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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1562 OF 2018
(arising out of SLP(C) No.35738 of 2017)
STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY & ANR. ... APPELLANTS
VERSUS
MAHENDRA GUPTA & ORS. ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
The State of Madhya Pradesh is in appeal against the
judgment of Division Bench of the High Court of Madhya
Pradesh, Bench at Gwalior dated 22.03.2017 by which judgment
writ appeal filed by the State questioning the judgment of the
learned Single Judge dated 17.03.2015 has been dismissed.
2. The parties shall be described as referred to in the writ
petition. The facts giving rise to this appeal are:
The writ petitioners have permanent permit for two
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routes, one Gwalior to Bhander and second Gwalior to Datia.
Respondent No.3 has also the permanent permit for the route
Gwalior to Jhansi. Respondent No.3 preferred an application
for modification of time schedule for movement of his vehicle.
The application of Respondent No.3 came for hearing before the
State Transport Authority on 16.10.2014. On the date of
hearing both counsel for the applicant as well as counsel for
the objectors were heard. The State Transport Authority
allowed the modification and decided to change the time
schedule as prayed by the applicant in the public interest.
The order was issued by the State Transport Authority on
15.12.2014. Aggrieved by the order dated 15.12.2014, Writ
Petition No.883 of 2015 was filed by the two petitioners who
were objectors before the State Transport Authority. In the
writ petition various grounds were taken questioning the
application filed by the applicantPawan Arora. One of the
grounds taken before the learned Single Judge was that
although the State Transport Authority heard the matter on
16.10.2014 consisted of Chairperson and two members, however,
the order was delivered with the signatures of Chairperson and
only one member, since one member, Shri Sanjay Choudhary was
transferred in the meanwhile, hence, the order dated
15.12.2014 is illegal. The learned Single Judge accepted the
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contention of the writ petitioners and allowed the writ
petition by setting aside the order dated 15.12.2014.
3. The State of Madhya Pradesh filed writ appeal challenging
the judgment of the learned Singe Judge. The State contended
before the Division Bench of the High Court that there was no
illegality in the order issued by the Chairperson and one
member, although, it was heard by three members when the
meeting took place on 16.10.2014. The Division Bench
dismissed the appeal upholding the view of the learned Single
Judge.
4. Learned counsel for the appellant in support of the
appeal contends that under the Madhya Pradesh Motor Vehicles
Rules, 1994 quorum of the meeting of the State Transport
Authority is three Chairman plus two members and quorum was
complete when the meeting was held on 16.10.2014, the decision
delivered by the majority of the members is in no manner
illegal. It is submitted that after hearing, one member was
transferred and was not available to be part of the order
issued on 15.12.2014. It is submitted that even it is assumed
that one member was not agreeing with the decision of two
other members, although, there is no such pleading or material
on the record, the decision taken by the majority of the
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members was fully valid and there was no infirmity in the
order dated 15.12.2014. It is submitted that the learned
Single Judge as well as Division Bench committed error in
taking the view that the order dated 15.12.2014 was an illegal
order.
5. Learned counsel for the respondents supported the order
of the High Court and contends that when one member who heard
the matter on 16.10.2014 was not available, no decision could
have been taken by the State Transport Authority. He submits
that the matter was heard by three members, hence decision
could have been issued only by three members and the views
taken by the learned Single Judge and Division Bench are in
accordance with law.
6. We have considered the submissions of the learned counsel
for the parties and perused the records.
7. The Motor Vehicles Act, 1988 provides for constitution of
a State Transport Authority to exercise and discharge the
powers and functions as specified in subsection (3) of
Section 68. Section 68(1) and 68(3) are quoted below:
"68.Transport Authorities.(1) The State
Government shall, by notification in the
Official Gazette, constitute for the State a
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State Transport Authority to exercise and
discharge the powers and functions specified
in subsection (3), and shall in like manner
constitute Regional Transport Authorities to
exercise and discharge throughout such areas
(in this Chapter referred to as regions) as
may be specified in the notification, in
respect of each Regional Transport Authority;
the powers and functions conferred by or under
this Chapter on such Authorities:
Provided that in the Union territories,
the Administrator may abstain from
constituting any Regional Transport Authority.
(2) ....................................
(3) The State Transport Authority and every
Regional Transport Authority shall give effect
to any directions issued under section 67 and
the State Transport Authority shall, subject
to such directions and save as otherwise
provided by or under this Act, exercise and
discharge throughout the State the following
powers and functions, namely :
(a) to coordinate and regulate the activities
and policies of the Regional Transport
Authorities, if any, of the State ;
(b) to perform the duties of a Regional
Transport Authority where there is no such
Authority and, if it thinks fit or if so
required by a Regional Transport Authority, to
perform those duties in respect of any route
common to two or more regions;
(c) to settle all disputes and decide all
matters on which differences of opinion arise
between Regional Transport Authorities;
[(ca) Government to formulate routes for
playing stage carriages;] and
(d) to discharge such other functions as may
be prescribed.”
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8. The Rules have been framed by the State of Madhya
Pradesh, namely, the Madhya Pradesh Motor Vehicles Rules,
1994. Chapter V of the Rules contains heading “Control of
Transport Vehicles”. Rule 63 provides for State Transport
Authority. Rule 63(4) to (7) are quoted as below:
“63. State Transport Authority.
(4) The State Transport Authority shall
meet at such time and at such place as the
Chairman may appoint.
(5) Not less than three days' notice shall
be given to a member of the meeting of the
State Transport Authority.
