Bigau Ram v. State of Bihar — 1993 DIGILAW 434 (PAT)

JUDGMENT S.B. Sinha, J. All these three writ applications with the consent of the parties were taken up together for hearing and are being disposed of by this common judgment. 2. CWJC Nos. 2074 of 1990(R) and 29/91 (R) have been filed by Ashok Kumar Singh and Bigauram respectively, who were granted permits under the provisions of the Motor Vehicles Act. On 28.12.89, an order was passed directing grant of permanent permit to the petitioners of the aforementioned writ application on production of a registration certificate as also fitness certificate in relation to the buses which were to ply on the routes for which the said permits had been directed to be granted. However, before any permit could be issued in favour of the petitioners, an application was filed before the Chairman, State Transport Authority on an allegation that as chassis was delivered to the petitioner on 25.12.1989, it was impossible to manufacture the body within twenty-two days and thus a fraud appears to have been committed upon the State Transport Authority. Upon the said application, the Chairman stayed issue of permit to the petitioner. However, it was found that the chassis was available to the petitioner on 5.12.1989. But he came to the conclusion that the buses were not ready for the purpose of plying on the road. On 28.12.1989, he directed that the matter be placed for review by the State Transport Authority. According to the petitioner, the Chairman of the State Transport Authority in passing the said order ignored the statutory certificates granted by competent authorities after due inspection of his vehicle. It is further the contention of the petitioner that the Chairman of the Authority purported to have used his personal knowledge. It was further submitted that no prior notice was issued to the petitioner before arriving at the said conclusion. 3. The said order of the Chairman, State Transport Authority is contained in Annexure-2 to C.W.J.C. No. 2074 of 1990(R). The said writ application was filed on 15.10.1990 and CWJC No. 29 of 1991 (R) was filed on 4.1,1991. By order dated 10.12.1990 passed in CWJC No. 2074/90 (R), a Division Bench of this Court directed as follows :- "Since the resolution of respondent no. 3 dated 28.12.1989 subsists, we find no reason why respondent no. 3 shall not issue permit in terms of its resolution as contained in Annexure-1. By order dated 10.12.1990 passed in CWJC No. 2074/90 (R), a Division Bench of this Court directed as follows :- "Since the resolution of respondent no. 3 dated 28.12.1989 subsists, we find no reason why respondent no. 3 shall not issue permit in terms of its resolution as contained in Annexure-1. Respondent No. 3 shall issue permit to the petitioner within one week from the date of receipt of a copy of this order." 4. According to the petitioners, despite the same the State Transport Authority reviewed its earlier order as contained in Annexure-1 to the writ application. By reasons of the impugned order as contained in Annexure-10 to the supplementary affidavit whereby order granting permit to the petitioner was cancelled, the provisional permit till decision of the writ application was directed to be issued. According to the petitioners, before the State Transport Authority, they have filed further documents namely the certificate of the body builders, receipt of advance paid to the builders in anticipation of receipt of chassis. The petitioner further requested for examination of the authorities who had issued the certificates upon inspection of the vehicles by filing an application as contained in Annexure-17, but the State Transport Authority, did not allow the petitioner to lead any evidence, and passed the impugned order as contained in Annexure-10 to this application. 5. It has been brought to the notice of this court that an appeal against the order dated 28.12.89 has been filed by Md. Yasin, who is the petitioner in CWJC No. 939/91. Petitioner Bigauram has further contended that as no permit had been issued pursuant to the order passed by the State Transport Authority, the question of cancellation thereof does not arise. It has been submitted that grant of temporary permit cannot be a bar for grant of permanent permit and, in fact, respondents of the said writ application have been granted permit after the expiry of earlier permits although vehicle of respondent no. 4 was also covered by a temporary permit. 6. CWJC No. 939/91 has been filed by Mr. Yasin against the aforesaid order dated 28.12.91 (Annexure-1) whereby as noticed hereinbefore, permanent permit was directed to be issued in favour of the petitioners of other two cases who had been arrayed as respondent nos. 3 and 4 in the said writ applications. 4 was also covered by a temporary permit. 