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Sri Nirmal Das Khattooria Vs. State Transport Authority (Tribunal) Lucknow and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 373 of 1960 and Writ Petn. No. 1987 of 1960
Judge
Reported inAIR1961All511
ActsMotor Vehicles Act, 1939 - Sections 64 and 134(2)
AppellantSri Nirmal Das Khattooria
RespondentState Transport Authority (Tribunal) Lucknow and ors.
Appellant AdvocateS.N. Kacker, ;K.N. Tripathi and ;D.D. Seth, Advs.
Respondent AdvocateStanding Counsel, ;S.C. Khare, ;L.D. Joshi, ;S.H.S. Abdi and ;Sadiq Ali, Advs.
DispositionAppeal and petition dismissed
Excerpt:
.....section 134. the only ground on which the appellate tribunal can reverse or alter an order of the regional authority is 'error, omission or irregularity in the proceedings' and even if such error, omission or irregularity is found to exist the tribunal must further find that the same has occasioned a failure of justice. in either case it was necessary before the appellate tribunal could interfere that the error, omission or irregularity should have occasioned a failure of justice. unless therefore there was a definite finding that such failure of justice had been occasioned, the mere fact that the decision of the regional transport authority suffered from what the appellate tribunal considered was an error, omission or irregularity would not entitle the latter to alter or reverse the..........convenient to dispose them of together.2. by a notification published on the 6th of june 1959 the regional transport authority invited applications to fill certain vacancies on the pilibhit-bisalpur-bisanda route. seventy three persons applied for stage carriage permits on the route and all the applications were published in the gazette dated the 5th of september 1959. the seventy three applicants included sri nirmal das khattooria, sri mohammad tahir and sri bankey lal vidyarthi. all the applications were considered by the regional transport authority in the meetings held on the 7th and 8th of december, 1959.the other applications were rejected but permits were granted in respect of the route to sri bankey lal vidyarthi and sri nirmal das khattoo-ria. the other persons concerned.....
Judgment:

Srivastava, J.

1. Special Appeal No. 373 of 1960 and writ petition No. 1987 of 1960 are connected with each other and it will therefore, be convenient to dispose them of together.

2. By a notification published on the 6th of June 1959 the Regional Transport Authority invited applications to fill certain vacancies on the Pilibhit-Bisalpur-Bisanda route. Seventy three persons applied for stage carriage permits on the route and all the applications were published in the Gazette dated the 5th of September 1959. The seventy three applicants included Sri Nirmal Das Khattooria, Sri Mohammad Tahir and Sri Bankey Lal Vidyarthi. All the applications were considered by the Regional Transport Authority in the meetings held on the 7th and 8th of December, 1959.

The other applications were rejected but permits were granted in respect of the route to Sri Bankey Lal Vidyarthi and Sri Nirmal Das Khattoo-ria. The other persons concerned submitted to the order but five appeals were filed against the decision before the State Transport Authority Tribunal, The persons who filed the appeals were Sri Mohammad Tahir, Sri Purshottam Deo, 'Sri Mardan Ali Khan, Sri Sami Ullah Khan and Sri Nathu Lal Varshney. The appeals were considered together' by the Tribunal on the 23rd of June 1960.

It dismissed the appeals of Sri Purshottam Deo, Sri Mardan AH Khan and Sri Sami Ullah Khan and by the same order it cancelled the permits in favour of Sri Bankey Lal Vidyarthi and Nirmal Das Khattooria and instead granted permits to Sri Mohammad Tahir and Nathu Lal Varshney. Thinking that the tribunal had granted his permit to Sri Mohammad Tahir, Sri Nirmal Das Khattooria filed civil writ petition No. 2155 of 1960 in this Court on the 7th of July 1960 and prayed that the order of the Tribunal dated the 23rd of June 1960 be quashed by a writ of certiorari.

