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Judgment
K. Veeraswami, C.J.—This appeal is from a judgment of Ramakrishnan, J., dismissing the appellant''s petition under Article 226 of the
Constitution to quash an order of the second respondent, Additional State Transport Appellate Tribunal, Madras. The Regional Transport
Authority Coimbatore, out of 42 applicants, selected the appellant for grant of a stage carriage permit to ply an additional bus on the route Pollachi
to Tiruppur (Via) Kamanaickanpalayam and Palladam. Three of the disappointed applicants preferred appeals to the second respondent, which
allowed them and remitted the matter to the Regional Transport Authority, for being proceeded with in accordance with law. The first respondent,
which was one of the applicants, had raised a preliminary objection to the introduction of an additional bus on the route, on the ground that it was
not given additional trips for its existing buses, and that further a new route bus had also been introduced between Erode and Pollachi (Via)
Tiruppur. The Regional Transport Authority repelled the objection on the view that there was need for introducing more number of buses on the
route connecting the important commercial centres, Tiruppur and Pollachi, and that a grant of further permit on the route was ponsidered
necessary.
It would appear that there were already six permits on the route. In the appeal filed by the first respondent, it, however, urged for the first-time, a
different objection that the Regional Transport Authority without making a prior order u/s 47(3) of the Motor Vehicles Act, limiting the number of
stage carriages for which permits would be granted on the route, had no jurisdiction to proceed with the applications u/s 57(3) of the Act, The
second respondent accepted the objection as valid, and it was on this sole ground, it is allowed the appeals remitting the matter as aforesaid. The
propriety of this view of the second respondent is impeached by the appellant. As the same point is said to arise in a number of other petitions
pending disposal in this Court, we have permitted arguments to be addressed to us not merely by counsel in the appeal under consideration, but
also other counsel interested on the point,
Though the Tribunal''s conclusion seems to be supported by abundant authority, as we shall notice presently, Mr. Thiruvengadachari, contends
that it went no further than holding that where a limit had been fixed u/s 47(3), the Regional Transport Authority, while considering applications u/s
57(3) would be bound by it under the proviso to the sub-section, and should summarily dismiss the applications if a further grant of permits would
transgress the limit. On that view of the decided cases, he has submitted that Section 47(3) contemplates fixation of the maximum limit of the
number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area
or on any specified route within the region, that the limit so fixed is of a general character not affecting or preventing consideration, subject to the
general limit fixed, of the question of adequacy of transport service already existing on a specified route, or in the region, or in specified area and
that, therefore where there has been no limit fixed u/s 47(3), for a route, area or region, there is no bar to grant of permits u/s 48, subject of
course, to the question of adequacy.
On the other hand, It Is pressed upon us that the Regional Transport Authority cannot proceed unless a limit had been fixed u/s 47(3) before a
notification u/s 57(3). On this submission, prohibition has been asked for in a few petitions against the Regional Transport Authority from
proceeding further without a prior order u/s 47(3), On the other view of the matter, orders of the Tribunal are sought to be quashed in certain other
cases where the Tribunal had itself taken the point relating to Section 47(3) and set aside the orders of the Regional Transport Authority, granting a
permit, or where it had the objection based on Section 47(3) raised in Appeals filed before it by unsuccessful applicant who raised the question
either for the first time or not. If the controversy were res integra, it would have been necessary for us to embark on an elaborate consideration of
it. But out of deference to the arguments presented before us, we shall first notice the relevant statutory provisions.
Chapter IV of the Motor Vehicles Act is devoted to the control of transport vehicles. After providing for necessity for permits for use of any
vehicle in a public place, and for power of the State Government to control road transport and to issue orders and directions to Transport
Authorities as well as for setting up of hierarchy of Transport Authorities, Sections 35 and 46 state as to whom an application for permit should be
made, and what particulars it should contain. Section 47(1) directs that in considering an application for a stage carriage permit, a Regional
Transport Authority should have regard to the matters specified in Clauses (a) to (f) and also any representations made by the persons indicated.
