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M. Basheer Ahmad and ors. Vs. R. Govindarajulu - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Reported in(1982)2MLJ307
AppellantM. Basheer Ahmad and ors.;mahalakshmi Transport
RespondentR. Govindarajulu;r. Govindarajulu and anr.
Cases ReferredNagpur v. Seth Govindram Sugar Mills Limited
Excerpt:
- .....57 and there is no question of selection on the part of the transport authority. the power to grant temporary permit is restricted under section 62 and in such a case there is absolutely no scope for holding that rule 155-a will come into play. if the main rule 155-a is not taken into consideration then the part of the rule cannot be dissected' so as to include the temporary permit. in the case reported in k. balasubramania chetty v. n.m. sambandamoorthy chetty : [1975]3scr91 , which dealt with the old rule 155-a(c), the supreme court held that the stage carriage operation would include either on temporary permit or a pucca permit. but that is not the position here. we are now dealing with a case of grant of permit for which rule 155-a is supplementary to section 47(1).6. mr. s......
Judgment:
ORDER

S. Mohan, J.

1. Both of these revision petitions can be dealt with under a common order. The parties will be referred to by their names to avoid any confusion.

2. Applications were invited for the grant of a stage carriage permit ion the route from Erode to Appakudal Sakthi Nagar (Sugar Factory) which is of a distance of 22 miles and 4 furlongs. This has to be classified as short route for which the new entrants will be given preference. The Regional Transport Authority, Coimbatore by his proceedings, dated 27th April, 1971 preferred Taxi Drivers Bus Service, because of their co-operative nature of enterprise. Aggrieved against this order, R. Govindarajulu and Mahalakshmi Transports, the respondent in both these revisions and the revision-petitioner in C.R.P. No. 3098 of 1978, respectively, preferred appeals. They came to be numbered as Appeal Nos. 601 and 635 of 1971. The Tribunal after elaborate consideration ultimately concluded that it was the respondent, who was best suited for the grant and therefore it set aside the grant in favour of M/s. Taxi Drivers Bus Service. I should at this stage note as to how M/s. Taxi Drivers Bus Service came to be altered with regard to its status. After the grant by the Regional Transport Authority in favour of M/s. Taxi Drivers Bus Service, it was transferred in favour of one of its partners Basheer Ahmad. Against the order of the Tribunal granting the permit in favour of Mahalakshmi Transports, Taxi Drivers' Bus Service, Erode v. Mahalakshmi Transports, Eroded C.R.P. No. 1737 of 1972, was preferred by M/s. Taxi Drivers' Bus Service. Likewise, R. Govindarajulu v. Taxi Drivers' Bus Service, Erode and Anr. C.R.P. No. 2667 of 1972, was filed by R. Govindarajulu. Both of them were heard by Ramaprasada Rao, J., as, he then was, and then the matters were remitted. After the matters were remitted, the transfer was made in favour of Basheer Ahmad. In I.A. No. 963 of 1978, Basheer Ahmad sought the permission of the Tribunal to continue the appeal and it was only during that hearing the permit came to be granted in favour of Govindarajulu, respondent in both these revisions. C.R.P. No. 2796 of 1978 is directed against the grant by Basheer Ahmad, while C.R.P. No. 3098 of 1978, is by Mahalakshmi Transports assailing the same grant. Inasmuch as Basheer Ahmad had joined Taxi Drivers' Bus Service C.M.P. No. 12836 of 1981 has been taken out to implead him as revision-petitioner in the place of M/s. Taxi Drivers' Bus Ser vice. I do not think there is any serious objection for the petitioner being impleaded and accordingly CM.P. No. 12836 of 1981' is allowed.

