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IN THE HIGH COURT OF BOMBAY
Chagla, C.J. and Dixit Y.V. , J.
Appellants: Gandhinagar Motor Transport Society
Vs.
Respondent: State of Bombay
Special Civil Appln. No. 886 of 1953
Decided On: 13.07.1953
Counsels:
For Appellant/Petitioner/Plaintiff: N.K. Gamadia, Khemchand Gopaldas, Advs. And Dayalji Dipchand
For Respondents/Defendant: M.P. Amin, Adv. General, Little and Co., M.M. Dharia and V.R. Gupte, Advs.
B.Jurisdiction - grounds of challenge - Article 226, 227 of the Constitution - the petitioner should have raised question of jurisdiction before the same forum of which the order is under challenge on the ground of jurisdiction before the High Court. ( para 4)
C.Extract of Judgment :- It must be borne in mind that in exercising its jurisdiction under Articles 226 and 227 the High Court is not exercising an ordinary jurisdiction. It is always open to a petitioner to assert his rights in a suit properly filed, but when he chooses to assert his rights by calling upon the High Court to exercise its special jurisdiction, the High Court must itself lay down certain principles for the exercise of that jurisdiction and must not make the exercise of that jurisdiction a matter of ordinary occurrence.
Equally so a defendant may not raise the question of jurisdiction in the Court of first instance, he may not raise the question of jurisdiction in the appellate Court, he may postpone raising the question of jurisdiction up to the stage of the Privy Council or the Supreme Court, yet if the Court has no jurisdiction the highest Court in the land will allow the point to be raised and decide it in favour of the defendant. But the principle is different when the petitioner comes to this Court for a writ. The Court must tell the petitioner: "It was open to you to raise that point before the tribunal whose order you are challenging. You have sat on the fence, you have taken a chance of the tribunal deciding in your favour, and it is not open to you now to come to us and ask for a writ." ( para 4)
1. In February 1949 the petitioners were granted a permit to run a transport bus for carrying passengers on the Kolhapur-Valivade route under the provisions of the Motor Vehicles Act. On 23-5-1951, the petitioners applied to the Regional Transport Officer for a permit to run a second bus. The Regional Authority held a meeting on January 30, 1952, to consider the application, and on 3-3-1952, he granted a permit to the petitioners. Respondent 4 and 2 others had also applied for a permit, but their application was rejected. Respondent 4 appeal- ed to the State Transport Authority, and on 30-6-1952, the appeal of respondent 4 was dismissed. Respondent 4 went in appeal to Government and the Government by their order dated 15-1-1953, reversed the decision of the Regional Transport Officer and directed that a permit should be granted to respondent 4. It is that order which is challenged before us by the petitioners.
2. Two preliminary objections have been taken by the Advocate General, and in our opinion both the objections are good and must be upheld. The first objection is as to delay. The order which is challenged was passed on 15-1-1953, and the petition challenging it was preferred to this Court on 11-5-1953. The explanation that is given by Mr. Gamadia on behalf of the petitioners for this delay is that on 19-2-1953, the petitioners made a representation to Government to reconsider their decision and the Minister concerned rejected that representation on 28-3-1953, and the petitioners received the final order of Government on 3-4-1953. Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy. The remedy he pursued was extra-legal or extra-judicial. Once the final decision of Government is given, a representation is merely an appeal jfor mercy or indulgence, but it is not pursuing la remedy which the law gave to the petitioner. But even assuming that that time should be condoned, the petitioners did not make a representation to Government till 15-2-1953, a month after the order was passed, and even when they received the final decision of Government on 3-4-1953, they waited a month more before this petition was presented. Therefore, in our opinion, there has been such delay in the presentation of this petition as would disentitle the petitioner to any relief at our hands.
3. But there is another objection which is equally serious. The main ground on which the order of the Government is challenged is that Government had no jurisdiction to sit in appeal over the decision of the State Transport Authority and that the decision given by the State Transport Authority was the final order which became conclusive and no appeal lay from that order. The petitioners never raised the point as to the jurisdiction of Government when Government heard the matter. The petitioners were quite content to permit Government to hear the appeal preferred by respondent 4. If Government had decided in favour of the petitioners we would not have heard anything further about the jurisdiction of Government to hear appeals from the decision of the State Transport Authority, but it is because Government have decided against the petitioners that the petitioners have thought of corning to us in order to exercise our jurisdiction under the Constitution.
4. Now, as we shall presently point out, the English Courts have taken the view, and in our [opinion rightly, that before a question of jurisdiction is raised on a petition, objection to jurisdiction must be taken before the tribunal whose order is being challenged. It is not as if by the petitioner not challenging the jurisdiction of the tribunal that he confers jurisdiction upon that tribunal if that tribunal has no jurisdiction. But what the English Courts have said is t
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