{"id":15811,"date":"2005-12-15T00:00:00","date_gmt":"2005-12-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vishnu-dutt-ors-vs-state-of-rajasthan-ors-on-15-december-2005"},"modified":"2016-04-09T11:17:35","modified_gmt":"2016-04-09T05:47:35","slug":"vishnu-dutt-ors-vs-state-of-rajasthan-ors-on-15-december-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vishnu-dutt-ors-vs-state-of-rajasthan-ors-on-15-december-2005","title":{"rendered":"Vishnu Dutt & Ors vs State Of Rajasthan & Ors on 15 December, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Vishnu Dutt & Ors vs State Of Rajasthan & Ors on 15 December, 2005<\/div>\n
Author: C Thakker<\/div>\n
Bench: Ashok Bhan, C.K. Thakker<\/div>\n
           CASE NO.:\nAppeal (civil)  1159-1170 of 2004\n\nPETITIONER:\nVISHNU DUTT & ORS.\n\nRESPONDENT:\nSTATE OF RAJASTHAN & ORS.\n\nDATE OF JUDGMENT: 15\/12\/2005\n\nBENCH:\nASHOK BHAN & C.K. THAKKER\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nWITH
\nCIVIL APPEAL NO. 1172 OF 2004<\/p>\n
C.K. THAKKER, J.\n<\/p>\n
All these appeals have been filed against the orders
\npassed by the Division Bench of High Court of Rajasthan
\nin the D.B. Civil Special Appeal No. 662 of 2001 and
\ncognate matters by which the Division Bench dismissed
\nall appeals and confirmed the common order passed by
\nthe learned single Judge in various Writ Petitions.
\nThe litigation has a chequered history. By a
\nReciprocal Transport Agreement dated 5th\/8th February,
\n1968 (hereinafter referred to as ‘1968 Agreement’)
\nentered into between the State of Rajasthan and the
\nState of Haryana, Hanumangarh – Dabbwali via Sangaria
\ninter-State route opened to traffic with a view to
\nencourage movement of transport vehicles on such
\nroutes and to regulate and control their operation. The
\nagreement stipulated that four return trips and eight
\nsingle services will be allowed to buses belonged to State
\nof Rajasthan and 13 permits will be granted. In
\naccordance with the said agreement, the Rajasthan State
\nRoad Transport Corporation (‘RSRTC’ for short) was
\ngranted 13 stage carriage permits. On February 29,
\n1996, the Regional Transport Authority, Bikaner (‘RTA’
\nfor short) granted additional stage carriage permits to
\nprivate vehicle operators including the respondents in
\nthe present appeals. There was a clear stipulation on the
\npermits that they were granted beyond the ceiling fixed
\nunder 1968 Agreement.\n<\/p>\n
On July 14, 1997, the State of Rajasthan and the
\nState of Haryana entered into a fresh inter-State
\nagreement (hereinafter referred to as ‘1997 Agreement’)
\nin supersession of 1968 Agreement for 13 permits with
\n16 single trips. Clause 4 (iv) clarified that all previous
\nstage carriage permits which were counter signed by
\neither State before the coming into force of 1997
\nAgreement shall remain in force till the valid period of
\nsuch permits. According to the appellants, under 1997
\nAgreement, the route was made open exclusively for
\nprivate operators. It was also their case that under 1968
\nAgreement, only RSRTC was granted permits which was
\nwithin the scope and ceiling fixed by that Agreement and
\nthe respondents had no right to ply vehicles.
