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N. Doraswami Mudaliar Vs. S.V. Natesa Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberW.P. Nos. 748, 749, 783 and 793 of 1958
Judge
Reported inAIR1959Mad453; 1959CriLJ1192; (1959)1MLJ256
ActsConstitution of India - Article 226; Motor Vehicles Act, 1939 - Sections 42, 42(1), 123 and 123(1)
AppellantN. Doraswami Mudaliar
RespondentS.V. Natesa Mudaliar and ors.
Appellant AdvocateK. Bashyam, ;T. Ramalingam, ;A.C. Maniswami Reddiar, ;M.N. Rangachari, ;K. Thirumalai, Advs. and ;V.V. Raghavan, Adv. for ;B. Lakshminarayana Reddi, Adv.;G. Ramanujam, Adv. for ;Addl. Government Plead
Respondent AdvocateT. Chengalvarayan and ;N.G. Krishna Ayyangar, Advs.
Cases ReferredState v. B. B. Shirke
Excerpt:
motor vehicles - permit - sections 42, 42 (1) and 123 and 123(1) of motor vehicles act, 1939 and article 226 of constitution of india - applications invited for permit to ply carriages - appellant granted permit by regional transport authority (rta) - appeal by respondents y and z before state transport appellate tribunal (stat) - stat set aside order of rta and granted permit to respondents y and z - rta disqualified respondent y on ground of bad record of service - z had taken loan and ran bus service without permit - whether rta right in screening and disqualifying respondent y on account of bad record of service - court not to interfere with judgment of tribunal - enquiry into antecedents cannot be carried backward indefinitely - past one year record of y to be taken into..........and another permit to veerabadra mudaliar. four of the disappointed applicants appealed to the state transport appellate tribunal, madras. by an order made on 5-9-1958 the state transport appellate tribunal set aside the order of the regional transport authority andgranted one permit to kuppuswami chettiar and the other permit to natesa mudaliar. the individuals who were prejudicially affected by the order of the state transport appellate tribunal have filed these petitions for the issue of an appropriate writ to quash the order of the state transport appellate tribunal.2. i shall first deal with the criticisms levelled against the order of the state transport appellate tribunal relating to the grant of one permit to natesa mudaliar.3. the regional transport authority disqualified.....
Judgment:
ORDER

Balakrishna Ayyar, J.

1. There were as many as 25 applications for two permits to ply stage carriages between Mahabalipuram and Kancheepuram. By an order made apparently on 23-11-1957 the Regional Transport Authority granted one permit to N. Doraiswarni Mudaliar and another permit to Veerabadra Mudaliar. Four of the disappointed applicants appealed to the State Transport Appellate Tribunal, Madras. By an order made on 5-9-1958 the State Transport Appellate Tribunal set aside the order of the Regional Transport Authority andgranted one permit to Kuppuswami Chettiar and the other permit to Natesa Mudaliar. The individuals who were prejudicially affected by the order of the State Transport Appellate Tribunal have filed these petitions for the issue of an appropriate writ to quash the order of the State Transport Appellate Tribunal.

2. I shall first deal with the criticisms levelled against the order of the State Transport Appellate Tribunal relating to the grant of one permit to Natesa Mudaliar.

3. The Regional Transport Authority disqualified Natesa Mudaliar on account of what was said to be his bad record of service. On this point the Regional Transport Authority observed,

'There have been allegations by some of the applicants to the effect that No. 22 (Natesa Mudaliar) has had bad antecedents. I have verified his history sheet. So recently as 20-10-1957 his bus was found overloaded with eight adults. There were some previous instances or overloading also. In 1955 one of his buses, on which a notice that it was not in a mechanically fit condition, had been served, was found plying on the road which I consider is evidence of serious irresponsibility in an operator. He is therefore screened and will not be considered for a new permit until he improves his record.'

4. Dealing with this aspect of the matter the State Transport Appellate Tribunal observed:

'Appellant No. 4 (i.e., Natesa Mudaliar) who is a fleet owner, has secured the highest number of total marks, viz., 41/2 under columns 2 to 5 of the mark list and on the strength of marks he is entitled to get one of the permits. There is therefore need to go into the question whether the Regional Transport Authority was right in screening and disqualifying appellant No. 4 on account of bad record of service. According to the instructions in G. O. Ms. No. 1298 Home, dated 28-4-56, for the purpose of deciding the question of screening and disqualifying an applicant for permit on account of adverse record of service, the history sheet of the previous one year alone should ordinarily be considered. Appellant No. 4 has committed four offences of overload, one offence of unauthorised trip and four other minor offences like non-exhibition of fare table and time table etc. and he has got five warnings and four suspensions. This record of service is not good, but all the same, I do not consider it to be so bad as to screen and disqualify appellant No. 4 from getting the permit. I therefore hold that appellant No. 4 is entitled to set one permit.'

