extension or curtailment of the route or routes or the area specified in the permit' shall be inserted.
5. (1) Notwithstanding anything contained in the principal Act, the route or routes or the area specified in every stage carriage permit granted before the commencement of this Act shall be deemed to be a condition attached to such permit under Sub-section (3) of Section 48 of the principal Act, as if this Act were iv force on the date of grant of such permit.
(2) Notwithstanding any judgment or order of any Court, all proceedings taken for the grant of and all orders passed granting, any variation, extension or curtailment of the route or routes or the area specified in a stage carriage permit before the commencement of this Act by the State Transport Authority or by a Regional Transport Authority or by an authority or person to whom the powers and functions of the State Transport Authority or a Regional Transport Authority have been delegated or by an authority exercising the powers of appeal or revision against the orders of the State Transport Authority or a Regional Transport Authority, shall not be deemed to be invalid merely by reason of the fact that the State Transport Authority, or the Regional Transport Authority, as the case may be, had no power to grant such variation, extension or curtailment and all such proceedings taken or orders passed shall be deemed always to have been validly taken or passed in accordance with law notwithstanding the distance covered by the variation or extension exceeded twenty-four kilometres.
10. It is now feasible to set forth, Very briefly, the arguments of Sri M.K. Nambiyar for the first respondent. We think it is sufficient and expedient to set forth these arguments first, as the crux of the argument of the learned Advocate-General for the petitioner, is Very simple; it is that as amending Act III of 1964 has come into force, the Regional Transport Authority, Thanjavur, had no jurisdiction to grant this extension. Such an extension, exceeding twenty-four kilometres, could not be granted after the amending Act, even on the strict interpretation that the amending Act is prospective, and not retrospective. The only other source of power, Section 57(8) is not an independent source of power, not even a substantive section, but is purely procedural. The incidental observation of Veeraswami, J., in the judgment that We earlier referred to, has to be dissented from. There is no such independent source of power, as the learned Judge apparently thought, with regard to applications which fell within the scope of Section 57(8) of the Act. We may say that the present proceeding is itself on a reference by Veeraswami, J., on a representation before him that his dictum needed reconsideration.
11. Hence, it is the argument of Sri Nambiyar per contra, that has to be clearly set forth, for the two legal issues, which are of course, inter-related, to be made evident. Sri Nambiyar would divide the development of the law on this aspect into two stages. There was a stage of the law prior to Central Act C of 1956. This was that the route Was a condition of the permit under Section 48(d)(ii)(a) as it then stood, and that there was no power to grant a Variation embodied in Section 48. By Madras Amendment, Section 48-A, introduced a power of variation, and there was also the identical power under Rule 208, that we earlier referred to. By virtue of Section 48(2) introduced by Central Act C of 1956, the route ceased to be a condition of the permit, and the conflict between practice and the law, rendered the Full Bench reference essential. By virtue of the judgment of the Full Bench, as we have already seen, the position was rejected that a route could be regarded as condition of the permit, Section 48-A was rendered inoperative, and power to grant variation was thus taken away. Section 57(8) was not an independent source of power, but was held to be purely processual. The developments of the law led t6 Madras Act III of 1964.
12. Section 48-A was repealed by this amendment and the route was made a condition of the permit; it was also to be regarded as a condition of the permit retrospectively, under Section 5(1) of the amending Act, and, in the view of the learned Counsel, both these developments and the wording of Section 5(3) clearly imply that the unamended law is saved, and made applicable, with regard to any application for variation actually entertained prior to the amendment. Learned Counsel would thus put the case for the first respondent on two grounds. Firstly, under Section 5(1) of Madras Act III of 1964..route shall be deemed to be a condition attached to such permit under Sub-section (3) of Section 48 of the principal Act, as if this Act (amending Act) were in force on the date, of grant of such permit.
13. It is hence stressed, that since the restriction attaching to twenty-four kilometrea does not become part of the condition of the permit, by virtue of the deeming provision, because Section 48(3)(xxi)(a) had originally no such restriction, the first respondent is entitled to the present variation, which is beyond twenty-four kilometres. Another limb of this argument is that under Section 5(2) of Madras Act III of 1*964, the Legislature has not merely saved an order passed granting a Variation, prior to the amending Act, but also any application prior to it shall be deemed always to have been validly taken. Hence, the Variation is perfectly competent, and must be. sustained. The second aspect of the argument is that Section 57(8) is an independent source of power, on a doctrine of implied power in relation to Section 57(5), that the View of Veeraswami, J., is, therefore, correct, and that the observations in the Full Bench judgment, to the contrary, must be construed as per incuriam. Section 57(5) was apparently not brought to the notice of the learned Judges of the Full Bench and a decision given ignoring that vital aspect, should not be construed as binding on us.
14. We have very carefully considered these arguments in the light of the authorities placed before us. We have no doubt whatever that they cannot be accepted, and that the sanction of the variation in this case beyond twenty four kilometres, by the Regional Transport Authority, Thanjavur, after the date of the amending Act, is without jurisdiction and illegal. We have equally no doubt that Section 57(8) is procedural and not substantive, that it is not an independent source of power., and that the Regional Transport Authority has no authority, under this Sub-section to ignore the restriction on its power, placed by the legislative amendment. That will be the case, whether the petition for Variation emanates from a party, or the matter is taken up by the Regional Transport Authority suo motu. We shall briefly give our reasons for the conclusions that we have arrived at.
