P L D 1966 (W (PLP)

FAIZULLAH KHAN, J.‑This Full Bench has been constituted to resolve the following common question which has been raised in two Writ Petitions (Nos. 271 and 273 of 1965):

Whether under section 64 of the Motor Vehicles Act (IV) of 1939, the prescribed authority can remit the case to the Regional Transport Authority?

2. For the purpose of this reference, the following statement of fact would suffice. Twelve persons were granted route permits by the Regional Transport Authority, and on appeal by respondents Nos. 3 to

10. Mr. A. M. Khan, Member, Board of Revenue, in a consolidated order, dated 14th May 1965, remanded the case to the "R. T. A.", "with the direction that selection should be made from among the twelve respondents, and all the appellants excepting the appellants of Appeal No.

37. Eight permits which were taken out earlier will continue for two months or the decision of the R. T. A. whichever is earlier."

3. S. Masoom Shah, learned counsel for the petitioner, on the strength of decision in Qazi Inayatullah and others v. The Province of West Pakistan and others (P L D 1956 Pesh. 33) argued that the appellate authority under section 64 of the Motor Vehicles Act had no power to remand the case for reconsideration of the Provincial Transport Authority.

4. Section 64 of the Motor Vehicles Act gives a right of appeal as enumerated in clauses (a) to (g) to the prescribed authority which, in the instant case, is the Board of Revenue. Section 64 does not say as to what powers can be exercised by the appellate authority. In other words, under section' 64 of the Motor Vehicles Act right of appeal accrues in the seven contingencies listed in clauses (a) to (g). It will be profitable here to understand the full import of the word "appeal". The term appeal has been defined variously, but all the accepted definitions of the term agree that the right of appeal is a right of invoking the jurisdiction of a superior Court with a view to redressing the error of the Court below. It will be profitable here to extract one of the definitions of the term in Law Lexicon: "Appeal. Is the right of entering a superior Court and invoking its aid and inter‑position to redress the error of the Court below." The Oxford Dictionary, Volume I, page 398, gives the following definition of the term: "As the transference of a case from an inferior to a higher Court or Tribunal in the hope of reversing or modifying the decision of the former."

5. It will be manifestly clear from the definition of the term "appeal" that it is inherent in the right of appeal that the whole case, including the facts, is within the jurisdiction of the appellate authority, unless and until in a particular statute the right of appeal is whittled down or, hedged Court in by certain limitations. In other words, the appellate Court has the jurisdiction of giving all the relief which the original Court or Tribunal can give. It would, therefore, follow that the power of remand is inherent in the appellate authority in that in certain cases where the Court or Tribunal has violated the statutory provision it may become impossible for the appellate authority to give an effectual and proper decision without remitting the case to the Court of first instance. To illustrate my point, if the Regional Transport Authority, contrary to the provisions of section 57 (2) grants permit to an applicant who has made an application beyond the time appointed by the authority, or the Regional Transport Authority has violated the requirements of subsection (3) of section 57 by refusing (1) to make the application available for inspection at the office of the Authority or not published the application or the substance thereof in the prescribed manner, (2) or not published a notice of the date before which representation in connection therewith may be submitted or the date so fixed. is less than thirty days from the publication, or the Regional Transport Authority contrary to‑ subsection (4) considers oral representation in connection with the application referred to in subsection (3) as against a written representation, or the Regional Transport Authority has ignored the provision of subsection (5) by disposing of the application not at a public hearing, or the person making the representation has been refused hearing. In all these cases, the right of appeal would be rendered illusory if the appellate authority had no jurisdiction of order of remit in that no proper order can be made unless all the requirements of section 57 referred to above have been complied with by the Regional Transport Authority. To put it differently, in all these contingencies the order of remand would be rendered inevitable in that the appellate authority cannot pass an effective order unless the statutory requirements of section 57 have been properly observed. We would, therefore, hold that in absence of any restriction in section 64 on the right of remand, the prescribed authority has inherent jurisdiction to order remand.