\nAfter coming into force of 1997 Agreement, several
\napplications were made by private vehicle operators for
\ngrant of permits. RTA, however, vide its orders dated
\nApril 25, 1998 and November 18, 1998 declined to grant
\npermit to any applicant under Section 88 of the Motor
\nVehicles Act, 1988 on the ground that there was no
\nvacancy in existence for the grant of such permits. Being
\naggrieved by the above orders passed by RTA, appeals
\nwere filed before the State Transport Appellate Tribunal,
\nRajasthan, Jaipur (‘STAT’ for short) by the persons whose
\napplications were rejected. The main appeal was Appeal
\nNo. 398 of 1998 titled Sohanlal v. RTA. STAT, vide its
\norder dated July 24, 1999 set aside the order passed by
\nRTA and remitted the matter to RTA with a direction to
\nreconsider all the applications under 1997 Agreement for
\ngrant of 13 permits with 16 trips. Against the order
\npassed by STAT, RSRTC filed a Writ Petition in the High
\nCourt of Rajasthan. A Writ Petition was also filed by
\nSohanlal. The learned single Judge of the High Court
\npassed an interim order on September 9, 1999 and
\nstayed further proceedings before RTA consequent to the
\norder of remand made by STAT directing RTA to
\nreconsider applications and to pass orders in accordance
\nwith law. It is, however, the case of the appellants that
\nthe order of interim relief granted by a single Judge of
\nthe High Court on September 9, 1999 was not
\ncommunicated immediately to RTA and RTA was not
\nmade aware of any such interim order passed by the
\nHigh Court. Accordingly, on September 16, 1999, RTA
\nheld a meeting in which appellants as well as
\nrespondents participated and the parties were heard. By
\nan order dated November 2, 1999, RTA, considering the
\ncase of the appellants on merits, was pleased to grant 11
\npermits to them and the remaining two permits were
\ngranted in favour of other persons. According to the
\nappellants, they were not made parties in the
\nproceedings before the High Court in the writ petitions
\nand they were not aware of interim order dated
\nSeptember 9, 1999. It was also asserted by the
\nappellants that neither RSRTC nor Sohanlal produced
\nthe order of the High Court before RTA on September 16,
\n1999 when the hearing took place, nor on November 2,
\n1999 when the order was passed in favour of appellants
\ngranting permits in their favour. According to the
\nappellants, therefore, the order dated November 2, 1999
\nwas legal, valid, proper and in accordance with law. It is
\nthe case of the appellants, that the interim order of the
\nHigh Court was communicated to RTA only on November
\n13, 1999 but by that time, the order dated November 2,
\n1999 had already been passed by RTA. In view of the
\nfinal order passed by RTA, RSRTC filed an application in
\nthe writ petition pending in the High Court seeking
\namendment of the petition, challenging the legality of the
\norder dated November 2, 1999 by which RTA had granted
\n11 permits in favour of the appellants. The said
\napplication was made on November 29, 1999. The High
\nCourt granted the application on December 13, 1999 and
\nvacated interim relief which was granted on September 9,
\n1999 in the light of the order dated November 2, 1999
\npassed by RTA but fixed the matter for final hearing. On
\nDecember 24, 1999, the competent authority
\ncountersigned the permits in favour of the appellants
\ntaking into account the fact that interim relief had been
\nvacated by the High Court. The matter was then heard by
\nthe learned single Judge on January 27, 2000. During
\nthe course of hearing, it was noticed by the learned
\nsingle Judge that as against 13 permits under 1997
\nAgreement, 50 vehicles were plying on Hanumangarh –
\nDabawali via Sangaria inter-State route as on January
\n27, 2000 on the basis of the permits granted by RTA,
\nwhich were outside the scope of the ceiling fixed by inter-
\nState agreement. Under the circumstances, the learned
\nsingle Judge directed the Secretary, RTA to give exact
\nfigures and details about the permits granted within the
\nquota and outside the ceiling fixed by 1968 Agreement as
\nwell as 1997 Agreement. The RTA submitted two
\nseparate Schedules marked ‘A’ and ‘B’. In Schedule ‘A’,
\nthe names of the persons who were granted permits
\noutside the scope and ceiling fixed by 1968 Agreement
\nwas filed. In Schedule ‘B’, the names of persons who
\nwere granted permits within the scope and ceiling fixed
\nby 1997 Agreement were mentioned. In the light of the
\nquery raised by the Court and information supplied by
\nRTA, the High Court finally disposed of the petitions on
\nFeburary 14, 2000, inter alia, observing as under:
\n“In the facts and circumstances of the case, it
\nis desirable that the learned State Transport
\nAppellate Tribunal be requested to examine
\nthe whole issue afresh and determine who are
\n13 permit-holders who have valid permits for
\nthe aforesaid inter-State route under the
\nreciprocal agreement and who should be
\nallowed to ply vehicles on the said inter-State
\nroute under such valid permits”.\n<\/p>\n
(emphasis supplied)<\/p>\n
\tThe Court noted that “with the consent of learned
\ncounsel for the parties”, the case was remitted to STAT
\nwith the request to dispose of the matter expeditiously,
\npreferably within three months, keeping in view the
\ndecision of this Court in Ashwani Kumar v. Regional
\nTransport Authority, Bikaner,<\/a> (1999) 8 SCC 364 and the
\ndecision of the High Court of Rajasthan in M\/s
\nZamindara Motor Transport Co-operative Society v.