3. Now coming to the merits of the matter it is argued by the learned Counsel for the petitioner that inasmuch as the respondent had paid belatedly the tax and thereby paid penalty it would amount to punishment within the meaning of Rule 155-A(5)(ii) and therefore it will clearly amount to a disqualification. Secondly it is argued that the respondent had conviction of over-load of 39 persons and his conductor was convicted by a criminal Court which will be a relevant factor and the Tribunal had merely slurred over the same holding that the solitary instance of conviction will be of no consequence. Thirdly it is argued after remand on 28th September, 1973, the rules were changed and that marks for technical qualifications were revised and therefore, marks should have been awarded for technical qualification. The fourth submission of the learned Counsel for the petitioner is when the matter came up before the Tribunal the respondent obtained few more permits. Hence qualification as a new entrant, which is a preferential qualification for this short route, goes and it does not matter what kind of permit he had whether it was temporary or pucca permit because the relevant rule uses the word 'permit'. In fact in the decision reported in K. Balasnbrarnaria Chetty v. N.M. Sambandamoorthy Chetty : [1975]3SCR91 , the Supreme Court observed that experience gained on temporary permit should be counted as an experience in transport operation. Applying the same ratio once there was transport operation even on the temporary permit that should exclude the respondent from the category of new entrant. In opposition to this Mr. M.N. Rangachari, learned Counsel for the respondent, (common respondent in both the civil revision petitions--Govindarajulu) would state that the so-called belated payment of tax did not have any reference to the stage carriage but only to lorry operation. What is contemplated under Rule 155-A(5)(ii) is punishment and not belated payment of tax which had attracted the penalty. This was a case of compounding under Section 4 of the Tamil Nadu Motor Vehicles (Taxation of Passengers and Goods) Act. Even assuming that it was a belated payment attracting penalty under Section 9, that cannot amount to punishment for the simple reason that Section 14 of the Tamil Nadu Motor Vehicles (Taxation of Passengers and Goods) Act, clearly mentions punishment. It is that punishment which can be brought within the vertex of Rule 155-A(5)(ii).

4. It is not correct to say that the Tribunal failed to consider the conviction of overload. It had considered it with reference to the ruling of this Court in G. Saraswathi v. K. Jaganathan and Ors. C.R.P. No. 78 of 1975 and ultimately came to the conclusion that the solitary instance of the conductor being punished would not detract from the merit relating to the performance of transport operation. The next point that is made by the learned Counsel for the respondent is that the rights of the parties will have to be decided on the date of the hearing of the Regional Transport Authority, viz., 27th April, 1979, and the fact that the rules came to be changed will be of no consequence.

5. Rule 155-A is only to aid the considerations that are set out under Section 47(1) of the Motor Vehicles Act. The said section refers only to the grant of what is called in the common language pucca permits. Section 62 refers to the grant of temporary permits. It may be noted that Section 62 dispensed with the procedure under Section 57 and there is no question of selection on the part of the transport authority. The power to grant temporary permit is restricted under Section 62 and in such a case there is absolutely no scope for holding that Rule 155-A will come into play. If the main Rule 155-A is not taken into consideration then the part of the rule cannot be dissected' so as to include the temporary permit. In the case reported in K. Balasubramania Chetty v. N.M. Sambandamoorthy Chetty : [1975]3SCR91 , which dealt with the old Rule 155-A(C), the Supreme Court held that the stage carriage operation would include either on temporary permit or a pucca permit. But that is not the position here. We are now dealing with a case of grant of permit for which Rule 155-A is supplementary to Section 47(1).

6. Mr. S. Govind Swaminathan, learned Counsel for Mabalakshmi Transports, submits in addition to what has been submitted by Mr. G. Ramaswami, that the State Transport Appellate Tribunal while noting 8 belated payments of the respondent with regard to tax failed to take note of the same as far as the present petitioner is concerned. Secondly it is submitted that the Managing Directors are residing only at Erode and this is a vital aspect of the matter which has been lost sight of. The next submission is that it is not correct to state that no counter was filed in opposition to the allegation, for the quarter ending 31st March, 1976 in respect of vehicles MDF 6825 and MSX 9238, the penalty had been paid respectively at Rs. 2,665 and Rs. 1,665. The counter is found at page 187 of the file.