6. So far we have been discussing the case untrammeled by any authorities, though there is abundant authority including the high authority of the Privy Council for the proposition that the right of appeal gives the appellate authority the inherent jurisdiction of ordering remand in fit cases. In Messrs Shahmir Transport Company Ltd. v. Member (Colonies and Transport), Board of Revenue, West Pakistan and others (1), a Division Bench of the Lahore seat comprising of Muhammad Yaqub Ali, J. (as his Lordship then was) and Muhammad Akram, J. had to deal with precisely the same question. The decision in Qazi Inayatullah and others v. The Province of West Pakistan and others was cited before the Division Bench in support of the (P L D 1964 Lah. 710) view that the prescribed authority had no jurisdiction to remand the case to the Regional Transport Authority. Their Lordships, at page 716, after "respectful disagreement" with the decision in that case proceeded to observe: "The power of remand is merely ancillary and incidental to the powers to be exercised by the Appellate Authority. It is something inherent in the appellate tribunal."

7. In P. Swarajya Lakshmi v. The State of Andhra Pradesh (A I R 1959 Andh. Par. 321) the Division Bench had to deal with the very same question. In para 8, Satyanarayana Raju, J. with whom Basi Reddy, J. agreed expressed himself thus: "There is thus nonessential distinction between a remedy by way of appeal and revision. If so much is conceded, the question is what are the powers of an appellate tribunal under section 64 of the Motor Vehicles Act? That section merely says that a person aggrieved by the orders specified therein may, within the prescribed times and in the prescribed manner appeal to the prescribed authority who shall give to such person and the original authority an opportunity of being heard. It is axiomatic that a power to entertain an appeal must comprise within its ambit the power to dispose of the appeal in the manner known to law. An appellate Tribunal has a right to set aside an order under appeal and substitute its own order. It may not go so far and may merely quash the order appealed against and automatically require the subordinate authority to restore the original proceeding and to decide it afresh."

8. Nigam, J. C. of the Ajmer High Court in Yassen Ram Prashad Khewat and another v. Chief Commissioner, Ajmer and others (A I R 1956 Ajmer 41) held that "the power of remand is inherent in the very constitution of an appellate Court." At page 45 in para. 20, his Lordship repelled the argument that the Chief Commissioner had no power to order a remand, and expressed himself thus‑

"I am unable to see any substance in this contention. In my opinion, the power of remand is inherent in the very constitution of an appellate Court. An appellate Court has the right to set aside the order of the trial Court. When it does so, it may go further and substitute its own order for the order appealed against or it may not go so far and may merely quash the order appealed against and automatically require the subordinate authority to restore the original cause and to decide it afresh. In my opinion, the absence of a power of remand, would limit and to same extent negative the completeness of the power of the appellate authority and I am therefore, of opinion that whether there is a specific provision or not, ` the power to order a remand must be taken to be inherent in every appellate Court in its very constitution as an appellate authority."

9. The Privy Council in Alfred Granvile Ross v. The Queen (P L D 1957 P C 151) at page 157, observed that "when the right of appeal has been granted there seems little or no difficulty in regarding the power to order a new trial as part of the practice and procedure of the Court." The Board had to consider section 2 of the order of the Eastern African Court of Appeal, which provided that "the said Court in the exercise of its appellate jurisdiction shall have power to determine any; question and to pass any decree judgment or order the determining or passing of which may appear necessary to the said Court for the purpose of doing justice in the cause or matter before it". Viscount Simonds speaking for the Board, after reproducing the section referred to above observed: "The width of these words explains what follows. The same rule‑making power was conferred by the order and Rules of Court were duly made, but they contained no such express power, to order a new trial as had been provided in civil appeal by the former Rule 23 and in criminal appeals by the former Rule

29. In their Lordships' opinion there can be no doubt that they were omitted because they were unnecessary in view of the wide words of the order. It is certain that both in civil and criminal appeals the power to order re‑trial continued to be exercised without challenge,"

10. It follows from the above authorities that the order of remand is inherent and necessarily incidental to the right of appeal notwithstanding the fact that a particular statute has not specifically given the right of remand to the appellate authority. The power of remand shall, therefore, be presumed to be an indispensable attribute of the right of appeal unless in a particular statute the order of remand has been specifically abrogated.

11. S. Masoom Shah, the learned counsel for the petitioners, lastly argued that the order of remand in the instant case for the purpose of recording fresh evidence was without jurisdiction. We express no opinion on this point in that the Full Bench is required only to answer the question whether the prescribed authority has the right of remand or not. This question is, therefore, left open and can be agitated before the Division Bench. K. B. A??????????????????????????????????????????????????????????????????????? Reference answered accordingly.