( 1 ) IN all these five petitions, the petitioner is the same. He has made five applications for grant of five stage carriage permits on the five routes. ( 2 ) TWO applications were filed on 16-5-1957 for grant of two stage carriage permits on the two inter-State routes i. e. Anchetty to Bangalore and Bangalore to gumlapura. These two applications were published under Sec. 57 of The Motor vehicles Act, 1939 (hereinafter referred to as the 'act' ) ; the objections were also filed by the Karnataka Road Transport corporation (for short KSRTC) and anna Transport Corporation of Tamilnadu (for short Anna Corporation) and other objectors. These two applications were considered by the Karnataka State Transport Authority (for short KSTA) in subject nos. 256 and 257 of 1977, on 3/4-10-1977. The KSTA has rejected these two applications on the preliminary ground as per the reasons stated therein. Against this resolution, the petitioner filed Appeals 952 and 953 of 1977 before the Karnataka state Transport Appellate Tribunal (for short KSTAT ). The KSTAT has also rejected the appeals on 20th February, 1979 not on merits but on the ground that the routes applied for overlap the routes included in the draft scheme of the Anna corporation published on 9-11-1977 and as such having regard to the provisions contained in Section 68f (1d) of the Act no permit can be granted on the inter- state routes applied for by the petitioner. Writ petitions 3489 and 3490 of 1979 are filed against the aforesaid order of the kstat. ( 3 ) DURING the pendency of the aforesaid petitions, on 2-7-1979, the petitioners made three applications before the ksta for grant of stage carriage permits on three routes, viz. , (i) Bangalore to thali (ii) Bangalore to Berike and (iii) bangalore to Bagalur. These applications were published in accordance with Section 57 of the Act. The KSRTC, Anna corporation and other objectors filed their objections These three applications were considered by the KSTA in subject Nos. 178, 179 and 180 of 1981. , (i) Bangalore to thali (ii) Bangalore to Berike and (iii) bangalore to Bagalur. These applications were published in accordance with Section 57 of the Act. The KSRTC, Anna corporation and other objectors filed their objections These three applications were considered by the KSTA in subject Nos. 178, 179 and 180 of 1981. By the resolution dated 26/28-11-1981, the KSTA has rejected the applications on the prelimi- nary objection raised by the objectors that having regard to the fact that the routes applied for by the petitioner overlap the routes included in the draft scheme of anna Corporation, therefore the same cannot be granted having regard to the bar contained in Section 68f (1d) of the Act. Writ petitions 3496 to 3498 of 1982 are filed challenging the aforesaid resolutions. ( 4 ) IN all these writ petitions, interstate routes are involved and they raise common questions of law and facts. All these five writ petitions came to be referred to a Division Bench having regard to the questions of law raised in these petitions. They came to bs posted before a Division Bench consisting of bhimiah, C. J. , and one of us Ramakrishna, J. Their Lordships pronounced differing judgments on 31-3-1983. Learned Chief Justice allowed the petitions, whereas, Ramakrishna, J. dismissed the writ petitions. In view of the onflicting opinions expressed by each one of them, the writ petitions could not be disposed of. On the same day, i. e. , 31st march, 1983, learned Chief Justice also made an order referring these petitions to a third Judge ; whereas, Ramakrishna, J. passed a separate order expressing a view that the matter must go before a Full Bench. In this situation, the petitions could not be posted either before a Full Bench or before a third Judge. The petitioner approached the Supreme Court in Special Leave to Appeal (Civil) Nos. 9517 to 9421 of 1983 against the order passed on 31st March, 1983. In this situation, the petitions could not be posted either before a Full Bench or before a third Judge. The petitioner approached the Supreme Court in Special Leave to Appeal (Civil) Nos. 9517 to 9421 of 1983 against the order passed on 31st March, 1983. The Supreme court has passed the following order on 8-8-1983 :"in view of the fact that two learned judges of the High Court have differed in their conclusions, it is necessary that the matter should be referred to a third judge under the proviso to Section 98 (2) of the C. P. C, We are informed that civil Procedure Code is made applicable to cases arising out of the writ jurisdiction under the Rules framed by karnataka High Court. We accordingly direct that the Writ Petitions be referred to a third Judge for decision. Special leave petitions are disposed of accordingly. " ( 5 ) PURSUANT to the aforesaid order, the matter was not posted before the very division Bench, consisting of Bhimiah, c. J. , and Ramakrishna, J. , who had heard the writ petitions on the earlier occasion even though the very learned judges were available. The petitions were also not posted before any other division - Bench and no order referring the point or points of law upon which the learned Judges composing the Division bench differed was passed. However, the petitions came to be posted before the third Judge on the questions of law raised and referred to the third Judge for decision under the proviso to sub-section (2) of Sec. 98 of the Code of Civil procedure, by Bhimiah, C. J. , in his second order dated 31-3-1983. The said questions of law are as follows :" (1) Whether Anna Transport Scheme relied upon by the respondents in the present cases is one of total exclusion and excludes the parties on the operation of the routes. (2) Whether the decision of the supreme Court in M/s. Anna Transport corporation Limited v. Regional Transport Authority, Dharmapuri and Others (AIR 1980 S. C. 2044) governs the facts of this case or (3) Whether the facts and circumstances are governed by the decision of the Madras High Court in K. C. Maran and Anr. v. M. Jayaramaiah and Anr. ( AIR 1982 Mad. 335 ). v. M. Jayaramaiah and Anr. ( AIR 1982 Mad. 335 ). " ( 6 ) BEFORE us, it is submitted at the bar that before the learned third Judge, none of