Among the matters to be so kept in view, are the interests of the public generally, and the adequacy of other passenger transport services operating
or likely to operate In the near future, whether by road or other means, between, the places to be served, as well as the benefit to any particular
locality or localities likely to be afforded by the service. A stage carriage permit should be refused, as directed by Sub-section (2) if the time table
furnished showed that the provisions as to speed limits prescribed by the Act were likely to be contravened. Then comes Sub-section (3):
A Regional Transport Authority, may having regard to the matters mentioned in sub-section (1), limit the number of stage carriage generally or of
any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within, the
region.
Section 48 empowers a Regional Transport Authority to grant a stage carriage permit on an application made to it. But such a grant shall be
subject to the provisions of Section 47. The procedure for applications, and granting permits, has been prescribed by Section 57. An application
may be made at any time. But there should be an interval of not less than six weeks between the making of the application, and the date on which
the permit is desired to take effect. Subsection (3) requires notification of the applications or their substance in the prescribed manner, with a notice
of the date before which representations might be made, and of the time and place at which the applications and representations received would be
considered. This sub-section has a proviso:
Provided that, if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the number of
vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the application relates, beyond
the limit fixed in that behalf under Sub-section (3) of Section 47 or Sub-section (2) of Section 55, as the case may be, the Regional Transport
Authority may summarily refuse the application without following the procedure laid down in this sub-section.
The rest of the provisions of Section 57, among other things, provide for a public hearing on the applications notified and representations duly
received. Section 55(2) is analogous to Section 47(3) except that it relates to public carrier''s permit.
Section 64(1) (a) gives a right of appeal to person aggrieved by a refusal of the appropriate authority to grant a permit, and Section 64-A gives
powers of revision to the State Transport Authority, in respect of orders of a Regional Transport Authority and from which no appeal lies. In the
foregoing setting of the statutory provisions, Sections 45, 46, 47(1) and (2) and 50 are related to making of applications for permits, the particulars
which the applications should contain, and the matters which the Regional . Transport Authority must have regard to. Section 57, as we said,
prescribes the procedure for disposing of such applications. Section 48(1) provides for the power of the Regional Transport Authority to grant,
subject to Section 47, stage carriage permits, and Section 51(1) for the grant, subject to Section 50, of a contract carriage permit. Section 54
provides for an application for a public carrier''s permit, and Section 55(1) contains matters which the Regional Transport Authority should take
into account in considering such an application. Subject to Section 55, a Regional Transport Authority may grant a public carrier''s permit. The
orders contemplated under Sections 48, 51 and 56(1) are ad hoc, so to speak, in nature, and are related to particular grants of permits on
applications made therefore, and the grants made on a selection basis after taking into account the relevant statutory considerations mentioned by
the statutory provisions and subject to the limits fixed under Sections 47(3) and 55(2), Orders fixing limits under Sections 57(3) and 55(2) are not
related to any particular application for any kind of permit, but are of a general character, though in making such orders the Regional Transport
Authority is directed to bear in mind the matters specified by Sections 47(1) and 55(1) which include not merely public interest in general, but also
the adequacy. But ""adequacy"" in the context of Sections 47 (3) and 55(2) should be understood, as we think, not in the context of granting
particular applications for permits, but in a general way so as to prescribe the maximum number of permits that may be granted in a region, area or
any specified route within the region, for stage carriages generally, or stage carriages of any specified type, or of transport vehicles generally or
transport vehicles of any specified type.
