Patny Transport (P) Ltd. vs State Transport Appellate Authority and others

K.L. Pandey, J.—This petition under Article 226 of the Constitution is directed against an order passed by the State Transport Appellate Authority on 27 August 1965 whereby two of the three grants of single trip stage carriage permits for the Jagdalpur Jeypore route, which the Regional Transport Authority, Raipur, had made earlier in favour of the Petitioner and another operator, were set aside and those two single trip permits were instead granted to Ashwini Rajkumar Mining and Trading Co., Jagdalpur (Respondent 3).

The material facts, briefly stated, are these. By virtue of a reciprocal arrangement made between the State of Madhya Pradesh and the State of Orissa, the State of Madhya Pradesh was authorised to grant three stage carriage permits for the Jagdalpur-Jeypore inter-State route. Accordingly, the Regional Transport Authority, Raipur, invited applications for grant of such permits. The Petitioner, the Respondent 3 and several other operators applied for the permits. In due course, these applications were considered by the Regional Transport Authority, Raipur which, by its order dated 30 October 1961 granted one permit each to the Petitioner, Anand Transport Co. (Private) Ltd., Raipur, and Lucky Bharat Garage (Private) Ltd. Since a mistake had, been committed in granting return trip permits each permit was, by an order dated 13 December 1961 altered into a single trip permit. The Respondent 3, who had unsuccessfully made a claim for those permits, filed Appeal No. 35 of 1962 against the original order dated 30 October 1961. The Petitioner, who too had claimed all these three permits, filed Appeal No. 54 of 1962. The other grantee, Anand Transport Co. (Private) Ltd. filed two appeals, Nos. 29 and 30 of 1962, for the other two permits. All these appeals were heard and allowed by the State transport Appellate Authority which, by its order dated 27 November 1963, remanded the case for a fresh decision. Being aggrieved, one of the grantees, namely, Anand Transport Co. (Private) Ltd., challenged the order of remand in Miscellaneous Petition No. 63 of 1964. This Court, by its order dated 14 October 1964, allowed that petition, quashed the order of remand and remitted the case for a fresh disposal of the appeals. Thereupon, the Petitioner withdrew its appeal and then Shri S. P. Mitra, a member of the State Transport Appellate Authority, passed the order dated 27 August 1963.

Although the Petitioner challenged the impugned order upon several grounds set out in paragraph 8, 9 and 10 of the petition, its learned Counsel pressed before us only one of them, Briefly stated, this ground is that, when the appeals mentioned in the last paragraph were filed, Shri R. B. Kotasthane was the single member authority, who had been appointed under Rule 73 of the Central Provinces and Berar Motor Vehicles Rules, 1942, as amended on 24 March 1961, to decide appeals u/s 64 of the Motor Vehicles Act, 1939, against orders passed by Regional Transport Authorities; that, on 26 July 963, Rule 73 was further amended to require the State Government to constitute an appellate authority "consisting of such number of members not exceeding five as it may deem fit" with "one of the members to be the Chairman thereof" having power to constitute Benches consisting of one or more members; thas Shri R. C. Roy Poddar (Chairman) and Shri S. P. Mitra (member) were so constituted as the Appellate Authority; that no provision was then made for transfer of pending appeals to the new Appellate Authority and that, therefore, those appeals became infractuous in consequence of abolition of the Appellate Authority which had seisin over them. Shri R. K. Tankha, learned counel for the Respondent 3, met this ground by pointing out that there was in this case no more than a change of forum which was merely a matter of procedure and that the Petitioner had, in this sense, no vested right to prosecute its appeal in a particular forum. The counsel further contended that, since the Petitioner had submitted to, and not questioned, the jurisdiction of the new Appellate Authority, it was no longer open to it to challenge it in these proceedings.