7. The Tribunal erred in concluding that the mere warning would amount to punishment which is totally incorrect because of the number of rulings of this Court. Therefore where the Tribunal had completely misdirected it would warrant interference in revision. In opposition to this Mr. M.N. Rangachari, learned Counsel for the respondent, again would state that there has been, detailed consideration of the respective qualifications of the present revision petitioner Mahalakshmi Transports and the respondent. That can be easily seen from paragraph 18, where 4 reasons are given. They are : (1) belated payment of tax attracting penalty on three occasions for which period the buses of the revision petitioner were plying on temporary permit; (2) the managerial experience. Originally, the partnership was constituted with two partners, namely, one Srinivasan and Krishnan, who are brothers. After the demise of Srinivasan his wife Janaki joined the firm with Krishnan. After both Krishnan and Janaki retired, a new partnership firm came into existence on 9th June, 1976. On the date of the hearing of the Regional Transport Authority, the three new partners had absolutely no managerial experience. Therefore, strictly speaking the petitioner would not be entitled to 2 marks on the ground of experience. On the contrary, the Tribunal had taken a very charitable attitude which should not have been taken. When one of the partners died viz., Srinivasan, Krishnan could not have constituted the firm because as laid down; in the decision reported in Commissioner of Income-tax, Madhya Pradesh, Nagpur v. Seth Gwindram Sugar Mills Limited : [1965]57ITR510(SC) , by reason of Section 42(c) of the Partnership Act, the firm will automatically get dissolved. Therefore it is on the basis of the new firm any person could have claimed experience. Hence the Tribunal is correct when it holds that no opposition was there by way of counter-affidavit in relation to specific allegation concerning vehicles MDF 6625 and MSX 9238. The affidavit occurring at page 187 of the file does not traverse these facts at all. Therefore the Tribunal was right in. holding that there is no counter.

8. It is not correct to contend that warning has been treated as punishment. The Tribunal only says that the warning amounts to punishment. Finally the Tribunal held that; the conviction cannot be taken in isolation and be weighed against the respondent because the Tribunal noted that the solitary punishment cannot be of such character so as to detract from the merit of transport separations. Once there had been valid procedure in accordance with the ruling of this Court, exercising revisional jurisdiction, it is not possible to interfere with this finding.

9. Mr. G. Ramaswami, learned Counsel for the civil revision petitioner in C.R.P. No. 2796 of 1978 contends that what is contemplated under Rule 155-A(5)(ii) is punishment under the Act or the Madras Motor Vehicles Taxation Act, 1931 or the Motor Vehicles (Taxation of Passengers and Goods) Act, 1952. During the lorry operation of the respondent there were belated payments on 8 occasions which incurred penalty. The question would be whether it was one under Section 4 or under Section 9. Mr. M.N. Rangachari's contention is that by reason or compounding it will come under Section 4. I shall take it that it was a penalty under Section 9. Nevertheless it will not fall within the provisions of Rule 155-A(5)(ii) for the very simple reason it is Section 14 of the Tamil Nadu Motor Vehicles (Taxation of Passengers and Goods) Act, 1952 says 'shall be punishable'. Hence, I am unable to agree with Mr. G. Ramaswami, learned Counsel for the petitioner that thereby disqualification has been incurred by the respondent and therefore preference should not be given to him. With regard to the conviction of everload of 39 persons the Tribunal had very elaborately considered in the light of the two of the important rulings of this Court and then concluded that it could not be made much of. I am in entire agreement with the same.

10. In the instant case, the rule came to be amended by awarding marks for technical experience on 28th September, 1973. It is well-settled in law delegated legislation will have no retrospective operation. From this point of view, the application of old rule basing upon technical qualification was perfectly legal and valid.

11. In my considered view Rule 155-A does not take within its fold the temporary permit at all. Sub-rule 5 (i) of Rule 155-A reads as follows:

155-A(5)(i). Subject to Sub-rules (1) to (4) and (5)(ii), preference shall, other things being equal, be given in the disposal of applications in respect of short routes other than town services routes to persons who have not held any permit for a stage carriage.

The word 'permit' occurring in Rule 155-A(5)(i) cannot be considered to take within its fold the temporary permit. Such temporary permits are to be granted by reason of the power vested with the transport authorities under Section 62 of the Motor Vehicles Act. That section reads as hereunder:

62(1). A Regional Transport Authority may without following the procedure laid down in Section 57, grant permits, to be effective for a limited period not in any case to exceed four months, to authorise the use of a transport vehicle temporarily-

(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or;

(b) for the purposes of a seasonal business; or

(c) to meet a particular temporary need,

(d) pending decision on an application for the renewal of a permit

and may attach to any such permit any condition it thinks fit:

Provided that a temporary permit under this section shall, in no case, be granted in respect of any route or area specified in an application for the grant of a new permit under section; 46 or Section 54 during the pendency of the application:

Provided further that a temporary permit under this section shall, in no case, be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendency of such application for renewal.

