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2006 DIGILAW 48 (MAD)

C. Sathish v. V. R. Rajangam & Others

2006-01-10

P.JYOTHIMANI

body2006
Judgment :- 1. In the Writ Petition in W.P. No. 9792 of 1998, the petitioner challenges the order of the fourth respondent/State Transport Appellate Tribunal, Chennai passed in Appeal No. 138/98 dated 15.6.1998 confirming the order of the Regional Transport Authority, Dindigul, dated 17.2.1998. 2. In the other Writ Petition in W.P. No. 10711 of 1998 the same petitioner is challenging the order of the Regional Transport Authority, Dindigul, dated 20.7.1998 under which based on the order of the State Transport Appellate Tribunal, dated 15.6.1998, the impugned order in W.P. No. 9792 of 1998, has permitted the transfer to one V.R. Rajangarn to ply his stage carriage in the permitted route from Madurai to Mangalapatti. 3. The facts pertaining to these two cases are that one Raman Ambalarn was the original permit holder to ply stage carriage for the route Madurai to Mangalpatti. He died in the year 1971 leaving behind his wife and his two sons Velavan Ambalam and Rajangam, out of whom the said Rajangam is the first petitioner in W.P.No.9792 of 1998 and the second respondent in W.P. No. 10711 of 1998. Apart from this the said Raman Ambalan had also left vast immovable properties and he died interstate. According to the petitioner by virtue of an arrangement among the surviving family members, the transport permit was transferred in the name of the elder son Velavan Ambalarn in the year 1972. The said Velavan Ambalarn also died on 21.9.1973 leaving behind his wife Chinnammal, who is the second respondent in Writ Petition W.P. No. 9792 of 1998 and third respondent in another Writ Petition W.P. No. 10711 of 1996, apart from his son Seeman Ambalam. 4. It is the case of the petitioner that by consent of the legal heirs by a consent memo dated 14.12.1973 filed before the Regional Transport Authority, Madurai, the permit was transferred in the name of V.R. Rajangam who is the first respondent in Writ Petition W.P. No. 9792 of 1998 and the second respondent in another Writ Petition in W.P. No. 10711 of 1998. It is stated that the Chinnammal wife of Velavan Ambalam filed a suit before the Sub-Court, Madurai in O.S. No. 358 of 1977 and obtained an order of injunction against the said Rajangam from transferring the permit to any third party, in I.A. No. 705 of 1977 and the order of the injunction was subsequently made absolute in her favour. On an Appeal filed against the order of the injunction before the District Court, Madurai, in C.M.A. No. 120 of 1977 the Appellate Court has modified the order of injunction removing the restriction on the said Rajangam for making further transfer. In these circumstances, the Regional Transport Authority by an order-dated 10.2.1978 transferred the permit from the name of V.R. Rajangam to the name of the petitioner. In the mean time, minor Seeman Ambalam son of late Velan Arnbalam instituted another suit before the Sub-Court, Madurai in O.S.No.448/77 praying for partition of one fifth share in respect of all properties including the present permit under question which was mentioned as schedule-B in the suit. The petitioner filed two interim applications. I.A.No.872 of 1977 was filed against the said Rajangam permitting him to transfer permit to a third party and the same was dismissed by the Trial Court. I.A.No.872 of 1977 vas filed by Rajangam for appointment of receiver and the same was allowed by an order-dated 20.1.1976 in which Rajangam himself is a receiver. In the meantime, Chinnammal filed an Appeal against the order of the Regional Transport Authority, Madurai dated 10.2.1978 permitting the said Rajangam to transfer the permit and the said Appeal filed before the State Transport Appellate Tribunal in Appeal No. 109 of 1978 was dismissed on 21.9.1978. Aggrieved over the same, Chinnammal moved this Court by filing C.R.P. No. 758 of 1979. While disposing of the C.R.P., this Court has set aside the said order of the Tribunal dated 21.9.1998 and remitted the matter to the Regional Transport Authority for further consideration in the light of the observations made by this Court which were to the effect that if the respondent-Rajangam, was appointed as receiver how, he can permit the transfer of the stage carriage permit in the name of anyone except with the express leave of the Court. It was also observed by this Court that the petitioner in the C.R.P. namely Chinnammal who is the third respondent in W.P. No. 10711 of 1998 has a valid decree in her favour in O.S.No.358 of 1977. Since the Regional Transport Authority has not taken-up any further action, according to the petitioner, he has been operating the route based on the transferred permit, in fact by obtaining renewal of permits on 3 occasions. The said Chinnammal filed W.P. No. 10711 of 1998 before this court for a direction against the Regional Transport Authority, Madurai and there was an order passed on 22.8.1996 directing the Regional Transport Authority, Madurai to