ZILA BUS OPERATORS ASSOCIATION, JHANSI v. STATE OF U. P
2018-09-07
SUNITA AGARWAL
body2018
DigiLaw.ai
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri G.K. Singh learned Senior Advocate assisted by Sri Greesh Kumar Malviya learned counsel for the petitioner and Sri Vivek Saran learned counsel for the respondent No. 4. 2. The present petition is directed against the order dated 10.7.2018 passed by the Chairman, State Transport Appellate Tribunal, U.P. Lucknow, in Revision No. 50 of 2016 (old number) 5 of 2018 (new number) which is the result of a dispute between the revisionists and the UPSRTC namely respondent No. 4 for grant of permit on a route notified for private operators. 3. The revision was filed against the order dated 12.8.2016 whereby permit on the two Interstate routes mentioned in the Schedule-2 of the reciprocal agreement dated 21.11.2006 was granted in favour of UPSRTC. The revision No. 50 of 2016 was filed in the name of Zila Bus Operator Association, New Basti Stand, Kanpur Road, Jhansi through its authorized person. 4. The President and Secretary of the association have been arrayed as revisionist No. 1 and 2 in the memo of revision whereas respondent No. 4 was impleaded as the opposite party No. 2. 5. It appears that for correction in the memo of revision, an application No. B-53 was filed by the revisionist wherein a correction was sought in the array of parties with the assertion that inadvertently due to clerical mistake, the array of the parties from the revisionists side is defective in the memo of revision. The amendment was sought to the effect that figure ‘B’ be permitted to be added in the array of parties and words “through its President” be also allowed to be added after the words “Zila Bus Operator Association”. 6. Another application B-63 was filed for correction in the application B-53 to certain extent. 7. Thus, by two applications B-53 and B-63 moved by the revisionist, the correction in the array of parties in the memo of revision are sought to the extent that Zila Bus Operator Association be allowed to be mentioned as revisionist No. 1 and be corrected as having filed the revision though its President or Secretary. Whereas, the revisionist No. 1 and 2 namely Sri Mohd. Yaqoob and Sri Anoop Kumar Yadav be allowed to be remain as revisionist Nos. 2 and 3. 8. Corresponding correction has been sought in the paragraph No. 1 of the memo of revision.
Whereas, the revisionist No. 1 and 2 namely Sri Mohd. Yaqoob and Sri Anoop Kumar Yadav be allowed to be remain as revisionist Nos. 2 and 3. 8. Corresponding correction has been sought in the paragraph No. 1 of the memo of revision. The respondent No. 4 filed objections against both the applications on the plea of maintainability of the revision on behalf of the proposed revisionists and further that the amendment application has been filed with a view to delay the disposal of the preliminary issue of maintainability of the revision. 9. It is further submitted that the amendments have been sought in order to avoid the rigors of limitation provided in the first proviso to Section 90 of the Motor Vehicle Act’ 1988 (in short as Act’ 1988), for filing revision. 10. The tribunal has rejected the application B-63 for seeking correction in the amendment application B-53 by order dated 10.7.2018. The present petition was filed against the said order. After filing of the said petition, another order dated 6.8.2018 has been passed by the tribunal rejecting the application B-53 which order has been challenged by means of the amendment application allowed on 16.8.2018. 11. Both the correction/amendements applications have been rejected by the tribunal on the ground that the corrections which the revisionists were seeking are not permitted in as much as in the proceeding in question held under the Act’ 1988, the provisions of Code of Civil Procedure would not apply. The State Road Transport Tribunal is not guided by the principles of procedure under the Code of Civil Procedure and as such the provisions of amendment under Order 6 Rule 17 CPC cannot be applied. 12. The assertion of learned Senior Counsel for the petitioner is that the amendments sought in the memo of revision are in the nature of corrections in as much as, categorical stand has been taken in paragraph No. ’2' and ‘3’ of the memo of revision that it has been filed both on behalf of the Association and other revisionists. The statement in paragraph No. 2 and 3 of the memo of revision have been placed before the Court. 13.
