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Mangilal Sharma Vs. Appellate Tribunal of State Transport Authority, Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberWrit Petition No. 159 of 1954
Judge
Reported inAIR1957Raj167
ActsMotor Vehicles Act, 1939 - Sections 48, 60 and 60(1); Contract Act, 1872 - Sections 19; Constitution of India - Article 226
AppellantMangilal Sharma
RespondentAppellate Tribunal of State Transport Authority, Rajasthan and ors.
Appellant Advocate C.L. Agarwal, Adv.
Respondent Advocate C.B. Bhargava, Deputy Govt. Adv.
DispositionPetition dismissed
Cases ReferredKotamaraju Venkatrayadu v. Emperor
Excerpt:
- - under these circumstances, he recommended to respondent no. the refusal by respondent no 2 to grant the permit was thus illegal and in contravention of the provisions of indian motor vehicles article the petitioner had the right to ply his bus rjs 131 and that right of his could not be defeated. this statement convinces us that the petitioner had acted in a fraudulent manner in obtaining the permit for rjl 3173. the authority who had the right to cancel the permit under section 60 (d) of the indian motor vehicles act was also convinced on good grounds that the permit for rjl 3173 was obtained by fraud and misrepresentation. one who induces another person to take any step for his advantage by practising fraud on him, cannot complain that the person deceived had taken back the.....bhandari, j. 1. this is a writ petition under article 226 of the constitution of india on behalf of the petitioner mangilal praying that the order of the appellate tribunal of the state transport authority, rajasthan, jaipur, respondent no. 1 dated the 14th of june, 1954 cancelling, under section 60(d) of the indian motor vehicles act, the permit for plying a stage carriage be set aside and respondent no. 1 and the regional transport authority jodhpur division jodhpur respondent no. 2 be prohibited from interfering with the plying of bus of the petitioner. 2. the circumstances under which respondent no. 1 ordered the cancellation of the permit of the petitioner are as hereunder:-- 3. the regional transport authority, jodh-pur, published a notification in rajasthan raj-patra dated the 4th.....
Judgment:

Bhandari, J.

1. This is a writ petition under Article 226 of the Constitution of India on behalf of the petitioner Mangilal praying that the order of the Appellate Tribunal of the State Transport Authority, Rajasthan, Jaipur, respondent No. 1 dated the 14th of June, 1954 cancelling, under Section 60(d) of the Indian Motor Vehicles Act, the permit for plying a stage carriage be set aside and respondent No. 1 and the Regional Transport Authority Jodhpur Division Jodhpur respondent No. 2 be prohibited from interfering with the plying of bus of the petitioner.

2. The circumstances under which respondent No. 1 ordered the cancellation of the permit of the petitioner are as hereunder:--

3. The Regional Transport Authority, Jodh-pur, published a notification in Rajasthan Raj-patra dated the 4th of October. 1952 inviting applications for permits for plying stage carriage on Makrana Parbasar-Bassi route for three years

The petitioner's application was rejected by the Regional Transport Authority and the petitioner went in appeal to respondent No. 1 which by its order dated the 4th of September, 1953, accepted the appeal of the petitioner and granted him permit for plying stage carriage on the above mentioned route. The petitioner had a bus which was registered in Nagpur District and its registered number was RJS. 131.

The petitioner applied to the respondent No. a to issue the permit for plying the bus No. RJS. 131 but the respondent No. 2 refused to issue the permit to the petitioner on the ground that the certificate of registration' of that vehicle showed that the year of manufacture of the vehicle was 1948, he could not be granted a permit for plying the bus.

It presumably relies on some departmental instructions which make it incumbent on a new applicant to own and possess a vehicle which has been manufactured within three years of the date of obtaining the permit. Thereafter, according to the petitioner, he made an application to the Registering Authority, Jaipur, that the engine of his vehicle RJS 131 had gone out of order and he had replaced it by another engine, which was of 1950 model.

He prayed for necessary correction to be made in the registration certificate in respect of new engine. In fact he made an application for the assignment of new mark and new registration certificate. The Registration Authority, Jaipur PS-signed new registration mark RJL 3173 'to the vehicle previously registered as RJS 131 on the 2lst February, 1954 and the registration certificate contained the year of manufacture of the vehicle as 1950.