dispose of in terms of the order passed in C.R.P. No. 758 of 1979 dated 6.12.1982. It is consequent to the said direction by this Court, the Regional Transport Authority and the Collector of Dindugal, passed an order on 17.2.1996 rejecting the application of the said Rajangam for effecting transfer. It was against the said order, the petitioner herein has filed an Appeal before the Appellate Tribunal and the said Appeal was dismissed, confirming the order of the Regional Transport Authority dated 17.2.1998. It is against the said order of the Tribunal in rejecting the claim of the first respondent, W.P. No. 9792 of 1998 has been filed for the transfer of the permit and W.P. No. 10711 of 1998 filed by the transferee-Rajangam who is the petitioner in both the Writ Petitions. 5. I have heard the learned counsel for the petitioner in both the Writ Petitions and also the respondents. 6. It is the contention of the learned counsel, Mr. K. Palani for the petitioner in both the Writ Petitions that the order of the State Transport Appellate Tribunal and also the Regional Transport Authority dated 17.2.1998 withdrawing the order of the transfer of permit is beyond the scope of the remand order passed by this Court in C.R.P. No. 758 of 1979. It is also further contended by the learned counsel that while passing the order, neither the first respondent nor the second respondent namely Rajangam and Chinnammal was given any right. Therefore, the permit should be to held by someone and in that manner the order, of the Regional Transport Authority dated 7.2.1998 suffers from infirmity. It is also further contended by the learned counsel that while passing the order, neither the first respondent nor the second respondent namely Rajangam and Chinnammal was given any right. Therefore, the permit should be to held by someone and in that manner the order, of the Regional Transport Authority dated 7.2.1998 suffers from infirmity. He also further contended that the order of the Secretary, Regional Transport Authority, Dindugal dated 20.7.1998 which is impugned in W.P. No. 10711 of 1998 permitting the transferor Rajangam to ply the vehicle, especially in the circumstance that the Writ Petitioner has paid the consideration amount of Rs.4,00,000 to the said Rajangam which is not denied by the said Rajangam. His further contention is that the transfer effected by Rajangam, confirmed by the order of the Regional Transport Authority dated 10.2.1978, stands in conformity with the Tamil Nadu Motor Vehicles Special Provisions Act, Act 41 of 1992 which, in terms of Section 10, a non-obstante clause validates all the transfer effected between 4.6.1979 to 30.6.1990 is valid. It is also the case of the petitioner that the validity of the said Act 41 of 1992 has been upheld by this Court and the same has also been ultimately confirmed by the Hon'ble Supreme Court. Therefore, according to him the withdrawal of transfer of permit effected by Rajangam in favour of the Writ Petitioner by the Regional Transport Authority by the order dated 17.2.1998 and subsequently confirming the same by the State Transport Appellate Tribunal by order dated 9.7.1998 are without jurisdiction. It is also his contention that inasmuch as after the transfer of permit in the name of the petitioner, Rajangam as early as on 10.2.1978 upto 1998, the petitioner has been plying the vehicle in the prescribed route for the past 20 years, by subsequent renewals even after the order of this Court in the C.R.P, and that therefore, the impugned order is to be set aside. 7. Mrs. Radha Gopalan, teamed counsel appearing for the first respondent in W.P. No. 9792 of 1998 and the second respondent in W.P. No. 10711 of 1998 would contend that as per Rule 202 of the Tamil Nadu Motor Vehicles Rules, based on the joint application of the petitioner and Rajangam the transfer was allowed on 10.2.1978. 7. Mrs. Radha Gopalan, teamed counsel appearing for the first respondent in W.P. No. 9792 of 1998 and the second respondent in W.P. No. 10711 of 1998 would contend that as per Rule 202 of the Tamil Nadu Motor Vehicles Rules, based on the joint application of the petitioner and Rajangam the transfer was allowed on 10.2.1978. Subsequently, by virtue of Rule 212 when the withdrawal of consent of transfer was filed especially when this court in C.R.P. No. 758 of 1979 has clearly held that Rajangam was appointed as receiver by the Civil Court and the transfer effected by him without leave of the Court, the transfer should be held to be invalid. Therefore, it is her submission that when the matter is remitted for fresh consideration and the transferrer was not having a valid permit from 16.12.1978 the renewal of permit will only be illegal. It is her further contention that by virtue of order in the C.R.P. the joint application filed by a petitioner and Rajangam ought to be rejected by virtue of Rule 212. It is also the contention of the learned counsel that this Court while disposing of C.R.P. has set aside the order of the Regional Transport Authority dated 10.2.1978 under which one of the respondents-Rajangam was permitted to transfer the permit based on which the petitioner makes a claim as a transferee. In such circumstances, the Regional Transport Authority was bound to reject the transfer in the teeth of the order in the C.R.P. Her further contention is that the petitioner who is in possession of the vehicle and is plying the same for the past 20 years would amount to unjust enrichment. 