Madras High Court
S.M.Govindaswamy vs State Transport Appellate Tribunal on 27 April, 2010
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.04.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION No.20333 OF 2009 and M.P.No.1 of 2009 .. S.M.Govindaswamy .. Petitioner vs. 1.State Transport Appellate Tribunal, High Court Buildings, Chennai -600 104. 2.The Regional Transport Authority, Erode 638 011 3.The Regional Transport Officer, Kollukattumedu, Lakkapuram (PO) Erode 638 002. 4.P.Vivekandan .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, calling for the records of the first respondent culminating in the order dated 07.07.2009 in I.A.No.17 of 2009 in App.No.53/2003, quash the same and consequently, direct the Tribunal to allow the same. For petitioner : Mr.T.Mohan For 4th respondent : Mr.M.Palani ORDER
The writ petition is filed challenging the order of the first respondent State Transport Appellate Tribunal, dated 07.07.2009 passed in I.A.No.17/2009 in Appeal No.53 of 2003. The petitioner who is the Secretary of Makkal Nalam & Membattu Maiyam which is a society registered in the Tamil Nadu Societies Registration Act formed to create social awareness among the people campaigned in Erode focussing the rights of citizens under the Consumer Protection Act, 1985 has earlier filed W.P.No.12018 of 1996 for a direction to ensure town buses to ply on the routes stipulated in the permit. This Court by an order dated 01.10.2009 has directed the Regional Transport Authority, the second respondent to initiate action under Section 72 of the Motor Vehicles Act and also to constitute an Expert Committee to study the traffic problems and suggest measures to solve the traffic congestion. It is stated that based on the recommendations of the Experts Committee, the second respondent on 14.09.2000 has ordered to avoid traffic congestion that town buses which are plied from Erode Bus-stand to P.S.Park (via) Nachiappan Street and Borough Road and on its return trip from P.S.Park to Bus Stand (via) Ex-clock tower, Nethaji Road and Sathy Road that the section from Sathy Road corner to Ex-clock tower on Nethaji Road be made on one way. The petitioner has objected to such direction since such diversion of the route from Erode Bus Stand to P.S.Park (via) Nachiappa Street and Borough Road would cause more problems to the public and submitted that to divert the course of the route from Erode Bus Stand (via) Ex-clock tower would be more beneficial only to the bus operators but not in the interest of public. As against the order of the second respondent dated 14.09.2000, the petitioner has filed an appeal before the first respondent tribunal and the same is pending for many years namely 10 years and therefore, the petitioner filed I.A.No.17 of 2009 for appointment of Commissioner before the first respondent and the said application came to be rejected by the first respondent by an order, dated 07.07.2009 which is impugned in the writ petition and it is challenged on various grounds that the Expert Committee report was of the year 2000 and the situation has now totally changed and therefore, the present position has to be studied only by a Commissioner and therefore, it is the case of the petitioner that if only the original permit route is insisted to be resorted to, the congestion problem to the public will be avoided and the said order of the tribunal is challenged also on the ground that access to transport is a right guaranteed under Article 21 of the Constitution of India and that cannot be denied by rejection of application filed for the purpose of appointment of a Commissioner.
2.It is the contention of Mr.T.Mohan, learned counsel for the petitioner that the impugned order of the tribunal has failed to take note of the fact that review has to be necessarily made about the traffic situation from that which was assessed in the year 2000 for which the tribunal is having substantial powers as per the rules and it is also his submission that even the Expert Committee reports are not available so as to decide the issue in a proper manner and in the interest of public.
