Supreme Court of India
STATE OF MADHYA PRADESH THROUGH PRINCIPAL SECRETARY & ANR.versusMAHENDRA GUPTA & ORS.
- Citation
- 2018 INSC 122
- Decided
- 8 February 2018
- Disposal
- Appeal(s) allowed
- Bench
- A K SIKRI
Holding
An order of the State Transport Authority signed by the Chairperson and one member is valid as it reflects the majority decision of the Authority.
Summary
The State Transport Authority of Madhya Pradesh heard an application on 16‑Oct‑2014 for modification of a vehicle’s time schedule. The meeting had the Chairperson and two members, satisfying the quorum of three under Rule 68(1). The order was issued on 15‑Dec‑2014, but only the Chairperson and one member signed it because the second member had been transferred before signing. The petitioners argued the order was illegal for lacking the third member’s signature. The Supreme Court held that, in the absence of a statutory requirement for a special majority, a decision taken by the simple majority of members present is valid. Since two of the three members present approved the order, the order signed by the Chairperson and one member is legally binding. The Court set aside the High Court’s judgment and allowed the appeal.
Issues considered
- Whether an order of the State Transport Authority signed only by the Chairperson and one member, when the meeting had a complete quorum of three members and one member was transferred before signing, is valid under the Motor Vehicles Act, 1988 and Madhya Pradesh Motor Vehicles Rules, 1994.
Legislation cited
- Motor Vehicles Act, 1988s. 68(1), s. 68(3)
Subjects
State Transport Authoritymajority decisionquorumMotor Vehicles ActMadhya Pradesh Motor Vehicles Rulesadministrative laworder validitysignature requirement
Judgment
[2018] 1 S.C.R. 443 443
STATE OF MADHYA PRADESH THROUGH PRINCIPAL A
SECRETARY & ANR.
v.
MAHENDRA GUPTA & ORS.
(Civil Appeal No. 1562 of 2018) B
FEBRUARY 08, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Madhya Pradesh Motor Vehicles Rules, 1994 – rr.63, 65 –
Legality of the order by State Transport Authority – On facts, State
C
Transport Authority allowed the application for modification of time
schedule for movement of the vehicle, by order dated 15.12.2014 –
Matter was heard by the Authority on 16.10.2014, where chairperson
and two members were present, however, the order was delivered
on 15.12.2014 with the signatures of Chairperson and only one
member, since one member was transferred in the meanwhile – D
Legality of the order dated 15.12.2014 – Held: 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
r.65(4) but instant case not being a case of decision by circulation,
E
simple majority by members present was sufficient for making a
binding decision by the State Transport Authority – Hearing took
place on 16.10.2014 where the Chairperson and two members were
present the quorum being three as per r.68(1) was complete – Further,
there being neither any pleading nor any material to hold that the
third member has agreed with the opinion, the present case is F
examined as if, the third member did not agree with the order
proposed – Thus, 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, and was fully in accordance with
G
the statutory scheme of the 1994 Rules – Motor Vehicles Act, 1988
– s.68(1) and (3).
Allowing the appeal, the Court
HELD: 1.1 In the instant case, there is no dispute that when
H
443
444 SUPREME COURT REPORTS [2018] 1 S.C.R.
A 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. 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 and was not available to
B
sign the order. One more important fact which is to be noticed is
that the Single Judge had categorically noted that the above issue
was raised only during the hearing before the Single Judge and
there was no pleading in the writ petition. [Para 12][452-F-H;
453-A]
C 1.2 The multi-member body transacts its business after
debate, consultation and discussion. The view of multi-member
body is expressed unanimously or by votes. For various kind of
decisions by multi-member body special majorities are also
provided for acceptance of the decision. Normally, all decisions
D of a multi-member body are expressed by opinion of majority of
the members present except where the special majorities are
provided in the statute itself. [Para 13][453-C-D]
1.3 Although Rules, 1994 do not expressly provide that
decision of the State Transport Authority shall be taken in
E 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 followed. In the instant
case, when three members were present and quorum was
complete, the decision taken by majority, i.e., opinion of two
F members shall form the valid decision of the State Transport
Authority. [Para 15][454-B-C]
1.4 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
G 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. [Para 17][454-E]
1.5 It is clear that observation of the Division Bench of the
H High Court that there is nothing on record to indicate that the
STATE OF M. P. THR. PRINCIPAL SECRETARY v. MAHENDRA 445
GUPTA
quorum of State Transport Authority was complete, is factually A
wrong. The order of the State Transport Authority dated
15.12.2014 has been brought on record and the relevant portion
of the order has been extracted 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
B
68(1) was complete. 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. [Para 19][454-H; 455-
A-C]
1.6 For the decisions of this Court, Article 145 sub-clause
(5) of the Constitution of India provides that judge of this Court C
can deliver a judgment with the concurrence of a majority of the
Judges present at the hearing of the case. [Para 21][455-G-H]
1.7 The present is a case where decision by a multi-member
body is to be taken in the meeting of the Committee as per the
statutory Rules. There being no such majority provided for taking D
a decision, the decision by majority has to be accepted as the
opinion of the State Transport Authority. [Para 21][456-C]
1.8 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 E
be delivered by the State Transport Authority. Had third member
agreed, there cannot be any debate in this matter. But there being
neither any pleading nor any material to come to the conclusion
that the third member has agreed with the opinion, the present
case is examined as if, the third member did not agree with the F
order proposed. 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 G
member. [Para 25][458-E-H]
