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TMI Blog1959 (3) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... od of one year which the Government Notification of 23rd August 1957 had fixed as the term of appointment of the five members constituting the Authority, had expired. There was also a ground taken that an extraneous consideration had been imported by the Authority in their preference of the 3rd respondent, viz., he enjoyed more public confidence than the others but this has no importance in view to the predominant consideration as to largest experience in Ghat routes relied on by the Authority in support of the grant to the 3rd respondent. 2. The respondents 1 and 2 on the one hand and the 3rd respondent on the other have opposed the petition on basis of various pleas, (i) That the mere fact that the term of the members of the Ft. T. A. had expired at date of Ext. P1 order was by itself no defect, (ii) that assuming there was a defect, it was cured by Ext. Rl subsequent Government notification dated 23-12-1958. whereby the Government ordered the continuance of the R.T.A. here among others, as On 1-8-1958 from the date of the expiry of their term till their successors are appointed. (iii) that the RTA. having functioned de facto in passing the order concerned, that order was beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislation retrospective operation unless and until that power is expressly conferred by the parent enactment. Similarly in Modi Food Products Ltd. v. Commr. Sales Tax, U. P., AIR 1956 All 35, 39 the learned Judges held: A legislature can certainly give retrospective effect to pieces of legislation passed by it but an executive Government exercising subordinate and delegated powers cannot make legislation retrospective in effect unless that power is expressly conferred. The difficulty must certainly be greater where as here it is a mere executive power that is exercised. Reference in this connection may be made to Strawboard Mfg. Co. Ltd. v. G. Mill Workers' Union, AIR 1953 SC 95, where the question was as to the validity of an order of the Government extending the time for the passing of an award after it had been actually passed. Said the learned Judges: The State Government has not the power to extend the time for making an award 'ex post facto' i.e. after the time limit originally fixed therefore has expired. In this case, the members of the RTA. have already acted without authority when the Government sought to intervene with their second Notification. The second No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a of want of jurisdiction can normally be raised at any stage unless there is a bar of res judicata or equitable estoppel. For, if a court or authority by virtue of its defective constitution has not the jurisdiction to decide, its judgment or order is a nullity, the whole proceeding is coram non judice and void. Such an order may be shown to be a nullity in any proceeding where reliance is placed on it although no formal or direct proceeding has been taken to have it vacated or reversed. So it was observed by a Full Bench of Allahabad High Court in Queen Empress v. Gangaram ILR All 136 that if Mr. Justice Burkitt of that court was not legally appointed all his judgments, decrees and orders in civil and in criminal cases have been ultra vires and illegal and in some cases the mischief would be how irreparable, as for instance in capital cases. In other cases it might be possible for Parliament to pass an Act making valid what Mr. Justice Burkitt has done whilst acting as a Judge of this Court and the Privy Council in Balwant Singh v. Rani Kishori ILR All 267 seriously considered the validity of the appointment of Burkitt, J. and upheld it when the question of voidness of a decree o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in most of the cases is that contained in Rex v. Willams. (1914) 1 KB 608 Channel J., observed at p. 613 as follows: No objection was taken to the jurisdiction of the court below at the hearing before that Court; that being so, it is the rule of this court not to grant a writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the court below of the facts on which he bases his objection. That rule is established on good grounds. It applies equally whether the objection is on grounds which make the act of the Justices voidable or void. Lower down at page 614 he continued: In my view the writ is discretionary. A party may by his conduct preclude himself from claiming the writ ex debito justitiae no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations dp not affect the principles on which the court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the mere fact the petitioners themselves applied along with others for the grant of a license to them which was considered and refused by the Licensing Board is no bar to the petitioners coming to the High Court under Art, 226 of the Constitution and challenging the constitution of the Board itself. We have also got the decision in Dholpur Co-op, T. and M. Union Ltd. v. Appellate Authority, (Transport) Rajasthan, AIR 1953 Raj 193. It is true that if a party does not raise any objection to the jurisdiction of a court or tribunal which depends upon the allegations and proof of certain facts, that party will not be allowed to raise objection about jurisdiction in an application under Article 226. Where, however, the lack of jurisdiction is patent, the mere fact that no objection was taken before the statutory authority would not disable the applicant from raising such question in an application under Article 226. The High Court is bound to issue a prohibition in the case of total absence of jurisdiction on the face of the proceeding, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior court. In this case the R. T. A. was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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