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1964 DIGILAW 296 (MAD)

Unnamalai Achi v. K. Damodaran Nair and two others

1964-07-30

K.VEERASWAMI

body1964
ORDER.- The 2nd respondent held two permits in respect of two vehicles MDY 2067 and MDR 2207 on the routes respectively Devakottai to Karaikudi Railway Station (via) Karaikudi Ram Nagar, and Tiruppattur to Karaikudi Railway Station (via) Nachiapuram. It is a firm of partnership. In O.S. No. 88 of 1954 on the file of the Court of the Subordinate Judge, Devokottai, the petitioner obtained a decree against one of the partners Sornalingam Chettiar, but on appeal against the firm itself. On 14th July, 1956, there was an order made in execution of the decree charging the interests of Sornalingam Chettiar in the partnership for repayment of the debt. On 27th August, 1956, again in execution and at the instance of the petitioner, a Receiver was appointed for realising the amounts which Sornalingam Chettiar was entitled to from the partnership. On 26th April, 1956, a Division Bench of this Court, modifying an earlier order of a learned Single Judge, directed that Sornalingam Chettiar might be allowed to run the buses, and that the Receiver appointed without being in possession of and running the buses would inspect and collect moneys due to Sornalingam Chettiar from the partnership and deposit the proceeds into Court. On 23rd September, 1958, Sornalingam Chettiar consented to a certain S.R. Company paying Rs. 1,000 a month towards the decree until the same was discharged, and on that the execution petition was dismissed with liberty to renew the same if necessary. In E.A. No. 69 of 1959 filed by her the petitioner sought to implead one Damodaran Nair, the 1st respondent in this Court in the main execution petition with a view to interdict a transfer of the permits by the holder thereof to Damodaran Nair. Sornalingam Chettiar in his counter-affidavit denied any transfer or sale of the buses. What happened thereafter in the Execution proceedings is not clear. On 16th February, 1959, the petitioner made an application to the Regional Transport Authority of Ramanathapuram bringing to its notice that she was a creditor and in the circumstances she objected to transfer of the buses to Damodaran Nair. On 27th February, 1959, a joint application would appear to have been made by the permit-holder and Damodaran Nair for transfer of the permits to the latter. On 27th February, 1959, a joint application would appear to have been made by the permit-holder and Damodaran Nair for transfer of the permits to the latter. Under the enabling power under Rule 109 the Regional Transport Authority applied to the application the procedure prescribed by section 57 and fixed 5th April, 1959, as the last date for making any representations. Admittedly the petitioner did not make any representations by that time. On 24th April, 1959, when the Regional Transport Authority took up the matter for hearing, the Counsel for the petitioner appeared and raised objections. I am told by Mr. Venugopal for the 1st respondent that at that meeting Counsel for the petitioner informed the Regional Transport Authority that he would move the Executing Court for an injunction restraining the Authority from proceeding further with the application for transfer. But actually no such order was ever obtained by the petitioner. On 28th April, 1959, the petitioner sent up her objections to the Regional Transport Authority by registered post to the proposed transfer and these objections were received by the Authority on 30th April, 1959. On 27th April, 1959, the Executing Court is said to have granted an injunction restraining Sornalingam Chettiar from transferring buses to third parties. It seems that earlier on 25th April, 1959, Damodaran Nair himself had made an endorsement in the application for injunction E.A. No. 69 of 1959 as to his having not purchased the buses or paid any consideration for the same. The Regional Transport Authority took up the application for transfer for further hearing on 1st May, 1959, and actually on 2nd June, 1959, the Authority granted the application for transfer. Against that order the petitioner preferred a revision to the State Transport Authority under section 64-A and successfully. That Authority set aside the order directing transfer and remitted the appplication for fresh enquiry. The 1st respondent then preferred to the State Transport Appellate Tribunal a revision petition under section 64 (2) against the order of the State Transport Authority and this petition was allowed and the order of the State Transport Authority was set aside. This petition is to quash the Tribunal’s order. The 1st respondent then preferred to the State Transport Appellate Tribunal a revision petition under section 64 (2) against the order of the State Transport Authority and this petition was allowed and the order of the State Transport Authority was set aside. This petition is to quash the Tribunal’s order. The Tribunal rested its order on three grounds ; (1) the petitioner in this Court did not make any representations in writing on or before 5th April, 1959, the date fixed for making such representations under section 57(3) and therefore she had no right to agitate the correctness of the order of transfer by preferring a revision under section 64-A; (2) she was not also competent to make representation under section 57(4) as she was not