15. We shall, first of all, dispose of the argument relating to the effect of the deeming provision in Section 5(i) of Madras Act III of 1964, and the plain consequence of Section 5(2) of the said Act. Certainly, Sri Nambiyar is justified in his contention that Section 5(1) is a deeming provision, which creates a legal fiction/ in this case, even the route or the area specified in a stage carriage permit granted prior to the commencement of the amending Act, has to be deemed to be a condition attached to such permit under Sub-section (3) of Section 48. On the effect of a legal fiction, and the manner in which a Court should deal with it, Sri Nambiyar relies upon, the famous dicta of Lord Asquith in East End Dwellings Co. v. Finsbury, B.C. (1951) 2 All. E.R. 587. The passage has been frequently quoted, but we think it is pertinent to stress the facts in regard to which those observations came to be made. The Town and Country Planning Act, 1947, laid down, in Section 53(1)(a) whereof, that the assessing authority should deem that the damage to the building had been made good, before the acquiring authority served the notice to treat. Where the damage was so extreme as wholly to destroy the original building, Lord Asquith pointed out, that a replacement has to be necessarily imagined, and that, in this case the new building could not be held tied down to the standard rents of 1939. Then follows the passage:
If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the cosequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have
flowed from or accompanied it The statute says that one must imagine a
certain state of affairs. It does not say that, having done so, one must cause or permit one's imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
16. But this entire argument appears to us to be somewhat beside the mark, in the present context. Indisputably, the permit in this case was granted prior to the amending Act, and even the application for variation was prior to it. Hence, under Section 5(1) we must deem it that the route was a condition attached to this permit under Sub-section (3) of Section 48, and consequently that a valid variation could be made. But that Variation will also be subject to the new statutory restriction, for two important reasons. Firstly, though this deeming provisions does retrospectively make the route a condition of the permit, the power to sanction the variation is no part of the deeming provision. It flows entirely from Section 48(3)(xxi), whether unamended or as amended. Secondly, the learned Advocate-General, rightly stresses that the words in Section 5(1) as if this Act were in force on the date of grant of such permit, make it clear that the legal fiction requires us to consider Madras Act III of 1964, as being wholly in force on the date of the grant of the permit. Therefore, it necessarily implies that the restriction as to twenty-four kilometres was also in force, by h e very emphasis of the principles stated by Lord Asquith.
17. In this connection, the learned Advocate-General, has drawn our attention to the interesting case of Director of Public Worths v. Ho Po Sang L.R. (1961) A.C. 901. There, the Court held that at the time of repeal of the Ordinance the lessee had no right to a certificate. On that date, the lessee did not and could not know whether he would or would not be given a re-building certificate. He had not an accrued right to one, and, unless such accrued right is established by the words of the statute the mere fact that the enactment is prospective, cannot give him that right, if no order had actually been passed on the application on the date of the repeal.
18. This, to our minds, is the proper and manifest interpretation of Section 5(2) also. The language of that Sub-section makes a very clear distinction between a proceeding taken for the grant of a variation and an order passed granting the variation. A proceeding taken prior to the amending Act is to be deemed to have been validly taken; in other words, all those procedures on the application Were valid, and need not be gone through again. In the same way, an order passed prior to the amending Act is to be deemed as passed in accordance with law, notwithstanding the restriction of twenty-four kilometres. But, where the application alone was pending at the time of the amending Act, we are quite unable to see how, unless a right has accrued to the party to have that application dealt with under the unamended law, sectior-5 (2) would entitle the party to the variation in excess of the power. In this respect our view is fortified by the authorities or instances. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Tograj Singha : 2SCR159 , their Lordships of the 'Supreme Court had to consider the effect of the extension of the application of Section 12 (1) of Bombay Act VII of 1947 to a particular area. In this content their Lordships observed as follows at page 167:
But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though, prospective in form, have been given, retrospective operation, if the intention of the Legislature is apparent....
The point of time when the Sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the Sub-section applies equally to suits pending When Part II comes into force, and those to be filed subsequently. The contention of the respondent that the operation, of Section 12(i) is limited to suits filed after the Act comes into force in aprticular area cannot be accepea.
20. On the plaint interpretation of the language of Section 5(2) we have no doubt that the prospective part of the amending Act applies to applications filed after the commencement of the Act and also to all orders on applications already filed, which are to be taken as validly instituted, but upon which orders have to be passed subsequent to the amending Act. Indeed, if the intention of the Legislature had been otherwise, as we have pointed out, there should be very express language, saving the accrued right under the unamended law in favour of the party who had ealier filed the application.
21. We are fortified in this view by two other instances. The first is the Madras General Sales Tax Act I of 1959, Section 61 whereof was amended by the Act o f 1963. The Legislature expressly stated, after repealing Madras Act IX of 1939, that the repeal of the Act,-
Shall not affect...
