Several writ petitions were filed initially for declaration of Bihar Motor Vehicle Accident Claims Tribunal (Constitution And Service Condition) Rules, 2023 to be bad in law, arbitrary, beyond jurisdiction and ultra vires the provisions contained in section 166 (2) of the Motor Vehicles Act, 1988 (MV Act, 1988) on various grounds but primarily on the issue of lessening the number of Tribunals for the purpose and for not providing for the correct procedure filing of claim petitions, in sync with the provisions contained in Secion166 (2) of MV Act, 1988 of filing the claim petition before the Tribunal.
The 38-page long judgement of Patna High Court records the petitioners' objections but dismissed them. The High Court's division bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy held that "the rules of 2023 along with the amendment of 2024 are completely in consonance with the provisions contained in Section 165, 166 and 176 of the M.V. Act, 1988" as also the dictum of the Supreme Court in Gohar Mohammad case and Anita Kushwaha case. The challenge in these writ petitions failed. All the writ petitions were dismissed. The judgement was authored by Justice Kumar. It was delivered on February 21, 2025. Notably, the High Court has directed that "there shall be no prohibition for the Advocates appearing for the parties before the Tribunals."
The petitioners' counsel had commented upon adversely with respect to the constitution and composition of the Search Committee for appointing the Chairman and the Members of the Tribunal as in the amendment/notification, the Search Committee comprised mainly administrative Officers, thus falling foul of the judgment in Madras Bar Association vs. Union of India; (2021) 7 SCC 369.
In the year 2021, a State Level Tribunal was constituted in terms of the powers granted to the State Government under Section 165 and 176 of the MV Act, 1988. Against the notification constituting State Level Tribunal vide notification number 683 and 684 dated 11/08/2021, several writ petitions were filed by affected persons including Insurance Companies, which was stayed by a Bench of the High Court by order dated December 21, 2022 passed in the batch of writ petitions, the lead case being CWJC No. 2183 of 2022. The stay was granted in view of the amendment brought about in Section 166 (3) of the MV Act, 1988 with effect from Apil 1, 2022 providing for limitation period for 6 months for filing applications for compensation from the date of occurrence of the accident and the notification by the State Government in not making such corresponding provisions.
Thereafter, the Department of Transport came out with a fresh draft notification on April 19, 2023, on which objections were invited. By the said notification, District Level Tribunals were formed. The notification no. 683 and 684 were withdrawn.
The objections raised by the concerned parties were rejected by the Secretary, Transport Department. Thereafter vide notification dated May 29, 2023, the rules of 2023 were notified which was gazetted on May 30, 2023.
By the Rules, the Tribunals were constituted at the district level and the composition of the Search Committee for the Members and the Chairman of the Tribunal remained the same, namely, Secretary/Principal Secretary/ Additional Chief Secretary, Transport Department; Secretary, Law Department; an Officer nominated by the General Administrative Department and; a Deputy Secretary or Officer on Special Duty in Transport Department. Though the Rules of 2023 were gazetted but it was not found available on the official website of the Transport Department, Government of Bihar.
After about four months, a fresh draft notification dated September 20, 2023 was uploaded on the website of the Transport Department, inviting objections. In this draft notification, the Tribunals were constituted at the divisional level with practically no change in the composition of the Search/Screening Committee.
The objections were with respect to clause 7 that no representation of the Judiciary was provided in this selection and appointment of the Chairperson and clause 8 whereby the Transport Department had been given the authority to remove the Chairperson of the Tribunal on the grounds of misbehaviour, incompetence, laxity in discharge of duties or of passing order in contravention of rules enforced by the Government etc.
The objection was that such power of removal of Chairperson should not have been left with the bureaucracy. There were objections also with respect to clauses – 10 to 14 as also for lessening the number of Tribunals by making such Tribunals operate at divisional level.
The rule was ultimately notified and gazetted on October 26, 2023. This led to filing of the present writ petitions challenging the vires of the rules on ground of incompetence of the State Legislature/State Government to make rules in contravention of the provisions contained in the Central/Parent Act of 1988 and for it to be arbitrary and not in keeping with the principles decided in Gohar Ahmad vs. Uttar Pradesh State Road Transport Corporation and Others; (2023) 4 SCC 381 and Madras Bar Association case.
During the hearing of these writ petitions, the Advocate General had intimated the court that the Government would give a re-look at the challenged rules, specifically with respect to the constitution of Selection Committee and the removal of the incumbents appointed to the Tribunal. All the writ petitions, therefore, were adjourned awaiting the revisit of those rules by the Government and perhaps proposing amendment in the rules to bring it in consonance with the judgment in Madras Bar Association case.