3.On the other hand, it is the contention of Mr. M.Palani, learned counsel for the fourth respondent who is the permit holder that in cases where there is traffic congestion there is a right on the part of the authorities concerned for the purpose of deviation of route as per the Rule 248 and therefore, the order of the second respondent in deviating the route cannot be said to be either invalid. It is also stated that in the Expert Committee the petitioner himself is a member and it is unfortunate for the petitioner to state that the Expert Committee report is not available. It is his further submission that when once the second respondent has passed the order of deviation from route taking note of the entire situation on fact and against which the petitioner has filed an appeal, it is ultimately, the appellate authority who has to decide such appeal filed against the order of the second respondent. By such application for appointment of Commissioner it would take away the right of the tribunal to decide the validity or otherwise of the impugned order of the second respondent. It is his submission that by appointing Advocate Commissioner the entire facts and circumstances of the case will be altered which cannot be permitted and therefore, according to him, the order of the tribunal is perfectly valid. It is also his submission that the order of the second respondent is to be tested by the tribunal and in such circumstances, the subsequent events are of not relevance. He would also rely upon the judgment of the Hon'ble Supreme Court in Rajesh D.Darbar and others Vs. Narasingrao Krishnaji Kulkarni and others reported in 2003 (7) SCC 219. It his submission that when once the variation route order has been issued, the same is under Section 72 of the Motor Vehicles Act by which vested right accrued to the permit holder and that cannot be taken away by making interim application and he would also rely upon a judgment of the Hon'ble Supreme Court in Rameshwar and others Vs. Jot Ram and others reported AIR 1976 SC 49.
4.It is his submission that the appellate authority being the statutory tribunal is seized off of the matter and there is no need for appointment of Commissioner to find out the existing position and the statutory appellate authority is expected to decide the validity or otherwise of the impugned order of the second respondent and not to decide about the changed circumstances for which, he would also rely upon the decision of the Hon'ble Supreme Court in State of West Bengal and others Vs.Ratnagiri Engineering Private Limited and others reported in 2009 (4) SCC 453 apart from the decision reported in 2008 (8) SCC 92 (State Bank of India and others Vs.S.N.Goyal). It is his further submission that this is not the forum to raise the public issue. It is also his submission that even though technically, the fourth respondent may not have any objection for the purpose of appointing Advocate Commissioner to find out the present position, it is on legal issue, such application is not permissible.
5.I have considered the submissions made on either side and perused the materials available on record and also given my anxious thought to the issue involved in this case.
6.It is seen that in a batch of writ petitions including that of the present writ petitioner in W.P.No.12018 of 1996 along with the petitioner filed by various transport owners wherein the writ petitioner's case was for a direction against the transport authority to secure the plying of town buses belonging to various owners who were impleaded as respondents 6 to 41 therein via Erode Clock Tower as per the permit conditions while the transport owners have filed the writ petitions to forbear the authorities from interfering with the operation of stage carriage services to ply their vehicles in Erode town through various routes. This Court in the common order, dated 04.10.199 has taken note of the agreement reached between the respective counsel, has given certain directions to the Regional Transport Authority namely, the second respondent. The portion of the order is as follows:
"2.It is agreed by the respective counsel that the Regional Transport Authority will initiate action under Section 72 of the Motor Vehicles Act for operation of various town routes depending upon the traffic potential, lie of the road, markets and other public places as well as thickness in population and all other relevant consideration with a view to ease congestion, free flow of traffic of all kinds of vehicle, issue a notice to the respective parties, hear them and thereafter pass appropriate orders according to law.
3.It is also open to the Regional Transport Authority to appoint an Expert Committee in consultation with the Superintendent of Police, District Collector and other public authorities to study the traffic problem and other ways and means. The study of the expert committee would also enable the authority to solve the traffic problem which Erode Town is facing due to population explosion in the Town.
4.The Regional Transport Authority shall initiate action within 90 days and thereafter within 150 days from the date of notification afford sufficient opportunity and pass orders in terms of the provisions of the Motor Vehicles Act and the Rules framed thereunder. To the said course, the counsel for the writ petitioners and respondents have no objection. This is recorded.
5.Pending the said statutory proceedings, with the consent of counsel for either side, the flow of traffic in particular the Town Services is Erode shall be regulated hereunder:
From P.S.Park From New Bus Stand Brough Road Sathi Road Manikoondu Nethaji Road Nethaji Road Manikoondu Sathi Road Nethaji Road Kutcheri Road New Bus Stand P.S.Park which course of traffic is suggested by the Regional Transport Officer as well as the representative of the Superintendent of Police to control the traffic. Though, there is some reservation by Mr.M.Palani and Mr.M.Krishnappan, this Court will be justified in accepting the suggestion which came from the Regional Transport Officer as well as the Superintendent of Police who are regulating the traffic in Erode Town as they are the authorities who are well aware of the traffic blockades and the population in the town. Hence, till the Regional Transport Authority passes the order of the town buses will follow the above course.
