JUDGMENT
K.K. Mathew, J.
1. The second respondent applied for a temporary permit on the route Changanacherry-Ponthapuzha, a distance of 2ft miles. The application was granted by the Regional Transport Authority by its order dated 13-9-196S (Ex. P-2). The petitioner challenges the validity of this order mainly on three grounds: (1) that the Regional Transport Authority had no jurisdiction to grant a temporary permit as applications for pucca permit to operate in the route were pending on the date when the grant was made. (2) that the order of the Regional Transport Authority does not indicate the reasons which prompted the grant, and (3) that the permit was issued within one month of Ex. P-2 order and that was in violation of the provisions of rule 177 (2) of the Motor Vehicles Rules.
2. As regards the first point it was urged by counsel for the petitioner that on 1-9-1965 one P. P. Philip had applied for a pucca permit, evidenced bv Ex. R-7, in the route and therefore under the first proviso to Section 62 of the Motor Vehicles Act the Regional Transport Authority had no jurisdiction grant the permit. But it is not clear that the application was for a permit in the route. The Regional Transport Authority had stated that the route covered by the application of P. P. Phillip is not the same as that covered by the grant to the second respondent. Therefore there is no substance in this contention of the petitioner.
3. It was argued for the petitioner that applications for pucca permit in the route were made on 6-9-1966 and 13-9-1965 in pursuance to the Invitation by the Regional Transport Authority for applications for a pucca permit in the Identical route and that the pendency of these applications was a bar to the grant of temporary permit under the first proviso to section 62. It may be recalled at this moment that the Regional Transport Authority heard the parties on 3-9-1965 and adjourned the case to 13-9-1965 for further discussion and decision. Ex. P-2 order was passed on 18-9-1966. The argument of Mr. Neelacanta Menon, appearing for the second respondent was that although the decision bears the date 13-9-1965 the parties were really heard on 3-9-1965 and the decision was taken on that date, but that the formal order alone was drawn up on 13-9-1966. He submitted that the order passed on 13-9-1965 has retrospective effect and should be considered as having been really passed on 3-9-1965. Tn support of this he referred me to the following passage in ‘Broom’s Legal Maxims. 10th Edition, page 73
“Actus curiac neminem gravabit . . . an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense; and affords a safe and certain guide for the administration of law. In virtue of it where a case stands over for argument on account of the multiplicity of business in the court or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed
to enter up his judgment retrospectively to meet the justice of the case; and therefore, if one party to an action the during a curia advisari vult, judgment may be entered nunc pro tune, for the delay is the act of the court, for which neither party should suffer”
The maxim nunc pro tune means:
“A proceeding taken now for then, i.e., the proper time when it should have been taken; for example, special leave granted at the bearing to cross-appeal against an order for a new trial .. . ..”
(See Wharton’s Law Lexicon. 13th Edn. p. 603).
I am not quite sure whether this maxim can be applied to the facts of this case. In Evans v. Roes (1840) 113 E. R. 774 at p. 777 Lord Denman, C. J. observed:
“It is a power at common law, and by the ancient practice of the court, to prevent an unjust prejudice to the suitor by the delay unavoidably arising from the act of court, and has been uniformly exercised, unless the delay is imputable to the laches of the party applying. The effect of the judgment, when entered, may depend on the statute: but the power to enter it does not.”
In Sham Das v. Umer Din, AIR 1930 Lah. 497 (FB), at p. 600 It is stated:
“The doctrine of mine pro tune is invoked, according to which retrospective effect is given to an act which was omitted to be done at the proper time but which is afterwards performed and by a legal fiction. It is given the same force and virtue, and is attended with the same consequence as if it had been regularly done. In my opinion this argument is fallacious and is based on an erroneous view of the rule of nunc pro tune which is really based on the maxim actus curlae neminem gravabit .. .. ..The applicability of this rule is
confined to those cases only in which somt hardship would be visited upon a party without any fault of his, unless he were relieved from it by allowing: ‘a proceeding to be taken now for then i.e., for the proper time when it should have been taken”.
Looking at the facts of this case I am Inclined to think that no decision was taken on 5-9-1965. Ex. R-5 is a proceeding passed by the Secretary of the Regional Transport Authority on 14-9-1965 and that would show that the Regional Transport Authority did not make any decision on 3-9-1966 but deferred it to 13-9-1965. Ex. R-12 produced by the second respondent would also show that the case was adjourned from 8-9-1965 to 13-9-1966 for the purpose of further discussion and decision. It cannot therefore be said that the Regional Transport Authority had made up their mind to grant the permit on 3-9-1965. If the Regional Transport Authority bad decided to make the grant on 3-9-1965 probably by applying the maxim nunc pro tune it would have been possible to say that although the order is dated 18-9-1968, since the decision was taken on 3-9-1965, the order must be deemed to have been passed on 3-9-1965 The fiction is impossible because the actual facts of the case
would belie it. Therefore I hold that the decision to issue the permit was taken by the Regional Transport Authority only on 13-9-1965.
4. It was, however, argued on behalf of
the Regional Transport Authority by the learn
ed Government Pleader that this view would
cause hardship. The learned Government Pleader submitted that It was not possible for the
Regional Transport Authority to know whether any applications for pucca permit were
pending on the date when it passed Ex. P-2
order. The learned Government Pleader argued that it is the duty of the parties before the
Regional Transport Authority to bring to the
notice of the said Authority the pendency of
any application for pucca permil and since
the arguments in this case were over on 8-9-
1965 it was not possible for the parties to have
pointed out to the Regional Transport Authority the pendency of the applications for
pucca permit filed after 3-9-1965. But the
wording of the first proviso to section 62
compels me to take the view that if before the
actual decision to issue the temporary permit
is taken, applications are pending before the
Regional Transport Authority for pucca per
mit in the route that would be a bar to the
grant of any temporary permit. The wording
of the proviso leaves no room for any doubt
that the intention of the legislature was that if
any application for pucca permit in the route
is pending before the Regional Transport
Authority, that is a bar to the grant of a temporary permit In the route. I hold that the
grant in this case was beyond the power of
the Regional Transport Authority. I have got
great doubts whether the Regional Transport
Authority could plead ignorance of the pendency
of applications for pucca permit in the route,
if they were pending, as a matter of fact,
before the Regional Transport Authority, when
they decided to grant the temporary permit.
In this view of the matter I quash the grant
evidenced by Ex. P-2. The other contentions
urged by the petitioner are not dealt with in
this judgment as they are not necessary for
the disposal of this petition. The writ petition is disposed of as above. There will be
no order as to costs.