AI Structured Summary
Not yet generated for this judgment
Judgment
A.N. Venugopala Gowda, J.—These writ petitions are directed against the orders passed by the Karnataka State Transport Appellate Tribunal, Bangalore (for short ''the Tribunal''), though dated differently. The question of law involved in all these writ petitions is identical based on somewhat similar facts. W.P. No. 35719/2013 would be taken as lead case. The petitioner is a holder of stage carriage permit valid up to 09.02.2014, authorized to operate on the route Thimmanahalli - Y.N. Hoskote and back, 4th respondent was granted with a fresh stage carriage permit for the route Ramadurga to Chitradurga and back. Timings in respect of the said permit was assigned on 13.05.2010 by the Secretary, Regional Transport Authority, Chitradurga (for short ''the RTA''). Questioning the assignment of timings with respect to the said service of the 4th respondent, respondents 2 and 3 filed R.P. Nos. 926 and 927 of 2012 before the Tribunal. The petitioner and respondents 2 and 3 in R.P. Nos. 926 and 927 of 2012, having filed a joint memo, to condone the delay in filing of the revision petitions and modify the order impugned in the revision petitions, by suggesting timings to the service of the petitioner in the revision petitions, the Tribunal by accepting the joint memo. condoned the delay, modified the order dated 13.05.2010 in Subject No. 140/07-08 impugned before it and also modified the timings as mutually as agreed to by the private parties before it, with liberty to the Secretary, RTA, Chitradurga, to re-do the timings, if any of the existing operator/s make any grievance or complaint.
Feeling aggrieved, the petitioner filed Misc. No. 3/13 in the Tribunal, by invoking S. 90 of the Motor Vehicles Act, 1988 (for short ''the Act'') read with Rule 88(2) of the Karnataka Motor Vehicles Rules, 1989 (for short ''the Rules''), seeking to recall the order passed on 16.10.2012 in R.P. Nos. 926 and 927 of 2012 and to restore R.P. Nos. 926 and 927 of 2012 for consideration and decision afresh. The Tribunal having dismissed the Miscellaneous Petition as not maintainable, writ petitions have been filed.
It is unnecessary to refer to the facts in the other cases, for they are undisputedly similar. The orders passed by the Tribunal, impugned in these writ petitions are identical.
Miscellaneous Petitions filed by these petitioners, to recall the orders passed having been treated as "review petitions" by the Tribunal and by noticing that the petitioners were not parties in the earlier proceedings and having arrived at the opinion that the petitioners have no locus standi to question the order/s passed allowing in part/disposing of the revision petitions etc. and by observing that the Act also does not empower to review the order/s passed, by making an observation that the only course open to the aggrieved person/s is to approach the High Court for relief, the miscellaneous petitions have been dismissed.
In nutshell, the case of these petitioners in the miscellaneous petitions filed before the Tribunal was that behind their back the material information was suppressed from the Tribunal and the consent orders have been obtained, affecting their service/s and hence, the orders passed being opposed to the principles of natural justice and prejudicial to their interest, may be recalled and cases heard afresh.
Learned advocates appearing for the petitioners contended that having regard to the peculiar facts and circumstances obtained in the instant cases, the Tribunal has failed to take into consideration that it has the inherent power to recall its own order/s, when sufficient cause is shown therefore, as principles of natural justice envisage that a mistake committed in not noticing the facts involved in the case/s decided would attract ancillary and/or incidental power necessary to discharge the functions effectively for the purpose of doing justice between the parties. Learned advocates further submitted that on account of the misdirection adopted by the Tribunal in treating the miscellaneous petitions filed for recalling the order/s as review petitions, the impugned orders having been passed, there being irrationality and also failure of justice, interference with the impugned orders is warranted.
Learned advocates appearing for the respondents, on the other hand supported the impugned orders. Alternatively, they submitted that, since the petitioners can approach the concerned RTA, in the matter of assigning of timings, these writ petitions may not be entertained.