6. CWJC No. 939/91 has been filed by Mr. Yasin against the aforesaid order dated 28.12.91 (Annexure-1) whereby as noticed hereinbefore, permanent permit was directed to be issued in favour of the petitioners of other two cases who had been arrayed as respondent nos. 3 and 4 in the said writ applications. It has further been brought to the notice of this court that during the pendency of these writ applications, the State Transport Authority has modified the said order (annexure-1) by order dated 28.12.90 and granted to the respondent no. 5 a permit, the legality and validity whereof has also been questioned in this writ application. According to the petitioners, no reasons have been assigned for rejecting he application of the petitioner and for directing grant of permanent permit in our of respondent nos. 4 and 5 without complying with the mandatory requirements of second proviso to sub-section (2) of section 80 of the Motor Vehicles Act. 7. In relation to the order dated 28.12.89, it has been submitted that the authority had proceeded to grant permanent permit without assigning any reason and without considering the merits of the respective claimants. The petitioners have contended that the order dated 28.12.89 (annexure-1) is also violative of the second proviso appended to sub-section (2) of section 80 of the M.V. Act. It has further been contended that the State Transport Authority committed an illegality in granting the said permits to the respondent no. 4 who was placed at sl. no. 6 on the ground that he was a Harijan inasmuch as according to the petitioner, no preference can be granted in the matter of grant of inter-State permit in view of clauses (a), (b), (c) and (d) of section 71 (3) of the Motor Vehicles Act. According to the learned counsel the provisions laid down therein provide that reservation can be made by the State with respect to city routes in towns with a population of not less than 5 lakhs and in view of the fact that the route in question is an inter-State route, no permit could be granted in favour of respondent no. 4 on the ground that he was a Harijan. 4 on the ground that he was a Harijan. It was further submitted that in any event, such a policy of reservation could have been brought into effect only by publication of a notification in the official gazette limiting the number of permits wl1ich has not been done in the instant case. 8. It was further submitted that although the State Transport Authority was required to grant one permit for two trips, to one person only, but by reason of the impugned order as contained in Annexure-1 the trips nave been split up into two contrary to the agreements and on that ground also, the grant of permit was illegal. The petitioner however admitted that he preferred an appeal against the grant of permit in favour of Ashok Kr. Singh and Bigauram, but at the time of filing of the writ application, there was no Presiding Officer in the State Transport Appellate Tribunal. It has been further pointed out that although the State Transport Tribunal has started functioning, in the meantime, another permit has been granted in favour of respondent no. 5 in relation whereof no appeal has been preferred and thus the question of remitting the entire matter to the appellate authority at this stage does not arise. 9. Mr. Keshav, learned counsel appearing on behalf of the petitioner in CWJC No. 2074 of 1990(R) inter alia submitted that the impugned order as contained in Annexures 2 and 10 to the writ applications are wholly illegal and without jurisdiction as the State Transport Authority has no power to review an order passed under the Motor Vehicles Act. Learned counsel in support of this application relied upon the case of Ramnath Prasad vs. S.T.A. Authority, A.I.R. 1957 Patna 117; Rameshwar vs. State of Bihar, AIR. 1960 Patna 60. 10. The learned counsel next contended that the question of cancellation of any permit arises only in the event the same is issued and the conditions precedent as laid down in section 86 of the M.V. Act are fulfilled. According to the learned counsel, the purported exercise of powers u/s. 86 of the M.V. Act in the facts and circumstances of the case, must be held to be illegal and without jurisdiction. 11. According to the learned counsel, the purported exercise of powers u/s. 86 of the M.V. Act in the facts and circumstances of the case, must be held to be illegal and without jurisdiction. 11. Learned counsel further submitted that although the order dated 28.12.1989 as contained in Annexure-1 to the writ application contemplated cancellation of a permit, the said order could not have been reviewed before issuance of the permit itself. It was further submitted that in any event the power to cancel permit is contained in the provisions of sub-section (4) of Section 86 of the said Act and thus the said power could not have been exercised by the Chairman of the State Transport Authority and, thus, it must be held that the State Transport Authority had failed to exercise its statutory powers vested in it under the Act. It was further submitted that the State Transport Authority has committed an illegality in so far as it failed to give an opportunity to the petitioners of adducing evidence and also failed to raise a presumption of correctness of the certificates granted in favour of the petitioners by the statutory authority. 