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P. Swarajyalakshmi Vs. the State of Andhra Pradesh Represented by Secretary Home (Transport-i) Dept., Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 634 of 1958
Judge
Reported inAIR1959AP321
ActsMotor Vehicles Act, 1939 - Sections 57(4), 64 and 64A; Madras Motor Vehicles (Amendment) Act, 1948; Code of Civil Procedure (CPC) - Sections 115
AppellantP. Swarajyalakshmi
RespondentThe State of Andhra Pradesh Represented by Secretary Home (Transport-i) Dept., Hyderabad and ors.
Appellant AdvocateK. Amareswari, Adv.
Respondent AdvocateM.S. Ramachandra Rao, 2nd Government Pleader, ;K.F. Baba, ;P. Babulu Reddi and ;E.P.K. Sikhamani, Advs.
DispositionPetition dismissed
Excerpt:
.....andhra pradesh, by its proceedings dated 12-3-1957, the state authority set aside the order of the regional authority and granted the permit to the 4th respondent. while a litigant has, independently of any statute, the right to institute a suit of a civil nature in some court or another, unless its cognizance is expressly or impliedly barred, a a right of appeal does not exist unless it is clearly given by statute. clearly legislative provisions as to such matters only lay down some of the limitations under which the jurisdiciion is allowed to be exercised. sub-section (1) specifies the powers conferred on the appellate court in order to enable it to dispose of a case effectively and completely. clearly there is no scope far the application of the principle of this decision in..........petitioner was among the twenty applicants for the permit.in its proceedings dated 25-9-1956, the regional authority granted the permit to the petitioner. thereupon six of the unsuccessful applicants preferred appeals to the state transport authority, andhra pradesh, by its proceedings dated 12-3-1957, the state authority set aside the order of the regional authority and granted the permit to the 4th respondent.aggrieved by this order, the petitioner preferred a revision to the government under section 64-a of the motor vehicles act. in g. o. ms. no. 1106 dated 13-5-1958, the government set aside the orders pf both the subordinate authorities and remitted the case to the regional authority, guntur for fresh disposal according to law.3. before us, learned counsel for the petitioner.....
Judgment:

Satyanakayana Raju, J.

1. This is a petition under Article 226 of the Constitution, for the issue of a writ of certiorari to quash the order of the Government of Andhra Pradesh, Home (Transport I) Department, in G. O. Ms. No. 1106 dated 13-5-1958.

2. In order to appreciate the contentions raised in the petition, it is necessary to state the material facts. A new, route between Penumudi and Kuchinapudi via Repalle was opened and the Regional Transport Authority, Guntur, invited applications for a stage carriage permit on that route. The petitioner was among the twenty applicants for the permit.

In its proceedings dated 25-9-1956, the Regional Authority granted the permit to the petitioner. Thereupon six of the unsuccessful applicants preferred appeals to the State Transport Authority, Andhra Pradesh, By its proceedings dated 12-3-1957, the State Authority set aside the order of the Regional Authority and granted the permit to the 4th respondent.

Aggrieved by this order, the petitioner preferred a revision to the Government under Section 64-A of the Motor Vehicles Act. In G. O. Ms. No. 1106 dated 13-5-1958, the Government set aside the orders pf both the subordinate authorities and remitted the case to the Regional Authority, Guntur for fresh disposal according to law.

3. Before us, learned counsel for the petitioner contends that there is no power under Section 64-A of the Motor Vehicles Act enabling the Government to remand a case to the Regional Authority for fresh disposal.

4. Section 57 of the Act prescribes the procedure to be followed in the grant of permits. Section 64 provides for appeals to the State Transport Authority against the orders of the Regional Authority specified therein. Then comes Section 64-A which is in these terms:

'The State Government may, of its own motion or on application made to it, call for tho 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, regularity or propriety of such order or proceeding and after examining such records, may pass such order in reference thereto as it thinks fit.'

5. This provision embodies an amendment introduced by the Motor Vehicles (Madras Amendment) Act (XX of 1948) and vests a power of revision in the State Government. Section. 64-A is couched in wide terms and the power of the Government extends to its satisfying itself as to the 'legality, regularity or propriety' of any order or proceeding of any authority or officer subordinate to it and passing such order in reference thereto as it thinks fit'.

But, argues the learned counsel for the petitioner, that notwithstanding the apparently wide power deducible from the use of the expression 'as it thinks fit', there being no specific power of remand vested in the Government by or under the provisions of the Act, and the provisions of the Code of Civil Procedure not having been made applicable to proceedings under Section. 64-A of the Act, the State Government is not entitled to direct a remand.

5. Now, the true scope of an appellate or revisional jurisdiction has been now here defined. The word 'appeal' has been held to mean the 'removal' of a cause from an inferior to superior Court for the purpose of testing the soundness of the decision of the inferior Court. It is a remedy provided in law for getting the decree of the lower Court cancelled and is in fact a complaint made to tho higher Court that the decree or order of the lower Court is unsound and wrong.

