BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/06/2010 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN W.P(MD)No.4017 of 2010 & M.P.(MD)No.1 of 2010 B.Sivasubramanian ..Petitioner Vs 1.The Regional Transport Authority, Madurai (South) Madurai. 2.The Secretary, The Regional Transport Authority, Madurai (South) Madurai. ..Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned order in R.C.No.2493/A3/2008 dated 26-11-2009 passed by the first respondent and quash the same and consequently directing the respondents to implement the order passed in MTV 775/2005 dated 06-10-2007 thereby permitting the petitioner to ply from Tirumangalam Bus Stand to Usilampatti Bus Stand. !For Petitioner ... M/s.S.M.S.Jonny Basha ^For Respondents ... Mr.S.C.Herold Singh, Govt.Advocate. :ORDER
The petitioner is a private bus operator plying stage carriage in the
route Thirumangalam Police Station to Usilampatti Bus Stand via Santhangudi,
Pannigundu, Nakkalakottai, Thummagundu, Sindhupatti and T.Vilakku and possesses
a permit in respect of a bus bearing Registration No.TN 58 J 1003. Earlier the
stage carriage permit for the above route was owned by one M.Perumal and the
permit was granted to run the bus from Chinnakattalai to Nakkalakottai. In the
year 1996, the said M.Perumal applied for variation of permit conditions from
Thirumangalam Police Station to Usilampatti Bus Stand via Santhangui,
Pannigundu, Nakkalakottai, Thummagundu, Sindhupatti and T.Vilakku. The first
respondent granted the variation of permit. Thereafter, by virtue of Act 19/96,
the Government cancelled all the variations granted by the various Regional
Transport Authorities and that was challenged before the Principal seat at
Madras and all the writ petitions were allowed directing the Government to
implement the variations granted by the Regional Transport Authorities. The
said M.Perumal was also permitted to run the bus through the route varied by the
authorities and he applied for further variation on 12.11.2005, to extend the
route from Thirumangalam Police Station to Thirumangalam Bus Stand on the ground
of obviating the difficulties of the public to change the bus. That application
was rejected on 06-12-2005 and aggrieved by the same, the said M.Perumal filed
the Appeal before the State Transport Appellate Tribunal, Chennai. During the
pendency of the appeal, the permit was transferred to the petitioner by the
proceeding of the Second respondent dated 22-08-2007. The vehicle bearing
Registration No.49 E 7007 was also replaced by vehicle bearing Registration
No.TN 58 J 1003. The State Transport Appellate Tribunal by order in MVA
No.775/2005 allowed the appeal on 06-10-2007 and by virtue of order, the
variation of condition of the permit sought for by the original holder M.Perumal
was granted and the respondents were directed to issue the permit with such
variation within two weeks.
2.Thereafter, on the basis of transfer of permit, the petitioner applied
to the respondents to implement the order passed by the State Transport
Appellate Tribunal to permit the vehicle from Thirumangalam Police Station to
Thirumangalam Bus Stand and on the basis of the opinion of the learned
Additional Government Pleader, Madurai Bench of Madras High Court, the
application of the petitioner was rejected on the ground that the petitioner was
not a party to the Appeal No.MVA 775/2005 and therefore, he is not entitled to
the benefit of the appeal order. This order of the first respondent dated 26-
11-2009 is challenged in this writ petition.
3.Mr.S.C.Herold Singh, learned Government Advocate takes notice for the
respondents and he submitted that as the petitioner was not a party to the
appeal before the State Transport Appellate Tribunal, he is not entitled to the
benefit of the order and therefore, the order of the first respondent is correct
and the writ petition has to be dismissed.
