Skip to content


A. St. Arunachalam Pillai, Proprietor, Vinayagar Transport Vs. Southern Roadways, by Managing Director, T.S. Krishna and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Reported in(1958)1MLJ1
AppellantA. St. Arunachalam Pillai, Proprietor, Vinayagar Transport
RespondentSouthern Roadways, by Managing Director, T.S. Krishna and anr.
Cases ReferredBarnard v. National Dock Labour Board L.R.
Excerpt:
.....is an initial want of jurisdiction in the tribunal, the act of which is complained against; in that case the argument that if the original order was without jurisdiction, the order of the government passed in revision would equally be without jurisdiction, will not hold good. there is nothing like that in the case before us because the only authority which dealt with the appellant's application was the regional transport officer who had no jurisdiction to entertain it. 14. we are clearly of opinion that the order of the government purporting to grant the appellant's application for variation in supersession of the order of the regional transport officer refusing it was void because the government had no original jurisdiction to make such an order and they could not make any order in..........railway junction via palakarai and round tana. on the 19th july, 1954, he applied to the regional transport officer, tiruchirappalli, for variation of the route so as to ply between mainguard gate and golden rock via palakarai, round tana, tiruchirappalli railway junction and retrace again to round tana and thence to golden rock. the variation was sought mainly on the ground that it would provide direct transport facilities from golden rock to tiruchirappalli railway junction. the regional transport officer, tiruchirappalli, notified this application for variation and called for representations. messrs. southern roadways, limited, a limited company doing motor transport business on a large scale, the contesting respondent before us, objected to the variation on the ground that.....
Judgment:

P.V. Rajamannar, C.J.

1. This is an appeal against the judgment of Rajagopalan, J., in Writ Petition No. 2 of 1956. The appellant is the proprietor of Sri Vinayagar Transports, Woriyur, Tiruchirappalli. He held a permit to ply his bus M.S.P. 1519 on the route Tiruchirapalli Mainguard Gate to Tiruchirappalli Railway Junction via Palakarai and Round Tana. On the 19th July, 1954, he applied to the Regional Transport Officer, Tiruchirappalli, for variation of the route so as to ply between Mainguard Gate and Golden Rock via Palakarai, Round Tana, Tiruchirappalli Railway Junction and retrace again to Round Tana and thence to Golden Rock. The variation was sought mainly on the ground that it would provide direct transport facilities from Golden Rock to Tiruchirappalli Railway Junction. The Regional Transport Officer, Tiruchirappalli, notified this application for variation and called for representations. Messrs. Southern Roadways, Limited, a limited company doing motor transport business on a large scale, the contesting respondent before us, objected to the variation on the ground that it was not in public interest. Three other transport operators also objected to the grant of the variation. The Regional Transport Officer, Tiruchirappalli, after hearing the applicant and the objectors, rejected the application of the appellant by his order dated 17th July, 1955. It is not necessary to set out the reasons for his decision which are contained in the order. Against this order, the appellant presented a revision petition to the Government of Madras under Section 64-A of the Motor Vehicles Act, praying that the order of the Regional Transport Officer may be set aside and the variation granted. The respondent company filed a statement before the Government maintaining the legality, regularity and justice of the order sought to be revised. The Government, by their order G.O. No. 3702 (Home) dated 28th December, 1955, set aside the order of the Regional Transport Officer and directed the grant of the variation sought by the Appellant. Thereupon the respondent filed in this Court a petition under Article 226 of the Constitution out of which this appeal arises, for the issue of a writ of certiorari to quash the said order of the Government. This petition was filed on 2nd January, 1956. It may be mentioned that the grounds on which the writ was sought, all related to the merits. The petition was opposed by the appellant.

2. When the petition came up for hearing before Rajagopalan, J., learned Counsel for the respondent raised a new plea, viz., that the Regional Transport Officer had no jurisdiction to grant the variation asked for by the appellant and the Government had likewise no jurisdiction to grant, in revision, what the Regional Transport Officer himself could not have granted.