\nRegional Transport Authority,<\/a> (1999) 2 RLW 1329.  Till
\nthe matter was to be decided by STAT, Jaipur, RTA,
\nBikaner was restrained from granting any temporary or
\npermanent permit on the route in question to any
\nperson. In pursuance of the order passed by the learned
\nsingle Judge, STAT issued notices to all 50 permit
\nholders. After hearing them, STAT, by an order dated
\nMay 29, 2000, held that 13 permits issued in favour of
\nRSRTC were within the ceiling fixed by 1968 Agreement.
\nThose permits, however, were not countersigned by the
\nState of Haryana and hence they could not be said to be
\nvalid permits. When 1997 Agreement came into force,
\npermits granted under 1968 Agreement in favour of
\nRSRTC were considered, but since the earlier permits
\nwere not valid, the new permits also could not be said to
\nbe valid permits and were not saved under Clause 4(iv) of
\n1997 Agreement. So far as the permits granted in favour
\nof respondents were concerned, according to STAT, they
\nwere countersigned by the State of Haryana but those
\npermits were outside the ceiling fixed by 1968 Agreement
\nand, therefore, those permits also could not be said to be
\nvalid in the light of the ratio laid down in Ashwani Kumar
\nas also M\/s Zamindara Motor Transport Co-operative
\nSociety.\n<\/p>\n
\tAs to order dated November 2, 1999 passed by RTA
\ngranting permits in favour of the appellants, STAT held
\nthat the said order was in violation of interim order dated
\nSeptember 9, 1999 passed by the High Court in writ
\npetitions. STAT noted that the interim order was vacated
\nby the High Court on December 13, 1999 keeping in view
\nthe order passed by RTA on November 2, 1999 but such
\nvacation would not make order dated 2nd November,
\n1999 valid and would not cure the defect as the writ
\npetition was finally allowed by the High Court. According
\nto STAT, when the order dated July 24, 1999 passed by
\nSTAT remanding the matter to RTA was set aside by the
\nHigh Court, no order could have been passed by RTA
\nconsidering the applications and granting permits in
\npursuance of the order passed by STAT since that order
\nwas quashed by the High Court. No party, hence, could
\nget benefit of an order dated November 2, 1999. The
\nappellants, therefore, could not claim the benefit under
\nthe said order. STAT, therefore, by an order dated May
\n29, 2000, again remanded the matter to RTA directing it
\nto consider the applications which were decided on
\nNovember 2, 1999. A direction was also issued to RTA
\nnot to consider any application filed prior to July, 1997
\ni.e. before coming into force of 1997 Agreement.
\n\tThe order dated May 29, 2000 passed by STAT was
\nchallenged by RSRTC by filing a writ petition. The
\nlearned single Judge, however, held that a finding had
\nbeen recorded by STAT that the permits granted in
\nfavour of RSRTC had never been countersigned by the
\nState of Haryana and hence RSRTC had no right to ply
\nits vehicle on the said route. So far as 1997 agreement
\nwas concerned, permits were to be granted to private
\nvehicle operators and hence, RSRTC had no right to
\nclaim any permit under the said agreement.  The Court
\naccordingly dismissed the petition filed by RSRTC.