From the above it is clear that only in the stated instances temporary permit can be granted and that too without following the procedure laid down under Section 57. On the contrary the criteria mentioned under Section 47(1) will have to be taken into consideration only when the applications are considered by applying procedure under Section 57. Therefore, where that procedure is dispensed with, Section 47(1) itself will not come into play. A fortiori Rule 155-A, which is complementary to Section 47 also equally will not come into play. The entire rule, therefore, deals with only the procedure for the grant of permit to aid Section 47(1). I see absolutely no justification for holding that any permit granted under Sub-rule (5)(i) of Rule 155-A will take within its fold the temporary permit. The case reported in K. Balasubramania Chetty v. N.M. Sambandamoorthy Chetty : [1975]3SCR91 , deals with the Rule 155-A(c) in relation to the experience of the route. That rule states that two marks shall be awarded for plying a stage carriage on the entire route. The Supreme Court was concerned with the granting of permit to ply a stage carriage on the entire route. A person may ply a stage carriage either on temporary permit or on pucca permit. Therefore, experience gained on temporary permit was held to be a valid experience. But that case does not have any bearing on the question as to the interpretation of 'permit' occurring under Sub-rule 5(1) of Rule 155-A. I am fortified in my conclusion when I make a reference to C.R.P. No. 2140 of 1972 (Judgment, dated 19th September, 1972). In P.R. Ckandran v. S. Abdul Hameed C.R.P. No. 2140 of 1972, Ramaprasada Rao, J., as he then was, held as under:

Regarding the first contention, certain definitions in the Act have to be looked into to understand its force. 'Stage carriage' is defined in Section 2(29) as meaning a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries-passengers for hire or reward at separate fares paid by or for individual passengers, etc. 'Permit' is defined in Section 2(2) as meaning a document issued by the named authority authorising the use of a transport vehicle as a contract carriage or stage carriage, etc. It is singular to find that there is no definition of a temporary permit in the definitions. Section 62 is the provision under which a temporary permit is issued. The section lays down various circumstances under which the Regional Transport Authority may, without following the procedure laid down in Section 57, grant permits to be effective for a limited period, not, in any case, to exceed four months, to authorise the use of a transport vehicle temporarily. Four emergent needs are contemplated under section : They are : (i) special occasions; (ii) seasonal business; (iii) meeting temporary needs; and (iv) during the pendency of an application for the renewal of a permit. Therefore, we have to understand the expression 'temporary permit' in the light of the elements mentioned in Section 62. Though it has the force of a permit within the meaning of Section 2(20) of the Act yet its life is limited. It is procured under certain circumstances and issued by the Regional Transport Authority by following a peculiar procedure. It is this which is called a temporary permit. Therefore, a temporary permit cannot be equated to a permit which is ordinarily secured by a motor vehicles operator for operating motor vehicles under the Motor Vehicles Act. If this distinction is borne in mind, then the import of Rule 155-A(5)(i) can be easily appreciated. The sub-rule says that, other things being equal, preference shall be given, in the disposal of applications in respect of short routes other than town services routes, to persons who have not held any permit for a stage carriage. Stress is laid upon the word 'any' in the sub-rule and it is suggested that 'any permit' would include a temporary permit as well. I am unable to agree. If a particular word is used in an enactment in several places, then the rule of Harmonious construction would compel the Court to adopt the same meaning for the expression throughout, unless the context otherwise requires. Rule 155-A lays down certain guiding principles for the grant of stage carriage permits. By no stretch of imagination can it be said that those principle are to guide the Regional Transport Authority when he grants a temporary permit in case of emergency under Section 62 of the Act. Therefore, the word 'permit' appearing in the sub-rule is referable only to pucca permit and not to any temporary permit. A temporary permit is obtained by, a particular person by accident or by law. But it all depends upon the fact whether the circumstances detailed in Section 62 of the Act existed at about the time when such a temporary grant was made. As public interest and public need are the very foundations for the working of the Motor Vehicles Act, Section 62 has been enacted to subserve public interest in case of emergency. Therefore, such a permit, which is temporary, issued under Section 62, cannot be dealt with and treated on a par with a regular or pucca permit granted after elaborate enquiry by the Regional Transport Authority and State Transport Appellate Tribunal, and ultimately by the High Court or the Supreme Court as the case may be.

