Judgment:
A. Pasayat, J.
1.These two writ applications are directed against a common judgment passed by the State Transport Appellate Tribunal, Orissa, Cuttack (in short, the 'Tribunal') directing fresh consideration of applications seeking grant of temporary permits by the Chairman, State Transport Authority, Orissa, Cuttack (in short, 'STA').
2. A brief reference to the factual aspect would suffice. Each of the petitioners filed application for temporary permit on the inter-Stats route from Kakatpur to Calcutta in the year 1988. An agreement was entered into between the State of Orissa and State of West Bengal and on the basis of such agreement, two vehicles from each State were to be plied on the aforesaid route. As applications filed for temporary permits are not disposed of for a long time, this Court was moved. A direction was given to dispose of the application. it is to be noted that there were five applications. Accordingly, STA disposed of applications for grant of temporary permits by order dated 29/30-7-1996 and the applications were rejected.
3. Appeals were filed under Secton 89 of the Motor Vehicles . Act, 1983 (in short, the 'Act') before the Tribunal. Primary stand taken in the appeals filed by petitioners was that previously permits granted to the operators on the aforesaid route on the condition that they shall be valid subject to the counter-signature by the concerned Transport authorities of West Bengal. In the agreement itself it was mentioned that on the aforesaid route, two vehicles from each State has to be plied and therefore, rejection of the applications for grant of temporary permits was untenable. The Tribunal noticed that concurrence was not received from the Transport authority of West Bengal. STA had issued temporary permits frequently in the past on the basis of agreement entered in the year, 1988.It rejected applications primarily on the ground that despite repeated requests. concurrence of the Transport authority of West Bangal was not received. Tribunal noticed that there was an agreement and permits were issued previously. In the aforesaid background, Tribunal came to conclude that applications should not have been rejected marely on the ground that concurrence was not received from the Transport authority of West Bengal. Conditional permits as were issued earlier on the aforesaid route could have been granted. Contention of learned counsel appearing for the STA before the Tribunal that agreement having not reached its finality, no permit can be issued on its basis did not find favour with the Tribunal, in view of earlier issuance of permits. After having so concluded, the. Tribunal held that it could have issued permits to the applicants before it. but it did not think appropriate to do so as tiers were other applications. Accordingly matter was remitted to the STA for fresh consideration.
4. Learned counsel for petitioners submitted that approach of the Tribunal is erroneous. As the persons whose applications were rejected did not prefer any appeal. Tribunal ought to have ignored their cases and taken a decision on the dispute which was before it. Mr L. Mohapatra and Mr. S.S. Rao, learned counsel for opp. party Nos 5 to 7 submitted that the course adopted by the Tribunal cannot be called to be erroneous and in any event it would be open to the petitioners to place their stand on merits before the STA afresh. Learned counsel for Transport Department also made similar submission.
5. A person whose application has been rejected and no challenge was made to the rejection is not entitled to derive any benefit in appeal preferred by another applicant. Where concerned Transport Authority rejects application of any applicant before it, that bring on end to the application. Such a person has a right under toe statute to prefer an appeal against rejection of his application. If there is any challenge to the order of rejection and remedy of appeal is availed appellate authority can consider it and in an appropriate case can direct grant of permit or direct reconsideration by original authority. in such a case where a person whose application has been rejected omits to prefer an appeal, his case cannot be considered by the appellate authority. Similar view was expressed by apex Court while considering a case under the Motor Vehicles Act, 1933 (in short. 'Old Act'), (See The Hanuman Transport Co. Pvt. Ltd. v. Meenakshi alias Rama Raj and Ors., Civil Appeal No. 794 of1963 (SC) dated 20-12-1983. It was observed that in the absence of any provision analogous to Order 41, Rule 33 CPC, the Tribunal has no power to give the benefit of its remand order to a non-appealing, unsuccessful applicant. . Similar view was expressed In Sumbum Roadways (P.) Ltd. v. Somu Transport (P ) Ltd.:AIR 1966 SC 1366.
