1959 (3) TMI 80 - HC - Indian Laws

Summary

Issues Involved:

1. Validity of the Regional Transport Authority's (RTA) constitution at the time of granting the stage carriage permit.
2. Effect of the subsequent government notification on the expired term of the RTA.
3. Application of the "de facto authority" principle.
4. Petitioner's ability to challenge the RTA's decision despite being a rival applicant.
5. Appropriateness of certiorari when proceedings are void.
6. Impact of pending appeal on the petition under Article 226.

Detailed Analysis:

1. Validity of the RTA's Constitution:
The primary issue was whether the RTA had the legal authority to grant a stage carriage permit on 13-11-1958, given that the term of its members had expired. The court found that the RTA was not properly constituted at the time of the order, as the term of the members had expired, rendering them functus officio. The argument that two separate notifications-one constituting the RTA without a time limit and another appointing members for a year-avoided an impasse was rejected. The court emphasized that Section 44 of the Act requires a composite notification constituting the Authority with its personnel.

2. Effect of Subsequent Government Notification:
The respondents argued that a subsequent government notification dated 23-12-1958 cured any defect by extending the RTA's term retrospectively. However, the court held that the notification was merely an executive order and lacked the legislative power to operate retrospectively. The court cited precedents such as M. L. Bagga v. Murhar Rao and Modi Food Products Ltd. v. Commr. Sales Tax, U. P., which establish that retrospective operation requires express legislative authority.

3. Application of "De Facto Authority" Principle:
The court examined whether the acts of the RTA could be validated under the "de facto authority" principle, which protects acts of officers de facto to maintain order and regularity. However, the court expressed doubt about applying this principle to statutory authorities with limited powers. The court concluded that the principle did not apply here, as the proceedings under Article 226 directly questioned the validity of the RTA's order, rather than collaterally.

4. Petitioner's Ability to Challenge the RTA's Decision:
The respondents contended that the petitioner, being a rival applicant, was precluded from challenging the RTA's decision. However, the court accepted the petitioner's claim of ignorance regarding the RTA's expired term, allowing the challenge. The court cited the principle from Rex v. Williams, which permits raising jurisdictional objections if the applicant was unaware of the relevant facts during the original proceedings.

5. Appropriateness of Certiorari When Proceedings Are Void:
The court addressed whether certiorari was appropriate given that the RTA's order was void. It noted that certiorari is not granted if the proceedings are entirely void and cannot be resumed. However, since a new RTA had been constituted, the court found that certiorari was appropriate, allowing for a fresh decision by the properly constituted authority.

6. Impact of Pending Appeal on the Petition Under Article 226:
The court clarified that the existence of an alternative remedy, such as a pending appeal, does not bar the High Court from exercising its jurisdiction under Article 226. The court emphasized that the appeal must be against a valid order, which the present order was not due to lack of jurisdiction.

Conclusion:
The court concluded that the permit granted by the RTA was invalid due to the lack of authority at the time of the decision. The original petition was allowed, invalidating the permit granted to the third respondent, but no order was made regarding costs.