the parties raised an objection about there being no order of reference made by the Division Bench in terms of the proviso to sub-section (2) of Sec. 98 of the Code of Civil Procedure; therefore, the learned third Judge had no jurisdiction to record the opinion on the aforesaid questions of law. On the contrary, it is submited that both the sides had argued before the learned third Judge and pursuaded him to record his opinion on the aforesaid questions of law including the one or which the learned Judges composing the Division Bench had differed. Accordingly, the learned third Judge KSPJ has treated the aforesaid three questions as having been referred to him and has recorded his opinion on those questions and also on the subsidiary questions arising therefrom and all other questions connected therewith. Learned third Judge has opined as follows :"76. Before furnishing my answeres to the points of law referred to me, it is useful to summarise my concl sions as also my concurrence with one or the other learned Judge that constituted the division Bench. To sum up these are my conclusions : (1) The nature and extent of exclusion provided either in an approved scheme or a draft scheme, must be ascertained with reference to the provisions found in that very scheme itself and not with reference to another scheme, the terms of which are not similar and are even different (2) Where an approved or a draft scheme provides that exclusion was only from terminus to terminus', then that exclusion would only be between the two terminals of the route specified in that scheme and grant of permits to private operators is excluded to that extent only and therefore grant of permits to private operators on intermediate sections of such a route is not prohibited. (3) When an approved or a draft scheme of another State for an inter- state route provides for grant of permits by other State under a future inter- state agreement, then it is open to the transport authorities of the other State to grant permits on such an inter State route, which however will be subject to counter signature by the other State in confirmity with an agreement for counter signature of permits. (4) An approved or a draft scheme for an inter-State route promulgated by one State, will be ineffective and inoperative for the portion of the route lying in the other State so long as there is no approval for such scheme by the central Government under the proviso to Section 68d (3) of the Act and till such time, grant of permits by the other state at least on the portion of such route lying in that State that had not published an approved or a draft scheme as is the case, is not prohibited under the Act. 77. On the differing views expressed by the learned Judges, my views are as follows : (i) With respect, I concur with the views expressed by the learned Chief justice on the nature and extent of exclusion of the draft scheme of Anna for the inter-State route 'harur-Bangalore and the inefficacy of that scheme in the State of Karnataka. But, with respect to the learned Chief Justice, I disagree with his directions to grant permits to the petitioner, which should have been left to be decided preferably by the STA. (ii) With respect, I dissent from the views expressed by Ramakrishna. J. 78. On the above discussion, my answers to the points of law referred in these cases are as follows: point of Law No. 1 No point of Law No. 2 No point of Law No. 3 Yes. " ( 7 ) THEREAFTER, the petitions again came to be posted before the very learned third Judge for disposal, but he was of the opinion that the petitions must go before the Division Bench consisting of very same Judges and if they were not available, another similar Division Bench. Accordingly, having regard to the fact that by the time the petitions were sent back by the learned third Judge, the learned Chief Justice had laid down his office; these petitions are posted before us. Accordingly, having regard to the fact that by the time the petitions were sent back by the learned third Judge, the learned Chief Justice had laid down his office; these petitions are posted before us. ( 8 ) WE have heard learned Counsel on both the sides on the questions raised in these petitions and also on the three points of law raised by Bhimiah, C. J and considered by the learned third Judge. 2. On only one point of law, the learned Judges composing the Division bench have differed. The opinion expressed by the learned third Judge on this point of law has to be accepted because it becomes an opinion of the majority. Whereas, the opinion expressed by the learned third Judge on the questions on which either there is no opinion or much less a different opinion expressed by one of the judges composing the Division bench, is not final and conclusive. This is clear from the provisions contained in sub-section (2) of Section 98 of the Code of Civil Procedure, which reads thus :" (2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall he confirmed : provided that where the Bench hearing the appeal, is composed of two or other even number of judges belonging to a Court consisting of more Judges than those constituting the Bench and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it. (Emphasis supplied) the words underlined above, would make it clear that a reference to the third judge is permissible only on a difference on a point of law. Accordingly, the third judge can adjudicate only the point of law upon which there is difference of opinion before the two judges. (Emphasis supplied) the words underlined above, would make it clear that a reference to the third judge is permissible only on a difference on a point of law. Accordingly, the third judge can adjudicate only the point of law upon which there is difference of opinion before the two judges. In other words, it is not open to the third Judge to adjudicate upon the point of law upon which there is no difference of opinion before the two judges unless the point is closely connected to, or arises out of, the point of law on which there is difference of opinion before the two judges and that point is referred to a third Judge. Thus, the reference to a third Judge is permissible only on a difference