The Advocate General denied the charge that the newly constituted Tribunals were not permitting Advocates to appear.
Several other issues also were raised, one of which was that the Government had introduced the rules with effect from April 1, 2019 against the advice of the Advocate General, which issue was also required to be considered.
In the meantime, the Government on a re-look at the challenged rules, came out with notification contained in letter no. 9965 dated August 27, 2024, making changes in rule 7 of the earlier 2023 rules with regard to appointment of Members and Chairman of the Tribunal and the constitution of the Selection Committee for the said appointments. The Chief Justice of the Patna High Court or any Judge nominated by him was to be made Chairman of that Selection Committee and the other Members of the selection committee would be the Registrar General of the Patna High Court, Secretary/ Principal Secretary/Additional Chief Secretary or any Representative Officer of the Transport Department; Secretary-cum-Legal Adviser, Law Department and Representative Officer of the General Administration Department.
Rule 8 also was amended which dealt with resignation and removal of Chairman of the claims Tribunal.
It was brought to the notice of the Court that initially only seven Tribunals were conceived of but the number was increased to ten divisional level Tribunals covering the State of Bihar. Thus necessary amendments were made in the prayer of the writ petitioners and even with such amendment, the challenge mounted earlier continued.
The challenge inter alia was that the State Government had the power to issue notification only with respect to territorial jurisdiction under Sections 165 (1) (4) of the M.V. Act, 1988 and to appoint Members of the Tribunal under Section 165(2) thereof. It was urged that under Section 176 of the M.V. Act, 1988, the scope of issuance of such notification is limited and the State Government was incompetent to make rules on the condition of service of the Members of the Tribunals and selection of Presiding Officers. The use of the words in Section 176 of the MV Act, 1988 makes it very clear that rules could be made for the purpose of carrying into effect the provisions of Sections 165 to 174 of the M.V. Act of 1988 with respect to, (a) the form of application for claims for compensation and the particulars, it may contain and the fees, if any, to be paid in respect of search applications; (b) the procedure to be followed by the claims Tribunal in holding an inquiry under this chapter; (c) the powers vested in a Civil Court which may be exercised by a claims Tribunal; (d) the form and the manner in which and the fee ( if any) on payment of which, an appeal may be preferred against an award of a Claims Tribunal and; (e) any other matter which is to be or may be prescribed.
Thus the rule making power of the State could not have been extended to what has been done in the present set of rules.
It was argued that in Kerala State Electricity Board vs. Thomas Joseph; 2022 SCC OnLine SC 1737, it has been held that if a rule goes beyond the rule making powers conferred by the statue, the same would be required to be declared invalid. A rule could not supplant any provision for which power has not been conferred and the basic test to determine and consider is the source power which is relatable to the rule. Similarly, a rule must be in accord with the parent statute and cannot travel beyond it. The doctrine of ultra vires envisages that a rule making body must function within the purview of rules making authority conferred on it by the parent act. There is no inherent power of its own,which could be invoked to make rules. It was also argued that the Supreme Court in Global Energy Limited vs.Central Electricity Commission; (2009)15 SCC 570, has clarified that the rule making power for carrying out the purpose of the act is a general delegation which may not be used for laying down any other guidelines. By reason of such a provision alone, the regulation making power cannot be exercised so as to bring into existence or affect substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the act.
The Second challenge was regarding the fact that notwithstanding the notification of 2024, bringing about changes in rule 7 and 8 of the 2023 rules, the Screening Committee was still not free from executive control. The Secretary of the Tribunal ought not to be an administrative Officer of the Transport Department as the Transport Department is more often than not, a litigant before such Tribunal. The independence of the Tribunal will only be secured when even the administrative function would be in the hands of judicial body, otherwise there would be complete absence of any link with the parent department.
In support of the contention, it was argued that in Madras Bar Association case. it was clearly sounded that independent judicial Tribunals for determination of the rights of citizens and for the adjudication of the disputes and complaints of the citizens, is a necessary concomitant of the rule of law.
The argument on this point thus was concluded that with the Secretary of the Tribunal hailing from the sponsoring department, it cannot be said that there would be no control of the bureaucracy over the Tribunal.
A non-Judicial Member in any capacity ought not to be appointed in Motor Accidents Claim Tribunal.
