IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.03.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.14580 OF 2005 and WPMP.No.15919 of 2005 .. s.Arumugam .. Petitioner vs. 1.The State Transport Appellate Tribunal, City Civil Court Buildings Madras 600 104. 2.The Regional Transport Authority Tirunelveli at Tenkasi. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari as stated therein. For petitioner : Mr.V.T.Gopalan,Sr.Counsel for Mr.C.R.Krishnamurthy For respondents : Mr.A.Edwin Prabhakar Addl.Govt.Pleader for R.2 .. ORDER
The writ petition is directed against the order of the first respondent, the State Transport Appellate Tribunal, dated 5.4.2005 confirming the order passed by the Regional Transport Authority, Tirunelveli at Tenkasi dated 25.11.2003.
2. The original writ petitioner A.Mohan, a Stage Carriage Operator of his bus TN-72-A-0995 between Sankarankoil and Nelkattumsevel via Perumathur, Karivalanthanallur, Chockalingapuram, Meenakshipuram, Panaiyur and Ammankulam as a Town Service, the permit having been issued by the second respondent in 1960 and he was operating the bus on the said route as on the date of filing of the writ petition.
2(a). When the original permit of the vehicle was to expire on 3.3.1982, he applied for renewal on 3.11.1981 and the said application was rejected by the second respondent on 26.11.1981 on the basis that it was filed belatedly. The petitioner filed an appeal before the first respondent and during the pendency of the appeal, a direction was issued under section 134(1)(a) of the Motor Vehicles Act, 1939 that the permit granted should continue be valid notwithstanding the expiration of the period till the disposal of the appeal.
2(b). The appeal was ultimately allowed by the first respondent on 10.9.2003, setting aside the order of the second respondent. In the said order, the Tribunal, while holding that it is sufficient if the application for renewal is made 15 days earlier to the expiration of the permit, also held that during the pendency of the appeal if any application is made for renewal, such renewal has to be granted. Thereafter, the second respondent considered the application for renewal and by its order dated 25.11.2003, rejected the application even in respect of the period for which permit was granted by the first respondent Tribunal stating that there is no provision to condone delay in filing the application for renewal under section 81(3) of the Motor Vehicles Act, after the expiry of the permit. It was against that order, the petitioner filed appeal to the first respondent under section 89(1) of the Motor Vehicles Act in Appeal No.1209 of 2003 and the first respondent rejected the appeal under the impugned order by taking a contrary stand from the one that was taken by the Tribunal earlier, as stated above.
3. The impugned judgment of the first respondent is assailed on the ground that it is against the earlier order made in Appeal No.143 of 1982 dated 10.9.2003, that the order has been passed in disregard to the various decisions as well as provisions of the Act, especially section 81(3) of the Motor Vehicles Act and Rule 193A of the Tamil Nadu Motor Vehicles Rules which, according to the petitioner, provide for condonation of delay, if the renewal of licence is in public interest, that the State Government has formulated area scheme in respect of all Districts and there is no possibility of getting any fresh permit in the absence of renewal as pointed out by this Court in W.A.No.2193 of 1999 by judgment dated 9.11.1999, apart from raising many other grounds.
4. Mr.V.T.Gopalan, learned senior counsel appearing for the petitioner, while reiterating the earlier stand of the Tribunal in respect of the same petitioner in the order dated 10.9.2003, wherein a direction was given to the effect that there is a departure from the earlier position as per section 81(2) of the Motor Vehicles Act and therefore, it is not necessary that application for renewal should be made before the expiry of the permit and even the application, if filed before 15 days of expiration of the permit, should be treated as a valid application, would state that the Tribunal in the impugned order has taken a diametrically opposed view and rejected appeal filed by the petitioner and according to him, the delay during the pendency of proceedings before the Tribunal need not be explained.
5. It is, however, the contention of the learned counsel for the respondents that the petitioner who has got a duty to explain the reason for the delay, has failed to comply with the same and therefore, the impugned order of the Tribunal cannot be said to be invalid.