He also claimed a writ of mandamus commanding the Regional Transport Authority not to interfere with his right to ply his stage carriage on the route in question under the permit duly granted to him by the Regional Transport Authority by its order dated 7/8-12-1959. The only persons impleaded in the petition were the State Transport Authority (Tribunal), the Regional Transport Authority and Sri Mohammad Tahir.

Bankey Lal Vidyarthi too was dissatisfied with the cancellation of his permit by the Tribunal. He in his turn filed writ petition No. 1987 of 1960. He however prayed only for a writ of certiorari quashing the order of the Tribunal dated the 23rd of June 1960. He impleaded in his petition both Sri Mohammad Tahir and Sri Nathu Lal Varshney, the persons in whose favour the Tribunal had granted permits, and the State Transport Authority (Tribunal).

3. Though both the writ petitions were filed against the same order of the Tribunal they were based on different grounds. The only ground pressed in support of his petition by Sri Nirmal Das Khattooria was that the Tribunal had no justification to upset a decision of the Regional Transport Authority on a question of fact and in any case had no justification for interfering with the discretion exercised by the Transport Authority. The petition was heard by Mr. Justice Jagdish Sahai who did not accept the contention put forward and dismissed the petition by the order dated 26-7-1960, the subject of special appeal No. 373 of 1960.

4. The sole ground urged by Sri Bankey Lal Vidyarthi in support of his petition is that the Tribunal had cancelled two permits and had granted them to two persons Sri Mohammad Tahir and Sri Nathu Lal Varshney. The claim of the petitioner (Bankey Lal Vidyarthi) should have been considered for both the permits which were being granted by the Tribunal. The Tribunal had however considered bis claim only in comparison with that of Sri Nathu Lal Varshney, It had not compared that claim with that of Mohammad Tahir at all. The order of the Tribunal was, therefore, liable to be quashed On that ground.

5. The ground taken in support of his petition by Sri Bankey Lal Vidyarthi, however, appears to be clearly untenable as it is based on a misreading of the judgment of the Tribunal. At one place the Tribunal definitely stated:

'So far as the case of appellants Sarvasri Mohammad Tahir and Nathu Lal Varshney goes we feel that they have got a better claim and are more qualified as against respondents, Sarvasri Bankey Lal Vidyarthi and Nirmal Das Khattooria as well as other appellants.'

It is therefore clear that the claims of both Sri Mohammad Tahir and Nathu Lal Varshney were considered to be better than that of Sri Bankey Lal 'Vidyarthi. His claim was considered not only in comparison with that of Nirmal Das Khattooria but in comparison with that of Mohammad Tahir also. No other point was pressed in connection with this petition.

6. The question raised by Sri Nirmal Das Khattooria in his special appeal is more important and relates to the interpretation of Sub-section (2) of Section 134 of the Motor Vehicles Act which reads like this:

'No order made by a competent authority under this Act shall be reversed or altered on appeal or revision on account of any. error, omission Or irregularity in the proceedings, unless it appears to the prescribed appellate authority or revisional authority, as the case may be, that such error, omission or irregularity has, in fact, occasioned a failure of justice.'

7. Section 64 of the Motor Vehicles Act confers a right 06 appeal on persons who are aggrieved by the orders enumerated in Clauses (a) to (i) of that section. It is urged by the learned counsel for Sri Khattooria that the powers of the Appellate Tribunal are not co-extensive with those of the authority against whose orders the appeals are preferred to the Tribunal, The powers of the Tribunal are considerably limited and the limitation is provided in Sub-section (2) of Section 134.

The only ground on which the Appellate Tribunal can reverse or alter an order of the Regional Authority is 'error, omission or irregularity in the proceedings' and even if such error, omission or irregularity is found to exist the Tribunal must further find that the same has occasioned a failure of justice. In the absence of either of these requirements the Appellate Authority has no jurisdiction to interfere.