An appeal is not a fresh suit; it is only a continuation of the original proceeding and a stage in the suit itself. While a litigant has, independently of any statute, the right to institute a suit of a civil nature in some Court or another, unless its cognizance is expressly or impliedly barred, a a right of appeal does not exist unless it is clearly given by statute.

6. A Full Bench of the Madras High Court in Chappan v. Moidin Kutti, ILR 22 Mad 68 (FB), explained the scope of 'appellate jurisdiction' and re-visional jurisdiction in these terms ;

' An appellate jurisdiction may be exercised in a variety of forms and indeed in any form which the Legislature may choose to prescribe.' Such jurisdiction may be exercisable only in certain specified classes of cases. Its exercise may be claimable by a party as a matter of right or only subject to his obtaining the leave of the Court which passed the decision to be appealed against. Again, the power to review or revise may be confined to points of law or may extend to matters of fact also. Clearly legislative provisions as to such matters only lay down some of the limitations under which the jurisdiciion is allowed to be exercised. Nor are the conditions, prescribed by Section 622 (Section 115 of the present Code) for the exercise of the power of revision conferred by it, different in essence from the kind of limitation just above referred to and more commonly imposed by Legislature on the exercise of appellate functions. But none of such limitations, however much it may circumscribe the exercise of the power, touches, as already remarked, the intrinsic quality of the power itself.'

1937 Mad 616: (AIR 1937 Mad 385) (FB), held that

7. A later Full Bench of the Madras High Court in Chidambara Nadar v. Rama Nadar, JLR

'a remedy by way of revision does not differ in essence from a right of appeal (the only difference being in the mode in which the power is exercised).''

8. There is thus no essential distinction between a remedy by way of appeal and revision. If so much is conceded, the question is what are the powers of an appellate tribunal under Section 64 of the Motor Vehicles Act? That section merely says that a person aggrieved by the orders specified therein may, within the prescribed times and in the prescribed manner appeal to the prescribed authority who shall give to such person and the original authority an opportunity of being heard.

It is axiomatic that a power to entertain anappeal must comprise within its ambit the powerto dispose of the appeal in the manner known tolaw. An appellate Tribunal has a right to set asidean order under appeal and substitute its own order,It may not go so far and may merely quash theorder appealed against and automatically requirethe subordinate authority to restore the originalproceeding and to decide it afresh.

9. In Nadar Transports v. State of Madras, : AIR1953Mad1 , a Division Bench of the Madras High Court, consisting of Satyanarayana Rao and Rajagopalan JJ., construing the provisions of Section 64 of the Act, held that the discretion vested in the State Transport Authority in disposing of an appeal, is unfettered, in Narayanan v. Central Road Traffic Board, (1953) 1 Mad LJ (NRC) 10, Mr. Justice Chatndra Reddi (as he then was) held that the powers of the Central Road Traffic Board in the matter of remand are untrammelled by any of the provisions of the Code, of Civil Procedure. Even if there is no specific provision in the Act in this regard, it must be held that the appellate authority in disposing of an appeal under Section 64 of the Act has the power of remand, it being ancillary and incidental to the power to dispose of an appeal.

10. Section 107 of the Code of Civil Procedure which defines the powers of an Appellate Court reads:

'(J) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power ............

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to he taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.'

There is 'no analogous provision in the Motor Vehicles Act. There is also no provision incorporating the provisions of the Civil Procedure Code in the rules of procedure applicable to Tribunals under the Motor Vehicles Act. It is therefore argued ' that there is no jurisdiction for the application of the principles of Section 107 of the Code to Tribunals functioning under the Motor Vehicles Act as it would mean applying those provisions when they are not made applicable.

11. Sub-section (2) of Section 107 of the Code of Civil Procedure is based on the general principle that an appellate Court has the same powers as the original Court and can do while the appeal is pending, what the original Court could have done while the suit was pending. Sub-section (1) specifies the powers conferred on the appellate court in order to enable it to dispose of a case effectively and completely.

12. Now, we may consider the decisions relied on by the learned counsel for the petitioner. The first of them is Anantharaju Shetty v. Appu Hegade, 37 Mad LJ 162: (AIR 1919 Mad 244). This case arose under Section 10 of the Religious Endowments Act (as it then stood) and the question for determination was whether a District Judge had power to review his own order. Oldfield and Seshagiri Aiyar JJ., who constituted the Division Bench, held that there was no power to revise conferred by Section 141 of the Civil Procedure Code on Courts acting under Special enactments.

