Kerala High Court
Themmalapuram Bus Transport, Palghat vs The Regional Transport Authority, ... on 2 December, 1966
Equivalent citations: AIR 1967 KERALA 285, ILR (1967) 1 KER 209, 1967 KER LJ 139, 1967 KER LT 122
JUDGMENT Krishnamoorthy Iyer, J.
1. This is a petition under Article 228 of me Constitution of India to issue a writ of certtorari or any other appropriate writ or direction and quash Ext. P-1 order dated 14-5-1965 passed by the third respondent the State Transport Appellate Tribunal, Ernakulam.
2. The first respondent, the Regional Transport Authority, Palghat, invited applications for the issue of stage carriage permit for operating a vehicle on the route Palghat-Pazhampalakode. The petitioner and the second respondent were among the applicants. The first respondent on 29-7-1983 directed the issue of permit to the petitioner. The second respondent filed appeal 265 of 1963 against the said order before the third respondent. Though the third respondent passed an interim order staying the operation of the order dated 29-7-1963 till the disposal of the appeal it was vacated on 4-10-1965. The petitioner in view of the cancellation of the order of interim stay was operating the vehicle in accordance with the permit granted to him by the first respondent.
The appeal 265 of 1963 was subsequently allowed on 11-12-1964 setting aside the grant of permit and remanding the applications of the petitioner and the second respondent for fresh consideration by the first respondent. The petitioner filed O. P. 3346 of 1964 under Article 226 of the Constitution for quashing the order dated 11-12-1964 Though the original petition was dismissed on 5-2-1965 this Court permitted the petitioner to operate his vehicle on the route until the disposal of the applications remanded to the first respondent. The first respondent after remand directed the grant of permit to the second respondent by the order dated 8-3-1965 and the appeal filed by the petitioner against that order was dismissed by the third respondent by Ext, P-1 dated 14-5-1965.
3. The petitioner was thus operating the vehicle on the concerned route for a period of nearly one year and 5 months from 4-10-1983 to 8-3-1965. The operation of the vehicle by the petitioner from 4-10-1963 to 11-12- 1984 was on the basis of the permit the grant of which was subsequently set aside by the third respondent on 11-10-1964.
4. The only contention raised by the learned counsel for the petitioner was that in passing Ext. P-1 the Tribunal wrongly refused to consider the qualification and experience gained by the petitioner by operating the vehicle from 4-10-1983 to 11-12-1984 on the basis of the permit, the grant of which was eventually set aside and thereby it committed an error of law apparent on the face of the record. It is agreed before us, that if the experience gained as a result of operating the vehicle from 4-10-1963 to 11-12-1984 is not to be considered Ext. P-1 order does not call for any interference. The learned counsel for the petitioner canvassed support for his plea from the decision of the Full Bench of this Court in C. D. M. T. E. C. S. Ltd. v. M.P. Conveyance. 1962 Ker LT 448 = (AIR 1962 Ker 341 FB), where it was observed thus:
"What is the point of time with reference to which the qualifications for a permit should be evaluated by the State Transport Appellate Tribunal? Is it the date of the application to the Regional Transport Authority? Or is it the date on which the Regional Transport Authority renders its decision? Or is it the date on which the State Transport Appellate Tribunal decides the appeal?
We have come to the conclusion that the date that is material is the date on which the Regional Transport Authority deals with the application. The earlier date--the date of the application--may not be in the public interest which as is evident from Section 47 of the Motor Vehicles Act 1939, is the important and paramount consideration in these matters. The later date--the date on which the State Transport Appellate Tribunal decides the appeal--will mean an unwarranted extension of the appellate power".
5. The submission of the learned counsel for the petitioner was that since the first respondent rendered its decision only on 11-12-1964, the factual experience gained by the petitioner till then, though on the basis of the grant of permit which was eventually set aside, should have been taken into account by the third respondent, in the public interest in view of Section 47(1) (a) of the Motor Vehicles Act, 1939. The question whether the experience gathered on the basis of a permit subsequently set aside by the tribunal can be taken into account for the disposal of the application in pursuance to which the impugned permit was originally granted did not come up for consideration in the decision of the Pull Bench referred to and the point was not decided there.
