JUDGMENT
Sunil Kumar Garg, J.
1. This writ petition under Article 226 and 227 of the Constitution of India has been filed by the petitioner against the respondents on 17.3.2004 with the prayer that by appropriate writ, order or direction, the Resolution dated 5.3.2004 (Annex. 7) passed by the respondent No. 2 Regional Transport Authority, Sikar by which two stage carriage permits on the inter-state route Rajgarh-Hissar Via Jhumpa were granted one in favour of respondent No. 3 Bharat Singh on the ground of being Ex-service man and the other in favour of the respondent No. 4 Subesingh on the ground of being a member of Scheduled Caste category, be quashed and set aside.
2. The case of the petitioner as put forward by him in this writ petition is as follows:-
In supersession of earlier agreement, the State of Rajasthan and State of Haryana entered into a new inter-state reciprocal transport agreement on 9.7.1997, which was published in the Rajasthan Gazette through Notification dated 15.7.1997, a copy of which is marked as Annex. 1.
The further case of the petitioner is that this Court issued some directions in D.B. Civil Special Appeal No. 1068/1998 and in pursuance of the directions issued by this Court, the respondent No. 2 Regional Transport Authority, Sikar notified the vacancies for grant of two non-temporary stage carriage permits to operate four single trips on the inter-state route Rajgarh-Hissar via Jhumpa vide Notification dated 5th August, 2003, which was published in Rajasthan Gazette on 13th August, 2003 and a copy of the said Notification is marked as Annex.2.
The further case of the petitioner is that in pursuance of the Notification Annex.2 dated 5.8.2003, the petitioner also applied for grant of permit on the route in question in the prescribed proforma on 14th August, 2003 and a copy of the application is marked as Annex.3.
The further case of the petitioner is that other persons including respondents No. 3 and 4 also applied for grant of permit on the route in question and as per circulation note Annex.4, the name of the petitioner appeared at serial No. 34, while the names of the respondents Nos. 3 and 4 appeared at serial Nos. 40 and 41 respectively.
The further case of the petitioner is that a meeting was held on 10.2.2004 for consideration of the application for grant of permits on the route in question and the respondent No. 2 Regional Transport Authority, Sikar pronounced the decision vide Resolution dated 5.3.2004 (Annex.7) whereby the respondent No. 2 RTA granted two permits on the interstate route Rajgarh Hissar Via Jhumpa one in favour of the respondent No. 3 Bharat Singh on the ground of being Ex-service man and the other in favour of the respondent No. 4 Subesingh on the ground of being member of the Scheduled Caste category.
Aggrieved from the said Resolution Annex.7 dated 5.3.2004 passed by the respondent No. 2 RTA granting permits on the route in question in favour of the respondents No. 3 and 4, the petitioner has preferred this writ petition.
In this writ petition, the petitioner has challenged the impugned Resolution Annex.7 on various grounds and the mains grounds are as follows:-
(i) That in the motor Vehicles Act, 1988 (hereinafter referred to as “the Act of 1988”) and in the agreement Annex. 1, there is no provision for reservation of permits in favour of Ex- serviceman and also in favour of the persons belonging to scheduled caste or Scheduled Tribe category nor there is any provision to give preference to them while granting permits and therefore, granting of permits on the route in question in favour of the respondent No. 3 Bharat Singh being Ex-service man and respondent No. 4 Subesingh being member of scheduled caste category is per se illegal and without jurisdiction and thus, impugned Resolution Annex.7 cannot be sustained and liable to be quashed and set aside.