(6) The quorum to constitute a meeting of
the State Transport Authority shall be the
Chairman or the nominated Chairman under the
subrule (7) and two other members (whether
official or nonofficial). If within hall an
hour from the time appointed for the meeting a
quorum is not completed, the meeting shall be
adjourned to such day and at such time and
place as the Chairman or the acting Chairman
nominated under subrule (7) may appoint and
no quorum is necessary for holding the
adjourned meeting.
(7) The Chairman, if unable to attend the
meeting, shall nominate a member to act as
Chairman at the meeting.”
9. Rule 64 provides for Regional Transport Authority and
Rule 65 is for Conduct of Business of Transport Authorities.
Rule 65(2) to 65(4) are as follows:
65. Conduct of Business of Transport
Authorities.
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(2) The State or Regional Transport Authority,
as the case may be, may decide any matter of
urgent nature without holding a meeting by the
majority of votes of members by recorded in
writing and send to the Secretary (hereinafter
referred to as the procedure by circulation).
(3) In the event of procedure by circulation
being followed, the Secretary shall send to
each member of the Transport Authority such
particulars of the matter as may be reasonably
necessary in order to enable the member to
arrive at a decision and shall specify the
date by which the votes of members are to be
received in the office of the Transport
Authority. Upon receipt of the votes of
members as aforesaid, the Secretary shall lay
the papers before the Chairman, who shall
record the decision by endorsement on the form
of application or other document, as the case
may be, according to the votes received and
the vote or votes cast by the Chairman. The
record of the votes cast shall not be
available for inspection by any person save by
a member of the Transport Authority at a
regularly constituted meeting of the Transport
Authority. No decision shall be made upon
procedure by circulation, if before the date
by which the voles of members are required to
reach the office of the Transport Authority,
not less than onethird of the members of the
Transport Authority have given notice in
writing to the Secretary demanding that the
matter be referred to a meeting of the
Transport Authority.
(4) The number of votes, excluding the
Chairman's second or casting vote, necessary
for a decision to be taken upon procedure by
circulation shall not be less than the members
necessary to constitute a quorum.
xxx xxx xxx xxx
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10. The facts of the case, as noted above, reveal that State
Transport Authority convened the meeting of the Authority by
issuing the Agenda for 16.10.2014. In addition to Chairperson,
two members Shri Sanjay Chaudhary, Transport Commissioner
and Shri Rajiv Sharma, Chief Engineer, Public Works
Department were present in the meeting. The applicant as well
as the counsel for the objectors were heard on 16.10.2014. The
decision of the Committee was issued on 15.12.2014 which was
signed by the Chairperson and only one member, Shri Rajiv
Sharma, since, after the date of the hearing and before the
issuance of the order one member, Shri Sanjay Chaudhary was
transferred. The copy of the order dated 15.12.2014 has been
brought on record as Annexure P1 which clearly mentions the
date of hearing, i.e., 16.10.2014. It is useful to extract
only the relevant parts of the order for the present case:
"THE STATE TRANSPORT AUTHORITY,
MADHYA PRADESH MOTIMAHAL, GWALIOR
Agenda Serial No.71
Case No.2159/2014 Hearing on 16.10.2014
Before:
1. Pramod Agrawal Chairperson
Principal Secretary,
Madhya Pradesh Government
Transport Department, Bhopal
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2. Sanjay Chaudhary Member
Transport Commissioner
Madhya Pradesh, Gwalior
3. Rajiv Sharma Member
Chief Engineer
Public Works Department,
Gwalior
... ... ...
... ... ...
Listing the aforesaid application
submitted by the applicant for hearing in the
meeting of the State Transport Authority dated
16.10.2014 the same was included in the agenda
and published on the Departmental Website and
the notice board of the Office and all
regional/ additional regional / District
Transport Office. The objections of the
aforesaid Drivers were obtained until the
aforesaid fixed date.
The case was presented in the meeting
dated 16.10.2014 of the State Transport
Authority. On the day of hearing, on behalf of
the parties their appointed counsels appeared,
who were heard.
... ... …
... ... …
Note: Since one member Shri Sanjay Chaudhary
of the Authority was transferred after
hearing, the aforesaid order is being passed
by the Chairperson and one member Chief
Engineer of the Authority.
Sd/ sd/
Member Member
State Transport Authority State Transport Authority
Madhya Pradesh”
11. The only issue which needs to be considered in this
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appeal is as to whether, when in the meeting dated 16.10.2014
the Chairperson and two members had heard the application for
the change of the time schedule, the order could have been
passed allowing the application by the two members
(Chairperson and one member) alone, since the order was singed
only by the Chairperson and one member, on 15.12.2014.
12. The statutory provisions of the Motor Vehicles Act, 1988
as well as the Madhya Pradesh Motor Vehicles Rules, 1994
indicate that the State Transport Authority is a multimember
body constituted by the State Government under Section 68(1).
The State Transport Authority is a multimember body which
transacts business in meeting except in case of emergency.
Meeting is to be convened at such time and at such place as
the Chairman may appoint. Three days' notice is required to be
given to the members and quorum of the meeting is the Chairman
or the nominated Chairman and two other members, i.e., quorum
is three. In the present case, there is no dispute that when
the meeting was held on 16.10.2014 quorum was complete since
Chairperson and two members were present which fact is clearly
noticed in the order dated 15.12.2014 as extracted above. The
three members who were present in the meeting heard the
applicant and objectors. But the order could be issued only on
15.12.2014, by which one of the members had been transferred
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and was not available to sign the order. One more important
fact which is to be noticed is that learned Single Judge had
categorically noted that the above issue was raised only
during the hearing before the learned Single Judge and there
was no pleading in the writ petition. In paragraph 16 of the
judgment, learned Single Judge himself has noticed the
following:
"16. The last question raised by the parties is
about the competency of the STA in passing the
impugned order. Although there is no pleading
in this regard in this petition. However,
learned senior counsel, Shri K.N. Gupta has
not disputed the fact that the matter was
heard by three members and order is passed by
two members.....”