7.The interim direction is also passed with the consent of the writ petitioners including all the operators of the town buses as well as Makkal Nalam and Membattu Maiyam who is the petitioner in W.P.No.12018 of 1996.
8.The writ petitions are ordered accordingly. Consequently, the connected W.M.Ps. are closed.
9.It is also made clear that in case of any difficulties, it is open to the writ petitioners as well as the respondents to approach this Court for further directions, if any".
7.A reference to the said order shows that the same has been a consent order in which this Court has permitted the Regional Transport Authority to appoint an Expert Committee in consultation with the Superintendent of Police and District Collector and other public authorities to study the traffic problems in Erode Town which is facing problems due to the population explosion. Pending such proceedings to be initiated under Section 72 of the Motor Vehicles Act, interim arrangement has been made as it is seen in paragraph 5 of the order and ultimately the said order has become final. The said order also enables any of the parties to approach this Court for clarification, if there are any problem experienced in enforcing the said consent order. It appears that after the order came to be passed and as per the said order, an Expert Committee has been constituted which has filed its report. It is not in dispute that the representative of the petitioner also was inducted in the Expert Committee. Thereafter, at the instance of the learned counsel for the petitioner, the matter was posted before the Court for certain clarification. This Court by an order dated 16.11.2000 taking note of the statement made by the learned counsel for the petitioner regarding the reservation about the Expert Committee report and the consequential order of the District Collector who is the Regional Transport Authority, has directed the petitioner to work out his remedy in the manner known to law, if there is any grievance against the order of the Regional Transport Authority, namely, the District Collector. It is seen that it was the grievance of the petitioners that they were not given opportunity by the Experts Committee which has not studied the problems and therefore, the plea for clarification came to be rejected by this Court in the following terms:
"2.Heard Mr.T.Murugamanickam, learned counsel for the petitioners, the learned Special Government Pleader for the first respondent and Mr.Krishnappan and Mr.M.Palani for the other respondents.
3.It is now admitted that an expert committee had been constituted. The expert committee had submitted its report and after considering the said report, the first respondent/District Collector has also passed orders. If the petitioner has got any grievance with respect to the said order, the remedy lies elsewhere and it is well open to the petitioner to work out his remedy, if any.
4.Mr.T.Murugamanickam contends that he had not been given an opportunity and the expert committee did not study the traffic problem and certain procedural irregularities as well. The same cannot be gone into in this writ petition as according to the respondents the expert committee had already studied the entire matter, submitted its report and the first respondent, Regional Transport Authority after hearing the concerned had passed orders. In the circumstances, there is nothing to be clarified. Hence, the request of the counsel for the petitioner is rejected. It is well open to the petitioner to work out his remedies, if any according to law".
8.It is after the said order the petitioner has filed an appeal before the first respondent in Appeal No.53 of 2003 before the first respondent. The Regional Transport Authority, the second respondent earlier has constituted Expert Committee with official and non official members numbering 21 in which the Secretary of the petitioner is also inducted as one of the members. The report of the Expert Committee is stated to be dated 04.07.2000. Since the petitioner's complaint is that even though its secretary form part of the members of the Expert Committee as one among 21, he was not given proper opportunity to participate in the proceedings of the Committee and that the report of the Expert Committee, dated 04.07.2000 has not been furnished to him. It appears that the Expert Committee has given a suggestion for diversion of route originally granted between Erode Bus Stand to P.S.Park via Nachiappa Street and Brough Road and on the return trip from P.S.Park to Erode Bus Stand via Ex-clock Tower, Nethaji Road and Sathy Road and that report of the Committee appears to be for the purpose of easing congestion or maintaining free flow of traffic. It was based on the said recommendations of the Expert committee, the second respondent has issued notice to all persons including the operators under Section 72(2)(xxii) of the Motor Vehicles Act, 1988. It is seen that while the operators are stated to have accepted the proposals for deviation, the petitioner has objected to the same contending that the original route which has been given as per the permit namely Erode Bus Stand to P.S.Park via Sathi Road, Nethaji Road and Ex-clock Tower itself has to be resorted to stating that any deviation will create inconvenience and confusion to the travelling public. It was after taking note of the objections, the second respondent Regional Transport Authority, Erode, while accepting the Expert Committee recommendation has permitted to ply on the Central Bus Stand to various destinations via Nethaji Road via Natchiappa Street and on the return will ply from P.S.Park to Bus Stand via Nethaji Road and Sathy Road also ordered that the road between Sathy Road corner and Ex-clock tower on Nethaji Road declaring it as one way.