one of the categories of persons contemplated by section 47(1) who are entitled to make representations and therefore she had no locus standi to file a petition under section 64-A ; and (3) the State Transport Authority was not right in its view of the facts with reference to the alleged suppression of facts in the context of Rules 196 to 198. The Tribunal was aware that it might be that the transfer was in violation of the orders of the Subordinate Judge of Devakottai interdicting transfer. But the Tribunal considered that that was not germane in the proceedings relating to transfer of the permit under the provisions of the Motor Vehicles Act. It was on that view the Tribunal reversed the order of the State Transport Authority and restored that of the Regional Transport Authority. But the Tribunal considered that that was not germane in the proceedings relating to transfer of the permit under the provisions of the Motor Vehicles Act. It was on that view the Tribunal reversed the order of the State Transport Authority and restored that of the Regional Transport Authority. The contention for the petitioner in this Court is three-fold: (1) section 47(1) is not exhaustive as to the categories of persons entitled to make representations and that the bar under section 57(4) is only on the representator and not on the Regional Transport Authority; (2) even if the petitioner had not made representations in time under section 57(4) in the circumstances of the case, she is a person aggrieved and so entitled to canvass the order of the Regional Transport Authority by means of a revision petition under section 64-A and (3) in any case the competency of the petitioner to apply in revision under section 64-A would only arise at the stage of the application and before the Authority calls for records and that once the records are called for by the Authority, the question is of no moment, as it can act in exercise of its suo motu powers. On the other, hand, the argument for the 1st respondent is that for the petitioner to succeed, she must meet every one of the points relied on by the Tribunal against her. Learned Counsel submits that no person who has not made representations in time and followed the other requisites prescribed by section 57 (4) is entitled to be heard by the Regional Transport Authority under sub-section (5) of section 57, that such a person is not even entitled to be impleaded as a party to the proceedings and that further, once the transfer of permit has been directed, no party other than the parties to the transaction, namely, the transferor and the transferee, will or can have any interest in the subject-matter so that such a party cannot be regarded as one aggrieved or interested so as to invoke the powers of the Authority under section 64-A. It seems to me that the point I have to consider and decide lies in a narrow compass. It is not denied for the petitioner that it is only a person aggrieved who is entitled to apply under section 64-A. Is the petitioner such a person ? It is not denied for the petitioner that it is only a person aggrieved who is entitled to apply under section 64-A. Is the petitioner such a person ? The test was laid down by a Full Bench of this Court in S.M. Transport v. Raman and Raman1, in these terms: “The true principle is to determine whether the applicant has an interest distinct from the general inconvenience which may be suffered by the law being wrongfully administered”. The contention for the petitioner is that this test is answered by her. It is said that though the petitioner did not make representations in accordance with the requirements of section 57(4) as she had brought to the notice of the Regional Transport Authority her objections to the transfer on 16th February, 1959 and 28th April, 1959, she must be regarded as having substantially complied with the requirements of section 57(4) and that therefore she was a person entitled to be heard under section 57(5) and as the order of the Regional Transport Authority went against her she was a person entitled to question it by filing a revision. Counsel for the petitioner further argues that even assuming that the petitioner was not one of the categories of persons contemplated by section 47(1) as that provision was not exhaustive it was open to any member of the public to place before the Regional Transport Authority relevant facts and considerations. In support of this, Counsel has relied on Abdul Gafoor v. State of Mysore2and Ramayya v. State of Madras3. I am not inclined to the view that the objections preferred by the petitioner on 16th February,. 1959 were in substantial compliance with section 57(4). As a matter of fact on that date an application for transfer itself was not in existence. It was made, as I said, only on 27th February, 1959. The objections of the petitioner dated 28th April, 1959 were received by the Regional Transport Authority on 30th April, 1959, which was after the date fixed by that Authority for receipt of objections under section 57. The petitioner cannot therefore be regarded as having complied with section 57(4). It was made, as I said, only on 27th February, 1959. The objections of the petitioner dated 28th April, 1959 were received by the Regional Transport Authority on 30th April, 1959, which was after the date fixed by that Authority for receipt of objections under section 57. The petitioner cannot therefore be regarded as having