on a point of law. The opinion of the third Judge on such point of law is conclusive, as his opinion becomes the opinion of the majority. In the instant case, learned Judges composing the Division Bench, have differed on the nature and extent of exclusion of the private operators contemplated by anna Transport Scheme in question. The opinion of the learned third Judge on this point concurs with the opinion expressed by Bhimiah, C. J. , and thus it becomes an opinion of the majority. The opinion of the majority is that the Draft Anna transport Scheme provides for the exclusion only from terminus to terminus, and that exclusion is between only two terminals specified in the said scheme and grant of permits to private operators is excluded to that extent only therefore, grant of permits to the private operators on private operators on the inter-mediary sections of the routes included in Anna transport Scheme is not prohibited. This is the view expressed by Bhimiah, C. J. The learned third Judge also has agreed with it. Though one of us Ramakrishna, j. , constituting the Division Bench with bhimiah, C. J. , had expressed the contrary view, and composition of this Division bench is not the same ; but in law it is same or similar Division Bench, therefore, the opinion of the learned third Judge as stated above concludes this point. We accordingly answer the aforesaid point. We accordingly answer the aforesaid point. " ( 9 ) WE shall now proceed to deal with the other points urged before us :- point-A : Whether the draft scheme relating to any inter-State route published by any State transport Undertaking under sec. 68c of the Act, is operative in the other State ? ( 10 ) ON 9-11-1977, Anna Corporation has published a draft scheme which includes inter-State routes which traverse within the border of the State of Karnataka. It is also not in dispute that the said routes are inter-Stale routes. There is no prior approval of the Central government. The contention of the respondents including that of the Anna corporation is that, as the routes applied for by the petitioner overlap the routes included in the aforesaid draft-scheme of anna Corporation, permits cannot at all be granted having regard to the provisions contained in Sec. 68f (1d) of the Act. Whereas, it is the contention of the petitioner that the draft-scheme of the state Transport Undertaking in question or for that matter, a draft-scheme of any state Transport Under taking, is not operative in the other State inasmuch as it has no extra-teritorial operation. 2. On this point, learned third judge has opined that the draft-scheme in question is not operative in the State of Karnataka. There was no opinion expressed by my learned brother Ramakrishna, J. , wh constituted the Division bench with Bhimiah, C. J. Therefore, the opinion of the learned third Judge on this point is not conclusive ; hence, we consider this point afresh 3. A draft- scheme is published by a State Transport Undertaking under sec. 68c of the Act, containing the particulars mentioned in that section. Such a scheme is required to be published in the official Gazette and also in such other manner as the State Government may direct. It is also required to be published at least in one newspaper in regional language having the circulation in the area or route which is proposed to be covered by such scheme. Section 68d (1) of the act, enables persons, associations and authorities mentioned in clauses (i) to (iii) thereof, to file objections to the draft scheme before the State Government, whose transport-undertaking has published the draft scheme, within 30 days from the date of its publication. Section 68d (1) of the act, enables persons, associations and authorities mentioned in clauses (i) to (iii) thereof, to file objections to the draft scheme before the State Government, whose transport-undertaking has published the draft scheme, within 30 days from the date of its publication. Then the State government, after affording an opportunity of hearing in the matter to the objectors or their representatives and the representatives of the State Transport undertaking if they so desire and on considering the objections, may approve or modify the scheme. The draft scheme, as approved or modified by the State government, shall have to be published by it in the official Gazette, on such publication, it becomes final and it is then called the approved scheme' and the area or route or routes to which it relates are the called notified area or notified routes. As per the proviso to sub-section (3) Sec. 68d of the Act if the scheme, as approved or modified by the State Government, relates to any inter-State route, it shall be deemed to be an approved scheme only if it is published in the official Gazette with the previous approval of the Central Government. Thus, the scheme even after its approval by the State Government, after following the procedure laid down in sub-sections (1) and (2) of Section 68d of the Act, does not bedome an approved scheme if it relates to any inter-State route unless it is published in the official gazette with the previous approval of the central Government. The scheme, as published under Sec. 68c of the Act, if it relates to an area or, route or routes wholly lying within the State of the State transport Undertaking in order to become an approved scheme, the question of obtaining the previous approval of the central Government does not arise because it relates to only intra-State routes and not to inter-State route. It is only when the scheme relates to an inter-State route in order that it becomes operative in the other State through whose territory the inter-State route included in the scheme traverses, the publication of the said scheme in the official Gazette with the previous approval of the Central government, is necessary. It is only when the scheme relates to an inter-State route in order that it becomes operative in the other State through whose territory the inter-State route included in the scheme traverses, the publication of the said scheme in the official Gazette with the previous approval of the Central government, is necessary. The draft scheme in question - as published by anna Corporation-is not published with the previous approval of the Central government therefore, it cannot be held to be operative in the State of Karnataka, in so far it relates to inter-State routes traversing the territory of the State of karnataka, 4. The Supreme Court in K. Venkamma v. The Govt. of Andhra Pradesh and ors. reported in AIR 1977 S. C 1170, has laid down in unequivocal terms as follows: "8. We are inclined to the view that the route, passing, as it does, through part of Tamil Nadu, is inter- state What is the effect of this finding over the scheme of nationalisation? wholly invalidatory? or else, what ?. The proviso to Sec. 68-D (3) i. e. Central Government approval has not been complied with and so qua inter-State route the nationalisation does not become effective. Even so, two factors can together salvage this nationalisation scheme. 