Having obtained the new registration mark and the new certificate of registration from the Registering Authority, Jaipur, the petitioner again applied to respondent No 2 to issue a permit and produced the new certificate of registration before that authority. Respondent No. 2 issued a permit to the petitioner as prayed for, and the petitioner started plying the bus from the 10th of April, 1954.

One Sultan Singh made a complaint to respondent No. 2, which inter alia contained, that the petitioner had no bus of the year 1950 or of a later date and he in obtaining the permit had played a fraud by producing the certificate of registration of the same bus for which permit had been refused earlier. Respondent No. 2 directed the petitioner to produce the document relating to vehicle No. RJL 3173,

He did not produce the same, but his statement was recorded and respondent No. 2 came to the conclusion that the act of the petitioner in obtaining the permit amounted to fraud. Under these circumstances, he recommended to respondent No. 1 that the permit issued to the petitioner be cancelled under Section 60 (d) of the Indian Motor Vehicles Act.

Respondent No. 1 ordered on the 15th of June, 1954 that the permit obtained by the petitioner be cancelled on the ground that the petitioner had obtained the permit fraudulently and by misrepresenting facts.

4. The petitioner has filed this writ petition challenging the order of respondent No. 1 on various grounds which are mentioned in the supplementary affidavit filed by the petitioner on the 22nd of December, 1954. Sultan Singh has also been made respondent No. 3 in the writ petition.

5. The reply of the respondent is that the petitioner had obtained the permit by fraud and misrepresentation and respondent No. 1 was justified in cancelling the permit under Section 60(d) of the Indian Motor Vehicles Act.(6) Mr. C. L. Agarwal has canvassed the following points in support of the writ petition:--

1. That the permit for plying bus No. RJL3173 was not obtained by fraud or misrepresentation.

2. That respondent Nos. 1 and 2 had no authority to refuse to grant the permit for the plying of bus of 1948 model or any other model provided the bus is registered by the regstering authority as provided under the Indian Motor Vehicles Act and has the certificate of fitness as provided under Section 38 of the said Act.

The refusal by respondent No 2 to grant the permit was thus illegal and in contravention of the provisions of Indian Motor Vehicles Article The petitioner had the right to ply his bus RJS 131 and that right of his could not be defeated.

3. That the circumstances under which the petitioner obtained the permit for plying his bus did not legally amount to fraud or misreresentation as the petitioner merely secured a right to ply his bus which he possessed under law and which was illegally refused by respondent No. 2 to him.

7. We first take up the first contention raised by learned counsel lor the petitioner. After the application of the petitioner was refused by respondent No. 2 for the grant of permit for plying RJS 131 he made an application on the 21st January, 1954 to the Registering Authority Jaipur in the printed form RMA as required under Section 29 of the Motor Vehicles Act and Rule 64(a) of the Rajasthan Motor Vehicles Rules, 1951.

Under Section 29 of the Act, the petitioner was bound to present the old certificate of registration before the Registering Authority, Jaipur. He presented the certificate of registration along with his application'. We have seen the original certificate of registration and we find that the year of manufacture in the certificate of registration has been altered.

On a close scrutiny it is clear that the words '48' had been erased and altered into '50'. We have also inspected the registration register and in the registration register, the year of manufacture given is 1950. The engine number in the old certificate of registration is EEB 317835. In the registration register this very number appears but has been scored out and the new No. GEB 27651 has been inserted.

The entries in the registration register appear to have been made on the 22nd of February 1954 but the change in the engine number appears to have been made on the 22nd of March; 1954. In the file of the office of the Registering Authority, Jaipur regarding the assignment of new registration mark, there is an application by the petitioner dated the 18th of February, 1954, that the engine in the vehicle RJS 131 had gone out of order and the same had been changed to GEB 27651 which is of 1950 model and praying for necessary correction in the registration certificate in respect of model of engine.