13. The multimember body transacts its business after
debate, consultation and discussion. The view of multimember
body is expressed unanimously or by votes. For various kind of
decisions by multimember body special majorities are also
provided for acceptance of the decision. Normally, all
decisions of a multimember body are expressed by opinion of
majority of the members present except where the special
majorities are provided in the statute itself.
14. Shackleton on the “Law and Practice of Meetings”,
Eleventh Edition while discussing the majority has stated
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following in paragraph 730. Relevant parts of paragraphs 730
and 731 are quoted below:
" 4 MAJORITY
Definition
730 Majority is a term signifying the greater
number. In legislative and deliberative
assemblies, it is usual to decide questions by
a majority of those present and voting. This
is sometimes expressed as a “simple” majority,
which means that a motion is carried by the
mere fact that more votes are cast for than
against , as distinct from a “special”
majority where the size of the majority is
critical.
The principle has long been established
that the will of a corporation or body can
only be expressed by the whole or a majority
of its members, and the act of a majority is
regarded as the act of the whole.
A majority vote binds the minority
731 Unless there is some provision to the
contrary in the instrument by which a
corporation is formed, the resolution of the
majority, upon any question, is binding on the
majority and the corporation, but the rules
must be followed.”
15. Although Rules, 1994 do not expressly provide that
decision of the State Transport Authority shall be taken in
accordance with the opinions of the majority but there being
no special majority provided for decision to be taken in the
meeting of the State Transport Authority, normal, rule that
decision by majority of the members present has to be
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followed. In the present case when three members were present
and quorum was complete, the decision taken by majority, i.e.,
opinion of two members shall form the valid decision of the
State Transport Authority.
16. Rule 65 subsection (2) of the Rules dealing with the
conduct of business of Transport Authorities provides:
“65(2) The State or Regional Transport
Authority, as the case may be, may decide any
matter of urgent nature without holding a
meeting by the majority of votes of members by
recorded in writing and send to the Secretary
(hereinafter referred to as the procedure by
circulation).”
17. Thus, the concept of taking decision by majority of votes
of the members is very much present in the scheme of the
Rules. Although, where a decision is to be taken by the
circulation by votes a special majority is provided in Rule
65(4) but present being not a case of decision by circulation,
simple majority by members present was sufficient for making a
binding decision by the State Transport Authority.
18. In paragraph 18.1 of the judgment, the Division Bench
observed that:
"18.1. In the instant case there is nothing on
record to indicate that the
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STA with complete quorum heard the matter and
before one of the members Shri Sanjay Chaudhry
was transferred out any draft order was got
approved from the said transferred member.”
19. The above observation was made by the Division Bench of
the High Court while distinguishing the judgment of this Court
in Ramaswamy Nadar v. The State of Madras, AIR 1958 SC 56.
Before we refer to the decision of this Court in Ramaswamy
Nadar, it is clear that observation of the Division Bench of
the High Court that there is nothing on record to indicate
that the quorum of State Transport Authority was complete, is
factually wrong. The order of the State Transport Authority
dated 15.12.2014 has been brought on record as Annexure P1
and the relevant portion of the order has been extracted above
by us which clearly mentions that the hearing took place on
16.10.2014 where the Chairperson and two members were present
the quorum being three as per Rule 68(1) was complete. The
hearing took place by three members which is noted in the
order itself, as extracted above. Thus, observation of the
Division Bench of the High Court that quorum was not complete
and matter was not heard by three members is not correct.
20. Now, we come to the judgment of this Court in Ramaswamy
Nadar(supra). In the above case the matter was heard by a
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Bench of three Judges of this Court who after hearing had
announced the decision of acquittal. Draft judgment was also
approved by one of the Judges who had, however, died before
judgment could be delivered. Note appended in the judgment was
to the following effect:
" NOTE
SINHA, J.
When hearing of this appeal was finished
last week by a Bench consisting of three of
us, B.P. Sinha, P. Govinda Menon and J.L.
Kapur, JJ., we announced that we had come to
the conclusion that the appellant should be
acquitted. We also indicated that the judgment
will be delivered the week following. The
draft of the judgment was sent to late Mr.
Justice Menon last week and he had approved of
it. What we are now delivering are the reasons
of the Judges who constituted the Bench; but
it will be signed by two only of us on account
of the unexpected death of Mr. Justice. Menon.
K.S.B. Appeal allowed.”
21. In the above case judgment was pronounced with the
concurrence of the three judges. When the hearing took place
opinion of all the three Judges was expressed but judgment
could be singed by two Judges since one of the Judges died.
Although, the facts of the above case was little different
i.e. there was material to indicate that the third Judge who
could not sign had also concurred with the opinion, but in the
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present case there is no pleading of third member whether
agreeing or not agreeing with the decision. For the present
case, we proceed on the premise that the third member did not
agree with the decision. For the decisions of this Court,
Article 145 subclause (5) of the Constitution of India
provides that judge of this Court can deliver a judgment with
the concurrence of a majority of the Judges present at the
hearing of the case.
22. The present is a case where decision by a multimember
body is to be taken in the meeting of the Committee as per the
statutory Rules. There being no such majority provided for
taking a decision, the decision by majority has to be accepted
as the opinion of the State Transport Authority.