The statement in paragraph No. 2 and 3 of the memo of revision have been placed before the Court. 13. Placing reliance on the judgment of this Court in Matter Under Article 227 No. 3537 of 2015 (Rajesh Mishra v. Smt. Kiran Tiwari and others) passed on 21.7.2015 and Yadunandan and others v. Mansha Devi, 2015(8) ADJ 748 and the judgement of Madras High Court in D.Kannan v. Sourthern Roadways and another, AIR 1981 MADRAS 144, it is submitted that the appellate tribunal has been constituted to determine the dispute between the parties in a judicious manner. In exercise of its inherent power to act as a quasi-judicial authority, it has power to allow any correction in the memo of revision. The corrections sought by the petitioner cannot be said to be amendment within the meaning of Order 6 Rule 17 CPC in as much as, no amendments have been sought in the pleading or the stand taken by the revisionst in the memo of revision. Mere mention of correction application as Amendment application would not invoke the provisions of Order 6 Rule 17 of CPC. 14. Sri Vivek Saran learned counsel for the respondent, on the other hand, submits that under the provision of Act’ 1988 read with U.P. Motor Vehicle Rules 1998 (in short as the Rules’ 1998), the procedure provided in the Civil Procedure Code is not applicable. As per Rule 91, for disposal of an appeal filed under Section 89 of the Motor Vehicle Act by the State Transport Appellate Tribunal, it has no power to allow any amendment which would change the nature of the litigation between the parties. By means of the amendment applications filed in the revision, the applicants seek to ventilate their personal grievances by being added as party after two years. The revision No. 50 of 2016 was filed only on behalf of the Zila Bus Operator Association through its President and Secretary. One of the applicants at the best can be said to have been arrayed as President of the Association. He cannot be allowed to raise any personal grievances in the present revision filed by the Association. It is further submitted that the limitation of 40 days has been provided under the first proviso to Section 90 of the Act for filing the revision.
He cannot be allowed to raise any personal grievances in the present revision filed by the Association. It is further submitted that the limitation of 40 days has been provided under the first proviso to Section 90 of the Act for filing the revision. After a period of approximately 2 years, the petitioners cannot be permitted to be added as revisionists for ventilating their own grievances being private operators on the route in question. 15. Reliance is placed upon the judgement of the Apex Court in the case of Securities & Exchange Board of India v. Saikala Associates Limited, 2009 (7) SCC 432 , to submit that the tribunal is creation of statute and as such, it can exercise the jurisdiction, powers and authority conferred on it by or under the statute or any law for the time being in force. The tribunal is a body of limited jurisdiction and it has power to entertain any dispute within the four corners of the statute itself. What has not been provided in the statute cannot be done by the tribunal. 16. Considered the submissions of learned counsel for the petitioner and perused the record. In order to address the controversy at hands, it would be appropriate to go through the provisions of Section 89, 90 of the Act’ 1988 and Rule 91 of Rules’ 1998. “89. Appeals.—(1) Any person - (a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or (b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or (c) aggrieved by the refusal to transfer the permit under Section 82, or (d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such countersignature, or (e) aggrieved by the refusal of renewal of a permit, or (f) aggrieved by the refusal to grant permission under Section 83, or (g) aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the State transport Appellate Tribunal constituted under sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final.
(2) The State Government shall constitute such number of Transport Appellate Tribunals as it thinks fit and each such Tribunal shall consist of a judicial officer who is not below the rank of a District Judge or who is qualified to be a judge of the High Court and it shall exercise jurisdiction within such area as may be notified by that Government.] (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), every appeal pending at the commencement of this Act, shall continue to be proceeded with and disposed of as if this Act had not been passed. 90. Revision.—The State Transport Appellate Tribunal may, on an application made to it, call for the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority against which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final : Provided that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a State Transport Authority or Regional Transport Authority, unless the application is made within thirty days from the date of the order : Provided further that the State Transport Appellate Tribunal may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by good and sufficient cause from making the application in time : Provided also that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard. Rule: 91. Appeal against the order of State or Regional Transport Authority;- (1) The authority to decide an appeal against the order of the State Transport Authority or a Regional Transport Authority in respect of matters dealt with in clauses (a), (b), (c), (d), (e), (f) and (g) of sub-section (1) of Section 89 shall be the State Transport Appellate Tribunal, constituted under sub-section (2) of Section 89.