9.As stated above, it was after the order passed by the second respondent in the above writ petition a clarification was moved by way of mentioning and the Court has rejected the same on 16.11.2000 stating that it is for the petitioner to work out his remedy in the manner known to law. It is based on the same, the petitioner has filed the statutory appeal before the tribunal as against the order of the second respondent dated 14.09.2000 which is now pending. Pending the said appeal, which is admittedly pending from 2003 for disposal even as on date, the petitioner moved the application in 2009 to appoint a Commissioner to inspect the route Erode Bus Stand to P.S.Park via Ex-clock Tower and Via Brough Road and submit a report about the volume/nature of vehicular traffic on the road. That application came to be rejected by the tribunal on the ground that the same has been filed after the lapse of nearly 7 years without assigning any reason and also taking note of the fact that there are no provisions available under the Motor Vehicles Act and Rules for appointment of such Advocate Commissioner. The tribunal while rejecting such application has also taken note of the fact that the petitioner has not taken any steps to cancel the Expert Committee Report and not even stated as to how the Expert Committee Report is not correct and with that view rejected the said application.
10.Under Section 72 of the Motor Vehicles Act 1982 which empowers the Regional Transport Authority to grant such permits subject to various conditions, under Section 72(2) of the Act. The grant of such permit is subject to Section 71 of the Act and on the application made by persons as per Section 70 of the Act 11.71(1) of the Motor Vehicles Act which is as follows:
"A Regional Transport Authority shall, while considering an application for a stage carriage permit, have regard to the objects of this Act."
imposes an inherent obligation on the part of the Regional Transport authority to take note of the object of the Motor Vehicles Act.
12.The stage carriage for which the permit is given under Section 72 of the Act by the Regional Transport Authority taking note of the object of the Act is a public service vehicle as it is defined under Section 2(35) of the Act. Under Section 72(2) of the Act which postulates various conditions with which stage carriage permit could be granted by the Regional Transport Authority also enables such authority to vary the conditions of permit as it is seen under Section 72 (2) (xii) of the Motor Vehicles Act which is as follows:
"72(2)(xxii) that the Regional Transport Authority may after giving notice of not less than one month,-
a)vary the conditions of the permit;
b)attach to the permit further conditions;
Provided that the conditions specified in pursuance of clause(i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof".
13.A reading of the said provision shows that while variation of permit which includes the stipulations and the route has to be considered having regard to the object of the Motor Vehicles Act and taking note as to whether such variation will serve the convenience of the public. Therefore, it is clear that ultimately it is the convenience of the public at large which should be the guiding factor for the Regional Transport Authority either to grant permit for stage carriage subject to the conditions or to vary the conditions subsequent to the grant of original permit which has to be construed to impose that under changing circumstances, it is the duty of the Regional Transport Authority to vary the conditions taking note of the convenience of the general public. When such action is taken by the Regional Transport Authority, it is certainly not open to stage carriage permit holders to contend that by the original permit, there is a vested interest which cannot be altered. But such alterations cannot be done arbitrarily by the Regional Transport Authority without giving notice to the permit holder to whom a route permit has already been given. Therefore, the alteration of condition including that of the changed route permit has to be done by the Regional Transport Authority after giving opportunity to the permit holder who has got right to run the stage carriage in a particular route based on the original permit and after hearing such permit holder and taking note of the convenience of public, the Regional Transport Authority has to alter the conditions. Therefore, it is clear that the route permit by which stage carriage holder has been granted to run his vehicle on a particular route is not a permanent right available to him, even though he has got a statutory right to run on the said route as per the permit till it is altered in the manner known to law (i.e.)the provisions of the Motor Vehicles Act, 1988 in which case, the Regional Transport Authority has to pass orders taking into consideration the object of the Act as well as the convenience of the public.