23. Two more cases, which were relied by the appellant and
noticed by the High Court need to be noted. The Privy Council
judgment in Gokal Chand Jagan Nath Vs. Nand Ram Das Atma
Ram, AIR (1938) P.C. 292, is relevant for the present case. In
the appeal before the Privy Council, judgment of the High
Court was assailed on the ground that the two Hon'ble Judges
of the High Court heard the matter, although, both judges
concurred with the judgment, but one Judge went on leave
17
before signing the judgment, which was signed by only one
Judge. The Privy Council repelled the contention and held
that signing by one of the Judges at best was only
irregularity, not affecting the merits of the case. Following
was laid down in Paragraphs 6, 7 and 8:
“6. A further point was raised by the
appellants. They urged that the judgment of
the High Court appealed from was not a valid
judgment because it failed to comply with
Order XLI, Rule 31, of the Code of Civil
Procedure. The relevant facts on this issue
are that the hearing in the High Court was
before two Judges, Harrison and Agha Haider
JJ., and was actually delivered by the former
Judge, the latter agreeing. The judgment was
delivered on February 22, 1933. But Harrison
J. went on leave before signing the judgment,
which was signed by Agha Haider J., the Deputy
Registrar appending a note that Harrison J.
had gone on leave before signing the judgment
he delivered.
7. Order XLI, Rule 31 requires that the
judgment of the appellate Court shall be in
writing and shall state various matters, and
"shall at the time that it is pronounced be
signed and dated by the Judge or by the Judges
concurring therein."
8. The Rule does not say that if its
requirements are not complied with the
judgment shall be a nullity. So startling a
result would need clear and precise words.
Indeed the Rule does not even state any
definite time in which it is to be fulfilled.
The time is left to be defined by what is
reasonable. The Rule from its very nature is
not intended to affect the rights of parties
to a judgment. It is intended to secure
certainty in the ascertainment of what the
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judgment was. It is a rule which Judges are
required to comply with for that object. No
doubt in practice Judges do so comply, as it
is their duty to do. But accidents may happen.
A Judge may die after giving judgment but
before he has had a reasonable opportunity to
sign it. The Court must have inherent
jurisdiction to supply such a defect. The case
of a Judge who has gone on leave before
signing the judgment may call for more
comment, but even so the convenience of the
Court and the interest of litigants must
prevail. The defect is merely an irregularity.
But in truth the difficulty is disposed of by
Sections 99 and 108 of the Civil Procedure
Code. Section 99 provides that no decree shall
be reversed or substantially varied nor shall
any case be remanded, in appeal on account of
any error, defect or irregularity in any
proceedings in the suit, not affecting the
merits of the case or the jurisdiction of the
Court. That Section conies in the part dealing
with appeals from original decrees. But
Section 108 applies the same provision to
appeals from appellate decrees and it is
always in the discretion of the Board to apply
the principle on appeal to His Majesty in
Council. In their Lordships' judgment, the
defect here was an irregularity not affecting
the merits of the case or the jurisdiction of
the Court, and is no ground for setting aside
the decree. ”
24. Another judgment, which was cited by the appellant was A.
Shanta Rao Vs. State Transport Appellate Tribunal, Hyderabad
& Ors., AIR 1985 A.P. 256. In the above case, State Transport
Appellate Tribunal consisting of Chairman and two members
heard the matter. However, the order was issued only with the
signature of Chairman. The order was attacked on the ground
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that the other two members having not signed the order, the
order is illegal. Repelling the contention following was
stated in Paragraph 9:
“9. On the first question, I am of the view
that once the minutes of the State Transport
Authority are found to be signed by all the
members including the Chairman, the mere fact
that the final order is communicated under the
signature of the Chairman alone does not
amount to any illegality. The Court has to see
the substance of the matter and not the mere
form, and if it is clear that all the members
of the Tribunal have applied their mind to the
facts of the case and arrived at a conclusion,
it does not matter if the communication is
made under the signature of the Chairman. ”
25. Although, in above two cases, there was concurrence of
all the members of Court/Tribunal but all had not signed the
order. The present is a case where Chairperson and two
members heard the application in meeting dated 16.10.2014 but
order was subsequently pronounced on 15.12.2014 and signed by
only Chairperson and one member. The third member having been
transferred in the meanwhile. As noticed above, there is no
pleading in the writ petition as to whether the third member,
who was transferred had agreed with the proposed order or did
not agree with the decision, which was to be delivered by the
State Transport Authority. Had third member agreed, there
cannot be any debate in this matter, the issues being covered
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by judgment of this Court in Ramaswamy Nadar(supra) and
judgment of the Privy Council in Gokal Chand Jagan Nath
(supra). But there being neither any pleading nor any material
to come to the conclusion that the third member has agreed
with the opinion, we have proceeded to examine the present
case as if, the third member did not agree with the order
proposed. We have already noticed the reason for coming to
the conclusion that the order issued by the State Transport
Authority, signed by the Chairperson and one member is a valid
order having been issued with the majority opinion of two out
of three, who heard the application on 16.10.2014. Thus, in
any view of the matter, no illegality can be attached with the
order dated 15.12.2014, which was signed by the Chairperson
and one member.
26. In view of the foregoing discussion, we are of the
opinion that decision dated 15.12.2014 issued with the
signatures of Chairperson and one member was a valid decision
in spite of the fact that one of the members who was present
in the hearing when the meeting took place on 16.10.2014 and
had been transferred in the meanwhile did not sign the order.
The decision of the State Transport Authority dated 15.12.2014
was fully in accordance with the statutory scheme of the
Rules, 1994 and both the learned Single Judge and Division
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Bench erred in holding the decision as invalid. We, thus, are
of the view that judgments of learned Single Judge and
Division Bench do not express the correct view of the law.
