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N.K Dharmadas v. State Transport Appellate Tribunal Of Kerala, And Others
Structured Summary of the Opinion
Factual and Procedural Background
This appeal arises from O.P. No. 313 of 1958. The Regional Transport Authority (R.T.A.), Kozhikode, granted a stage carriage permit to the petitioner in that original petition and rejected the application of the 3rd respondent. The 3rd respondent appealed to the State Transport Appellate Tribunal under Section 64 of the Motor Vehicles Act, 1939 (Appeal No. 35 of 1957). The Tribunal set aside the R.T.A.'s order and remanded the matter to the R.T.A. for fresh disposal. The Original Petition challenged the Tribunal's order of remand. Vaidialingam, J. held that (a) the Tribunal had no power of remand, and (b) even if such a power existed, the circumstances did not justify the remand. The Full Bench agreed with the second conclusion (that the remand was unjustified) and, for that reason, dismissed the appeal; but the Full Bench proceeded to decide the broader question of whether a remand power is implicit under Section 64.
Legal Issues Presented
- Whether a State Transport Appellate Tribunal, in dealing with an appeal under Section 64 of the Motor Vehicles Act, 1939, has the power to remand the case to the Regional Transport Authority for fresh disposal.
- Whether, on the facts of this case, the remand ordered by the State Transport Appellate Tribunal was justified or constituted an abdication of its appellate duty.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nambudiripad v. State Transport Appellate Tribunal, 1961 Ker LJ 863 | The reported decision in respect of O.P. No. 313 of 1958 (the decision under challenge in the present appeal). | Identified as the decision from which the present appeal by the 3rd respondent arises. |
| Ram Gopal v. Anant Prasad, AIR 1959 SC 851 | Shows that Section 64 does not purport to define the powers of the appellate authority. | Used to demonstrate that absence of specific provisions in Section 64 does not answer whether particular powers (like remand) are available by implication. |
| Yagsen Ram Prasad Khewat v. Chief Commr. Ajmer, AIR 1956 Ajmer 41 | Holds that the power of remand is inherent in the constitution of an appellate court and is incidental to appellate jurisdiction. | Relied upon as authority that a power to remand is implicit in appellate jurisdiction; the Full Bench agreed with this principle. |
| Swarajyalakshmi v. State of Andhra Pradesh, AIR 1959 Andh Pra 321 | Supports the view that the power to remand is implicit in appellate disposal. | Cited as another decision to the same effect; the court treated it as supportive authority for implicit remand powers. |
| Narenara Kumar Das v. Transport Appellate Board Assam, AIR 1960 Assam 100 | Affirms that the power to remand is implicit in the power to dispose of an appeal. | Cited together with the Andhra Pradesh decision as supporting the proposition that remand powers are implicit under Section 64 appeals. |
| Segu Abdul Khadir v. A.K. Murtny, AIR 1948 Mad 235 | Under the Madras Buildings (Lease and Rent Control) Act, the Chief Judge set aside an order and directed a fresh hearing where notice/service issues were in contention; discusses limits on inherent powers where rules (like CPC) are not incorporated. | Referred to by respondents' counsel and examined by the Full Bench; the court summarized the facts and considered the case in assessing arguments about the applicability of procedural rules and inherent powers. |
| Devichand Moolcand v. Dhanraj Kantilal, AIR 1949 Mad 53 | Considered whether principles of the CPC apply to proceedings under the Madras Buildings Act and rejected the contention that CPC principles automatically apply. | Used to illustrate limitations of relying on Code of Civil Procedure applicability to infer or deny inherent appellate powers; the Full Bench distinguished the present statutory context from that Act. |
| Neelaveni v. Narayana Reddi, ILR 43 Mad 94 (AIR 1920 Mad 640) | Held there was no inherent power in a court to set aside an ex parte decree made by itself by summary procedure, and that such power must be traced to procedural rule (Order 9, Rule 13 CPC). | Relied upon by the Full Bench to explain that where a procedural rule is the source of a power, absence of that rule can mean absence of the power; but the court distinguished that situation from the present question about remand. |