8. Before Mr. Justice Jagdish Sahai it appears to have been urged that the 'error' referred to in Sub-section (2) of Section 134 was an error of law, but the -argument was not repeated before us and need not be considered. The two propositions which the learned counsel for the appellant urged here were:

(1) That the word 'proceedings' used in the sub-section was not synonymous with 'Procedure,' and covered the ultimate decision of the Regional Transport Authority also. The error, omission or irregularity committed by the authority could either relate to procedure or to the decision itself. In either case it was necessary before the Appellate Tribunal could interfere that the error, omission or irregularity should have occasioned a failure of justice. Unless therefore there was a definite finding that such failure of justice had been occasioned, the mere fact that the decision of the Regional Transport Authority suffered from what the Appellate Tribunal considered was an error, omission or irregularity would not entitle the latter to alter or reverse the decision.

(ii) That if a certain matter was in the discretion of the Regional Transport Authority and in the exercise of its discretion it had! passed a certain order, the appellate authority could not hold that the order suffered from any error, omission or irregularity simply because left to itself that authority would have exercised the discretion in a different manner. The appellate authority had therefore no jurisdiction to interfere with the decision of the Regional Authority in a discretionary matter.

9. The second contention may be disposed of first. In support of it learned counsel placed reliance on some observations made in the case of Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd. : [1955]2SCR252 . In that case the respondent company, Ashok Chandra Rakhit Ltd., had got a trade mark registered with the Registrar of Trade Marks in respect of the Ghee which was manufactured and sold by it. At the time of the registration theL Registrar had wanted that there should be a disclaimer of the word 'Shree' used in the trade mark but as the company did not agree the disclaimer was not insisted upon.

Subsequently discovering that there was a well-established practice whereby the word 'Shree' was either refused registration as a trade mark or a disclaimer was entered if it was a part of a trade mark, the Registrar after notice to the company directed that a disclaimer be inserted in respect of that word. Feeling aggrieved by the order of the Registrar the company preferred an appeal to the High Court which set aside the order of the Registrar rectifying the register. On an appeal to it by the Registrar the Supreme Court while dealing with the manner in which the High Court should have approached the case remarked. :

'Assuming, but without deciding, that they do apply, it must, nevertheless, be remembered, adopting the language of Lord Macnaghten in 'Eno v. Dunn', 1890-15 A C 252 at p. 263, that it is the Registrar 'to whom in the first instance is committed the discretionary power'. If that authority has exercised his discretion in good faith and not in violation of any law such exercise of discretion should not be interfered with by the High Court merely on the ground that, in the opinion of the High Court, it could have been exercised differently ?r even that the High Court would have exercised it differently, had the matter been brought before it in the first instance. The proper approach in such a case is for the High Court to consider, as said by Lord Dunedin in-- 'In re F. Reddaway and CO.'S Application.', 1926-44 R P C 27 at p. 36.

'Whether the Registrar had really gone so wrong as to make it necessary to interfere with his discretion.'

10. It is obvious that in making the above observations Das C. J. was not laying down a rule that an appellate court can never interfere with the decision of a subordinate court made in the exercise of its discretion and has no jurisdiction to do so. What he was emphasising was the manner in which the appellate court should approach such questions. The proper attitude is that there should be no interference with exercise of discretion, unless the subordinate court has gone so wrong that interference is necessary.

The case is, therefore, not an authority for the proposition that exercise of its discretion by the lower court in a particular way can never be considered an error liable to correction by an appellate court. So even if it be conceded that it was in the discretion of the Regional Transport Authority to grant a permit to one person in preference to another, if the Appellate Tribunal was cf opinion that the choice should have been different, in an appropriate case, it could interfere with the discretion and exercise its own discretion in the matter. If It did so it could not be held to have acted without jurisdiction.

11. The Motor Vehicles Act provides for the constitution of an appellate tribunal. It also enumerates the orders against which an appeal can be filed. The powers of the appellate tribunal have, however, not been defined in the Act. As observed by the Privy Council in Nagendra Nath Dey v Supresh Chandra Dey .

