Rajasthan State Road Transport Corporation v. State Transport Appellate Tribunal
1998-10-27
B.S.CHAUHAN
body1998
DigiLaw.ai
Honble CHAUHAN, J.–The instant petitions have been filed by the Rajasthan State Road Transport Corporation (hereinafter called ``the Corporation) being aggrieved by the judgment and orders of the State Transport Appellate Tribunal (hereinafter called ``the Tribunal) dated 6.12.97 and 17.1.98 passed in the revision petition and appeals filed by the contesting respondents herein against the resolution passed by the Regional Transport Authority (hereinafter called ``the R.T.A.), by which the Corporation was permitted to lift the permit within the extended period of thirty days vide order dated 22.1.96 and rejection of the applications for grant of permits in favour of respondents, namely, Mr. Pawan Kumar and Mr. Rishi Kumar vide order dated 27.5.96 on Rajgarh-Hissar via Jhumpa inter-State route. (2). The facts and circumstances giving rise to this case are that the Corporation had been granted permanent stage carriage permits on the said route in 1982 and it plied its vehicle upto 1995 as the permits has been renewed from time to time under the provisions of the Motor Vehicles Act, 1939 (hereinafter called ``the Old Act). The issue of renewal of permits granted under the provisions of the Old Act, which has been repelled by the Motor Vehicles Act, 1988 (hereinafter called ``the Act) came for consideration in various cases before the Honble Supreme Court. In M/s. Gurucharan Singh Baldeosingh and others vs. Yashwant Singh and other (1), the Court considered the provisions of Section 217 of the Act and held that the permit granted under the Old Act can be renewed under the provisions of the Act. However, in Secretary, Quilon Distt. Motor Transport Workers Co-operative Society Limited vs. Regional Transport Authority and others (2), the Apex Court took a contrary view and held that the permits granted under the Old Act would survive till their life expires. However, they are not renewable under the provisions of the Act though such a permit holder can apply for fresh grant of permit. The controversy has been resolved by a Larger Bench of the Supreme Court in Gajraj Singh vs. State Transport Appellate Tribunal and others (3) up-holding the law laid down by the Supreme Court in Secretary, Quilon Distt. Motor Transport Workers Co-operative Society Ltd.(supra). The same view has been taken subsequently by the Supreme Court in Prakash Chand Sahu vs. S.T.A and others (4).
Motor Transport Workers Co-operative Society Ltd.(supra). The same view has been taken subsequently by the Supreme Court in Prakash Chand Sahu vs. S.T.A and others (4). (3).In the back-drop of this controversy, the petitioner Corporation, whose permits granted under the Old Act had been renewed under the provisions of the Act and the same were valid upto 3.10.97 and 12.7.99, applied for fresh grant of permits and R.T.A granted the permits vide its Resolution dated 21.8.95. However, conditions were imposed to the effect that the petitioner Corporation would lift the permit within the period of sixty days from the date of said Resolution otherwise the grant would automatically lapse and as the permits were granted on inter- State route, the Corporation would get those counter-signed by the State Transport Authority, Haryana within a period of six months. Petitioner Corporation filed an application on 22.12.1995 stating that it was not aware of the grant in its favour as the said resolution had not been communicated to it and the permit could not be lifted, thus,the period may be extended by thirty days and the Corporation may be allowed to lift the permit within the said extended period. (4). The R.T.A. vide order dated 22.1.96, allowed the application and extended the period for thirty days for lifting the permit. Shri Veer Singh, an existing operator on the route in question,filed revision petitions before the Tribunal, bearing No. 94/1996 and 95/1996, against the order dated 22.1.96. Shri Pawan Kumar, also, filed a revision petition No.99/1996 challenging the said order. Shri Pawan Kumar and Rishi Kumar also preferred the appeals No.309/1996 and 316/1996 against the order passed by the R.T.A. rejecting their applications for the grant of permit on the route in question. The Tribunal decided the said revision petitions vide judgment and order dated 6.12.97 and quashed the order of extension dated 22.1.96 granting extension of the period of thirty days,however, rejected the revision No. 99/1996 being not maintainable at the behest of an prosperative operator who cannot be an ``aggrieved person and restrained the Corporation to ply its vehicles on the said route. However, vide order dated 17.1.98, the Tribunal allowed the appeals filed by Sri Pawan Kumar and Sri Rishi Kumar and granted permits in their favour as the vacancy arose on the said route because the permits in favour of the Corporation had been cancelled.