14.It is in fact based on the said object of the Motor Vehicles Act especially relating to the running of the stage carriage permits, as per the direction of this Court stated supra, the Regional Transport Authority has constituted an Expert Committee which is well within its power and ambit under Section 72(2)(xxii) of the Act. But as stated above, even after alteration of such condition by following the procedure it is not as if, the Regional Transport Authority cannot make further alteration based on changed circumstances for, the need of the public is a changing pattern since it depends upon various factors including the increase in population, increase in the number of users of the vehicles, the condition of the road and many other factors. Inasmuch as such factors are ever changing process in the living conditions of people in any area, it cannot be said that either the Regional Transport Authority or the Appellate Tribunal has no power to take note of the existing circumstance to decide about the convenience of public in relation to the conditions to be imposed for the purpose of running of stage carriage. It is true that the validity or otherwise of the order passed by the second respondent, dated 14.09.2000 in varying the conditions of permit as stated above is to be ultimately tested by the first respondent Tribunal in the appeal wherein the petitioner has raised the issue that it has not been given any opportunity in the Expert Committee in an effective manner and Expert Committee report has not been furnished, while it has been the case of stage carriage permit holders that the petitioner has fully participated in the process of the expert committee. But it does not mean that the tribunal while deciding about the validity of the order of the second respondent should not look into the existing situation especially there is passage of time of nearly 7 years after the second respondent has passed its order varying the conditions. As the appellate tribunal the first respondent has jurisdiction while deciding about the validity or otherwise of the order of the second respondent which is tested before the tribunal to direct the second respondent to study the existing condition of traffic etc., in the said permit route for the purpose of passing an effective final order. That is the inherent right of the first respondent Tribunal, while disposing of the appeal. If that is so, it is difficult to accept the reasoning of the tribunal, that simply the petitioner in the interim application has not chosen to give reason for appointment of advocate commissioner to denote the existing physical features which relates to the requirement of the people in the area incidentally relating to the population, availability of more number of users, other vehicles on the road. It does not mean that the tribunal has no power to find out the physical position so as to pass an effective final order.
15.Section 89 of the Motor Vehicles Act, 1988 which enables the tribunal to decide the appeal against the orders of the State or a Regional Transport Authority etc., is as follows:
"89.Appeals (1)Any person-
(a)aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or
(b)aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or
(c)aggrieved by the refusal to transfer the permit under Section 82, or
(d)aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such countersignature, or
(e)aggrieved by the refusal of renewal of a permit, or
(f)aggrieved by the refusal to grant permission under Section 83, or
(g)aggrieved by any other order which may be prescribed, may within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final.
(2)The State Government shall constitute such number of Transport Appellate Tribunals as it thinks fit and each such Tribunal shall consist of a judicial officer who is not below the rank of a District Judge or who is qualified to be a judge of the High Court and it shall exercise jurisdiction within such area as may be notified by that Government.
(3)Notwithstanding anything contained in sub-section (1) or sub-section (2), every appeal pending at the commencement of this Act, shall continue to be proceeded with and disposed of as if this Act had not been passed.
Explanation:-For the removal of doubts, it is hereby declared that when any order is made by the State Transport Authority or the Regional Transport Authority in pursuance of a direction issued by the inter-State Transport Commission under clause(c) of sub-section (2) of Section 63-A of the Motor Vehicles Act, 1939 (4 of 1939), as it stood immediately before the commencement of this Act, and any person feels aggrieved by such order on the ground that it is not in consonance with such direction, he may appeal under sub-section (1) to the State Transport Appellate Tribunal against such order but not against the direction so issued".
16.Rule 157 of the Tamil Nadu Motor vehicles Rules is as follows:
"157.Appeal:-(1)An appeal under sub-section (1)of section 89 shall lie to the State Transport Appellate Tribunal within thirty days of the date of receipt of the order appealed against:
Provided that, if any doubt arises as to the date of receipt of the order by the person aggrieved, the decision of the Tribunal shall be final:
Provided further that where an appeal is presented within thirty days of the date of receipt by the person aggrieved of the order appealed against, but is returned by the Tribunal for re-presentation in the prescribed manner, and if such appeal is re-presented in the manner prescribed and within the date, if any, specified by the Tribunal for the re-presentation of the appeal, it shall be deemed to have been presented within the prescribed time for the purpose of this rule:
Provided also that no on memorandum of appeal shall relate to more than one order and be signed by more than one person.