6. Pending the above said writ petition, it is seen that the original writ petitioner, A.Mohan transferred the permit in the name of Thiru S.Arumugam, who has been substituted as petitioner by order of this Court dated 5.2.2008 and the present petitioner, after the transfer of permit in his name on 7.1.2008, applied for renewal of permit for the period from 3.3.2007 to 2.3.2011 and the said application is still pending. It is stated that the permit for his spare bus has already been renewed and is valid up to 13.4.2011 and therefore, according to him, if the permit is not renewed, the renewal already granted to his spare bus will become useless. He would rely upon the judgment of the Supreme Court in Civil Appeal No.4076 of 1977 and also the decision of the Division Bench of this Court in W.A.No.2103 of 1999 dated 9.11.1999 to substantiate his case that ignoring the past, the respondents should consider the case of the petitioner for the purpose of renewal. The petitioner has therefore prayed for a direction against the second respondent to dispose of his application for renewal of permit for the period from 3.3.2007 to 2.3.2011 in respect of his bus TN-72-A-0995 since replaced by TN-72-W-2425 plying on the route, Sankarankoil to Nelkattumsevel.
7. When originally the petitioner A.Mohan applied for renewal of permit which was to expire on 3.3.1982, the application was made on 3.11.1981 and therefore, the said application was not made 120 days before the expiry of the permit and the second respondent rejected the said application of the petitioner. In fact, the original petitioner A.Mohan himself was a transferee of permit from the previous owner by name U.Vellaisamy, the transfer having been effected from 20.12.1984. Even before the transfer, when the permit was not renewed by the second respondent by order dated 26.12.1981, on the basis that it was not filed 120 days before the expiry of original permit, the said original permit holder Vellaisamy filed appeal before the first respondent Tribunal and in the judgment, the Tribunal, while considering the aspect of delay, in the context of sections 58(2) and (3) of the Motor Vehicles Act, 1939, dealt with the question whether the appellant therein is entitled for the benefit under the new Motor Vehicles Act which enables for filing of renewal application 15 days before the expiry of the permit.
8. The Tribunal relied upon certain decision of the Supreme Court and held that the new Motor Vehicles Act, 1988 has to be applied. The Tribunal in the said judgment has also referred to a subsequent amendment to the Motor Vehicles Act effected in the year 2000 by incorporating section 217A. The Tribunal also relied upon an earlier judgment of this Court in W.P.No.14014 of 1995 wherein it was held that in respect of pending proceedings, the amended provision which enables the renewal would apply. Therefore by a conjoint reading of section 81(2) and section 217A, the Tribunal held that there is a marked departure from the earlier position. The Tribunal also held that it is sufficient if an application for renewal is made 15 days prior to the date of expiry of permit and not 120 days and accordingly, allowed the appeal setting aside the order of the Regional Transport Authority who rejected the renewal of permit of original holder.
9. By holding so, the Tribunal has significantly directed that pending appeal if applications are filed for renewal, are to be allowed. The relevant portion of the judgment of the Tribunal is as follows:
7. Subsequent to the period for which the renewal has been sought for and which is the subject matter of this appeal the applications for renewal if any preferred and pending, with the Regional Transport Authority, deserves to be granted. Once the order impugned in this appeal is st aside and a direction issued to the respondent to renew the permit for the period in question, as a necessary corollary, the respondent would be duty bound to accord renewal for subsequent period as well for which applications for renewal if any have been preferred and pending.
Therefore, there was a positive direction to the second respondent to consider the renewal of permit applying the provisions of section 81(2) of the Motor Vehicles Act,1988 and section 217A of the Motor Vehicles (Amendment) Act, 2000. In the said judgment the second respondent was also directed to renew the applications if any made and pending for renewal for the periods subsequent to the period for which the appeal was preferred, provided the tax due was paid as demanded.
10. It is after the order of the Tribunal, considering the fact that in the meantime, the original writ petitioner A.Mohan got the transfer of permit in his name, by replacing the vehicle TN-72-A-0995 in the place of original vehicle TCE 1189, the second respondent in the order dated 25.11.2003, against which the appeal was filed before the first respondent, found that the following applications were pending on the file:
Application date Renewal period (i) 7.11.1984 3.3.1987 to 2.3.1992 (ii) 23.10.1987 3.3.1992 to 2.3.1997 (iii) Received on 7.7.2000 3.3.1997 to 2.3.2002
Since there was no application for the further period of five years from 3.3.2002, the second respondent called for an enquiry. The second respondent having found that for the period from 3.3.2002, no renewal application was filed and the same was produced only during the time of hearing, has again rejected the claim for renewal under section 81(3) of the Motor Vehicles Act, 1988 since there is no provision to condone the delay in filing the renewal application. It is against the said order, the first respondent has passed the present impugned judgment.