It is well established that, when a party having full knowledge of the relevant facts fails to object to the jurisdiction of a tribunal to deal with the matter before it and submits to such jurisdiction, it is precluded from questioning it afterwards: Rex v. Williams Phillips, Ex Parte 1914 1 KB 608, Pannalal Binjraj Vs. Union of india (UOI), , Lakshman Chettiar v. Commissioner of Corporation of Madras ILR 50 Mad I FB, Ramnarayan v. Sudama 1962 JLJ SN 16: 1961 MPLJ SN 270 and Janata Motor Transport Co-operative Society Ltd v. State Transport Appellate Authority 1964 JLJ 359: 1964 MPLJ 289, But it is equally well settled that this principle does not apply to cases where the tribunal suffers from want of inherent jurisdiction. So, the Privy Council held, following its earlier decision in Ledgard v. Bull 13 IA 134, that where there is inherent incompetency in a tribunal to deal with a question before it, the right to raise it could not be waived because, in such a case, consent could not give jurisdiction: Meenakshi Naidoo v. Subramaniya Sastri 14 IA 160. The same view has been taken in Madhava Rao v. Surya Rao ILR 1953 Mad 1047 FB. The United Commercial Bank Ltd. Vs. Their Workmen, , Seth Hiralal Patni Vs. Sri Kali Nath, and Sheik Hussain and Sons Vs. State of Andhra Pradesh and Others, . That being so, we have to consider whether there was in this case an inherent incapacity in the new appellate authority to hear and dispose of the appeals filed before it was constituted.

In regard to the right of appeal, the Supreme Court elaborately considered the case law, including the leading case of Colonial Sugar Refining Company Ltd. v. Irving 1905 AC 369, in Garikapatti Veeraya Vs. N. Subbiah Choudhury, and laid down the following propositions:

(1) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding,

(2) The right of appeal is not a mere matter of procedure but is a substantive right.

(3) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties there- to till the rest of the career of the suit.

(4) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the Lis commences and, although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(5) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.

It has, however, been held that the question whether an appeal, that lay to the High Court, should be heard by one, two or a larger number of Judges is merely a matter of procedure which does not affect the substantive right of appeal: Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial and Others, and P. Mohammed Meera Lebbai v. Thirumalaya Gounder Ramaswamy Gounder and other C. A. No. 383 of 1963, decided on the 2 rd Aug. 1965-SC, It does not appear that the position would be different if a tribunal is abolished and another tribunal takes its place. It would in any event be a matter covered by the fifth proposition laid down in Garikapatti Veeravas'' case (Supra). So, in Ittavira Mathai''s case (supra), the Supreme Court observed:

A litigant has no right to contend that a Tribunal before whom he should have taken an appeal when he instituted the suit, should not be abolished. The legislature has full power to enact a law of that kind and it is not contended before us that the repeal of the Travancore High Court Act was unconstitutional. It would, therefore, follow that whatever rights may have vested in the party in the matter of filing an appeal were abrogated by competent legislature. New rights were conferred in place of those which were taken away and it is only the new rights which could be availed of.

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The view taken by the Calcutta High Court in Prabirendra Mohan Vs. Berhampore Bank Ltd. and Others, to the effect that, in consequence of abolition of the Federal Court, a litigent, who had instituted a suit of the value of more than Rs. 10,000/-but less than Rs. 20,000/- before the constitution and who then had a vested right of appeal to the Federal Court, could not exercise that right ii his suit was decided after the commencement of the Constitution was not accepted by the Supreme Court and it was held in Garikapatti Vecrava''s case (supra) that the right was saved by Article 13(sic) of the Constitution. The same view had been taken even in an earlier case in Dajisaheb Mane and Others Vs. Shankar Rao Vithal Rao Mane and Another, .

The position here is that, while the right of appeal u/s 64 of the Act to the authority prescribed under Rule 73 was not taken away, a new appellate authority was constituted after amending that Rule to take the place of the old single-member appellate authority. The right of appeal, it may be stated, is the right of entering a superior tribunal, and invoking its aid and interposition, to redress the error of the tribunal below. In the case before us, while the right of appeal in this sense remained unimpaired, what was done was that, during the pendency of certain appeals before the old single-member appellate authority, a new appellate authority was constituted. The question is whether this could be done so as to clothe the new appellate authority with jurisdiction to deal with the pending appeals without making any express provision for the purpose. We think there are two reasons for taking the view that the new appellate authority was competent to dispose of the pending appeal. In the first place, the change brought about was merely in the venue and (hat was a matter of procedure only. Secondly, the new Rule 73, which abolished the old appellate authority and authorised the constitution of the new appellate authority postulated by necessary intendment that the pending appeals should be heard and disposed of by the new appellate authority. Ittavira Mathai''s case (supra) authoritatively lays down that the competent authority could amend Rule 73, abolish the old appellate authority, constitute a new appellate authority and authorise it expressly, or by necessary intendment, to hear and dispose of even pending appeals. In Gangaram v. Punamchand ILR 21 Bom 822, and appeal was preferred against a decision of the Subordinate Judge rendered under the provisions of the Dekkan Agriculturists'' Relief Act, 1879. On that date, the District Court had no jurisdiction to hear the appeal. While the appeal was pending, the Dekkan Agriculturists'' Relief Act was amended and the District Judge then entertained that pending appeal, A Division Bench of the Bombay High Court held that, although the District Court had no jurisdiction to hear the appeal on the date when it was preferred, such jurisdiction was conferred upon the Court during the pendency of the appeal and, therefore, that Court rightly assumed jurisdiction to hear and dispose it of. In Shiv Bhagwan Moti Ram Saraoji Vs. Onkarmal Ishar Dass and Others, , Chagla, C. J., speaking for the Court, observed:

