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S.A. Sattar Vs. State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberW.A. No. 546 of 1972
Judge
Reported inAIR1974AP43
ActsMotor Vehicles Act, 1939 - Sections 58 and 68 - Rule 212 and 212(1)
AppellantS.A. Sattar
RespondentState of Andhra Pradesh and ors.
Appellant AdvocateV. Lakshmidevi, Adv.
Respondent AdvocateK. Amaraswari, Adv.
Excerpt:
.....flow from that fact that it is a logical or reasonable inference. we fail to understand when the regional transport authority held that the appellant had indulged in trafficking in permits ,how could he renew another permit. a notification dated 11-6-1970 was brought to our notice which relates to apd 1669 and apd 2000. both the cases were considered at the same time .while renewal was refused in the case of apd 1669 it was permitted in the case of apd 2000. 34. for all these reasons we are satisfied that no case of trafficking in permits within the meaning of rule 212 (1) (iii) (3) has been made out. in these circumstances we fail to see how the renewal of the permit can be refused. we fail to see how such a transaction can be brought within the ambit of rule 212 (1) (iii) (3) merely..........objection till 1970 every three years. a fresh application for renewal was filed in 1970 with the regional transport authority. it was published inviting objections , if any, for such renewal.2. the 4th respondent herein filed objections under section 57(3) of the motor vehicles act objecting to the renewal of permit. he seems to have entered into an agreement with the appellant for the purchase of the bus apd 1669. it is also alleged that in pursuance of the agreement possession of the bus was also given to the 4th respondent . a joint transfer application was filed for transferring the permit relating to the said bus in favour of the 4th respondent. the application was, however rejected by the regional transport authority on the ground that the transaction was not genuine. during the.....
Judgment:

Ekbote, C.J.

1. This appeal is from the judgment of our learned brother O. Chinnappa Reddy , J. given in W.P. No. 2163 of 1972 on 11-10-1972 whereby the learned judge dismissed the Writ petition. It arises in the following circumstances. The petitioner holds a stage carriage permit to his vehicle plying on the route Cuddapah to Tirupati. He had a bus APD 1669 for which he held the said permit. It appears that the original permit was granted some time in 1955 and since then the permit was renewed without any objection till 1970 every three years. A fresh application for renewal was filed in 1970 with the Regional Transport Authority. It was published inviting objections , if any, for such renewal.

2. The 4th respondent herein filed objections under Section 57(3) of the Motor Vehicles Act objecting to the renewal of permit. He seems to have entered into an agreement with the appellant for the purchase of the bus APD 1669. It is also alleged that in pursuance of the agreement possession of the bus was also given to the 4th respondent . A joint transfer application was filed for transferring the permit relating to the said bus in favour of the 4th respondent. The application was, however rejected by the Regional Transport Authority on the ground that the transaction was not genuine. During the pendencey of the appeal, the appellant seems to have withdrawn his consent and consequently the appellate authority dismissed the appeal under Rule 251 of the Rules made under the Motor Vehicles Act. On a further revision to the Government, the appellate order was confirmed.

3. W.P. No. 710 was filed challenging the order of the Government. It was however dismissed and today we have dismissed the appeal (W.A. No. 601/72). Thus ended the proceedings of transfer of the vehicle in favour of the 4th respondent. His objection before the Regional Transport Authority for renewal of the permit was two fold. It was firstly contended that since the appellant was not plying APD 1669 from 1964 after the agreement was executed and as respondent 4 was in possession of the bus and was plying it although the renewals were in the name of the appellant, the renewal should not be granted. The second contention was that the appellant has, in all , during the years 1956 to 1969, transferred 7 permits. He has been trafficking in permits and therefore he is not entitled to renewal of the permit.

4. The Regional Transport Authority rejected the renewal accepting the contention of the objector i.e., 4th respondent on both the grounds raised by him. With regard to the 1st point the Regional Transport Authority said :

'In the absence of any evidence to the contrary and in the light of Exibits 10 to 22 filed by Shri Phool Chand C. Shah, it is evident that APD 1669 was in the possession of Shri Phool Chand C. Shah and was being operated by him in the name of Shri S. A. Sattar on the route Cuddapah to Tirupathi covered by permit in question. The transaction is obviously benami. This is proved beyond all doubt.'

