Venkataramaiya, C.J.
1. The question raised in this case is whether Government has jurisdiction to interfere with an appellate order passed by the State Transport Authority under the Indian Motor Vehicles Act. Petitioner and respondent 2 are plying buses between certain places in Mysore. The Regional Transport Authority prescribed the time at which the bus of each had to start. This was changed perhaps to the advantage of the petitioner in the appeal preferred by him to the State Transport Authority.
Respondent 2 thereupon approached Government for modification of this and the order of the State Transport Authority was varied. Petitioner contends that it is illegal and wants the order to be quashed in exercise of the powers of this Court under Article 226, Constitution of India.
2. It is admitted that the order cannot be assailed according to the rules framed by Government as Rule 276-A expressly provides for an appeal to It against appellate orders of State Transport Authority. This rule is impugned as being repugnant to the Act and in support of it the recent amendment of the Act by virtue of which appellate orders of the State Transport Authority are expressly stated to be appealable to Government is pointed out as implying that such orders were not subject to appeal at the time Government dealt with the case between the parties.
The amendment does not necessarily Justify such an inference as it may have been meant toremove doubts about maintainability of second appeals to Government in the absence of any provision in the Act though there is a definite rule which permits the same. The right of appeal is to be conferred by statute and cannot be claimed without a provision therefor.
3. The rule cannot be successfully challenged unless the presumption of validity ordinarily attaching to it is shown to be inapplicable. Section G4, Motor Vehicles Act states:
'Any person- (a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit or by any condition attached to the permit granted to him.....may within the prescribed time and inthe prescribed manner appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard.'
According to Section 2(21) 'prescribed' means prescribed by rules made under the Act. Rule 276-A no doubt makes a second appeal to Government possible but it cannot override or supplement the provisions of the Act either by taking away what is granted orconfer rights not allowed and available therein. It is well-settled that the rule should not be repugnant to the Act and in case of conflict between the two the latter should prevail.
4. It is conceded that an appeal to Government can lie if at all only under Section 64 and no other.The Act does not vest Government with jurisdiction to revise orders made by the State TransportAuthority.
5. The words in Section 64 are such as to render an order passed with respect to matters enunciated therein liable to be challenged in appeal before one authority and not to subject the appellate order to a further appeal. If the order is that of the Regional Authority, it may be appealed against before the State Transport Authority; if it is that of the State Transport Authority, the Government is the Appellate Authority. In either case the appellate order was final. The section requires that the 'Original Authority' should have 'an opportunity of being heard,'
Difficulty will arise if a second appeal is deemed to be possible as in such cases the question will be as to which is the original authority, and if this is considered to be the Regional Authority as the words prima facie denote it may turn out to be meaningless in some cases. A permit may be refused by the Regional Authority, his order may be set aside by the State Transport Authority and if the aggrieved person contests this and seeks restoration of the order of the Regional Authority to Whom is the opportunity to be given for being heard?
The State Transport Authority is not the 'Original Authority' and it would be nothing short of futile and empty formality to notify the Regional Authority as his order is not complained of. Section 64 cannot therefore be availed of to claim a right of second appeal. In view of this rule which permits this must be held to be invalid.
6. In Sri Rama Vilas Service Ltd. v. Road Traffic Board. Madras, AIR 1948 Mad 400 (A), a notification of Government by which certain instructions or directions were given for the issue of permits to ply vehicles was held to be ultra vires end of no effect on the ground that it was beyond the power to make rules.
7. The order passed by Government is thus lacking jurisdiction and cannot be sustained on the basis of the rule since the rule itself was ultra vires. It is declared not legal.
8. As the point raised was not free from doubtwe direct the parties to bear their own costs.
9. Order accordingly.