(ii) That procedure of Regional Transport Authority in considering the application for stage carriage permit has been laid down in Section 71 of the Act of 1988 and the provisions of Section 71 of the Act of 1988 are only meant for stage carriage permit for city routes and not for inter-state route. Furthermore, no doubt in Section 71(3)(b) and 71(3)(d)(iii) of the Act of 1988 reservation has been provided in favour of the members of the Scheduled Castes and Scheduled Tribes category and also in favour of Ex-serviceman respectively, but since the provisions of Section 71 of the Act of 1988 are applicable for grant of stage carriage permit for city routes and not for inter- state route and in the present case, the stage carriage permits were to be granted for inter-state route in question, therefore, provisions of Section 71 of the Act of 1988 are not applicable to the present case. Hence, granting of permits in favour of the respondents No. 3 and 4 on the grounds of being Ex-serviceman and members of the Scheduled Caste category respectively through impugned Resolution Annex.7 is wholly arbitrary, illegal and without jurisdiction.
A reply to the writ petition was filed by the respondent No. 4 and two preliminary objections about the maintainability of the writ petition have been taken in the following manner:-
(i) That the petitioner had disclosed that he is resident of Bhangarh Teshil Bhadra District Hanumangarh and as per the provisions of Section 69 of the Act of 1988, he was not competent to apply for the route in question because he was not resident of Sikar District.
(ii) That in para 15 of the writ petition, the petitioner has stated that he was filing writ petition because he had no other equally efficacious alternative remedy, but, this part of his statement is wrong because the impugned Resolution/order Annex.7 is applicable under the provisions of Section 89 of the Act of 1988 and appeal lies before the State Transport Appellate Tribunal. From this point of view also, since statutory alternative remedy of appeal is available to the petitioner and the same has not been available by the petitioner, therefore, this writ petition is not maintainable and deserves to be dismissed on this ground alone.
Apart from the above, it has been further submitted by the respondent No. 4 that the provisions of Section 71 of the Act of 1988 are also applicable for grant of stage carriage permits for inter-state route.
A similar reply was also filed by the respondent No. 3.
3. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the materials available on record.
4. There is no dispute on the point that in pursuance of the Notification Annex.2, dated 5.8.2003, the petitioner and the respondents No. 3 and 4 applied for grant of permits on the interstate route Rajgarh Hissar via Jhumpa.
5. There is also no dispute on the point that through impugned Resolution annex.7 dated 5.3.2004, the respondent No. 2 RTA, Sikar granted two permits on the route in question, one in favour of the respondent No. 3 Bharat Singh on the ground of being Ex- serviceman and the other in favour of the respondent No. 4 Subesingh being member of the Scheduled Caste category.
6. In the impugned Resolution Annex.7 dated 5.3.2004, the respondent No. 2 RTA has observed that it has considered the applications of the applicants from serial Nos. 34 to 48 and since the applicant Bharat Singh (respondent No. 3), whose name is found at serial No. 40, was an Ex-service man and the applicant subesingh (respondent No. 4), whose name is found at serial No. 41, was member of the scheduled Caste category, therefore, they are entitled for permits on priority basis and accordingly, they were granted permits on priority basis and the applications of other applicants including that of the petitioner were rejected.
7. Thus, there is not dispute on the point that the respondents No. 3 and 4 were granted permits on priority basis on the ground of being Ex-service man and member of the Scheduled Caste category respectively.
8. Now, first the preliminary objection of the respondent No. 4 that this writ petition is not maintainable on the ground of availability of statutory alternative remedy under Section 89 of the Act of 1988 is to be discussed here.
On alternative remedy
9. There is no dispute on the point that as per section 89 of the Act of 1988, if many person is aggrieved by the refusal of the State or a Regional Transport authority to grant a permit, he may file an appeal to the State Transport Appellate Tribunal.
10. Thus, thee is no dispute on the point that the petitioner has an alternative statutory remedy available to him under the provisions of Section 89 of the Act of 1988.
11. On this point, it has been submitted by the learned counsel for the petitioner hat the petitioner has not availed that remedy of appeal under Section 89 of the Act of 1988 because the respondent No. 2 Regional Transport Authority had acted absolutely without jurisdiction in granting permits in favour of the respondents No. 3 and 4 on the grounds of being ex-service man and member of the Scheduled Caste category respectively, as nowhere in the Act of 1988 or rules framed therein or agreement Annex. 1, such type of reservation is permissible.