It is apparent from looking to the relevant record that RJS 131 and RJL 3173 relate to the one and the same vehicle, the year of manufacture of which is 1948. But the new certificate of registration mentioned the year of manufacture as 1950. Armed with this new registration mark, the petitioner went to respondent No 2 to obtain a permit for plying the same vehicle for which the permit had already been refused to him and he obtained the permit for that;

8. Fraud is committed wherever one man causes another to act on a false belief by a representation which, he does not himself believe to be true. It is apparent from what has been discussed above that the petitioner caused respondent No. 2 to grant a permit to him acting on the false belief that he was granting the permit for a vehicle of the year of 1950. This belief in respondent No. 2 was the direct result of representation made by the petitioner which he knew was not true.

9. Learned counsel for the petitioner has argued that he had stated the true facts to the Registering Authority, Jaipur in his application dated the 18th of February, 1954. That application did not mention the year of manufacture of his bus. It did not even mention that the engine in his bus RJS 131 was of the year 1948.

The certificate of registration of RJS 131 had been falsely altered and showed the year of manufacture as 1950. The Registering Authority, Jaipur, acted on the certificate of Registration produced by the petitioner. It did not scrutinise the matter properly. Whether it was due to negligence on the part of Registering Authority, Jaipur or for any other reason, it is not for us to say.

But there is no doubt in our mind that the petitioner was acting fraudulently in obtaining a new registration mark for his bus RJS 131. After a complaint against the petitioner had been made by respondent No. 3, respondent No. 2 took the statement of the petitioner on the 18th of May, 1954 relating to the whole affair and the statement that he made leaves us in no doubt that the petitioner was acting dishonestly and fraudulently throughout.

In that statement he asserts that his bus meaning thereby bus No. RJL 3173 was of 1950 model. He pretends ignorance that the bus had been registered anywhere before its registration at Jaipur. When asked whether that bus had been registered in the office of registration at Nagour, he said he did not know. He admits that he had made an application for plying his bus RJS 131 on the Makrana-Bassi route in the office of the Regional Transport Authority, but what happened to his application, he did not know.

When further asked whether these two buses were different buses, he would not say anything. He knew of the order of the Regional Transport Authority that on a concrete road, the vehicle that would be permitted to run must be manufactured within three years of the application for permit.

This statement convinces us that the petitioner had acted in a fraudulent manner in obtaining the permit for RJL 3173. The authority who had the right to cancel the permit under Section 60 (d) of the Indian Motor Vehicles Act was also convinced on good grounds that the permit for RJL 3173 was obtained by fraud and misrepresentation.

The learned counsel for the petitioner has argued that fuller opportunity was not given to the petitioner to place his case before them. There was enough material before them on which they based their finding. Prima facie respondents Nos. 1-2 had arrived at a right conclusion

10. Then it is argued that if any fraud was played by the petitioner; it was played upon the Registering Authority, Jaipur and not on respondent No. 2. In our opinion it is altogether a futile argument.

By playing fraud On the Registering Authority, Jaipur, the petitioner obtained a certificate to which he was not entitled, and respondent No. 2 relied on the certificate thus obtained and acted on it. The purpose of the petitioner in obtaining the certificate was to play fraud on respondent No. 2 and to secure for himself an advantage which he had been refused earlier.

It is further argued that in any case no fraud was played on respondent No. 1 up to the date of granting the permit that is the 4th September, 1953. Section 60 runs as follows:--

'The Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit-

***** (d) if the holder of the permit has obtained the permit by fraud or misrepresentation.' The point raised by the learned' counsel is negatived on the plain reading of Section 60(1) (d). This section does not require that the fraud must be on the authority granting the permit. A fraud may have been played On anybody in obtaining the permit.

It might be that the fraud may be on the agent of, respondent No. l or in its office or on its subordinate. As long as the petitioner obtained the permit by playing a fraud he cannot be permitted to argue that he did not do so directly on the authority cancelling the permit.

11. Now we come to the second contention raised by learned counsel for the petitioner. His argument is that nowhere in the Motor Vehicles Act or the rules framed thereunder, an owner of a bus is required to ply a vehicle of particular make Or model. Under Chapter III of the Indian Motor Vehicles Act, Section 22 provides that unless a vehicle is registered in accordance with the provisions of that Chapter no owner of the Motor Vehicles shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods.

