MOIDEENKUTTY v. S. T. A. T. , ERNAKULAM — 1987 DIGILAW 352 (KER)

Judgment :- 1. This original petition has been filed under Art.226 of the Constitution of India seeking to quash Ext. P5 order passed by the first respondent. State Transport Appellate Authority. 2. Second respondent proposed to introduce stage carriage service on the route Kuttoor North Kozhikode. According to the petitioner it was treated as short route. Petitioner was granted temporary permit. Second respondent later published notification under S.57(2) of the Motor Vehicles Act, for short 'the Act', inviting applications for grant of regular stage carriage permit on this route. Petitioner and third respondent submitted applications. According to the petitioner, notification refers to the route as short route. Third respondent raised a contention before the second respondent to the effect that the route is a medium route. Second respondent relying on the report and sketch filed by the Motor Vehicles Inspector, according to the petitioner, found the route to be short route and granted permit to the petitioner being new entrant. This order was challenged in appeal before the first respondent Tribunal by the third respondent, who contended that the route is a medium one having a length of 42 kilometres. The Tribunal set aside the decision of the R.T.A. and remanded the matter for fresh disposal under Ext.P1 order directing the RTA to resolve the controversy regarding the nature of the route after getting the route measured by the Executive Engineer. 3. Even before the original decision of the RTA, third respondent herein had submitted a representation to the Executive Engineer, PWD, B and R. Manjeri to give a certificate regarding the length of the route. Ultimately he filed OP No. 4072 of 1986 seeking to compel the Engineer to issue the certificate. It appears this court by Ext.R3(b) judgment directed the Executive Engineer to consider the application of the third respondent and issue a certificate urgently. According to the petitioner, Executive Engineer measured the length of the route and issued a certificate and also submitted report to the second respondent showing the length of the route as 39.35 kms. 4. The second respondent reconsidered the applications as per the directions in the remand order and held the route to be short route and decided to grant regular permit in favour of the petitioner. Third respondent has again filed an appeal before the Tribunal challenging this decision. 4. The second respondent reconsidered the applications as per the directions in the remand order and held the route to be short route and decided to grant regular permit in favour of the petitioner. Third respondent has again filed an appeal before the Tribunal challenging this decision. He also filed M. P. No. 850 of 1987 (Ext.P2) seeking appointment of an advocate commissioner to measure the length of the route. The application was opposed by the petitioner as seen in Ext. P3 objections and Ext. P4 additional objections. The Tribunal however allowed the prayer under Ext. P5 order. It is this order which is now challenged. 5. The main contention of the petitioner is that the Tribunal has no power or jurisdiction to appoint a commissioner, much less an advocate commissioner to measure the length of the route. Learned counsel for the petitioner points out that the Act and the Rules do not clothe the Tribunal with any such power; 0.26 of the Code of Civil Procedure has not been made applicable to the proceedings before the Tribunal and the Tribunal cannot have inherent power to issue commission. Learned counsel appearing on both sides referred to a number of decisions. 6. S.64 of the Act deals with appeals to the Tribunal against various orders passed by statutory authorities. Sub-section (1) states that an appeal may be presented within the time prescribed and in the prescribed manner and the Tribunal shall after giving such person and the original authority an opportunity of being heard give a decision thereon which shall be final. Subsection (2) states that the State Government shall constitute for the State a State Transport Appellate Tribunal which shall consist of a judicial officer not below the rank of a District Judge. The Act does not contain any other provision indicating the powers of the Tribunal or the procedure to be followed by the Tribunal. The Rules framed also do not contain any specific provision in that behalf. In these circumstances it is naturally open to the Tribunal to devise its own procedure. 7. In the absence of provisions in the Act or the Rules indicating the procedure to be adopted and the power to be exercised by the Tribunal, on a number of occasions this court bad to consider the amplitude or power and the exact procedure to be followed by the Tribunal. 