12. The remedy under Article 226 of the Constitution of India being, in general, discretionary, the High Court may refuse to grant it where there exists an alternative remedy, equally efficient and adequate. Whether the alternative remedy is equally efficacious or adequate is a question of fact to be decided in each case, the onus being on the applicant to show that it is not adequate.
13. Article 226 of the Constitution of India is not intended to circumvent statutory procedures. Thus, where statutory remedies are available or a statutory tribunal has been set up, a petition under Article 226 of the Constitution of India should not be entertained, unless the statutory remedies are ill-suited to meet the demands of an extraordinary situation.
14. It may be stated here that the existence of an alternative remedy is no ground for refusing prohibition or certiorari in the following five exigencies where:-
(i) the absence or excess of jurisdiction is patent and the application is made by the party aggrieved, or
(ii) there is an error apparent on the face of the record,
(iii) there has been a violation of the rules of natural justice,
(iv) there has been a contravention of fundamental rights,
(v) the tribunal acted under a provision of law which is ultra vires.
15. In my considered opinion, where a right or liability is created by a statute which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular remedy before seeking the discretionary remedy under Article 226 of the Constitution of India and the High Court, in exercise of its discretion under Article 226, may decline to interfere until all the statutory remedies are exhausted.
16. In the present case, as already stated above, an alternative statutory remedy by way of appeal under Section 89 of the Act of 1988 before the State Transport Appellate Tribunal is available to the petitioner and when an alternative statutory, efficacious, efficient and adequate remedy is available to the petitioner, he should have first availed of the statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution of India and there is nothing to prevent him from pursuing it.
17. Apart from this, none of the five exigencies, as stated above, where existence of an alternative remedy is no ground for refusing prohibition or certiorari exists in the present case.
18. Furthermore, the questions whether the provisions of Section 71 of the Act of 1988 are applicable for grant of stage carriage permits for city routes and not for inter-state routes and whether the provisions of Section 71 of the Act of 1988 are applicable for grant of stage carriage permits on inter-state route on priority basis in favour of the Ex-service man or members of the scheduled castes and scheduled tribes category or not, are all such type of mixed questions of law and fact, upon which this Court would not like to straightway give and express its opinion or substitute its own decision unless there is a fair exercise by the statutory authority i.e. State Transport Appellate Tribunal, which is a statutory Tribunal sitting in appeal over the orders of the Regional Transport Authority.
19. So far as the reservation for grant of permits in favour of members of scheduled castes and scheduled tribes is concerned, it may be stated here that the same is found in the Old Motor Vehicles Act, 1939 and the same is also found in Section 71 of the Act of 1988, but the question is whether it is applicable to the present case or not is a mixed question of law and facts and therefore, that should also be left to be first decided by the State Transport Appellate Tribunal.
20. So far as the functioning of the respondent No. 2 Regional Transport Authority is concerned, it may be stated here that its functioning is quasi-judicial and it has to consider the application for grant of permit in accordance with the provisions of the Act of 1988 and rules framed under it. The Transport authorities are not the civil courts and are not, therefore, inhabited by the Rules of evidence of technicalities of procedure in regular civil courts. Thus, the order passed by them are quasi judicial orders.
21. The criteria for grant of permit by the Regional Transport Authority has been mentioned in Section 71 of the Act of 1988 and it is within the discretion of the RTA to grant or to refuse a permit, but that discretion of the RTA is not unfettered and is to be exercised in accordance with the spirit of the Act of 1988 and it must act in fair and just manner. Mere wrong exercise of discretion does not furnish a sufficient ground for exercise of writ jurisdiction by the High Court under Article 226 of the Constitution of India.
