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High Court Of Madhya Pradesh
Bishambhar Dayal, C. J. , R. J. Bhave and A. P. Sen, JJ.
SURENDRA MOHAN CHAURASIYA - Appellant
Versus
STATE TRANSPORT APPELLATE AUTHORITY, M.P., GWALIOR - Respondents
Misc. Petn. 60 Of 1966
Decided On : 01/29/1970
Per Full Bench - Where a notice was not served on an applicant in terms of rules 45 (f) the application cannot be dismissed in default. [Paras 4, 12 & 15]
The language of subsections (5) and (7) of section 57 does not envisage a dismissal on account of the absence of a party. The very fact that for such refusal reasons have to be given by the Regional Transport Authority indicates that the application must be decided on merits. (Also see page 2399 of the Twelve Years Digest). [Paras 5, 12 & 15]
(2) Motor Vehicles Act, 1939 - S. 64 - Motor Vehicles Rules, 1940 (C.P. & Berar) - R. 73 (c) - powers of the State Transport Appellate Authority - power of remand - limitations on.
Per Bishambhar Dayal, C.J. - It is almost a necessity that if the material is on record the Appellate Authority should dispose of finally such a dispute and not remand the case to the Regional Transport Authority; otherwise, after a fresh decision, there would again be an appeal to the State Transport Appellate Authority and ultimately it would be the State Transport Appellate Authority that would have to decide questions of fact. Under rule 73 (c) of the C.P. and Berar Motor Vehicles Rules, 1940, which are applicable to this region, the Appellate Authority has even power to make such enquiry as it considers necessary and can pass any order as may be just and proper. The purpose of giving such wide powers to the Appellate Authority obviously is to avoid delay so that the Appellate Authority may give a final decision and may not have to remand a case again and again.
The proper principle on which a remand can be made by the State Transport Appellate Authority is that the material on record is insufficient to decide the matter and that the further enquiry which is necessary is such as cannot conveniently be undertaken by the Appellate Authority. 1966 JLJ 63, 1962 JLJ-SN 197 & 1962 JLJ SN 162 discussed. (Also see pages 2424-2426 of the Twelve Years' Digest.) [Para 9]
Per Bhave, J. - The Appellate Authority would be justified in remanding the case where the Regional Transport Authority totally failed to determine the competing claims of the parties on a consideration of the material on record having regard to the provisions under section 47 of the Motor Vehicles Act and has even failed to refer in its order to the material placed before it. [Para 12]
Per Sen, J. - Rule 73 (c) is couched in such general terms that it is difficult to define with any precision the limits of such power. But it is expected that the Appellate Authority, while remanding a case, should keep in view certain well settled judicial principles. A recourse should be had to the power of remand only in very exceptional circumstances where justice of the case demands it. An order of remand under Rule 73 (c) would be a proper order, if it is made by the Appellate Authority, in a case where there is no material or in which the material on record is not sufficient for reaching a decision on the point at issue or where there is some material defect in procedure which renders the proceedings before the Regional Transport Authority radically defective. In a case where there is material on record, on which a decision can be reached, the Appellate Authority would not be justified in remanding the case after setting aside the finding of the Regional Transport Authority or to direct it to reconsider the evidence. There is no point in such a case in compelling the Regional Transport Authority to rehear the case again or review the material afresh in the hope that, perhaps, it might come to a different finding on that point of fact. The Appellate Authority being itself a Court of fact. and having all the evidence in the case before it, and being specifically empowered to direct such further investigation into facts, as it may deem necessary, is entitled on such material or on the basis of such additional facts, as come to light to arrive at a different finding or come to a contrary conclusion, on that evidence, if in its opinion the Regional Transport Authority's finding was wrong. The remand of a case to the Regional Transport Authority would, in such circumstances, be wholly unjustified. [Para 21]
(3) Jurisdiction - confersal of, by an Act - includes the power to get the order executed.
Where an Act confers a jurisdiction, it impliedly also grants the power of doing such Acts, or employing such means, as are essentially necessary to its execution. [Para 18]
(4) Motor Vehicles Rules, 1940 (C.P. and Berar) - R. 73 (c) - scope of.