| New Prakash Transport Co. Ltd. v. New Suwarma Transport Co. Ltd., (S) AIR 1957 SC 232 | States that proceedings before a State Transport Appellate Tribunal are quasi-judicial in character. | Quoted to support the proposition that the Tribunal's functions are quasi-judicial, which bears on whether certain powers (like remand) are incidental to its appeal jurisdiction. |
| C.S.S. Motor Service v. State of Madras, AIR 1953 Mad 279 | States that the grant or refusal of permits by transport authorities is a judicial act. | Cited to support the characterization of the subject-matter (permits) as judicial in nature, reinforcing that appellate powers appropriate to judicial functions may be implied. |
| Raman and Raman Ltd. v. State of Madras, AIR 1959 SC 694 | Cited with approval in relation to the judicial nature of transport permit matters. | Mentioned as a case approving the judicial characterization of the permit-granting process; used to support the court's view of appellate powers being incident to judicial appellate jurisdiction. |
Court's Reasoning and Analysis
The Full Bench proceeded in two stages: first, it accepted Vaidialingam, J.'s factual conclusion (paras. 3–4 of the judgment) that the remand ordered by the State Transport Appellate Tribunal in this case was unnecessary because the appellate tribunal had the material needed to decide the appeal; the Court held the remand in the present circumstances amounted to an abdication of the appellate authority's duty and therefore set aside the remand as unjustified. That agreement with the learned Judge's second conclusion was sufficient to dispose of the appeal.
Second, the Bench addressed the broader legal question whether the State Transport Appellate Tribunal has the power to remand appeals under Section 64 at all. The Court noted that Section 64 prescribes who may appeal and that the appellate authority shall give the parties an opportunity of being heard, but the section does not expressly enumerate the appellate authority's powers. The Court relied on the Supreme Court's observation in Ram Gopal v. Anant Prasad that Section 64 is not concerned with defining the appellate authority's powers, meaning the absence of specific language in Section 64 does not resolve whether certain powers are implied.
The Court examined authorities holding that a power to remand is implicit in appellate jurisdiction (notably Yagsen Ram Prasad Khewat v. Chief Commissioner, and related decisions such as Swarajyalakshmi and Narenara Kumar Das). Those decisions describe the remand power as inherent or incidental to a tribunal's appellate constitution. The Full Bench expressly agreed with those decisions and held that the power to remand is available to a tribunal functioning under Section 64 because such a power is incidental to and necessary for the effective exercise of appellate jurisdiction.
The Court considered the counter-argument drawn from decisions under the Madras Buildings (Lease and Rent Control) Act (Segu Abdul Khadir and Devichand Moolcand) and the older Madras decision Neelaveni v. Narayana Reddi, where the availability of certain powers was traced to specific procedural rules (for example, Order 9, Rule 13 CPC). The Bench explained that those cases show that where a power is expressly tied to procedural rules, absence of the rule can preclude the power; however, that reasoning does not negate a power that is implicit as being incidental to an appellate jurisdiction. Accordingly, the fact that the Code of Civil Procedure had not been made applicable to a tribunal's proceedings did not itself negate an implicit power to remand when that power is otherwise incidental to appellate jurisdiction.
The Court augmented these authorities with observations about the quasi-judicial nature of the Tribunal's proceedings (citing New Prakash Transport Co. and C.S.S. Motor Service) and relied on accepted maxims and authorities (Maxwell, Kent, Sutherland as cited) that jurisdictional grants carry with them such incidental powers as are necessary to exercise the jurisdiction effectively. From this legal reasoning the Full Bench concluded that a power to remand is available under Section 64 by necessary implication.
Despite this general conclusion, the Court reiterated that, on the facts of the present case, the remand ordered by the State Transport Appellate Tribunal was unwarranted and amounted to an abdication of duty; accordingly the appeal was dismissed on that basis.