The approach to the consideration of adequacy cannot, therefore, be the same in considering grant of permits on a route, or for an area as for
fixing the limit, which is indicative of the maximum number of stage carriages, or public carriers generally or of any specified type for which permits
may be granted in the region or area or on a specified route as a whole. When a limit is fixed u/s 47(3) or 55(2) it should be adhered to by the
Regional Transport Authority in granting permits because of the proviso to Section 57(3). If grant of a permit will be in excess of the limit fixed
under Sections 47(3) and 55(2), the Regional Transport Authority should summarily refuse the application therefore without notifying it. So far
there is no difficulty. But where no limit has been fixed u/s 47(3) or Section 55(2), is it required that there should first be such a fixation of limit
before reception or notification of an application for a permit? Mr. Thiruvenkatachari says that the answer should be in the negative. He submits
that the opening words of Sections 48(1) and 56(1) read with the proviso to Section 57(3), should not, and cannot be construed as expressly or
by implication naming any such requirement. If a limit has been fixed u/s 47(3) or 55(2) of the maximum number of permits that could be granted in
any region, area or route, and if the permits for which applications have been made are within such maximum, no difficulty may arise, though even
in such cases the question of adequacy may be open before the Regional Transport Authority which may think, on the representations made before
it, that notwithstanding the maximum fixed, transport facility already existing in the region, area or on the route was adequate or sufficient, and no
grant of further permits was necessary. It was urged that the position can be no different if a limit has not been fixed under Sections 47(3) and
55(2), and there is nothing in the opening words of Sections 48(1) and 56(1) read with Sections 47(3), 55(2) and the proviso to Section 57(3),
which points to a requirement that the notification of applications u/s 57(3) should be preceded by an earlier order either u/s 47(3) or 55(2) as the
case may be.
On a careful consideration of the argument, in our view, it is not possible to say that it is without force. Our attention has been invited to the
structure of Section 50 which seems to assist the contention. But the construction which Thiruvenkatachari wants us to place, as aforesaid, on the
relative statutory provisions is not open to us in view of the well settled authorities to the contrary. The formidable difficulty in the way of Mr,
Thiruvenkatachari''s argument is the structure of the relative statutory provisions and their interrelation. Particularly, the proviso to Section 57(3)
contemplates an order u/s 47(3) prior to the reception of applications for permits. The limit u/s 47(3) cannot also be decided in, or simultaneously
with the proceedings u/s 57(3), the object of which is to select the best out of competing applicants, while Section 47(3) proceedings are devoted
to determination of the ceiling for grant of stage carriage permits in a region, area or route.
There is also the further indication in the opening words of Section 48(1) that any permit issued for a stage carriage can only be subject to the
provisions of Section 47(3), which means not only the limit fixed u/s 47(3), cannot be exceeded, but without fixation of any limit, in our view, the
power to grant permits u/s 48(1) cannot be exercised.
Logically, therefore, grant of permits first, and then fixation of the ceiling next or simultaneously, will not be permissible. It follows further that any
question related to fixation of limit u/s 47(3) cannot be within the purview of Section 64(1). The point as to adequacy will be relevant, as the
proceedings u/s 57(3) will be subject to the limit fixed of the number of stage carriages for which permits can be granted in a region, area or on a
route. This view of the effect of the relevant provisions of the Act is abundantly supported by authority. 4. In Abdul Mateen Vs. Ram Kailash
Pandey and Others, which was concerned with the Motor Vehicles Act as amended by Bihar Act 27 of 1950, the Supreme Court, after referring
to the related sections held:--
The Scheme of the Act therefore, is that a limit is fixed u/s 47(3) and the applications received are dealt with in the manner provided by Section
57 and permits can be granted u/s 48 subject to the limit fixed u/s 47(3).
The Court earlier pointed put that, although the power to fix a limit u/s 47(3) and the power to grant permit u/s 48(1) following the procedure
prescribed by Section 57, are vested in the same Regional Transport Authority, nevertheless, fixation of any limit or its modification is not a matter
for consideration when the Regional Transport Authority is dealing with an actual grant of permit u/s 48 read with Section 57, for, at that stage
what the Regional Transport Authority has to do is only to choose between ""various applicants who may have made applications u/s 46 read with
Section 57. The Court proceeded to say:--
That in our opinion is not the stage where the general order passed u/s 47(3) can be re-considered, for the order u/s 48 is subject to the
provisions of Section 47, which includes Section 47(3) under which a general order limiting the number of stage carriages etc, may have been
passed.
