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P. Balarama Krishna Rao and anr. Vs. the Govt. of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 693 of 1972
Judge
Reported inAIR1974AP294
ActsMotor Vehicles Act, 1939 - Sections 64-A; ;Motor Vehicles Rules, 1964 - Rule 196; ;Limitation Act, 1963 - Sections 12; Defence of India Act, 1971 - Sections 6(4)
AppellantP. Balarama Krishna Rao and anr.
RespondentThe Govt. of Andhra Pradesh and ors.
Appellant AdvocateP. Babul Reddy for 4th Govt. Pleader
Respondent AdvocateUpendralal Waghray and ;M. Rama Rao, Advs.
Excerpt:
.....that revision petition time barred - state transport authority (sta) ought not to exercise suo motu powers under section 6 (4) (a) - revision petition not time barred as time required for obtaining certified copies of order from court to be excluded in filing revision petition - sta nowhere stated that he exercised suo motu powers and had intention to exercise such powers - held, writ petition rightly dismissed. - - on a general principle that an author must be supposed not to have intended to contradict himself the court will try its best to construe the language of the two provisions in such a way as to avoid the effect of inconsistency, unless of course the language is so plain that it is almost impossible to reconcile and harmonize the two apparently in consistent..........impugned order of the central government does not show that it was made in the exercise of its suo motu power. it is purported to have been made on the basis of the application made by the respondent 5 under rule 54 of the mineral concession rules , 1960.'his lordship further said :-- 'but in this case the difficulty is that at no stage the central government intimated to the appellant that it was exercising its suo motu power. at all stages it purported to act under rules 54 and 55 of the mineral concession rules, 1960. if the central government wanted t exercise its suo motu power it should have intimated that fact as well as the grounds on which it proposed to exsercise that power to the appellant and given him an opportunity to show cause against the exercise of suo motu power as.....
Judgment:

Gopal Rao Ekbote, C.J.

1. This appeal is from the judgment of our learned brother Sambasivarao, J. Given in Writ petition 4539 of 1972 on 21-11-1972 whereby the learned Judge dismissed the Writ Petition.

2. The facts in outline are : The first petitioner was granted a permit on 29-9-1968 on route No. 68 viz. Nainavaram gate to Ajitsingh Nagar by the R. T. A.

3. After some time, the R. T .A. considered a proposal of varying the route No. 16 by extending it from Nainavaram gate to Nunna Via Ajitnagar. The R. T. A. by its resolution dated 27-6-1969 approved the said variation.

4. The fourth respondent in the writ petition who is an existing operator on the route Nunna to Kaleswara Rao Market was aggrieved by the said order of variation. He therefore filed a Revision Petition before the S. T. A. on 2-8-1969.

5. On 28-2-1970, the R. T. A. actually granted the variation in the route approved by it earlier to the two permit-holders the first petitioner being one of them.

6. The fourth respondent was also aggrieved. The fourth respondent was also aggrieved by the second order dated 28-2-1970. He consequently preferred a second revision petition before the S. T. A. on 16-5-1970.

7. The S. T. A. allowed both the revision petitions and set aside the orders of the R. T. A. dated 27-6-1969 and 28-2-1970. This order was passed on 27-6-1972 by the S. T. A.

8. Aggrieved by those orders passed in the two Revision petitions, the first petitioner filed a revision petition to the Government. By its order dated 28-9-1972 made in G. o. 2782, the Government rejected the revision petition and confirmed the order of the S. T. A. It is to question the said G. O. that Writ Petition 4539 of 1972 was filed and out of which this appeal arises.

9. The learned Judge by the order under appeal firstly held that both the revision petitions were filed beyond 30 days, the prescribed time for filing such revision petitions. The learned Judge, however, did not attach much importance to the question of limitation as he thought that the objection regarding limitation was not taken either before the S. T. A. or before the Government. Even in the writ petition that objection was not raised. It was sought to be raised only by way of an additional ground subsequently. The learned Judge felt that if this objection had been raised, the possibility of the S. T. A. exercising suo motu jurisdiction cannot be ruled out. No time limit is prescribed for such suo motu action. The learned Judge relied in support of this conclusion on Motor Worker's Union v. Rayapwaddi App Rao, : AIR1970AP220 . The learned Judge therefore held that even if the revision petition filed by the fourth respondent before the S. T. A. were ignored, that authority could still have acted on its own motion under Section 64-A of the Motor Vehicle Act.