'An Appeal within the ordinary acceptation of the term is an application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court.'

12. The purpose of the appeal being the grant of relief not already granted or the refusal of relief wrongly granted, it is reasonable to presume, in the absence of anything to the contrary, that the powers of the appellate authority are coextensive with those of the original authority. If the be not so the appellate authority may well be handicapped in that it will not be able to do something which in its opinion ought to have been done by the subordinate authority. Dealing with the provisions of the Excise Act relating to appeals and powers of appellate authorities, their Lordships of the Supreme Court observed in Nagendra Nath v. Commissioner of Hills Division : [1958]1SCR1240 :

'There is no indication that they make any distinction between the two grounds of interference on appeal and in revision. That being so, the powers of the Appellate Authorities in the matter of settlement, would be co-extensive with the powers of the primary authority namely, the District Collector or the Sub-Divisional Officer.'

13. In Ram Gopal v. Anant Prasad : AIR1959SC851 , the learned Judges rejecting the argument that Clause (f) of Section 64 of the Motor Vehicles Act restricted in any way the power of the appellate tribunal to deal with appeals filed under Clause (a) of the. section assumed that that tribunal had the power

'to grant all proper reliefs in appeal competent under Clause (a) of the section.'

Unless therefore it is provided expressly or by necessary implication the appellate authority has the same powers as the original authority and pan interfere with the decision under appeal on all grounds, whether of fact or law, provided it is of opinion that the decision is not correct.

14. The incorrectness of a decision may or may not relate to the non-observance of some technicality or rule of procedure. The Legislature usually provides before the appellate authority can Interfere that in cases of the former kind the error must affect the root of the matter and should have caused a miscarriage of justice For instance, Section 537 of the Cri. P. C. provides that:

'...... No finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Ch. XXVII or on appeal or revision on account (a) of any error, omission or irregularity in the complaint, summons, warrant, proclamation order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or ...... unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice.'

15. In the C. P. C. there is Section 98 according to which

'No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court'

16. A similar provision is to be found it Section 37 of the U. P. Excise Act.

17. In our opinion Sub-section (2) of Section 134 of the Motor Vehicles Act is another instance of the same practice and was intended not to cut down the powers of the Appellate Authority to the extent suggested by the appellant but to ensure that the authority did not interfere OH technical grounds or grounds of procedure unless a miscarriage ot justice had occurred. We, therefore, find it difficult to accept the contention of the learned counsel for the appellant that the word 'proceedings' used in the sub-section covers the actual decision of the Regional Transport Authority also and does not mean 'procedure' only. The word whether used in the singular or plural has more than one meaning and the meaning has to be ascertained from the context in which it is used. According to the Webster's New International Dictionary when used in law in the plural it means :

'Course of procedure in an action at law; any step or act taken in conducting litigation.'

18a. Procedure, measure and step have been mentioned as synonyms for the word. The Concise Oxford Dictionary gives the meaning ot the word 'Proceedings' as used in legal sense as 'steps taken in legal action,'

18. In the recent case of Haynes v. Haynes and Sawkill 1960-1 WLR 968, while considering the meaning of the word 'proceeding' Wrangham, J. expressed the view that:

'The word 'proceedings' is apt to describe that which goes on at the trial. I do not say that it is limited to that, but it is apt to describe the whole of that which goes on at the trial.'

19. Learned counsel for the appellant referred to Halsbury's Laws of England Volume I, p. 5, paragraph 7 where it is laid down:

'The term 'proceeding' is frequently used to denote a step in an action, and obviously it has that meaning in such phrases as 'proceeding in any cause or matter'. When used alone, however, it is in certain statutes to be construed as synonymous with, or including, 'action.''