\n\tThe order dated May 29, 2000 passed by STAT was
\nalso challenged by the appellants as well as by
\nrespondents by filing writ petitions. The learned single
\nJudge heard the parties and disposed of all writ petitions
\nby a common order. The learned single Judge, inter alia,
\nheld as under:\n<\/p>\n
1. Permits granted on November 2, 1999 in
\nfavour of the appellants cannot be said to
\nbe legal and valid.\n<\/p>\n
2. 11 permits granted in favour of private
\noperators (respondents herein) on February
\n29, 1996 had never been challenged on any
\nground whatsoever before any forum and it
\nwas only because an order was passed by
\nlearned single Judge on February 14, 2000
\nin the light of the fact that as against 13
\noperators, 50 vehicles were plying, STAT
\nwas directed to find out as to who those 13
\npersons were who held legal permits and
\nhad right to ply vehicles.\n<\/p>\n
3. \tAs the respondents-private vehicle
\noperators were holding valid permits,
\nwhich were countersigned by the State of
\nHaryana, their permits were legal and
\nvalid.\n<\/p>\n
4. Mere stipulation in the permits that they
\nwere over and above the ceiling under the
\nAgreement would not disentitle private
\noperators from continuing operation as the
\nsaid provision had to be read in accordance
\nwith the agreement. Once it was held that
\n13 permits granted in favour of RSRTC
\nwere not countersigned, they could not be
\nsaid to be legal permits under 1968
\nAgreement and hence they were required to
\nbe excluded.\n<\/p>\n
5. In view of exclusion of 13 permits issued in
\nfavour of RSRTC, permits issued in favour
\nof respondents-private operators, counter-
\nsigned by the State of Haryana, must be
\ntreated as legal.\n<\/p>\n
6.  The respondents were permit-holders and
\nplying their vehicles since March 16, 1963
\nand they could not be thrown out on any
\ntechnical ground.\n<\/p>\n
\tResultantly, writ petitions filed by appellants came
\nto be dismissed and the writ petitions filed by
\nrespondents were allowed.\n<\/p>\n
Two batch of original side appeals were filed by the
\nappellants being aggrieved by the order passed by the
\nlearned single Judge. In one set of appeals, it was
\ncontended that the learned single Judge had committed
\nan error of law in dismissing the writ petitions filed by
\nthe appellants as after considering the applications filed
\nby the appellants in accordance with 1997 Agreement,
\ntheir cases were considered by the RTA and permits were
\ngranted in their favour. The order which was passed on
\nNovember 2, 1999 without any knowledge as to interim
\norder passed by a single Judge of the High Court was
\nlegal and valid and could not have been invalidated by
\nthe learned single Judge. Their appeals were, therefore,
\nrequired to be allowed.\n<\/p>\n
Regarding writ petitions filed by respondents, it
\nwas contended by the appellants before the Division
\nBench that admittedly they were holding permits over
\nand above the ceiling fixed by 1968 Agreement. An
\nexpress stipulation was made in the Agreement that they
\nwere in excess of quota under the said Agreement. It was
\nsubmitted that it was the case of RSRTC that 13 permits
\nwere granted in favour of Corporation and as under 1968
\nAgreement only 13 permits could be granted, even if it is
\nheld that those permits were not as per the Agreement,
\nthe respondents could not claim benefit of the fact-
\nsituation that the permits, in favour of RSRTC were held
\nillegal, they must get the benefit and permits issued in
\ntheir favour should be held legal. The learned single
\nJudge, therefore, was in error in granting relief in favour
\nof the respondents.\n<\/p>\n
The Division Bench considered the question in
\ndetail and held that the learned single Judge was right in
\ndismissing the writ petitions filed by the appellants-
\npetitioners and also in allowing the petitions filed by the
\nrespondents (petitioners before the High Court). The
\nDivision Bench observed that since RTA was not aware
\nof interim order dated September 9, 1999 passed by the
\nlearned single Judge in the writ petition, consideration of
\napplications of the appellants on September 16, 1999
\nand grant of permits on November 2, 1999 might not be
\ntreated as an order passed by RTA in disobedience of
\ninterim order passed by the learned single Judge of the
\nHigh Court. But the fact remained that the order of STAT
\nremanding the matter to RTA and the direction to
\nreconsider the applications of all applicants on merits
\nwas finally quashed and set aside by the High Court.
\nHence, the order passed by RTA could not be said to be
\nvalid in the eye of law and, hence, could not operate or
\nbe implemented. The appellants, therefore, could not
\nbase their claim on the said order. The order passed by
\nthe learned single Judge dismissing the petitions of the
\nappellants-petitioners, therefore, could not be held
\ncontrary to law and accordingly their appeals were liable
\nto be dismissed.\n<\/p>\n
As far as the petitions of the respondents and grant
\nof relief in their favour, which was objected by the
\nappellants, the Division Bench observed that the learned
\nsingle Judge was right in allowing their petitions. The
\nBench noted that under 1968 Agreement, only 13
\npermits could be granted. As per the Agreement, the
\npermits could be said to be valid and effective only if they
\nwere countersigned by either State. Though it was the
\ncase of RSRTC that 13 permits were granted to the
\nCorporation, admittedly, they were not countersigned by
\nthe State of Haryana. The said permits, therefore, rightly
\nheld to be not as per the Agreement. Obviously,
\ntherefore, 13 permits which were issued in favour of
\nrespondents and countersigned by the State of Haryana
\nmust be held legal and valid irrespective of mentioning of
\nthe fact in the permits that they were in excess of quota.
\nOnce it was held that permits granted in favour of
\nRSRTC were not in accordance with agreement, permits
\nissued to respondents countersigned by the State of
\nHaryana must be held valid. If it is so, the learned single
\nJudge was right in granting the relief in favour of
\nrespondents, ruled the Division Bench. In view of the
\nsaid findings, the Division Bench disposed of all Appeals.