9. There can be no doubt that the scheme notified by one State will, even in the case of an inter-State route, operate to the extent it lies within that state. Its extra-territorial effect depends on securing of prior Central approval under the proviso to S. 68-D (3 ). It being absent, the permit granted in one state may still be valid in another State if the condition specified in the 2nd proviso to Sec. 63 (1) is fulfilled. We may as well extract S. 63 (1) to that extent relevant,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . We do not see any difficulty in applying this enunciation of law to the draft scheme relating to an inter-State route. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . We do not see any difficulty in applying this enunciation of law to the draft scheme relating to an inter-State route. When the draft scheme, as approved by the State Government relates to an inter- state route, does not become an approved scheme in so far it relates to an inter-State route and is not operative in the other state, unless it is published in the official gazette with the previous approval of the central Government; it will be illogical to think and hold that the draft scheme relating to an inter-State route published without the previous approval of the Central government is operative in the other State through which inter-State route included in the draft scheme traverses. If the contention of the respondents is accepted, it will result in not only placing the draft scheme on a higher plane than the approved scheme and further granting extra-territorial powers to the state Transport Undertaking as well as State Government, which do not possess. It would be opposed to sec. 68d of the Act, itself. 5. Chapter IV-A of the Act, which is the only Chapter in the Act, which deals with the schemes of the State transport Undertakings provides for extra-territorial operation of a scheme relating to an inter-State route if it is published with the previous approval of the central Government. Chapter IV-A does not provide for any such extra-territorial operation of the draft-scheme published under Sec. 68c of the Act, relating to any inter-State route. It is the draft-scheme published under Sec. 68c of the Act, which becomes an approved-scheme on approval with or without modification by the State Government and on publication of it as provided by sub-section (3) of sec. 68d of the Act Thus, there are two stages of a scheme propounded under chapter IV-A of the Act. The first stage which starts on the publication of the scheme under Sec. 68c of the Act is, for the sake of convenience, referred to as "draftscheme". The second and the final stage is reached when it becomes an approved scheme. But, these stages are the stages of the same scheme. The first stage which starts on the publication of the scheme under Sec. 68c of the Act is, for the sake of convenience, referred to as "draftscheme". The second and the final stage is reached when it becomes an approved scheme. But, these stages are the stages of the same scheme. When the Legislature dealing with the stages of a scheme envisaged under Chapter IV-A of the Act, provides for the extra territorial operation of the scheme if it relates to any interstate route, on its becoming an approved scheme published with the prior approval of the Central Government; whereas, no such provision is made when the scheme remains in the stage of a draft-scheme. It only means, that it was not in the contemplation of the legislature that a draft scheme relating to an inter-State route should have an extra-territorial operation. Interpretat on to the contra, would be opposed to the intendment of law Makers. Therefore, we are of the view that Chapter IV-A of the Act does not, and cannot at all be interpreted to, provide for extra territorial operation of a draft-scheme published under Sec. 68c of the Act, relating to any inter-State route. 6. This conclusion can also be reached from another angle. Under Chapter iv-A of the Act, the scheme as propounded is law. But the said law is made by the state Transport Undertaking with the approval of the State Government. A state Transport Undertaking is a creature of a statute. The State Government as well as the Slate Transport Undertaking do not enjoy power to make law to be operative beyond their area of operation in other words beyond the territory of the state. Thus, both work under the inherent limitation as to their power to make law to be operative beyond the territoryof the state. This limitation is removed in the case of an approved-scheme relating to any inter-State route if it published with the previous approval of the Central government. Whereas, in the case of a draft scheme published under Sec. 68c of the Act relating to inter-State route, such a limitation exists as there will not be the previous approval of the Central Government. Therefore, the draft-scheme pertaining to any inter-state route, does not operate in the other State. 7. Whereas, in the case of a draft scheme published under Sec. 68c of the Act relating to inter-State route, such a limitation exists as there will not be the previous approval of the Central Government. Therefore, the draft-scheme pertaining to any inter-state route, does not operate in the other State. 