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High Court Of Madhya Pradesh
Shiv Dayal, C. J. , K. K. Dube and J. P. Bajpai, JJ.
MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION - Appellant
Versus
REGIONAL TRANSPORT AUTHORITY, JABALPUR - Respondents
Misc. Petn. 940 Of 1976
Decided On : 10/08/1977
The High Courts entertained petitions by invoking the extraordinary jurisdiction in such suitable cases where the Act or order challenged was apparently illegal and without jurisdiction and it was thought unjust to drive the petitioner to take recourse to ordinary remedy available under the law. But after the amendment, the jurisdiction under Article 226 (1) of the Constitution has been restricted in many respects and a further fetter has been imposed under Article 226 (3) that no such petition for redress, of injury referred to in sub-clauses (b) and (c) of clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. Undoubtedly, this fetter does not apply to a case falling under sub clause (a) of Article 226 (1) relating to enforcement of fundamental rights. But so far as the petitions falling under sub-clause (b) or (c) are concerned, the fetter imposed by Article 226 (3) prohibits entertainment of the petition itself.
Section 58 of the Amendment Act, thereafter gives retrospective effect, however, in a limited manner inasmuch as it applies to writ petitions and interlocutory orders of stay, which have been pending on the appointed day. From the language of Article 226 (3) it is apparent that the words "any other remedy for such redress" are significant in disclosing the intention of the Parliament that the fetter will apply only to such cases where the other remedy is capable of giving such redress as specified in sub-clauses (b) and (c) of the Article 226 (1). It would be, therefore, always necessary for the Courts to examine the facts and circumstances of each case. The redress sought and the scope of the other remedy provided under any other law for the time being in force and consequently the applicability of the fetter imposed by section 58 and Article 226 (3) will always depend on the facts and circumstances of each case. It will not be possible under these circumstances to lay any hard and fast rule in this respect. [Para 10
The position which emerges is that if there is any other remedy provided for seeking the redress as contemplated by sub-clauses (b) and (c) of Article 226 (1), the fetter of clause (3) will apply and by operation of section 58 of the Amendment Act, the petitions pending on the appointed day for such redress will abate as hit by the same. Earlier, the practice, that the High Courts entertained the writ petitions in suitable cases irrespective of the fact that there was an alternative remedy and the petitioner had not exhausted the same, cannot now be continued because the self-imposed restraint for not ordinarily entertaining such petitions by invoking the writ jurisdiction has now been made statutory restraint. [Para 11
Where the petition did not fall in clause (a) of Article 226 (1), but was for specified purposes of sub-clauses (b) and (c) only, and remedies both of appeal and revision were available, and there was no inherent lack of jurisdiction in the Tribunal whose order was challenged, and remedies of appeal and revision are wide enough to give redress as sought in the writ petition the petition abates under section 58 of the Amendment Act. AIR 1977 Guj. 113 discussed. [Paras 13 and 15
(2) Constitution (42nd Amendment) Act, 1976 - S. 58 (2) - limitation for availing alternative remedy - what period of time may be excluded.
For the purposes of giving the benefit of exclusion of time in computing the period of limitation, the period during which the proceedings relating to such petition (i.e. the petition which has abated) remained pending in the High Court, shall be excluded.
The proceedings, will be deemed to be pending, till the matter of abatement is decided by the High Court, 1977 Mah. LJ 587 relied on.
(3) Motor Vehicles Act; 1939 - Ss. 57 (8), 64 & 64-A - order passed under section 57 (8) - appeal lies under section 64 - revision also lies under section 64-A. [Para 13
( 1 ) THIS petition under Article 226 of the Constitution of India was filed in october, 1976 and was admitted for final hearing by a Division Bench on 2-111976.
( 2 ) BY this petition, the petitioner-Madhya Pradesh State Road Transport corporation claims writ quashing the order made by the Regional Transport authority, Jabalpur granting extension of route under the stage carriage permit held by respondent No. 2, The application for grant of extension was duly published and the petitioner filed an objection to the grant of extension on the ground inter alia that the proposed extension on Mandla-Jabalpur route forms part of the exclusive route as specified under scheme No. 8, the approved scheme for nationalisation and as such the grant of extension was in violation of the aforesaid approved scheme under Chapter IV-A of the Motor Vehicles act, 1939. However, according to the Regional Transport Authority, the provisions of the scheme, as construed, did not make the route in question an exclusive route and therefore, the extension sought for was granted subject to the condition that respondent No. 2 shall not pick up or set down passengers between certain portions of the route, namely, Jabalpur-Barela and Phoolsagar-Mandla. The petitioner, being aggrieved by the said order instead of preferring an appeal or availing the remedy of revision provided under the Act, approached this Court to invoke the jurisdiction under Article 226 of the constitution of India. The grounds relied for challenging the order impugned are that according to the provisions of the scheme, the route in question was a route of exclusive operation and, therefore, the Regional Transport Authority had no jurisdiction to grant any extension in respect of the said route which actually amounted to grant of a fresh permit which was otherwise not possible. It was argued that the construction put by the Regional Transport Authority on the clauses of the scheme in question was wrong and the prohibition contained in the scheme also covered the case of grant of extension.
( 3 ) DURING the pendency of this petition, the Constitution (42nd Amendment)Act, 1976 (hereinafter referred to as 'the Amendment Act') came into force on 1-2-1977. On July 14, 1977, respondent No. 2 made an application to declare this petition to have already abated on 1-2-1977 by the operation of the provisions of Section 58 (2) of the Amendment Act. This application was registered as Interlocutory Application No. 2090 of 1977 and was placed before the Division Bench on 18-7-1977. Shri Dabir, learned counsel for the petitioner, while opposing the said application, contended that he was going to move an application for amendment of the petition challenging the vires of the amendment Act itself and the question whether a case was made out for making a reference under Article 131-A of the Constitution of India will have to be examined. At this statement, the Division Bench did not treat the petition as abated and directed that the question, whether a reference under Article 131-A of the Constitution of India can be made or not, will be considered at the time of final hearing.
( 4 ) AFTER the aforesaid interlocutory orders, the petitioner moved an application seeking leave to amend the petition for incorporating certain grounds relating to the challenge to the constitutionality of the Amendment Act. This application for amendment of the petition was registered as Interlocutory Application No. 2143 of 1977 and was laid before the Division Bench on 26-7-1977. Since the question of allowing the application for amendment was inter-linked with the question of abatement of the petition in pursuance of the provisions of Section 58 (2) of the Amendment Act the parties were again heard on the question of abatement of the petition also. Looking to the importance of the point involved, the Division Bench thought it proper to refer the case to a larger Bench and accordingly this case has been placed before
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