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Madhya Pradesh High Court · body

2020 DIGILAW 62 (MP)

ABDUL FARID v. STATE OF M. P.

2020-01-09

SANJAY DWIVEDI

body2020
ORDER : – Mr. H. C. Kohli, Advocate for the petitioner. Mr. Anuj Agrawal, Government Advocate for respondent Nos. 1 and 2/State. Mr. Ashish Rawat, Advocate for respondent No. 3. Since pleadings are complete and counsel for the parties are ready to argue the matter finally, therefore, it is heard finally. 2. By the instant petition, the petitioner is assailing the order dated 29-11-2019 (Annexure-P/3) passed by the State Transport Appellate Tribunal, Gwalior (STAT) in a revision preferred by respondent No. 3 against the order dated 4-6-2019 passed by the Regional Transport Authority (RTA) whereby the Revisional Authority has allowed the revision setting-aside the order passed by the RTA. 3. Counsel for the petitioner has assailed the order impugned mainly on two counts that the Revisional Authority has proceeded in the matter on assuming and presuming the things which were not existing in the matter and as such, the finding of the STAT is based upon the assumption and presumption as such, the same is not sustainable in the eyes of law. He further submits that the Revisional Authority has exceeded its jurisdiction and substituted its opinion on assuming the things out of the record which is also not permissible under the law. 4. Per contra, counsel on caveat for respondent No. 3 submits that the order passed by the Revisional Authority is just and proper and the order passed by the RTA is liable to be set-aside as the petitioner failed to comply with the mandatory requirements of Rule 72(3)(d) of the M. P. Motor Vehicles Rules, 1994 (in short the ‘Rules 1994’). He submits that despite the order passed by this Court on 23-12-2019, the petitioner failed to file the relevant documents to show that on the date of considering the application i.e. on 7-3-2019, the petitioner was not having any outstanding tax dues whereas the tax dues amounting to Rs. 1,67,000/- was outstanding against the petitioner on the date of considering the application and as such, the order passed by the Revisional Authority was proper and the petitioner could not have been granted the permanent permit for the route Bhopal to Khandwa. On the aforesaid grounds, respondent No. 3 is supporting the order passed by the Revisional Authority. 5. Brief facts for adjudication of the case are that the petitioner applied for grant of permanent permit for the route Bhopal to Khandwa. On the aforesaid grounds, respondent No. 3 is supporting the order passed by the Revisional Authority. 5. Brief facts for adjudication of the case are that the petitioner applied for grant of permanent permit for the route Bhopal to Khandwa. The RTA, Bhopal considered the application submitted by the petitioner and also considered the objections raised by respondent No. 3. Respondent No. 3 raised an objection before the RTA that the timing as has been given by the petitioner is not in the public interest so also is conflicting with the timing of the other operators. He also raised another objection that the application submitted by the petitioner under the provisions of M. P. Karadhan Adhiniyam, 1994 is not in compliance of the required provisions of sub-Rule (3) of Rule 72 of the Rules, 1994 and the documents in support thereof have not been submitted by the petitioner. The RTA after taking note of the fact and considering the objections raised by respondent No. 3, passed an order on 4-6-2019 (Annexure-P/1) granting permanent permit in favour of the petitioner for a period of five years. As per petitioner, the permit was also granted by the Competent Authority in pursuance to the order passed by the RTA. Thereafter, a revision was preferred by the objector/respondent No. 3 challenging the order passed by the RTA on 4-6-2019 granting permanent permit to the petitioner for the route Bhopal to Khandwa. In the said revision, he assailed the order of the RTA mainly on the ground that the petitioner has not complied with the requirements of sub-Rule (3) of Rule 72 of the Rules, 1994 and has also not filed the necessary documents along with the application and on the date of considering the application i.e. 7-3-2019 there was an outstanding tax of 1,67,000/- against him and therefore, no permanent permit could have been issued in favour of the petitioner. Respondent No. 3 had also contended that the timing given by the petitioner was not in the public interest and was conflicting with the timing of the other operators, therefore, the application submitted by the petitioner ought to have been rejected. Respondent No. 3 had also contended that the timing given by the petitioner was not in the public interest and was conflicting with the timing of the other operators, therefore, the application submitted by the petitioner ought to have been rejected. A reply to the revision preferred by respondent No. 3 was filed by the petitioner holding that the contention raised by respondent No. 3 before the Revisional Authority is of no substance as the RTA has clearly observed that the timing is in the public interest and is according to the frequency of the route. It is also stated by the present petitioner in his reply that the revision is not maintainable because the objector/respondent No. 3 was not the co-applicant and he has not submitted any application for grant of permanent permit and he is also not plying the vehicle on the impugned route i.e. Bhopal to Khandwa and as such, the revision preferred by respondent