In Fernandas v. Ranganayakulu Chetty, : AIR1953Mad236 , Hamaswamy J,, held that the Madras Buildings (Lease and Kent Control) Act and the rules framed thereunder contain no provision for review and the Act itself does not 'contain any provision regarding the application of the provisions of the Code of Civil procedure and hence an application for the review of an order dismissing a revision petition under the Control Act, does not lie. These two decisions arc distinguishable.

An appeal differs from a review in that the primary intention of the review is the reconsideration of the subject by the same Judge under certain conditions, while an appeal is a rehearing by another tribunal. The power to review is not an inherent power of a judicial officer but must be specifically conferred by statute. As pointed out by Bama-swamy J., in the above case, this is based upon the common-sense principle that prim a facie a party who has obtained a decision is entitled to keep it unassailed the Legislature has enacted the mode by which it can be set aside.

13. Counsel for the petitioner also relied upon the decision in Abdul Khadir v. A. K. Murthy, AIR 1948 Mad 235. There, after satisfying himself that service of a notice of an appeal filed before him under the provisions of the Madras Buildings (Lease and Rent Control) Act 1946, had been duly effected, the Chief Judge of the Court of Small Causes, in his capacity as the appellate authority under the Rent Control Act, heard the appeal in the absence of the respondent and allowed it.

The order allowing the appeal was duly drawn up and was filed in the City Civil Court, Madras in order that execution upon it could be effected under Section 9 (1) of the Control Act. Subsequently on an application made to him by the respondent, the Chief Judge set aside the order and directed a fresh hearing of the appeal. An application was filed to the Madras High Court by the successful appellant to quash the order of the Chief Judge,

On a consideration of the material provisions of the Control Act, the High Court reached the conclusion that the appellate authority under the Act had no jurisdiction to set aside the order originally passed on the appeal. Gentle C. J. and Govinda-rajachari J., allowed the writ petition holding that there was no justification for the application of the provisions embodied in the Code of Civil Procedure In the absence of those provisions in the Rent Control Act.

There is no rule corresponding to Order 9, Rule 13 or Order 41, Rule 21 in the Control Act and the learned Judges, therefore, held that the appellate authority functioning under the Act had no jurisdiction to set aside the order. Clearly there is no scope far the application of the principle of this decision in determining the powers of an appellate authority functioning under Section 64 of the Motor Vehicles Act.

14. As was pointed out by their Lordships of the Supreme Court in New Prakash Transport Co. v. New Suwarna Transport Co., : [1957]1SCR98 , the Motor Vehicles Act and the rules framed thereunder, with particular reference to the original authority find the appellate authority, do not contemplate anything like a regular hearing as in a Court of justice. No elaborate procedure has been prescribed as to how the parties interested have to he heard in connection with the question, who is to be granted a stage carriage permit,

15. In Veerappa Pillai v. Raman and Raman Ltd, : [1952]1SCR583 , the Supreme Court examined elaborately the provisions.of the Act vis-a-vis the authorities created by the Act to administer its provisions relating to the grant of stage carriage permits. In the course of their judgment, their Lordships have made the following observations (at page 596 (of SCR) : (at p. 196 of AIR)) which are relevant to the present purpose: --

'Thus we have before us a complete and precise scheme fer regulating the issue of the permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities. The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally he had.'

The Regional Transport Authority and the appellate authority may be described as administrative bodies exercising quasi-judicial functions in the matter of grant of permits. They are constituted by the State Government. The principles governing the procedure of a quasi-judicial Tribunal have to be inferred from the nature of the Tribunal, the scope of its enquiry and the statutory rules of procedure laid down by the law for carrying out the objectives of the statute.

16. The observations made by Lord Loreburn, L. C. in Board of Education v. Rice, 1911 AC 179, the well-known decision of the House of Lords, may be usefully extracted : -

'Comparalively recent statutes have extended, if they have not- originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds, In the present instance, as in many others, what comes for determination is some times a matter to be settled by discretion involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it was a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.'

Every Tribunal invested with a power to determine a controversy has inherent jurisdiction to pass such orders in relating to the subject-matter of the controversy as would meet the ends of justice although there might be no direct statutory provision therefor. Similarly every authority empowered to entertain an appeal must ex necessitate have the power to review the order of the original authority and pass such orders in relation thereto which the justice of the case requires, though this is, of course, not to say that the appellate authority Is invested with an arbitrary power. To hold Otherwise would render infructuous the exercise of the appellate jurisdiction vested in the State Transport Authority under Section 64 of the Motor Vehicles Act.

17. A revisional authority can exercise the power of remand which is a necessary incident of its power to revise an order or proceeding of subordinate authorities. The revisional power conferred on the government under Section 64-A of the Motor Vehicles Act is analogous to the jurisdiction vested in the High Court under Section 115 of the Code of Civil Procedure. The words 'may pass such order in reference thereto as it thinks fit' in Section 64-A of the Motor Vehicles Act are in pari materia with the words 'may make such order in the case as it thinks fit' contained in Section 115 of the Code of Civil Procedure.

