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Allahabad High Court · body

1985 DIGILAW 508 (ALL)

Nirmala Ram Krishna v. Regional Transport Authority, Allahabad

1985-05-03

A.N.VARMA, J.N.DUBEY

body1985
JUDGMENT A.N. Varma, J. - These two petitions are being disposed of by a common judgment as they are closely inter connected. Indeed one is the offshoot of the other. 2. These are the facts. Within the jurisdiction of the Regional Transport Authority Allahabad two routes are located, namely, Beniram Katra to Saini and Beniram Katra to Bairangpur. The Regional Transport Authority Allahabad in its meeting held on 23-8-1978 fixed the strength of permits on these two routes respectively at 15 and 5 and in the same it was also decided to invite applications through Gazette Notification to fill up the vacancies. The applications received in response to the said Notification were duly published in the year 1978. The petitioners were not among these applicants. The applications so received could not, however, be disposed of for several years for a variety of reasons, one of them being that in 1981 the State Government issued a Notification under S. 43-A (1), Motor Vehicles Act, stating that there would be no limit for the publication of grant of permits. The Notification was, however, struck down by the Supreme Court by its judgment rendered on 24-2-1983. Meanwhile before these applications could be considered, the Regional Transport Authority in its meeting held on 29-8-84 increased the strength of permits on the above two routes respectively by 8 and 10. In the same meeting the Regional Transport Authority also decided to invite applications within 30 days from the date of publication in the U.P. Gazette to fill up the resultant vacancies. This Notification was sent for publication in the U.P. Gazette vide Notification dated 6-9-84. It appears that meanwhile in Regional Transport Authority fixed 10th October, 1984 for the consideration of the applications which were already invited in the year 1978. It also appears that in the agenda only these applications were mentioned for being considered at the meeting fixed for 10th October, 1984. It is undisputed that on 5-10-84 the petitioners also made applications for the grant of permits against these two routes. However, the stand taken by the Regional Transport Authority in its counter- affidavit is that these applications could not be considered against the vacancies notified in the year 1978. The applications of the petitioner could be considered only against the additional vacancies created by the Regional Transport Authority on 29-8-1984. 2A. However, the stand taken by the Regional Transport Authority in its counter- affidavit is that these applications could not be considered against the vacancies notified in the year 1978. The applications of the petitioner could be considered only against the additional vacancies created by the Regional Transport Authority on 29-8-1984. 2A. It is in this background that the petitioners filed the first petition, namely, Writ Petition No. 13625 of 1984 on 9th October. 1984 with a prayer that a direction in the nature of mandamus be issued to the Regional Transport Authority commanding it to consider the petitioners' applications also with the other applications pending since 1978. After hearing learned counsel for the petitioners as well as learned Standing Counsel this court ordered the petition to be put up the next day with a direction to the learned Standing Counsel to obtain instructions from the Regional Transport Authority, Allahabad on the various assertions made in the petition. In response to this an official representing the Regional Transport Authority was present in the court when the case was taken up at 10 A.M. on 10th October, 1984. Sri M. C. Dwivedi, learned Standing Counsel, was heard and thereafter this court passed an order in the open court restraining the Regional Transport Authority, Allahabad from granting any permanent permits until further orders. The petitioners contend that notwithstanding this peremptory and unequivocal prohibitory injunction, the Regional Transport Authority granted permanent permits to various individuals on the 10th October, 1984 itself. Aggrieved by this action the petitioners filed the second petition, namely, Writ Petition No. 13861 of 1984 assailing the validity of the grant on the ground that the same was void and ineffectual in law having been passed in violation of the injunction issued by this Court. 3. In counter-affidavit which has been filed on behalf of the Regional Transport Authority, the stand taken is that the Regional Transport Authority was not obliged to consider the applications of the petitioners as the meeting which was convened for 10th October, 1984 was fixed only for consideration of 15 and 5 vacancies on the two routes which were notified in 1978 and not for filling up the additional vacancies of 8 and 10 respectively decided upon by the Regional Transport Authority in its meeting held on 29-8-1984. The stand further is that the petitioner produced a certified copy of the above interim order passed by this Court on 10th October, 1984, at 4.15 p.m. after the Regional Transport Authority had already closed its deliberations and passed the resolution granting 12 and 4 permanent permits respectively on the two routes. In this view, it is contended in the counter-affidavit, the interim order passed by this Court had become infructuous and was of no avail to the petitioners. 