ORDER
T.L. Viswanatha Iyer, J.
1. The third respondent has taken notice through Sri K. Radhakrishnan, Advocate. Counsel for the petitioner and the third respondent agree that the original petition itself may be taken up and disposed of. Government Pleader appears for respondents 1 and 2, on receipt of a copy of the original petition.
2. The short question for consideration is whether the proceedings before the Regional Transport Authority (Authority in brief) after remit by the Appellate Tribunal in an appeal pending before it on July 1, 1989 when the Motor Vehicles Act (59 of 1988) came into force, should be dealt with under the provisions of that Act or under the provisions of the Motor Vehicles Act, 1939, which is repealed.
3. I shall state the facts briefly, leaving out the unnecessary details. The route in question is a circular route Ottappalam — Ottappalam of less than 50 K.Ms., its length being 47-9 K.Ms. By the proceedings Ext. P-11 dated August 16, 1988, the first respondent Regional Transport Authority granted a stage carriage permit to the third respondent, an aspirant for the permit. Petitioner challenged the grant in appeal before the second respondent, State Transport Appellate Tribunal (the Tribunal for short), which was disposed of in the first instance by the order Ext. P-14. The appeal was allowed, and the Tribunal directed the permit to be granted to the petitioner. There were however some patent mistakes in the judgment, for the correction of which the petitioner itself filed an application Ext. P-15. I am not entering into the details of these mistakes as it is unnecessary for the purposes of this original petition. The third respondent had in the meanwhile challenged the order Ext, P-14 by filing a writ petition O.P. No. 2154 of 1989 in this Court. The original petition was allowed and Ext. P-14 quashed by the judgment Ext. P-16 holding that the decision Ext. P-14 had been rendered on wrong premises, without application of the mind, and that it cannot therefore stand. Ext. P-14 was therefore quashed and the matter remitted to the Tribunal for consideration afresh in accordance with law.
4. Pursuant to the direction contained in the judgment Ext. P-14, the petitioner had been granted the permit, and he was operating on the route. This Court therefore directed that the status quo as on the date of the judgment Ext. P-16 will continue until the appeal is disposed of by the Tribunal.
5. The Tribunal considered the matter again by the judgment Ext. P17, I am not going into the details of the judgment lest any observations should prejudice either party. The judgment Ext. P17 is one of remand.
6. The Tribunal noted that the Authority had not screened the applications for permit under Rule 177A(3B) of the Kerala Motor Vehicles Rules, 1961 framed under the Motor Vehicles Act, 1939 (hereinafter referred to as the repealed Act). The petitioner had a contention that the third respondent was not financially stable and that he had not produced the Income-tax clearance certificate. There was a further contention that he had no valid driving licence. There were some other allegations also against him. The Tribunal felt that all these were matters which required consideration by the Authority, but that they had not been considered. In the circumstances, the Tribunal allowed the appeal, and remitted the matter back to the Authority for fresh consideration of “the respective qualifications” of the parties.
7. Pending the appeal, the Motor Vehicles Act, 1939 was repealed and the Motor Vehicles Act, (59 of 1988) (the new Act, for reference) came into force on July 1,1989. In the course of the judgment, the Tribunal observed that so far as the appeal before it was concerned, the provisions of the repealed Act will prevail. The Tribunal felt that since necessary enquiries had to be made on the various aspects of the case, the matter justified a remand to the Authority. Till that Authority considered the matter afresh, status quo was directed to continue.
8. The third respondent felt aggrieved by this decision and filed writ petition, O.P. No. 7688 of 1989 in this Court. The original petition was not admitted and no notice was issued to the petitioner. This Court disposed of the writ petition in limine with the observation that the Authority should apply its mind afresh to the issues raised, in the light of the facts and the law governing the subject, and that it will be free to take a decision on merits without being restricted by the observations made by the Tribunal.