5. In regard to the second contention , the Regional Transport Authority seems to have accepted the explanation given by the appellant in so far as four permits were concerned. Those permits were transfers in favour of members of his own family and obviously were not intended to be made with profit motive. He then considered the 3 permits which were transferred by the appellant one in regard to APD 52 dated 29-4-1956, the second in regard to APD 65 dated 27-11-1958 and the third in regard to APD 68 dated 17-6-1958. The Regional Transport Authority observed :-

'Sri Sattar was not in a position to show that the transfers were made in the normal course of business. The profit motive of such transfers is obvious as in the instant case objecting to the renewal. It is, therefore, obvious that Shri Sattar has indulged in trafficking of permits. This has been proved beyond doubt.'

6. The appellant carried the matter in appeal to the Appellate Authority. The Appellate Authority by its judgment dated 27-7-1972 allowed the appeal and rejected both the contentions raised by the objector. It was of the opinion that the ownership of bus APD 1669 and the permit on the route Cuddapah to Tirupathi were both held by Shri Sattar. The evidence of the income-tax returns would be at best to show that the objector has been enjoying the monetary benefits arising out of the vehicle. Since the appellant had not lost his ownership and still holds the permit the appellate authority thought there was no reason to refuse the renewal of the permit.

7. In regard to the second question , the Appellate Authority took the view that once a transfer of permit was duly allowed by a competent authority , there was no need at a later stage to go into the question of such transfer to ascertain whether the permit holder had trafficked in permits or not. The authority was also of the opinion that the respondent 4 has failed to produce any clinching evidence to bring home the charge of trafficking in permits against the appellant and to refute the claim of the appellant. The appellate authority therefore directed renewal of the permit.

8. The matter then was taken by the 4th respondent to the Government. The Government by its order incorporated in G. O. Ms. No. 1433 dated 5th May, 1972 confined its consideration to the explanation said to be given the appellant before the Appellate Authority. The Government took the view that as the explanation was not offered to the Regional Transport Authority, it should not be accepted. The Government held that the appellant was not at all operating the bus APD 1669 himself and besides he had affected a series of 7 transfers in favour of others. It was therefore clear that the grant of renewal of permit in his favour would not be in public interest. The Government agreed with the view taken by the Regional Transport Authority that the appellant was trafficking in permits. It was this view of the Government that was challenged in the writ petition.

9. The learned single Judge took the view that the Government was justified in upholding the finding of the Regional Transport Authority on the material before it. As many as 7 instances of transfers had been brought to the notice of the transport tribunals. There was no explanation from the petitioner regarding the circumstances in which the transfers were made. The legitimate inference which the transport officials were entitled to draw from the circumstances was that the transfers were effected with a profit motive and that the petitioner has indulged in trafficking of permits.

10. The learned Judge did not consider the second question relating to the bus APD 1669.

11. As a result of the finding that the appellant was indulging in trafficking in permits , the learned Judge dismissed the Writ Petition. It is this view that is now assailed in this appeal.

12. The same two questions were again agitated before us. We take up for consideration first the question relating to the trafficking in permits by the appellant. Rule 212 (1) (iii) (3) reads as under :

(3) If there is evidence that the applicant has been trafficking in permits, either benami or otherwise , 'the applicant shall be screened.'

13. The Rules made under the Motor Vehicles Act do not give a definition of the word 'trafficking' appearing in Rule 212. Some decisions of the Madras and Andhra Pradesh High Courts have had occasion to interpret the said word. In N. Sathianathan v. B. K. P. M. Amaravathi Ammal , : AIR1965Mad308 the learned Judges held that although the transfers were effected after duly obtaining the sanction of the authorities concerned , the question would still be open for consideration whether the operator was indulging in trafficking in permits at the time of granting the permit or renewal of it.

14. The learned Judges then quoted with approval the unreported Judgment in W. A. No. 138 of 1957 (Mad). That was an appeal from the judgment of Rajagopala Ayyangar, J. reversing the decision of the State Transport Appellate Tribunal holding that the onus was on the applicant to prove that the transfer was bona fide and that the Tribunal could have reexamined the circumstances of the transfer and reached its own finding on the point. The contention of lapse of five years without reference to any other fact was also held to be vitiated by error.