That was a case of a new route in respect of which applications were invited for grant of two stage carriage permits. Two of the applicants were
granted each a permit. One of the unsuccessful applicants who had failed before the appellate authority, took the matter in revision to the State
Government of Bihar. While declining to interfere with the appellate order, the State Government considered that an additional service could be
allowed on that route, and that would add to the facility provided for without affecting the efficiency of existing service, and on that view, granted a
permit to the petitioner before it. Another disappointed applicant who moved the Government to exercise its revision powers, but failed to get a
permit, filed a writ petition before the High Court challenging the order of the Minister for Transport The High Court held, and its conclusion was
upheld by the Supreme Court, that the State Government had no power when dealing with an application u/s 64-A to increase the number of
permits to be granted from two (fixed by the Regional Transport Authority) to three, and quashed the order of the Government granting the third
permit. Dealing with the contention that there were no permits fixed by the Regional Transport Authority, and, therefore, it was open to the State
Government to increase the number of permits from two to three the Supreme Court held, again agreeing with the High Court, that the route being
a new one, it should be deemed from the notification calling for applications for two permits that the Regional Transport Authority had fixed the,
limit at two.
In expressing that view, the Supreme Court stated:--
It may be conceded that it may not be generally possible to conclude from the number of vacancies shown in an advertisement of this kind that
that is the number fixed u/s 47(3) by the Regional Transport Authority. There is, however, in our opinion, one exception to this general rule, and
that is when a new route is being advertised for the first time.
In the case of a new route it is clear that the Regional Transport Authority must have come to some conclusion as to the number of stage carriages
which were to be permitted to operate on that route and the advertisement would only be issued on behalf of the Regional Transport Authority
calling for applications for the number so fixed.
Otherwise, it is impossible to understand in the case of a new route why the advertisement was only for two vacancies and not (say) for four or six.
Where the advertisement is with respect to an old route the fact that the advertisement mentions a particular number of vacancies would not
necessarily mean that that was the number fixed u/s 47(3) for the number fixed may be much more and there may be only a few vacancies because
a few permits had expired.
Abdul Mateen Vs. Ram Kailash Pandey and Others, as to the scheme, scope and effect of Sections 47, 48 and 57. The Regional Transport
Authority, Ramanathapuram had in that case decided earlier to introduce a new bus route, and called for applications for a permit. While
considering the applications u/s 57(3), it modified its earlier decision and decided to refuse all applications on the ground that there was no longer
any need for any such permit. The Supreme Court held that the order of the Regional Transport Authority was contrary to its previous order
passed u/s 47(3). On an examination of the Scheme of the Act, the Supreme Court observed:--
Therefore, Section 47 envisages two stages of the inquiry; (i) the fixing of the number of permits u/s 47(3) and (ii) the consideration thereafter of
the application for grant of a permit and the representations if any by the persons mentioned in Section 47 (1) ... ... ... ... ...Therefore, once the limit
is fixed, if the grant of an application does not have the effect of exceeding that limit the only question before the Authority would be whether the
applicant is a person fit to be granted the permit or not in the light of the matters set out in sub-section (1) of Section 47. The question of the
number of permits to be granted, having been already canvassed and decided, cannot become the subject at that stage of any further controversy.
This is clear from the fact that Section 48(1) which empowers the Authority, to grant or refuse to grant the permit starts with the words ""subject to
the provisions of Section 47."" it is therefore, clear that the Authority has first to fix the limit and after having done so, consider the application or
representation in connection therewith in accordance with the procedure laid down in Section 57.
