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Madhya Pradesh High Court · body

2014 DIGILAW 1607 (MP)

Rishikesh Singh v. Seema Arora

2014-12-05

B.D.RATHI, S.K.GANGELE

body2014
JUDGMENT : ” This review petition has been filed for review of the order dated 05.03.2014 passed in Writ Petition No.8065/2013. 2. Petitioner submitted an application for grant of permanent permit on 20.08.2009. The said application was considered by the authority on 25.02.2012 because on the aforesaid date, arguments were heard. Before hearing the arguments, the petitioner submitted a lease agreement and an application dated 21-02-2012. Copies of the original lease agreement are in the record and they have been placed by the State Government. By the aforesaid lease agreement, a vehicle bearing number MP07 P-0767 was leased out in favour of the petitioner with effect from 22-02-2012 to 28-02-2013 for the purpose of plying the vehicle on route Gwalior to Tikamgarh. Considering the application of the petitioner, the Regional Transport Authority granted the permanent permit in favour of the petitioner for the route Gwalior to Tikamgarh with one return trip daily. 3. The objector filed an appeal before the STAT against the aforesaid order. The STAT vide its order dated 23.10.2013 allowed the appeal after holding that the petitioner had a leased vehicle hence he could not be said to be the owner of the vehicle in view of Section 2(30) of the Motor Vehicles Act, 1988. Against the said order, a writ petition was filed which was also dismissed by this Court vide order dated 05.03.2014 under review herein which goes as under: 05-03-2014 Shri Arvind Dudawat, Advocate for the petitioner. Shri M.P.S.Raghuvanshi, Additional Advocate General for respondent/State. Heard. This petition has been filed against the order dt. 23.10.2013 (Annexure P/5) passed by the State Transport Appellate Tribunal. The petitioner was granted a permanent permit by the State Transport Authority vide order dt. 9.4.2012 for the route Gwalior to Tikamgarh one single trip daily. The aforesaid permit was cancelled by the STAT in an appeal on the ground that the petitioner was not the owner of the vehicle at the time of filing the application for grant of permit, hence, no permit could be granted in favour of the petitioner. Learned counsel for the petitioner has submitted that the findings recorded by the STAT are against the law. The petitioner had a valid lease in regard to the vehicle at the time of passing of the order, hence, he fulfills all the conditions in regard to grant of permanent permit. Learned counsel for the petitioner has submitted that the findings recorded by the STAT are against the law. The petitioner had a valid lease in regard to the vehicle at the time of passing of the order, hence, he fulfills all the conditions in regard to grant of permanent permit. The question for consideration before this court is whether the petitioner fulfilled all the conditions in regard to grant of permanent permit at the time of issuance of permit. State Government has made rules named as Madhya Pradesh Motor Vehicles Rules, 1994 (hereinafter referred Rules of 1994) in exercise of powers conferred by Sections 28, 38, 65, 95, 96, 107, 111, 138, 159, 176, 211 and 213 of the Motor Vehicles Act, 1988 (No.59 of 1988). Rule 72 of the Rules of 1994 prescribes forms of application for permit. In accordance with the aforesaid Rule 72 (1) of the Rules of 1994, every application for grant of permit in respect of any transport vehicle shall be in one of the following forms and in accordance with the aforesaid Rule 72 (3)(a) in respect of stage carriage permit, it would be in the form M.P.M.V.R.-42 (S.C.P.A.). Rule 72 (3) (b) of the Rules of 1994 prescribes that an application of stage carriage permit shall be accompanied by certain documents and one of the conditions is of certificate of registering authority in regard to ownership of vehicle of the applicant. Relevant rule is as under :” (b) ' certificate from Registering Authority containing make, model and seating capacity of the vehicles owned by the applicant at the time of making the application:' Appropriate form M.P.M.V.R.-42 (S.C.P.A.) has also been prescribed in accordance with rule, which is part VI of the Rules of 1994. Clause 8 of the form is in regard to details of the vehicle which is to be offered to operate on the route applied for : 8. Details of the vehicle offered to operate on the route applied for :- Vehicle No....................Model........................... Make..................... Seating Capacity.............. (Proof to be enclosed). There is also provision of reserved vehicle. From the aforesaid statutory rule, it is clear that the applicant must be the owner of the vehicle at the time of making the application because in Rule 72 (3) (b) of the Rules of 1994, the word used ' vehicles owned by the applicant' . Make..................... Seating Capacity.............. (Proof to be enclosed). There is also provision of reserved vehicle. From the aforesaid statutory rule, it is clear that the applicant must be the owner of the vehicle at the time of making the application because in Rule 72 (3) (b) of the Rules of 1994, the word used ' vehicles owned by the applicant' . The petitioner filed an application for grant of permanent permit on 