Judgment

IMAM, J. (delivering the majority judgment on behalf of B. P. Sinha, C.J.I., himself, Sarkar and Shah, JJ.) : This appeal is on a certificate granted by the Madras High Court as in its opinion it involved a substantial question of law to the effect "whether the delegation to the Regional Transport Officer of the power to vary the conditions of a permit is valid". The appellant is the proprietor of Sri Vinayagar Transports. Woriyu, Tiruchirapalli. He held a permit to ply his bus on the route Tiruchirapalli Mainguard Gate to Tiruchirapalli Railway Station via Palakarai and Round Tana. He applied on July 19, 1954, to the Regional Transport Officer, Tirucharapalli for variation of the route so as to ply his bus between Mainguard Gate and Golden Rock via Palakarai, Round Tana, Tiruchirapalli Railway Station and retrace again to Round Tana and thence to Golden Rock. The Regional Transport Officer notified this application for variation and called for objections. The appellant s application and the objections thereon were heard on July 15, 1955, but the Regional Transport Officer rejected the application. The appellant filed a revision petition before the Government of Madras under S. 64A of the Motor Vehicles Act, hereinafter called the Act, S. 64A having been introduced into that Act by the Legislature of the State of Madras. The Madras Government after having heard objections to the revision petition, by its order dated December 28, 1955, set aside the order of the Regional Transport Officer and directed the grant of the variation in the permit of the appellant as prayed for by him. Against the order of the Madras Government the respondent, the Southern Roadways (Private) Ltd., hereinafter called the respondent, filed a petition under Art. 226 of the Constitution in the Madras High Court on January 2, 1956, for the issue of a writ of certiorari to quash the order of the Government of Madras.

2. When the petition came up for hearing before Rajagopalan, J., the respondent raised a plea which was not taking in the petition under Art. 226 of the Constitution of the effect that the Regional Transport Officer had no jurisdiction to grant the variation asked for by the appellant and the Govt. had likewise no jurisdiction to grant in revision what the Regional Transport Officer himself could not have granted. This plea was made on account of a Division Bench decision of the Madras High Court in Writ Appeal No. 107 of 1955, arrived at since the filing of the petition, wherein it was held that the Regional Transport Officer had no jurisdiction to deal with an application for variation of the conditions of a permit. Rajagopalan, J., following the decision in Writ Appeal No. 107 of 1955 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 of Madras had equally no jurisdiction to grant the variation on a revision petition filed against the order of the Regional Transport Officer. The learned Judge accordingly set aside the order of the Government of Madras dated December 28, 1955, without going into the other contentions raised by the respondent in its petition under Art. 226. The appellant appealed against the decision of Rajagopalan. J. Although in the appeal the correctness of the decision in Writ Appeal No. 197 of 1955 was questioned it was not pressed because of the decision of the Full Bench of the Madras High Court in Writ Appeals Nos. 56 and 57 of 1956 decided on April 12, 1957: (FB), Krishnaswamy Mudaliar v. Palani Pillai). The argument in the present case therefore proceeded on the footing that the Regional Transport Officer, Tiruchirapalli, had no jurisdiction to deal with the appellant s application for variation.

3. In the High Court on behalf of the appellant it was urged that the respondents has submitted to the jurisdiction of the Regional Transport Officer and therefore could not at a later stage obtain the discretiona