7. In the absence of provisions in the Act or the Rules indicating the procedure to be adopted and the power to be exercised by the Tribunal, on a number of occasions this court bad to consider the amplitude or power and the exact procedure to be followed by the Tribunal. In Rayappa Gounder v. State Transport Appellate Tribunal, Trichur and others (1960 KLJ 360) a Division Bench of this court held that the Tribunal has the authority to implead new parties where presence of such persons appears proper for deciding the disputes before the Tribunal. According to the Division Bench the power to implead flows from the jurisdiction vested in the Tribunal to adjudicate all disputes. A Full Bench of this court in N. K. Dharmadas v. State Transport Appellate Tribunal and others (1962 KLT 505) had occasion to consider whether the Tribunal has power to remand a case for fresh disposal and held in favour of existence of such power. In the opinion of the Full Bench such power is inherent in the very constitution of the Appellate Tribunal. The question whether such a power is deemed to have been conferred by necessary implication depends on the jurisdiction and on whether that jurisdiction is untrammelled or trammelled, and if trammelled, to what extent. The absence of an express provision rendering the provisions of the Code of Civil Procedure applicable to the Appellate Tribunal does not mean that the power of remand is not intended to be conferred. That power is implicit in an appellate jurisdiction on the ground that it is incidental to and essential for the proper exercise of that jurisdiction Therefore the absence of an express power is not significant. The proceedings before the Tribunal are quasi-judicial in character. A Division Bench of this court in Nanoo v. Pasupalan (1965 KLT 336) had occasion to consider whether the Tribunal could receive documents as additional evidence. It was held that the powers of the Appellate. Tribunal are not delimited in the Act. The Appellate Tribunal has to decide all questions of fact and of law arising in the case before it. It must have the power to call for or take additional evidence appearing necessary to decide the question before it justly and correctly; subject of course to the condition that there is no express restriction of powers in that regard. The Appellate Tribunal has to decide all questions of fact and of law arising in the case before it. It must have the power to call for or take additional evidence appearing necessary to decide the question before it justly and correctly; subject of course to the condition that there is no express restriction of powers in that regard. When anything is commanded everything by which it can be accomplished is also commanded. The Division Bench relied on the observations of Lord Loreburn in Board of Education v. Rice (1911 AC 179) that the Appellate Tribunals can obtain information in any way they think best always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their views. 8. The Supreme Court considered the nature of proceedings before the statutory authority in Prabhakara Rao v. Desari Panakala Rao and others (1977 (1) SCJ 282). The court observed that the litigation in regard to grant of permits is litigation of public character; the jurisdiction is for public purpose and not merely for adjudication of personal claims. Hierarchy of Tribunals have the duty and therefore power to consider all factors pertinent to the largest scheme of public transport. Their Lordships were considering the validity of the rules framed by the Andhra Pradesh State Government providing for reception of additional evidence by the Appellate Tribunal in certain circumstances. Krishna Iyer, J. speaking for the Bench observed: Administrative bodies, manned by lay and legal men, charged with duties which are wider than decision of individual disputes between specific parties and operating quasi judicially at the public interest level, has to enjoy more liberal powers and less formal and more flexible processes if they are to fulfil the statutory behest efficaciously." Dealing with the function and duty of RTA. His Lordship observed: "It is not as if the sole source of decision-making materials consists of the representations made under S 57 (3) within the time stipulated in S 57 (4) The primary channel, it looks, is the information that the RTA may gather bearing on matters touched upon in S.47 (I) (a) to (f) supplemented by the facts stated in the representations referred to in S.57 (3)." Learned Judge proceeded to formulate five propositions. Proposition No. 4 reads thus: "An activist tribunal (RTA and in exceptional cases, even the STAT) may even collect useful information bearing on considerations set out in S.47 and, after public exposure of such information at the bearing and reasonable opportunity to meet it, if anyone is adversely affected, put into the crucible of judgment". As proposition No.5 it was observed: "The antithesis is not between the right of representation within the time limited by S.57(5) and beyond it put between representations by statutorily authorised entities