The question in Lakshmi Narain Agarwal Vs. State Transport Authority, U.P. and Another, was whether a revision lay u/s 64-A against an order
u/s 47(3), which was answered in the affirmative. The Supreme Court declined to accept as valid the view of the State Transport Authority that the
only way to question the order u/s 47(3) was by means of a representation to be made u/s 57(3), and in case the representation was rejected, the
representator would have a right of appeal before the State Transport Appellate Tribunal. The High Court had dismissed the writ petition to quash
that order on the view that an existing operator had no say in the matter of determination of the strength on a route u/s 47(3), and it was in the
discretion of the Regional Transport Authority to determine the strength on a route, after considering various matters enumerated in Clauses (a) to
(f) of sub-section (1) of Section 47. Since the High Court"" also considered that the order u/s 47(3) was a good one on its merits, it did not think it
necessary to decide whether a revision lay u/s 64-A against an order u/s 47(3). The Supreme Court was, for the purpose of the case, unable to
say that no existing operator could be aggrieved against an order made u/s 47(3), and felt that it would depend on the facts and circumstances of
each case.
The importance of Lakshmi Narain Agarwal Vs. State Transport Authority, U.P. and Another, lies in the fact that in effect it held that an order u/s
47(3) could not be questioned in proceedings u/s 57, but only by way of revision u/s 64-A.
In Baluram v. State Transport Authority, Madhya Pradesh, C. A. No. 727 of 1965 (SC), the Scheme of the sections under consideration was
reviewed over again. The actual decision there was that once a ceiling has been fixed u/s 47(3), it could not be exceeded while considering
applications u/s 57, because the modification of an order u/s 47(3) was not within the scope of the power of the Regional Transport Authority
when it was dealing with grant of permits u/s 48, read with Section 57, for, at that stage what the Regional Transport Authority had to do was but
to choose between the various applicants who may have made applications to it u/s 46 read with Section 57. The Court expressed its view in the
following manner:--
In our opinion, that is not the stage where the general order passed u/s 47(3) can be re-considered, for the order u/s 48 is subject to the
provisions of Section 47 which includes Section 47(3) under which a general order limiting the number of stage carriages etc., may have been
passed. In other words, in exercising its power u/s 57 the Regional Transport Authority is only considering whether the applications made before it
are to be granted or not, and has to choose between various applicants where there are more applicants than the number of vacancies which might
have been advertised or there are more applicants than the number limited u/s 47(3). The Scheme of the Act therefore, is that a limit is fixed u/s
47(3) and the applications received are dealt with in the manner provided by Section 57 and permits can be granted u/s 48 subject to the limit
fixed u/s 47(3). The View that we have expressed is borne out by the decision of this Court in AIR 1963 SC 64 wherein it was held that where a
limit has been fixed u/s 47 (3) by the Regional Transport Authority, and thereafter the said authority proceeds to consider applications for permits
u/s 48 read with Section 57 the Regional Transport Authority must confine the number of permits issued by it to those limits and on an appeal or
revision by an aggrieved person, the Appellate Authority or the Revisional Authority must equally be confined to the issue of permits within the
limits fixed u/s 47(3). In our opinion, the principle of this decision applies to the preent case where the material facts are almost similar in
character."" On that view, the order of the State Transport Authority was quashed.
In R. Obliswamy Naidu v. Addl. State Transport Appellate Tribunal, Madras, (1969) 1 SCWR 569 which ,was decided by the Supreme Court
in February 1969 the Scheme of the sections was again considered. This was a case of a new route, and there was no prior order u/s 47(3). The
appellant before the Supreme Court, applied to the Regional Transport Authority, Coimbatore for a permit to ply a stage carriage on the route.
The application was published u/s 57(3). Certain operators made representations against the application on the ground that there was no need to
grant a stage carriage permit for the route. The objection having been overruled, the appellant was granted a permit. An appeal against the order
was allowed by the Additional State Transport, Appellate Tribunal, on the view that the procedure adopted by the Regional Transport Authority
was not in accordance with law, inasmuch as it had failed to determine the question of the need for a service in that route before entertaining the
application for stage carriage permit. The High Court declined to interfere with the Tribunal''s order, and the Supreme Court concurred with it.