As the legal question involved is general in nature, on my request, Sri. S.S. Naganand, learned Senior Advocate, made submissions as an Amicus Curiae. I am immensely benefited by his able assistance, which I thankfully acknowledge. Learned Amicus Curiae, firstly, submitted that natural justice has been held as an essential feature of every adjudicatory process, be it a Court, a Quasi Judicial Tribunal or an Administrative Authority, where its decision has civil consequences. By referring to the decision in the case of Ridge vs. Baldwin, reported in 1964 Appeal Cases 40, he submitted that natural justice has been held as not susceptible of exact definition, but in the facts and circumstances of a case, what a reasonable man would regard as fair procedure would be the principles of natural justice. Secondly, by referring to S. 90 of the Act and Rule 90 of the Rules, he submitted that the observance of principles of natural justice by the Tribunal is mandatory and if the parties in a case before it have agreed for a settlement, the Tribunal can accept the same and make an order in terms thereof, if the settlement is not illegal. But, the Tribunal should address itself to the question of rules of natural justice. Thirdly, no order of a Court or Tribunal, passed without the presence of a party, can bind such a party and no order obtained by the parties to a lis, binds third parties, if it adversely affects third parties and if the order is obtained by suppression of facts, it can be characterized as an order vitiated by fraud, as the order so obtained is non est. Learned Amicus Curiae further submitted that in catena of decisions of the Apex Court, it has been held that fraud unravels everything and the said principle is specifically made applicable to all judicial orders. By referring to the decision in the case of Ram Chandra Singh Vs. Savitri Devi and others, reported in 2003 (8) SCC 319, he submitted that the fraud and deception will vitiate even the consent order and third party right cannot be set at naught by a consent order. Reference was also made to the decision in the case of Pushpa Devi Bhagat Vs. Rajinder Singh, reported in AIR 2006 SC 2628, with regard to the mode of challenge to a consent order, whether a suit will lie against the matter compromised, he pointed out that the mode of challenge to consent order is to approach the same Court wherein matter was compromised, since no appeal or independent suit can lie. Cumulatively, learned Amicus Curiae submitted that, if a consent order has been passed by the Tribunal by mutual consent of certain operators, having adverse civil consequences on other operator/s or a third party who was not a party to the proceeding in which the order was made, the power of the Tribunal to entertain a plea for post decisional hearing, in order to comply with the requirement of natural justice, which is specifically provided for both in S. 90 of the Act and Rule 90 of the Rules can be exercised and the Tribunal would have the power to amend, vary or rescind, its own order, as per S. 21 of the General Clauses Act, 1897. Learned Amicus Curiae submitted that the Tribunal has the power to recall/review a consent order passed by it, more particularly, in a case where a third party, who was not heard, approaches for recall/modification/review of the order made earlier, if it is made out that his rights are affected by the order passed.
Undisputedly, in the cases filed before the Tribunal, the petitioners, who are operating their services on the routes under consideration, were not impleaded as parties. The cases have not been decided on their merit, but have been disposed of in terms of the joint memos/compromise petitions filed by the private service operators on both sides. Though, the petitioners filed miscellaneous petitions, to recall the order/s in exercise of the inherent power, the Tribunal by wrongly construing the petitions filed as review petitions has held that there is no provision under the Act, empowering it to review its own order passed either in exercise of the appeal or revision jurisdiction and consequently, answered the points raised by it for consideration in the negative and dismissed the Miscellaneous Petitions.
S. 90 of the Act and Rule 90 of the Rules being relevant, the same are extracted hereunder:
S. 90. Revision.- The State Transport Appellate Tribunal may, on an application made to it, call for the records of any case in which an order has been made by a State Transport Authority or Regional Transport Authority against which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final:
PROVIDED that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a State Transport Authority or Regional Transport Authority, unless the application is made within thirty days from the date of the order:
PROVIDED FURTHER that the State Transport Appellate Tribunal may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by good and sufficient cause from making the application in time:
PROVIDED ALSO that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.
(emphasis supplied)
**** **** *****
Rule 90. Procedure in appeal or revision.- (1) After the State Transport Appellate Tribunal has admitted an appeal u/s 90, it shall appoint time and place for the hearing of the appeal or revision application, as the case may be, give an intimation to the authority against whose order the appeal or revision application is made and also to the appellate or applicant concerned in person or through an authorised representative and any other person likely to be effected by the grant of the relief prayed for, such appellant, respondent or the person interested shall appear before the Tribunal with original documents or records pertaining to the case on the appointed date and place of the hearing, if any.
(2) The Secretary of the Transport Authority concerned shall within the fourteen days of the receipt of such intimation, send all the original documents and record pertaining to any appeal or revision application with proper index and paging to the Tribunal when the same are called for by it.
(3) The Tribunal may after following the procedure in subsection (1) of Section 89 or, as the case may be, Section 90 and after such further inquiries, if any, as it may consider necessary, confirm, vary or set aside the order against which an appeal or revision application is made or pass such other order in relation to the facts of the case as it deems fit.
