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R. Balakrishnan Vs. S. Pavadaisamy - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicle
CourtChennai High Court
Decided On
Reported in(1975)1MLJ350
AppellantR. Balakrishnan
RespondentS. Pavadaisamy
Cases ReferredPublic Prosecutor v. A. Thomas
Excerpt:
- .....applicant for the grant of a stage carriage permit for a new short route, porayar to sirkazhi. the regional transport authority granted the permit to the petitioner herein on the ground that he has secured higher marks than the respondent herein. when the matter was taken on appeal by the respondent herein before the tribunal, the tribunal set aside the grant made by the regional transport authority in favour of the petitioner and granted the permit to the respondent. aggrieved against the order of the tribunal, the petitioner has come to this court.2. before the regional transport authority, the respondent claimed to be a permanent resident of sirkazhi which residence entitled him to get two marks. the regional transport authority was not, however, inclined to accept the respondent's.....
Judgment:
ORDER

G. Ramanujam, J.

1. The petitioner herein was an applicant for the grant of a stage carriage permit for a new short route, Porayar to Sirkazhi. The Regional Transport Authority granted the permit to the petitioner herein on the ground that he has secured higher marks than the respondent herein. When the matter was taken on appeal by the respondent herein before the Tribunal, the Tribunal set aside the grant made by the Regional Transport Authority in favour of the petitioner and granted the permit to the respondent. Aggrieved against the order of the Tribunal, the petitioner has come to this Court.

2. Before the Regional Transport Authority, the respondent claimed to be a permanent resident of Sirkazhi which residence entitled him to get two marks. The Regional Transport Authority was not, however, inclined to accept the respondent's case that he is a permanent resident of Sirkazhi. Relying on the report made by the Motor Vehicles Inspector on his personal verification, the Regional Transport Authority held that the respondent has not been proved to be a permanent resident of Sirkazhi and that he has been making a false claim that he is having residence at Sirkazhi. Though a certificate of the Revenue Divisional Officer dated 17th March, 1972 to the effect that the respondent is residing at Sirkazhi for the past nine months had been produced, the Regional Transport Authority did not attach any significance to that certificate, but proceeded to hold that the respondent having given different places of residence at different times, it is not desirable to grant him the permit on the route in question. In that view, the Regional Transport Authority did not award any marks under the head ' Residence '. The result was, the respondent got lesser marks than the petitioner, and, therefore, he was not granted the permit.

3. On appeal, however, the Tribunal held that the Regional Transport Authority is not justified in ignoring the certificate of residence given by the Revenue Divisional Officer, which has to be taken as conclusive proof of the respondent's residence at Sirkazhi in view of the proviso to Sub-rule (3) (A) of Rule 115-A of the Tamil Nadu Motor Vehicles Rules, 1940. Based on the said certificate, the Tribunal proceeded to hold that the respondent is a permanent resident of Sirkazhi and as such is entitled to two marks under the head 'residence'. On this calculation, the respondent got higher marks than the petitioner, and, therefore, the Tribunal directed the grant of the permit to the respondent.

4. In this revision petition, the learned Counsel for the petitioner challenges the validity and the correctness of the order of the Tribunal. As will be clear from the facts set out above, the tilting factor in the matter of grant of permit is the factum of residence. It is to be seen whether the respondent has got a permanent residence at Sirkazhi and as such entitled to two marks as has seen awarded by the Tribunal. It is not disputed by the learned Counsel for the petitioner that if the respondent is taken to have a permanent residence at Sirkazhi, he will be entitled to two marks awarded by the Tribunal, resulting in the grant being made in his favour. Therefore, the main controversy between the parties before me is as to whether the respondent has a permanent residence at Sirkazhi. As already pointed out, the Regional Transport Authority mainly relied on the report of the Motor Vehicles Inspector, who had stated that the respondent is not residing at Sirkazhi. A perusal of the order of the Regional Transport Authority indicates that it has not come to any positive conclusion or given any definite finding on the question of the respondent's residence. It gives a halting finding based on the report of the Motor Vehicles Inspector, but merely stated that the respondent 'seems' to be misrepresenting about the residential qualification, and that the respondent 'seems' to be a permanent resident of South Arcot District. It omitted to consider the evidentiary value of the certificate of residence issued by the , Revenue Divisional Officer. The Tribunal has held that the Regional Transport Authority is not justified in ignoring the certificate and proceeding to decide the issue as to residence without reference to the same. Relying on the proviso to Sub-rule (3) (A) of Rule I55-A of the Tamil Nadu Motor Vehicles Rules, 1940, the Tribunal held that the certificate of residence issued by the Revenue Divisional Officer is conclusive on the question of residence, and once such a certificate is produced, the authorities cannot embark on an enquiry on the question of residence.