15. When the matter came up in appeal before the Bench it was held that a duty lay on the objectors to place before the Tribunal the circumstances in which the transfer was made and to show that it amounted to trafficking in permits. It was not the duty of the Tribunal to embark on such an inquiry and that the condonation of delay involved no error which could justify interference by a Writ of Certiorari.

16. This decision makes two points perfectly clear. Firstly it is the objector who objects to the renewal on the ground that the permit holder had indulged in trafficking in permits who should prove to the satisfaction of the Regional Transport Authority that allegation. It is not for the applicant for renewal to prove that all those transfers were normal transfers and that he had not indulged in trafficking in permits. The second point decided was that the question of trafficking is a question of fact and the High Court ordinarily would not interfere with the finding of fact.

17. In K Narasinga Rao v. The Government of A. P. by its Secretary Home Transport III Department, Hyderabad (196602 Andh W R 320) Kumarayya, J. (as he then was) had the occasion to consider the meaning and implication of the word 'trafficking'. He observed :

'Mere transfer of a permit without more, if the permission was duly obtained , will not amount to trafficking of permit. The concept of 'trafficking' is not defined in relation to permits in the Motor Vehicles Act. Its meaning in common parlance however is well known to one and all. The ordinary dictionary meaning of the word 'trafficking' is 'to carry on trade, to buy and sell often with a sinister implication , used in disparaging sense or said of dealing considered improper.' That is the meaning given in Murray's New English Dictionary to which reference is made in Sathinathan v. Amaravathi , (1964) 1 Mad LJ 140.'

18. The learned Judge followed the decision of the Madras High Court to which we have already made reference.

19. The same view has been recently expressed by Kondaiah , J. In G Satyanarayana Murty v. Government of A.P. , 1972-1 APLJ 168. These judgments, therefore make the position of law beyond any dispute clear. In order to prove the charge of trafficking not only sales and purchases of permits for more than once is necessary but such transactions must have been indulged in with profit motive. Further the motive must be improper whereby a stigma is attached to such transactions. It is only when all these things co-exist that a person can be said to have indulged in trafficking in permits within the meaning of Rule 212 (1) (iii) and not otherwise.

20. We do not agree with the learned Single Judge when he brushed aside the decision of Kumarayya , J. reported in (1966) 2 Andh WR 320 (supra). The learned Judge observed :

'Kumarayya, J.

however at one place observed that unless that sale of a permit takes the form of a trade with profit motive and carries the stigma for being an improper step no idea of trafficking can be attached to it. I do not think that the learned Judge meant that there should be a regular trade in permits before a person can be said to be trafficking in permits. All that the learned Judge meant was that a single instance would not be sufficient to make it trafficking.'

21. It is not only Kumarayya, J. who categorically observed that the word 'trafficking' means to carry on trade or to buy and sell often with a sinister implication used in disparaging sense or said of dealing considered improper which was that dictionary meaning but even the Madras High Court in the decision already quoted has observed :

' The term will cover a case where there are repeated sales conducted as a business, that is a profit motive , in a commodity, whose sales would be improper or would carry a stigma.'

It is thus too clear that the above said decisions lay down that in order to charaterise a transaction as trafficking in permits there should not only be more than one sale but they must be entered into with a motive of profit. The intention must be improper and a stigma attached to such transactions . It is in this sense that the word 'trafficking' is used in Rule 212 (1) (iii) (3).

22. It is pertinent to note that the rule emphasises that there should be evidence before the Regional Transport Authority from which it can be held that the applicant has been indulging in trafficking in permits.

23. The word 'evidence' as appears in clause (3) has not been defined under the Act or the Rules made thereunder. The Evidence Act gives its definition in Section 3. But the Evidence Act in terms does not apply to the authorities functioning under the Motor Vehicles Act . These authorities , however , admittedly perform quasi judicial functions under the Act. It is now very clear that the increasing duties of a welfare State are the result of various social and other legislations which led to the establishment of many administrative tribunals which exercise judicial or quasi judicial functions analogous to those of ordinary Courts. While such tribunals are not bound by all the rules of evidence , they have to conform, nevertheless , to the cardinal rules of evidence in order to obviate injustice. The following decisions made that position clear. R v. Kingston Upon Hull Rent Tribunal, (1949) 65 Tax LR 209; Moxon v. Minister of Pensions, 1945 KB 490.

