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The Motor Workers Union Vs. Rayapwaddi Apparao and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 125 of 1966
Judge
Reported inAIR1970AP220
ActsMotor Vehicles Act, 1939 - Sections 64A; Andhra Pradesh Motor Vehicles Rules, 1964 - Rule 195(1)
AppellantThe Motor Workers Union
RespondentRayapwaddi Apparao and ors.
Appellant AdvocateD.V. Reddi Pantulu, Adv.
Respondent AdvocateC.V. Subba Rao, Adv. for ;P. Ramachandra Rao, Adv. and Govt. Pleader
Excerpt:
.....which it comes to know of a defective order or proceeding of a lower authority, through a petition filed by pan aggrieved party though it is not maintainable on account of bar of limitation or in otherwise irregular. to argue that the existence of one contingency excludes the other is clearly violating the meaning and intention of the section. it can as well happen that after re-examination of the records with the aid of the aggrieved party's representation, the government may detect some error which should be rectified. having failed to argue the point before the government and thus to create an oaccasion for the government to specifically state the power it was exercising the first respondent cannot now turn round and say that the government passed the order only on the revision..........application was made before it by an aggrieved party the government does not cease to have the suo motu power to call for the records and examine the same. the learned counsel for the respondent on the other hand, argues that once an aggrieved party files a revision petition, the government loses all power to act suo motu. the point for decision in this appeal is which of these two contentions is correct and acceptable. 5. section 64 -a is in the following terms:- 'the state government may of its own motion or on an application made to it call for the records of any order passed or proceeding taken under this chapter by any authority or officer subordinate to it, for the purpose of satisfying itself as to the legality or regularity or propriety of such order or proceeding and after.....
Judgment:

Sambasiva Rao, J.

1. This Writ Apeal is directed against the order of Gopalakrishna Nair, J. in W. P. No. 212 of 1964. The third respondent in the Writ petition is the Appellant.

2. The dispute in the appeal relates to the permit of a stage carriage MDV 1947 which was subsequently renumbered as A. P. V. 482, which belonged to the Motor Works Union of Bheemunipatnam in Visakhapatnam District, which is the third respondent appellant, one Babulal, claiming to but a member of the Union, purported to have sold the vehicle to the first respondent in the appeal (petitioner in the writ petition). The first respondent and a person by name J. V. Ramanaiah, who purported to be the Secretary of the Union filed in 1958, a joint application to the Regional Transport Authority, Visakhapatnam, for the stage carriage to the 1st respondent (the petitioner). That application was notified by the Regional Transport Authority calling for objections. The appellant Union, represented by its Secretary, K. Ramanaiah, (different from J. V. Ramamaiah) who signed the Joint application for transfer filed its objections raised are Babulal had no right to sell the stage carriage belonging to the Union, that J. V. Ramanaiah had no locus standi or any capacity to sign the transfer application of behalf of the Unioin, as he had been removed from the post of Secretary on 15-2-1952, and removed from the membership of the Union itself on 30th of July, 1952, ie., years before the application for transfer was filed. Since the objections where filed two days late, the Regional Transport Authority transferred the vehicle to the first respondent.

Felt aggrieved by this order recognising the transfer, the Union represented by its Secretary, K. Ramanaiah filed a revision petition before the Government of Andhra Pradesh under Section 64-A of the Motor Vehicles Act, 1939. The main contention in the petition was that the transfer application signed by J. V. Ramanaiah as representing the appellant Union is a rank forgery having no concern with the Union at all that the Union was not at all represented at the meeting of the Transport Authority held on 19-7-60 (in which the transfer was recognised) as the notice of the meeting was not served on K. Ramanaiah, the real Secretary, of the Union nor was a copy of the resolution communicated to the Union and that for these reasons the resolution of the Regional Transport Authority transferring the permit favour of the first respondent was vitiated by fraud, collusion and mistake. The Government considered that the transfer of the permit made by the Regional Transport Authority, was void and should be set aside, because that authority was not in a position to conclusively decide as to who actually was the Secretary of the Union.