1.9 The 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 H
446 SUPREME COURT REPORTS [2018] 1 S.C.R.
A 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 Single Judge and Division Bench erred in holding
the decision as invalid. Thus, the judgments of the High Court
are set aside. [Paras 26, 27][459-A-C]
B
Ramaswamy Nadar v. The State of Madras AIR 1958
SC 56 : [1958] SCR 739; Gokal Chand Jagan Nath v.
Nand Ram Das Atma Ram AIR (1938) P.C. 292; A.
Shanta Rao v. State Transport Appellate Tribunal,
Hyderabad & Ors. AIR 1985 A.P. 256 – referred to.
C
“Law and Practice of Meetings” by Shackleton
Eleventh Edn – referred to.
Case Law Reference
[1958] SCR 739 referred to Para 19
D
AIR (1938) P.C. 292 referred to Para 23
AIR 1985 A.P. 256 referred to Para 24
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1562
of 2018.
E From the Judgment and Order dated 22.03.2017 of the High Court
of Madhya Pradesh, Bench at Gwalior in W.A. No. 177 of 2015.
Mishra Saurabh, Arjun Garg, Ankit Kr. Lal, Advs. for the
Appellants.
F The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. 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
G 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 routes, one
Gwalior to Bhander and second Gwalior to Datia. Respondent No.3 has
H
STATE OF M. P. THR. PRINCIPAL SECRETARY v. MAHENDRA 447
GUPTA [ASHOK BHUSHAN, J.]
also the permanent permit for the route Gwalior to Jhansi. Respondent A
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
B
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 C
the applicant-Pawan 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
D
transferred in the meanwhile, hence, the order dated 15.12.2014 is illegal.
The learned Single Judge accepted the 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 E
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 F
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 G
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 members was fully valid and there was no infirmity in the
H
448 SUPREME COURT REPORTS [2018] 1 S.C.R.
A 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
B 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.
C 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 sub-section (3) of Section 68. Section 68(1) and
D 68(3) are quoted below:
“68.Transport Authorities.-(1) The State Government shall,
by notification in the Official Gazette, constitute for the State
a State Transport Authority to exercise and discharge the
powers and functions specified in sub-section (3), and shall
E 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:
F
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
G 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 :-
H
STATE OF M. P. THR. PRINCIPAL SECRETARY v. MAHENDRA 449
GUPTA [ASHOK BHUSHAN, J.]
(a) to co-ordinate and regulate the activities and policies of A
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; B
(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 C
(d) to discharge such other functions as may be prescribed.”
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 D
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. E
(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 sub-rule (7) and two other members (whether official F
or non-official). 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 sub-rule
(7) may appoint and no quorum is necessary for holding the G
adjourned meeting.
(7) The Chairman, if unable to attend the meeting, shall
nominate a member to act as Chairman at the meeting.”
H
450 SUPREME COURT REPORTS [2018] 1 S.C.R.
A 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. -
(2) The State or Regional Transport Authority, as the case
B 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,
C 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
D 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
E 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 one-
F third 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
G procedure by circulation shall not be less than the members
necessary to constitute a quorum.
xxx xxx xxx xxx
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 -
H
STATE OF M. P. THR. PRINCIPAL SECRETARY v. MAHENDRA 451
GUPTA [ASHOK BHUSHAN, J.]