However, vide order dated 17.1.98, the Tribunal allowed the appeals filed by Sri Pawan Kumar and Sri Rishi Kumar and granted permits in their favour as the vacancy arose on the said route because the permits in favour of the Corporation had been cancelled. Hence the Corporation has filed these four writ petitions. In all these cases the respondents filed applications under Clause (3) of Article 226 of the Constitution to vacate the ex-parte ad-interim orders passed by this Court earlier. When the said applications came for hearing, the matters were heard finally by the consent of the counsel for the parties. As similar legal issues are involved in all these cases, the same are being disposed of by a common judgment. (5). Heard Mr. Sangeet Lodha, learned counsel for the petitioner-Corporation, Mr.B.L. Maheshwari, Mr.M.S. Vyas, Mr.Bharat Vyas and Mr.S.P. Arora, learned counsel for the contesting respondents and Mr. R.P. Dave, learned counsel for the R.T.A. (6). Mr. Sangeet Lodha has urged that the Resolution dated 21.8.95, by which the petitioner was granted permit on the said route imposing the condition to lift the permit within sixty days from the said date, was not communicated and when it came to the knowledge of the petitioner, it immediately filed the application on 22.12.95 for extension of time and vide order dated 22.1.96, time was extended for a period of thirty days. As the Resolution granting permit in favour of the petitioner Corporation had neither been communicated nor was it within the knowledge of the petitioner, the period of limitation for lifting the permit within sixty days would run from the date of knowledge and as the petitioner had lifted the permit within the period of two months from the date of knowledge, the order dated 22.1.96 is not illegal and the Tribunal committed an error in quashing the said order. (7). Rule 5.9 of the Rajasthan Motor Vehicles Rules, 1990 (hereinafter called ``the Rules) provides that Secretary/Executive Officer of the S.T.A./R.T.A. shall intimate the applicant, within seven days from the date of the order of the S.T.A/R.T.A., regarding grant or rejection of the application for the grant of permit. Mr. Lodha has submitted that unless the requirement of intimation is made, the Resolution granting permit cannot be said to be effective. On the other hand, it has been submitted by Mr. Maheshwari and Mr.
Mr. Lodha has submitted that unless the requirement of intimation is made, the Resolution granting permit cannot be said to be effective. On the other hand, it has been submitted by Mr. Maheshwari and Mr. Vyas that the Resolution dated 21.8.95 mandatorily provided that the permit would be lifted by the Corporation within sixty days, failing which the sanction would come to an end automatically. The R.T.A. had no power/jurisdiction/competence to grant further extension vide order dated 22.1.96 to lift the permit as after passing the Resolution on 21.8.95 the R.T.A. had become functus officio and there was no power vested in it to review the said resolution varying the conditions of permit and if by any means the petitioner Corporation was aggrieved by the said condition of lifting the permit within sixty days, it ought to have filed an appeal before the Tribunal under the provisions of Section 89 of the Act as the provisions of Clause (a) to Sub-section (1) of Section 89 provides for the provision of appeal by any person who is aggrieved by the refusal of grant of permit by the R.T.A./S.T.A. or by any condition attached to a permit granted to him. The order dated 21.1.96, granting extension to the Corporation to lift the permit, was nullity being without jurisdiction and,thus, the impugned judgment and orders passed by the Tribunal do not warrant any interference by this Court. In support of their submissions, learned counsel for the parties have referred to and relied-upon a large number of judgments of the Honble Supreme Court and this Court. (8). In Patel Narshi Thakershi and others vs. Pradyuman Singhji Arjun Singhji (5), the Apex Court has held that the power to review is not an inherent power and it must be conferred by law either specifically or by necessary implication. In State of Assam vs. J.N. Roy Biswas (6), the Supreme Court observed that ``the basis of the rule of law cannot be breached without legal provision and the Authority ``cannot re-start the exercise in the absence of specific power to review vested by rule in it. Similarly, in Dr.