27. In the result, the appeal is allowed and judgments of the
High Court are set aside.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
FEBRUARY 08, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1562 OF 2018
(arising out of SLP(C) No.35738 of 2017)
STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY & ANR. ... APPELLANTS
VERSUS
MAHENDRA GUPTA & ORS. ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
The State of Madhya Pradesh is in appeal against the
judgment of Division Bench of the High Court of Madhya
Pradesh, Bench at Gwalior dated 22.03.2017 by which judgment
writ appeal filed by the State questioning the judgment of the
learned Single Judge dated 17.03.2015 has been dismissed.
2. The parties shall be described as referred to in the writ
petition. The facts giving rise to this appeal are:
The writ petitioners have permanent permit for two
2
routes, one Gwalior to Bhander and second Gwalior to Datia.
Respondent No.3 has also the permanent permit for the route
Gwalior to Jhansi. Respondent No.3 preferred an application
for modification of time schedule for movement of his vehicle.
The application of Respondent No.3 came for hearing before the
State Transport Authority on 16.10.2014. On the date of
hearing both counsel for the applicant as well as counsel for
the objectors were heard. The State Transport Authority
allowed the modification and decided to change the time
schedule as prayed by the applicant in the public interest.
The order was issued by the State Transport Authority on
15.12.2014. Aggrieved by the order dated 15.12.2014, Writ
Petition No.883 of 2015 was filed by the two petitioners who
were objectors before the State Transport Authority. In the
writ petition various grounds were taken questioning the
application filed by the applicantPawan Arora. One of the
grounds taken before the learned Single Judge was that
although the State Transport Authority heard the matter on
16.10.2014 consisted of Chairperson and two members, however,
the order was delivered with the signatures of Chairperson and
only one member, since one member, Shri Sanjay Choudhary was
transferred in the meanwhile, hence, the order dated
15.12.2014 is illegal. The learned Single Judge accepted the
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contention of the writ petitioners and allowed the writ
petition by setting aside the order dated 15.12.2014.
3. The State of Madhya Pradesh filed writ appeal challenging
the judgment of the learned Singe Judge. The State contended
before the Division Bench of the High Court that there was no
illegality in the order issued by the Chairperson and one
member, although, it was heard by three members when the
meeting took place on 16.10.2014. The Division Bench
dismissed the appeal upholding the view of the learned Single
Judge.
4. Learned counsel for the appellant in support of the
appeal contends that under the Madhya Pradesh Motor Vehicles
Rules, 1994 quorum of the meeting of the State Transport
Authority is three Chairman plus two members and quorum was
complete when the meeting was held on 16.10.2014, the decision
delivered by the majority of the members is in no manner
illegal. It is submitted that after hearing, one member was
transferred and was not available to be part of the order
issued on 15.12.2014. It is submitted that even it is assumed
that one member was not agreeing with the decision of two
other members, although, there is no such pleading or material
on the record, the decision taken by the majority of the
4
members was fully valid and there was no infirmity in the
order dated 15.12.2014. It is submitted that the learned
Single Judge as well as Division Bench committed error in
taking the view that the order dated 15.12.2014 was an illegal
order.
5. Learned counsel for the respondents supported the order
of the High Court and contends that when one member who heard
the matter on 16.10.2014 was not available, no decision could
have been taken by the State Transport Authority. He submits
that the matter was heard by three members, hence decision
could have been issued only by three members and the views
taken by the learned Single Judge and Division Bench are in
accordance with law.
6. We have considered the submissions of the learned counsel
for the parties and perused the records.
7. The Motor Vehicles Act, 1988 provides for constitution of
a State Transport Authority to exercise and discharge the
powers and functions as specified in subsection (3) of
Section 68. Section 68(1) and 68(3) are quoted below:
"68.Transport Authorities.(1) The State
Government shall, by notification in the
Official Gazette, constitute for the State a
5
State Transport Authority to exercise and
discharge the powers and functions specified
in subsection (3), and shall in like manner
constitute Regional Transport Authorities to
exercise and discharge throughout such areas
(in this Chapter referred to as regions) as
may be specified in the notification, in
respect of each Regional Transport Authority;
the powers and functions conferred by or under
this Chapter on such Authorities:
Provided that in the Union territories,
the Administrator may abstain from
constituting any Regional Transport Authority.
(2) ....................................
(3) The State Transport Authority and every
Regional Transport Authority shall give effect
to any directions issued under section 67 and
the State Transport Authority shall, subject
to such directions and save as otherwise
provided by or under this Act, exercise and
discharge throughout the State the following
powers and functions, namely :
(a) to coordinate and regulate the activities
and policies of the Regional Transport
Authorities, if any, of the State ;
(b) to perform the duties of a Regional
Transport Authority where there is no such
Authority and, if it thinks fit or if so
required by a Regional Transport Authority, to
perform those duties in respect of any route
common to two or more regions;
(c) to settle all disputes and decide all
matters on which differences of opinion arise
between Regional Transport Authorities;
[(ca) Government to formulate routes for
playing stage carriages;] and
(d) to discharge such other functions as may
be prescribed.”
6
8. The Rules have been framed by the State of Madhya
Pradesh, namely, the Madhya Pradesh Motor Vehicles Rules,
1994. Chapter V of the Rules contains heading “Control of
Transport Vehicles”. Rule 63 provides for State Transport
Authority. Rule 63(4) to (7) are quoted as below:
“63. State Transport Authority.
(4) The State Transport Authority shall
meet at such time and at such place as the
Chairman may appoint.
(5) Not less than three days' notice shall
be given to a member of the meeting of the
State Transport Authority.