10. The second contention before the learned Judge was that the Government was not justified in invoking the power under Section 6 (4) (a) (ii) of the Defence of India Act, 1971 for endowing the Transporting Commissioner with the power of the S. T. A. The learned judge held that the conferring of such power cannot be said to be unconnected with the defence of India. In cases of emergency such power can validly be conferred. The third contention was raised before the learned Judge on merits of the case. The learned Judge rejected that contention also.

11. In this writ Appeal, two contentions were raised by Sri. P Babul Reddy, was firstly argued that the above said Revision Petitions filed by the fourth respondent before the S. T. A. were time-barred. They ought not to have been entertained by the S. T. A.

12. Now it was a common ground that the first order of the R. T. A. , giver , on 27-6-1969 approving the variation of the route was made under S. 47 (3) of the Act. That was, though an administrative order , revisable under Section 64-A of the Act.

13. The second order of the R. T. O. made on 28-2-1970 was made under S. 57 (8) of the Act and was also revisable under Section 64-A of the Act.

14. Now under the proviso to Section 64-A the State Transport Authority 'shall not entertain any application from a person aggrieved by an order of the R. T. A. unless the application is made within 30 days from the date of the order .' It will immediately be plain that the proviso places fetters upon the power of the S. T. A. to revise the orders of the R. T. A. Unless a revision is filed within 30 days of the date of the order , he has no power to hear the Revision Petitions. Admittedly there is no provision either in the Act or in the rules made thereunder to excuse any delay and entertain revision petitions even after the expiry of 30 days from the date of the order. The embargo therefore is complete and the S. T. A. is precluded from entertaining any revision petition from the order of the R. T. A. filed after the expiry of 30 days from the date of the latter's order.

15. Rule 196 , however , makes it obligatory that a revision petition filed under Section 64-A of the Act 'shall be accompanied by the original or a certified copy of the order against which the application is preferred .'

16. It will thus be been that while proviso to Section 64-A, which is couched in mandatory language, inhibits the S. T. A. from entertaining a revision filed beyond 30 days of the date of the order, Rule 196 which similarly is couched in mandatory words, enjoins that an original or certified copy of the order must be filed along with the revision petition.

17. We have already seen that the S. T. A. is not empowered to condone the delay and entertain revision petition after 30 days of order. Likewise, there is no provision made in the rules for excluding the time spent in obtaining the certified copy from the computation of 30 days from the date of order as prescribed in proviso to Section 64-A of the Act on the lines of Section 12 of the Indian Limitation Act. It was a common ground that the provisions of the Limitation Act do not apply to revision petitions arising under the Act. The question therefore is that in cases where the order of the R. T. A. is not served upon the aggrieved party within 30 days of the order of the certified copy even if applied for within 30 days is not supplied within 30 days of the order and is given only after the said period is over, can the computation of the period of 30 days in the first case be from the date when the order is served on the aggrieved party and in the second case whether the time spent in obtaining a certified copy which is required to be filed along with the revision petition can be excluded from the computation of 30 days.

18. Now one may see a superficial inconsistency between the proviso to Sec. 64-A and Rule 196 both provisions being mandatory. On a close examination however , it would be found that there is no inconsistency between them. On a general principle that an author must be supposed not to have intended to contradict himself the court will try its best to construe the language of the two provisions in such a way as to avoid the effect of inconsistency, unless of course the language is so plain that it is almost impossible to reconcile and harmonize the two apparently in consistent provisions. One way in which repugnancy can be avoided is by regarding the two apparently conflicting provisions as dealing with two distinct matters or situations. Thus whatever the language of the provisions admit of two constructions one in conflict with each other and the other their reconciliation, and if it is found that if consuetude in one way would lead to obvious inconvenience and injustice, the courts act upon the view that such the intention has been manifested contra in plain words. The same principles would apply even to a case where one provision is enacted by Parliament and other is made by its delegate.