In State of Assam vs. J.N. Roy Biswas (6), the Supreme Court observed that ``the basis of the rule of law cannot be breached without legal provision and the Authority ``cannot re-start the exercise in the absence of specific power to review vested by rule in it. Similarly, in Dr. (Smt.) Kuntesh Gupta vs. Management of Hindu Kanya Mahavidhyalaya, Sitapur (7), the Apex Court has observed that a review application cannot be entertained unless the power of review is expressly conferred on the authority by the statute under which it derives its jurisdiction and in case the Authority reviews its order, it would be a nullity being without jurisdiction. The same view has been taken by the Allahabad High Court in Krishna Ashram Educational Trust vs. District Judge, Allahabad (8). (9). A Division Bench of this Court, in Jagan Nath Singh vs. R.T.A. & Ors. (9), has held that the R.T.A. has a power to pass a pre-emptory order. However, it lacks the competence to vary the conditions changing the pre-emptory order further. The Court categorically held that once the permit granted by the R.A.T.A. stands revoked on account of the pre-emptory order passed by it at the time of granting the permit, the Authority had no jurisdiction to set-aside that order an extend the time further. Similarly, in Smt.Shakuntala Devi vs. The Transport Appellate Tribunal, Jaipur (10), the Court has held that if a condition is imposed by the R.T.A./S.T.A. while granting the permit and the condition is burden-some, the grantee may challenge the condition by filing an appeal. The Court observed as under:- ``We are of the view that if the time granted is such that it imposes an onerous burden on the person to whom such permit has been granted, it would amount to a refusal to grant the permit and an appeal would lie against it under Section 64 (a). If a person to whom a permit is granted, considers that the term thereby imposed is onerous,it can file an appeal under Section 64 (a) against the terms and if the Transport Appellate Tribunal thinks otherwise then it shall reject the appeal. If, however, the Tribunal agrees that the term is onerous then it will allow the appeal and pass appropriate order extending the time............
If, however, the Tribunal agrees that the term is onerous then it will allow the appeal and pass appropriate order extending the time............ However, the R.T.A. becomes functus-officio after passing the resolution granting or refusing the permit and if a condition is imposed to lift the permit within a particular period and it is not lifted by the grantee, it has no jurisdiction to extend the said period and the order extending the period would be nullity for want of jurisdiction. (10). While deciding the Writ Petition No. 480/1996, Sheo Onkar and another vs. R.T.A., Bikaner and others, vide judgment and order dated 6.12.96, this Court has taken the view that if the pre-emptory condition imposed wile granting the permit is not being complied with by the grantee, the permit would be treated to have been automatically cancelled and if the grantee was aggrieved with any onerous condition imposed on him, the grantee could get his grievances redressed before the Tribunal by filing an appeal. The submission made by the learned counsel for the contesting respondents is that all these cases fall squarely within the ambit of the judgments referred to above and the writ petitions be rejected. (11). No doubt, the legal position is well settled that the power to review or vary the condition does not lie with the R.T.A. However, the issue involved herein is not regarding the competence of the R.T.A. for varying the condition. The issue which requires determination by this Court is the effect of the Resolution passed by the R.T.A. which has not been communicated/intimated to the petitioner Corporation. Admittedly, Resolution was not communicated to the petitioner Corporation. There is no finding recorded by the Tribunal that it was within the knowledge of the Corporation that the permit had been granted to it vide Resolution dated 21.8.95. Even if the petitioner was aggrieved by the onerous conditions imposed while granting permits and undoubtedly it has a lucus to prefer an appeal under the provisions of Section 89 of the Act, the communication or constructive knowledge of the order was necessary for preferring an appeal. Under the provisions of Section 89, an appeal can be filed within the limitation provided therein. In the cases like the instant, where order has not been intimated/communicated to the grantee/petitioner Corporation, the issue of raising the matter in appeal did not arise.
Under the provisions of Section 89, an appeal can be filed within the limitation provided therein. In the cases like the instant, where order has not been intimated/communicated to the grantee/petitioner Corporation, the issue of raising the matter in appeal did not arise. In a case where limitation for filing a suit, appeal or revision is provided under the statute, the limitation starts from the date of actual knowledge and not from the date of the order. (12). A Constitution Bench of the Supreme Court in Raja Harishchandra Rajsingh vs. Deputy Land Acquisition Officer (11), observed that making an Award under the provisions of Sec. 11 of the Land Acquisition Act does not consist merely in the physical act of the writing the award or signing it or even filing it in the Office of the Collector. It must involve the communication of the said award to the party concern either actually or constructively. The Court observed as under:- ``The knowledge of the party affected by the award either actually or constructively, being an essential requirement of fair-play and natural justice, the expression `the date of the award used in the proviso, must mean the date when the award is either communicated to the party or is known by him either actually or constructively. (13). The Court further observed that interpreting the provision in any other way would amount to interpreting it in a most mechanical way and would not serve the cause of justice. Same view has been reiterated by the Honbel Apex Court in State of Punjab vs. Mst. Quisar Jahan Begam (12); Bidya Deb Barma vs. District Magistrate, Tripura (13); Madan Lal vs. State of U.P. (14); and Collector of Central Excise, Madras vs. M/s. M.M. Rubber & Co., Tamilnadu (15). In Trustees of Port of Bombay vs. Premier Automobiles (16), the Honble Supreme Court examined the question regarding the starting point of limitation under Section 87 of the Bombay Port Trust Act, 1879 and held that the limitation for filing a suit under the said provision would start from the date of knowledge of arrival of the consignment. Similarly, in Dara Singh vs. State through the Director of Enforcement and another (17), the Apex Court observed as under:- ``It is equally so even in the case of an order, the non- compliance of which would lead to prosecution and consequently imposition of penalty.