In the case of a transport vehicle special particulars are to be recorded on the registration of such vehicles under Section 37 of the Act. Under Section 38 such transport vehicles must further obtain a certificate of fitness. Now we come to the provisions of Chapter IV.

Section 42 lays down that no owner of a transport vehicle shall use or permit the use of a vehicle in any public place save in accordance with the permit granted or countersigned by the Regional Transport Authority. Now the conditions which can be imposed on a permit, are given in Section 48 (d) which runs as follows:--

'A Regional Transport Authority may, after consideration of the matters set forth in Sub-section (1) of Section 47,--

* * * * * (d) attach to a stage carriage permit any prescribed condition or any one or more of the following conditions, namely:--

(i) that the service specified in the permit shall be commenced not later than a specified date and be continued for a specified period;

(ii) that the service may be varied only in accordance with specified conditions;

(ii) (a) that the stage carriage or stage carriages shall be used only on specified routes or in a specified area;

(iii) that copies of the fare-table and timetable shall be exhibited on the stage carriage and that the fare-table and time-table so exhibited shall be observed;

(iv) that not more than a specified number of passengers and not more than a specified amount of luggage shall be carried on any specified vehicle at any one time:

(v) that within municipal limits and in such other areas and places as may be prescribed passengers shall not be taken up or set down at or except at specified points; or

(vi) that tickets shall be issued to passengers for the fares paid.'

On a close scrutiny of this section it is apparent that the Regional Transport Authority is empowered to attach to a stage carriage any prescribed condition or any one or more conditions referred to in that section. The condition that the vehicle of a particular year of manufacture only shall be permitted to ply is not one of the conditions mentioned in Section 48(d). Clauses (i) to (vi) of Section 48(d) make no reference to such a condition. We have to examine what it meant by the expression 'prescribed condition'.

The word 'prescribe' has been defined in Section 2 (21) of the Act and it means prescribed by the rules framed under that Act. We have gone into the rules and there is no rule authorising the Regional Transport Authority to attach to a stage carriage permit any conditions regarding the year of the manufacture of the transport vehicle that can be permitted to be plied.

Under these circumstances, we are of opinion that the Regional Transport Authority or the State Transport Authority had no right to impose any condition regarding the year of manufacture on the permit issued by them.

12. This takes us to the third contention raised by learned counsel for the petitioner that the petitioner had a right to ply the bus regardless of the year of manufacture once he had been granted the permit to do so and as he had been illegally refused a permit for same, it cannot be said that he had derived any advantage from respondents Nos. 1 and 2 even if he had obtained the permit under the circumstances which may be dubious.

We have no hesitation in rejecting this argument both on principle and on authority. It is apparent that respondent No 2 would not have granted the permit had he riot acted on a false belief that the petitioner had a bus of the year of manufacture for which he was granting the permit.

The petitioner was causing respondent No. 2 to act upon a false belief for furthering some purpose of his own. Fraud vitiates all proceedings and one who acts on fraud or misrepresentation is entitled to retrace any step that he has taken on account of fraud or misrepresentation, no matter what may be the rights of the parties. One who induces another person to take any step for his advantage by practising fraud on him, cannot complain that the person deceived had taken back the advantage granted to him as soon as he discovered that fraud had been practised on him.

in our opinion this is the correct view other wise it would be opening a flood gate for practising fraud or deception for the sake of securing what might be a just or equitable claim. Section 19 of the Indian Contract Act entitles the party whose consent to an agreement has been obtained by fraud and misrepresentation to treat the contract voidable at his option.

It gives him the option either to treat it as binding or to treat it altogether void and if he treats it altogether void he can withdraw any advantage that had been granted under fraud to the party practising fraud on him. He may resile from the position in which he has been placed on account of the fraud. He may retrace any steps taken under fraud and misrepresentation. Section 60 (d) of the Indian Motor Vehicles Act merely recognises this principle. The position under the civil law in thug clear, The position under the criminal law has been authoritatively laid down in a number of cases which we propose to consider at this stage.