20. The observation does not help the appellant as it only shows that in some context the word may mean the action itself. That is not disputed. The question is whether the word 'proceedings' as used in Section 134 (2) of the Motor Vehicles Act has that meaning. In our view from, the context it is clear that the word was used in the sub-section to mean 'procedure'.

21. Some support for the view that Sub-section (2)of Section 134 limited the powers of the AppellateTribunal to the extent contended for by the learnedcounsel for the appellant was sought to be derivedfrom some observations made in the case of Cho-khey Lal v. Jamuna Devi, Special Appeal No. 464of 1958 D/- 6-11-1958 (All). The observation reliedupon is:

'Sub-sec. (2) of Section 134 limits the power of the appellate authority with respect to its orders on appeal. It cannot reverse or alter the order under appeal on account of any error, omission or irregularity in the proceedings unless it is of opinion that such error, omission irregularity had in fact occasioned a failure of justice. This is a clear indication of the fact that the appellate authority can reverse or alter the order under appeal and that this it can be only when a failure of justice had actually taken place. It cannot pass any order other than an order of dismissing an appeal or of reversing or altering an order under appeal and that too in the special circumstance of there having occurred some failure of justice.'

In that case the Regional Transport Authority had increased the strength of buses run on the Jhansi Kouch route from six to ten. Chokhey Lal and Smt. Jamuna Devi were among the applicants for the new permits. The Transport Authority granted a permit to Smt. Jamuna Devi and three other persons but rejected the application of the other applicants including Chokhey Lal. They preferred appeals to the State Transport Authority Tribunal.

The Tribunal stayed the operation of the permit granted to Smt. Jamuna Devi and directed the Regional Authority to grant a temporary permit to Chokhey Lal in the vacancy caused by the stay. Smt. Jamuna Devi then applied under Article 226 of the Constitution for the quashing of the order. The petition succeeded and the question with which the learned Judges were dealing in appeal was whether the order had been rightly quashed.

The main ground on which the appeal was dismissed was that the powers of the Regional Transport Authority to issue temporary permits were limited by the provisions of Section 62 of the Act and temporary permits could be granted by it only if the circumstances mentioned in one of the four clauses of that Act existed. It was held that it was not open to the Appellate Authority to add to the statute and to provide an additional ground for granting a temporary permit by staying a permit already granted and directing that during the period of stay a temporary permit should be granted to a particular person.

The observations made with reference to Sub-section (2) of Section 134 were thus obiter. The learned Judges only quoted the words of the sub-section and emphasised the concluding words requiring that a failure of justice must have been cccasioned. They were not considering the question which is before us at present. It does not appear to have been their intention to lay down that in every case in which the appellate authority wants to interfere it must in addition to finding that there has been an error, omission or irregularity record the opinion that a failure of justice had been occasioned on that account.

22. Reference was also made by the learned counsel for the appellant to two decisions of Nagpur and the Punjab High Courts viz. National Transport Co. v. Singhavi Komalchand Jain, AIR 1953 Nag 264 and Saraswati Co-operative Transport Society. Ltd. v. Chief Commissioner Delhi State . These cases itstead of being of any help to him really go against him. In. the former it was assumed that the appellate authority in appeal could grant a permit to a person to whom it has been refused by the Regional Transport Authority.

It was contended that though the Regional Transport Authority was bound in granting permits to comply with provisions of Section 47 of the Motor Vehicles Act, the appellate authority was not. The contention was not accepted. In the latter case it was held that the appellate authority could grant additional permits. It was not held in either of these cases that the powers of the appellate court were as limited as suggested by Sri Kakkar; on the contrary in both the cases the orders of the appellate authority interfering with that of the Regional Authority were upheld even though there was not finding by the former that a miscarriage of justice had been occasioned.

23. Both the contentions urged on behalf of the appellant are thus untenable and it appears to us that the order of the Appellate Tribunal cannot be questioned on their basis.

24. Both the appeal and the petition must, therefore, fail and are dismissed with costs.


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