19. If we examine the two provisions in the light of what is stated above, it would be evident that while proviso to Section 64-A prescribes the limitation of 30 days from the date of the order for filing revisions, Rule 196 when it obliges the petitioners to file the original order or a certified copy of it lays down a rule by necessary implication as to how these 30 days prescribed in Section 64- A are to be computed. The two provisions thus deal distinctly with two separate matters or situations. In order to avoid a statutory result that flouts common sense and justice, it would not be proper for this court either to disregard the statute or the rule or allow either of them to override the other. It is our duty to so interpret these provisions that they would be in accord with the judicially presumed Parliamentary concern for common sense and justice. This is thus the only way to reconcile the proviso to Section 64-A with Rule 196. We do not therefore feel that there is any inconsistency between the two provisions. Both can happily co-exist and thus carry out the intention of the authors of the provisions.

20. We have seen that Rule 196 requires the original order or a certified copy of it to be filed along with the Revision Petition and it is a plain common-sense that unless the order is served upon the aggrieved party or a certified copy of it is provided to him, it will not be possible for him to file the revision complying with Rule 196. By necessary implication therefore the computation of the period of 30 days will have to be so made as not to be in conflict with R. 196. In other words, the words 'within 30 days from the date of the order' must mean within 30 days from the date when the order is served upon the aggrieved party. This view of ours gathers support from the following two decisions of the Supreme Court. In Harish Chandra v. Deputy Land Acquisition Officer, : [1962]1SCR676 Gajendragadkar,, J. who spoke for the court said :

'The knowledge of the party affected by the award, either actual or constructive being an essential requirement of fair play and natural justice, the expression 'the date of the award' used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words 'from the date of the Collector's award' used in the proviso to Section 18 in literal of mechanical way.'

21. In view of the plain language of Rule 196 it would be manifest that in cases falling under the said rule, there can be no question of commencing the period from the date of knowledge of the order either actual or constructive. The Supreme Court in Municipal Board Pushkar v. S. T. A. Rajasthan, : AIR1965SC458 while construing the proviso to Section 64-A held :

We agree therefore that the words 'date of the order' should not be read 'as from the date of knowledge of the order' .

As observed by the Supreme Court in : [1962]1SCR676 the date of the order in this case must therefore necessarily mean the date when the order is communicated to the party.

22. In : AIR1965SC458 the same expression fell for consideration of the Supreme Court. That was a case under Section 64 -A of the Motor Vechiles Act. The question, however, was as to when the resolution changing the place of a Bus Stand takes effect, whether from the date when the resolution was passed or the date when it was published.

23. According to the appellant therein, the date when the R. T. A. passed the resolution was the date of the order . Against this, it was urged on behalf of the Bus operators that it is the date when that resolution was brought into effect by the publication of the notification which should be considered to be the date of the order. Their Lordships agreed with the contention of the Bus operators and said :

'For , it is a fallacy to think that the date when the R. T. A passed the resolution was the date on which the fixation of the new Bus Stand or the discontinuance of the old Bus Stand was ordered. It has to be remembered in this connection that Rule 134 itself contemplates that the fixation or alteration of Bus Stands would be made by a notification. It is only no such notification that a notified bus stand comes into existence. so long as the notification is not made there is in law no effective fixation of a new Bus Stand or discontinuance of old Bus Stand .'

24. Applying the principle thus laid down by the Supreme court to the facts of the present case, it would be clear that in view of the language of Rule 196, the words 'date of order' must mean the date when that order was communicated to the party. It is a common ground that the second order dated 28-2-1970 was communicated to the petitioners on 20-4-1970. If one computes the period of 30 days from that date, it was conceded the revision petition filed on 16-5-1970 would be well within time.

25. We then turn to the next situation arising out of Rule 196 , that is to say whether the period spent in obtaining the certified copy can be excluded from the computation of 30 days period prescribed for filing the revision . On the analogy of the original order which we have discussed above it is possible to contend that 'the date of order' in such cases must mean the date on which the certified copy was ready and given to the party. But it makes, in out view, little difference even if we are to hold that the time spent on obtaining the certified copy shall necessarily be excluded because of the mandatory language of Rule 196 from the computation of 30 days . There is one advantage in adopting this approach and that is the time spent in obtaining the certified copy shall be excluded only in cases where the copy application is made with 30 days of the date when the order is actually made. Such an interpretation would be in conformity with the principles underlying Section 12 of the Indian Limitation Act. It is true that Section 12 in terms does not apply to revisions filed under Section 64-A of the Act. The necessary implication of Rule 196, however is that, the time spent in obtaining the certified copy of the order without which no revision can be filed must be excluded from counting the period of 30 days. It is there that we kept in view the analogous principles of Section 12 of the Limitation Act and nothing more. This is the necessary result of a combined reading of the proviso to Section 64-A and Rule 196 . We would be giving effect to both these mandatory provisions and thus carry out the intention of their authors. This is the only way to avoid injustice and inconvenience. It is sheer common-sense that indicates helpful reconciliation of the two provisions without offending any principle of construction of the Statute.