4. Sri Dinesh Kumar, one of the persons to whom permanent permits were granted at the meeting of the Regional Transport Authority held on 10th October, 1984, alleges in his counter-affidavit that the meeting commenced at 10.30 A.M. on 10th October, 1984 and continued up to 1.30 P.M. up to which the petitioners had not served a copy of the interim order dated 10th October, 1984 on the Regional Transport Authority and consequently the grant of permits could not be validly assailed. He supported the stand taken by the Regional Transport Authority as regards the right of the petitioners to have their applications considered at the meeting of 10th October, 1984. 5. Having summarised the pleadings of the respective parties we proceed to deal with their submissions. 6. For the petitioners two points were urged, and these are : First, the grant of permits on 10th October, 1984 was ex facie null and void having been made in violation/disregard of the express injunction issued by this court: Second, the Regional Transport Authority committed a patent illegality in granting permits without considering the petitioners' applications on the erroneous premise that the petitioners' applications were confined to the additional vacancies created on 29-8-84 and hence the same could not be entertained while considering the applications published in the year 1978 in response to the vacancies created in 1978. 7. Having heard learned counsel for the parties, we are clearly of the opinion that both these contentions are well founded and must be accepted. 8. We will take up the first point first. As already mentioned, Writ Petition No. 13625 of 1984 was presented on 9th October, 1984. 7. Having heard learned counsel for the parties, we are clearly of the opinion that both these contentions are well founded and must be accepted. 8. We will take up the first point first. As already mentioned, Writ Petition No. 13625 of 1984 was presented on 9th October, 1984. After hearing counsel for the petitioner, the court asked Sri M. C. Dwivedi the learned Standing Counsel appearing for the respondent, to obtain necessary instructions by the next day from the Regional Transport Authority, the office of which is located in Allahabad, on whether the Regional Transport Authority proposed to consider only those applications in its meeting of the 10th October, 1984 which were published in the year 1978. On 10th October, 1984, the petition was taken up in the beginning of the day as a part heard matter at 10 A.M. Sri M. C. Dwivedi on the basis of the instructions received by him through one Sri Mehrotra an official representing the Regional Transport Authority stated before the court that the Regional Transport Authority shall consider only those applications which were published in the year 1978 at its meeting fixed for 10th October, 1984. Thereupon the court issued an interim injunction at 10 A.M. in the presence of the learned counsel for the parties as well as Sri Mehrotra who had come to instruct Sri M. C. Dwivedi restraining the Regional Transport Authority from granting any permanent permits in respect of the two routes in question till further orders. The assertion of the petitioners in her rejoinder affidavit is that this order was noted by Sri M. C. Dwivedi on the very file which Sri Mehrotra had brought from the Regional Transport Authority for being shown to Sri Dwivedi at 10.20 A.M. It is further asserted that Sri Mehrotra returned to Sri M. C. Dwivedi from the Regional Transport Authority's office at 12 P.M. with the request that the written communication sent by him through Sri Mehrotra conveying the interim orders passed by this Court be taken back by him as the official was being accused of adopting a partisan attitude. Sri M. C. Dwivedi in the course of arguments in these two petitions very fairly conceded that he had noted down the interim orders passed by this Court on the file which had been brought to him by Sri Mehrotra immediately on the passing of the injunction order by this court and that Sri Mehrotra had returned to the Regional Transport Authority's Office with his note. 9. A very vital part of the case set up by the petitioners as regards the communication of the interim order to the Regional Transport Authority thus stands admitted to the respondent through the statement made by Sri M. C. Dwivedi at the Bar. It may, therefore, be taken as established beyond doubt that the injunction order issued by this court on 10th October, 1984 at 1.10 A.M. had been duly communicated to the official, who had specifically come for this case with instruction from the Regional Transport Authority and by 10.20 A.M. he had returned with the above note of the learned Standing Counsel to the Regional Transport Authority's office. The office of the Regional Transport Authority is at a stone's throw from the High Court building and it is not asserted in the counter-affidavit that Sri Mehrotra had not immediately returned to the office of the Regional Transport Authority with the file of the case with the note of Sri M.C. Dwivedi written thereon. 10. In the absence of any evidence to the contrary, therefore, it may be safely presumed that Sri Mehrotra had returned to the Regional Transport Authority's office immediately and contacted the Regional Transport Authority. Further, it cannot be denied that the Regional Transport Authority knew that the writ petition which was presented on 9th October, 1984 would be taken up by the High Court in the early part of the day on 10th October, 1984. Indeed, Sri Mehrotra had been specifically sent to attend to this case on the 10th October in the Court. He was present with the record of the case. In this background the Regional Transport Authority would naturally be keen, to know about the orders passed by the High Court on 10th October, 1984 before the conclusion of the proceedings. if not, the commencement thereof. 