24. The word 'Evidence' in its original sense signifies the state of being evident , be plain, apparent or notorious. But by an almost peculiar inflection of our language it is applied to that which tends to render evident or generate proof. This is the sense in which it is commonly used in our law books. Thus evidence is the means from which an inference may be logically drawn as to the existence of a fact. It consists of proof by testimony of witnesses on oath or by writings or records. See Tamlin's Law Dictionary. In Gobarya v. Emperor, AIR 1930 Nag 242 (FB) it is held that the word 'evidence' signifies only the instruments by means of which relevant facts are brought before the court. It is in the light of this meaning of the word 'evidence' that we have to see whether there was any evidence to reach the conclusion that the appellant was indulging in trafficking of permits in the sense in which that word is now understood by Courts. Admittedly there is no evidence, whatsoever to even prove that the three agreements on the basis of which this argument is sought to be based were entered into with motive of profit and that it was a part of the business or trade carried on in selling and purchasing permits. Nor is there any evidence to show that there was any improper motive behind these transactions as a result of which any stigma would be attached to such transactions. In the absence of any such proof it would not be proper to hold that the appellant is guilty of indulging in trafficking in permits within the meaning of Rule 212 (1) (iii) (3).

25. The only basis on which the Regional Transport Authority and the Government on the one hand and the learned Single Judge on the other reached the conclusion of trafficking was the bare fact of 7 transfers of permits by the appellant - 4 in favour of his relations and 3 in favour of strangers. We have already noticed that so far as transactions in favour of relations are concerned , the Regional Transport Authority has not found any fault. The Appellate Authority did not even touch it. The Government did not consider the case in relation to those four permits. Throughout the proceedings only 3 permits were under consideration. The question, therefore is whether merely because there was one transaction in 1956 and two transactions in 1958 can a presumption or inference be drawn that the appellant is indulging in trafficking in permits.

26. It is well to remember that there is a distinction between a mere inference and a presumption of fact. One is to be very cautious in using these terms. Presumptions and inferences are not the same. A presumption is a deduction which the law requires particularly to make ; and an inference is a deduction which the drawer may or may not make according to his own conclusions. Presumption is mandatory and inferences are permissible. A presumption thus is a conclusion drawn from proof of facts or circumstances and stands as establishing facts untill overcome by contrary proof. A presumption of fact is an inference which a reasonable man would draw from certain facts which have been proved. Its basis is in logic and its source is probability. What follows therefore is that a presumed fact is one taken for granted and accepted as a result of human experience and general knowledge while the inference is the conclusion drawn from the proof or admission of circumstances which by reason of the same human experience and knowledge would naturally lead to it. Inference accordingly is a deduction or conclusion from known facts.

27. Bearing this distinction between the two in mind , let us examine first whether there is any justification for drawing the presumption of trafficking in permits from the bare fact that in 1956 and in 1958 the appellant had transferred three buses to strangers. There is no provision in law brought to our notice which permits a presumption of trafficking. Section 114 of the Evidence Act is not applicable nor does it permit any such presumption. In the absence of any provision therefore it would not be correct to draw a presumption from any such fact. The question of presumption is therefore, ruled out.

28. Coming then to the question of inference, can it be said that from the mere fact that 3 transactions were entered into in 1956 and 58 it logically and reasonably follows that the appellant was indulging in trafficking of permits. We do not think , by any stretch of argument, such an inference can be drawn from the fact of the said transactions. The transactions may or may not have been entered into with profit motive. They may or may not have been indulged in with improper intention. These transactions may or may not attach any stigma. In such circumstances we fail to see how any reasonable man would draw an inference of trafficking in permits from these three transactions taking place in 1956 and 1958. It does not flow from that fact that it is a logical or reasonable inference.

29. The result in inescapable that there is no evidence to prove trafficking in permits. Nor there is any justification for drawing any presumption or inference from the fact of mere transfers that the appellant was indulging in trafficking in permits.

30. Furthermore, the 4th respondent , who apparently knew about the said three transfers , did not choose to object right from 1964 till 1970. It is only when his transaction fell through and the consent was withdrawn by the appellant and the relations were strained and litigation ensued that he has now chosen to take steps to spite the appellant.

31. It is also quite relevant to mantion that after 1958, there have been several renewals of the permit in question . A long period of 12 years has elapsed. These factors coupled with the transfer of those permits with due permission of the authorities speak against holding that these transactions are trafficking in permits. The very fact that no objection was raised at any time by any one indicates , to a large extent , that they are normal transactions.