(emphasis supplied)
I have given my anxious consideration to the lengthy submissions made by all the learned advocates appearing for the respective parties with reference to the pleadings, Annexures etc. and also the submissions made by the learned Amicus Curiae. There is no dispute that the petitioners are operating their services on the routes and they were not made parties in the cases filed before the Tribunal. The Tribunal has not decided the cases on their merit. The cases have been disposed in terms of the agreement reached by the private operators/parties before it. The grievance of these petitioners that they would be affected by the arrangement which was reached by the rival operators behind their back has not been considered and the finding has not been recorded by the Tribunal, while dismissing the miscellaneous petitions. In view of the third proviso under S. 90 of the Act, noticed supra, the Tribunal ought to have found out, whether the order/s passed by it has any prejudicial effect on the person who was not a party to the case decided and whether he should be given a reasonable opportunity of being heard in relation to the facts of the case and pass appropriate order.
The basic principle of justice is that no adverse order should be passed against a party without providing him an opportunity of hearing. The Constitution Bench of the Apex Court in the case of A.R. Antulay Vs. R.S. Nayak, Reported in (1988) 2 SCC 602, has observed in para 55 that, the violation of principles of natural justice renders the act a nullity. There is a clear distinction between a review petition and recall petition. While in a ''review petition'', the Court/Tribunal considers the case on merit, where there is an error apparent on the face of the record, but, in a ''recall petition'' the Court/Tribunal does not go into the merit of the case, but, simply recalls the order, when satisfied that the order was passed without giving an opportunity of hearing to an affected party.
In Sunitadevi Singhania Hospital Trust and Another Vs. Union of India and Another, (2008) 16 SCC 365, considering the powers of CESTAT, in the absence of a statutory provision for condonation of delay, having regard to the principles of natural justice, Apex Court has held as follows:
It is true that the period of limitation specified in terms of Sub-Section (2) of Section 129-B of the Customs Act, 1962 is required to be observed but the Tribunal failed to notice that it has inherent power of recalling its own order if sufficient cause is shown therefore. The principles of natural justice, which in a case of this nature, in our opinion, envisage that a mistake committed by the Tribunal in not noticing the facts involved in the appeal which would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purpose of doing justice between the parties, were required to be complied with.
While the judges'' records are considered to be final, it is now a trite law that when certain questions are raised before the Court of law or tribunal but not considered by it, and when it is brought to its notice, it is the only appropriate authority to consider the question as to whether the said contentions are correct or not. For the aforementioned purpose, the provisions of limitation specified in Sub-section (2) of Section 129-B of the Customs Act would not be attracted. We, however, do not mean to lay down a law that such an application can be filed at any time. If such an application is filed within a reasonable time and if the court or tribunal finds that the contention raised before it by the applicant is prima facie correct, in order to do justice, which is being above law, nothing fetters the judges'' hands from considering the matter on merit.
In the case of Union of India Vs. Sandur Manganese and Iron Ores Limited and Others, (2012) 9 SCC 683, Apex Court has held as follows:
The principles of natural justice embody the right to every person to represent his interest to the court of justice. Pronouncing a judgment which adversely affects the interest of the party to the proceedings who was not given a chance to represent his/its case is unacceptable under the principles of natural justice.
In the instant cases, recall of the order/s were sought on the ground that in the absence of necessary party, whose interest would be affected by the joint memos filed having been taken on record and the case/s having been disposed of accordingly and not on merit/s of the case/s.
Instead of giving scope to an aggrieved person to approach this Court for relief as against the order passed, when the Tribunal was approached for recalling the order passed by it, keeping in view the third proviso under S. 90 of the Act and the provisions under Rule 90 of the Rules and the applicability of the principles of natural justice, the cases having not been decided on merit, but, on the basis of the joint memo/s filed by the private operators in the case, which the third party i.e., the petitioner herein contended as prejudicially affecting his interest, the Tribunal ought to have considered the Miscellaneous Petition filed to recall the order, in the manner stated herein. The label of the petition is not decisive for consideration. What is material is whether a case has been made out to hear the petition on merit, particularly having regard to the grounds set out therein. In the instant cases, the Tribunal has not considered the Miscellaneous Petitions filed by these petitioners, on their merit. The Tribunal has failed to take into consideration the fact that the petitioners are alleging violation of principles of natural justice and as such, it ought to have considered their petitions, if has been filed without undue delay, on their merit. The same having not happened in these cases, interference with the impugned orders is warranted.
For the foregoing discussion, these writ petitions are allowed and the impugned orders passed by the Tribunal on the Miscellaneous Petitions filed before it are quashed. The Miscellaneous Petitions having not been decided on their merit are restored for consideration and decision in accordance with law, by also keeping in view the observations made supra. The Tribunal is directed to decide the Miscellaneous Petitions expeditiously and within a period of two months from the date a copy of this order becomes available. It is made clear that nothing said in this order shall be construed as an expression of opinion on the merit of the cases of the petitioners in the Miscellaneous Petitions filed before the Tribunal.
No costs.