3. This contention was put forward obviously because subsequent to the filing of the petition, a Division Bench of this Court held in Writ Appeal No. 107 of 1955 that the Regional Transport Officer had no jurisdiction to deal with an application for variation of a route. The appellant's learned Counsel urged before Rajagopalan, J., that the respondent should not be permitted to put forward a new plea not disclosed in the affidavit. He also contended that as the respondent had submitted to the jurisdiction of the Regional Transport Officer, he should not be permitted at that' stage, and in proceedings under Article 226 of the Constitution, to challenge the jurisdiction of the Regional Transport Officer. The learned Judge was of the opinion that the respondent's failure to raise the plea of jurisdiction in the affidavit in support of the writ petition could be easily condoned because the legal position was cleared up only when the decision in Writ Appeal No. 107 of 1955 was rendered by the Division Bench and till then everyone concerned proceeded on the assumption that the Regional Transport Officer had jurisdiction. He also considered that in the circumstances of the case the respondent could not be held to have disabled himself from seeking the discretionary relief of a writ of certiorari by his participation in the enquiry by the Regional Transport Officer without objecting to his-jurisdiction. Following the decision in Writ Appeal No. 107 of 1955, the learned Judge held that the Regional Transport Officer had no jurisdiction to deal with the appellant's application for variation, and that it followed that the Government had equally no jurisdiction to grant the variation on a revision petition filed against the order of the Regional Transport Officer. On this ground, he set aside the order of the Government dated 28th December, 1955, without going into the other contentions put forward by the respondent because ' that might embarrass the competent statutory authority should an application be made to it hereafter for the variation '. The appeal before us is against this order of Rajagopalan, J.

4. At the outset it may be pointed out that though there was an attempt to question the correctness of the decision in Writ Appeal No. 107 of 1955, that attempt was abandoned at the hearing of this appeal, because that decision was affirmed by a Full Bench of this Court since reported in Krishnaswami Mudaliar v. Palani Pillai : (1957)2MLJ243 (Writ Appeals Nos. 56 and 57 of 1956 on 12th April, 1957). Before us the argument proceeded on the footing that the Regional Transport Officer, Tiruchirappalli, had no jurisdiction to deal with the appellant's application for variation.

5. Mr. G.R. Jagadisa Ayyar, learned Counsel for the appellant, pressed upon us two main contentions. The first contention was the respondent had submitted to the jurisdiction of the Regional Transport Officer, and therefore he could not at a later stage, obtain the discretionary writ of certiorari on the ground that there was lack of jurisdiction. In support of this contention, he relied on the following passage in the recent judgment of the Supreme Court in Pannalal Binjrai v. Union of India A.I.R. 1957 S.C. 396 .

There is moreover another feature which is common to both these groups and it is that none of the petitioners raised any objection to their cases being transferred in the manner stated above and in fact submitted to the jurisdiction of the Income-tax Officers too when their cases had been transferred. It was only after our decision in Bidi Supply Co. v. The Union of India : [1956]29ITR717(SC) was pronounced on 20th March, 1956, that these petitioners woke up and asserted their alleged rights, the Amritsar group on 20th April, 1956, and the Raichur group on 5th November, 1956. If they acquiesced in the jurisdiction of the Income-tax Officers to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of this Court under Article 32. It is well-settled that such conduct of the petitioners would disentitle them to any relief at the hands of this Court (Vide Halsbury's Laws of England, Volume II, 3rd edition, page 140, paragraph 265; Rex v. Tabrum : Ex parte Dash (1907) 97 L.T. 551; O.A.O.K. Lakshmanan Chettiar v. Corporation of Madras : (1926)51MLJ742 .

6. He also referred us to two decisions of Subba Rao, J., as he then was in Writ Petition No. 806 of 1951 and Mannarg Lal Union Motor Services, Ltd. v. The Regional Transport Authority Malabar and Ors. : AIR1953Mad59 .