Having set aside the order of transfer, the Government remanded the case back to the Regional Transport Authority, for fresh disposal according to law, having due regard to the representation of the Union. The first respondent filed W. P. No. 442 of 1961 questioning the correctness of this order. The principal contention in the writ petition was that the Government had passed the impugned order, without issuing any notice to the first respondent and giving him an opportunity to represent his case. The writ petition was allowed on that ground and the Government was directed to adjudicate upon the grievance of the Union, after giving due notice and opportunity to the first respondent. When the matter went back to the Government due notice was given to both parties including the first respondent and after hearing both sides, the Government passed an order on 15-1-64, once again setting aside the order of the Regional Transport Authority as illegal, improper and irregular and remanding the case back to that authority for fresh disposal according law, having due regard to the representation of the appellant Union. While passing this order, the Government once again pointed out that the Regional Transport Authority allowed the transfer without deciding as to who actually was the Secretary of the Union in interval of nearly two years period from the date of publication of the matter. Once again, the first respondent filed a writ petition in this court impugned the order of the Government. That is W. P. No. 212 of 1964. Gopalakrishna Nair, J. allowed the writ petition and quashed the order of the Government . This writ appeal has been filed by the Union which was the third respondent in W. P. No. 212 of 1964.

3. The ground on which the order of the Government was quashed in the writ petition was that the Government had no jurisdiction to entertain the revision petition, because it was time barred. A contention was put forward before the learned Judge that the Government must be deemed to have taken suo motu action under Section 64 -A of the Motor Vehicles Act. This contention was repelled by the learned Judge, who said that:

'A reading of impugned order shows that the Government took action on the revision petition filed by the third respondent and that they passed the impugned order on it. It is, therefore, difficult to accept the contention of Mr. Reddipantulu that the Government took suo motu action under Section 64 -A and that they totally disregarded the revision petition filed by the third respondent (appellant)'.

4. The correctness of this view of the learned is canvassed before us by Sri Srirama Sastry, appearing for the appellant. His contention is that under Section 64 -A power is conferred on the State Government to call for the records of any order passed by any authority or officer subordinate to it, either on its own motion or on application made to it, Simply because an application was made before it by an aggrieved party the Government does not cease to have the suo motu power to call for the records and examine the same. The learned counsel for the respondent on the other hand, argues that once an aggrieved party files a revision petition, the Government loses all power to act suo motu. The point for decision in this appeal is which of these two contentions is correct and acceptable.

5. Section 64 -A is in the following terms:-

'The State Government may of its own motion or on an application made to it call for the records of any order passed or proceeding taken under this Chapter by any authority or officer subordinate to it, for the purpose of satisfying itself as to the legality or regularity or propriety of such order or proceeding and after examining such records may pass such order in reference thereto as it thinks fit'. It is to be seen that the section, by itself, does not impose any restriction as to limitation with regard to the filing of an application or exercise of the suo motu power by the State Government. That is, however, found in Rule 195 of the Andhra Pradesh Motor Vehicles Rules, 1964. Sub-Rule (1) of that Rule says:

'An application to the Government under Section 64 -A shall be in the form of memorandum setting forth concisely the purport of the petition and shall be presented to the Govt. within thirsty days of the date of receipt by the person aggrieved of the order or proceedings against which the application is preferred. The application shall be accompained by five additional copies of the same and the original or certified copy of the order or proceedings against which the application is preferred.

Provided if any doubt arises as to the date of receipt of the order or proceedings by the person aggrieved, the decision of the Government shall be final'.

Even Rule 195(1) does not limit the time within which the State Government can exercise its suo motu power. The rule prescribes a period of 30 days, as a period of limitation within which an aggrieved party can file an application before the Government. That period of 30 days has to be reckoned from the date of the receipt of the order by the person aggrieved. It is not disputed before us that the application before the Government was preferred by the appellant beyond 30 days, tough the reason for the delay is stated to be the fact that J. V. Ramanaiah, masqueraded as the Secretary of the appellant Union and, therefore no copy of the resolution of the Regional Transport Authority allowing the transfer was communicated to the Union through its real Secretary. It is stated that for that reason, the filing of the petition before the Government was delayed. Whatever might be the reason for the delayed presentation of the petition, it is clear that it comes within the mischief of the limitation prescribed by Rule 195(1) and could not, therefore, be entertained by the Government. This much is conceded by the learned counsel for the appellant himself.