26. If we look at the first revision petition in the light of above discussion, it will be seen that if the time spent in obtaining the certified copy of the order in excluded the first revision petition filed on 2-8-1969 will admittedly be well within limitation. The affidavit filed by the writ petitioner before us gave dates as to when the copy application was filed and as to when it was ready and given. At first the correctness of these dates as given by the appellant was doubted but on verification with the record produced by the learned Government Pleader it was conceded by all the concerned Advocates that those dates given in the affidavit are correct. If that is so, then if the time spent in obtaining the certified copy is excluded, it could not be doubted that the first revision petition will also be within limitation.

27. Before we part with this aspect of the case we think it would be right to observe that the question of limitation ought not to be brushed aside on the ground that is the appellant had raised the objection before the S. T. A. it was possible for that authority to exercise suo motu jurisdiction under S. 64-A . It was a common ground that in truth and reality the S. T. A. has not exercised jurisdiction suo motu. In fact, he ordered the two revisions which were filed. The possibility or otherwise of exercising the power suo motu cannot alter the position of law relating to the limitation on the basis of which power to hear revision petitions depends. It may be that no fetters are placed upon the powers of the S. T. A. to suo motu revise the order of the R. T. A. but that would not mean that even the revisions can be heard by the said authority in total disregard of the proviso to Section 64-A.

28. In Madal Lal v. Sunder Lal, : [1967]3SCR147 the Supreme Court held :--

'Assuming that the court has power to set aside the award suo motu, that power cannot be exercised to set aside an award on grounds, which fall under section 30 of the Act, if taken in an objection petition filed more than 30 days, after service of notice of filing of the award , for if that were so the limitation provided under Article 158 of the Limitation Act would be completely negatived .'

29. In D. N. Roy v. State of Bihar, : [1971]2SCR522 Hegde, J. who spoke for the Court in a similar situation said :--

'The impugned order of the Central Government does not show that it was made in the exercise of its suo motu power. It is purported to have been made on the basis of the application made by the respondent 5 under Rule 54 of the Mineral Concession Rules , 1960.'

His Lordship further said :--

'But in this case the difficulty is that at no stage the Central Government intimated to the appellant that it was exercising its suo motu power. At all stages it purported to act under Rules 54 and 55 of the Mineral Concession Rules, 1960. If the Central Government wanted t exercise its suo motu power it should have intimated that fact as well as the grounds on which it proposed to exsercise that power to the appellant and given him an opportunity to show cause against the exercise of suo motu power as well as against the grounds on which it wanted to exercise its power. Quite clearly the Central Government had not given him the opportunity.'

30. Our attention was however drawn to a decision of this Court reported in : AIR1970AP220 . We do not however think it goes contrary to the decisions of the Supreme Court referred to above. On the facts of that case the learned Judges held that the order was passed by the Government in the exercise of its suo power. That is clear from paragraph 10 of the judgment. Their Lordships did not lay down any rule that revision petition which was filed beyond 30 days can be said to have been disposed of in the exercise of its suo motu power even without giving notice of such an intention on the part of the Government and communicating the grounds on which the Government wants to exercise that power. The above said decision of this court therefore has to be confined to the facts of that case.

31. The learned Judge, with due respect, was not right in drawing support from the said Bench decision of this Court for his view that :--

'If this objection had been raised, the possibility cannot be overlooked or overruled that the S. T. A. might have examined the record on its own motion, in other words, suo motu .'

32. We have seen that the said decision does not lay down any such proposition. And if that decision is to be understood in the way in which the learned Judge has appreciated it, then, we are bound to say that it would not be a good law in view of the above said two Supreme Court decisions.