7. For the reasons stated above, point-A is answered as follows : A draft scheme relating to any inter-State route published by any State Transport Undertaking under Sec. 68c of the Act, without the prior approval of the Central Government, is not operative beyond the territory of the State to which the relevant State transport Undertaking belongs. POINT-B:- Whether it is just and necessary to allow the applications filed by the petitioner for grant of stage carriage permits and issue a direction to KSTA to issue permits to remit them for fresh consideration? ( 11 ) IT is contended on behalf of the petitioner that there is material on record which establishes the need ; that as it is several years have elapsed from the date of filing the applications and having regard to the facts and circumstances of the case it is just and necessary to allow the applications and issue a direction to the KSTA to issue permits. It is also further submitted that under Article 226 of the Constitution, it is open to High Court to exercise 'the same jurisdiction as that of the 'original authority and to do a thing which the original authority could itself have done. Alternatively, it is submitted that if this Court is of the opinion that all the cases are required to be remitted for fresh consideration, at least two of the cases arising out of Subject Nos. 256 and 257 of 1977 may be remitted to the kstat and not to KSTA. 2. On the contrary, it is contended on behalf of the respondents that in none of these cases, neither the original authority nor the appellate authority has considered the applications on merits. The applications are disposed of by the original authority (KSTA) only on a preliminary objection. Similarly, in two cases arising out of Subject Nos. 256 and 257/1977 the appellate authority (KSTAT) has also disposed of the appeal on the preliminary 'objection. The applications are disposed of by the original authority (KSTA) only on a preliminary objection. Similarly, in two cases arising out of Subject Nos. 256 and 257/1977 the appellate authority (KSTAT) has also disposed of the appeal on the preliminary 'objection. Both the authorities, it is submitted, have not considered the applications on merits therefore in such a case, the only right thing to do is to remit the cases for fresh consideration to the KSTA. 3. Neither the original authority (KSTA) has epquired into the merits of the cases nor the appellate authority (KSTAT) has. gone into the merits in two matters in which appeals were preferred. The KSTA has rejected the applications only on the preliminary ground that in view of the draft scheme in question-of anna Corporation-it is not permissible to grant the permits as sought for by the petitioner. In two cases-Subject Nos. 256 and 257 of 1977-appeals were preferred before the KSTAT. the appeals also have been disposed of on the very preliminary ground. Thus the applications have not been enquired into on merits at any stage. There is hot enough material on record to justify consideration of these cases on merits either by this Court or by the KSTAT. In such a situation, normally the rule embodied in order 41 Rule 23 of the Code of Civil procedure is applied, not on the ground that the proceedings before the KSTAT are governed by that rule but on the ground that such a rule is just and equitable and enables the parties to have an opportunity to prove their case. In this connection, it is relevant to notice a Division Bench decision of this Court in S. A. Sheriff v. MRAT reported in 1969 (2) kar. Law Journal, 325. In that case, the appeal was not decided by the STAT on merits, nevertheless the MRAT decided it on merits. This Court remitted the appeal to the STAT for fresh consideration. The relevant portion of the decision is as follows:"but, we must set aside the order of, the Revenue Appellate Tribunal by which it restored the permit to respondent-4. That, the Revenue Appellate tribunal, could not obviously do since, the STAt disposed of the appeals only on a preliminary ground that the solvency Certificate had not been produced. The relevant portion of the decision is as follows:"but, we must set aside the order of, the Revenue Appellate Tribunal by which it restored the permit to respondent-4. That, the Revenue Appellate tribunal, could not obviously do since, the STAt disposed of the appeals only on a preliminary ground that the solvency Certificate had not been produced. If that ground disappeared in consequence of the view taken by the revenue Appellate Tribunal, the appeal had to be remitted to the STAT, for fresh disposal according to law and on the outstanding question on which it had not rendered any decision. "learned Counsel for the petitioner has placed reliance on another decision of a Division Bench of this Court in P. Abdul Azeez v. Mysore Revenue Appellate tribunal reported in AIR 1962 Mys. 31. In that case, this question did not arise. In that case, it has been held that all the three authorities i. e. , R. T. A. KSTAT and krat have jurisdiction to examine not merely questions of law but also those of fact that there is no doubt that everyone of them is governed by the provisions of sec. 47 of the Act, which enumerates considerations which are relevant to the topic and as such, everyone of them is bound to examine both questions of fact and questions of law before arriving at their conclusions, Therefore, the decision in P. Abdul Azeez's case, is of no assistance to the petitioner. 4. Learned Counsel for the petitioner has placed reliance on the following decisions in support of his contention that this Court, in exercise of its jurisdiction under Article 226 of the Constitution, can grant the very relief which the original authority itself could have granted and as such, there is no need to remit the applications to the KSTA :- 1. Gujarat Steel Tubes Ltd. v. Its Majdoor Sabha AIR 1980 SC 1866 ; 2. State of Tamil Nadu and Am. v. C. Vadiappan AIR 1982 Mad. 386 ; 3. . 