\nBeing aggrieved by the said orders, the appellants
\nhave approached this Court. Notices were issued by this
\nCourt on November 18, 2002 and after hearing the
\nparties, leave was granted. The matters have been placed
\nbefore us for final hearing.\n<\/p>\n
We have heard learned counsel for the parties.
\nTwo questions, which were raised before the
\nlearned single Judge as well as before the Division Bench
\nof the High Court, were raised before us by the learned
\ncounsel for the appellants. Firstly, it was contended that
\nin pursuance of inter-State Agreement of 1997 entered
\ninto between the State of Haryana and State of
\nRajasthan, applications were invited from private
\noperators and the appellants submitted applications. In
\naccordance with the Agreement, applications of the
\nappellants were considered by the RTA, Bikaner along
\nwith other applications and permits were granted in their
\nfavour which were duly countersigned by the State of
\nHaryana. Those permits, therefore, were legal and valid
\nand could not have been declared illegal. The High Court
\nought to have granted relief to the appellants rejecting
\nthe contention of RSRTC and of the respondents. Since
\nthe High Court did not grant relief in favour of the
\nappellants, the orders deserve to be quashed and set
\naside.\n<\/p>\n
Secondly, it was submitted that the High Court was
\nin error in granting relief to the respondents. Under 1968
\ninter-State Agreement, only 13 permits could have been
\ngranted. Admittedly, those 13 permits under the
\nAgreement were granted in favour of RSRTC. The said
\nfact was neither disputed before the authorities, nor
\nbefore the High Court. It is true that 11 permits were
\ngranted to private operators-respondents herein, and
\nthey were countersigned by the State of Haryana, but it
\nwas expressly stipulated in those permits that they were
\nin excess of quota and hence no right would flow from
\nthose permits. Hence, even if it is held that 13 permits
\nissued in favour of RSRTC were not legal and valid, since
\nthey were not countersigned by the State of Haryana,
\nprivate operators-respondents could not get the benefit
\nas their permits were in excess of quota under the
\nAgreement. The High Court was, therefore, in error in
\ngranting relief in their favour. It was, therefore,
\nsubmitted by the learned counsel for the appellants that
\nthe orders require interference by declaring the permits
\nissued in favour of respondents as illegal and by
\ngranting relief in their favour declaring the permits
\nissued by RTA, Bikaner in their favour and
\ncountersigned by the State of Haryana as legal and valid.
\nThe learned counsel for the contesting
\nrespondents, on the other hand, submitted that the High
\nCourt was right in dismissing the writ petitions filed by
\nthe appellants and allowing the writ petitions of the
\nrespondents and in granting benefit in their favour.
\nAccording to the counsel, under 1968 Agreement, 13
\npermits could be granted. They were required to be
\ncountersigned by the State of Haryana. True it is that 13
\npermits were granted by RTA, Bikaner to RSRTC, but
\nadmittedly they were not countersigned by the State of
\nHaryana. On the other hand, permits granted to
\nrespondents were countersigned by the State of
\nHaryana. Therefore, only those permits were legal and
\nvalid and could be said to be ‘under the Agreement’.  A
\nstatement to the effect that permits granted in favour of
\nrespondents were in excess of quota, therefore, had no
\nrelevance. Once it is held that permits issued in favour of
\nRSRTC were not valid, other permits issued in favour of
\nrespondents and countersigned by the State of
\nRajasthan, must necessarily be treated as valid and in
\naccordance with the terms of the Agreement. The High
\nCourt was, therefore, justified in granting relief to the
\nrespondents.\n<\/p>\n
The learned counsel for the State of Rajasthan also
\nsupported the respondents and submitted that the
\norders passed by the High Court are legal and proper
\nand no interference is called for.\n<\/p>\n
Having heard the learned counsel for the parties, in
\nour opinion, the orders of the High Court are legal, valid,
\nproper and do not deserve interference by this Court
\nunder Article 136 of the Constitution.