Similarly, in Dara Singh vs. State through the Director of Enforcement and another (17), the Apex Court observed as under:- ``It is equally so even in the case of an order, the non- compliance of which would lead to prosecution and consequently imposition of penalty. When the law lays down that the non- compliance with an order would expose the person,against whom it is made, to criminal liability, it is reasonable to hold that in the absence of his knowledge of the order, no penal action can be taken against him for the non-compliance with it. The information or knowledge that he may gather about such order in the course of criminal proceedings instituted for non-compliance with it, cannot be a substitute for the knowledge of the order as mentioned above, which should ordinarily precede the institution of such proceedings. (14). A Constitution Bench of the Supreme Court in Bachindar Singh vs. State of Punjab (18), held that the order becomes effective only after its communication. The similar view has been taken by the Apex Court in Bunna Prasad & Ors. vs. State of Uttar Pradesh & Ors. (19); Mool Raj vs. Murthy Raghunathji Maharaj (20). (15). In State of Punjab vs. Khemi Ram (21) (nearly) a Constitution Bench of the Supreme Court has taken the same view and observed that the meaning of the word ``communicate is the import, confer or transmit information and unless it is so done, the order cannot be enforced or considered to be effective. In B.J. Shelet vs. State of Gujarat (22), the Apex Court has considered a similar issue and observed that unless the intention to take an action is communicated, it cannot be given effect to for the reason that the proviso to become it operative, it is necessary that the Authority should not only take a decision but also communicate it to the person concerned and the actual knowledge of such an order is necessary. (16). The statutory rule 5.9 mandates the Secretary of the R.T.A. to intimate the applicant within seven days from the date of the order. ``Intimate means to make known or to notify formally. There can be no quarrel to the legal proposition that statutory rules have the force of law. (Vide State of U.P. vs. Ram Babu Upadhyaya (23); and State of Tamil Nadu vs. M/s. Hind Stone (24).
``Intimate means to make known or to notify formally. There can be no quarrel to the legal proposition that statutory rules have the force of law. (Vide State of U.P. vs. Ram Babu Upadhyaya (23); and State of Tamil Nadu vs. M/s. Hind Stone (24). Therefore, the rules have to be treated as a part of the Statute and having the same effect. The process of intimation has been qualified by the word ``shall in State of Haryana and another vs. Raghubir Dayal (25), the Apex Court observed as under:- ``The use of the word ``shall is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequence to flow from such construction would not so demand. Normally, the word ``shall prima facie ought to be considered mandatory but it is the function of the court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word ``shall therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word ``shall as mandatory or as directory accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory. Thus, before the term ``shall is given the meaning as `may, the Court is required to give an exhaustive consideration on the subject and to determine whether the provisions of the statute are mandatory or directory. (17). The same view has been taken by a Division Bench olf this Court in Union of India vs. Ex-Sepoy Chandra Singh (26). (18).
Thus, before the term ``shall is given the meaning as `may, the Court is required to give an exhaustive consideration on the subject and to determine whether the provisions of the statute are mandatory or directory. (17). The same view has been taken by a Division Bench olf this Court in Union of India vs. Ex-Sepoy Chandra Singh (26). (18). In Raza Buland Sugar Company Limited vs. Municipal Board (27), the Supreme Court has observed as under:- ``The question whether a particular provision of a statute was mandatory...or directory cannot be resolved by laying down any general rule and it should depend upon the facts of each case and for that purpose the object of the statute in working out the provisions is a determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from the provision...... or other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provisions, have all be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. (19). Therefore, while interpreting a provision of the statute, it should not be construed to render that provision almost meaningless or by not giving significant meaning to the words staring at the face providing for consequences of non-compliance. Whatever may have been the intention of the legislature or the Government, ``when such intention is translated into a statute or rule, whether interpretation has been implemented or not, can only be judged by the wordings of the particular provision of such statute or rule. (Vide Suneeta Ramchandra vs. State of Madras (28). (20). An interpretation of the Act or the Rules without giving full effect to the language used, would be unsupportable and hence cannot be made. (Vide Chhunnibhai Deajibhai vs. Narain Rao and another (29). After considering a large number of its earlier judgments, the Honble Supreme Court, in Sultana Begum vs. Premchandra Jain (30), has observed as under:- ``(4) The Courts have also to keep in mind that an interpretation which reduces one of the provisions, is ``dead law or ``useless lumber is not harmonious construction. (5) To harmonise is not to destroy any statutory provision or to render it otiose. (21).