6. But, then, the question us whether under the circumstances, the Government was precluded form exercising its suo motu power also by virtue of the fact that the aggrieved party had filed before it a time barred petition. We have no no doubt that the question is capable of only one answer and that is, that the Government still continue to have the power of acting suo motu. The language of the section does not lend any support to the contention of the respondent. It is impossible to construe the section as laying down that, if an application by an aggrieved party is made to it, the Government cannot exercise it suo motu power, but should only adjudicate on the application one way or the other. Neither the section nor any rules made under the Act prescribe the manner in which an order or proceeding of any authority or officer subordinate to the Government can be brought to its notice, so that it may of its own motion call for the records and examine them. It may come to know of an order by the lower authority or officer sending it a copy of such order or proceeding or it may come to know of a proceeding, while it is examining some other connected matter. It is equally possible for the Government to come to know of an order or proceeding when the aggrieved party itself files a petition before it. Since the knowledge of the government of any order or proceeding may arise at any time, it was thought necessary and desirable by the rule making authority that no period of limitation should be prescribed for the exercise of suo motu power by the Government.

7.We fail to see anything either in Section 64 -A or in Rule 195, which prevents the Government from taking suo motu action, which it comes to know of a defective order or proceeding of a lower authority, through a petition filed by pan aggrieved party though it is not maintainable on account of bar of limitation or in otherwise irregular. Obviously, the main intention of the legislature is to confer on the Government power to correct orders and proceedings of the lower authorities and officers. The power is conferred on the Government and for the exercise of that power no limitation is prescribed. What Rule 195(1) imposes is only a limit on the aggrieved parities' right to file a petition. It does not in any way interfere with or restrict the power of the Government to correct an incorrect order of a lower authority. If the petition filed by tha aggrieved party is not maintainable for any reason, it could only mean that there is no application made to the Government. Much a situation cannot be worse than there being no application at all. It is admitted and indeed that cannot be any dispute that if there is no application at all and if the Government comes to know of an incorrect order at any time, it can call for the records and correct it. The filing of an unmaintainable application by an aggrieved party cannot alter the situation and take away the power of the Government to act suo motu. After all, the application which is irregular and not maintainable for some reason or other could be a source of knowledge for the Government of the incorrect order. Once it comes to know of an order, either through the application of an aggrieved party or in some other way, the Government can exercise its power suo motu.

8. It should also be noted that Section 64 -A uses the word 'or' between 'of its own motion' and 'on application made to it' which shows that the Government can act in either case and set right the order or proceeding. If the latter method is not available, the first one is certainly open to the Government. The use of the word' 'or' certainly imports into the section the meaning 'that the Goverrnment's power to correct orders covers each of the two contingencies viz., 'acting on its own motion' 'or' on application made to it by an aggrieved person. To argue that the existence of one contingency excludes the other is clearly violating the meaning and intention of the section. We can also test the same in another way. Suppose within 30 days, the Government of its own motion called for the records and found that there was no error in the order of the lower authority. Would it prevent the aggrieved party from presenting an application within 30 days from the date of receipt of the order. We do not think it would. It can as well happen that after re-examination of the records with the aid of the aggrieved party's representation, the Government may detect some error which should be rectified. Even then the Government will continue to have the power to correct such an order. It is thus clear that one method does not exclude the other.

9. In this context, the absence of any period of limitation for such exercise of suo motu power by the Government is very significant and revealing. That should necessarily mean that even if the right of an aggrieved party to file an application before it is time barred, the Government can none the less, proceed in the matter suo motu. We cannot, therefore, accede to the argument of the learned counsel for the respondent that, once an aggrieved party files an application, the Government loses all power to act suo motu. On a reading of Section 64 -A and Rule 195(1) we have no hesitation to hold that even if an application is filed before the Government which is not maintainable on account of bar of limitation or for some other reason, the Government nevertheless continues to have the power to act suo motu.

