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TMI Blog1962 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 35 of 1957. The State Transport Appellate Tribunal sat aside the order and remanded the case for fresh disposal to the Regional Transport Authority, Kozhikode, The Original Petition was directed against the order of remand. 3. Vaidialingam J. held that the State Transport Appellate Tribunal had no powers of remand, and that even if it had such a power, the circumstances of the case did not justify the remand directed by the Tribunal. We are in entire agreement with the second of the two conclusions and that is sufficient to entail a dismissal of this appeal. 4. In considering the second aspect of the case the learned Judge reviewed all the relevant facts and said: I am satisfied that the order of remand in the circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 851, Section 64 is not concerned with defining the powers of the appellate authority and does not purport to do so . 7. The only question is whether a power to remand should be considered as having been granted by necessary implication. It is certainly not excluded by the fact that the original authority gets an opportunity of being heard. 8. In Yagsen Ram Prasad Khewat v. Chief Commr. Ajmer, AIR 1956 Ajmer 41 Nigam, J. C. said: 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 merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable reliance was placed by counsel for the respondents, Segu Abdul Khadir v. A.K. Hurtny, AIR 1948 Mad 235 and Devichand Moolcand v. Dnanraj Kantilal AIR 1949 Mad 53. In the first of the two cases the Chief Judge of the Court of Small Causes in his capacity as the appellate authority under the Act heard and allowed an appeal after being satisfied that notice of the appeal had been duly served on the respondent as required by the rules. Subsequently the respondent sought to get the order allowing the appeal set aside on the ground that he had not been duly served and the Chief Judge set aside the order and directed a fresh hearing of the appeal. The Court said : It is beyond doubt that the learned Chief Judge at the hearing ot the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey did noi in those rules do what would have been, I think, desirable; they did not enable the provisions of the Code, so far as applicable and relevant, to be made use of in proceedings tinder the Control Act. In the absence of rules, it was argued, nevertheless the principles of them must be applied. I am unable to accept that contention . 11. The reference to ILR 43 Mad 94 : (AIR 1920 Mad 640) is significant. The decision in that case was that there was no inherent power in a court to set aside .an ex parte decree made by itself by summary procedure and that the power of a court to do so should be traced to the provisions of Rule 13, Order 9, of the Code of Civil Procedure, 1908. In these circumstances it cannot but be clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such In an application before the Rent Controller in every case need not be decided by us . 13. It was suggested that the absence of a provision making the Code of Civil Procedure, 1908, applicable to the proceedings indicates that the power of remand was not intended to be granted. This is clearly wrong. It the power of remand is implicit in an appellate jurisdiction on the ground that it is incidental to and essential for, the proper exercise of that jurisdiction, the fact that the Code of Civil Procedure, 1908, has not been made applicable can have no reaction on the existence or otherwise of that power. It may be that if some of the provisions of the Code are mads applicable to a tribunal and others left out, a contention is possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is given, those things also are supposed to be granted, without which the jurisdiction cannot be exercised. 18. Kent says that the grant of a jurisdiction implies the grant of all the powers necessary to its exercise (1 Kent, Comm. 339). And Sutherland that where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication (3rd Edition, Vol. 3, Page 19). 19. It is unnecessary to pursue the discussion any further. We entertain no doubt that a power to remand is available to a tribunal functioning under Section b4 of the Motor Vehicles Act, 1939, that the said power is incidental to and implicit in the appellate jurisdiction created b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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