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M. Narasimhaiah, Bangalore-21 Vs. the State Transport Appellate Tribunal, Bangalore-1 and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberWrit Appeal No. 665 of 1974
Judge
Reported inAIR1976Kant18; 1975(2)KarLJ500
ActsMotor Vehicles Act, 1939 - Sections 47 and 64
AppellantM. Narasimhaiah, Bangalore-21
RespondentThe State Transport Appellate Tribunal, Bangalore-1 and ors.
Appellant AdvocateM. Rangaswamy, Adv.
Respondent AdvocateG.S. Shanthamallappa, Adv.
Excerpt:
.....49 of the k.c.f. &s.v. act, 1958. office objection is unsustainable. - was unsuccessful. the heirs of narasoji rao could be substituted, was clearly erroneous. i do not find anything in the record which shows that the heirs of narasoji rao are not entitled to operate the service or they are incapable of running the service as efficiently as r. , the appellate tribunal has no power to give the benefit of its remand order to a non-appealing unsuccessful applicant. the above observations do not, in our opinion, detract from the well-established legal position that an appeal, even if it be before a tribunal constituted under an act. 11. thus, we do not find any good ground to dissent from the view taken by the learned single judge that the principle enunciated by the supreme court in..........to take into account even facts and events, that have come into existence after the decree or appeal appealed against.9. while undoubted1v the qualifications and capabilities of the heirs of the original grantee of a permit, have to be taken into account by the transport authority before the permit granted to him can be made available to his heirs, such determination of qualifications and capabilities of the heirs can be done not only by the transport authority granting the permit but also by the appellate authority. in the present case since the original grantee, narasoji rao, died during the pendency of the appeal, the s. t. a. t. could consider the qualifications and capabilities of his heirs and decide whether they were suitable for operating the stage carriage, as the whole.....
Judgment:

D.M. Chandrashekhar, J.

1. This is an appeal from the order of Venkataramiah. J. in Writ Petition No. 3785 of 1974. The appellant was the Petitioner therein.

2. In the writ petition. The petitioner had assailed the judgment of the Karnataka State Transport Appellate Tribunal (hereinafter referred to as the S. T. A. T.). The learned single Judge dismissed the writ petition holding that there was no ground to interfere with that judgment.

3. Narasoji Rao whose heirs are respondents 3 (a) to (e) herein had applied to the Regional Transport Authority, Bangalore (hereinafter referred to as the R. T. A.) for grant of a permit to operate a stage carriage between Ban galore and Mavathur. The R. T. A. by its resolution dated 25-11-1963. Rejected that application. Against that resolution he had, preferred an appeal to the S.T.A.T., which set aside that resolution and remanded the case to the R. T. A. The appeal by the petitioner to the Karnataka Revenue Appellate Tribunal against the order of the S. T. A. T. was unsuccessful. After remand., the R. T. A. by its resolution dated 25/26/4-1972, granted a Permit to Narasoji Rao. Against such grant, the petitioner went up in appeal to the S. T. A. T.

During the pendeney of that appeal. Narasoji Rao died on 8-2-1974. His heirs were permitted to come on record in his place in that appeal. The S. T. A. T. affirmed the grant of the permit in favor of Narasoji Rao. represented by his heirs. But remanded, the case to the R.T.A to fix, after hearing the parties, a fresh schedule of timings for the stage carriage for which that permit was granted. As stated earlier the order of the S. T. A. T. was impugned in the writ petition.

4. Both the S. T. A. T. and the learned single Judge relied on the ruling of the Supreme Court in Ramautar Lal Jain v. Maya Kauri : [1974]3SCR931 that in case of death of an applicant for grant of a stage carriage permit his heirs can apply for substitution in his place that the Transport Authority has jurisdiction and discretion in the matter of allowing or refusing such substitution and that if the proceedings before the Transport Authority are likely to be delayed or if such substitution would be detrimental to the interest of the public the Transport Authority is not bound to allow su.ch substitution. The learned single Judge held that the aforesaid ruling of the Supreme Court applies with greater force to a case in which the Transport Authority had already granted a permit and the grantee dies during the pendency of an appeal against such grant.

5. In this appeal Mr. M. Rangaswamy, learned Counsel for the appellant, contended that the view taken by the learned single Judge that in the appeal before the S. T. A. T. the heirs of Narasoji Rao could be substituted, was clearly erroneous. Elaborating his contention. Mr. Rangaswamy argued that there is a distinction between the proceeding up to the stage of grant of a permit and the proceeding at the stage of issuing a Permit, pursuant to such grant. Mr. Rangaswamy invited our attention to the observations of the Supreme Court : [1976]1SCR188 ). (Kunder Rudrappa v. Mysore Revenue Appellate Tribunal) that issuance of a permit after an order granting it is only a ministerial act necessarily following the grant of the Permit.

Mr. Rangaswamy also invited, our attention to the observations of the Supreme Court in Messrs. Ram Autar Lal Jain's case : [1974]3SCR931 that in deciding the grant of a permit the merits of the applicant should be considered vis-a-vis other applicants, that such merits depend generally upon the peculiar position capabilities and qualifications of an applicant which may be either personal or peculiarly those of a concern or organization and, that an heir or successor of an applicant will not necessari1v have his (the applicant's) qualifications or capabilities with regard to a transport service for the benefit of the public.