(2) Any person aggrieved by an order referred to in sub-rule (1) may prefer an appeal within thirty days of the receipt of the order to the Chairman of the said Tribunal in the form of memorandum alongwith the requisite number of envelopes and necessary postage stamps for making service of notices through registered post on the respondents other than the State and Regional Transport Authorities. The memorandum shall set-forth concisely and under distinct heads the grounds of objection to the order appealed from. The memorandum shall be accompanied by as many copies thereof as there are respondents and shall also be accompanied by a certified copy of the order appealed against. (3) (I) The appeal may be filed and argued by the appellant himself or by an agent or an Advocate, duly authorised in this behalf. On behalf of the respondent, other than the transport authority, the appeal may be argued by the respondent himself, by an agent or an Advocate duly authorized in this behalf. (ii) On behalf of the transport authority, the Deputy Transport Commissioner (Tribunal) or an officer of the Transport Department, an agent or an Advocate duly authorised in this behalf by the Transport Commissioner may argue the appeal and may generally appear, act and plead before the Appellate Tribunal. (4) Upon receipt of an appeal in accordance with sub-rules (1), (2) and (3), the Tribunal may fix a date within the office hours, for hearing of the appeal giving the transport authority on the address given in the memorandum of appeal or at any other address that may be filed by them for the purpose. The notice to the transport authority shall be given through the Deputy Transport Commissioner (Tribunal) or through such other person who may be appointed to argue the appeal before the Appellate Tribunal. (5) The notice of the date of the hearing shall be given by registered post to the appellant and the respondent, other than the transport authority on the address given in the memorandum of appeal or at any other address that may be filed by them for the purpose. The notice of the transport authority shall be given throug the Deputy Transport Commissioner (Tribunal) or through such other person who may be appointed to argue the appeal before the Appellate Tribunal.
The notice of the transport authority shall be given throug the Deputy Transport Commissioner (Tribunal) or through such other person who may be appointed to argue the appeal before the Appellate Tribunal. (6) The Appellate Tribunal may, for sufficient reason, restore an appeal dismissed in default or for want of prosecution on an application moved by an appellant within fifteen days from the date of the knowledge of the order of dismissal of the appeal. (7) The appellant shall, within fourteen days of the receipt of the intimation of the date of hearing, submit to the Tribunal copies of the documents upon which the appellant proposes to rely. The respondent shall have a right to file papers, on which he relies, within a week of the filing of the documents by the appellant. (8) The Secretary, State Transport Authority, or Regional Transport Authority, may give copies of any document connected with an appeal preferred under sub-rule (2) on payment of fee as specified under Rule 125. (9) The Secretary, State Transport Authority, or Regional Transport Authority, may allow any person interested in an appeal to inspect the file connected with such appeal on payment of fee as specified under Rule 125.” 17. The State Transport Appellate Tribunal has been constituted by the State Government under sub-section (2) of Section 89 of the Act’ 1988. Supervisory power of revision has been provided to the tribunal under Section 90 of the Act’ 1988. Rule 91 of Rules’ 1998 deals with the procedure which are to be followed by the appellate tribunal to decide an appeal. No such procedure has been provided for disposal of revision as the revision itself is a procedural remedy. 18. Under sub Rule 5, 6, 7 and 8 of Rule 91, the Appellate Tribunal before proceeding to decide the appeal has to give notice to the other side fixing a date for hearing of the appeal. Under Sub Rule (6) it has power to restore an appeal dismissed for default or for want of prosecution on an application filed by the appellant within 15 days from the knowledge of the order of dismissal of appeal. Under Sub Rule (7) it has power to fix a date asking the parties to submit copies of documents which they proposed to rely.
Under Sub Rule (7) it has power to fix a date asking the parties to submit copies of documents which they proposed to rely. It has power to supply the copies filed by one party to the other on payment of fees as prescribed under Rule 125. Under Sub Rule (9) it can allow the parties to investigate a file kept with the appeal on payment of such fees as prescribed under Rule 125. 19. Having gone through the provisions of Rules 91, there cannot be a doubt to the fact that the tribunal has to act in a judicious manner while disposing an appeal or revision filed under Section 89 and 90 of the Act’ 1988 before it. 20. Even otherwise, a quasi-judicial authority while disposing of the matter before it has to confirm to the rules of natural justice, fair play and equity. 21. In view of the above, there cannot be a doubt to the fact that in order to meet the ends of justice and fair play, it has an inherent power to allow a party to make corrections in the memo of revision. The procedure of amendment under Order 6 Rule 17 of CPC may not be available to the tribunal constituted under the Act’ 1988, however, in its inherent power, it can allow any correction which would not change the nature of the dispute raised by the parties and are necessary to meet the ends of justice and to bring the dispute to its just end. 22. Now the question remains as to whether in the instant case, the correction being sought by the applicant are in the nature of amendment under Order 6 of Rule 17 or mere correction on account of clerical mistake as stated in the application B-53 termed as amendment application. 23. The averments in the memo of revision in paragraph Nos. 1, 2 and 3 would be relevant to be seen for the purpose which reads as under: “1. That the revisionist No. 1 is the President and the revisionist No. 2 is the Secretary of the Zila Bus Operators Association, New Bus Stand, Kanpur Road, Jhansi. The Association is a registered body and it’s Registration No. 251/1998-99. The Association is constituted by the private operators of the Jhansi Region. The Association is constituted for the welfare and to safeguard the interest of its members according to Law.