No. 3 is liable to be dismissed as not maintainable. The Revisional Authority has considered the revision preferred by respondent No. 3 and passed the order impugned and has finally set aside the order passed by the RTA. 6. From a bare perusal of the order impugned, it is clear that the objections raised by respondent No. 3 regarding outstanding tax as well as not complying with the requirements of sub-Rule (3) of Rule 72 of the Rules, 1994, the Revisional Authority has rejected the said contention of respondent No. 3 by its order in paragraph- 19 on the ground that on the basis of the documents filed by the parties as also from the record of the sub-ordinate Authority, there was no information available regarding the tax whether it was due or not and, therefore, in paragraph-19 of the order, it is observed by the Revisional Authority that it would not be proper to draw any inference or reach at a conclusion that the petitioner was not entitled to get the permanent permit on the ground that there was outstanding tax dues against the petitioner. As per the Revisional Authority, the said issue has been made equivocal by the parties by filing various documents and also by a report filed by the sub-ordinate Authority. As per the Revisional Authority, the said issue has been made equivocal by the parties by filing various documents and also by a report filed by the sub-ordinate Authority. Thus, it is clear that the Revisional Authority has not given any finding in respect of objection raised by respondent No. 3/caveator for non compliance of requirements of sub-Rule (3) of Rule 72 of the Rules, 1994. However, the Revisional Authority in paragraph-14 of its order has considered and discussed the objection regarding timing as proposed by the petitioner and has observed that the timing proposed by the petitioner was not in the public interest and has relied upon a decision of Vivek Dwivedi and another vs. Prem Narain and others, reported in AIR 1999 M.P. 1 and on the basis of said judgment, set aside the order passed by the RTA and passed the order impugned. 7. As per petitioner, from a perusal of the discussion made by the Revisional Authority in paragraph-14 of its order regarding the timing given by the petitioner, it is clear that the same is based upon assumption and presumption and such finding is not sustainable under the law. 8. I find substance in the contention raised by the counsel for the petitioner because from a bare perusal of the discussion made in paragraph-14 by the Revisional Authority in its order, it is clear that the Authority has presumed certain things and then arrived at a conclusion that the timing given by the petitioner is not in the public interest. As contended by the petitioner, the Revisional Authority cannot substitute its own opinion but has to see the correctness of the order passed by the RTA and is not under obligation to perform the primary functions and act as a RTA. As such, I find that the Revisional Authority exceeded its jurisdiction by presuming and assuming the things and has observed that the timing given by the petitioner is not in the public interest whereas the Revisional Authority cannot act in such a manner analysing the correctness of the order passed by the RTA and if at all the Revisional Authority was not satisfied then he could remit the matter back to the RTA. 9. 9. In view of the Full Bench decision reported in AIR 1970 M.P. 230 parties being Surendra Mohan Chaurasiya vs. State in which the Full Bench has observed the scope of appeal and revision and the applicability of those Authorities holding as to what extent they can interfere in the matter. In the said case the Full Bench has observed as under : – 11-A.......The appellate authorities are only for the purpose of correcting the mistakes and not discharging the primary functions. – For this reason I am of the view that the Appellate Authority would be justified in remanding the case where the Regional Transport Authority totally failed to determine the competing claims of the parties on a consideration of the material on record having regard to the provisions under section 47 of the Motor Vehicles Act and has even failed to refer in its order to the material placed before it. 10. Accordingly, I am of the opinion that the order passed by the Revisional Authority is not sustainable and is liable to be set aside. Although, as per respondent No. 3 despite the order passed by this Court directing the petitioner to submit an affidavit as to whether on the date of considering the application i.e. 7-3-2019, he had any arrears of tax and in compliance of the same, the petitioner has not submitted those documents, however as per the finding given by the Revisional Authority in paragraph-19 of its order and observing therein that it is not appropriate to draw any inference in respect of unpaid tax outstanding against the petitioner and the said finding has not been assailed by the objector/respondent No. 3 and hence without challenging the same, the finding of that particular issue cannot be disturbed by this Court under Article 227 of the Constitution of India. 11. Thus, the order dated 29-11-2019 (Annexure-P/3) passed by the Revisional Authority is quashed on the ground that the finding given by the said Authority is based upon presumption and assumption and the same has exceeded its jurisdiction in view of the Full Bench decision in the case of Surendra Mohan Chaurasiya (supra). 12. In view of the aforesaid discussion, the petition filed by the petitioner stands allowed. Parties shall bear their own costs.