But before doing so we may point out that the word, 'fraudulently' as laid down in Section 25 of the Indian Penal Code means as follows:--

'Section 25:-- A person is said to do a thing fraudulently if he does that thing with intent to defraud not otherwise.'

The use of the words 'not otherwise' in the above section are to limit the meaning of fraud for the purpose of the Penal Code. Even when it is used in the limited sense, it has been held that a person who uractices fraud in order to secure a just claim is acting fraudulently within the meaning of Section 25 of the Indian Penal Code.

13. In the case of Empress v. Dhumim Kazee. ILR 9 Cal 53 (A) when a person used a forged document for the purpose of supporting his title, it was observed as follows by Norris, J:--

'Let a person's title to propety be ever so good, yet if, in the Course of an action brought against him to gain possession of the property, he uses by way of supporting his title, though there may be no necessity for the use of it a forged document, such as this (SIC). I am clearly of opinion that he uses it fraudulently.' This case has been followed in numerous cases but at this stage we may take note of the decision of Allahabad High Court to the case of Queen Empress v. Sheo Dayal. ILR 7 All 459 (B), where the appellant used forged receipts in lieii of genuine 'receipts which had been lost and it was held that the appellant had not committed the offence under Section 471 of the Indian Penal Code as he cannot be said to have made a false document dishonestly or fraudulently.

This is a very brief judgment and no distinction has been drawn between the words 'dishonestly and fraudulently' in that judgment. This case . was considered by the Calcutta High Court in the case of Kedar Nath Chatterjee v. King Emperor, 5 Cal WN 897 (C) wherein it has been observed as follows:--

'The argument that has been advanced tous proceeds upon the assumption that in anygiven case where the person propounding a forged document does not intend to attain wrongfulgain to him or cause wrongful loss to another, thedocument could not be regarded as a false document within the meaning of Section 464. But the argument loses sight of the distinction which is patent in Sections 464 and 463. read with the definitions to which we have just adverted, between 'dishonestly' and fraudulently'. The matter was fully discussed and considered In the case of Queen-Empress v. Abbas Ali, 1Cal WN 255 (FB) (D) and it was held that deprivation actual or intended is not a necessry ingredient of the intent to defraud referentially imported into sec. 464, and by a similar train of reasoning we are led to the like conclusion as to the true construction of Section 471.

And in this connection we may also refer tothe case of Lalit Mohan Sirkar v. Queen Empress ILR 22 Cal 313 (E) where a Divisional Court, following two cases. -- one in the Madras and theother in the Bombay High Court, clearly pointedout the distinction between 'dishonestly' and 'fraudulently' occurring in Section 464, Indian Penal Code,as also to the case of ILR 9 Cal 53 (A) where aperson, in the course of an action brought againsthim to gain possession of a property, used a forged document for the purpose of supporting histitle though there was no necessity for the useof it. it was held that such user was clearly fraudulent within the meaning of Section 25 of thePenal Code,

It seems to us that though the act of the appellant in producing a forged bond in the suit that he brought is not proved to be dishonest within the meaning of Section 24 of the Penal Code, yet it was fraudulent, because it was with the intent to commit a fraud upon the court, viz.. to make that court believe that he was entitled to recover money upon the basis of the particular document then produced.

The word 'fraudulent' denotes an intention to deceive, and the intention of Kedar Nath Chatterjee was clearly to deceive the Court into holding that he was entitled to enforce the bond in question.

The learned counsel for the appellant, however, has relied upon the case of ILR 7 All 459 (B) which, no doubt, may be regarded as supporting his contention, but with all deference to the learned Judge who decided it, we are unable to follow it.

Upon these grounds, we are of opinion that the argument advanced before us cannot be sustained.

The result is that this appeal is dismissed.'