5. It was argued that the State Transport Appellate Tribunal was in error in not having disqualified Natesa Mudaliar and in having overruled the Regional Transport Authority in this respect. Now, what is said to he the bad record of Natesa Mudaliar was actually considered by the State Transport Appellate Tribunal. It was for that authority to decide what importance it would attach to his previous bad record. That subject was very properly within the jurisdiction of the Tribunal. It was open to if to take the view that the record was so bad that he should be disqualified. On the other hand, it was equally entitled to take the view that it was not so bad that he should be disqualified. I do not think that it is for this court to substitute its discretion for that of the State Transport Appellate Tribunal in a matter of this kind.

6. It was nest said that even if the State Transport Appellate Tribunal took the view that Naiesa Mudaliar ought not to have been disqualified, still his bad antecedents would have been taken into account in determining whether he should be preferred to the other applicants. But, here too the matter was one within the jurisdiction of the State Transport Appellate Tribunal and also within its discretion. If the State Transport Appellate Tribunal had applied one yardstick to the applicant and another yardstick to another applicant then, of course, there would have been justifiable grounds of complaint. But, it does not appear that any such thing was done.

7. It was next said that the State Transport Appellate Tribunal was in error in having limited its enquiry into the antecedents of Natesa Mudaliar to one year, that it should have gone further back, and that if it had done so, more damaging facts would have come to light. Here again I can seeno question of jurisdiction. Enquiry into the antecedents of an applicant cannot be carried backwards indefinitely. It has to stop at some stage or other. Whatever the stage at which it is decided to stop it will be possible to say that the point selected for stopping is arbitrary. But as I said before, there would have been justification for complaint if the State Transport Appellate Tribunal had applied one standard to one applicant and another standard to another. But it aid not do that. The Tribunal followed G. O. Ms. No. 1298 and decided to enquire into the antecedents of the applicants only for a period of one year.

8. I do not consider that there is any substance in the criticisms made about the order of the State Transport Appellate Tribunal so far as it relates to Natesa Mudaliar.

9. I now come to Kwppuswami Chettiar. One M. K. Pillai, proprietor of the Krishna Motor Works and Transport, and applicant No. 25 before the Regional Transport Authority, had made the following allegation against Kuppuswami Chettiar:

'Nearly five months back he purchased a bus M. S. C. 9320 from P. T. Ltd, and the vehicle is running under his control though it is not transferred in his name. Variation was granted for this bus also.'

On this ground Kuppuswami Chettiar was disqualified when he applied for a permit to run a bus between Chingleput and Elapakkam. The State Transport Appellate Tribunal, it was said, should have disqualified Kuppuswami Chettiar on this ground and should not have granted him a permit. The reason which the State Transport Appellate Tribunal gave for refusing to disqualify Kuppuswami Chettiar was that even assuming that the allegations were true they would not amount to any offence under the Motor Vehicles Act.

10. It was contended that the State Transport Appellate Tribunal was in error in the view it took of the law in this respect. On this part of the matter the State Transport Appellate Tribunal observed.

'It is no doubt true that in the case referred to this appellant was screened by the Regional Transport Authority. Against the Regional Transport Authority's order in that case this appellant and others preferred appeals and in the appeal of the appellant he questioned the correctness of the screening done by the Regional Transport Authority. The question, however, had not to be decided in the appeals and it was left open since even otherwise this appellant was found not entitled to get the permit in that case. The question has to be decided afresh now. On behalf of the appellant No. 3 it is contended that it was without making any enquiries of the appellant that the Regional Transport authority in the other case came to the conclusion that appellant took a loan of the bus of P. T. (P.) Ltd., and ran it without permit that subsequently action was taken against the P. T. (P.) Ltd., and a charge memo was issued to them and that the charge was dropped. Whether this denial of facts made by appellant No. 3 is the true or not, I fail to see what is the offence under the Motor Vehicles Act which the appellant has committed by running the bus of the P. T. (P) Ltd., after taking it on loan for which action could ba taken against him either departmentally or by the criminal courts. The violation of Section 42 of the Motor Vehicles Act, if any, would be only by the P. T. (P) Ltd. For the alleged running of the bus of P. T. (P) Ltd., appellant No. 3 cannot be screened and disqualified.'

11. Mr. Chengalarayan, who appeared for Kuppuswami Chettiar, contended that the view of the law which the State Transport Appellate Tribunal took in respect of this matter is by no means erroneous and, in support of that argument he referred to Jagroop v. Rex, : AIR1952All276 In that case it was observed in relation to Section 42 or the Motor Vehicles Act,

'It is the owner and nobody else, such as the driver or conductor, who is forbidden to use or permit the use of a vehicle, save in accordance with the conditions of the permit and consequently if a transport vehicle is used against the conditions of the permit only the owner and nobody else can be guilty of contravening this provision. If A is prohibited from doing an act and the act is done no matter by whomsoever it is done, A only, if at all, can be said to have committed a breach of the prohibition and nobody else, not even the actual doer of the act.'