6. The inevitable conclusion is therefore, that order of remand is to be confined to those who were before appellate authority. Further question is whether the Tribunal was justified in directing remand, it is no doubt true that in matters where the record does not show enough or sufficient material which could prompt the appellate authority which has co-extensive . jurisdiction along with the original authority to deal with matters the normal function, of an appellate authority is to send back the matter to the original authority for a fuller appraisal of the material and for proper decision thereafter, But if the appellate authority is confronted with the position that it could act and weigh the material before it for purposes of finding out whether an extension or variation is proper or not, then it should undertake such an investigation if it is satisfied that the material before it is adequate. The word appeal Is in legal parlance held to mean the renewal of a cause from an inferior or subordinate to a superior Tribunal or Forum in order to test or scrutinlze the correctness of the impugned decision. It amounts to a complaint to a higher Forum that the decision of the subordinate Tribunal is erroneous and, therefore, liable to be rectified or set right. It is a continuation of judicial proceeding. An appeal strictly so called, is one in which the question is, whether the order of the Court from which the appeal is brought was right on the materials . which that Court had before it: (per Lord Devey. Ponnomma v. Arumbgam : (1905) AC 390], 'Appeal' according to Webster's Dictionary is 'the removal of a cause or a suit from an inferior to a superior Judge or Court for re-examlnation or review. Wharton's Law Lexicon expresses it as the removal of a cause from an inferior to a superior Court for the purpose of testing the soundness of the decision of the inferior Court. It amounts in essence to a complaint to a higher Forum that the decision of the subordinate officer or Tribunal is erroneous and liable' to be set right. There is no inherent limitation in the word 'appeal' and generally speaking it embraces all proceed dings whereby a superior Court or Forum is called upon to review, revise, affirm, reverse or modify the decision of the inferior Court or Forum. The word 'remand' in its ordinary grammatical and well-understood connotation only means the sending back of a case or proceeding to that Tribunal or authority which had dealt with or considered it at some prior stage for taking some further action thereon:. (Black's Law Dictionary, Fourth Edition, page 1157). A remand implies setting aside the orders passed by the inferior authority or Tribunal and it can be made when the order under appeal was based on insufficient material or that some fresh evidence has to be considered. A remand may be proper when there is some further enquiry to be made or some further evidence is required to be brought on record, but it is not proper to remand for re-writing a judgment when the judgment is found to be defectively drafted or where all the materials were before the Tribunal, in such a case the Tribunal commits a manifest error if it. remands the case and not deciding the appeal itself. If the material on record is not sufficient for the decision of the appeal on merits, and the appellate authority considers some further enquiry necessary, which enquiry cannot conveniently be made at the appellate stage, the case may be remanded by the appellate authority for re-determination of the case. But if the record contains all the materials necessary for the disposal of the matter, the appellate authority should dispose of finally all matters available instead of remanding the cast to the primary authority. Where sufficient evidence or material is available to enable the appellate authority to take a decision, it is its duty to do it. The power of remand should not be utilised as a matter of course and same must be avoided when the appellate authority can make necessary enquiry which would save both time and expenses of litigation to some extent. These basic principles are embodied in Order 41, Rule 24, CPC. The departure is indicated in Rule 25 of the said order. In the instant case, we find that Tribunal was of the view that relevant aspects were not considered by the STA and therefore, remitted the matter for fresh consideration.
7. In the peculiar circumstances, we find nothing irregular in the order of remand passed by the Tribunal. However, consideration should be restricted to only those who had preferred appeals before the Tribunal. To avoid unnecessary delay, we direct the STA to take up the matter on 12th November, 19.6. Petitioners shall appear before at without any further notice. The said authority would do well to dispose of the matter by 19th November, 1996.
The writ applications ere allowed to the extent indicated above. No costs.
S.N. Phukan, C.J.
8. I agree.