In the case before us though the original decision for the issue of a permit was rendered on 29-7-1983 that was set aside and the applications were remanded for fresh disposal. The subsequent decision of the first respondent was rendered on 8-3-1965. Taking that 8-3-1965 is the material date for considering the experience and qualifications of the applicants the question reduces itself to a simple one whether the experience gained by the petitioner under a permit which has been set aside can be made use of in the same proceedings at a subsequent stage by the first respondent.
6. The rule is well known that the acts of Courts should not be allowed to work injury on the suitors. Their Lordships of the Supreme Court observed in Tang Singh v. Brij Lal, AIR 1966 SC 1631 at p. 1633:
"There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that 'mistake. This is aptly summed up in the maxim: 'Actus curiae neminem gravabit'".
7. Lord Cairns in the leading English case of Rodger v. Comptoir D'Escompte De Paris, (1871) 40 LJ PC 1, said:
"One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors and when the expression 'the act of the Court' is used it does not mean merely the act of the primary Court or of any intermediate Court of appeal but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter to the highest Court which finally disposes of the case".
8. The maxim actus curiae neminem gravabit (An act of the Court shall prejudice no man) observed Herbert Broom (in his book -- A selection of Legal Maxims -- tenth edition page 73) " is founded upon justice and good sense; and affords a sate and certain guide for the administration of the law' In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case; and, therefore, if one party to an action die during a curia advisari vult, judgment may be entered mine pro tune, for the delay is the act of the Court, for which neither party should suffer".
9. The doctrine of restitution contained in Section 144 of the Civil Procedure Code is based on the above principle. The , provision for restitution is in view or the duty of the Court to place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed. Lord Carson said in Jai Berham v. Koder Nath, AIR 1922 PC 269 at p. 271.
"Nor indeed does this duty or jurisdiction arise merely under the said section (Section 144 C. P. C.). It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved"
Where a party has obtained possession or re covered money under an erroneous decree, it will not be a restoration of status quo ante merely to restore possession or to return the money. The party deprived of it would have lost the profit of the property or the interest on the money of which he had been deprived.
The injury caused by such deprivation is also attributable to the act of the Court in con sequence of the wrong order subsequently re versed and the Court is empowered to grant such reliefs to redress the loss caused by such wrong.
10. It is the ordinary rule that the rights of parties must be determined as at the date of the action and not on the basis of rights accrued to them after the institution of the proceedings. Their Lordships of the Privy Council observed in Doorga Prosad v. Secy. of State, AIR 1945 PC 62, thus:
"The appellant in his case claims further that the certificate, if originally valid, became unenforceable by reason of matters whloe occurred after filing of the suit; but their Lordships are of opinion that the relief claimed in this suit must be confined to matters existing at the date when the suit was instituted".
But a discretion to depart from this general rule is recognised in certain circumstances. But a Court is not allowed to take note of subsequent events in cases where it will give manifest advantage or disadvantage to one party. But in view of the wording of Section 47(1) of the Motor Vehicles Act, 1939, it has been held that qualifications prevailing on the date of considerations of the applications by the Regional Transport Authority should furnish the material for assessing the relative merits of the applicants. This will not afford a ground for holding that the experience gained by the grant of a permit subsequently set aside, should be recognised as a qualification in favour of an applicant in the same proceeding. Since the grant of permit has been held to be wrong and it has been righted by the tribunal, by the grant being set aside, the parties must be relegated to a position as if no such grant of permit was made by the Regional Transport Authority. If that is the principle, the experience gained by an applicant due to the permit issued in pursuance to wrong order should not be used especially to the detriment, of the party at whose instance the erroneous order has been set aside.
11. The result of accepting the contention of the learned counsel for the petitioner will be to allow the petitioner to take advantage of the wrong decision which is attributable to the mistake of the 1st respondent. The assessment of qualifications on the date on which the Regional Transport Authority considers the applications, must be without any reference to the previous erroneous decision granting the permit and the consequence which arose therefrom. If so the benefit gained by the petitioner as a result of the mistake cannot be used to the detriment of the second respondent at a subsequent stage of the same proceeding. Such experience may perhaps be a factor to be considered in the interest of public under Section 47 (1) (a) of the Motor Vehicles Act, 1939, under other circumstances; but it cannot be allowed to override the maxim "Actus curiae neminem gravabit".
12. In this view, Ext. P-1 order does not call for any interference. The petition is there fore dismissed but in the circumstances with out costs.