Holding and Implications
Holding: The Full Bench reached two interrelated conclusions:
- The State Transport Appellate Tribunal has, by necessary implication, the power to remand a case to the Regional Transport Authority when dealing with an appeal under Section 64 of the Motor Vehicles Act, 1939.
- On the facts of this particular case, however, the remand ordered by the Tribunal was unnecessary and constituted an abdication of its appellate duty; accordingly the appeal is dismissed.
Implications:
- Direct effect: The appeal is dismissed and the Tribunal's order of remand is set aside in respect of this matter; the Full Bench decided the legal question in favour of implicit remand power but found that that power was misapplied here.
- Broader legal significance: The Court declared that the power to remand is incidental to appellate jurisdiction under Section 64, aligning with prior decisions that treat remand as an inherent appellate power. The opinion explains the legal basis for implying such powers (necessity for effective appellate jurisdiction), but the Court also cautions that whether particular incidental powers exist depends on the nature and limits of the statutory jurisdiction conferred.
- Costs: The appeal was dismissed in the circumstances without any order as to costs.
End of summary. This summary is strictly confined to the materials and assertions expressly contained in the provided opinion and does not add or infer facts beyond that text.
JUDGMENT
1. This is an appeal by the 3rd respondent in O.P No. 313 of 1958 against the decision in that petition. The decision has since been reported, Nambudiripad v. State Transoort Appellate Tribunal, 1961 Ker LJ 863. The Regional Transport Authority, Kozhikode, granted a stage carriage permit to the petitioner in O.P No. 313 of 1958 and rejected the application of the 3rd respondent. The 3rd respondent challenged the correctness of the order before the State Transport Appellate Tribunal by an appeal under Section 64 of the Motor Vehicles Act, 1939, Appeal No. 35 of 1957. The State Transport Appellate Tribunal set aside the order and remanded the case for fresh disposal to the Regional Transport Authority, Kozhikode. The Original Petition was directed against the order of remand.
2. Vaidialingam. J. held that the State Transport Appellate Tribunal had no powers of remand, and that even if it had such a power, the circumstances of the case did not justify the remand directed by the Tribunal. We are in entire agreement with the second of the two conclusions and that is sufficient to entail a dismissal of this appeal.
3. In considering the second aspect of the case the learned Judge reviewed all the relevant facts and said:
“I am satisfied that the order of remand in the circumstances of this case, is absolutely unnecessary. The entire materials were available before the appellate tribunal and the appellate tribunal could have certainly, on those materials, come to a conclusion either agreeing with or differing from the conclusions arrived at by the R.T.A The remand in this case, in my opinion, is really an abdication by the appellate authority of its proper and legitimate duty under Section 64 of the Motor Vehicles Act. Even on this view the order of the appellate tribunal will have to be set aside”.
4. There is nothing on record which indicates that the conclusion is incorrect and we are unable to accept the contention of the appellant that a different conclusion is possible.
5. The question whether a State Transport Appellate Tribunal in dealing with an appeal under Section 64 of the Motor Vehicles Act, 1939, has the power to remand the case to the Regional Transport Authority for fresh disposal or not is a question of importance. It is essentially for a decision of that question that this appeal has been posted before a Full Bench.
6. Section 64 of the Motor Vehicles Act, 1939 only says that the persons specified therein may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such persons and the original authority an opportunity of being heard. A power of remand is not specifically mentioned in the section. But as pointed out by the Supreme Court in Ram Gopal v. Anant Prasad, AIR 1959 SC 851, S. 64 is not concerned with defining the powers of the appellate authority and does not purport to do so”.
7. The only question is whether a power to remand should be considered as having been granted by necessary implication. It is certainly not excluded by the fact that the original authority gets an opportunity of being heard.