9, Petitioner challenges the very same order Ext. PI 7 in this original petition for two reasons. He submits that all the materials necessary for a decision of the controversy between the perties were before the Tribunal, and therefore the Tribunal was not justified in remitting the matter back to the Authority for fresh consideration. The petitioner feels prejudiced by the remand for the following reason. It is a Private Limited Company. As per the proviso to Section 71(l) of the new Act, permit for a route of 50 Kms. or less could be granted only to an individual or a State Transport undertaking. Petitioner apprehends that if the matter is to be dealt with by the Authority on remand, that authority will consider the matter under the provisions of the new Act, in which case the petitioner will, without anything more, be eschewed from consideration under the proviso to Section 71(1). On the other hand, if the matter were to be considered by the Tribunal itself, the petitioner can press its claim for a permit as the pending appeal will have to be disposed of under the provisions of the repealed Act, as if the new Act had not been passed, by virtue of Section 89(3) of the new Act. It is in these circumstances that the petitioner submits that the matter should be dealt with by the Tribunal itself. Alternately, it is contended that the matter after remand should be considered by the Authority only with reference to the provisions of the repealed Act and not under the new Act.
10 Counsel for the third respondent however contends that the matter was properly remitted by the Tribunal to the Authority as various questions of fact had to be enquired into and decided with reference to evidence and report. The Tribunal was justified in directing the matter to be dealt with in the first instance by the Authority with opportunity to both the parties to produce their evidence. At the same time, counsel for the third respondent is in agreement with the counsel for the petitioner that the matter has to be dealt with by the Authority, after remand under the provisions of the repealed Act.
11. The petitioner’s main apprehension, which forms the foundation for his first prayer, is based on the alleged applicability of the first proviso to Section 71(1) of the new Act to the case on hand. According to him, if the appeal is to be dealt with by the Tribunal, necessarily it will have to be dealt with under the repealed Act as per the provisions of Section 89(3) of the new Act, which directs that such pending appeals shall be proceeded with and disposed of as if the new Act had not been passed. Therefore, the petitioner should not be prejudiced by a remand. It must be noted however that the questions which the tribunal has directed to be considered by the Authority are questions of fact on which enquiry will be required, which is best done by the primary authority in the first instance. I am not prepared to accept the petitioner’s contention that the Tribunal has acted imporperly in remitting the matter back. The primary authority had not rendered a finding on these questions and the Tribunal did not have the benefit of their findings. Therefore it was only proper that the Tribunal left the matter to be adjudicated by that authority, so that both parties may have opportunity to put forward their case, and also to produce their documents. The first prayer for direction for decision by the Tribunal itself is not therefore acceptable and is rejected.
12, However, the second contention that the matter has to be dealt with by the Authority under the provisions of the repeal ed Act, as if the new Act had not been passed, is sound and is in accord with the law. Petitioner's apprehension that the matter may be considered under the new Act is unfound ed. In fact, the very remand implies direction to consider the matter under the repealed Act. When it remitted the matter to the Authority, the Tribunal was aware of the position that the petitioner, as a Private Limited Company, will not be entitled to be considered for the permit, if the new Act were to be applied, because of the bar created by the proviso to Section 71(1). When the Tribunal directed consideration of the respective qualification of , the parties, it implied that the consideration will be under the repealed Act, as otherwise, there was no scope for a remand, or for consideration of the petitioner's claims under the new Act.
13. Even otherwise both parties are agreed that the applications have to be considered only under the provisions of the old Act. This view is justified by the provisions of the new Act. Section 89(3) provides that every appeal pending at the commencement of the Act, shall continue to be proceeded with, and disposed of, as if the new Act had not been passed. An appeal may entail remand or it may entail variation of the order of the Authority. If the consideration after remand is to be only under the new Act, there is no purpose in limiting consideration of the pending appeal under the repealed Act, eschewing, the provisions of the new Act. Anomalous consequences will result, with the possibility of decision being in one way if the Tribunal chooses to decide the case itself; and the other way, if the Tribunal chooses to remit the matter to the Authority as in this case. Such a situation could not have been intended. It will therefore be meaningless to held that the new Act will apply after the remand, while the repealed Act will apply to the pending appeal. The reasonable way of dealing with the matter will be to apply the repealed Act to the proceedings after remand with reference to the qualifications as on the date of the initial consideration, as laid down by this Court is Manikanda Kumar v. Ramakrishnan, 1985 Ker LT 1026 : (AIR 1986 Ker 191). Mr. Sankaran, counsel for the petitioner, is therefore on firm ground is contending that the proceedings after remand have to be under the provisions of the repealed Act, a proposition with which counsel for the third respondent rightly concurs.
14. It is therefore necessary to interfere with the order Ext. P17. I make explicit what is otherwise implicit in Ext. P17 that the proceedings after remand will be in accordance with the provisions of the repealed Act.
The original petition is disposed of with the above observations.
Issue photo copy of the judgment today itself.