7. The above rule merely enunciates the principle which should be applied in exercising the discretion vested in the Court to grant or not an extraordinary remedy like the writ of certiorari. The rule is founded on the conduct of a party, which should be such as to disentitle him to the discretionary relief. The rule is really an instance of the doctrine of ' acquiescence '. Now it is well-established that before a person aggrieved is refused a relief to which he would otherwise be entitled on the ground of acquiescence in the wrong complained of, it is necessary to establish that he knew, or ought to have known, his right, which he is alleged to have omitted to assert. A person who has no knowledge of his right and is not guilty of culpable negligence in being ignorant, will not be denied a relief to which he is entitled on the ground that he omitted to assert that right. In this case, as the learned Judge, has pointed out, ' the ignorance of the true legal position was virtually shared by everyone concerned, the operators, the statutory authorities and the Government themselves and even this Court'. In such circumstances, it is not just to apply the rule of acquiescence.

8. In this view it is not necessary to decide if the rule will not apply to cases where there is an initial want of jurisdiction in the tribunal, the act of which is complained against; vide Madhava Rao v. Surya Rao (1953) 2 M.L.J. 340 .

9. Mr. Jagadisa Ayyar for the appellant took objection to the permission granted by the learned Judge to the respondent to raise this new plea which was not raised in the original affidavit in support of the petition. Reliance was placed by him on certain obiter dicta in an unreported judgment of a Division Bench in Writ Appeal No. 97 of 1955. There the new plea was not raised before the learned Judge who dealt with the writ petition, but it was raised for the first time in appeal before the Division Bench, and the new plea was not allowed to be raised at that stage. Diff-rent considerations would apply at the stage of the first hearing of the petition. We think that the learned Judge exercised his discretion most properly in allowing the plea to be raised.

10. Mr. Jagadisa Ayyar's next contention on behalf of the appellant was that even if the Regional Transport Officer had no jurisdiction to deal with the appellant's application for variation, the order of the Government which was sought to be quashed could not be said to be one passed without jurisdiction, or in excess of jurisdiction because the Government had undoubtedly powers to pass the order in question under Section 64-A of the Motor Vehicles Act. Section 64-A of the Motor Vehicles Act runs thus:

The Provincial Government may, of its own motion or on application made to it, call for the records of any order passed or proceeding taken under this Chapter by any authority or officer subordinate to it, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding and after examining such records, may pass such order in reference thereto as it thinks fit.

11. It cannot be denied that the Government could suo motu or on application made to them, call for the records of any order passed by any authority, or officers, subordinate to them ; and the Regional Transport Officer would be an officer subordinate to the Government. But that could be only for the purpose of satisfying themselves as to the legality, regularity, or propriety of such order. And, after examining the records, the Government could pass such order in reference thereto as they thought fit. In the present case, the Government should have found that the order passed by the Regional Transport Officer was not legal because he had no jurisdiction to pass the order he did. Once the Government came to that conclusion, there was nothing further which they could do than to set aside the order of the Regional Transport Officer and refer the applicant to the proper authority. There is nothing in the Act, or in the rules, which empowers the Government to deal originally with an application for variation. They cannot therefore treat the revision petition of the appellant as an application made to them for variation and proceed to dispose of it in the first instance. The fact that the Government is the final revising authority, does not carry with it the implication that the Government has original jurisdiction to deal with applications which properly should be dealt with, in the first instance by one or other of the several transport authorities. Of course if the subordinate authority or officer had jurisdiction to entertain an application and had passed an order thereon, it would be open to the Government to set aside that order and pass, instead, the proper order which that authority or officer should have passed.

