Anandram Ayaldas and others vs Damodardas and others

Jagat Narayan, J.C.

This is an application under Arts. 226 and 227 of the Constitution for quashing orders dated 20-8-55 and 19-9-55 passed by the Transport Appellate Tribunal. It has been contested by respondent 1. I have heard the Learned Counsel for the parties and am satisfied that the application must be allowed.

The petitioners are permit holders running stage carriages between Satna and Sidhi via Govind Garh. According to the timings fixed by the State Transport Authority their buses used to leave Satna at 3 P.M and Sidhi at 5 P.M. These timings were changed to 11.15 A.M. and 10.30 A.M. respectively by an order dated 3-6-55 passed by the State Transport Authority.

Respondent 1 is also a permit holder running stage carriages between Rewa and Bichi via Govind Garh and Sidhi. Aggrieved by the variation in the timings of the buses of the petitioners he filed an appeal against the order of the State Transport Authority to the Transport Appellate Tribunal. He also made an application for the stay of the operation of the order pending decision of the appeal. Notice was issued to the petitioners to show cause why the order should not be stayed and 5-8-55 was fixed for hearing. On that date the petitioners as well as respondent 1 were heard by the Transport Appellate Tribunal on the question whether interim stay order should be passed.

On 12-8-55 the tribunal delivered a judgment deciding the appeal on merits and allowing it in favour of respondent No. 1 The petitioners were informed by the S.T.A. of this acition on 20-8-55. On 15-9-55 they filed the present application for quashing the order of the tribunal dated 12-8-55 on the ground that appeal was decided without giving them a hearing. On 19-9-55 the tribunal reviewed their order dated 12-8-55 & set it aside. They passed in its place another order allowing the star application filed by respondent 1. The applicants thereupon filed another application for setting aside the subsequent order.

A perusal of. the order dated 12-8-55 shows that the tribunal purported to decide the appeal on merits. It cannot be said that there was merely clerical error in writing or dictating the order The order sheet dated 12-8-55 runs as follows:

Parties with their counsel present. Comments of Secretary S.T.A. on appeal received and perused. Arguments on appeal beard. Orders passed. Parties may he informed of the order.

There is no order-sheet dated 5-8-55 on the record. Power to review its decision has not been conferred on the tribunal under the Indian Motor vehicles Act. The right of review is not inherent. Such a right therefore does not exist unless granted by Statute. (See Paramasivam Pillai v. Periya nayagath Ammal. AIR 1917 Mad 726 (1) (A). The order dated 19-9-55 passed by the tribunal is therefore one without jurisdiction and I quash it.

The effect of quashing the above order is to restore the order of the tribunal dated 12-8-55 deciding the appeal on merits. That decision was given without a hearing in violation of the principles of natural justice and against the express provision of S. 64, Motor Vehicles Act. I accordingly quash that order also.

Lastly it is contended on behalf of the Applicants that no appeal lies against an order of the S.T.A. varying the timings for running a stage carriage and it is prayed that a writ of prohibition be issued restraining the Tribunal from proceeding with the hearing of the appeal. The only provision of the Motor Vehicles Act which confers a right of appeal in such cases is S. 64. The question is whether respondent 1 could be deemed to fall with cls. (a) to (g) of that section.

On behalf of respondent 1 it is argued that he would fall within cl. (b) namely any person "aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof". In my opinion, a change in timings of the applicants'' bus cannot be held to be a variation of any of the conditions of the permit.

The material provisions of the Act which have any bearing on the question which comes for decision are Ss. 46. 47. 48 and 59. Section 46 deals with an application for a stage carriage permit. It provides that such an application shall contain certain particulars which include the timetable of the service to be provided. It does not deal with the conditions which may be imposed by the authority granting the permit.

Section 47 prescribes the procedure which the S.T.A, has to follow in considering applications for stage carriage permits. Under S. 47(2) the S.T.A. is bound to refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of the Act relating to the speed at which the vehicles may be driven are likely to be contravened. Section 48 confers certain powers on the S.T.A.