(2)Under clause (g) of sub-section (1) of section 89 the following orders of a Regional Transport Authority or its Secretary and the State Transport Authority or its Secretaries and Assistant Secretaries shall also be appealable subject to the restrictions laid down in sub-rule (1), namely:-
(a)an order granting or refusing to grant an extension or variation or curtailment of an existing route or area covered by a permit;
(b)an order fixing or refusing to fix a schedule of timings for a stage carriage or a service of stage carriages;
(c)an order revising or refusing to revise a schedule of timings for stage carriage or a service of stage carriages;
(d)an order granting or refusing to grant additional trips of service of stage carriages;
(e)an order granting permission under sub-section (1) of section 82 or section 83
(f)an order granting or refusing to grant replacement of a vehicle covered by a permit by another vehicle of a different capacity
(g)an order granting renewal of a permit;
(h)an order refusing counter-signature of a permit
(i)an order varying the conditions attached to a permit or attaching to a permit further conditions;
(j)an order as provided under sub-section(3) of section 88 imposing conditions or varying any condition attached to a permit while countersigning the permit; and
(k)an order fixing postal subsidy in respect of stage carriages.
(3)The provisions of Limitation Act, 1963 (Central Act 36 of 1963) will not be applicable to appeals filed under this rule".
Only excludes the provision of the Limitation Act to the appeal filed before the tribunal. While 162 makes the decision of the tribunal as final, Rule 163-A enables the State Transport Appellate Tribunal with the previous sanction of the Government to make regulations regarding the procedure and disposal of its business, which is as follows:
"163-A.Regulations for the procedure and disposal of business:-Subject to the provisions of the Act and these rules the State Transport Appellate Tribunal may, with the previous sanction of the Government make, by notification, regulations regarding the procedure and disposal of its business".
17.Section 96(2)(iii) of the Motor Vehicles Act 1988, enables the State Government to make rules for the purpose of the conduct and hearing of appeals, based on which the Government of Tamil Nadu has framed the Tamil Nadu State Transport Appellate Tribunal Rules, 1989. While the said Rule enables under Rule 14, the tribunal to admit additional documentary evidence and give adjournment for hearings apart from grant of stay of the order of the authority against which appeal has been filed, also enumerates the procedures in case of the death of the parties and determination of legal representative of the parties and pass ultimate orders. Some of the rules which are relevant in this regard are Rules 11 and 14 which are follows:
"11.Stay or suspension of order by the Tribunal:-(1)In any appeal or revision petition, if the Tribunal is satisfied on an affidavit that it is just that the operation of the impugned order be stayed or suspended the Tribunal may, by order, stay or suspend the operation of the impugned order temporarily without notice to the respondent or respondents.
(2)The Tribunal may, after notice to the respondents and after giving an opportunity of being heard to both the parties either confirm or vacate the order suspending or staying the operation of the impugned order.
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14.Additional documentary evidence:-The parties to the appeal or revision petition shall not be entitled to produce additional documentary evidence before the Tribunal, but-
a)if the authority from whose order the appeal or revision petition is preferred has refused to admit evidence which ought to have been admitted; or
b)if the party seeking to adduce additional evidence satisfied the Tribunal that such document notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the order under appeal was passed; or
c)if the Tribunal requires any documents to be produced in the interest of justice; or
d)for any other sufficient reason, the Tribunal may allow such documents to be produced Provided that where such documents are received, the other party shall be entitled to produce rebutting documents, if any".