8. In Yagsen Ram Prasad Khewat v. Chief Commr. Ajmer, AIR 1956 Ajmer 41 Nigam, J.C said.
“In my opinion, the power of remand is inherent in the very constitution of an appellate Court. An appellate Court has the right to set aside the order of the trial Court. When it does so, it may go further and substitute its own order for the order appealed against or it may not go so far and may merely quash the order appealed against and automatically require the subordinate authority to restore the original cause and to decide it afresh.
In my opinion, the absence of a power of remand would limit and to some extent negative the completeness of the power of the appellate authority and I am, therefore, of opinion that whether there is a specific provision or not, the power to order a remand must be taken to be inherent in every appellate Court in its very constitution as an appellate authority”.
9. To the same effect is Swarajyalakshmi v. State of Andhra Pradesh, AIR 1959 Andh Pra 321, Narenara Kumar Das v. Transport Appellate Board Assam AIR 1960 Assam 100 also takes the view that the power to remand is implicit in the power to dispose of an appeal.
10. All the three decisions mentioned above relate to Section 64 of the Motor Vehicles Act, 1939. We are in agreement with them and consider it unnecessary to deal with the decisions under analogous enactments. In final analysis the powers, if any, that will be deemed to have been granted by necessary implication will depend on the jurisdiction conferred and on whether that jurisdiction is untrammelled or trammelled, and if trammelled, to what extent. Decisions under one enactment can in the very nature of things be of little or no assistance for the decision of the question under another enactment.
11. We may, however, mention two decisions under the Madras Buildings (Lease and Rent Control) Act, 1946, on which considerable reliance was placed by counsel for the respondents, Segu Abdul Khadir v. A.K Murtny, AIR 1948 Mad 235 and Devichand Moolcand v. Dhanraj Kantilal AIR 1949 Mad 53. In the first of the two cases the Chief Judge of the Court of Small Causes in his capacity as the appellate authority under the Act heard and allowed an appeal after being satisfied that notice of the appeal had been duly served on the respondent as required by the rules. Subsequently the respondent sought to get the order allowing the appeal set aside on the ground that he had not been duly served and the Chief Judge set aside the order and directed a fresh hearing of the appeal. The Court said:
“It is beyond doubt that the learned Chief Judge at the hearing of the appeal on 2nd April when no appearance on behalf of the respondent was made, found that notice of the appeal had been served in conformity with R. 9, above mentioned; thereupon he heard the appeal and ordered possession of the premises to be given and his order was subsequently drawn up.”
“The argument of learned counsel for the respondent was that his client had been condemned without having been given an opportunity of being heard and consequently the learned Judge was correct in setting aside the order. The ground for that contention is that his client was not properly served. Order 9, R. 13 of the CPC provides for setting aside a decree passed ex parte against a defendant if the Court is satisfied that the summons was not duly served or that he was prevented by any sufficient cause from appearing at the hearing. There is a corresponding provision regarding appeals to be found in O. 41, R. 21 of the Code. In Neelaveni v. Narayana Reddi, ILR 43 Mad 94, - (AIR 1920 Mad 640), it was held by a Full Bench of this Court that it has no power, apart from R. 13 of O. 9 to set aside an ex parte decree, and, it must follow also with regard to setting aside an order in appeal, pursuant to R. 21 of O. 41. It is, in my view, to be regretted that the provisions of the Code have not been made applicable to proceedings under the Control Act, and that, when the Provincial Government exercising the power conferred by S. 17 of the Act, made rules of procedure, they did not in those rules do what would have been, I think, desirable; they did not enable the provisions of the Code, so far as applicable and relevant, to be made use of in proceedings under the Control Act. In the absence of rules, it was argued, nevertheless the principles of them must be applied. I am unable to accept that contention”.
12. The reference to ILR 43 Mad 94 : (AIR 1920 Mad 640) is significant. The decision in that case was that there was no inherent power in a court to set aside an ex parte decree made by itself by summary procedure and that the power of a court to do so should be traced to the provisions of rule 13, Order 9 of the CPC, 1908. In these circumstances it cannot but be clear that the power under that rule will not be available unless the rule itself had been made applicable.
