Kundur Rudrappa vs The Mysore Revenue Appellate Tribunal and others

M. Sadanandaswamy, J.—The petitioner was granted a stage carriage permit on the route Davangere to Shimoga via Honnali, by the Regional Transport Authority, Shimoga, by its resolution dated 3/4-5-1963. Against the grant of the said permit, appeals had been preferred and the State Transport Appellate Tribunal had granted an order of stay. The appeals were dismissed on 27-9-1963. Against the judgment of the State Transport Appellate Tribunal, appeals had been preferred before the Mysore Revenue Appellate Tribunal, and the Mysore Revenue Appellate Tribunal dismissed (sic) on 27-2-67. The petitioner was thereafter issued the stage carriage permit on" 26-4-67 and in furtherance of the grant of the permit, he commenced the operation of his service. Against the issue of the permit respondents 4 to 13 preferred appeals before the State Transport Appellate Tribunal. The said State Transport Appellate Tribunal set aside the issue of the permit. The petitioner preferred an appeal before the Mysore Revenue Appellate Tribunal against the Judgment of the State Transport Appellate Tribunal, but it was dismissed. The writ petition has been filed by the petitioner praying for a writ of certiorari to quash the orders of the Mysore Revenue Appellate Tribunal and of the State Transport Appellate Tribunal.

When the R.T.A Shimoga. granted the permit on 3/4-5-63, the petitioner was directed to produce the required documents relating to his vehicle within one month from that date. But immediately after the grant of the permit there was an order of stay by the State Transport Appellate Tribunal in the appeals filed before it, and the petitioner could not comply with the directions given by the R.T.A. Shimoga. The said appeals were dismissed on 27-9--1963. Though second appeals had been filed before the Mysore Revenue Appellate Tribunal, there was no order of stay during the pendency of the said second appeals. These second appeals were dismissed on 27-2-67. Thereafter, on 25-4-1967, the Secretary, R. T. A Shimoga, called upon the petitioner to produce the relevant documents. The petitioner produced the same and the permit was issued on 26-4-1967. On 3/4-5-1963, when the permit was granted by the R. T. A., the Mysore Motor Vehicles and Road Traffic Rules, 1945 were in force. The said rules were repealed by the Mysore Motor Vehicles Rules, 1963, which came into force on 1-7-63. The stay order issued by the State Transport Appellate Tribunal must be deemed to have been vacated on 27-9-63 when the appeals before it were dismissed. Both the State Transport Appellate Tribunal as well as the Mysore Revenue Appellate Tribunal have held that when the permit was Issued on 26-4-1967, to the petitioner by the Secretary. R.T.A. Shimoga, since the new rules were in force, it must be deemed to have been issued under Rule 119 of the new Rules and that the action of the Secretary, R.T.A. was beyond his powers under the said rule.

The relevant part of Rule 119 of the Mysore Motor Vehicles Rules, 1963 (hereinafter referred to as the new Rules) reads as follows:--

Permits'' Entry of Registration Mark Compulsory.-- (1) No permit shall be issued until the registration mark of the vehicle to which it relates has been entered therein.

(2) When an applicant is unable to produce the certificate of registration on the date of his application for permit, owing to the fact, that he is not on that day the registered owner of the vehicle or for some other reason, the Transport Authority shall grant him time which shall not be less than one month from the date of sanction of the permit to pro-duce the certificate of registration of the vehicle before the Transport Authority which has to issue the permit in ore. that particulars of the, registration mark may be entered in the permit Such registration certificate shall be accompanied by a valid certificate of fitness.

Provided that the Transport Authority or its Secretary, if satisfied, may, on an application made to it in writing, within a period of 14 days, aforesaid that there is sufficient ground grant an extension of time not exceeding 3 months in the aggregate for the production of the said certificate:

Provided further, if in the meanwhile an order staying operation of the grant of permit has been issued by any competent authority, the person in whose favour the permit is granted may be called upon to produce the said certificate within a period of one month from the date, or such other period as may be specified by the Transport Authority, not exceeding 3 months in the aggregate from the date of order vacating stay order.

(3) If any applicant fails to produce the certificate of registration along with the current certificate of fitness as aforesaid, within the period specified, the Transport Authority shall revoke its sanction of the application.

Under the first part of clause (2) of that rule, the Transport Authority is required to grant the applicant not less than one month''s time from the date of the sanction of the permit to produce the certificate of registration of the vehicle in case the applicant is unable to produce the same on the date of his application Under the first proviso to that rule, if an application is made to it in writing within a period of 14 days aforesaid grant of extension of time not exceeding three months in the aggregate can be made for the production of the said certificate on being satisfied that there is sufficient ground to grant the extension of time. The second proviso to that clause states that if there is an order staying the operation of the grant of permit, the applicant may be asked to produce, the said certificate within a period, not exceeding three months in the aggregate from the date of the order vacating the stay order. Clause (3) of the same rule provides, that if the applicant fails to produce the certificate of registration within the abovesaid period, the Transport Authority shall revoke its sanction of the application. It is clear that the maximum period that could be granted to the petitioner by the Transport Authority would be three-months from the date of the order vacating the stay order under Rule 119. The order of the Secretary, R T. A. dated 25-4-67 calling upon the petitioner to produce the document was clearly beyond three, months from the date on which the stay order stood vacated. Hence, if the order of the Secretary, R.T.A. dated 25-4-67 and the consequent issue of the permit on 26-4-67 are made under Rule 119 of the new rules, they are beyond the powers of the R.T.A. and the findings of the State Transport Appellate Tribunal and the Mysore Revenue Appellate Tribunal are correct But the contention of the petitioner is that the order of the Secretary, R.T.A dated 25-4-67 and the subsequent issue of the permit on 25-4-67 must be deemed to have been done under Rule 151 of the Mysore Motor Vehicles and Road Traffic Rules, 1945 (hereinafter referred to as the old rules).