11. In the impugned judgment, the Tribunal has found that pending decision in the original appeal as stated above, the applications for renewal were not filed within the time as stipulated under the Motor Vehicles Act, 1988. The Tribunal has taken a different view that pending appeal, applications for renewal were not filed within the time stipulated under the Motor Vehicles Act, 1988. The Tribunal has also found that no useful purpose would be served by granting renewal for the period which has already lapsed and the relevant period for which the relief should be granted is beyond 3.3.2002 and the application for the said period was made only on 17.11.2003 with the delay of 21 months and that was also presented during the personal hearing before the second respondent on 17.11.2003 and therefore, the first respondent Tribunal has confirmed the order of the second respondent dated 25.11.2003.
12. It is the case of the learned senior counsel for the petitioner that pending the proceedings the original petitioner Mohan, after the transfer from Thiru Vellaisamy, was running his vehicle TN-72-A-0995 in the route Sankarankoil to Nelkattumseval and even today, the vehicle is running on the said route and that aspect is not in dispute. It is due to the reason that there has been an order of status quo in this writ petition from the year 2005 onwards, the vehicle is stated to have been operated on the route till date.
13. Significantly, pending the writ petition, on 7.1.2008, the present writ petitioner S.Arumugam got the transfer of permit and he applied for renewal of permit for the period from 3.3.2007 to 2.3.2011 and it is also stated that in respect of the said route he has got a spare bus permit which is renewed and valid up to 13.4.2011.
14. Section 81 of the Motor Vehicles Act, 1988 stipulates that an application should be made for renewal fifteen days before the expiry of the previous permit and the said application can be considered beyond the said date if the applicant is prevented from making application for renewal within the time stipulated. It is relevant to extract the provisions of sections 81 is as follows:
Section 81.Duration and renewal of permit.-
(1) A permit other than a temporary permit issued under Section 87 or a special permit issued under sub-section (8) of Section 88 shall be effective from the date of issuance or renewal thereof for a period of five years;
Provided that where the permit is countersigned under sub-section (1) of Section 88, such counter-signature shall remain effective without renewal for such period so as to synchronise with the validity of the primary permit.
(2) A permit may be renewed on an application made not less than fifteen days before the date of its expiry.
(3) Notwithstanding anything contained in sub-section (2), the Regional Transport Authority or the State Transport Authority, as the case may be, may entertain an application for the renewal of a permit after the last date specified in that sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified.
(4) The Regional Transport Authority or the State Transport Authority, as the case may be, may reject an application for the renewal of a permit on one or more of the following grounds, namely:-
(a) the financial condition of the applicant as evidenced by insolvency, or decrees for payment of debts remaining unsatisfied for a period of thirty days, prior to the date of consideration of the application;
(b) the applicant had been punished twice or more for any of the following offences within twelve months reckoned from fifteen days prior to the date of consideration of the application committed as a result of the operation of a stage carriage service by the applicant, namely:-
(i) plying any vehicle-
(1) without payment of tax due on such vehicle;
(2) without payment of tax during the grace period allowed for payment of such tax and then stop the plying of such vehicle;
(3) on any unauthorised route.
(ii) making unauthorised trips:
Provided that in computing the number of punishments for the purpose of clause (b), any punishment stayed by the order of an appellate authority shall not be taken into account:
Provided further that no application under this sub-section shall be rejected unless an opportunity of being heard is given to the applicant.
(5) Where a permit has been renewed under this section after the expiry of the period thereof, such renewal shall have effect from the date of such expiry irrespective of whether or not a temporary permit has been granted under clause (d) of Section 87, and where a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refunded.
Amendments.- In section 81, in sub-section(1), the expression from the date of issuance or renewal thereof was substituted by Act 54 of 1994 w.e.f. 14.11.1994.
15. The validating provision which was inserted by Act 24 of 2000 viz., section 217A of the Act is as follows:
Section 217-A. Renewal of permits, driving licences and registration granted under the Motor Vehicles Act,1939.- Notwithstanding the repeal by sub-section (1) of Section 217 of the enactments referred to in that sub-section, any certificate of fitness or registration or licence or permit issued or granted under the said enactments may be renewed under this Act.
16. By virtue of the earlier judgment of the Tribunal dated 25.11.2003 the saving clause, section 217A would apply and a direction was issued for renewal and during the entire proceedings, it is the case of the petitioner that the vehicle was plied on the said route based on the interim orders which is not in dispute.