These powers are not all of the same nature and do not belong to the same category. They are (a) the power to limit the number of stage carriages on any specified route, (b) the power to issue a stage carriage permit in respect of a particular stage carriage, (c) the power to regulate timings of arrival and departure of stage carriages, (d) the power to attach to a stage carriage permit "any prescribed condition or any one or more of the conditions enumerated in sub-cls. (i) to (vi) of cl. (d). The relevant clause is sub-cl. (iii) which runs as follows:

That copies of the fare table and the timetable shall be exhibited on the stage carriage and that the fare table and the time table so exhibited shall be observed.

The time fixed by the S.T.A. at the time of the grant of the permit is not one of the conditions of the permit. Sections 48 (d) and 59 clearly indicate what is meant by a condition attached to a stage carriage permit. No appeal there for lies to the Tribunal under S. 64 against an order varying the timings of the buses.

This view was taken by Raja Mannar C.J. and Venkatarama Iyer J. in M. Kali Mudaliar Vs. A. Vedachala Mudaliar and Others, in a Letters Patent Appeal against the decision of Subba Rao J. reported in A. Vedachala Mudaliar Vs. The State of Madras and Another, The above point does not appear to have been pressed before the latter. He appears to have assumed that the time table wag a condition of the permit.

In AIR 1944 89 (Nagpur) ) the question for decision was whether a bus operator could alter the fare table without the sanction of the Regional Transport Authority. With all respect I am unable to agree with their observation:

In our opinion the fare table & the time table in S. 48 (d) (iii) are the fare table and time table approved by the Regional Transport Authority and forming one of the conditions of the permit.

The only condition in this matter would be a condition that the timing as fixed from time to time should be exhibited on the stage carriage and the timing so exhibited should be observed.

The only point which remains for consideration is whether a writ of prohibition should be issued. On behalf of respondent 1 it was argued that the applicants can raise the above point be fore the Tribunal. It was observed in Rex v. Electricity Commissioners, (1924) 1 KB 171 (E) by Atkin L.J.:

I can see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari I think that prohibition will lie to restrain it from so exceeding its jurisdiction.

Countering a similar argument in Rex V. Wimbledon Justices, 1953 1 All ER 390 (P) Lord Goddard C. J. observed:

It is certainly the most convenient course to take to prevent a lot of expense being incurred in hearing these seven summonses, and I think the applicant is entitle to this relief of prohibition because, if a Court has no jurisdiction, no consent can give it jurisdiction. I do not deny that justices may, if this Court is not asked to prohibit them from doing it, proceed to hear a case, and the point can be taken before them: But the fact that that can be done is no reason why, if the Court is satisfied that there is a lack of jurisdiction in the justices they should not issue prohibition, which is the very object with which that writ has been framed. It is the direction of a superior Court to an inferior court to prevent the inferior Court, acting without jurisdiction.

In Gangadhar Vs. State of Rajasthan and Others, - it was observed:

A preliminary objection has been raised that was open to the applicant to go in revision to the Custodian General we should not grant him any relief

But the case of a writ of prohibition stands on somewhat different footing from other writs.

It has been held in a number of cases that where the superior Court comes to the conclusion that an inferior tribunal is exercising jurisdiction which is not vested in it the superior Court will issue a writ of prohibition even though there may be an alternative remedy. Reference may be made to Halsbury''s Laws of England, Second Edition, Vol. IX, para 1397 where the following passage occurs;

The Court, in deciding whether or not to grant a writ of prohibition, will not be fettered by the fact that an alternative remedy exists to correct the absence of excess of jurisdiction, or an appeal lies against such absence or excess.

I accordingly allow the application and prohibit the Transport Appellate Tribunal from proceeding with the appeal filed by respondent 1 against the order of the S.T.A. dated 3-6-55 varying the tune table of the applicants'' bus. I direct that parties shall bear their own costs.