22. Apart from this, the power of selection of person for grant of permit under the Act of 1988 rests with the transport authorities and the High Court will not interfere unless the decision is based on extraneous, irrelevant or invalid considerations.
23. Since there is an alternative statutory remedy available to the petitioner by way of appeal under section 89 of the Act of 1988 before the State Transport Appellate Tribunal, which is a statutory Tribunal sitting in appeal over the orders of the RAT and this court is not a Court of appeal and without availing the statutory remedy of appeal before the Tribunal, the petitioner has directly approached this Court, therefore, in these circumstances, this Court under Article 226 and 227 of the Constitution of India would not examine the case of the petitioner on merit or correctness or legality or propriety of the impugned Resolution/order Annex.7 dated 5.3.2004 passed by the Regional Transport Authority (Respondent No. 2), especially when the Resolution/Order Annex.7 is appealable before the statutory Tribunal and all the objections, which have been raised by the petitioner in this writ petition should be first properly assessed by the State Transport Appellate Tribunal.
24. So far as the argument raised by the learned counsel for the petitioner that the impugned Resolution/order dated 5.3.2004 (Annex.7) passed by the respondent No. 2 Regional Transport Authority granting permits in favour of the respondents No. 3 and 4 of the grounds of Ex-service man and member of the scheduled Caste category respectively is absolutely Scheduled Caste category respectively is absolutely without jurisdiction, is concerned, the same cannot be appreciated. As already stated above, the Regional Transport Authority being a quasi judicial authority has power to grant permits and therefore, it cannot be said that it had no jurisdiction to grant permits and whether its decision/order Annex.7 dated 5.3.2004 granting permits in favour of the respondents Nos. 3 and 4 on the grounds of Ex-service man and member of the Scheduled Caste category respectively is correct or not, since it is appealable, therefore, its correctness, legality and propriety should be first examined by the State Transport Appellate Tribunal, which is sitting in appeal over the orders of the RTA. In this respect, it is made clear that if the statutory authority has jurisdiction to decide a particular question and if the same is decided by the statutory authority, in such a situation, if the order is even wrong one, it cannot be said that the statutory authority had no jurisdiction and propriety and legality of that wrong decision can be adjudged by the appropriate forum. The question of jurisdiction gets importance only when statutory authority passes an order for which it had no jurisdiction, but if it passes wrong order, it does not mean that it lacks jurisdiction. From this point of view also, it cannot be said that the impugned Resolution/order Annex.7 passed by the Regional Transport Authority (respondent No. 2) is without jurisdiction.
25. Thus, this Court is of the opinion that the present writ petition under Articles 226 and 227 of the Constitution of India should not be entertained straightway for judging the correctness, legality and propriety of the impugned Resolution/order dated 5.3.2004 passed by the respondent No. 2 Regional Transport Authority by which two permits, one in favour of the respondent 3 Bharat Singh on ground of being Ex-service man and the other in favour of the respondent No. 4 Subesingh on the ground of being member of the Scheduled Caste were granted, until all avenues of appeal under Section 89 of the Act of 1988 before the State Transport Appellate Tribunal are availed by the petitioner.
26. Similarly, so far as the second objection of the learned counsel for the respondent No. 4 that the petitioner was not authorized to apply for permit on the route in question as he was not resident of Sikar District is concerned, the same is also left open to be first considered by the Tribunal.
27. So far as the authorities, which have been cited by the learned counsel appearing for the parties, are concerned, they are not being considered and discussed here as if they are discussed and findings are given by this Court, it would certainly prejudice the Tribunal when the matter would be examined by it. Hence, the Authorities cited by the learned counsel for the parties are not being discussed here.
28. For the reasons stated above, it is held that this writ petition is not maintainable on the ground of availability of alternative statutory remedy of appeal under Section 89 of the Act of 1988 before the State Transport Appellate Tribunal and the same deserves to be dismissed.
Accordingly, this writ petition filed by the petitioner is dismissed as being not maintainable. No order as to costs.