The Supreme Court, while reviewing the relevant provisions, accepted the ratio of (1967) 2 SCWR 857 and held:
On an examination of the relevant provisions of the Act and the purpose behind Sections 47 and 57, we are convinced that before granting a
stage carriage permit two independent steps have to be taken. Firstly there should be determination by the R. T. A. u/s 47(3) of the number of
stage carriages for which stage carriage permits may be granted in that route. Thereafter applications for stage carriage permits in that route should
be entertained. The R. T. A. is not competent to grant stage carriage permits for more carriages than fixed u/s 47(3).
This is clear authority that without a prior order u/s 47(3), applications for stage carriage permits for the relevant route could not be entertained,
and the Regional Transport Authority is not competent to grant stage carriage permits for more carriages than fixed u/s 47(3). This means that an
order u/s 47(3) is a condition precedent to the exercise of power u/s 48(1) read with Section 57. Though Abdul Mateen Vs. Ram Kailash Pandey
and Others, was also concerned with a new route, there, the Regional Transport Authority concerned started with a notification calling for
applications tot two permits, and the Supreme Court held that in such a case it should be deemed that there had been a decision u/s 47(3) fixing
the limit of stage carriage at two. But in (1969) 1 SCWR 569 there was no such notification calling for applications for any specified number of
permits.
In Sri Raja Rajeswari Bus Service, Vridhachalam Vs. Regional Transport Authority South Arcot Cuddalore and Another, a Division Bench of
this Court expressed the view:--
Equally it will be open to the objector to state, where no limit has been fixed, that the route is well served or the condition of the road is such that
more buses cannot ply on the road etc., all germane and relevant considerations u/s 47(1). Such representations can quite properly find a place in
the representations made, when called for, u/s 57. The rule that where an inquiry u/s 47(3) is necessary, it must precede the disposal of
applications for permit on their merits, does not preclude the raising of all germane objections and relevant representations within the time
prescribed. Once the objections raised and representations made, call for a determination u/s 47(3), under the rulings it is incumbent upon the
Regional Transport Authority to take proceedings u/s 47(3) first before embarking upon the merits of the applications u/s 57.
If by this observation, the Division Bench meant that even where there is no prior order u/s 47(3) applications for stage carriage permit on a route
have been filed and are notified, and an objection is raised and found to be well founded as to the absence of a prior order u/s 47(3), it would be
open to the Regional Transport Authority to take proceedings u/s 47(3) separately, while keeping the proceedings u/s 57(3) pending and before
embarking upon the merits of the applications, we are of the view that such a procedure would go against the tenor of the view of the Supreme
Court in (1969) 1 SCWR 569 that first there should be an order u/s 47(3) and only thereafter applications for grant of stage carriage permits could
be entertained. The right course in such cases would be to dismiss the applications, in limine on the ground that there had been no prior order u/s
47(3), and not keep the applications pending in order to await an order u/s 47(3).
It is then contended for the appellant that as the objection based on the absence of a prior order u/s 47(3) had not been raised before the Regional
Transport Authority, neither the appellant before the Tribunal could be permitted to raise it before it for the first time in the appeal, nor would it be
right for the Tribunal itself to take up the point and allow it on that ground. In our view, as we have held that without a prior order u/s 47(3), no
application for a permit could be entertained for notification u/s 57(3), the absence of such an order goes to the root of the jurisdiction of the
Regional Transport Authority to exercise its powers u/s 48(1) read with Section 57. We are, therefore, of the view that the point as to such an
absence of prior order could be raised at any stage of the proceedings u/s 57(3), or thereafter, and its admissibility at any further stage, should not
be made dependent on representations in that regard having been made in time u/s 57(3). The representations contemplated by Section 57(3)
pertain to matters specified in clauses (a) to (f) of Section 47(1), particularly those which bear on the selection of rival applicants for a permit.