5. According to the learned Counsel for the petitioner, the Tribunal is not justified in taking the certificate of residence given by the Revenue Divisional Officer as conclusive and in not considering the various documents filed by the petitioner to prove that the respondent is not a permanent resident of Sirkazhi. It is said that the proviso lays down only a rebuttable presumption and that if the evidence adduced by the parties shows that the respondent could not have had a permanent residence at Sirkazhi, then the certificate of residence issued by the Revenue Divisional Officer can be ignored. The learned Counsel for the respondent would, on the other hand, contend that having regard to the language of the proviso and the object with which it has been introduced, the presumption set out therein should be taken to be conclusive and not rebuttable, as has been held by the Tribunal, and that once a certificate of residence as contemplated by that proviso has been produced, the Regional Transport Authority cannot go behind the certificate and embark on an independent enquiry on the question of residence.

Sub-rule (3) (A) of Rule 155-A and the proviso thereunder, so far as they are relevant, are set out below:

155-A (3). After eliminating in the-manner laid down in Sub-rule (2) the-applicants who are unsuitable, marks-shall be awarded for assessing the different qualifications of the remaining applicants for the grant of permits as follows:

(A) Residence.--Two marks shall be awarded to the applicant who has his. principal place of business or permanent residence at either terminus or on the route ; where however, the principal place of business or residence of the applicant, though not at either terminus or on the route is within eight kilometers from any point in the route, the mark to be awarded shall be one:

Provided that the principal place off business or residence certificate by the Revenue Divisional Officer concerned shall be presumed to be the principal place of business or residence for purposes of these rules, if questioned and if the Transport Authority is not satisfied about the place of business or residence.

6. It is true that the language employed in the proviso indicates that if the factum of residence is questioned and if the Transport Authority is not satisfied about the place of business asserted by a party, the production of a certificate of residence by the Revenue Divisional Officer could be taken to be sufficient proof of the residence But the question is whether the learned Counsel for the respondent is right in his extreme submission that the certificate of residence issued by the Revenue Divisional Officer is conclusive as to residence and that once the certificate of residence as contemplated by the proviso is produced, the Transport Authority has no power to enquire into the question of residence, even if it is shown by other evidence that the certificate is either untrue or incorrect. It must be remembered that the proviso does not say that the certificate of residence given by the Revenue Divisional Officer is conclusive on the question of residence. The actual expressions used in the proviso is ' shall be presumed '. The term ' shall be presumed ' was taken to mean in Public Prosecutor v. A. Thomas : AIR1959Mad166 , that the Court is bound to take the fact as proved until evidence is adduced to disprove it and the party interested in disproving it must produce such evidence if he can. The expression 'shall be presumed ' has also been explained in Section 4 of the Indian Evidence Act as ' whenever it is directed under the Evidence Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. ' It is true that Section 4 explains the expression ' shall presume ' in the context of the provisions in the Evidence Act. But, I am of the view that the principle contained in that section applies to the interpretation of the words ' shall be presumed ' occurring in the proviso in question. Therefore, the rule of presumption contained in the proviso can only be taken as rebut-table, and if sufficient material is produced by the other party to disprove the fact contained in the certificate, then it may be open to the Regional Transport Authority to ignore the certificate.

7. However, the question in this case is whether the petitioner has rebutted the presumption contained in the proviso. The respondent has produced a certificate of residence from the Revenue Divisional Officer as contemplated in the proviso and as per the proviso, if the factum of residence is disputed, and if the Regional Transport Authority does not accept the residence asserted by the party, the certificate of residence has to be acted upon. The materials adduced by the petitioner to disprove the facts contained in the certificate are not, in my opinion sufficient or adequate to rebut the statutory presumption attached to the certificate in question. As already stated, the Regional Transport Authority has not given any categoric finding. It merely gave a halting finding that the respondent was not a resident of Sirkazhi based on the report of the Motor Vehicles Inspector that when he inspected the address given by the respondent as his place of residence, some one else was residing there. The report indicates that the Motor Vehicles Inspector has merely drawn an inference of non-residence from the fact that some one else was residing in that address. It may be that the respondent was also living in the same address along with his relation found to be living in the premises. The other materials produced by the petitioner merely show that the respondent has given an address at Cuddalore in his applications to the Regional Transport Authority, Cuddalore and that he was served with certain notice in that address. But these materials do not show that the respondent did not have any residence at Sirkazhi. It is possible that he might have residence in both places. In the circumstances, it has to be taken that the petitioner has not-disproved the facts contained in the certificate of residence given by the Revenue Divisional Officer. The presumption that the respondent has a place of residence at Sirkazhi, therefore, arises by virtue of the proviso.

8. The civil revision petition is, therefore, dismissed. There will be no order as to costs.


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