12. Section 86 of the Act provides for cancellation of a permit in the event the factors enumerated therein are satisfied. Permit, however, is granted by the authority in exercise of his powers conferred upon him under section 80 of the Motor Vehicles Act. Grant of a permit is merely an administrative act, which has to be performed pursuant to an order passed by the competent authority in terms of section 80 of the said Act. However, cancellation of a permit on the ground of a fraud stands on a different footing. This aspect of the matter has been considered by a Bench (Jaipur Bench) of the Rajasthan High Court in Mangilal vs. Appellate Tribunal reported in the A.I.R. 1957 Rajasthan 167 wherein it has been held as follows :- "8. Fraud is committed whenever one man causes another to act on a false belief by a representation which he does not himself believe to be true. It is apparent from what has been discussed above that the petitioner caused respondent no. 2 to grant a permit to him acting on the false belief that he was granting the permit for a vehicle of the year of 1950. This belief in respondent no. It is apparent from what has been discussed above that the petitioner caused respondent no. 2 to grant a permit to him acting on the false belief that he was granting the permit for a vehicle of the year of 1950. This belief in respondent no. 2 was the direct result of the representation made by the petitioner which he knew was not true." It was further held as follows :- "10. Then it is argued that if any fraud was played by the petitioner, it was played upon the Registering Authority, Jaipur and not on respondent no. 2. In our opinion, it is altogether a futile argument. By playing fraud on the Registering Authority, Jaipur, the petitioner obtained a certificate to which he was not entitled, and respondent no. 2 relied on the certificate thus obtained and acted on it. The purpose of the petitioner in obtaining the certificate was to play fraud on respondent no. 2 and to secure for himself an advantage which he had been refused earlier. It is further argued that in any case no fraud was played on respondent no. 1 upto the date of granting the permit that is the 4th September, 1953. Section 60 runs as follows :- "The Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit – (d) If the holder of the permit has obtained the permit by fraud or misrepresentation." The point raised by the learned counsel is negatived on the plain reading of S. 60 (1) (d). This section does not require that the fraud must be on the authority granting the permit. A fraud may have been played on anybody in obtaining the permit. It might be that the fraud may be on the agent of respondent no. 1 or in its office or on its subordinate. As long as the petitioner obtained the permit by playing a fraud he cannot be permitted to argue that he did not do so directly on the authority cancelling the permit." 13. In the situation, it cannot be said that the concerned respondent no. 1 committed any illegality in passing the impugned order. Further, as noticed, the entire matter is pending consideration before the appellate authority. In the situation, it cannot be said that the concerned respondent no. 1 committed any illegality in passing the impugned order. Further, as noticed, the entire matter is pending consideration before the appellate authority. The petitioners of all the writ applications hereinabove would, therefore, be able to raise all their contentions before the said appellate authority. However, Mr. Sahay, learned counsel, has rightly drawn our attention to the fact that no appeal has been preferred in respect of grant of permit in favour of respondent no. 5 of CWJC No. 939 of 1991 (R). In the peculiar situation, we direct the State Transport Appellate Tribunal to entertain an appeal, if preferred by the writ petitioner, after condoning the delay in view of the fact that the matter was pending in this Court for a long time, so as to enable it to consider the entire materials and to pass an appropriate order. 14. This order is being passed keeping in view the fact that the appellate authority would be entitled to consider all the contentions raised on behalf of the parties and would also be able to scrutinise all the records of the State Transport Authority. It goes without saying that the appellate authority would be in a better position to determine the disputed questions of fact as to whether the petitioners of CWJC No. 2074 of 1990(R) and CWJC No. 29 of 1991 (R) were, in fact, guilty of commission of fraud on the State Transport Authority or not, and whether the State Transport Authority had taken into consideration all the aspects of the matter in passing the impugned orders. There cannot be any doubt that the statutory authority has no power to review an order, unless the same is conferred upon it expressly or by necessary implication. However, each statutory tribunal has power of procedural review. Further, in this case, no permit was granted and thus in view of the submissions made by the learned counsel for the petitioners themselves, no proceeding under section 86 of the Act could have been initiated. In this situation, in my opinion, the authority could have exercised its jurisdiction to recall the order granting permit, if it came to the conclusion that the order for grant of permit was obtained by fraud upon court and suppression of the material facts. 15. In this situation, in my opinion, the authority could have exercised its jurisdiction to recall the order granting permit, if it came to the conclusion that the order for grant of permit was obtained by fraud upon court and suppression of the material facts. 15. For the aforementioned reasons, these applications are disposed with the aforesaid directions/observations. Narayan Roy J. - I agree.