10. It is then contended that the Government in its impugned order purported to adjudicate only upon the application of the appellant, though it was barred by time. The learned Judge observed that it is difficult to accept the contention that the Government took suo motu action under Section 64 -A and that they totally disregarded the revision petition filed by the appellant. We do not think it is necessary that the application filed by the appellant should be totally disregarded. Perhaps in this case, the Government came to know of the order of the Regional Transport Authority only through the application of the appellant. Consequently, the application of the appellant could not be disregarded by the Government. It was thus referred not only in the preamble but also in the preliminary portions of the order. But the body of the main order does not refer to the revision petition filed by the aggrieved party nor does it purport to adjudicate on that petition. The order merely points out to the drawbacks in the decision of the Regional Transport Authority and records the conclusion that the transfer of the permit is void and should be set aside. Then the Government directed that the case should go back to the Regional Transport Authority for fresh disposal according to law having due regard to the representation of the revision petitioner. No doubt it is true that the Government did not state that it was exercising its suo motu power. It was only exercising the obvious power it had of correcting an order of the lower authority conferred on it under Section 64 -A. It should also be noted that the contention that the revision petition was barred by time was not raised before the Government; at any rate it was not argued before it. Had it been argued perhaps, the Government would have specifically stated that it was exercising its suo motu power. Having failed to argue the point before the Government and thus to create an oaccasion for the Government to specifically state the power it was exercising the first respondent cannot now turn round and say that the Government passed the order only on the revision petition filed by the appellant.

11. That apart, as we have stated, it is indisputabel that the Government had power under Section 64 -A to correct an incorrect order passed by a lower authority. When it had undisputed authority to pass the order which it did, in our view it is immaterial whether the nature of the power it exercised was stated or not . Further, even supposing that the impugned order was stated to be on the revision petition alone it is not vitiated by the mistaken reference in it as an order on the revision petition. The crux of the problem is whether the Goverenment had power to pass such an order. Undoubtedly it has and, therefore, the impugned order is avalid one, passed in exercise of that power.

12. This view of ours finds support from the following decisions. In A. M. Transport v. State of Madras, : AIR1955Mad660 a contention was urged that:

'No appeal lays to the Government against the order of the Central Road Traffic Board passed through its Secretary, refusing the variation, and the order of the Government did not disclose that their revisional jurisdiction (under Section 64 -A) was invoked or that they intended to exercise such revisional powers'.

The argument was the aggrieved party sought to file an appeal which did not really lie, and nevertheless, the Government entertained and allowed it. Finding that the Government had ample revisional power under Section 64 -A to interfere in the matter Rajamannar, C. J. speaking for the Division Bench, observed in paragraph 9 of the judgment:

'The other contention that was urged was that no appeal lay to the Government against the order of the Central Road Traffic Board passed through its Secretary, refusing the variation, and that the order of the Government did not disclose that their revisional jurisdiction was invoked or that they intended to exercise such revisional powers. We do not consider that there is much substance in this objection because if the authority had the power to pass the order such an order could not be held to vitiated by the caption given to it'.

In Nilkanth Prasad v. State of Bihar, : AIR1962SC1135 the Supreme Court held that the appeal Board was entitled, when the record was before it to revise the order of the Regional Transport Authority even if the appeal was incompetent in view of the vase powers of revision under Section 64 -A.

13. In Afzal Ullah v. State of Uttar Pradesh, : [1964]4SCR991 certain bye-laws were prepared by the Muncipal Board, but it purported to have made them under a wrong provision of the Act. The Supreme Court finding that the provision of law invoked by the Muncipal Board in making bye-laws was wrong and that the impugned bye-laws could be justified under other provisions of the Act, then held that mention of wrong provision under which bye-laws were purported to be made was not sufficient to declare the bye-laws invalid. It was held that once it was shown that the Muncipal Board had the competence to make bye-laws, the fact that the preamable to the bye-laws mentioned clauses which were not relevant, would not effect the validity of the bye-laws. It was observed-

'The validity of the bye-laws must be tested by reference to the question as to whether the Board had the power to make those bye-laws. If the power is otherwise established, the fact that the source of the power has been incorrectly or inaccurately indicated in the preamble to the bye-laws would not make the bye-laws invalid'.

we have, therefore, no doubt that the Government was fully competent to pass the order dated 15-1-64 which was impungned in W. P. No. 212 of 1964 and it cannot be quashed for the reason that the appellant had filed a revision petition before it after the period of limitation.

14. We must also note that the learned 4th government Pleader appeared for the State of Andhra Pradesh and the Secretary of the Regional Transport Authority, who are respondents 2 and 3 in the appeal, supported the appellant.

15. For these reasons the order of Gopalakrishna Nair. J. in W. P. No. 212 of 64 is liable to be set aside. Accordingly the appeal is allowed. The order in W. P. No. 212 of 64 is set aside and that of the Government dated 15-1-1964 in G. O. Ms. No. 67 is restored. The appellant will have his costs from the first respondent. Advocates fee Rs. 100.

16. Appeal allowed.


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