Now, I think it may be stated as a general principle that no party has a vested right to a particular proceeding or to a particular forum, and it is also well settled that all procedural laws are retrospective unless the legislature expressly states to the contrary. Therefore, procedural laws in force must be applied at the date when a suit or proceeding comes on for trial or disposal............

Mr. Maneksha says that, at the date when the suit was filed, the Defendants had a right with regard to the land at Vikhroli to have the suit heard in the District Court of Thana and he cannot be deprived of that right by subsequent legislation. Now, as I said before, the Defendants have no vested right in any particular forum.

This Court was bound to take notice of the change in the law and was bound to administer the law as it was when the suit came on for hearing. Therefore, if the Court had jurisdiction to try the suit when it came on for disposal, it could not refuse to assume jurisdiction by reason of the fact that it had do jurisdiction to entertain it at the date when it was instituted.

In the Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor [1], the Supreme Could upheld, for somewhat different reasons, the validity of disposal of appeals under a new Act though the proceedings had been initiated under another Act. Their Lordships observed:

As we have pointed out above, the proceedings u/s 8 of the first Mysore Act are in substance equal to proceedings u/s 5 of the second Mysore Act and therefore proceedings commenced under the first Mysore Act must, in view of Section 53(2) of the second Mysore Act, be deemed to be proceedings u/s 5 of the latter Act. Once this conclusion is reached-and it seems to us that it is inevitable-it follows that an order made in a proceeding commenced u/s 8 of the first Mysore Act must be deemed to be an order made u/s 5(1) of the second Mysore Act or u/s 7 (I) of the Act. In this connection, it is relevant to point out that it could not have been the intention of the Legislature to keep the first Mysore Act, alive for certain purposes for all time; the whole object of passing the subsequent Acts is plainly against such an assumption.

The next question that arises is whether the second Mysore Act and the Act took away the right of appeal which lay to the High Court under the first Mysore Act and substituted for it another right of appeal by necessary intendment. As we have already pointed out, there is no express provision either in the second Mysore Act or in the Act in this behalf. But once it is held that proceedings which commerced u/s 8 of the first Mysore Act must, when the second Mysore Act came into force, be deemed u/s 53(2) thereof to be proceedings u/s 5(1) or when the Act came into force be deemed u/s 58(3) thereof to be proceeding u/s 7(1) and must be continued under those provisions, it follows that the legislature necessarily intended that all subsequent action following an order u/s 5 (l) or Section 7(1) must be taken under the second Mysore Act or under the Act as the case may be. It could not have been intended by the Legislature then it was expressly providing for appeal from an order u/s 5 (I) of the second Mysore Act or u/s 7(1) of the Act that a proceeding commenced under the first Mysore Act (which was equivalent to a proceeding u/s 5(I) or Section 7 (I) should continue to be governed in the matter of appeal by the first Mysore Act). This is therefore in our view a case where intendment (though not by expression the legislature intended that the provision as to appeals provided by subsequent legislation should supersede the provision as to appeals under the first Mysore Act. We may point out that this is not a case where the right of appeal disappears altogether; all that happens is that where the order is passed by the Custodian the appeal lies to the Custodian-General instead of to the High Court. The legislature has provided another forum where the appeal will lie and in the circumstances it must be held that by necessary indenment the legislature intended that forum alone to be the forum where the appeal will lie and not the forum under the first Mysore Act.

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Having regard to the considerations set out in the foregoing paragraphs, we are of opinon that not only the new appellate authority was not lacking in jurisdiction to dispose of the appeals but, in view of the abolition of the old appellate authority, the new appellate authority was also the only authority competent to dispose of the pending appeals. Since no other point was argued, this petition fails and is dismissed. The Petitioner shall bear its own coats and pay out of the security amount those incurred by the Respondent No. 3. The remaining amount of security shall be refunded. Hearing fee Rs. 100/-.