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Smt. Mustaq Bai Vs. State Transport Appellate Tribunal, Madhya Pradesh, Gwalior and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 315 of 1973
Judge
Reported inAIR1976MP20
ActsMadhya Pradesh State Transport Appellate Tribunal (Appeal and Revision) Rules, 1972 - Rule 4(5); Code of Civil Procedure (CPC) ; M.B. Motor Vehicles Rules, 1949; Constitution of India - Article 226
AppellantSmt. Mustaq Bai
RespondentState Transport Appellate Tribunal, Madhya Pradesh, Gwalior and ors.
Appellant AdvocateV.S. Dabir, ;A.S. Kutumbale, ;A.G. Dhande and ;O.P. Namdeo, Advs.
Respondent AdvocateS.S. Agarwal and ;A.S. Jha, Advs. for Respondent No. 3
DispositionPetition allowed
Cases ReferredSurendra v. State Transport Appellate Authority
Excerpt:
.....to resort to the provisions of the code of civil procedure so far as they can be found applicable. 5. in the view we take, we are clearly of the opinion that the order, dated 4-4-1972 passed by the state transport appellate tribunal dismissing the petitioner's appeal in default was without jurisdiction......said order, the petitioner's application for restoration of the appeal to file was rejected by the state transport appellate tribunal on the ground that it was barred by limitation. at this stage, we might note that the petitioner has not made any prayer for quashing the order of the state transport appellate tribunal, dated 4-4-1972, dismissing the petitioner's appeal in default.2. the petitioner's husband, nazir ahmad, a bus operator, and other bus operators, namely, respondents 3 to 7, had applied for a stage carriage permit for the sanjeet-mandsaur route. the regional transport authority, by order dated 12-12-1970, granted a permit in favour of the third respondent, namely, motilal phulchand. against that order of the regional transport authority, the petitioner filed an appeal.....
Judgment:

P.K. Tare, C.J.

1. In this petition under Arts. 226 and 227 of the Constitution of India, the petitioner challenges the order of the State Transport Appellate Tribunal, dated 27-2-1973 (Petitioner's Annexure C). By the said order, the petitioner's application for restoration of the appeal to file was rejected by the State Transport Appellate Tribunal on the ground that it was barred by limitation. At this stage, we might note that the petitioner has not made any prayer for quashing the order of the State Transport Appellate Tribunal, dated 4-4-1972, dismissing the petitioner's appeal in default.

2. The petitioner's husband, Nazir Ahmad, a bus operator, and other bus operators, namely, respondents 3 to 7, had applied for a stage carriage permit for the Sanjeet-Mandsaur route. The Regional Transport Authority, by order dated 12-12-1970, granted a permit in favour of the third respondent, namely, Motilal Phulchand. Against that order of the Regional Transport Authority, the petitioner filed an appeal before the State Transport Appellate Tribunal. A notice of the hearing on 4-4-1972 was issued to the petitioner, but in spite of that notice, she remained absent. Therefore, the Appellate Tribunal dismissed the appeal in default by an order of that date. Thereafter, the petitioner on 19-12-1972 filed an application for restoration of the appeal to file. No doubt that restoration application was unduly delayed and there is no explanation offered for the delay caused. The State Transport Appellate Tribunal, by order dated 27-2-1973 (Petitioner's Annexure-C), dismissed the restoration application on the ground that it was barred by limitation. Hence this writ petition.

3. Before considering the instant question arising in the present writ petition, it may be relevant to note that the Madhya Pradesh State Transport Appellate Tribunal (Appeal and Revision) Rules, 1972, came into force with effect from 11-8-1972. Sub-Rule (5) of Rule 4 of the said Rules provides as follows:

'Unless otherwise expressly provided in the Act or in these Rules, tbe procedure laid down in the Code of Civil Procedure, 1908 (V of 1908) shall, so far as may be, be followed in all proceedings under these Rules.'