1979 (1) Labour Law Journal, 60 ; 4. Writ Petition No. 1486/61, decided on 21st Decr. , 1962 P. N. Ramaswamy gounder v. MRAT and Ors. ; 5. Writ Petition No. 4767 of 1980, decided on 27-6-1980 Sree Kamala Nehru makkala Mandira v. State of Karnataka and Anr. There is no doubt that High Court enjoys very wide power under Article 226 of the Constitution. Writ Petition No. 1486/61, decided on 21st Decr. , 1962 P. N. Ramaswamy gounder v. MRAT and Ors. ; 5. Writ Petition No. 4767 of 1980, decided on 27-6-1980 Sree Kamala Nehru makkala Mandira v. State of Karnataka and Anr. There is no doubt that High Court enjoys very wide power under Article 226 of the Constitution. The jurisdiction is extra-ordinary and discretionary. The limitations on this jurisdiction are self- imposed in order to protect and preserve this extra-ordinary discretionary power and to eliminate the possibilities of this jurisdiction being used by the parties. It is not necessary to consider this point in greater detail and also to consider all the aforesaid decisions, having regard to the fact that very recently, in KSRTCv. KSTA, reported in AIR 1984 Kar. 4, a Division bench of this Court to which one of us (KASJ) was a party, has considered in extenso the planitude of the jurisdiction under Article 226 of the Constitution, after referring to several decisions and also to the aforesaid decision of the supreme Court in Gujarat Steel Tubes ltd's case reported in AIR 1980 SC 1866 . The relevant portions of the judgment are as follows :- it is also true that the jurisdiction under article 226, which is at once extraordinary and discretionary, cannot be encapsulated and confined in terminological and technical formulations so as to limit the planitude of that jurisdiction. This extraordinary constitutional power cannot be cribbed and confined in legal absolutisms. We agree with Sri Sundara- swami that technicalities of English rules guiding judicial review cannot be fastened on the jurisdiction of the High courts under Art. 226. XXX XXX XXX xxx XXX XXX xxx XXX XXX these authoritative pronouncements should serve to lay this controversy to rest. The existence of the power need not be put in doubt. Where an extraordinary situation arises calling for an extra-ordinary remedy, the Court need not fold up its hands and withhold relief on ground alone of some limitations imposed by conventional and technical rules of English practice and procedure. The existence of the power need not be put in doubt. Where an extraordinary situation arises calling for an extra-ordinary remedy, the Court need not fold up its hands and withhold relief on ground alone of some limitations imposed by conventional and technical rules of English practice and procedure. But, at the same time, exceptional situations apart, the normal and conventional practice in the exercise of this extraordinary jurisdiction under Art. 226 is merely to quash the impugned proceedings, where the exercise of a discretionary power by an authority is vitiated by procedural errors, and to remit the matter for consideration afresh by the authority in the light of the observations made and guidelines given by the Court. That the High-Court can, in exercise of power under Art 226, do what the authority vested with the discretionary power could itself have done dones not mean that that should be the approach in every case. Though the powers under Art. 226 are wide, there are limitations, inherent in the very width of the power, not only in the matter of the choice of the class of cases in which that jurisdiction is allowed to be invoked but also the manner in which it is exercised and the forms of relief conventionally considered apposite and appropriate. Indeed, after referring to the permissibility of affirmative and positive action and of final decisions in exercise of this jurisdiction Supreme Court, however, has had this to say in T. C. Basappa's case ( AIR 1954 SC 440 ) as to the need to keep in mind certain fundamental principles regulating this jurisdiction : we can make an order of issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in english Law. . . . . . . . . . . . . . . . (vide para 6 ). Again after referring to the width of the power under Art. 226, Supreme Court in Dwarakanath's case ( AIR 1966 SC 81 ) said this as to the need for limitation on that power:". . . . . . . . . . . . . . . . . . . . . . . (vide para 6 ). Again after referring to the width of the power under Art. 226, Supreme Court in Dwarakanath's case ( AIR 1966 SC 81 ) said this as to the need for limitation on that power:". . . . . . . . . . . . . . . . . . . . TO say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. . . . . . . . . . . . " (vide para 4) in Gujarat Steel Tubes case ( AIR 1980 sc 1896 ) referring to the limitations arising out of and inherent in the very width of the power (the Court) said :". . . . . . . . . . . . . . . . . . . . THE very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power. " (vide para 79) consistent with these well accepted, though self-imposed, limitations, occasions for exercise of the discretionary powers by the High Court that the authorities themselves could exercise are, indeed, not the rule but constitute exceptions, resorted to only where the exceptional and the compelling requirements of justice demand. The usual and conventional approach is still that the judicial review is directed not against the decision itself, but against the decision making process which, in its wake, brings certain well recognised limitations on the scope of the relief generally to be granted in proceedings under Article 226. . . . . . . . . . . . . . . . . . . . "in these cases, we do not find any extraordinary and compelling circumstances to decide these cases here itself on merits when both the authorities below have not decided them on merits. In the normal course, these petitions are required to be remitted to the KSTA. . . . . . . . . . . . . . . . "in these cases, we do not find any extraordinary and compelling circumstances to decide these cases here itself on merits when both the authorities below have not decided them on merits. In the normal course, these petitions are required to be remitted to the KSTA. No doubt, in Writ petition No. 1486 of 1961, decided on 21-12-1962 (P. N. Ramaswamy Gounder v. MR AT and Ors.), the Regional Transport Authority has been directed to grant a permit to the petitioner therein but such a direction has been issued on the concession shown by the Counsels appearing on