JOHN Vs. STATE

JUDGEMENT

(1.) THE ground urged in the petition is that the government had no jurisdiction to review the order passed by it dismissing the appeal of the second respondent. It was, therefore, argued that the order granting the review and remitting the case is void and that the subsequent orders passed by the Regional Traffic Board, Kottayam, and the Central Road traffic Board are also void.

(2.) THE objection that the Government had no jurisdiction to review the order passed by it was raised for the first time in this petition. THE order granting the review was passed after notice to the petitioner. No objection was taken by him to the effect that Government had no jurisdiction to review the order passed by it. When the petitioner applied to reconsider the matter he did not contend that Government had no jurisdiction to grant the review. Subsequently he acquiesced in the order granting the review and remitting the case and took part in the proceedings before the Regional traffic Board, Kottayam, and the Central Road Traffic Board. Before those authorities also he did not contend that the order of Government granting the review and remitting the case was one passed without jurisdiction. In the circumstances, I do not think that the petitioner can put forward this as a ground for the issue of a writ of certiorari quashing the order passed by government on 12. 4. 1954 dismissing the appeal of the petitioner. A similar question came up for consideration before the Bombay High Court in G. M. T. Society v. Bombay State (AIR 1954 Bombay 202 ). Chagla, C. J. , observed thus in that case: "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 coming to us in order to exercise our jurisdiction under the Constitution. 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 that the High Court has been asked to exercise a special jurisdiction, not an ordinary jurisdiction, and the High Court is entitled to know what the tribunal has to say on the question of jurisdiction which the petitioner wants to agitate before the Court. THEre is another principle underlying this view and that is that the tribunal which is brought before the Court should itself be given an opportunity to decide that it has no jurisdiction, before the High Court is called upon to give its decision. It must be borne in mind that in exercising its jurisdiction under Art. 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. A suit may well be filed within the period of limitation; the judge trying the suit goes not non-suit the plaintiff because he came to Court towards the end of the period of limitation; but this Court tells the petitioner "you must come to this Court expeditiously". 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. Now, this principle was very clearly and very emphatically laid down in 'rex v. Williams; Philips, Ex parte', (1914) 1 KB 608 (A ). THEre a person was disqualified from acting as a justice of the Peace if he was concerned in the business of a baker. A baker who was alleged to have committed an offence under the Bread Act was put up before a Bench of two justices of the Peace and one justice of the Peace was alleged to be disqualified from action as a justice of the Peace because he was concerned in the business of a baker, and the accused baker wanted to raise the question of the incapacity of one of the justices of the Peace before the High Court by a petition, and the High Court refused to give him relief holding that as he had not taken the point before the Bench of the Justices of the Peace he had disentitled himself from obtaining any relief. Channell, J. points out (p. 614); '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 do 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 debite justitiae' to a persons who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them'. THErefore, this is a clear answer to the argument advanced by Mr. Gamadia that the fact that the petitioners did not challenge the jurisdiction of the Government did not consent of waiver confer jurisdiction upon the Government. As we have already pointed out, the question is not that if the Government's decision was without jurisdiction it became a competent decision merely because the petitioners did not object to the jurisdiction. But the question is whether the petitioners not having challenged the jurisdiction of the Government, this Court will give them relief by exercising its very special and discretionary jurisdiction. Rowlatt, J. in a very short judgment emphasises the fact that the rule that the Courts in england have adopted is a very salutary rule. This is what he says (p. 615 ). "it is a very salutary rule that a party aggrieved must either show that he has taken his objection at the hearing below or state of his affidavit that he had no knowledge of the facts which would enable him to do so". We see no reason why in this particular case we should not give effect to his salutary rule" THEse observations aptly apply to the facts of this case. I do not think that the order passed by Government on 12. 4. 1954 dismissing the appeal of the petitioner is liable to be quashed on the ground that the order dated 3. 10. 1952 reviewing the prior order passed by the Government was one passed without jurisdiction.