32. It is also quite pertinent to note that the Tribunal, the Government and the learned Judge were under the belief that the onus was on the appellant to prove that the said transactions were normal transactions and that the onus of proving that he has not indulged in trafficking in permits lay upon the appellant . It is only because of that belief his explanation was considered and rejected. The onus in our judgment was wrongly placed upon the appellant. We have already seen that in W. A. No. 138 of 1967 the Division Bench of the Madras High Court held that the onus is always on the objector to make out the case of trafficking in permits. From the facts narrated above it would be clear that the said onus has not been discharged by the objector, i.e., the 4th respondent.

33. It is also curious that the day on which the renewal of permit in question was refused , the Regional Transport Authority renewed another permit of the appellant in the same meeting. We fail to understand when the Regional Transport Authority held that the appellant had indulged in trafficking in permits , how could he renew another permit. A notification dated 11-6-1970 was brought to our notice which relates to APD 1669 and APD 2000. Both the cases were considered at the same time . While renewal was refused in the case of APD 1669 it was permitted in the case of APD 2000.

34. For all these reasons we are satisfied that no case of trafficking in permits within the meaning of Rule 212 (1) (iii) (3) has been made out. The Government therefore, was wrong in allowing the revision petition and in setting aside the order of the Appellate Authority.

35. We then turn to the second question which is as to what is the effect of the bus APD 1669 being in possession of the 4th respondent. We have already noted that the Regional Transport Authority had refused to renew the permit also on the ground that the 4th respondent has been operating the bus and although the ownership rests with the appellant his permit cannot be renewed. We have also noticed that the Appellate Authority took a different view. The agreement is now in dispute and is subject of litigation before the Civil Court. The transfer application consequently fell through. It was rejected by the Regional Transport Authority on the ground that the transaction was not genuine. The consent has been withdrawn. Any question of transfer by the appellant of the permit therefore no more remains valid. It is true that from 1964 the 4th respondent seems to be plying the bus although thereafter more than once the permit was renewed in the name of the appellant. The 4th respondent, however, admittedly was running the bus on behalf of the appellant and not on his own. It is clear from the memorandum of appeal which the 4th respondent filed before the Appellate Authority in Ground No. 5 that he admitted that the appellant had entrusted the management of the vehicle to the respondent. In these circumstances we fail to see how the renewal of the permit can be refused. If the bus is in possession of the 4th respondent it is always open to the appellant to take such steps to recover possession from him. It is always open to him to substitute another bus if that bus is not available and cannot be run. The 4th respondent, however , in view of the strained relations will not be able to run the bus on behalf of the appellant as he was doing till now. The ownership of the bus remains with the appellant, the permit continues to be in the name of the appellant. Merely because there was some agreement , which is now in dispute in a Civil Court and the bus is lying with the 4th respondent , we do not think that the renewal of permit can be refused. No provision of law or any authority was brought to our notice nor are we aware of any such provision or authority on the basis of which in such circumstances renewal of permit can be refused.

36. The Regional Transport Authority obviously went wrong in holding that the transaction between the appellant and the 4th respondent in regard to this bus is a benami transaction. When the 4th respondent is alleging an agreement of sale and possession of the bus in pursuance of the same was taken, it is not known how the said transaction can be said to be a benami transaction. The bus stands in the name of the appellant who has paid money. There is no ostensible ownership remaining with the 4th respondent. This is not a benami transaction at all. We fail to see how such a transaction can be brought within the ambit of Rule 212 (1) (iii) (3) merely because the word 'otherwise' is used in the said rule. This is neither a case of invalid transaction nor a case of benami. It is not traceable to either . Even such transaction cannot be said to be otherwise invalid under Rule 212 (1) (iii) (3). We do not also see any reason to hold that it was invalid. We therefore experience no difficulty in rejecting the second contention.

37. For the aforesaid reasons we allow the appeal, set aside the judgment of the learned Judge and allow the writ petition. We direct issue of a writ of certiorari to quash the impugned G.O. issued by the Government and as a result restore the order of the appellate authority directing renewal of the permit. The appellant will get his costs throughout. Advocate's fee Rs. 100/- in each court.

38. Appeal allowed.


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