13. In AIR 1949 Mad 53 the question was whether a legal representative of the petitioner could be brought on record and the proceedings continued or whether he should file a fresh petition. The contention on his behalf was that
“though there was no provision either in the Act or in the rules made thereunder incorporating or making applicable any of the provisions of the Code of Civil Procedure, nevertheless the principle of those rules would apply because the Rent Controller must be deemed to be a Court of civil jurisdiction within the meaning of S. 141 of the Code, as the Rent Controller was invested with powers to adjudicate upon civil rights of parties”.
14. All that the court did was to reject that contention and add,
“But in this case we are not much impressed with the technical objection taken that a separate application should have been filed by the petitioner instead of an application to be brought on record to continue the petition filed by his father. The affidavit of the petitioner dated 18th Feburary 1947 to which reference has already been made contains all the material particulars required to be mentioned in an application praying for eviction and it appears to be the height of technicality to disregard this fact and insist upon a formal petition for the same purpose. The question whether it would be competent for the legal representative to be brought on record as such in an application before the Rent Controller in every case need not be deeded by us”.
15. It was suggested that the absence of a provision making the Code of Civil Procedure, 1908, applicable to the proceedings indicates that the power of remand was not intended to be granted. This is clearly wrong. It the power of remand is implicit in an appellate jurisdiction on the ground that it is incidental to and essential for, the proper exercise of that jurisdiction, the fact that the Code of Civil Procedure, 1908, has not been made applicable can have no reaction on the existence or otherwise of that power. It may be that if some of the provisions of the Code are made applicable to a tribunal and others left out, a contention is possible that the provisions left out, have been deliberately excluded. Such is not the case before us.
16. There is no doubt that the proceedings before a State Transport Appellate Tribunal are quasi-judiclal In character. There is a specific statement to that effect in New Prakash Transport Co., Ltd. v. New Suwarma Transport Co. Ltd., (S) AIR 1957 SC 232.
17. In C.S.S Motor Service v. State of Madras, AIR 1953 Mad 279 Venkataramav Aiyar, J., said:
“The grant or refusal of permits by the transport authorities in all its stages including S. 64-A is a judicial act”.
18. This decision was cited with approval in Raman and Raman Ltd. v. State of Madras, AIR 1959 SC 694.
19. An appeal is a complaint to a superior body of an injustice done or error committed by an inferior one with a view to its correction or reversal. It is a creature of statute, not a constitutional or inherent right. But, as pointed out by Maxwell, where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution (11th Edition, page 350).
20. A remand by an appellate court is usually made when the record before it is in such shape that the appellate court cannot in justice determine what final judgment should be rendered and the power to do so cannot but be an essential requisite of the very jurisdiction to entertain the appeal. It is an old maxim of the law that to whomsoever a jurisdiction is given, those things also are supposed to be granted, without which the jurisdiction cannot be exercised: cui jurisdictio data est, as quo-que concessa essee videntur, sine quibus jurisdictio expiicari non potest.
21. Kent says that the grant of a jurisdiction implies the grant of all the powers necessary to its exercise (1 Kent, Comm. 339). And Sutherland that where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication (3rd Edition, Vol. 3, Page 19).
22. It is unnecessary to pursue the discussion any further. We entertain no doubt that a power to remand is available to a tribunal functioning under Section 64 of the Motor Vehicles Act, 1939, that the said power is incidental to and implicit in the appellate jurisdiction created by that section, and that the learned Judge's decision to the contrary cannot be sustained. We decide accordingly. In the light of what stated in paragraphs 3 and 4 above, however, the appeal must fail and has to be dismissed.) We do so, but in the circumstances of the case without any order as to costs.
KF/R.G.D
23. Appeal dismissed.
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