The Association is a registered body and it’s Registration No. 251/1998-99. The Association is constituted by the private operators of the Jhansi Region. The Association is constituted for the welfare and to safeguard the interest of its members according to Law. The above named revisionists are authorized for filing the revision. The photo copy of the registration certificate of the aforesaid association is annexed as Annexure-1. 2. The revisionists were filing their objections before the State Transport Authority, U.P., Lucknow on behalf of the association and also in their personal capacity. The revisionists are permit holder and also the applicant for the permit on the routes mentioned in the Schedule “A” of the reciporacl Agreement dated 21.11.2006 as such revisionists are the aggrieved person. 3. That the revisionist No. 1 has the permit on inter-state route Datia-Samthar via Jhansi and likewise the revisionist No. 2 has the permits on inter-state route Jhansi-Khurai via Lalitpur and Garautha-Ashoknagar via Markuwan routes. The permit granted to U.P.S.R.T.C under impugned order overlaps the major portion of the revisionist route which badly affects the operation of the revisionist buses as such revisionist are the aggrieved. The copies of the permits are annexed as Annexure-2 and 3.” 24. Paragraph No. 1 of the memo of revision describes revisionist No. 1 and 2 as President and Secretary of Zila Bus Operators Association and that the association being a registered body and constituted by the private operators of the Jhansi region. 25. Paragraph No. 2 however, says that the revisionists have filed their objections before the State Transport Authority U.P. on behalf of the association and also in their personal capacity. It further goes on to say that the revisionists are permit holders and also the applicants for the permit on the routes mentioned in the Schedule-”A” of the reciprocal agreement dated 21.11.2006, as such revisionists are aggrieved persons. 26. Paragraph No. 3 of the memo of revision further stays that the revisionist No. 1 has the permit on Interstate route namely Datia-Samthar via Jhansi and likewise the revisionist No. 2 has the permit of Interstate route namely Jhansi-Khurai via Lalitpur. The permit granted to the UPSRTC under the impugned order overlaps the major portion of the revisionists route which badly affects the operation of the revisionists buses, as such revisionists are the aggrieved persons. 27. Having considered the averments in paragraph Nos.
The permit granted to the UPSRTC under the impugned order overlaps the major portion of the revisionists route which badly affects the operation of the revisionists buses, as such revisionists are the aggrieved persons. 27. Having considered the averments in paragraph Nos. 1, 2 and 3, this Court, is of the considered view that there cannot be any other opinion that the revision was filed on behalf of all the revisionists i.e. revisionist No. 1 and 2 alongwith the Association through its authorized representatives. 28. The correction being sought by application B-53 in the array of parties by specifying association and other two revisionist as Nos. 1, 2 and 3 i.e. revisionsts in their own capacity cannot be said to be an amendment within the meaning of Order 6 Rule 17 CPC changing the cause of action for filing of the revision. Further, no correction has been sought in the pleadings by the applicants. 29. In view thereof, the corrections being sought by the applicants by means of the application B-53 cannot but be said to be the correction which had occurred due to clerical mistake. The tribunal in its inherent power can permit the correction which are in the nature of clerical mistake. The orders for rejection of the application B-53 and B-63 passed by the tribunal on the ground that the provisions of Order 6 Rule 17 for amendment in the pleading of array of parties cannot be invoked by the applicant, therefore, suffers from grave illegality. 30. For the above noted reasons, while setting aside the orders dated 10.7.2018 and 6.8.2018 passed by the respondent No. 2 in Revision No. 50 of 2016 (old number)/5 of 2018 (new number) (Zila Bus Operators Association and another v. S.T.A. U.P., Lucknow and others), both the applications B-53 and B-63 are hereby allowed. 31. The tribunal is directed to permit the parties to make corrections in the memo of revision within a shortest period. It goes without saying that the tribunal shall decide the primary objections raised by the respondent No. 4 regarding maintainability of revision before proceeding on merit. 32.
31. The tribunal is directed to permit the parties to make corrections in the memo of revision within a shortest period. It goes without saying that the tribunal shall decide the primary objections raised by the respondent No. 4 regarding maintainability of revision before proceeding on merit. 32. As the revisionists are enjoying interim order passed by the tribunal, the tribunal is hereby directed to proceed with the matter expeditiously and make an endeavor to decide the matter, preferably, within a period of four months from the date of submission of certified copy of this order without granting any unnecessary adjournment to either of the parties. 33. Subject to the above observations and directions, the writ petition is disposed of.