(6) The quorum to constitute a meeting of
the State Transport Authority shall be the
Chairman or the nominated Chairman under the
subrule (7) and two other members (whether
official or nonofficial). If within hall an
hour from the time appointed for the meeting a
quorum is not completed, the meeting shall be
adjourned to such day and at such time and
place as the Chairman or the acting Chairman
nominated under subrule (7) may appoint and
no quorum is necessary for holding the
adjourned meeting.
(7) The Chairman, if unable to attend the
meeting, shall nominate a member to act as
Chairman at the meeting.”
9. Rule 64 provides for Regional Transport Authority and
Rule 65 is for Conduct of Business of Transport Authorities.
Rule 65(2) to 65(4) are as follows:
65. Conduct of Business of Transport
Authorities.
7
(2) The State or Regional Transport Authority,
as the case may be, may decide any matter of
urgent nature without holding a meeting by the
majority of votes of members by recorded in
writing and send to the Secretary (hereinafter
referred to as the procedure by circulation).
(3) In the event of procedure by circulation
being followed, the Secretary shall send to
each member of the Transport Authority such
particulars of the matter as may be reasonably
necessary in order to enable the member to
arrive at a decision and shall specify the
date by which the votes of members are to be
received in the office of the Transport
Authority. Upon receipt of the votes of
members as aforesaid, the Secretary shall lay
the papers before the Chairman, who shall
record the decision by endorsement on the form
of application or other document, as the case
may be, according to the votes received and
the vote or votes cast by the Chairman. The
record of the votes cast shall not be
available for inspection by any person save by
a member of the Transport Authority at a
regularly constituted meeting of the Transport
Authority. No decision shall be made upon
procedure by circulation, if before the date
by which the voles of members are required to
reach the office of the Transport Authority,
not less than onethird of the members of the
Transport Authority have given notice in
writing to the Secretary demanding that the
matter be referred to a meeting of the
Transport Authority.
(4) The number of votes, excluding the
Chairman's second or casting vote, necessary
for a decision to be taken upon procedure by
circulation shall not be less than the members
necessary to constitute a quorum.
xxx xxx xxx xxx
8
10. The facts of the case, as noted above, reveal that State
Transport Authority convened the meeting of the Authority by
issuing the Agenda for 16.10.2014. In addition to Chairperson,
two members Shri Sanjay Chaudhary, Transport Commissioner
and Shri Rajiv Sharma, Chief Engineer, Public Works
Department were present in the meeting. The applicant as well
as the counsel for the objectors were heard on 16.10.2014. The
decision of the Committee was issued on 15.12.2014 which was
signed by the Chairperson and only one member, Shri Rajiv
Sharma, since, after the date of the hearing and before the
issuance of the order one member, Shri Sanjay Chaudhary was
transferred. The copy of the order dated 15.12.2014 has been
brought on record as Annexure P1 which clearly mentions the
date of hearing, i.e., 16.10.2014. It is useful to extract
only the relevant parts of the order for the present case:
"THE STATE TRANSPORT AUTHORITY,
MADHYA PRADESH MOTIMAHAL, GWALIOR
Agenda Serial No.71
Case No.2159/2014 Hearing on 16.10.2014
Before:
1. Pramod Agrawal Chairperson
Principal Secretary,
Madhya Pradesh Government
Transport Department, Bhopal
9
2. Sanjay Chaudhary Member
Transport Commissioner
Madhya Pradesh, Gwalior
3. Rajiv Sharma Member
Chief Engineer
Public Works Department,
Gwalior
... ... ...
... ... ...
Listing the aforesaid application
submitted by the applicant for hearing in the
meeting of the State Transport Authority dated
16.10.2014 the same was included in the agenda
and published on the Departmental Website and
the notice board of the Office and all
regional/ additional regional / District
Transport Office. The objections of the
aforesaid Drivers were obtained until the
aforesaid fixed date.
The case was presented in the meeting
dated 16.10.2014 of the State Transport
Authority. On the day of hearing, on behalf of
the parties their appointed counsels appeared,
who were heard.
... ... …
... ... …
Note: Since one member Shri Sanjay Chaudhary
of the Authority was transferred after
hearing, the aforesaid order is being passed
by the Chairperson and one member Chief
Engineer of the Authority.
Sd/ sd/
Member Member
State Transport Authority State Transport Authority
Madhya Pradesh”
11. The only issue which needs to be considered in this
10
appeal is as to whether, when in the meeting dated 16.10.2014
the Chairperson and two members had heard the application for
the change of the time schedule, the order could have been
passed allowing the application by the two members
(Chairperson and one member) alone, since the order was singed
only by the Chairperson and one member, on 15.12.2014.
12. The statutory provisions of the Motor Vehicles Act, 1988
as well as the Madhya Pradesh Motor Vehicles Rules, 1994
indicate that the State Transport Authority is a multimember
body constituted by the State Government under Section 68(1).
The State Transport Authority is a multimember body which
transacts business in meeting except in case of emergency.
Meeting is to be convened at such time and at such place as
the Chairman may appoint. Three days' notice is required to be
given to the members and quorum of the meeting is the Chairman
or the nominated Chairman and two other members, i.e., quorum
is three. In the present case, there is no dispute that when
the meeting was held on 16.10.2014 quorum was complete since
Chairperson and two members were present which fact is clearly
noticed in the order dated 15.12.2014 as extracted above. The
three members who were present in the meeting heard the
applicant and objectors. But the order could be issued only on
15.12.2014, by which one of the members had been transferred
11
and was not available to sign the order. One more important
fact which is to be noticed is that learned Single Judge had
categorically noted that the above issue was raised only
during the hearing before the learned Single Judge and there
was no pleading in the writ petition. In paragraph 16 of the
judgment, learned Single Judge himself has noticed the
following:
"16. The last question raised by the parties is
about the competency of the STA in passing the
impugned order. Although there is no pleading
in this regard in this petition. However,
learned senior counsel, Shri K.N. Gupta has
not disputed the fact that the matter was
heard by three members and order is passed by
two members.....”