Shri Sanjay Chaudhary, Transport Commissioner and Shri Rajiv Sharma, A
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
B
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 P-1 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, C
MADHYA PRADESH MOTIMAHAL, GWALIOR
Agenda Serial No.71
Case No.2159/2014 Hearing on 16.10.2014
Before:
1. Pramod Agrawal Chairperson D
Principal Secretary,
Madhya Pradesh Government
Transport Department, Bhopal
2. Sanjay Chaudhary Member
Transport Commissioner E
Madhya Pradesh, Gwalior
3.Rajiv Sharma Member
Chief Engineer
Public Works Department,
Gwalior
F
... ... ...
... ... ...
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 G
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.
H
452 SUPREME COURT REPORTS [2018] 1 S.C.R.
A 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.
... ... …
B ... ... …
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.
C
Sd/- sd/-
Member Member
State Transport Authority State Transport Authority
Madhya Pradesh”
11. The only issue which needs to be considered in this appeal is
D 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 signed only by the Chairperson and one member, on 15.12.2014.
E 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 multi-member body constituted by the
State Government under Section 68(1). The State Transport Authority
is a multi-member body which transacts business in meeting except in
F 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
G 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 and
was not available to sign the order. One more important fact which is to
H be noticed is that learned Single Judge had categorically noted that the
STATE OF M. P. THR. PRINCIPAL SECRETARY v. MAHENDRA 453
GUPTA [ASHOK BHUSHAN, J.]
above issue was raised only during the hearing before the learned Single A
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. B
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 multi-member body transacts its business after debate,
consultation and discussion. The view of multi-member body is expressed C
unanimously or by votes. For various kind of decisions by multi-member
body special majorities are also provided for acceptance of the decision.
Normally, all decisions of a multi-member body are expressed by opinion
of majority of the members present except where the special majorities
are provided in the statute itself.
D
14. Shackleton on the “Law and Practice of Meetings”, Eleventh
Edition while discussing the majority has stated following in paragraph
7-30. Relevant parts of paragraphs 7-30 and 7-31 are quoted below:
“ 4 MAJORITY
Definition E
7-30 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 F
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 G
as the act of the whole.
A majority vote binds the minority
7-31 Unless there is some provision to the contrary in the
instrument by which a corporation is formed, the resolution
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454 SUPREME COURT REPORTS [2018] 1 S.C.R.
A 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
B 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
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.
C
16. Rule 65 sub-section (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
D 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,
E 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
F that:
“18.1. In the instant case there is nothing on record to indicate
that the
STA with complete quorum heard the matter and before one
of the members Shri Sanjay Chaudhry was transferred out
G 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
H
STATE OF M. P. THR. PRINCIPAL SECRETARY v. MAHENDRA 455
GUPTA [ASHOK BHUSHAN, J.]
we refer to the decision of this Court in Ramaswamy Nadar, it is clear A
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 P-
1 and the relevant portion of the order has been extracted above by us
B
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. C
20. Now, we come to the judgment of this Court in Ramaswamy
Nadar(supra). In the above case the matter was heard by a 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 D
appended in the judgment was to the following effect:
“ NOTE
SINHA, J.
When hearing of this appeal was finished last week by a Bench E
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 F
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.”
G
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 signed 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
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456 SUPREME COURT REPORTS [2018] 1 S.C.R.
A Judge who could not sign had also concurred with the opinion, but in the
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 sub-clause (5) of the Constitution of
India provides that judge of this Court can deliver a judgment with the
B
concurrence of a majority of the Judges present at the hearing of the
case.
22. The present is a case where decision by a multi-member 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
C 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
D (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
before signing the judgment, which was signed by only one Judge. The
E 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
F 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
G 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.
H
STATE OF M. P. THR. PRINCIPAL SECRETARY v. MAHENDRA 457
GUPTA [ASHOK BHUSHAN, J.]
7. Order XLI, Rule 31 requires that the judgment of the A
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 B
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 judgment was. It is a rule which C
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 D
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 E
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. F
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 G
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. H
458 SUPREME COURT REPORTS [2018] 1 S.C.R.
A However, the order was issued only with the signature of Chairman.
The order was attacked on the ground 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
B 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
C 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
D 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
E 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 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
F 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
G 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.
H
STATE OF M. P. THR. PRINCIPAL SECRETARY v. MAHENDRA 459
GUPTA [ASHOK BHUSHAN, J.]
26. In view of the foregoing discussion, we are of the opinion that A
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
B
was fully in accordance with the statutory scheme of the Rules, 1994
and both the learned Single Judge and Division 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 C
Court are set aside.
Nidhi Jain Appeal allowed.
D
E
F
G
H
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