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Dayalal N. Joshi Vs. State Transport Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 99 of 1971
Judge
Reported inAIR1973Ori39
ActsMotor Vehicles Act, 1939 - Sections 44(3) and 45; Orissa Motor Vehicles Rules, 1940 - Rule 52A; Constitution of India - Article 226
AppellantDayalal N. Joshi
RespondentState Transport Authority and ors.
Appellant AdvocateS.C. Parija, ;S. Mohanty, ;R.S. Mohanty and ;G.P. Mohanty, Advs.
Respondent AdvocateStanding Counsel, ;B. Nayak and ;S.C. Mohapatra, Advs.
DispositionApplication allowed
Cases ReferredSheik Hussain and Sons v. State of Andhra Pradesh
Excerpt:
.....devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the opposite parties contend that there was no provision in the statute clearly prescribing disposal of matters relating to disposal of such matters by transport authorities as provided under rule 52-a. chaman paswan, air 1954 sc 340, it was stated- it is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution end even in collateral proceedings......sambalpur in 1960 and was duly, countersignedby the transport authority of bolangir. in 1967, the state transport service came to operate a second bus on this route, but sometime after withdrew the service. as there was need for a second bus to cater to the travelling public on this route and no other operator was forthcoming, the petitioner was allowed to operate a second bus on this route from august 1969. the regional transport authority while granting the permit imposed a condition that the permit would be alive until the state transport authority issues a permit for a second bus. the state transport authority opposite party no. 1 in due course invited applications (from intending pliers for this route. the petitioner, opposite party no. 3 and six others applied and on 28th of.....
Judgment:

R.N. Misra, J.

1. The petitioner and opposite party No. 3 are stage carriage operators. The petitioner has been operating a stage carriage on the route Bargarh to Rampur with extension to Pinka. This permit was granted by the Regional Transport Authority of Sambalpur in 1960 and was duly, countersignedby the Transport Authority of Bolangir. In 1967, the State Transport Service came to operate a second bus on this route, but sometime after withdrew the service. As there was need for a second bus to cater to the travelling public on this route and no other operator was forthcoming, the petitioner was allowed to operate a second bus on this route from August 1969. The Regional Transport Authority while granting the permit imposed a condition that the permit would be alive until the State Transport Authority issues a permit for a second bus. The State Transport Authority opposite party No. 1 in due course invited applications (from intending pliers for this route. The petitioner, opposite party No. 3 and six others applied and on 28th of October 1970, the State Transport Authority granted the permit for a second bus on this route in favour of opposite party No. 3. The petitioner carried an appeal and lost. This writ petition is directed against the said appellate order and we are asked to quash the grant of the permit and the appellate order upholding such grant.

2. The petitioner's contention is that the State Transport Authority has no jurisdiction to grant the permit on the route and as such the grant is liable SB be quashed.

3. On the other hand, the opposite party No. 3 contends that the State Transport Authority has jurisdiction. A preliminary objection to the entertainment of the writ petition is raised on the ground that the petitioner is estopped from challenging the jurisdiction of the State Transport Authority to deal with the matter. It is stated that in August 1969, when the petitioner was permitted to ply a second bus on this route, its life was extended till the State Transport Authority filled up the vacancy for the second permit. When applications were invited by the State Transport Authority, the petitioner had also applied for the grant of the permit for the second bus. He submitted to the jurisdiction of the State Transport Authority, applied for a permit and having lost has now come up to question the jurisdiction of that authority to deal with the route. As such the writ petition should be thrown out in limine.

4. Normally we should have considered the question of maintainability first. But we think it appropriate to defer consideration of the preliminary point because it has first to be ascertained as to whether there is force in the contention of the petitioner that the State Transport Authority had any statutory jurisdiction to deal with the matter. Upon a finding as to whether exercise of jurisdiction is vitiated totally for want of it, or there has been an irregular exercise of jurisdiction, the fate of the preliminary point would depend.

5. Section 45 of the Motor Vehicles Act is relevant for the purpose. For convenience, Sub-sections (1) and (2) thereof which are material are extracted:

'(1) Every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles,

Provided that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles;

Provided further that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States, application shall be made to the Regional Transport Authority of the region in which the applicant resides or has his principal place of business.

2. Notwithstanding anything contained in Sub-sections (1) the State Government may, by notification in the Official Gazette, direct that in case of any vehicle or vehicles proposed to be used in two or more regions lying in different States the application under that subsection shall be made to the State Transport Authority of the region in which the applicant resides or has his principal place of business',

The first proviso to Sub-section (l) makes it clear that where it is proposed to use the vehicle in two or more regions lying within the same State, the application has to be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies. Sub-section (2) which was introduced into the statute under amending Act 56 of 1969 with effect from 2nd March 1970, makes it clear that in respect of two or more regions lying in different States, the application has to be made to the Stats Transport Authority. Section 45 is intended to provide as to where the application for a permit has to be made. There is no scheme in the statute that the application has to be made before one authority and it has to be disposed of by another authority. We must assume, therefore, that the authority to which the application is made is to dispose of the application in accordance with the procedure laid down under the statute.