I am therefore of the view that 'any permit' occurring in the sub-rule would only mean a pucca permit and not a temporary permit. It therefore follows that the respondent has been rightly treated as a new entrant, notwithstanding the fact that he had the privilege of running a motor vehicle on a temporary permit for a few months prior to date of the hearing of the representations of the applicants in question. I agree with the Appellate Tribunal that both the petitioner and the respondent should be treated as new entrants.

Therefore I reject all the contentions raised on behalf of M/s. Taxi Drivers Bus Service and the Civil Revision Petition 2796 will stand dismissed.

12. As to the contentions of Mr. Govind Swaminathan learned Counsel for Mahalakshmi Transports, I find in paragraph 18 of the order of the Tribunal a detailed consideration of the merits of the respective parties in this revision.

In paragraph 18, the following four points are put against the revision petitioner.

(1) belated payment on three occasions of quarterly tax for the buses of the petitioner even when they were run on temporary permit. This in fact is not denied before me. However, what is sought to be contended is that it can, be offset by reason of 8 belated payments in relation to the lorry services of the respondent. I have already discussed as to how that will not be a punishment within the meaning of Rule 155-A(5)(ii). Therefore I reject this contention. The second point that is put against the revision petitioner by the Tribunal is about the managerial experience which has already been noted that originally the firm was constituted with Srinivasan and Krishnan. On the death of Srinivasan, who was one of the partners of the firm which had only two partners, it will get dissolved. This is clear from the ruling reported in Commissioner of Income-tax, Madhya Pradesh, Nagpur v. Seth Govindram Sugar Mills Limited : [1965]57ITR510(SC) at 27, wherein the Supreme Court held that having regard to Section 42(c) of the Partnership Act, on the death of one of the partners of the firm which had only two partners, it will get dissolved. After the demise of Srinivasan, Krishnan and Janaki wife of Srinivasan joined together and constituted a new firm. Afterwards that was also dissolved and ultimately a new firm: came into existence as Sri Mahalakshmi Transports on 9th June, 1976. I find from the copy of the registration of the firm issued by the Registrar of Firms dated 9th June, 1976 that K.R. Krishnan and S. Janaki retired on 21st February, 1977. Under these circumstances there is no question of any other person claiming managerial experience and as such even an award of 2 marks itself will not be correct. However it is not necessary for me to go into that question. Suffice it to note that this is a valid objection which can be urged against the revision petitioner. One of the allegations, that was made against the revision petitioner is that he was a chronic defaulter in payment of taxes and for thee quarter ending 31st March, 1976, in respect of the vehicle MDF 6625 and MSX 4238 he had paid penalty of Rs. 2,665 and Rs. 1,665 respectively. It is correct on; the part of the Tribunal to hold that there was no counter to this allegation. I have carefully perused page 187 of file viz., the affidavit filed by one of the partners of the revision petitioner. Nowhere this allegation was met. Therefore the Tribunal is correct in holding that no counter for the said allegation is found in the affidavit. If that be so certainly the Tribunal need not prefer a man who is a chronic defaulter which should not have a bearing as regards the public interest.

13. I am unable to accept the argument that the Tribunal has treated the warning as punishment. It merely says warning amounts to punishment as against the clean history of the applicant. That is only for the purpose of comparison. Thus even in; this revision I am unable to see how the order of the tribunal can be said to be vitiated. As a matter of fact the Tribunal had devoted a good deal of attention in comparing the respective claim of the revision petitioner as against those of the respondent. Accordingly, this civil revision petition also fails and is dismissed. There will be no order as to costs in both the civil revision petitions.


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