33. In the instant case admittedly, the S. T. A. has not stated anywhere in the order that he is exercising his suo motu power. Even the learned Judge has not found that. In reality the impugned order was made by the S. T. A. in the exercise of suo motu power. Admittedly, no notice was given to the parties by the S. T. A. informing them of his intention to exercise his suo motu power. Nor any grounds were communicated to them on the basis of which he proposed to exercise that power. All these things clearly establish that the S. T. A. has not at all, exercised and had no intention to exercise suo motu power. The mere possibility of his exercising such a power if objection in regard to limitation had been raised would not alter the position of fact as found as law relating thereto.

34. We are satisfied that both the revision petitions were not time-barred. The S. T. A had not exercised his suo motu powers. He disposed of the revisions petitions on merits and no faults can be found with his judgment on the ground of limitation.

35. That takes us to the second contention of the appellant. It was argued that the Defence of Indian Act, 1971 , came into force on 9-12-1971. According to Section 6 (4) (a) (ii) of that Act, the Motor Vehicles Act, 1939 has effect subject to the provisions mentioned in sub-section (4) of that section. The State Government under the sub-section has been empowered to authorise any person 'to perform to the exclusion of the S. T. A. or R. T. A. as the case may be, the functions of the S. T. A. or any R. T. A. under the said Chapter as may be specified in the notification .'

36. The contention was that by the time the Defence of India Act came into force, Section 64-A of the Act stood amended in 1969 although it came into force from 1-4-1971. According to that amendment instead of the S. T. A., the power to revise was conferred on the State Transport Appellate Tribunal. It was therefore submitted competent to hear the revision petition under Section 64-A , the notification in G. O. Ms. No. 72 dated 12-1-1972 which excludes the S. T. A. from, hearing Revision Petitions and empowers, instead , the Transport Commissioner to dispose of the Revisions as he did in the instant case.

37. It is true that Section 64-A of the Act was amended in 1969 . With effect from 1-4-1971 the position under Section 64-A was that the State Transport Appellate Tribunal was empowered to hear revisions against the orders of the S. T. A. or R. T. A in a case where no appeal lies. The S. T. A which was prior to that date the revising Authority, ceased to have that authority. What then is the meaning of the G. O. Ms. 72 dated 12-1-1972 issued by the Government under Section 6 (4) (a) (ii) of the Defence of India Act whereby the Government transferred the revisory powers of the S. T. a. to the Transport Commissioner ?

38. It could not be disputed that Section 64-A as amended in 1969 is prospective in its character. It does not refer either expressly or by necessary implication to the cases which were pending before the S. T. A. on 1-4-1971. It is now fairly settled that when the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new Statute shows a clear intention to vary such rights. It cannot be doubted that right to continue that action pending before an authority is a substantive right. It cannot be taken away without language express or implied. The effect of this amended provision is that while the revision petitions filed on or after 1-4-1971 can be heard by the State Transport Appellate Tribunal, the revision petitions pending on that date shall continue to be heard and disposed of by the S. T. A., as if Section 64-A was not amended.

39. In so far as such cases were concerned, therefore Section 64-A in spite of its amendment in 1969 continued to be in force authorising the S. T. A. to dispose of the pending cases. It cannot therefore be argued validly the since the S. T. A. was not the revisory authority on the day of the defence of India Act, the G. O. empowering the Transport Commissioner to hear revision cases to the exclusion of the S. T. A. was meaningless. It was in any case, effective in regard to the pending cases before the S. T. a. Under Section 6 (4) (a) (ii) therefore the Government can transfer those cases to the Transport Commissioner excluding the S. T. A. That is the effect of the G. O. The Transport Commissioner therefore had the necessary power to hear and dispose of the two revisions in the present case which were admittedly pending before the S. T. A on 1-4-1971, and which were validly transferred to the Transport Commissioner by the said G. O.

40. The argument advanced before the learned single Judge in that behalf was not pressed before us. Instead the above said argument was passed before us. We experience to difficulty in rejecting it.

41. As no other contention was raised, we agree with the conclusion of the learned Judge although for different reasons. We accordingly dismiss the appeal with costs. Advocate's fee Rs. 100/- .

42. Appeal dismissed.


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