Once it is clear that Section 47(3) proceedings are different from, and independent of proceedings u/s 57, and the latter would proceed only with
reference to a prior order u/s 47(3), it follows that the representations and especially the question of adequacy in the context of selection of a
proper operator for grant of a permit, cannot relate to considerations on which a decision as to limit u/s 47(3) is to be taken. But that is not to say,
where proceedings u/s 57(3) have been initiated without there being a prior order u/s 47(3), no representations can be made as to the absence of
such an earlier order, but only the failure to make such a representation will not conclude in further proceedings the question of there having been
no earlier order u/s 47 (3). From the standpoint of certiorari, it was urged on the basis of O. A. O. K. Lakshmanan Chettiar v. Commr., Corpn. of
Madras, ILR Mad 130 : AIR 1927. Mad 130 that the point should not be allowed to be taken for the first time in a petition under Article 226 of
the Constitution, In that case, a Full Bench of this Court held that failure to object to jurisdiction before the lower Court was a bar to obtaining a
writ of certiorari, whether the objection to jurisdiction is based on a pure point of law or based on facts which were or should have besn within the
knowledge of the applicant during the proceedings in the lower court. That case was decided long before the Constitution came into force, and the
position then was that this court was following the practice of the King''s Bench in England in Certiorari, and on that hypothesis, rules laid down by
the English Court in the decided English cases as to the scope and limitation of its jurisdiction in certiorari were applied. But that is not the case
now, as Article 226 of the Constitution is of a much wider scope and confers powers on the High Court to make any direction including writs in
the nature of certiorari, that was not a case of total want of jurisdiction, and on the facts, the Court proceeded on the basis that the objection as to
jurisdiction could have been taken at the early stage, and the point having not been raised, certiorari could not issue ex debito justitiae. No doubt,
this Court undoubtedly has discretion in certiorari petitions to exercise its power, or in any given circumstances. But in our opinion, in a case like
this, where initial jurisdiction is totally wanting because of the absence of an earlier order u/s 47(3), this Court in the exercise of the discretion, will
not be prepared to ignore the ground merely on the basis that it had not been taken at the earlier stages, and allow an order to continue in force,
although it was made without such jurisdiction.
Whether there was a prior order u/s 47(3) does not involve elaborate enquiry into facts, and is easily and readily found out. That the first
respondent had participated in the contest for the permit before the Regional Transport Authority without raising objection of want of a prior order
u/s 47(3) did not, therefore, disentitle it from raising the point in its appeal before the Tribunal. Even it it had not raised the point in such an appeal,
but raised, for the first time in certiorari or prohibition, in this Court, we would be prepared to entertain it in proceedings under Article 226 of the
Constitution, and it would not be shut out from raising it.
One other point is as to which of the applicants before the Regional Transport Authority would be entitled to reconsideration when the matter
went back before it for disposal pursuant to the remit order by the Tribunal. On this question, we are of the view that the proceedings before the
Regional Transport Authority should then be confined to only those who were parties to the appeals before the Tribunal, and those who failed
before the Regional Transport Authority, but were content not to prefer appeals would not be entitled to participate any more, in the contest for
permit, after the remit order. This principle should naturally have to be extended to proceedings under Article 226 of the Constitution as well.
Those disappointed before the Tribunal, but did not Question its orders by petitions under Article 226, or were not parties to proceedings under
Article 226, should not be allowed to take advantage of an order of this Court in such proceedings and to have a fresh opportunity of entering into
the contest Our view on this matter seems to derive support from Cumbum Roadways (P) Ltd. Vs. Somu Transport (P) Ltd. and Others, .
An attempt was made before us to show with reference to an earlier traffic survey conducted that there was a fixation of limit on the route in
question. We have verified the records in this respect, but find that there was no order u/s 47(3) relevant to the route. The appeal is dismissed with
costs.
Counsel''s fee Rs. 250/-.