18.Inasmuch as, in my considered view, it is clear that the grant of permit even though creates a statutory right on the part of the holder to run his stage carriage in the specified route, the same could be even termed as vested right, at the same time, it is subject to following certain procedures. Law is well settled that the courts can always mould the relief especially in consonance with the object of the Motor Vehicles Act which is based on the convenience of people predominantly involving public interest. Of course, incidentally, protecting the private interest also is necessary like that of the stage carriage holders subject to various conditions with which the permit is given. Ultimately, when the second respondent Regional Transport Authority is empowered to alter the conditions of permit it cannot be said that the Tribunal sitting as an Appellate Authority constituted under the Motor Vehicles Act need not be taken into account the convenience of the public as well as the object of the Act while deciding on appeal about the various in the stage carriage permits. Even assuming that the Appellate Tribunal cannot take the role of Regional Transport Authority who is competent to issue permit as per section 72 of the Act, certainly it is open to the tribunal being the Appellate Authority to direct the Regional Transport Authority to study the existing situation regarding the permit condition and convenience of the public and pass orders, if ultimately the tribunal comes to a conclusion that there is no illegality or perversity in the order of the second respondent, dated 14.09.2000. It is in this regard, the first respondent tribunal functioning as per the ambit of the Motor Vehicles Act and Rules made thereunder by State and Central Governments, in my considered view, is entitled to take note of the object of the Act and convenience of the public when it relates to the issuance of permit to the stage carriage which is public service vehicle per the Section 2(35) of the Motor Vehicles Act. The judicial principles that the subsequent development would enable the courts to mould the relief if the same is in exceptional circumstances and are not prohibited by a statute was the view of the Hon'ble Supreme Court in Rajesh D.Darbar and others Vs. Narasingrao Krishnaji Kulkarni and others reported in 2003 (7) SCC 219 where the Supreme Court has crystalized the concept in the following words:
"4.The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Alabama1 (US at p. 607) illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri2 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot deny rights to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the court, even in appeal, can take note of such supervening facts with fundamental impact. This Courts judgment in Pasupuleti Venkateswarlu v. Motor & General Traders3 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in the cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (see V.P.R.V. Chockalingam Chetty v. Seethai Ache4)".
19.It is true that by virtue of moulding the relief, the right which has already vested cannot be nullified but it has to be taken note on the facts of the present case that by appointing Advocate Commissioner to find out the existing conditions, the rights of the permit holders are not going to be nullified especially when the second respondent is entitled to further alter the conditions as per the Act itself.
20.In Rameshwar and others Vs. Jot Ram and others reported AIR 1976 SC 49, the concept of moulding of relief was explained by the Hon'ble Supreme Court as follows:
"9.The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson4 illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri5 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot deny rights to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact Venkateswarlu, read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Chokalingam Chetty6). The law stated in Ramji Lal v. State of Punjab7 is sound:
Courts, do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiffs suit would be wholly displaced by the proposed amendment (see Steward v. North Metropolitan Tramways Company8) and a fresh suit by him would be so barred by limitation. One may as well add that while taking cautious judicial cognisance of post-natal events, even for the limited and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis".
21.The reliance placed on by the learned counsel for the fourth respondent the judgment in State of West Bengal and others Vs.Ratnagiri Engineering Private Limited and others reported in 2009 (4) SCC 453 is not applicable to the facts of this case. There is no controversy over the principle that statutory authority after performing its function and passing orders becomes functus officio. On the facts of the present case, it is only the tribunal which has been approached by the petitioner for the purpose of appointing Advocate Commissioner, therefore, the question of asking the second respondent to perform the function again is not an issue. However, there is no bar on the part of the tribunal while scrutinizing the validity or otherwise of the order of the second respondent to give suitable directions to the second respondent who is the authority to issue permit for stage carriages and in that regard, it cannot be said to be become functus officio after the permit is issued.
22.Again the judgment relied on by the learned counsel for the fourth respondent reported in 2008 (8) SCC 92 (State Bank of India and others Vs.S.N.Goyal) regarding the concept of functus officio is not applicable to the facts of the present case. In that case, the Hon'ble Supreme Court has analysed the concept of functus officio in the following paragraphs:
"24.Ext. P-24 is the note dated 18-1-1995 by which the disciplinary authority accepted the finding of guilt recorded/arrived at by the enquiry officer in regard to the charge against the respondent that he temporarily misappropriated the funds of the customers of the Bank. The disciplinary authority though of the view that the respondent deserved a severe punishment, felt that having regard to the length of his service, he should be shown leniency, and therefore, recommended imposition of a lesser punishment of reduction of pay by four stages in the timescale. The appointing authority made a note on the same day (18-1-1995) agreeing with the said recommendation. But the said order was not communicated to the respondent. On the other hand, the disciplinary authority on reconsideration of the matter put up a fresh note dated 2-5-1995 recommending the penalty of removal and that was accepted by the appointing authority on 3-5-1995 and communicated to the respondent on 30-6-1995.