the other side. This is clear from the following observations made in that order:"normally we should have remitted both the application to the Regional transport Authority for fresh disposal according to law. But Mr. Rangaswamy appearing for the petitioner does not ask us to set aside the permit granted to respondent-4 and Mr. Bopanna appearing for respondent-4 has no objection to our directing the Regional Transport authority to grant a permit to the petitioner. No one else has appeared in this writ petition to oppose this order. . . . . . . . . . . . . . . . . . . . "similarly, the direction issued in writ Petition No. 4767 of 1980 decided on 27th June, 1980 depended upon the facts and circumstances of that case wherein about 583 students were denied admission to first year T. C. H. examination just a few days prior to the examination. Therefore, the decisions of this Court in the aforesaid two cases are of no assistance to the petitioner. For the foregoing reasons, we answer point-B as follows : It is not necessary to decide the applications filed by the petitioner for grant of stage carriage permits on merits in these petitions. Under the circumstances of these cases, the just and appropriate order is to remit these applications to the KSTA for fresh consideration, in the light of the observations made in this order. ( 12 ) "the respondents have also relied upon three decisions of this Court, in support of their contention that the anna Corporation draft Scheme in ques"tion excludes the private operators through out the route including the inter-mediary sectors. ( 12 ) "the respondents have also relied upon three decisions of this Court, in support of their contention that the anna Corporation draft Scheme in ques"tion excludes the private operators through out the route including the inter-mediary sectors. Out of the three decisions, two are by Division Bench and one is by a single Judge. Those decisions are : Writ appeal No. 400/74 (C. R. Gowda v. STAT) decided on 15-6-1979 : Writ petition No. 5101/79 (Ameer Pasha v. KSTA), decided on 2-7-1982 ; and Writ petition No. 7000/ 79 (H. C Narayanappa v. KSTA) decided on 20-2-1980 2. Learned third Judge, with reference to a Division Bench decision in writ Appeal No. 400 of 1974, has observed thus : "i cannot persuade myself to subscribe to the views expressed in Gowda's case, if that decision is construed in the manner suggested for the respondents. Similarly, with reference to other decision of a Division Bench, in Writ petition No. 5101/79, learned third Judge has observed as follows : ". . . . . . . . . . . . . . . . . . . . I find it diffcult to sub scribe to the views expressed by the learned Judges of this Court in these cases, without a full examination of the provisions and the questions also. For these reasons, I find it difficult to uphold this contention of the learned counsel fot the respondeat. . . . . . . . . . . . . . . . . . . . We are of the opinion, and it is also submitted at the Bar, that a third Judge to whom the points of law on which there is difference of opinion before two Judges are referred under the proviso to sub-section (2) of Sec. 98 of the Code of Civil procedure, is also a single Judge. He dbes not become either a Division Bench or Full Bench even though he hears the matter on a reference made in the aforesaid circumstances, by a Division Bench. Therefore, the decision of a Division bench of this Court on the point is as much binding on the learned third Judge as it binds a single Judge of this Court. Of course, in these cases, this does not become material because in both the aforesaid decisions of Division Bench, the point is not decided. Therefore, the decision of a Division bench of this Court on the point is as much binding on the learned third Judge as it binds a single Judge of this Court. Of course, in these cases, this does not become material because in both the aforesaid decisions of Division Bench, the point is not decided. In Writ Appeal no. 400/74 (C. R Gowda v. STAT), the question as to the scope of the scheme did not arise at all. Their Lordships, disposed of the writ appeal only on the ground that having regard to the publication of the draft-scheme, no permit could be granted or renewed. The scope of the scheme and nature and extent of exclusion of private operators were not decided. Thus, the said decision is not on the point. 3. Similarly, in Writ petition no 5101/79 (Ameer Pasha v. KSTA), their lordships of the Division Bench have specifically left open the question relating to the scope and ambit of the expressions terminus to terminus" used in the scheme, though the Tribunal decided that question. Their Lordships refused to interfere with the order of the Tribunal and also left open that question. Thus, the decision in W. P. 5101/79 also does not cover the point at issue. 4. Writ Petition No. 7000/79 (H. C. Narayanappa v. KSTA) is decided by a single Judge on 20th February, 1980. The learned single Judge has in turn relied upon the decision in the aforesaid Writ appeal No. 400/74. It is already pointed out that in Writ Appeal No. 400/74, the scope of the scheme and nature and extent of exclusion of private operators were not decided. therefore, even if it is held by the learned single Judge in W. P. 7000/79 that the use of the expressions "terminus to terminus" exclude the private operators and np permit can be granted to them even qn the inter-mediate sectors of the route, the same cannot be considered to be good law having regard to the opinion recorded by the learned third Judge on the point to which we have already adverted to in the earlier portion of this order. Consequently, the decision in Writ Petition No. 7000/79 must be deemed to have been over-ruled ( 13 ) THERE is yet one more aspect of the matter which requires to be considered. Consequently, the decision in Writ Petition No. 7000/79 must be deemed to have been over-ruled ( 13 ) THERE is yet one more aspect of the matter which requires to be considered. It is already pointed out that no order was passed by the Division Bench composing of Bhimiah, C. J. , and Ramakrishna J. referring the point or points of law on which there was a difference of opinion among