14. The decision of Allahabad High Court was also not followed in the rase of Gobinda v. Empress, 1895 Pun Re Cr 6 (F) where alterations were made in a mortgage deed and it was contended on behalf of the appellants who fiad been convicted that the alterations had been done merely because they had been duped themselves in the first instance, and that as they had simply planned to defeat fraud by counter-fraud the offence of forgery was not established. It was observed by Rivaj J., as follows:--

'In my opinion, the accused acted fraudulently, i.e., with intent to defraud (vide Section 25, Indian Penal Code), when they sought to gain by unlawful advantage an honest claim which they feared they would lose by the employment of fair means only. A dishonest person may be defrauded as well as an honest one. An honest claim may be supported by fabricated evidence, and if it succeeds on the strength of such evidence, I consider that it succeeds by fraud.

Mere illegality is not necessarily fraud, but I think the deliberate tampering with a document to/support a claim in court, however just thatclaim' may be. is not only morally wrong, but a fraud both-upon the court and the opposite party, and no less. a. fraud, because done to counteract another fraud.

The decision in ILR 7 AH 459 (B) was cited to us. but with great respect, I am not prepared to go as far. as the learned Judges, who decided that case, and I think that the view which I have expressed is supported by the ruling of our own Court in Fakir Muhammad v. Empress, 1885 Pun Re Cr 4 (G).'

Similarly in the case of In re, Somasundram Pillay, 3 Ind Cas 736 (Mad) (H). the argument that a forged document prepared with the intention only to confirm the title to property which already belonged to the person fabricating the document was not fraudulent, was rejected. In the case of Emperor v. Bansi Sheikh, AIR 1924 Cal 718 (I), the view expressed in Dhunam Qazi's case (A) was accepted.

A review of authorities has been made in the case of Sivananda Mudali, In re, AIR 1926 Mad 1072 (J) where the contention of the petitioner that he had a claim to the property and that propping up of a true claim by an unnecessary and superfluous document which was false was not an offence: was rejected. It was observed as follows:--

'According to Section 463 whoever makes a false document to support any claim or title commits a forgery. There is no warrant for saying that in order to constitute forgery the document must be intended to support a false claim or a false title. If in order to support a true claim or a genuine title a false document is created, it is a forgery.' In our opinion the above authorities lay down a correct law.

15. Moreover, in this particular case the petitioner not only acted fraudulently but he acted dishonestly also as he intended to gain an advantage for himself in obtaining a permit which had been refused to him. In the case of Kotamaraju Venkatrayadu v. Emperor ILR 28 Mad 90 (L) where the petitioner was required to 'produce to the Registrar of the Madras University, in order to obtain admission to the Matriculation examination, a certificate signed by the head master of a recognized school that he was of good character and had attained his 20th year, the petitioner fabricated the head master's signatures to such a certificate and forwarded it to the Registrar.

The majority of the Judges constituting the Pull Bench held that the petitioner bad committed an offence and that he was rightly convicted under Section 471 of the Indian Penal Code. It was observed by Sir Arnold White. C.J.,

''The object which the petitioner had in view in making the false document was to get exemption from the production of an attendance certificate and to be admitted as a candidate for the examination. His intention was to pass the examination (for it cannot be presumed that he intended to fail) and his intention was to secure such advantages as are incidental to the position of a man who has passed the examination,'

Benson, J., observed that

'the act of the petitioner was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to the University, and through it to the public from such acts if unrepressed.' The observations apply to the present case.

16. We cannot encourage the idea that & man is entitled to adopt dubious or dishonest or fraudulent means in order to support his true right or claim. It would be laying down a dangerous principle in the conduct of the human affairs. The courts of law will also be flooded by false evidence and false documents even in support of true claim. The means should be as pure as the end. It was open to the petitioner to make representation to respondent No. 1 against the act of respondent No. 2 in refusing the permit for his bus of 1948 model and thus seek redress from that authority. He could have come to this Court at that stage and prayed for the issue of a proper writ or direction against respondents Nos. 1 and 2; instead of adopting the straigtforward course, he adopted dubious means for which he must suffer.

17. The applicant who comes to this Court invoking the exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India must come with clean hands. This Court will refuse to interfere even in cases where it recognises his right unless the conduct of the petitioner has been fair and honest and free from any fraud, This Court cannot help those persons who are guilty of practicising deceitful means on any person or authority.

18. The writ petition has, therefore, no force and is dismissed with costs.


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