13. The multimember body transacts its business after
debate, consultation and discussion. The view of multimember
body is expressed unanimously or by votes. For various kind of
decisions by multimember body special majorities are also
provided for acceptance of the decision. Normally, all
decisions of a multimember body are expressed by opinion of
majority of the members present except where the special
majorities are provided in the statute itself.
14. Shackleton on the “Law and Practice of Meetings”,
Eleventh Edition while discussing the majority has stated
12
following in paragraph 730. Relevant parts of paragraphs 730
and 731 are quoted below:
" 4 MAJORITY
Definition
730 Majority is a term signifying the greater
number. In legislative and deliberative
assemblies, it is usual to decide questions by
a majority of those present and voting. This
is sometimes expressed as a “simple” majority,
which means that a motion is carried by the
mere fact that more votes are cast for than
against , as distinct from a “special”
majority where the size of the majority is
critical.
The principle has long been established
that the will of a corporation or body can
only be expressed by the whole or a majority
of its members, and the act of a majority is
regarded as the act of the whole.
A majority vote binds the minority
731 Unless there is some provision to the
contrary in the instrument by which a
corporation is formed, the resolution of the
majority, upon any question, is binding on the
majority and the corporation, but the rules
must be followed.”
15. Although Rules, 1994 do not expressly provide that
decision of the State Transport Authority shall be taken in
accordance with the opinions of the majority but there being
no special majority provided for decision to be taken in the
meeting of the State Transport Authority, normal, rule that
decision by majority of the members present has to be
13
followed. In the present case when three members were present
and quorum was complete, the decision taken by majority, i.e.,
opinion of two members shall form the valid decision of the
State Transport Authority.
16. Rule 65 subsection (2) of the Rules dealing with the
conduct of business of Transport Authorities provides:
“65(2) The State or Regional Transport
Authority, as the case may be, may decide any
matter of urgent nature without holding a
meeting by the majority of votes of members by
recorded in writing and send to the Secretary
(hereinafter referred to as the procedure by
circulation).”
17. Thus, the concept of taking decision by majority of votes
of the members is very much present in the scheme of the
Rules. Although, where a decision is to be taken by the
circulation by votes a special majority is provided in Rule
65(4) but present being not a case of decision by circulation,
simple majority by members present was sufficient for making a
binding decision by the State Transport Authority.
18. In paragraph 18.1 of the judgment, the Division Bench
observed that:
"18.1. In the instant case there is nothing on
record to indicate that the
14
STA with complete quorum heard the matter and
before one of the members Shri Sanjay Chaudhry
was transferred out any draft order was got
approved from the said transferred member.”
19. The above observation was made by the Division Bench of
the High Court while distinguishing the judgment of this Court
in Ramaswamy Nadar v. The State of Madras, AIR 1958 SC 56.
Before we refer to the decision of this Court in Ramaswamy
Nadar, it is clear that observation of the Division Bench of
the High Court that there is nothing on record to indicate
that the quorum of State Transport Authority was complete, is
factually wrong. The order of the State Transport Authority
dated 15.12.2014 has been brought on record as Annexure P1
and the relevant portion of the order has been extracted above
by us which clearly mentions that the hearing took place on
16.10.2014 where the Chairperson and two members were present
the quorum being three as per Rule 68(1) was complete. The
hearing took place by three members which is noted in the
order itself, as extracted above. Thus, observation of the
Division Bench of the High Court that quorum was not complete
and matter was not heard by three members is not correct.
20. Now, we come to the judgment of this Court in Ramaswamy
Nadar(supra). In the above case the matter was heard by a
15
Bench of three Judges of this Court who after hearing had
announced the decision of acquittal. Draft judgment was also
approved by one of the Judges who had, however, died before
judgment could be delivered. Note appended in the judgment was
to the following effect:
" NOTE
SINHA, J.
When hearing of this appeal was finished
last week by a Bench consisting of three of
us, B.P. Sinha, P. Govinda Menon and J.L.
Kapur, JJ., we announced that we had come to
the conclusion that the appellant should be
acquitted. We also indicated that the judgment
will be delivered the week following. The
draft of the judgment was sent to late Mr.
Justice Menon last week and he had approved of
it. What we are now delivering are the reasons
of the Judges who constituted the Bench; but
it will be signed by two only of us on account
of the unexpected death of Mr. Justice. Menon.
K.S.B. Appeal allowed.”
21. In the above case judgment was pronounced with the
concurrence of the three judges. When the hearing took place
opinion of all the three Judges was expressed but judgment
could be singed by two Judges since one of the Judges died.
Although, the facts of the above case was little different
i.e. there was material to indicate that the third Judge who
could not sign had also concurred with the opinion, but in the
16
present case there is no pleading of third member whether
agreeing or not agreeing with the decision. For the present
case, we proceed on the premise that the third member did not
agree with the decision. For the decisions of this Court,
Article 145 subclause (5) of the Constitution of India
provides that judge of this Court can deliver a judgment with
the concurrence of a majority of the Judges present at the
hearing of the case.
22. The present is a case where decision by a multimember
body is to be taken in the meeting of the Committee as per the
statutory Rules. There being no such majority provided for
taking a decision, the decision by majority has to be accepted
as the opinion of the State Transport Authority.