20.2.2012. He submitted a lease agreement, by which he had taken a vehicle on lease from another person Suresh Pateria, before the authority which was executed on 21.2.2012. This fact clearly established that the petitioner did not have a vehicle of his own or any leased vehicle in his favour at the time of filing an application. A copy of the application filed by the petitioner and a copy of the lease agreement has been filed by M/s. Orchha Transport Company, respondent No.2 in W.P.No.7057/2013. Hence, the petitioner did not fulfill the criteria as required in the rules. The arguments advanced by the learned counsel for the petitioner that the lease agreement was in favour of the petitioner, hence, he was the owner of the vehicle, could not be accepted because as held earlier in this order that on the date of filing of the application there was no lease agreement in favour of the petitioner. In such circumstances, in our opinion, the STAT has rightly quashed the grant of permit in favour of the petitioner. Consequently, we do not find any merit in this petition filed under Article 227 of the Constitution. It is hereby dismissed. No order as to costs. 4. Learned Senior Counsel, appearing on behalf of the petitioner, submitted that a leased vehicle was in favour of the petitioner at the time of hearing of the arguments on the application of the petitioner. Hence, the petitioner had fulfilled all the requirements for the purpose of grant of permit. While passing the order under review, this Court has held that the petitioner had no lease agreement at the time of filing of the application hence, it could not be held that the petitioner was eligible to receive the permit. 5. It is a fact that the petitioner offered a vehicle at the time of submitting the application which was of 2002 model and before hearing the arguments, the petitioner submitted a lease agreement dated 21.02.2012. 5. It is a fact that the petitioner offered a vehicle at the time of submitting the application which was of 2002 model and before hearing the arguments, the petitioner submitted a lease agreement dated 21.02.2012. By the said agreement, a vehicle of 2011 model was leased out in favour of the petitioner. 6. The question whether a person requires to fulfill all the conditions on the date of filing of the application or on the date of hearing of the arguments in regard to grant of permanent permit has been considered by this court in Padam Chand Gupta and another v. State Transport Authority and another reported in 2014(1) MPLJ 124 : ( AIR 2014 MP 44 ) in which it has been held as under: 12. State Government has made rules named as Madhya Pradesh Motor Vehicles Rules, 1994 (hereinafter referred to as Rules of 1994) in exercise of powers conferred by Sections 28, 38, 65, 95, 96, 107, 111, 138, 159, 176, 211 and 213 of the Motor Vehicles Act, 1988 (No.59 of 1988). Rule 72 of the Rules of 1994 prescribes forms of application for permit. In accordance with the aforesaid Rule 72 (1) of the Rules of 1994, every application for grant of permit in respect of any transport vehicle shall be in one of the following forms and in accordance with the aforesaid Rule 72 (3)(a) in respect of stage carriage permit, it would be in the form M.P.M.V.R.-42 (S.C.P.A.). Rule 72 (3) (b) of the Rules of 1994 prescribes that an application of stage carriage permit shall be accompanied by certain documents and one of the conditions is of certificate of registering authority in regard to ownership of vehicle of the applicant. Relevant rule is as under :- (b) ' certificate from Registering Authority containing make, model and seating capacity of the vehicles owned by the applicant at the time of making the application.' 13. Appropriate form M.P.M.V.R.-42 (S.C.P.A.) has also been prescribed in accordance with rule, which is Part VI of the Rules of 1994. Clause 8 of the form is in regard to details of the vehicle which is to be offered to operate on the route applied for: 8. Details of the vehicle offered to operate on the route applied for :- Vehicle No..............Model................... Make................ Seating Capacity.............. (Proof to be enclosed). There is also provision of reserved vehicle. 14. Clause 8 of the form is in regard to details of the vehicle which is to be offered to operate on the route applied for: 8. Details of the vehicle offered to operate on the route applied for :- Vehicle No..............Model................... Make................ Seating Capacity.............. (Proof to be enclosed). There is also provision of reserved vehicle. 14. From the aforesaid statutory provisions, it is clear that an applicant has to submit details of the vehicle, which was offered by him to operate on the route and he must be the owner of the vehicle at the time of making application which is the requirement of Rule 72 (3)(b) of the Rules of 1994 as mentioned above in the order. 15. At the time of making an application, respondent No.2 had leased out the vehicle to some other person. 16. The question whether an application for stage carriage permit could be rejected on the ground that the particulars of the vehicle being used for the services were not mentioned at the time of submitting the application has been considered by the Full Bench of Kerala High Court in E.L. Narayanan and others v. R.T.A. Trichur reported in AIR 1980 Kerala 115. Full Bench has held as under :- ' An application for grant of a stage carriage permit cannot be treated as invalid merely on the ground that it does not contain particulars of the vehicle proposed to be used for the service nor can the applicant be disqualified or excluded from consideration on the said ground. If all other qualifications are equal as between two applicants, one of whom had furnished in his application the particulars of his vehicle and the other had furnished such particulars only at a later stage before the matter was taken up for consideration by the Regional/State Transport Authority and the vehicle offered by the latter is found to be of a later model and better quality (providing better comforts for the passengers) than the vehicle offered by the former, the Regional/State Transport Authority will be perfectly justified in taking the view that it will be in the public interest to grant the permit to the applicant who has offered the better vehicle. However, if in such a case the vehicles offered by both the applicants are found to be substantially of the same type, quality, model etc. However, if in such a case the vehicles offered by both the applicants are found to be substantially of the same type, quality, model etc. and if in respect of other matters both the applicants are equally qualified, it will be open to the Regional/State Transport Authority in its discretion to prefer for the grant the applicant who had furnished the particulars of his vehicle in the application itself treating the said circumstance as a ground for tilting the balance as between the two persons whose qualifications are equal in all other respects.' 17. Hon” ble Supreme Court in the case of Maharashtra State Road Transport Corporation v. Mangruloir Joint Motor Service Co. (P) Ltd. reported in AIR 1971 SC 1804 has held as under in this regard :- ' The High Court was in error on the second question in holding that the Regional Transport Authority would have to consider the respective qualifications of the applicants as on the date of their applications and not as on the date of the actual consideration by the applications for the grant of permit.' 18. Hon” ble Supreme Court in the case of Esskey Roadways (Firm) v. Anandha-krishnan Bus Service reported in 1994(6) SCC 71 has held as under in regard to consideration of relevant date on which the respective claims of the candidates have to be considered for grant of permit :- ' 3. Another circumstance arose in Dhani Devi v. Sant Bihari case, ( AIR 1970 SC 759 ) was that when one of the applicants before the consideration died and his L.Rs. were brought on record. When it was questioned, this Court held that the L.Rs. are entitled to be considered as inhering the estate of the deceased applicant for grant of permit. In A.S. Jalaluddin v. Balasubramania Bus Service (P) Ltd., the question arose whether the applicant who secured the residential qualification by establishing a branch office at one of the terminus of the route would be considered eligible as on the date of the consideration. This Court held that he is entitled. In view of these considerations, it must be held that the date of consideration is the relevant date for the purpose of considering the eligibility to grant the required marks under Section 46 of Act 4 of 1939. This Court held that he is entitled. In view of these considerations, it must be held that the date of consideration is the relevant date for the purpose of considering the eligibility to grant the required marks under Section 46 of Act 4 of 1939. This law being in operation from 1970, we do not think that it requires any reconsideration by this Court by a larger Bench. Accordingly, we hold that the date of consideration is the relevant date on which the respective claims of the candidates have to be considered for award of the marks for grant of permit. It is made clear that this declaration of law is confined to and peculiar of the statutory operation under Section 46 of Act 5 of 1958.' 19. It is clear from the above judgments that an applicant has to fulfill qualification required in the rule and in regard to availability of the vehicle at the time of passing of the order by the Regional Transport Authority. 20. Respondent No.2 had leased out his vehicle, which was proposed to be plied by him on the route in favour of another person and it was covered by another permit up to 31.8.2012, thereafter it was released when the permit was surrendered before the R.T.A. The tax of the vehicle was also paid up to 31.8.2012. Hence, in our opinion, the respondent No.2 did not fulfill the criteria having a vehicle at the time of passing of the order by R.T.A. for grant of permanent permit, hence, he was not eligible to receive the permit. 21. The aforesaid facts and legal position has not been considered by the STAT in the impugned order. Apart from this, respondent No.2 has been favoured by granting unfair timings. Even though the case could be remanded back to the RTA to fix the timings, however, we have held that the respondent No. 2 was not eligible for grant of permit because he did not have the vehicle, which could be pressed in service or plied on the route at the time of passing of the order by the R.T.A. It is a necessary requirement in accordance with the rules and statutory form. 22. Learned counsel for the respondent No.2 relied on the Balwant Rao v. State judgment of this court in Transport Appellate Authority reported in Short Note 59 of 1971 MPLJ 34. 23. 22. Learned counsel for the respondent No.2 relied on the Balwant Rao v. State judgment of this court in Transport Appellate Authority reported in Short Note 59 of 1971 MPLJ 34. 23. Facts of the case have not been mentioned in the aforesaid decision, hence, we could not take the assistance from the aforesaid judgment. 24. Counsel for respondent No.2 also relied on Smt. Aysha v. Regional Transport Authority judgment, reported in AIR 2006 Kerala 360 and some unreported judgments. 25. The aforesaid judgments cited by the learned counsel for respondent No.2 do not favour the case of respondent No.2, hence they are distinguishable. 26. Consequently, the petition filed by the petitioners is allowed. Grant of permanent permit in favour of respondent No.2 by R.T.A. of route Gwalior to Jhansi via Dabra, Datia of one return trip is hereby quashed. The impugned order dt.4.7.2013 (Annexure P/1) passed by the State Transport Appellate Tribunal Gwalior is hereby quashed. No order as to costs.' 7. After considering the earlier judgments of the Hon” ble Supreme Court and the judgment rendered by the Full Bench of Hon” ble Kerala High Court, this Court had held that the applicant has to fulfill qualification required in the rule and in regard to availability of the vehicle at the time of passing of the order by the Regional Transport Authority. 8. In the present case, petitioner had submitted a leased agreement on 21.02.2012 and the arguments on the application were heard on 25.02.2012. Subsequently, the order was passed. Hence, the petitioner had fulfilled the criteria in accordance with the judgment of the Division Bench. In the order under review, the judgment passed by the Division Bench has not been considered. The Hon” ble Supreme Court in the case of Kamlesh Verma v. Mayawati and others reported in (2013) 8 SCC 320 : ( AIR 2013 SC 3301 ) has held as under: ' The principles relating to review jurisdiction may be summarised as follows: When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words, ' any other sufficient reason' have been interpreted in Chhajju Ram, (1921-22) 49 IA 144 : ( AIR 1922 PC 112 ) and approved by this Court in Moran Mar Basselios Catholicos, AIR 1954 SC 526 to mean ' a reason sufficient on grounds at least analogous to those specified in the rule.' 9. Looking to the principle laid down by the Hon” ble Supreme Court, in our opinion, the review petition is hereby maintainable. 10. The Hon” ble Supreme Court in the case of Industrial Credit and Development Syndicate Limited v. Commissioner of Income-tax, Mysore and another reported in (2013) 3 SCC 541 : ( AIR 2013 SC 3037 ) has held that in accordance with the provisions of Section 2(30) of the Motor Vehicles Act, there is formed a deeming provision creating a legal fiction of ownership in favour of the lessee only for the purpose of Motor Vehicles Act, 1988. The findings of the Hon” ble Supreme Court are as under: ' Section 2(30) of the MV Act is a deeming provision that creates a legal fiction of ownership in favour of the lessee only for the purpose of the MV Act, 1988. It defines ownership for the subsequent provisions of the MV Act, not for the purpose of law in general. It serves more as a guide to what the terms in the MV Act 1988 mean. Therefore, if the MV Act, 1988 at any point uses the term ' owner' in any section, it means the one in whose name the vehicle is registered and in the case of a lease agreement, the lessee. That is all. It is not a statement of law on ownership in general. Perhaps, the repository of a general statement of law on ownership may be the Sale of Goods Act. Section 2(30) of the MV Act, 1988 must be read in consonance with Sections 51(4) and (5) of the MV Act. So read, the MV Act, 1988 mandates that during the period of lease, the vehicle be registered, in the certificate of registration, in the name of the lessee and, on conclusion of the lease period, the vehicle be registered in the name of the lessor as owner. The section leaves no choice to the lessor but to allow the vehicle to be registered in the name of the lessee. The section leaves no choice to the lessor but to allow the vehicle to be registered in the name of the lessee. Thus, no inference can be drawn from the registration certificate as to ownership of the legal title of the vehicle.' 11. In view of the findings recorded by the Hon” ble Supreme Court, if a lease has been executed in favour of the person, he can be deemed to be the owner of the vehicle in view of Section 2(30) of the Motor Vehicles Act for a limited purpose, i.e. under the provisions of Motor Vehicles Act. Hence, the petitioner was the owner of the vehicle. 12. Lease agreement dated 21.02.2012 was filed before the RTO. In view of the aforesaid, review petition is hereby allowed. The order under review passed by this Court dated 05-03-2014 in Writ Petition No.8065/2013 is hereby recalled and the order dated 23-10-2013 passed by the STAT which was under challenge in the writ petition is hereby set aside. 13. Accordingly, review petition stands allowed. No order as to costs. Petition allowed