(5) To harmonise is not to destroy any statutory provision or to render it otiose. (21). The same view has been taken by the Supreme Court in State of Bihar vs. Bharat Distillary and others (31), wherein the Court has held that an interpretation which renders an enactment an exercise in futility, should be avoided. Similar view has been taken by the Supreme Court in South Central Railway Employees Co-operative Credit Society, Seccundrabad vs. Registrar of Co-operative Societies and others (32). In Institute of Chartered Accountants of India vs. Price Water House and another (33), the Apex Court has held that the interpretation making any provision as surplusage, is not permissble. (22). In the instant case if it is held that the Resolution passed by the Authority can be considered to be effective without being intimated to the applicant for the grant of permit, the provisions of rule 5.9 would be rendered as otiose and enacting such a provision in subordinate legislation would be deemed as ``an exercise in futility and the product as a ``purposeless piece of subordinate legislation and this provision would be deemed to have been enacted without any purpose and the entire exercise to enact such a provision was``most unwarranted besides being uncharitable. Thus, in view of the above, it is warranted that the provisions be held to be mandatory as the order cannot be held to be effective unless it is communicated to the applicant. (23). Thus, in view of the above and considering the consequence of the non-compliance of the conditions mentioned therein, it is held that the provisions of rule 5.9 of the Rules are mandatory for the reason that non-compliance of the conditions mentioned in the Resolution while granting the permit, if not communicated, would cause serious prejudice to the grantee as he would not be able to lift the permit in stipulated period nor he would be able to go in appeal under the provisions of Section 89 of the Act, if he feels aggrieved by the resolution/order. Moreover, unless the order is communicated to the other side, the author of the order would be able to change the context of the order or the entire order. Thus, it is beyond imagination that an order can be held to be effective without being communicated.
Moreover, unless the order is communicated to the other side, the author of the order would be able to change the context of the order or the entire order. Thus, it is beyond imagination that an order can be held to be effective without being communicated. The provisions of the said rule contemplate a positive action on the part of the R.T.A. and unless that obligation is fulfilled by the Authority, such an order cannot be given effect to. (24). In view of the above, I am in respectful agreement with the law laid down by this Court in the case of Jagan Nath Singh, Smt. Shakuntala Devi and Sheo Onkar (supra) that in absence of specific power to review, the R.T.A. became functus-officio after passing the Resolution and as a consequence the impugned order dated 22.1.96 passed by the R.T.A. is held to be a nullity and it is to be ignored. But the learned Tribunal has mis-directed itself and did not examine whether the Corporation had lifted the permits within sixty days from the date of the knowledge. The R.T.A. granted the permit by circulation to the Corporation on 21.8.95. No representative of the petitioner-Corporation was present at the time of passing the Resolution nor the Corporation was given any intimation regarding the grant of such permits. Petitioner Corporation came to know about the said grant on 22.1.95 and applied for extention of time, which was extended upto 22.2.96 as the period was extended for 30 days vide order dated 22.1.96 and the Corporation lifted the permit within the extended period. Thus, it is abundantly clear that even if the order dated 22.1.96 is ignored and considered as non-existant, the petitioner lifted the permit within the period of sixty days from the date of constructive knowledge. Therefore, the learned Tribunal has grossly erred in accepting the case of the revisionist for the reason that the aforesaid factual matrix did not extend the plank to the revisionist to contend that the Corporation could not ply the vehicles on the strength of the permits lifted by it within the time stipulated by the Resolution as the same has to be interpreted in terms of the provisions of rule 5.9 of the Rules. (25). The writ petitions succeed and are according allowed. The impugned judgment and order dated 6.12.97 is hereby set-aside.
(25). The writ petitions succeed and are according allowed. The impugned judgment and order dated 6.12.97 is hereby set-aside. The judgment and order dated 17.1.98, being consequential order, is, also, set-aside, In the facts and circumstances of the case, there shall be no order as to costs..