4.According to me, the order of the first respondent cannot be sustained
in law. It is admitted that the petitioner purchased the vehicle during the
pendency of the appeal and therefore, he is a person bound by the result of the
appeal. As per Section 72(2)(xxii) of Motor Vehicles Act, the Regional
Transport Authority has got power to vary the permit or attach to the permit
further conditions and Section 80 deals with the Procedure in applying for and
granting permits. Further, under Section 82 of the Motor Vehicles Act, a permit
holder is entitled to transfer the permit with the approval of the authority and
in this case, by the proceedings of the second respondent dated 22-08-2007, the
permit granted in respect of vehicle No.TN 49 E 7007 was allowed to be replaced
by another vehicle TN 58 J 1003 with effect from 21-03-2007 subject to the list
of conditions already attached to the permit and by similar proceedings dated
22-08-2007 by the second respondent in P.C.No.03/Ms/2006, the permit was
transferred from the earlier owner M.Perumal to the petitioner
B.Sivasubramanian. Further by proceedings dated 02-03-2006 of the first
respondent the permit is valid upto 21-03-2011. Therefore, it is seen from the
second respondent’s proceedings that the petitioner is the valid owner of the
permit and transfer of permit in the name of the petitioner was also approved by
the second respondent. It is also admitted that during the pendency of the
appeal, the transfer had taken place and therefore the question that arises for
consideration is whether the transferee is entitled to the benefit of the appeal
order when he was not a party to the said appeal in MVA 775/2005. In this
connection we will have to see the provision of Order 22 Rule 10 Code of Civil
Procedure. Order 22 Rule 10 is as follows:
ORDER 22 RULE 10: Procedure in case of assignment before final order in suit-(1)
In other cases of an assignment, creation or devolution of any interest during
the pendency of a suit, the suit may, be leave of the Court, be continued by or
against the person to or upon whom such interest has come or devolved.
(2)The attachment of a decree pending an appeal therefrom shall be de
deemed to be an interest entitling the person who procured such attachment to
the benefit of sub-rule(1).
It has been held by the Honourable Supreme Court in the judgment Howrah Daw
Mangla Hat B.B.Samity -Vs- Pronab Kumar Daw reported in (2001)6 SCC 534 as
follows:
“Order 22 Rule 10 CPC is based on the principle that the trial of a suit
cannot be brought to an end merely because the interest of a party in the
subject matter of the suit has devolved upon another during its pendency but
such a suit may be continued with the leave of the court by or against the
person upon whom such interest has devolved. But, if no such step is taken, the
suit may be continued with the original party and the person upon whom the
interest has devolved will be bound by and can have the benefit of the decree,
as the case may be, unless it is shown in a properly constituted proceeding that
the original party being no longer interested in the proceeding did not
vigorously prosecute or colluded with the adversary resulting in decision
adverse to the party upon whom the interest had devolved. …..
Under Rule 10 Order 22 of the Code, when there has been a devolution of
interest during the pendency of a suit, the suit may, by leave of the court, be
continued by or against persons upon whom such interest has devolved and this
entitles the person who has acquired an interest in the subject-matter of the
litigation by an assignment or creation or devolution of interest pendente lite
or suitor or any other person interested, to apply to the court for leave to
continue the suit. But it does not follow that it is obligatory upon them to do
so.”
Therefore, as per the aforesaid judgment of the Honourable Supreme Court, even
in the absence of the purchaser pendente lite not being made a party to the
suit, the suit may be continued with the original party and the person upon whom
interest is devolved is bound by the decree and he can claim the benefit of the
decree. In this case, as stated supra, the permit was transferred in the name
of the petitioner by the respondents and therefore, the petitioner even though
was not a party to the Appeal, is bound by the order passed by the State
Transport Appellate Tribunal, he can also get the benefit of the order.
Therefore, the order of the first respondent that the transferor M.Perumal has
no locus standi in prosecuting the appeal as already he transferred the permit
during the pendency of the appeal and therefore, the petitioner cannot ask for
implementation of the order, is not legally correct. A transferee pendente lite
is entitled to the benefit of the order passed and in this case, admittedly the
permit was transferred to the second respondent during the pendency of the
appeal. Further, permit is not the personal right of the owner and it is just
like other property which can be transferred under law. The Motor Vehicles Act
also permits the transfer of permits and therefore, when a person lawfully
transfers the permits to another person and the transfer is also approved by the
authorities, the transferee of the permit is entitled to all the benefits
attached to the permit and in this case, the appeal filed by the earlier owner
of the permit was allowed and variation was granted and hence, the writ
petitioner is also entitled to the benefit of the appellate order. Hence, the
order of the first respondent is not in accordance with under law and it is set
aside and the first respondent is directed to grant variation in respect of the
permit granted to the petitioner as per the order of the first respondent in MTV
775/2005 dated 06-10-2007.
5.In the result, the writ petition is allowed. No costs. No costs.
Consequently, connected M.P(MD)No.1 of 2010 is closed.
gsr
To
1.The Regional Transport Authority,
Madurai (South)
Madurai.
2.The Secretary,
The Regional Transport Authority,
Madurai (South) Madurai.