The third argument advanced was that divisional level Tribunals provided under rules of 2023, makes access to justice illusory. Motor Vehicles Act is a beneficial legislation, the fruits of which ought not to have been kept up and hanging for poor and indigent. No reasonable explanation appears to be available with the Government for shifting the jurisdiction from district level to divisional level. Reference in this context was made to the judgment in Anita Kushwaha vs. Pushap Sudan; (2016) 8 SCC 509, which declared that access to justice is indeed a facet of right to life, guaranteed under Article 21 of the Constitution as also a facet of right guaranteed under Article 14 of the Constitution which guarantees equality before law and equal protection of laws.
The other argument raised was whether the rules made, could be enforced retrospectively. The 2023 rules were amended on August 27, 2024 declaring that it shall apply on all pending cases filed on or after April 1, 2019.
In support of the argument, it was suggested that chapter- 11 of the MV Act, 1988 was amended In the year 2019, but it came into force only from April 1, 2022. Section 212 (2) of the MV Act, 1988 further provides that any modification or annulment in the rule so made, shall be without prejudice to the validity of anything previously done under the rule, scheme or notification.
Lastly, it was argued that the form for filing the complaint provided by the Transport Department on the portal falls foul of Section 166 (1) and (2) of the MV Act, 1988. It was also pointed out that no provision has been made in the form issued by the Transport Department on the web portal about accidents occurring outside the State of Bihar but the claimants being residents of Bihar. There is no option for them to file their claims in the State of Bihar. Thus, larger public interest has been adversely affected with the promulgation of the rules 2023 and the amendment brought out in the year 2024. It was thus argued that the rules are practically uninformed by reason and therefore are arbitrary.
Responding to the contentions, the Advocate General argued that a statutory rule cannot be declared ultra-vires on the grounds of inconvenience and that too without any basis for concluding the same but only on presumptions. A statutory rule could be declared ultra vires only if it is shown that it is beyond the Legislative competence or is in breach of any enactment or violates any provision of the Constitution. With the establishment of ten Tribunals at divisional level, with utmost clarity that the numbers shall not remain perpetually the same, the Government of the day has only shown its consciousness and alacrity to the situation. On periodical review, as and when necessity for creation of more Tribunals would be felt in the interest of the accident victims, the Government would consider the same and increase the number of Tribunals. In fact, initially, only seven Tribunals were conceived of at divisional level but the number was immediately increased to ten, repelling any doubt that when need would arise, more number of Tribunals will not be created. The ten newly dedicated claims Tribunals, according to the Government, have been constituted for the purpose of providing speedy justice to the people. The jurisdictional area of the Tribunal has also been clearly defined along with the divisional headquarter where the Tribunal would be located. Such a decision was not made without any assessment of pending cases. Even the future accretion in the number of cases have been taken into account for making dedicated divisional level Tribunals. The assessment was based on the inputs that number of pending cases did not justify more than ten Tribunals, especially when such Tribunals were exclusively dedicated for deciding claim cases. Hitherto, one court of the District Judge/Additional District Judge was operating as a Tribunal in that district. The finance involved is not the consideration of the Government. The number has been fixed at ten presently, which could be changed if situation so demands. The highest number of pending cases is in Patna division is only 73; in Saran division, there are only 10 pending cases. Similarly the numbers of such cases is less in Bhagalpur, Munger, Muzaffarpur, Darbhanga etc. The earlier Tribunals were dealing with such claim cases along with the other areas of litigation.
The State contended that the rules have been framed after considering the due process of law.
The Court examined the provisions contained in sections 165, 166 and 176 of the MV, Act 1988.
The Court observed:"the provisions of the Parent Act, the State Government’s power to make rules constituting one or more Motor Accidents Claims Tribunals is clearly established. Section 166 provides for the contents of the application for compensation arising out of an accident. Section 166 (2) which was introduced w.e.f. 14.11.1994 gives the option to the claimant to either file his claim before the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimants reside or carries on business or within the local limits of whose jurisdiction the defendant resides and shall be in such form and contain such particulars as may be prescribed. From the perusal of the rules of 2023, the presumption of the rules not being in sync with the provisions contained in Section 166(2) of the MV Act, 1988 appears to be unfounded and uncalled for."
It records: "no victim or their legal representatives would have to move physically for filing their claim applications. For filing claim applications, an online portal has been developed by the State Government for convenience of accident victims, considering their physical as well as mental conditions. Any claimant could file their claim application by using their own personal credentials. It could be filed from any place using any cyber cafe. The rules of 2023 do not infringe, in any way, the freedom of selection of claims Tribunal of its choice in accordance with the section 166 (2) of the Parent Act. They could also appear before such Tribunal virtually."