These observations no doubt, support the contention of Mr. Chengalvarayan, but, the facts of that case, however, were materially different. Those facts are set out in paragraph 1 of the judgment:

'The applicants, who are a driver and a conductor, of a lorry owned by one Raj Kishore Verma, have been convicted under Section 112, Motor Vehicles Act, read with R. 79(8), Motor Vehicles Rules, for carrying 52 passengers as against the prescribed maximum of 40, under Section 42 read with Section 123 or the Act for not issuing tickets to passengers and under Section 112 read with rule 162 for not equipping the lorry with a fire extinguisher.'

It will be appreciated that the facts of that case in no wise resemble the allegations which M. K. Pillai had made against Kuppuswami Chettiar.

12. Mr. Chengalvarayana also referred to K. N. Sankunny v. T. Paul, AIR 1953 Trav-Co 551. That was a case in which a bus which belonged to the Planters Transport Ltd., was sold to Swaraj Motors Ltd. The former company had a permit for the bus. An application was made by both the vendor and the vendee to transfer the permit to the vendee. The transport authority sanctioned the transfer on 3-8-1951. On 5-12-1951 the Traffic Sub Inspector of Police, Kottayam, seized the bus and arrested the driver on the ground that ho neglected to stop the vehicle when directed to do so and on the further ground that the vehicle was being run without a permit endorsed in the name of Swaraj Motors Ltd. Attempts made by Swaraj Motors Ltd., to get back the bus having failed they applied to the High Court of Travancore Cochin for the issue of a writ of mandamus. Dealing with the matter the learned Judge quoted Section 129-A of the Motor Vehicles Act and observed,

'It is clear from this section that it is only if there is a violation of the first clause of Section 42 that seizure can be made. Section 42(1) which has been read does not enjoin the necessity of the person running the bus being the holder of a permit. It would appear to require only that the vehicle that is being run should be covered by a permit and in this case there has been the requisite permit. There has further been the permission granted to hold the permit to its user namely the petitioner company. In no view of the matter can it be said that there has been in this case a violation of the provisions contained in Clause (1) of Section 42.'

It will be noticed that to some extent these observations are obiter became the permit had actually been transferred to the Swaraj Motors Ltd., on 3-8-1951 and the seizure of the bus by the police was some four months later, and. at the time the bus was seized by the police the permit was still in force.

13. The next case which Mr. Chengalvarayan referred to is reported in State v. Vasant Baburao, AIR 1957 Nag 94. In that case the decision in : AIR1952All276 was followed and it was held thatthe driver and Conductor of a transport vehicle cannot be convicted under. Section 42(1) of the Motor Vehicles Act for carrying passengers in excess of the authorised seating accommodation under the permit. They could be convicted only under Section 112 for breach of the rules framed under the Motor Vehicles Act.

14. A different view of the matter was taken by a Bench of the Bombay High Court in State v. B. B. Shirke, (S) : AIR1957Bom243 . In that case the accused who was a driver of a bus was charged with having driven the vehicle while it was overloaded with six adults and two children. The High Court of Bombay dissented from the view taken by the Allahabad Court and observed:

'Section 42(1) undoubtedly imposes an obligation only upon the owner, and upon no one else, to use or permit the use of the vehicle in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority. But Section 123 penalises even person who drives a motor vehicle or causes or allows a motor vehicle to be used or lets out a motor vehicle for use in contravention of the provisions of Sub-section (1) of Section 42. The language used in Section 123 (1) is very much wider than the language used in Section 42(1). Whereas Section 42 (1) imposes an obligation upon the owner of a vehicle not to use or permit to be used the vehicle save in accordance with the conditions of a permit. Section 123(1) penalises every person to be a driver or an owner driving, using or letting out the vehicle for use in contravention of the provisions of sub-section (1) of Section 42. The accused being a driver of the motor vehicle committed a breach of the law in driving the vehicle in contravention of the provisions of Section 42(1) and he must therefore, be regarded, as having incurred the penalty provided in Section 123(1).'