11. He was present with the record of the case. In this background the Regional Transport Authority would naturally be keen, to know about the orders passed by the High Court on 10th October, 1984 before the conclusion of the proceedings. if not, the commencement thereof. 11. In these circumstances, we have not the slightest hesitation in accepting the petitioners' version that the injunction issued by this Court had become known to the Regional Transport Authority immediately on its being passed by this Court and certainly before the conclusion of the resolution. Even if, therefore, the interim order was formally served on the Regional Transport Authority at 4.1 5 P.M., that would not materially affect the challenge to the validity of the proceedings as the Regional Transport Authority had, in our judgment, come to know of the interim injunction issued by this Court before passing of the resolution. 12. Further according to Sri Dinesh Kumar, the private respondent, the meeting of the Regional Transport Authority had lasted till 1.30 P.M. whereas the case of the petitioners is that on coming to know that despite the injunction order issued by this Court, the Regional Transport Authority was going ahead with the meeting, he had rushed to the Regional Transport office at 12.30 P.M. and moved an application mentioning about the order passed by the High Court but the Asstt. Regional Transport Authority, Allahabad who was sitting in the office declined to accept the application of the petitioner on the plea that the Regional Transport Authority was busy with the meeting which had commenced after 11.30 A.M. A similar attempt was again made by the petitioners at 3.00 P.M., but the secretary of the Regional Transport Authority gave no heed to the petitioners' applications. It is also asserted that despite the injunction order the results of the deliberations of the Regional Transport Authority were announced at 7 P.M. Considering the normal course of conduct, it would be most natural that a party in whose favour an interim order of this nature was passed would immediately rush to the concerned authority and communicate to it the same without losing any time. As, however, in the present case the interim order was passed in the presence of the representative of the Regional Transport Authority, it is quite possible that the party went to the Regional Transport Authority's office only at 12.30 P.M. and not earlier on coming to know that it was going ahead with the meeting despite the injunction order. We have, therefore, no hesitation in holding that the impugned order dated 10th October, 1984 granting permits was passed by the RTA after it had come to know about the prohibitory orders issued by this court and consequently the same must be held to be a complete nullity, quite apart from the fact that the person committing the breach may have rendered himself liable to an action in contempt. That an order passed in violation or disregard of an injunction issued by a Court is totally ineffectual in law, is a proposition which is far too well settled to require any elaboration. In Satyendra Pal v. R.T.A., Agra reported in 1982 All LJ 310, a Division Bench of this Court held that proceedings taken by an authority in flagrant disregard of an order of a court are a nullity and the court should have no compunction in putting the hand of the clock back and restoring the status quo ante. It was ruled that where an order of a court is disobeyed, a writ must be issued to redress the injury suffered by a person on account of the disobedience of such order. 13. The second contention raised is equally well grounded. The first reason stated on behalf of the Regional Transport Authority for not considering the petitioners' applications mentioned in para 11 of the counter-affidavit of Sri R. N. Kapoor is that the petitioners' applications were against the vacancies created by the Regional Transport Authority on 29-8- 84 and not against the vacancies declared on 23-8-84. 14. This view is manifestly unsustainable being directly opposed to the consistent view of this Court which is that the applications for permits on any given route are not against any particular vacancy or vacancies. Within the limit determined under S. 47(3). Motor Vehicles Act, and the number of vacancies existing at any given point of time, all applications have to be considered together and their rival claims compared. Within the limit determined under S. 47(3). Motor Vehicles Act, and the number of vacancies existing at any given point of time, all applications have to be considered together and their rival claims compared. The applications are thereafter disposed of keeping in view the considerations relevant to the grant of permits. In Special Appeal No. 682 of 1970 connected with Special Appeals Nos. 619,672 and 709 of 1970 a Division Bench of this Court by means of a judgment dated 13-7-1973 (reported in ILR (1973) 2 All 392) held : "The law, therefore, does not contemplate the creation of vacancies or filling up of these vacancies by specific applications for a particular vacancy. At every moment of time when applications are to be considered for grant of permit the Authority has to take into consideration the existing vacancies. It is immaterial when the application had been made. A similar view was taken by this Court in the case of Sri Mahabir Prasad Srivastava v. State Transport Appellate Tribunal, U.P. in Special Appeal No. 639 of 1968. We are, therefore, in agreement with the learned single Judge that the Regional Transport Authority could not grant permit to Hafiz Jan Mohammad Arif without considering all the applications that were pending consideration on the relevant date." This decision came up for consideration before another Bench of this Court (of which one of us was a member) in the case of Nihal Chand v. State Transport Appellate Tribunal, Writ Petn. No. 2396 of 1973, judgment dated 2-2-79 and the Division Bench agreed in toto with the dictum laid down in Special Appeal No. 682 of 1970. 