Therefore, by virtue of the said Rules, now after 11-8-1972, the State Transport Appellate Tribunal can resort to the provisions of the Code of Civil Procedure so far as they may be made applicable to a particular situation. But prior to the coming into force of these Rules on 11-8-1972, no procedure was prescribed for the Appellate Tribunal to follow any course of action. So far as the Regional Transport Authorities are concerned, the procedure has been prescribed by the Rules and there is no provision for application of the provisions of the Code of Civil Procedure.

4. As regards the procedure to be followed by the Regional Transport Authority, a Full Bench of this Court in Surendra v. State Transport Appellate Authority, 1970 MPLJ 253 = (AIR 1970 Madh Pra 230) (FB), laid down that a. Regional Transport Authority has no jurisdiction to dismiss an application in default and that in the absence of a party, the Regional Transport Authority is bound to consider the case on merits. That principle, in our opinion, would be applicable to the State Transport Appellate Tribunal as well before the new Rules were brought into force from 11-8-1972. We do not find any reason to depart from the reasoning of the said Full Bench which, in our opinion, would be applicable to the proceedings before the Appellate Tribunal as well before 11-8-1972. However, after the new Rules have been brought into force, the position so far as the Appellate Tribunal is concerned would altogether change and it is now open to the Appellate Tribunal to resort to the provisions of the Code of Civil Procedure so far as they can be found applicable. In this view of the matter, we are of the opinion that the State Transport Appellate Tribunal had no jurisdiction to dismiss the appeal in default on 4-4-1972.

It is true that the Rules in force then, namely, the Madhya Bharat Motor Vehicles Rules, 1949, permit the Regional Transport Authority or the Appellate Authority to refuse to grant relief to a person who would remain absent. It would be for the simple reason that the Regional Transport Authority or the Appellate Authority would not be in a position to decide the case on merits if some information was required from the applicant or the appellant. In that event, the decision would certainly be on merits analogous to the provisions of Order 17, Rule 3, of the Code of Civil Procedure. But on the basis of the said Rules, we are unable to conclude that the Regional Transport Authority or the Appellate Authority has any jurisdiction to dismiss an application in default on the lines analogous to Order 9, Rule 8 or Order 17, Rule 2, Civil Procedure Code.

5. In the view we take, we are clearly of the opinion that the order, dated 4-4-1972 passed by the State Transport Appellate Tribunal dismissing the petitioner's appeal in default was without jurisdiction. Consequently, the other proceedings that followed in the matter of restoration of the appeal to file would not be very material. Or course, if the provisions of the Code of Civil Procedure had been made applicable at that stage, the petitioner's restoration application would have been barred by time.

6. However, the learned counsel for the third respondent urged that there is no prayer for quashing the order of the State Transport Appellate Tribunal, dated 4-4-1972, and if an amendment were to be sought now for quashing that order, the present petition would be unduly delayed. We are of opinion that this contention raised on behalf of the third respondent is of no significance in view of our finding that the order, dated 4-4-1972, passed by the State Transport Appellate Tribunal was without jurisdiction and that the Appellate Tribunal was bound to decide the question on merits. In this view of the matter, neither the question of limitation nor the question of delay arises and we cannot allow an order without jurisdiction to remain on record for a mere technicality. Therefore, we feel that it is necessary to quash the order of the State Transport Appellate Tribunal, dated 4-4-1972 and consequently all subsequent proceedings thereafter would automatically stand quashed.

7. As a result of the discussion aforesaid, this petition succeeds and is accordingly allowed. We hereby quash the order of the State Transport Appellate Tribunal, dated 4-4-1972, as also the subsequent proceedings in the matter of restoration of the appeal to file including the order of the Appellate Tribunal, dated 27-2-1973 and, by a writ of mandamus, we direct the State Transport Appellate Tribunal to decide the appeal on merits in accordance with law. Under the circumstances, we further direct that there shall be no order as to the costs of the present writ petition which shall be borne as incurred. The security amount deposited by the petitioner be refunded to her. The third respondent will be free to raise all questions in the appeal tc be heard by the Appellate Tribunal which would be available to him and we do not wish to pronounce anything in that behalf.


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