When once the jurisdiction to revise is established, there is no limitation imposed on the power of the authority as to the mode of disposal. The revisional authority may finally dispose of the case itself or pass any other order which may satisfy the justice of the case. What the order should be in any particular case would depend on the circumstances of that case.

18. Even so, learned counsel for the petitioner has argued that the Government may direct the State Authority to decide the matter afresh, but cannot direct the original authority to do so. We are unable to find any real force in this contention. When the Government is seized of the revision then it becomes its duty to determine as to the 'legality, regularity or propriety' of not merely the proceedings of the appellate tribunal . but the whole of them 'to cast its eye'' not merely on one part of the proceedings but the whole of them; what come under the review of the Government are the proceedings as a whole from start to finish and the object of the scrutiny of the Government is that so far as possible justice may be done in the proceedings as a whole.

19. It was then argued on behalf of the petitioner that under Section 57 (4) of the Act, the Regional Authority is not competent to consider any representation made after the appointed date and the Government cannot pass an order in revision which the Tribunal of first instance had no jurisdiction to make, and a decision of a Divisional Bench of the Madras High Court in Arunachalam Pillai v. Southern Rlys. Ltd., 1958-1 Mad LJ 1: (AIR 1958 Mad 236) was relied upon in support of this contention.

There, Rajamannar, C. J., and Panchapakesa Ayyar, J., held that the Regional Transnort Officer had no jurisdiction to deal with an application for variation of a route and the Government could not, as the revising authority under Section 64-A of the Act, grant such a variation. While considering the ambit of the jurisdiction under Section 64-A of the Motor Vehicles Act, the learned Judges held that the powers under Section 64-A to call for the records of subordinate authorities and to pass orders in reference thereto as it deems fit, do not extend to the making of an order in revision which the Tribunal of first instance itself had no jurisdiction to make. In summarising the effect of Section. 64-A of the Act, the learned Judges stated : --

'It cannot be denied that the Government could suo motu or on application made to them, call for the records of any order passed by any authority, or officer, subordinate to them: and the Regional Transport Officer would be an officer subordinate to the Government. But that could be only for the purpose of satisfying themselves as to -the legality, regularity, or propriety of such order. And, after examining the records, the Government could pass such order in reference thereto as they thought fit. In the present case, the Government should have found that the order passed by the Regional Transport Officer was not legal because he had no jurisdiction to pass the order he did. Once the Government came to that conclusion, there was nothing further which they could do than to set aside the order of the Regional Transport Officer and refer the applicant to the proper authority. There is nothing in the Act, or in the rules which empowers the Government to deal originally with an application for variation. They cannot therefore treat the revision petition of the appellant as an application made to them for variation and proceed to dispose of it in the first inst-ance. The fact that the Government is the filial revising authority, does not carry with It the implication that the Government has origina! Jurisdiction to deal with applications which properly should be dealt with, in the first instance by one or other of the several transport authrities. Of course, if the subordinate authority or officer had jurisdiction to entertain an application and had passed an order thereon, it would be open to the Government to set aside that order and pass, instead, 'he proper order which that authority or officer should have passed.'

20. We arc in respectful agreement with the observations made by the learned Judges. Section 57 (4) prohibits a Regional Authority from considering representations received after the appointed date. The Tribunal of First Instance did not do so; but the Stale Authority considered representations which were not made to the Regional Authority. The Government set aside the order of the Appellate Authority.

There was no attempt made by the Government, therefore, to consider representations which the Regional Authority had no jurisdiction to receive. Indeed, the order of die Government implies a disapproval of the procedure followed by the Appellate Authority in considering representations made before it for the first time.

What the Government did was to direct the Regional Authority to consider the matter afresh in accordance with law. There is nothing intrinsically wrong in this procedure because what the Government had done is really to direct the subordinate authority to comply with the principles of natural justice. Thus it will be seen that the order of the Government gives effect to the ratio of the decision of the Madras High Court.

21. Lastly, if was argued that the impugned order might be construed as having directed the Regional Authority to start afresh with re-notifying the route and inviting fresh applications. We do not understand the order of the Government as jhaving this effect. The Government only directed the Regional Authority to afford the parties a fresh! opportunity of making representations and adducing such evidence as they wish to place before it. Any other construction of the order would result in obvious injustice for that would be to allow the parlies, who had not already applied, to apply for a permit on the route now for the first time. The order must, therefore, be construed as having directed the Regional Authority not to re-notify the route itself but to consider representations which might be made within a period to be appointed by it and to dispose of the matter in accordance with law.

22. For all the above reasons, wo hold that the petitioner is not entitled to any relief and her petition must therefore be dismissed. In all the circumstances of the case, we make no order as to costs.


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