Rules 151 of Old Rules reads as follows:--

Permits -- Entry of registration mark compulsory ? Time for entry.

(a) No permit shall be issued until the registration mark of the vehicle to which it relates has been entered therein,

(b) When the applicant is unable to produce the certificate of registration on the date of his application for the permit, owing to the fact that he is not on that date in possession of the vehicle duly registered, or for some other reason the applicant shall within one month of the sanction of the application by the competent authority or such longer period as the authority may specify, produce the certificate of registration of the vehicle before that authority in order that particulars of the registration mark may be entered in the permit In the event of any" applicant failing to produce the certificate of registration within the period specified, the competent authority may revoke its sanction of the application.

Under this rule, the applicant has to produce the certificate of registration of the vehicle within one month of the sanction of the application or within such longer period as the competent authority may specify. It is further provided that if the applicant fails to produce the same within the period specified, the competent authority may revoke its sanction of the application. According to the petitioner, the R.T.A. had granted one month from the date of its resolution on 3/4-5-63 for the production of the document. But he could not produce the same on account of the stay order issued by the Appellate Authority. It is his further contention that under Rule 151, on failure to produce the certificate of registration within the specified period, it is left to the discretion of the R.T.A to revoke its sanction of the permit The R T. A. has not revoked the grant of the permit but in the exercise of its discretion, has called upon the petitioner to produce the document on 25-4-1967, and thereafter issued the permit on 26-4-1967. It is therefore the contention Mr. Maheswarappa, appearing for the petitioner, that the R. T. A. has acted within its powers under R. 151 of the old rules and the issue of the permit in favour of the petitioner on 26-4-1967 being within the powers of the R. T. A. is Valid, The old rules are repealed by R. 369 of the new rules which reads as follows:-

Repeal and Savings.

The Mysore Motor Vehicles and Road Traffic Rules, 1945 and all other rules corresponding thereto in force in any area of the State immediately before the commencement of these rules except the rules issued u/s 68-1 of the Act are hereby repealed:

Provided that anything done or any action taken under any of the rules so, repealed shall, unless such thing or action is inconsistent with any of the pro-visions of these rules, be deemed to have been done or taken under the corresponding provisions of these rules:

Provided further that the provisions of Sections 8 and 24 of the General Clauses Act 1897 (Central Act 10 of 1897) shall be applicable in respect of repeal of the said rules as if the rules had been repealed and re-issued.

Under the first proviso to that rule, any-thing done or any action taken under the old rules shall be deemed to have been done or taken under the corresponding provisions of the new rules, unless such thing or action is inconsistent with any of the provisions of the new rules. Hence, the direction issued by the R.T.A. on 3/4-5-63 calling upon the petitioner to produce the document within one month from that date will have to be deemed to have been taken under the new rules if such action is (not) inconsistent with any of the provisions of these rules. Under cl. (2) of R. 119 of the new rules, the Transport Authority has to grant the applicant not less than one month''s time from the date of the sanction of the permit to produce certificate of registration of the vehicle if the applicant is unable to produce the same on the date of his application for permit Hence, there is nothing inconsistent in that action with any of the provisions of the new rules. The said direction of the R.T.A therefore must be deemed to have been taken under Rule 151 of the old rules.

It is the contention of the petitioner that by virtue of the said order of the R.T.A. Shimoga, dated 8/4-5-63. be had acquired a vested right in respect of the grant of the permit his favour and that such right could not be taken away by the new rules. He relled on the decision in AIR 1972 1935 (SC) In that case, in exercise of the powers tinder Section 96 (1) (b) of the Employees State Insurance Act, 1948, the Government of Bombay made Rule 17 under which if an employee does not file an application before the Insurance Court within 12 months after the claim has become due or he is unable to satisfy the Insurance Court that there was a reasonable excuse for him in not doing so, his right to receive payment of any benefit conferred by the Act is lost It was held that such a provision affects substantive rights and must therefore be dealt with by the legislature itself and is not to be Inferred from the rule making power conferred by regulating the procedure unless that is specifically provided for ''While considering the question whether the fulfilment of a particular formality as a condition of enforceability of a particular right is procedural or substantive, the Supreme- Court has observed as follows:---

.....What appears to be a self-evident principle will not become so evident when we begin to devise test for distinguishing procedural rule from substantive law. It appears to us that there is a difference between the manner in which the jurisprudential lawyers consider the question and the way in which the Judges view the matter. The present tendency is that where a question of limitation arises the distinction between so-called substantive and procedural statutes of limitation may not prove to be determining factor but what has to be considered is whether the statute extinguishes merely the remedy or extinguishes the substantive right as well as the remedy. Instead of generalising on a principle the safest course would be to examine each case on its own facts and circumstances and determine for instance whether it affects substantive rights and extinguishes them or whether it merely Concerns a procedural rule only dealing with remedies, or whether the intendment to prescribe limitation is discernible from the scheme of the Act or is inconsistent with the rule making power etc.