23. Two more cases, which were relied by the appellant and
noticed by the High Court need to be noted. The Privy Council
judgment in Gokal Chand Jagan Nath Vs. Nand Ram Das Atma
Ram, AIR (1938) P.C. 292, is relevant for the present case. In
the appeal before the Privy Council, judgment of the High
Court was assailed on the ground that the two Hon'ble Judges
of the High Court heard the matter, although, both judges
concurred with the judgment, but one Judge went on leave
17
before signing the judgment, which was signed by only one
Judge. The Privy Council repelled the contention and held
that signing by one of the Judges at best was only
irregularity, not affecting the merits of the case. Following
was laid down in Paragraphs 6, 7 and 8:
“6. A further point was raised by the
appellants. They urged that the judgment of
the High Court appealed from was not a valid
judgment because it failed to comply with
Order XLI, Rule 31, of the Code of Civil
Procedure. The relevant facts on this issue
are that the hearing in the High Court was
before two Judges, Harrison and Agha Haider
JJ., and was actually delivered by the former
Judge, the latter agreeing. The judgment was
delivered on February 22, 1933. But Harrison
J. went on leave before signing the judgment,
which was signed by Agha Haider J., the Deputy
Registrar appending a note that Harrison J.
had gone on leave before signing the judgment
he delivered.
7. Order XLI, Rule 31 requires that the
judgment of the appellate Court shall be in
writing and shall state various matters, and
"shall at the time that it is pronounced be
signed and dated by the Judge or by the Judges
concurring therein."
8. The Rule does not say that if its
requirements are not complied with the
judgment shall be a nullity. So startling a
result would need clear and precise words.
Indeed the Rule does not even state any
definite time in which it is to be fulfilled.
The time is left to be defined by what is
reasonable. The Rule from its very nature is
not intended to affect the rights of parties
to a judgment. It is intended to secure
certainty in the ascertainment of what the
18
judgment was. It is a rule which Judges are
required to comply with for that object. No
doubt in practice Judges do so comply, as it
is their duty to do. But accidents may happen.
A Judge may die after giving judgment but
before he has had a reasonable opportunity to
sign it. The Court must have inherent
jurisdiction to supply such a defect. The case
of a Judge who has gone on leave before
signing the judgment may call for more
comment, but even so the convenience of the
Court and the interest of litigants must
prevail. The defect is merely an irregularity.
But in truth the difficulty is disposed of by
Sections 99 and 108 of the Civil Procedure
Code. Section 99 provides that no decree shall
be reversed or substantially varied nor shall
any case be remanded, in appeal on account of
any error, defect or irregularity in any
proceedings in the suit, not affecting the
merits of the case or the jurisdiction of the
Court. That Section conies in the part dealing
with appeals from original decrees. But
Section 108 applies the same provision to
appeals from appellate decrees and it is
always in the discretion of the Board to apply
the principle on appeal to His Majesty in
Council. In their Lordships' judgment, the
defect here was an irregularity not affecting
the merits of the case or the jurisdiction of
the Court, and is no ground for setting aside
the decree. ”
24. Another judgment, which was cited by the appellant was A.
Shanta Rao Vs. State Transport Appellate Tribunal, Hyderabad
& Ors., AIR 1985 A.P. 256. In the above case, State Transport
Appellate Tribunal consisting of Chairman and two members
heard the matter. However, the order was issued only with the
signature of Chairman. The order was attacked on the ground
19
that the other two members having not signed the order, the
order is illegal. Repelling the contention following was
stated in Paragraph 9:
“9. On the first question, I am of the view
that once the minutes of the State Transport
Authority are found to be signed by all the
members including the Chairman, the mere fact
that the final order is communicated under the
signature of the Chairman alone does not
amount to any illegality. The Court has to see
the substance of the matter and not the mere
form, and if it is clear that all the members
of the Tribunal have applied their mind to the
facts of the case and arrived at a conclusion,
it does not matter if the communication is
made under the signature of the Chairman. ”
25. Although, in above two cases, there was concurrence of
all the members of Court/Tribunal but all had not signed the
order. The present is a case where Chairperson and two
members heard the application in meeting dated 16.10.2014 but
order was subsequently pronounced on 15.12.2014 and signed by
only Chairperson and one member. The third member having been
transferred in the meanwhile. As noticed above, there is no
pleading in the writ petition as to whether the third member,
who was transferred had agreed with the proposed order or did
not agree with the decision, which was to be delivered by the
State Transport Authority. Had third member agreed, there
cannot be any debate in this matter, the issues being covered
20
by judgment of this Court in Ramaswamy Nadar(supra) and
judgment of the Privy Council in Gokal Chand Jagan Nath
(supra). But there being neither any pleading nor any material
to come to the conclusion that the third member has agreed
with the opinion, we have proceeded to examine the present
case as if, the third member did not agree with the order
proposed. We have already noticed the reason for coming to
the conclusion that the order issued by the State Transport
Authority, signed by the Chairperson and one member is a valid
order having been issued with the majority opinion of two out
of three, who heard the application on 16.10.2014. Thus, in
any view of the matter, no illegality can be attached with the
order dated 15.12.2014, which was signed by the Chairperson
and one member.
26. In view of the foregoing discussion, we are of the
opinion that decision dated 15.12.2014 issued with the
signatures of Chairperson and one member was a valid decision
in spite of the fact that one of the members who was present
in the hearing when the meeting took place on 16.10.2014 and
had been transferred in the meanwhile did not sign the order.
The decision of the State Transport Authority dated 15.12.2014
was fully in accordance with the statutory scheme of the
Rules, 1994 and both the learned Single Judge and Division
21
Bench erred in holding the decision as invalid. We, thus, are
of the view that judgments of learned Single Judge and
Division Bench do not express the correct view of the law.
27. In the result, the appeal is allowed and judgments of the
High Court are set aside.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
FEBRUARY 08, 2018.