(a) anything done or any offence committed, or any fine or penalty incurred or any proceedings begun before the commencement of this Act; or
(b) the previous operation of the said Act or anything duly done or suffered thereunder; or
(c) any right, privilege obligation or liability acquired, accrued or incurred under the said Act...
Equally explicit are the provisions in Section 297 of Income-tax Act XLIII of 1961 repealing the earlier Act XI of 1922. Section 297(2)(b) and (c) may be usefully referred toy we do not think it necessary to burden this judgment with verbatim extracts. All these besides specifying that the assessment and its continuance, and any proceeding pending when the Act came into force, are to be saved under the old law as if this Act had not been passed also preserved any right, privilege, etc., accrued or incurred under the said Act. 'The Advocate-General has also referred to the well-known rule in 'Heydon's case 76 F.R. 537, referred to in Craies on Statute Law (sixth edition) at page 96, With regard to interpretation of statutes. The Legislature intended to place a wholesome restriction, in the interests of the public, so that the variation should not swallow up the original route by its length, and so that the foundation itself is not lost sight of, in an unwieldy superstructure; that was the ground for the salutary limit of twenty-four kilometres. The power cannot be construed differently, because the Regional Transport. Authority is dealing with an. application filed before amending Act came into force, unless a right had expressly accrued, and had been saved, in favour of the concerned party.
22. We propose to deal quite briefly with the argument relating to Section 57(8) since we are convinced that this is not an independent source of power, and, indeed, that is settled by the highest authority. We have no doubt whatever that the learned Judge, Veeraswami J., was not making an elaborate analysis on this aspect, as the foundation of the judgment; indeed, a perusal of the judgment of the learned Judge will show the contrary, and the learned Judge has refrained from ever categorising Section 57 (5) as any independent source of unrestricted power. Sri Nambiyar relies on the doctrine of implied power, which will be found stated in Craies on. Statute Law (sixth edition) at page 111 in the commentary on Cookson v. Lee (1853) 23 L.J. Ch. 473 475 . But this doctrine of the necessary implication or inference of a power that the statute does not specify for which the decision of the Supreme Court in B. B. L. & T. Merchants' Association v. Bombay State : (1961)IILLJ663SC , is also cited, has no relevance at all to the present context. No doubt in Section 57(5) we have a reference to the duty of the Regional Transport Authority to dispose of the application at a public hearing. Certainly, this must be read along with Section 57(8). But the doctrine of implied power has no bearing here, for the reason that the statute is not elsewhere silent; on the contrary, here the procedure is prescribed, and the very specific source of power is that enacted in Section 48(3)(xxi)(a). The statute must be construed harmoniously, and the interpretation cannot be permitted that, where it deals with procedure, it also invests a power in the authority, unfettered by restrictions stated earlier, and independently of it. Again, we have no doubt that the doctrine of a judgment regarded as per incuriam for which Toung v. Bristol Aeroplane Co. (1964) 2 All. E.R. 293, was cited has no application here. As Lord Greene, M.R., points out, a decision given per in curiam is where it was given in ignorance of the terms of a statute, and disregarding a statutory provision. There is absolutely no warrant for holding that this is the case with regard to the observations of Jagadisan, J., upon Section 57(8) being entirely procedural. On the contrary, there can be no doubt that the learned Judge was correct in his view of the matter and this is clear from the observations of their Lordships of the Supreme Court in Abdul Mateen V. Ham Kailash : 3SCR523 , where their Lordships explicitly say at page 67:
Section 57 is a procedural section and provides for the procedure in applying for and granting permits... Section 47(3) gives power...
23. With reference to Rule 208, which was also referred to by Jagadisan, J., it has obviously to be read along with Section 48(3)(xxi) which is the source of power, and not independently of it. On both the legal aspects of the matter, therefore, we are satisfied that the writ petition will have to be allowed. After the amending Act, no variation can be actually sanctioned disregarding the restriction, nor has the Regional Transport Authority an independent source of power to sanction unlimited variation under Section 57(5) and (8). Indeed, if he Were to be clothed with such power, the total purpose of the legislative amendment will be defeated.
24. With regard to the laches in the present case, we propose to be quite brief. There is no rule of law that a writ petition cannot be filed Without some delay, or that the delay cannot exceed a particular time-limit, such as six months. Courts have held that six months Would be a reasonable time for a party to invoke jurisdiction under Article 226 of the Constitution, but, naturally, everything will depend on the circumstances, vide Mt. Dhaneshwary v. L.A. Officer : AIR1966Pat136 . In the present case, there were several features as shown in the reply affidavit, explaining the delay of about nine months. The concerned party was ill at Vellore, the revision had been held incompetent, but there was a similar proceeding by another party before the Transport Authority, the outcome of which could be awaited, and there was some delay, on the part of the learned Counsel in communicating the result of the revision proceedings before the State Transport Appellate Tribunal. We are satisfied that there have been no such laches, as would disentitle the party to relief under Article 226 of the Constitution. Accordingly, we direct the issue z a Writ of certiorari quashing the grant of the variation in this case. No order as to costs.