15. The first ground on which the Regional Transport Authority has declined to entertain the petitioners' applications is thus ex facie unsustainable in law and must be rejected. 16. The second ground mentioned by the Regional Transport Authority in the aforesaid counter-affidavit that the petitioners' applications were premature is equally unsustainable. The ground stated is that the decision to increase the strength had not been published in the Gazette nor had the applications been invited under S. 57(2) by the time the petitioners had moved the applications on 5-10-1984 and consequently the petitioners' applications were incompetent. An order passed under S. 47(3) of the aforesaid Act fixing a limit of the number of stage carriage permits to be granted is not required by the statute to be published. An order passed under S. 47(3) of the aforesaid Act fixing a limit of the number of stage carriage permits to be granted is not required by the statute to be published. A resolution passed by the Regional Transport Authority under S. 47(3) operates by its own force and does not depend for its efficacy on notification in the Gazette. 17. Section 57(1) lays down that an application for a contract carriage permit may be made at any time. Section 57(2), however, merely prescribes a period of limitation for making applications. It does not prohibit making of an application even prior to the period fixed by the Regional Transport Authority within which the applications must be made. The period of six weeks mentioned in sub-para (2) of S. 57 merely lays down the minimum period and it does not prescribe the maximum period. See Sashi Kant Rai v. R.T.A., AIR 1968 All 299. We, therefore, hold that the applications of the petitioners could not be ignored merely on the ground that the same had been filed even prior to the expiry of the date fixed by the Regional Transport Officer within which the applications were to be filed. Under S. 57(1) the applications could be filed at any time and as the applications were not filed after the expiry of the period fixed under S, 57(2) the same could not be ignored as being premature. 18. Sri B. D. Mandhyan, learned counsel for the private respondent, however, sought to support the stand taken by the Regional Transport Authority by another argument. His submission was that on 10th October, 1984 only those applications could be taken into consideration which had been published in the Gazette under S. 57(3) and were, therefore, ripe for hearing on that date. In support learned counsel placed strong reliance on a decision of Rajasthan High Court reported in AIR 1970 Raj 200 . 19. We, however, consider it unnecessary to pronounce on the validity of this argument as the question whether the petitioners' applications could be considered at the meeting of 10th October, 1984 has become one of academic importance as the proceedings of the meeting held on 10th October, 1984 are being quashed on the first ground which has found favour with us. That being so, the Regional Transport Authority will, of necessity, have to fix another date for the consideration of the applications. That being so, the Regional Transport Authority will, of necessity, have to fix another date for the consideration of the applications. In the counter-affidavit of Sri R. N. Kapoor it has been stated that in its meeting held on 29-8-84 the Regional Transport Authority had decided also to invite applications within 30 days from the date of the publication in the Gazette and this notification had been sent for publication in the U.P. Gazette vide notification dated 6-9-1984. In response to this notification, therefore, applications must have already been received and as there was no order of stay the Regional Transport Authority must have also published the same under S. 57(3) and, if not, the Regional Transport Authority can publish the same without any further delay. The Regional Transport authority having waited all these years since 1978 it is desirable that all the applications be considered together now. 20. The duty to publish the applications validly received lies entirely on the RTA and it is primarily for the Regional Transport Authority to make these applications ripe for hearing. If the Regional Transport Authority has not performed that duty he will do it now without the loss of any further time so that all the applications for both the sets of vacancies may be considered and disposed of together keeping in view the dictum laid down by this Court in the decisions cited above. 21. As the Regional Transport Authority shall have to fix a fresh date for the consideration of the applications, he can now include in the agenda all the applications, both published in 1978 and those published now without any difficulty. 22. In view of what has been stated above it is not necessary to consider the merit of Sri Mandhyan's contention that the petitioners' applications could not be considered on the 10th October, 1984 as they were not ripe for disposal on that date. 23. In the result the petitions succeed and are allowed. The impugned order passed by the Regional Transport Authority, Allahabad (respondent 1) on 10th October, 1984 granting permits in respect of the routes in question is quashed. The respondent shall now dispose of the petitioners' applications in accordance with law having regard to the observations made in this judgment. The petitioners shall be entitled to their costs in each of the two petitions from the Regional Transport Authority. Allahabad, respondent 1.