them to a third Judge. The question for consideration is whether the absence of such an order has affected the jurisdiction of the learned third Judge to decide the point on which there was a difference of opinion among the two Judges of the Division Bench. Of course, the division Bench ought to have passed the order referring the point of law to the third Judge on which there was a difference of opinion among them. But the absence of such an order, having regard to the circumstances of these cases viz. , that in fact there was a difference of opinion among the two Judges on the point of law arising in these cases ; that not only both the sides did not raise this contention before the learned third Judge, they pursuaded the learned third Judge to record the opinion irrespective of the absence of the order referring the point of law by a Division Bench; that in addition to this, the Supreme Court in special Leave to Appeal (Civil) Nos. 9517 to 9521/83 which arose out of these petitions only,-as referred to in para-4 of this order-has directed that the writ petitions be referred to a third Judge ; it cannot be held to have affected the jurisdiction of the learned third Judge to record an opinion on the point of law on which there was difference of opinion before the Division Bench. The existence of difference of opinion on a point of law in a given case before a Division Bench is an essential requirement to enable the third Judge to record his opinion on that point as per the proviso to sub-sec. (2) of sec. 98 of the Code of Civil Procedure. The order referring such point of law to a third Judge only enables the posting of the case before the third Judge. (2) of sec. 98 of the Code of Civil Procedure. The order referring such point of law to a third Judge only enables the posting of the case before the third Judge. This does not mean, and we should not be taken to have laid down, that there need not be an order by the Division Bench referring the point/8-'of law upon which the Judges constituting the Division Bench differ but the absence of it does not affect the jurisdiction of the third Judge because what is necessary, to confer jurisdiction on the third Judge to record his opinion on a point of law, is the recording of opinion by the Judges constituting the Division Bench on point/s of law on which they differ. In the instant case, both the learned Judges constituting the Division Bench, have recorded their opinion on a point of law on which they have differed. Thus, the essential requirement for the third Judge to record the opinion is satisfied. In addition to this, the Supreme Court, as referred to above, has also directed these writ petitions' "to be referred to a third judge for decision". Further, both the sides have not raised this objection before the learned third Judge and on the contrary they have pursuaded the learned third Judge to record his opinion. Under these circumstances, we are of the opinion that the absence of an order by the Division Bench referring the point of law on which there was a difference of opinion, is only a mere irregularity and it has not affected the merits of the decision. Under these circumstances, we are of the opinion that the absence of an order by the Division Bench referring the point of law on which there was a difference of opinion, is only a mere irregularity and it has not affected the merits of the decision. As such, the opinion recorded by the learned third Judge on the point of law on which there was difference of opinion among the learned Judges constituting the division Bench, is valid and does not suffer from absence of jurisdiction ( 14 ) FOR the reasons stated above, these writ petitions are allowed in the following terms : (I) The draft-scheme in question of anna Corporation provides for the exclusion of private operators only from terminus to terminus, and that exclusion is only between two terminals specified in the said scheme and grant of permits to private operators is excluded to that extent only ; therefore grant of permits to the private operators on the intermediary sectors of the routes included in the scheme is not prohibited ; (ii) The draft scheme of Anna corporation in question which relates to inter-State routes which traverse through the territory of the State of karnataka published without the prior approval of the Central Government, is not operative in the State of Karnataka ; (iii) The impugned orders passed by the KSTA and KSTAT are hereby quashed. Consequently, the applications filed by the petitioner stand remitted to the KSTA with a direction to dispose of the same in accordance with law and in the light of the observations made in this order, within three months from the date of receipt of this order ; along with the other applications, if any pending, pertaining to same or substantially the same routes in question. ( 15 ) NO order as to costs. Immediately after we pronounced the judgment, learned Counsel appearing for respondents 2, 4, 5, 9, 11, 15, 17, 20 and 21 in Writ Petitions 3496 to 3498/82 ; and respondents-2, 9, 19, 20; 21 and 26 in Writ petition No. 3489 and 3490/79, made oral applications for a Certificate under Article 133 (1) of the Constitution, for preferring appeal to the Supreme Court. As far as the extra-territorial operation of the draft- scheme is concerned, we have relied upon a judgment of the Supreme Court reported in AIR 1977 SC 1170 (K. Venkamma v. The Government of Andhra Pradesh and Ors. ). Regarding the scope and ambit of the exclusion of the private operators on the routes covered by the scheme, it has been held that it is not a scheme of total exclusion on the interpretation placed on the words "terminus to terminus". That being so, we do not think that these petitions involve a substantial question of law of general importance. Accordingly, we refuse to grant the certificates. Since some of the respondents want to approach the Supreme Court by way of special Leave Petitions, they pray that the judgment just now pronounced be stayed, so as to enable them to approach the supreme Court to seek an interim order. We, accordingly, stay the operation of the judgment for a period of eight weeks from to-day. --- *** --- .