Per Sen, J. - The conferral of appellate jurisdiction on the Appellate Authority by Rule 73 (C) is in very general terms. It may not only "confirm, vary or set aside" the order against which the appeal is preferred, but it may also "make any can sequential or incidental order" as may be "just or proper". In the exercise of that jurisdiction, it may also held "such further enquiry", if any, as it "may deem necessary". The language of Rule 73 (c) is not, therefore, one of curtailment but it expressly leaves the questions at large before the Appellate Authority which has not only full jurisdiction and power in the matter of grant or refusal of permits just as the Regional Transport Authority has, but may in the exercise of that jurisdiction make such further enquiry as it deems expedient In other words, the appeal before the Appellate Authority is, virtually a continuation of the proceedings before the Regional Transport Authority for the grant of a stage carnage permit. [Para 19]
( 1 ) THIS petition arises out of a Motor Vehicles case and has been referred to a Full bench because of an apparent conflict of views in different Division Benches of this court on the question whether the State Transport Appellate Authority can remand a case to the Regional Transport Authority for a reconsideration of the matter when evidence is already on record and the State Transport Appellate Authority can dispose of the case on merits.
( 2 ) THE brief facts which have given rise to this writ petition are that the Regional transport Authority, Rewa, advertised for applications for one permit on the panna-Jabalpur route, 35 operators applied before the Regional Transport authority. On the 24th June, 1963 the Regional Transport Authority granted a permit to Surendra Mohan Chaurasiya, who has filed the present petition, and dismissed the other applications. Out of the operators whose applications had been rejected, 12 persons filed appeals before the State Transport Appellate authority, One appeal had been filed by the Madhya Pradesh State Road Transport corporation, which was appeal No. 314 of 1963. This appeal was allowed on the ground that the Regional Transport Authority had no power to reject the application in default, and the case was remanded to the Regional Transport authority. The Regional Transport Authority had rejected the application for a permit made by this Corporation on the ground that no one appeared on behalf of the applicant in spite of notice. The appeals of Pritam Singh, Jan Sewa Transport co-operative Society, Baldeo Prasad Shanker Prasad, and Peer Mohammad Haji zumman were allowed by the State Transport Appellate Authority on the ground that the appeal of the Madhya Pradesh State Road Transport Corporation had also been allowed and had been remanded for disposal on merits, The appeals of ramkrishna Dolan Prasad and Jayaram Prasad were dismissed as non-maintainable on technical grounds, while the appeals of Sindh Driver Transport co. , Sarda Narain Transport, B. D. Shukla, and Jabalpur Transport were dismissed as no one appeared to press the appeals.
( 3 ) FROM the above narration of facts it appears that five appeals were allowed and remanded by the State Transport Appellate Authority without going into the facts of the case. The first contention of learned counsel for the applicant in this Court was that the State Transport Appellate Authority was wrong in remanding these cases, in fact, the Appellate Authority should have itself gone through the evidence and decided the matter finally; and there was no justification for remanding the case when the evidence was on record. It was also contended by learned counsel that the Appellate Authority was wrong in remanding the case of the Madhya pradesh State Road Transport Corporation merely upon the ground that the regional Transport Authority had no right to dismiss the application in default. His contention was that the Regional Transport Authority was right in rejecting the application of the Corporation when no one appeared in support of the application in spite of service of notice.
( 4 ) I may first take up the second point as it can be disposed of shortly. The main contention of learned counsel in this connection is that under Rule 45 (f) the regional Transport Authority was entitled to call for a personal appearance of any applicant and if in spite of that order any applicant failed to appear the Regional transport Authority had jurisdiction to reject the application in default. The rule is as follows:
"the Provincial or the Regional Transport Authority; as the case may be, may summon any applicant for a permit to appear before it and may decline to grant the permit until the applicant has so appeared either in person or by an agent authorised by him in writing and until the applicant has furnished such information as may reasonably be required by the Authority in connection with the application. "
For the application of this
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