8. I have carefully considered the rival submissions. At the out set, it is to be stated that this Court while disposing of the C.R.P. No. 758 of 1979, on 6.12.1982 has not merely remitted the matter for fresh consideration to the Regional Transport Authority but also set aside the order of the Regional Transport Authority dated 10.2.1978 under which Rajangam was permitted to effect transfer of the permit. Therefore, there is no difficulty to arrive at the conclusion that Rajangam has no right to transfer the permit and the transfer, he would have effected to the petitioner cannot be treated as legal transfer. Therefore, there is no difficulty to arrive at the conclusion that Rajangam has no right to transfer the permit and the transfer, he would have effected to the petitioner cannot be treated as legal transfer. The non-obstante clause in Section 10 of Tamil Nadu Motor Vehicles Special Provisions Act, Act 41 of 1992 validating certain transfers effected between, 4.6.1970 to 30.6.1990 cannot apply to the present circumstance of the case especially when this Court has set aside the order of the Regional Transport Authority dated 10.2.1978 and directed the authority to reconsider the matter on the basis of the observations made therein. The observations of this Court clearly raised the vital question as to whether the respondent-Rajangam can effect transfer especially when he was holding the permit only as a receiver, more so, in the absence of any specific leave of the Civil Court. Therefore, in my view the submission made by the learned counsel for the petitioner as if Act 41 of 1992 validates the transfer effected by Rajangam in favour of the petitioner is sustainable. The contention that the transfer effected by Mr. Rajangam in favour of the petitioner for consideration of Rs.4,00,000 does not improve the case of the petitioner any further, since Rajangam himself has no illegally enforceable permit. There was no question of his transfer of the same to the petitioner. It is also relevant to note that even in O.S. No. 358 of 1977 filed by Chinnammal against Rajangam for restraining him, he being the first defendant in the said suit, from plying or transferring or delivering the vehicle to the petitioner herein who was the second defendant in the suit, the Civil Court has passed a decree on 14.2.1960 against Rajangam to that effect. Moreover, even in the partition suit in O.S. No. 448 of 1977 filed by Minor Seeman Ambalam son of late Velavan Ambalam there is a preliminary decree for partition. Therefore, even by virtue of Civil Court decree there was no valid permission for him to effect transfer to the petitioner. Moreover, even in the partition suit in O.S. No. 448 of 1977 filed by Minor Seeman Ambalam son of late Velavan Ambalam there is a preliminary decree for partition. Therefore, even by virtue of Civil Court decree there was no valid permission for him to effect transfer to the petitioner. Further, the order of the Regional Transport Authority dated 17.2.1998 pursuant to the remand order in C.R.P. No. 758 of 1979 also makes it very clear that the permit cannot stand in the name of the petitioner and the permit effected in his name as a transferee has been specifically cancelled, also by stating that logically the status quo ante to be re-imposed meaning that the permit should revert to the transferrer. Finally, the said order concludes rejecting the plea of joint permit in the name of objector namely Cinnnammal for the time being and there is a direction to the objector and the transferrer-Rajangam to apply afresh to the authority separately or jointly provided requisite conditions are satisfied. The order has also stated about Rule 212 by clearly saying that by virtue of remand order the joint application for permit transfer was alive and the petitioner before the Authority was fully entitled under law to withdraw his consent before any decision is taken on the said Application. In such circumstance, the joint application by the said Rajangam being the transferrer and the petitioner being the transferee was correctly rejected. 9. It is also seen that the State Appellate Tribunal has referred about the order passed by Regional Transport Authority by specifically finding that even though the permit is also a property, since transfer of such permit has not been approved by the concerned authority and the transferror/respondent Rajangam withdrew his consent as he has no right to transfer, the Application for transfer was rightly rejected. I do not find any infirmity in the impugned order in both the Writ Petitions and consequently Writ Petitions fail and the same are dismissed. No costs.