On this matter I prefer the view of the Bombay High Court. If the view for which Mr. Chengalvarayan contended were right it would render the entire scheme of permits for which such elaborate provision is made in the Motor Vehicles Act nugatory. The permit granted in respect of a stage carriage is first in relation to a particular vehicle and next in relation to a particular individual. Even as the present controversy will have made apparent, the qualifications of the individual are of primary importance. In fact, very often these qualifications will be decisive in determining whether a permit should be granted to X or Y. When such is the case, if X could obtain a permit and thereafter Y could run the vehicle the result will really be to make X a benamidar for Y. The Motor Vehicles Act does not sanction arrangements of this kind. On the other hand, the whole scheme of the Act is to make the permit available only to the person to whom it has been granted,

15. The matter does not rest on broad considerations alone. Section 123 of the Motor Vehicles Act is comprehensive enough to penalise a person who operates a bus or stage carriage on the strength of a permit obtained by some one else. Even if Section 123 of the Motor Vehicles Act has not been there the same result would ensue by the application of the ordinary law of abetment in relation to Section 43. If X obtains a permit and then bands over the vehicle to Y and allows him to run it the position would be as if X and Y had conspired to commit an offence made punishable under Section 42 of the Act. I have no doubt that the view of the law which the State Transport Appellate Tribunal took is not the correct one.

16. Mr. Chengalvarayan argued that the order of the, State Transport Appellate Tribunal suggests that even if the allegations had been proved that'Tribunal would not have been prepared to disqualify Kuppuswami Chettiar. To support this argument he read the last sentence from the paragraph in the order of the State Transport Appellate Tribunal which we have quoted a little above and which runs,

'For the alleged running of the bus of P. T. (P) Ltd., appellant No. 2 cannot be screened and disqualified?'

I do not read the sentence in the manner in which Mr. Chengalvarayan invited me to do. That sentence, no doubt, records the conclusion which the State Transport Appellate Tribunal reached, but, it reached that conclusion because of its view that the transaction did not amount to an offence under the Motor Vehicles Act. The conclusion is, therefore, vitiated by the erroneous reasoning on which it is founded.

17. Mr. Chengalvarayan next said that M. K. Pillai who had made the allegations against Kuppuswami Chettiar did not appeal. But that is irrelevant; the material point is whether the allegation which M. K. Pillai made is true or false, and on that point his omission to appeal throws no light whatever.

18. Mr. Chengalvarayan next said that M. K. Pillai did not tender any evidence in support of his allegation. But, then, it does not appear that any enquiry was started on the allegation, The order of the Regional Transport Authority does not indicate that it investigated the allegation or called for evidence in this regard.

19. Mr. Chengalvarayan said that the Regional Transport Authority gave a finding in respect of the allegations that he had made against Natesa Mudaliar, but it omitted to give any such finding in respect of the allegations against Kuppuswami Chettiar, therefore it must be deemed that it held that the allegations had not been proved.

20. I do not think that that conclusion follows. When there are two issues in a case and the court gives a finding on one issue and omits to give a finding on the second, it cannot be inferred that it intended to give a finding on that point also, much less that the finding deemed to have been given on that issue was different from the finding which it had given on the first issue.

21. Mr. Chengalvarayan next said that even assuming that the State Transport Appellate Tribunal acted under a misapprehension of the law that misapprehension was only in respect of the application of the G. O. Ms. No. 1298, and since ft has been held that the disregard of an administrative order would not be justiciable the error of the Tribunal would not justify this court in interfering.

22. Now, if the State Transport Appellate Tribunal had disregarded the G. O. in respect of all the applicants there would be no difficulty. But then, the State Transport Appellate Tribunal did proceed to apply the G. O., and, if it decided to do that, it was bound to apply the G. O. uniformly to all. Otherwise it would be a case where the same yardstick was not applied to all the applicants. The G. O. cannot be used to screen or disqualify some applicants but discarded when it comes to some other applicants.

23. Mr. Chengalvarayan finally said that no material having been placed in support of the allegation the State Transport Appellate Tribunal should, have refused to take notice of the allegation on the ground that it had not been proved. But, actually that is not how the State Transport Appellate Tribunal dealt with the matter. What is said was: I do not propose to investigate the allegations because even if those allegations are true theywould not constitute a contravention of the Motor Vehicles Act. That being so, I cannot disqualify Kuppuswami Chettiar.

24. But, as I tried to explain, that view of the law which the State Transport Appellate Tribunal took, is erroneous. That result, therefore, that the order of the State Transport Appellate Tribunal will have to be set aside so far as if relates to Kuppuswami Chettiar.

25. I want to make one thing clear. I am not saying that if the allegations which M. K. Pillai made are proved that would necessarily entail the disqualification of Kuppuswami Chettiar. It would be entirely for the State Transport Appellate Tribunal to determine what importance it would attach to the finding that it recorded whether the circumstance would justify it in disqualifying Kuppuswami Cheltiar or not, It will still be open to the State Transport Appellate Tribunal to hold that notwithstanding that the allegations have been proved Kuppuswami Chettiar should not be disqualified. That would entirely be a matter within its jurisdiction and direction.

26. Natesa Mudaliar will get his costs to be paid in equal fractions by each of the four petitioners in the writ petition. Advocate's fee Rs. 250, There will be no order as to costs so far as Kuppuswami Chettiar is concerned.


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