complied with section 57(4). Even granting that the right of representations under section 47(1) is not confined to the categories of persons mentioned therein and the petitioner was entitled to make representations, that in itself, in my opinion, would not entitle her to be heard by the Regional Transport Authority, and if the order went against her, she could not take the order in Revision. On this matter the recent decision of the Supreme Court in Purshottam Bhai Punambhai Patel v. State Transport Appellate Authority, M.P.4, appears to be conclusive. There, the Supreme Court laid down: “We consider that the terms of sections 57(3) and (4) of the Act preclude any party, who had. not notified its objections in time, to be heard at any stage of the proceedings-original or appellate-in relation to the grant of permit on an application duly advertised under section 57(3).” On that view of the scope of those statutory provisions, it would follow that though under section 47 (1) the petitioner might not have been prevented from making representations, since the representations did not conform to the provisions of section 57 (4) she would not be entitled to be heard at the inquiry stage of the Regional Transport Authority or of the Appellate Authority in relation to the transfer of permit. That would answer also the second point for the petitioner, namely, that she should be regarded as a person aggrieved. It may be that in a sense she might be regarded as aggrieved by the order of the Regional Transport Authority. But that could only be as a creditor who was interested in reaching the permits of the firm in execution of the decree. But that interest did not bear upon the subject-matter of transfer itself of the permits. The interest which the petitioner could be said to possess is therefore only an indirect one, not relevant or germane to the considerations on which the transfer itself could be made or refused. But that interest did not bear upon the subject-matter of transfer itself of the permits. The interest which the petitioner could be said to possess is therefore only an indirect one, not relevant or germane to the considerations on which the transfer itself could be made or refused. On that view, the petitioner cannot be said to answer the test laid down by S. M. Transport v. Raman and Raman1. Further, this Court in W.P. No. 311 of 1962 took the view that an objector to the transfer of permit who was an existing operator was not entitled to file a revision. This was on the view that such a person, notwithstanding the fact that his representations were not accepted and the transfer was directed, could not be regarded as a person interested or aggrieved. This is what this Court pointed out: “I do not think that by reason of Rule 189, the representator will have any right beyond making representations before the prescribed authority. There is also the other aspect. Once permission is granted, as stated by the learned Advocate-General, the contract is completed. There is no statutory indication that the contract which has come into effect will still be subject to the powers of revision under section 64-A. This will be apparent if this is contrasted with the terms of section 59 itself to the effect that a transfer cannot take effect without permission of the prescribed authority. In other words, a transfer of permit is only subject to permission being granted therefor. The deeming effect of Rule 199, therefore, in my view, cannot be carried further than it is strictly necessary. That rule merely by applying the procedure under section 57 read with section 47 enables the representator to make representations why permission should not be granted for transfer. Once that representation is made, the representator has no further interest. Merely because his representation is not accepted and permission is granted, I do not think that the representator can be regarded as a person interested or aggrieved.” These observations of mine in that case seem to apply to the instant case with even better force. In that case, the person who made objections for transfer of permit was an existing operator unlike here where the petitioner was no more than a creditor of the firm and claimed to have a charge over the permits. In that case, the person who made objections for transfer of permit was an existing operator unlike here where the petitioner was no more than a creditor of the firm and claimed to have a charge over the permits. Such a person will have her remedies elsewhere and cannot be regarded as a person interested or aggrieved so as to enable her to agitate the order of the Regional Transport Authority In revision under section 64-A. On that view I think the Tribunal’s order should be sustained. But, for the petitioner it is contended that the revision petition filed by the 1st respondent under section 64(2) itself was not maintainable. This is on the ground that after the introduction of section 64-A, sub-section (2) of section 64 could not prevail or exist side by side. But I think this contention cannot carry the petitioner very far because when once it is held that the petitioner herself had no right to move the State Transport Authority under section 64-A, the order made by that Authority would be one without jurisdiction and therefore a nullity. The petition is dismissed with costs of the 1st respondent. Counsel’s fee Rs. 100. V.K. -------------- Petition dismissed.