under S.47 and 57 and receipt of relevant evidence or information from any source whatsoever at any stage whatsoever but subject to the wholesome rules of natural justice." Dealing with the vires of the rules. His Lordship observed: "It is important to note that R.15 does not entitle parties to the appeal or application to produce additional evidence but clothes the Tribunal with discretionary power to allow such evidence. What is received is not qua representation under S.57(4) but qua evidence with public interest flavour. The rule is good and covers familiar ground to enable just orders being passed. A reference to 0.41 R.27 Civil Procedure Code and S.540 of the Criminal Procedure Code proves this point We may also highlight the basic principle that subject to statutory regulations, each Tribunal has its inherent power to devise its own procedure Novelty, if it improves purposeful efficiency is not anathema. But caution must be exercised in going against time-tried procedures lest processual law prove a charter for chaos " 9. The Appellate Tribunal is a statutory tribunal. Its function is to decide appeals preferred against orders or decisions of the lower statutory authorities. The Tribunal has the duty to decide disputes of fact and of law. The powers of the Tribunal are not delineated in the Act or the Rules; nor are they delimited in any manner by the Act or the Rules. It must be deemed that the Tribunal has all powers which are incidental and necessary to make its function effective and as can be treated as conferred by implication. The powers of the Tribunal are not delineated in the Act or the Rules; nor are they delimited in any manner by the Act or the Rules. It must be deemed that the Tribunal has all powers which are incidental and necessary to make its function effective and as can be treated as conferred by implication. Maxwell on Interpretation of Statutes, 10th Edition, at page 361 observes: "Where an Act confers jurisdiction, it impliedly also grants power of doing all such acts, or employing such means, as are essentially necessary to its execution." When an allegation of fact relevant for the purpose of finally deciding the controversy involved between the parties and necessary to decide in public interest is denied, it is open to the Tribunal to decide it on the materials before it. It must also be decided by the Tribunal whether it should consider the additional materials placed before it by the parties or called for by it on its own or at the motion of parties. The Tribunal must be deemed to be vested with the power by implication. This conclusion is supported by various decisions of this court dealing with inherent powers of Tribunal. (1981 KLT 494,1984 KLT 864 and 1987 (1) KLT 101). 10. I therefore hold that the Tribunal has the power to issue commission to determine the length of a route and take the report into consideration, subject of course to an opportunity being given to the parties to have their say in regard to the same. 11. This however does not mean that the Tribunal can have recourse to this power indiscriminately. In the generality of cases the Tribunal would do well to limit itself to an examination of materials already on record. However, it has the discretion to call for additional materials in resolving significant disputes of fact in appropriate cases. It is worthwhile reiterating that this power is not to be exercised freely or indiscriminately or as a matter of course. This power can be exercised only when the Appellate Tribunal requires such additional materials to discharge its function satisfactorily not only in the interest of parties before it but also in public interest. 12. Whether a particular route is a short route or not is not only a matter to be decided in the interest of parties; it is also a matter which requires decision in public interest. 12. Whether a particular route is a short route or not is not only a matter to be decided in the interest of parties; it is also a matter which requires decision in public interest. This is so because legislative policy indicates distinct preference in public interest regarding the grant of permit in regard to a short route. 13. It is said that the Executive Engineer has given a report and certificate in regard to the length of the route. Objection has been raised to the acceptability of the certificate on the ground that be did not measure the entire route. In support of this contention, third respondent relies on the letter sent by the Executive Engineer. It was on a consideration of these circumstances that the Tribunal appointed an advocate commissioner. Ordinarily one would look askance at the appointment of an advocate commissioner to measure the length of a route. But I am assured that the advocate commissioner will have the assistance of the experts in this matter. I am unable to find anything perverse or illegal in the order of the Tribunal. I therefore dismiss the original petition.