6. Mr. Rangaswamy maintained that if an applicant for a permit dies at the stage of the Transport Authority considering whether a permit should be granted to him, the Transport Authority can, after permitting his heirs to come on record, consider the qualifications and capabilities of such heirs for grant of the permit for which the deceased applicant had applied that the Transport Authority cannot, at the stage of issuing a permit in pursuance of a grant, consider the qualifications and capabilities of such heirs, because at that stage the Transport Authority has to merely perform. The ministerial act of issuing a permit in pursuance of a grant already made and there will be no enquiry of any kind at that stage and that hence if an applicant in whose favor a permit has been granted, dies before a permit is issued, the grant abates and his heirs can only make a fresh application to the Transport Authority for grant of a permit.

In that view Mr. Runaway maintained that when Narasoji Rao died during the pendency of the appeal, the S T. A. T. should have treated the grant of the permit as having abated and should not have affirmed the grant in favor of Narasoji Rao, represented by his heirs.

7. On the other hand. Mr. C. S. Shanthamallappa, learned Counsel for the respondents 3(a) to (e) contended that grant of a Permit and issue thereof in pursuance of such grant are different stages of an integrated Proceeding before the Transport authority, that the appellant had not urged before the S. T. A. T. that Narasoji Rao's heirs were in any way disqualified or were not suitable Persons for grant of the permit and that hence the S. T. A. T. was justified in affirming the grant of the permit so as to enable Narasoji Rao's heirs to operate the stage carriage.

8. As stated earlier, Mr. Rangaswamy did not dispute that if during the pendency of the proceedings before the Transport Authority an applicant dies, the Transport Authority has Power and discretion to allow his heirs to be substituted and to grant a permit to such heirs. The Position cannot, in our opinion, be different if such applicant dies after the grant of permit made by the Transport Authority, but during the pendency of an appeal from such grant even though the permit might not have been actually issued to him in pursuance of that grant, because an appeal is in the nature of continuation of the original proceeding and is re-hearing of the case. As pointed out by the Federal Court in Lachmeshwar Prasad Shuku1 v. Keshwar Lal Chaudhuri . once an appeal is filed against the decision in a case, the matter becomes subjudice again and thereafter the appellate Court has seisin of the whole case and the appellate Court is entitled to take into account even facts and events, that have come into existence after the decree or appeal appealed against.

9. While undoubted1v the qualifications and capabilities of the heirs of the original grantee of a permit, have to be taken into account by the Transport Authority before the permit granted to him can be made available to his heirs, such determination of qualifications and capabilities of the heirs can be done not only by the Transport Authority granting the permit but also by the appellate authority. In the present case since the original grantee, Narasoji Rao, died during the pendency of the appeal, the S. T. A. T. could consider the qualifications and capabilities of his heirs and decide whether they were suitable for operating the stage carriage, as the whole matter stood reopened in the appeal. The S. T. A. T. took the view that it was not shown that Narasoji Rao's heirs suffered from any disqualification or were not suitable persons for operating the stage carriage. as can be seen from the following observations:

'In the instant case the appellants have not stated that the respondent's heirs are in any way disqualified from obtaining the permit. In the additional grounds raised, they have not taken any exception to the capacity of the heirs of Narasoji Rao to operate the service if the permit is granted in their favor. I do not find anything in the record which shows that the heirs of Narasoji Rao are not entitled to operate the service or they are incapable of running the service as efficiently as R. Narasoji Rao.'

10. However. Mr. Rangaswamy contended that the S. T. A. T. not being a Court of unlimited jurisdiction, but being only a creature of the statute, namely, the Motor Vehicles Act. 1939, its powers are limited to those specified in sub-section (1) of Section 64 of that Act, and that under that sub-section the S. T. A. T. has no power to determine the question of qualifications and capabilities of the heirs of the grantee of a Permit who dies during the Pendency of the appeal.

Support for this contention was sought to be derived from the observations of Mudholkar, J., in Civil Appeal No. 797 of 1963 (SC) on the file of the Supreme Court (Hanuman Transport Co. Ltd. v. Meenakshi alias Ramabai) that as there is no provision in the Motor Vehicles Act analogous to Order 41. Rule 33, Civil P. C., the Appellate Tribunal has no power to give the benefit of its remand order to a non-appealing unsuccessful applicant. The above observations do not, in our opinion, detract from the well-established legal position that an appeal, even if it be before a Tribunal constituted under an Act. is in the nature of re-hearing of the cause, which in the context of the present case was re-hearing of the application for grant of permit.

11. Thus, we do not find any good ground to dissent from the view taken by the learned single Judge that the principle enunciated by the Supreme Court in M/s. Ramautar Lal Jain's case : [1974]3SCR931 is equally applicable to the proceedings before the Appellate Authority.

12. In the result, this appeal fails and is dismissed. In the circumstances of this case. We direct the parties to bear their own costs in this appeal

13. Appeal dismissed.


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