Apart from the implications inherent in the term, procedure appearing in Section 96 (1) (b) the power to prescribe by rules any matter falling within the ambit of the term must be the "procedure to be followed in proceedings before such Court. The word "in" emphasised by us furnishes a clue to the controversy that procedure must be in relation to prodings in Court after it has taken sei-sin of the matter which obviously it takes when moved by an application presented before it If such be the meaning the application by which the Court asked to adjudicate on a matter cove by Section 75 (2) is outside the scope of the rule making power conferred on the Government.--

After examining the provisions of the Act the Court further observed that the omission to provide a period of limitation in any of these provisions while providing for a limitation of a claim by an employee for the payment of any benefit under the regulations, was an indication that the legislature did not intend to fetter the claim u/s 75 (2) (d). It was further observed that the legislature could not have left such matters to be provided for by the rules to be made by the Government under its delegated powers to prescribe the procedure to be followed in proceedings before such Court and that what is sought to be conferred on the Government is the power to make rules regulating the procedure before the Insurance Court after an application has been filed and that when it is seized of the matter. It was therefore held that such a provision affects substantive rights and therefore must be dealt with by the legislature itself and is not to be inferred from the rule making power conferred for regulating the procedure unless that is specifically provided for. It was further held that Section 78 (2) does not delegate any power to the Government to make rules but only requires the Insurance Court to follow "such procedure as may be prescribed by rules made by the State Government'''' and that such rules can only be made u/s 96 of the Act ft is therefore held that the power u/s 96 (1) (b) of that Act does not empower the Government to prescribe by rules a period of limitation for claims u/s 75. But in the present case, it cannot be said that the period of time fixed under Rule 119 of the new rules is beyond the rule making power of the Government The issue of a permit is provided for only under the rules (Rule 105). Hence the period of limitation prescribed under Rule 119 (2) was within the power of the ride making authority. The issue of a permit is subject to the conditions prescribed under fee rule and it is open to the rule making authority to vary the rules. If the rules are varied subsequent to the date of grant of the permit varying'' the conditions. the issue of a permit the petitioner not insist upon the application of same rules of procedure as we in existence on the date of the grant of the permit for the purpose of its issue as even though the rules applicable with regard to the issue of the permit have been replaced by new rules. The petitioner cannot be said to have acquired a vested right by virtue of the grant of the permit in his favour, the right which he has acquired by the grant of the permit was subject to the conditions contained in the old Rule 151. But the said conditions have been altered subsequent to the date of the grant of the permit and before the permit was issued to him. The repeal of the old Rule 151 and the substitution of the new Rule 119 imposing new conditions for the issue of the permit and prescribing the new period of limitation within which the permit could be issued, was within the competence of the rule making authority. Hence, this decision is not applicable to the case of the petitioner.

Mr. Puttaswamy, learned counsel for the respondents, relied on the decision in Jindal Oil Mills and Others and Somalal Nathji and Others Vs. Godhra Electricity Co. Ltd., In that case, the question which fell for consideration was whether under the provisions of the Electricity (Supply) Act, 1948, as amended in 1956, the Electricity Company was competent to unilaterally enhance the charges. In that case, it was observed as follows:--

It is true that when an existing Statute or Regulation is repealed and the same is replaced by fresh Statute or Regulation unless the new Statute or Regulation specifically or by necessary implication affects rights created under the old law those rights must be held to continue in force even after the new Statute or Regulation came into force. But in the cases before us there is no question of affecting any vested right There is no dispute that the charges fixed can be altered. The controversy relates to the procedure to be adopted in altering them. That controversy does not touch any vested right. The procedure in question must necessarily be regulated by the law in force at the time of the alteration of the charges.

This decision applies to the facts of the present case. It cannot be denied that the conditions for the issue of a permit can be varied by the rule making authority i.e. the State Government.

The direction issued by the Secretary, R.T.A. on 25-4-67 calling upon the petitioner to produce the documents and the issue of the permit to the petitioner on 26-4-67, therefore, must be deemed to have been done under Rule 119 of the new rules. As observed above the provisions of the said rule do not confer any power on the R.T.A to issue the permit after the maximum period of three months from the date of the vacation of the stay order, as specified in the second proviso to clause (2) of Rule 119. Under clause (3) the R.T.A. was bound to revoke the sanction of the permit. Hence, the conclusion reached by the State Transport Appellate Tribunal and the Mysore Revenue Appellate Tribunal is correct.

This writ petition is, therefore, dismissed. But in the circumstances, there will be no order as to costs.