17. The impugned judgment came to be passed by the first respondent Tribunal on 8.4.2005 against which the writ petition was filed on 27.4.2005 and an order of status quo was granted by this Court on 28.4.2005 which stands continued till date. In the meantime, as stated above, the present writ petitioner got the permit transferred in his name on 7.1.2008 and he also made an application for renewal of permit for the period from 3.3.2007 to 2.3.2011 and by virtue of the permit he is already holding he is plying the bus on the same route.
18. In similar circumstances, the Supreme Court in SLP (Civil) No.4076 of 1977 ( R.P.David vs. N.P.Motor Service (P) Ltd.) held that it is improper to dig open a dead renewal and start adjudication afresh and a practical view has to be taken in the interest of public especially when there was no objection in respect of the permit in question. The Supreme Court has held as follows:
Undoubtedly the jurisdiction under the Motor Vehicles Act, regarding the grant of permits has been emphatically pointed out by this Court to be one, where the fights of two parties are not being adjudicated upon, but consideration of public interest especially the interests of the travelling public weigh in choosing the awardee of the permit. Probably the ordinary motion of a list had dominated the consideration of the question before the Court. The order of the High Court therefore, is wrong. Strictly speaking due regard to the consideration of public interest should have induced the R.T.A. to club together Item Nos.5 and 5-A on its agenda and it should have decided between the applicant for renewal and the applicant for denove permit, who was the better qualified, regardless of the fact, that the applicant for advance permit has not formally made any objection for the renewal. If the permit under challenge ha snot been extended today we would have been inclined to interfere with it, because of the error of jurisprudence committed by the High Court. But we do not propose to do now. The permit under challenge had expired long ago, has been renewed more than once without objection and is now likely to enure until 1980. It is improper to dig open a dead renewal and star adjudication afresh. For this reason we dismiss the special leave petition.
19. The issue of running of vehicle based on interim orders passed by the Court and the filing of application for renewal came to be decided by the Honble First Bench of this Court presided over by K.G.Balakrishnan,CJ.(as His Lordship then was) in W.A.No.2103 of 1999 and in the judgment dated 9.11.1999, it was held as follows:
4. It is important to note that the appellant filed a petition before the State Transport Appellate Authority and obtained an order of stay on 10.1.1991 and on the strength of that stay order, the appellant had been operating the vehicle. When the Tribunal dismissed the matter the appellant preferred the writ petition and during the pendency of the writ petition, the appellant was also operating the vehicle in the particular route. It is also to be noted that this is a place where the scheme is applicable and the appellant would not be in a position to get a fresh permit. The counsel for the appellant also submits that renewal application is pending before the 2nd respondent. In the above circumstances, direct the 2nd respondent to consider the renewal application and pass appropriate orders within reasonable time atleast within a period of two months from the date of receipt of the copy of this Judgment. The 2nd respondent has to pass orders independently without being awayed by the observations made by the learned single Judge in the impugned order. Till the final disposal of the renewal application by the 2nd respondent, the appellant is permitted to operate the vehicle on temporary basis. With the above observation, this writ appeal is disposed of. No costs. Consequently, C.M.P.No.18392/99 is closed.
20. Under these circumstances, without going into the validity or otherwise of the impugned judgment of the first respondent, I am of the considered view that the claim of the present petitioner has to be considered by the second respondent afresh by applying section 81(3) of the Motor Vehicles Act, 1988 for the purpose of condoning the delay in filing an application for renewal of permit. While so, the second respondent has to keep in mind the fact that by virtue of the permit and interim orders, the vehicle is being plied on the route till date and also the public interest which is a paramount consideration. The second respondent is therefore directed to consider the application of the present petitioner S.Arumugam for renewal of permit for the period from 3.3.2007 to 2.3.2011 and pass appropriate orders without being influenced by the impugned judgment of the first respondent-Tribunal, and such orders shall be passed within a period of four weeks from the date of receipt of copy of the order.
The writ petition is disposed of accordingly. No costs. Connected miscellaneous petition is closed.
Index:Yes/No Internet:Yes/No Kh 23.03.2010 To 1.The State Transport Appellate Tribunal, City Civil Court Buildings Madras 600 104. 2.The Regional Transport Authority Tirunelveli at Tenkasi. P.JYOTHIMANI,J. P.D.Order in W.P.No.14580 of 2005 Dated:23.03.2010