12. The learned Advocate-General who appeared for the respondent put forward his objection to Mr. Jagadisa Ayyar's contention from another aspect. If the original order of the Regional Transport Officer was without jurisdiction and therefore void ab initio it followed that the order of the Government purporting to be in exercise of the revisional powers under Section 64-A of the Act, would be equally without jurisdiction. Put so broadly, the proposition may not be correct in its application to all orders of Government passed in revision. If a revision petition is filed to the Government against an order of a subordinate officer on the ground that that officer had no jurisdiction to pass the order, the Government can certainly pass a valid order under Section 64-A of the Act holding that the order of the subordinate officer is illegal and therefore should be set aside. In that case the argument that if the original order was without jurisdiction, the order of the Government passed in revision would equally be without jurisdiction, will not hold good. If, however, the Government purport to pass an order confirming or modifying the order of the subordinate officer, or if the Government pass an order in substitution of the order of the subordinate officer, on the ground that that was the proper order which he should have made,, then the order of the Government would be void if the original order of the subordinate officer was void. It is sufficient to refer to the following observations of Denning, L.J., in Barnard v. National Dock Labour Board L.R. (1953) 2 Q.B. 18:

So far as the decision of the appeal tribunal is concerned, it seems to me that, once the port manager's order is found to be a nullity, it follows that the order of the appeal tribunal is also a nullity. The appeal tribunal has no original jurisdiction of its own ; it cannot itself make a suspension order ; it can only affirm or disaffirm a suspension order which has already been made. If none has been made because it is a nullity, the tribunal can do nothing. It cannot make something out of nothing any more than anybody else can.

In the case before us the Government, as the revising tribunal, had no original jurisdiction of their own. They could not themselves make an order of variation.

13. Mr. Jagadisa Ayyar relied on an unreported decision of this Court in L.P.A. No. 200 of 1952. But when the facts of that case are examined, it will be clear that there is nothing in that decision which would materially assist him. In that case, an operator who had two stage carriage permits in respect of a particular route, applied to the Regional Transport Authority for extension of the route. The application for variation of the condition of the permit was referred to the Central Road Traffic Board which did not accept the request for extension. The Regional Transport Authority followed the procedure laid down in Section 57 of the Act treating the application as an original application for a permit. The Regional Transport Authority eventually rejected the application mainly on the ground that the Central Road Traffic Board had not approved the proposal. There was an appeal to the Central Road Traffic Board against this order of the Regional Transport Authority ; but the Board dismissed the appeal as not maintainable. The applicant thereupon invoked the powers of the Government under Section 64-A of the Act. The Government passed an order directing the extension of the Route. It was inter alia contended that the only body which had the authority to vary any of the conditions of a permit was the Central Road Traffic Board and that the Regional Transport Authority had no jurisdiction to entertain the application for variation, and that therefore the Government had equally no jurisdiction under Section 64-A of the Act to pass the order sought to be quashed. The answer to this contention was twofold : (1) that it could not be said that the Regional Transport Authority had no jurisdiction to deal with the application for variation of a condition as an application for the grant of a pucca permit; and (2) assuming the Central Road Traffic Board was the proper authority to deal with an application for variation of a condition, it had in effect refused to grant it and therefore the Government had power to interfere, with the order passed by the Central Road Traffic Board under Section 64-A of the Act. It was observed in that case that ' the order of the Government, can therefore be treated as an order passed in effect revising the order of the Central Road Traffic Road refusing to vary the condition of the permit under Section 48-A '. In that case either the Regional Transport Authority or the Central Road Traffic Board had authority to deal with an application for variation. One of the two authorities therefore had jurisdiction to deal with the application and the final order of the Government passed under Section 64-A could be treated as an order in substitution of the order of either of the two authorities which had jurisdiction. There is nothing like that in the case before us because the only authority which dealt with the appellant's application was the Regional Transport Officer who had no jurisdiction to entertain it.

14. We are clearly of opinion that the order of the Government purporting to grant the appellant's application for variation in supersession of the order of the Regional Transport Officer refusing it was void because the Government had no original jurisdiction to make such an order and they could not make any order in lieu of the order made by the Regional Transport Officer because that officer himself had no jurisdiction to deal with the application. Rajagopalan, J., was therefore right in setting aside the order of the Government. The appeal is dismissed ; but having regard to the fact that this point was raised subsequent to the filing of the writ petition, we make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //