Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1005 (HP)

Rajiv Kumar Sharma v. Renu Sharma

2015-08-03

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. This petition under Article 227 of the Constitution of India is directed against the order passed by learned Additional District Judge-I, Kangra at Dharamshala on 26.7.2013 whereby he upheld the restraint order passed by learned Civil Judge (Senior Division), Kangra at Dharamshala on 1.8.2011. 2. It is fairly conceded by learned counsel for the petitioner that the issue of transfer or sale of vehicle No. HP-68-2281 is not in issue as the petitioner has no right, title or interest in this bus save and except to see that the installment as undertaken by the respondent is paid within the stipulated time. The instant petition therefore is only confined to the route permit which had been granted to the petitioner against bus purchased by him bearing registration No. HP-68-2281, which admittedly has been sold to the respondent for sale consideration of Rs.9,50,000/- and the remaining amount was to be paid by her as per the settlement. 3. The learned trial Court upheld the plea of the respondent with regard to the transfer of the route permit by concluding that since the route permit had been issued against a particular bus, therefore, the same stood transferred alongwith the bus at the time of transfer of the bus. It is apt to reproduce paras 14 and 15 of the judgment, which reads as under: “14. So far as the application of the defendant is concerned, his grievance is that the route permit was taken away by the plaintiff decisively and he has in fact not sold the route permit. The copy of the route permit has been filed on the record which shows that it was issued against a particular bus i.e. Bus involved in this case. So far the case of the defendant to the effect that he want to purchase a new bus. On the strength of this route permit the law does not permit him to do so. Since the route permit has been issued against the particular bus and the bus is being driven on the route. Even this fact is lost the sight of the plea of defendant is tenable when he states that he never made a mention of sale of route permit in agreement to sell. When the agreement is carefully gone through, it does not make any specific provision of other documents as well as. Even this fact is lost the sight of the plea of defendant is tenable when he states that he never made a mention of sale of route permit in agreement to sell. When the agreement is carefully gone through, it does not make any specific provision of other documents as well as. There is not even a reference of other documents in this agreement to sell. In case the defendant did not intend to hand over the route permit to the plaintiff, the specific mention thereof would have been made in the agreement, which is lacking. Once no mention of any document with holding of or retaining thereof, has been made in this agreement, it cannot be prima facie be taken to mean that it was agreed between the parties that route permit was not transferred. Had any such intention between the parties developed at the time of entering into an agreement it would have made in the agreement. 15. Since the route permit has been issued against a particular bus as a civil court cannot restrain the person in possession of the bus from plying the same against the route regarding which he has got the route permit. No such injunction can be granted at this stage. Mandatory injunction cannot be granted at this stage when there is nothing on the file to suggest that the route permit was to be not sold alongwith bus. Thus, the defendant has neither any prima facie nor balance of convenience is in favour of not any irreparable loss and injury which cannot be compensated in terms of money in case the mandatory injunction is with held. Hence point No.1 is held in affirmative and point No.2 is held in negative.” 4. In the appeal carried out before the learned lower Appellate Court, this aspect of the matter does not appear to have been dealt with and it was simply held that since the bus was being plied by the respondent, therefore, the injunction granted by the learned trial Court called for no interference. I have heard learned counsel for the parties and have gone through the records of the case carefully. 5. I have heard learned counsel for the parties and have gone through the records of the case carefully. 5. It is not in dispute that Section 59 (1) and Section 61 of the Motor Vehicles Act, 1939 (for short Act of 1939) correspond with the provisions of Section 82 (1) and Section 82 (2) of the Motor Vehicles Act, 1988 (for short Act of 1988). Section 82 of the Act, 1988 reads thus: “Section 82.Transfer of permit.— (1) Save as provided in subsection (2), a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not, without such permission, operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit. (2) Where the holder of a permit dies, the person succeeding to the possession of the vehicle covered by the permit may, for a period of three months, use the permit as if it had been granted to himself: Provided that such person has, within thirty days of the death of the holder, informed the transport authority which granted the permit of the death of the holder and of his own intention to use the permit: Provided further that no permit shall be so used after the date on which it would have ceased to be effective without renewal in the hands of the deceased holder. (3) The transport authority may, on application made to it within three months of the death of the holder of a permit, transfer the permit to the person succeeding to the possession of the vehicles covered by the permit: Provided that the transport authority may entertain an application made after the expiry of the said period of three months if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified.” 6. In Maniam Hiria Gowder vs. Naga Maistry, AIR 1957 MADRAS 620, a Division Bench of the Madras High Court while interpreting the provisions of Section 59 (1) of the Act of 1939 held that transfer of a permit could only be effected with the written permission of the transport authority. 7. In Maniam Hiria Gowder vs. Naga Maistry, AIR 1957 MADRAS 620, a Division Bench of the Madras High Court while interpreting the provisions of Section 59 (1) of the Act of 1939 held that transfer of a permit could only be effected with the written permission of the transport authority. 7. In Ram Shanker Misra and brothers vs. Regional Transport Authority, Kanpur and others, AIR 1960 Allahabad 247, it was held that Section 59 (1) merely lays down who, in the eye of law, would be the holder of the permit and which person can use the vehicle in the manner authorized by the permit. An illegal transfer of the permit would be void and is consequently ineffective. Such a transfer would not confer any right in the transferee, and the holder of the permit, namely, the transferor shall continue to be the permit-holder entitled to use the vehicle. 8. In Tekumalla Rama Rao vs. Durga Suryanarayana and others AIR 1964 Andhra Pradesh 256 it was held that the language of Section 59 (1) of the Act of 1939 was mandatory and therefore, the permission of the transport authority was a pre-requisite for the transfer of the permit. Without such permission, even if the stage carriage covered by the permit was transferred, it could not be used. The prohibition against the transfer of a permit enacted in Section 59 had relation to matters of public interest. It was further held that even if the transfer is mutually agreed to, disregarding this provision, it was fundamental that Courts would not enforce such an agreement as its object were forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of the law within the meaning of Section 23 of the Contract Act. The express interdiction enacted in the statute on grounds of public policy could not be whittled down to a matter of routine and form and the statutory prohibition could not be construed as permitting such transfers as the contravention of such provision attracted penalty under Section 112 of the Act of 1939. 9. The express interdiction enacted in the statute on grounds of public policy could not be whittled down to a matter of routine and form and the statutory prohibition could not be construed as permitting such transfers as the contravention of such provision attracted penalty under Section 112 of the Act of 1939. 9. A Division Bench of Madras High Court in A.V. Varadarajulu Naidu (decd.) and others vs. K.V. Thavasi Nadar, AIR 1963 Madras 413 held that a partnership between A and B for the purchase of a lorry and to use it for carrying on the business of transport service with a permit obtained in B’s name was not only illegal but was opposed to public policy as it contravened the provisions of Section 42 (1) and Section 59 (1) of the Act of 1939. It was further held that the partnership firm being the owner of the vehicle could not use the permit obtained in B’s name unless the permit was transferred in the name of the partnership, that too, with the permission of the transport authority under Section 59 (1) of the Act of 1939. 10. A learned Single Judge of the Rajasthan High Court in Inderjit Singh v. Sunder Singh, AIR 1969 Rajasthan 155 held that transfer of motor vehicle permit without permission of transport authority was forbidden by Section 59 (1) of the Act of 1939 and therefore, was unlawful under Section 23 of the Contract Act. 11. A Full Bench of Allahabad High Court in Khawaz Bux v. Mirza Mohammad Ismail AIR 1984 Allahabad 83, has held that a person who seeks to ply the vehicle must not only be the owner of the vehicle but also the owner of the permit. It was further held that where the title in a vehicle has been transferred, Section 59 (1) of the Act of 1939 prohibits the use of the vehicle in the manner authorized by the permit, unless the transport authority grants the permission. The section negatively makes a permit non-transferable without permission and positively provides that the transfer of the vehicle without the permission does not confer the right to use it. The section negatively makes a permit non-transferable without permission and positively provides that the transfer of the vehicle without the permission does not confer the right to use it. It was lastly held that enforcing an agreement whereby the permit as well as the vehicle covered by it are transferred without the requisite permission under Section 59 of the Act of 1939 by issuance of an injunction restraining the defendant from interfering with the plaintiff using the vehicle in the manner authorized by the permit, will be violative of Section 59. It was further held that Section 23 of the contract Act forbids enforcement of a contract which would defeat the provisions of any law. 12. A learned Single Judge of the Andhra Pradesh High Court in Nerati Pichamma and another vs. Pasumala Arogiya and others (1991) 2 ACC 197, held that under Section 59 of the Act, the general conditions attached to the permit are that the same shall not be transferred except with the permission of the transport authority which granted the permit and that the owner continues to be governed by the provisions of the Act for use of the vehicle in the public place in the manner provided in the permit. 13. From a conspectus of aforesaid decisions, it is absolutely clear that the transfer of the ownership of the vehicle is entirely different from the transfer of the permit, whereas, the transfer of the vehicle is governed by the provisions of the Sales of Goods Act, whereas the transfer of the permit would be regulated by the provisions of the Motor Vehicles Act, 1988. Therefore, the sale of vehicle does not essentially mean that even the permit has been transferred or sold as the same can only be transferred after complying with the provisions as contained in Chapter-V of the Act of 1988. 14. Learned Senior counsel for the respondent at this stage would rely upon the judgment of the Hon’ble Supreme Court in Pushpa alias Leela and others vs. Shakuntala and others (2011) 2 SCC 240 , to contend that once there is no dispute that the vehicle has been transferred, then the route permit is deemed to be transferred. 14. Learned Senior counsel for the respondent at this stage would rely upon the judgment of the Hon’ble Supreme Court in Pushpa alias Leela and others vs. Shakuntala and others (2011) 2 SCC 240 , to contend that once there is no dispute that the vehicle has been transferred, then the route permit is deemed to be transferred. I cannot accept this contention for the simple reason that this case does not relate to the transfer of the route permit and in fact relates to the transfer of the insurance policy of sale of the vehicle and is thus not applicable to the facts of the instant case. 15. In view of the aforesaid discussion, the orders passed by both the learned Courts below holding that the route permit stood transferred on the sale of the bus as it was issued against a particular bus is not sustainable in the eyes of law as the transfer of permit can only be transferred as per the provisions of Section 82 of the Motor Vehicles Act, 1988 and the same are accordingly set-aside by holding the petitioner to be the holder of permit which was granted to him against bus No. HP-68-2281. 16. The petition is disposed of in the aforesaid terms, so also the pending application(s) if any. The parties are left to bear their own costs.