6. In this case, two areas covered by the route lay in two separate districts -- one portion in the district of Sambalpur and the other in the district of Bolangir. Thus it is a case covered by the first proviso to Section 45 (1) and is not one to which Sub-section (2) of Section 45 would at all apply. On that basis the petitioner contends that the State Transport Authority had no statutory jurisdiction to invite applications for the route and deal with the same.

Rule 52-A of the Orissa Motor Vehicles Rules made under the Act provides:

'When the disposal of any matter relates to the business of more than one Regional Transport Authority such disposal shall be made by the State Transport Authority.

Provided that with the general or specific direction of the State Transport Authority a Regional Transport Authority may issue permits for more than one region in accordance with the quota fixed by the State Transport Authority and such permits shall be deemed as permits issued by the State Transport Authority and shall not require the counter-signature by the other Regional Transport Authorities'.

The petitioner contends that this Rule is not in accord with the provisions of Section 45 of the Act and as such must be treated to be ultra vires the statute.

7. The opposite parties take the stand that under Section 44 (3) of the Act, the State Transport Authority would assume jurisdiction to deal with the matter. That sub-section as far as material reads thus:

'A State Transport Authority shall give effect to any directions issued under Section 43 and subject to such directions and save as otherwise provided by or under this Act shall exercise and discharge throughout the State the following Dowers and functions, namely-

*****

(b) to perform the duties of a Regional Transport Authority where there is no such Authority and if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions;

* * * * *'

It is stated that the State Transport Authority has thought it fit to perform the duties of the Regional Transport Authority in regard to the route in question. No material has been placed before us to show that the State Transport Authority had never decided to assume jurisdiction over the route in question in terms of Section 44 (3) (b) of the Act. We cannot accept the contention that while under the statute power would vest in the Regional Transport Authority to deal with the matter, it would be open to the State Transport Authority in exercise of Section 44 (3) (b) of the Act to simultaneously exercise such jurisdiction without prior decision to that effect. That would not only lead to administrative chaos but would introduce uncertainties which would frustrate the purposes of the Act. It may be open to a State Transport Authority in exercise of the powers vested in Clause (b) of Sub-section (3) of Section 44 of the Act to resolve and assume such jurisdiction as was indicated in the case of Ratanlal v. Chairman, R.T.A. Bikaner Region. AIR 1970 Raj 125. We have already indicated that no documents have been placed before us to show that there was a prior resolution of the State Transport Authority to that effect. We must, therefore, assume that the State Transport Authority had never decided to assume jurisdiction to perform the duties of the Regional Transport Authorities of Sambalpur and Bolangir in respect of this route.

8. It is argued for the petitioner that Rule 52-A of the Orissa Motor Vehicles Rules is ultra vires the statute. The opposite parties contend that there was no provision in the statute clearly prescribing disposal of matters relating to disposal of such matters by Transport Authorities as provided under Rule 52-A. As such it does not directly run counter to any statutory provision. It is not necessary for the disposal of this case to decide that aspect. Even in terms of Rule 52-A only the disposal of the application could be by the State Transport Authority aS we have already stated where even the invitation of the application was made by that authority. As such even by application of Rule 52-A of the rules, the action of the State Transport Authority cannot be upheld.

9. On the aforesaid discussion, we would hold that the grant of the permit by the State Transport Authority was without jurisdiction.

10. The point that remains for consideration is whether the writ petition can be thrown out on the preliminary objection. The opposite parties rely on the principle that where a party has submitted to the jurisdiction of an authority such conduct disentitles him from any relief from the hands of the Court particularly under extraordinary jurisdiction. In support of such a principle reliance has been placed on a decision of their Lordships of the Supreme Court in Pannalal Binjrai v. Union of India. ATR 1957 SC 397. But as we find the present case is one of want of jurisdiction and where there is absence of jurisdiction and jurisdiction is exercised, the dispute goes to the root of the matter. In United Commercial Bank Ltd, v. Their Workmen, AIR 1951 SC 230, their Lordships indicated that consent cannot give a Court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled. No appearance or consent can give a jurisdiction to a Court of limited jurisdiction which it does not possess. Again in the case of Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, it was stated-

'.....It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution end even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to Pass any decree, and such a defect cannot be cured even by consent of parties.....'

A Full Bench of the Andhra Pradesh High Court in the case of Sheik Hussain and Sons v. State of Andhra Pradesh, AIR 1904 Andh Pra 36 while dealing with constitution of authority under the Motor Vehicles Act took the self-same view. We arc led to hold, therefore, that the conduct of the petitioner could not confer jurisdiction on the State Transport Authority to deal with the matter. Again the plea of estoppel has its own limitations. We do not find any conduct of the petitioner which would really go to the extent of showing that he is personally estopped from approaching the Court. We would accordingly negative the preliminary objection.

11. On the basis of what we have already indicated, it would follow that the State Transport Authority had no jurisdiction to deal with the grant of a permit on the route in question and as such the grant of the permit by it is an act without jurisdiction. We would accordingly allow the application, quash the grant by the State Transport Authority and the decision in appeal upholding such grant with costs. Hearing fee rupees one hundred.

Panda, J.

12. I agree.


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