25. The learned counsel for the respondent contended that the appointing authority became functus officio once it passed the order dated 18-1-1995 agreeing with the penalty proposed by the disciplinary authority and cannot thereafter revise/review/modify the said order. Reliance was placed on the English decision V.G.M. Holdings Ltd., Re7 wherein it was held that once a Judge has made an order which has been passed and entered, he becomes functus officio and cannot thereafter vary the terms of his order and only a higher court, tribunal can vary it. What is significant is that decision does not say that the Judge becomes functus officio when he passes the order, but only when the order passed is entered. The term entering judgment in English law refers to the procedure in civil courts in which a judgment is formally recorded by the court after it has been given.
26.It is true that once an authority exercising quasi-judicial power takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage an authority becomes functus officio in regard to an order made by him. P. Ramanatha Aiyars Advanced Law Lexicon (3rd Edn., Vol. 2, pp. 1946-47) gives the following illustrative definition of the term functus officio:
Thus a judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision.
27. Blacks Law Dictionary (6th Edn., p. 673) gives its meaning as follows:
Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority.
28. We may first refer to the position with reference to civil courts. Order 20 of the Code of Civil Procedure deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-rule (1) provides that the court, after the case has been heard, shall pronounce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer [if the Judge is specially empowered (sic by the High Court) in this behalf]. The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by Section 152 or on review. Thus, where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can make corrections before signing and dating the judgment. Therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to Section 152 and power of review). The position is different with reference to quasi-judicial authorities. While some quasi-judicial tribunals fix a day for pronouncement and pronounce their orders on the day fixed, many quasi-judicial authorities do not pronounce their orders. Some publish or notify their orders. Some prepare and sign the orders and communicate the same to the party concerned. A quasi-judicial authority will become functus officio only when its order is pronounced, or published/notified or communicated (put in the course of transmission) to the party concerned. When an order is made in an office noting in a file but is not pronounced, published or communicated, nothing prevents the authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the authority will become functus officio. The order dated 18-1-1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the appointing authority became functus officio when it signed the note dated 18-1-1995.
23.By no stretch of imagination, it can be either held that the tribunal has become functus officio or the second respondent has become functus officio so as to put an impediment on the powers. As stated above, in the impugned order itself, the tribunal has rejected the application for appointment of Commissioner only on the ground that there has been delay on the part of the petitioner in filing such application and the petitioner has not chosen to give any reason for such appointment of Commissioner and not on the ground of want of jurisdiction. As stated earlier and at the risk of repetition, it has to be reiterated that in these cases grant of permit of stage carriage which are the public vehicles, even though it is a right on the part of the permit holder, the same is liable for alteration subject to various conditions enumerated above, and in such circumstances, simply because, the petitioner has not explained the reason for the delay, such plea, in my considered view, cannot be foreclosed. There is absolutely no detriment which is going to be caused to the permit holders by appointing such Commissioner to note down the existing features. It is ultimately either the tribunal or the second respondent who are to pass orders and such orders are to be passed only after opportunity to the petitioner as well as the fourth respondent and other stage carriage permit holders, ultimately, taking note of the convenience of the public and the object of the Act which is predominantly of public in nature.
24.In such view of the matter, the impugned order of the first respondent Tribunal stands set aside with a direction to the first respondent Tribunal to consider the application of the petitioner in appointing the Commissioner for the purpose of noting down the physical feature in respect of the said route and after receipt of the report and due opportunity to all the parities concerned pass appropriate orders on merits and in accordance with law. It is made clear that since the appeal is pending from 2003 onwards, the first respondent tribunal shall give priority to the appeal and decide the same on merits and in accordance with law, expeditiously, in any event within a period of six months from the date of receipt of a copy of this order. Accordingly, the Writ Petition stands allowed. No costs. Consequently, M.P.No.1 of 2009 is closed.
sms To
1.State Transport Appellate Tribunal, High Court Buildings, Chennai -600 104.
2.The Regional Transport Authority, Erode 638 011
3.The Regional Transport Officer, Kollukattumedu, Lakkapuram (PO) Erode 638 002