It relied on Supreme Court's decision in Gohar Mohammad, wherein it had directed that the State authorities would take appropriate steps to develop a joint web portal/platform to co-ordinate and facilitate the stakeholders for the purposes of carrying out the provisions of Motor Vehicles Amendment Act and the Rules in coordination with any technical agency and be notified to the public at large. In the light of what was directed in Gohar Mohammad by the Supreme Court, an online portal has been developed by the State Government. A facility of digital mode of hearing of cases has also been provided.
In the light of the judgment in Gohar Mohammad case, a new investigative process has been notified by the Central Government, which has been endorsed by the Supreme Court, which mandates that the victims have to file their details in prescribed format to police and all reports by police after verification and investigation is to be submitted through a portal developed by MORTH. It only facilitates the filing of claim petition which has not to be filed like any suit before the Civil Court.
There is no bar on the lawyers appearing in these Tribunals either physically or virtually.
A conjoint reading of Section 165, 166 and 176 of the MV Act, 1988 would reflect that the rules of 2023 (amended in 2024) would clearly pass the muster.
The Court observed that with the change in the composition of the Screening Committee, making it in line with the judgment in Madras Bar Association case, removes that defect also in the rules viz. the committee would be under the influence of the parent Department of Transport.
The contentions raised on behalf of the writ petitioners with respect to the power of the Government to make such rules and the extent of it stands answered. The Government has the power to make rules and also decide about number of Tribunals in the State of Bihar.
In Sanjeev Coke Manufacturing Company vs Bharat Cooking Coal Ltd; ( 1983) 1 SCC 147, a five Judge Bench of the Supreme Court had held that “scales of justice are just not designed to weigh competing social and economic factors. In such matters, legislative wisdom must prevail and judicial review must abstain”.
The judicial review of Government Policies/rules encapsulates determining whether they infringe upon the fundamental rights of citizens, contravene constitutional provisions, violate statutory regulations and display manifest arbitrariness, capriciousness or malafides. The High Court referred to Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh Bhupesh Kumar Sheth: 1984 (4) SCC 27.
The focus of judicial scrutiny is limited to the legality of the policy, excluding any evaluation of its wisdom and soundness. The Court cannot compel the Government to formulate a policy, evaluate alternatives or assess the effectiveness of existing policies. This constraints stems from the principle of separation of powers, where the Courts lack the democratic mandate and institutional expertise to delve into such matters. While the Court cannot look into these aspects, the Court can definitely check the Constitutional validity of a policy or a rule or a statute. The Court referred to the decision IN RE: Section 6A of Citizenship Act, 1955, 2024 SCC OnLine SC 2880)
Fixing a cut-off date retrospectively is not to be read in isolation but with the provision contained in the rules of 2023 and the amendment of 2024 regarding repeals and savings. The power to make law by an authority also entails in it a power to repeal law or to make it prospective or retrospective. The watershed date is with a reason, namely, that all cases after a particular date would stand transferred to the newly constituted Tribunals with the territorial jurisdiction defined so that the newer cases are decided speedily.
The Court opined that with respect to creating ten Tribunals, which reduces the number from many to limited resulting in the distortion of the principle of access to justice, it needs be noticed that in Anita Kushwaha case, the Supreme Court clearly held that it forms a necessary component of Article 21 of the Constitution of India. The Supreme Court formulated four facets constituting the essence of access of justice, namely, (1) the State must provide an effective adjudicatory mechanism; (2) the mechanism so provided must be reasonably accessible in terms of distance; (3) the process of adjudication must be speedy; and (4) the litigants access to adjudicatory process must be affordable.
In his judgement, Justice Ashutosh Kumar concluded: "Testing the validity of the rules of 2023 and the amendment of 2024 on this score, we have no difficulty in holding that the Tribunals so constituted provide an effective adjudicatory mechanism, which is in consonance
with the provisions of Section 166 (2) of the Parent Act. Out of 38 districts, 10 Tribunals, which number could increase in future as well, clearly covers the State of Bihar with contiguous districts falling within the territorial jurisdiction of each of the Divisional Tribunal. This does not make it any less accessible than what a litigant would expect. With the new portal having been developed and the investigative process endorsed by the Supreme Court having been introduced, the accessibility to justice has become speedier, cheaper and transparent. The process also makes it affordable."
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