\nAs is clear from the facts enumerated hereinabove,
\nunder 1968 Agreement, 13 permits were granted in
\nfavour of RSRTC, but as has been rightly held by the
\nHigh Court, those permits could not be termed valid
\npermits inasmuch as they were not countersigned by the
\nState of Haryana. Since 13 inter-State permits could be
\ngranted under 1968 Agreement, the High Court was
\njustified in taking into account permits granted in favour
\nof respondents which were countersigned by the State of
\nRajasthan. To us, the High Court was right in observing
\nthat the fact that in those permits, it was stated that
\nthey were in excess of quota under 1968 Agreement, was
\nof no consequence since those permits were not in
\nexcess of quota if invalid permits issued in favour of
\nRSRTC were to be excluded and ignored. It is settled law
\nthat inter-State permits must be countersigned by the
\nother State. In this connection, the High Court relied on
\nAshwani Kumar wherein this Court expressly held that
\nreciprocal agreement is a condition precedent for grant of
\npermits and if such agreement provides for
\ncountersignature of the other State, obviously that
\ncondition has to be fulfilled. Reference was also made to
\nT.N.R. Reddy v. Mysore State Transport Authority,<\/a> (1970)
\n1 SCC 541 : AIR 1971 SC 1662. The High Court was,
\ntherefore, fully justified in granting relief to the
\nrespondents and no grievance can be raised by the
\nappellants against such relief granted to the
\nrespondents.\n<\/p>\n
Regarding permits granted in favour of the
\nappellants and countersigned by the State of Haryana, it
\nis clear that the same was issued by RTA in accordance
\nwith the direction issued by STAT vide its order dated
\nJuly 24, 1999. By the said order, STAT quashed the
\norders passed by RTA on April 25, 1998 and November
\n18, 1998 and directed RTA to reconsider the applications
\nsubmitted by various private parties. But it has come on
\nrecord that the order of STAT was challenged by RSRTC
\nas also by other parties in the High Court of Rajasthan
\nby filing writ petitions. The learned single Judge, not
\nonly entertained writ petitions, but even granted
\nprohibitory interim orders on September 9, 1999 and
\nRTA was restrained from considering the applications as
\ndirected by STAT. It is true that the said interim order
\nhad not been communicated immediately to RTA and
\nRTA was not made aware of the interim order passed by
\nthe learned single Judge. Though it was stated by the
\nlearned counsel for the respondents that the interim
\norder was passed by the learned single Judge in
\npresence of the learned counsel appearing for RTA and
\nas such RTA must be deemed to be aware of the interim
\norder and the learned single Judge has also taken into
\naccount the said fact, we may not enter into larger
\nquestion since in our opinion, the Division Bench was
\nright in observing that even if it is held that RTA was not
\naware of interim order passed by the learned single
\nJudge and hence it could consider the applications
\nsubmitted by the appellants and other applicants, when
\nthe petitions were allowed and the order of STAT
\nremitting the matter to RTA for reconsideration was
\nquashed and set aside, the action taken by RTA had no
\neffect in the eye of law.  On STAT direction being set
\naside, there could not be said to be an order of
\nreconsideration of applications by RTA.  Hence, an order
\ngranting applications and issuing permits in favour of
\nthe appellants had no legal effect whatsoever and the
\nappellants cannot derive any benefit under the said
\norder of November 2, 1999.\n<\/p>\n
In this connection, we may refer to a decision of
\nthis Court in Mulraj v. Murti Raghunathji Maharaj,<\/a> (1967)
\n3 SCR 84: AIR 1967 SC 1386. In that case, execution
\nproceedings were pending in the Executing Court. Stay
\nwas granted against execution by the appellate Court
\nbut the said order was not communicated to the
\nExecuting Court. A question which came up for
\nconsideration before this Court was whether further
\nproceedings before the Executing Court, after the order
\nwas passed by the appellate Court, staying the execution
\nhad any sanctity in law? This Court, after drawing the
\ndistinction between ‘stay’ and ‘injunction’, observed:
\n“An order of stay  in an  execution  matter is
\nin our opinion in the nature  of  a prohibitory
\norder  and is addressed to the  court  that  is
\ncarrying out  execution.\t  It is not of the
\nsame nature as  an  order allowing an appeal
\nand quashing execution proceedings.\tThat
\nkind  of  order takes effect immediately it is
\npassed,\t for such an order takes away the
\nvery jurisdiction of the  court executing  the
\ndecree as there is nothing left\t to  execute
\nthereafter.  But a mere order of stay of
\nexecution does\t not take away the jurisdiction
\nof the court.  All that it\tdoes is to prohibit
\nthe court from proceeding with the execution
\nfurther,  and the court unless it knows of the
\norder  cannot be  expected  to carry it out.
\nTherefore,  till  the  order comes  to  the
\nknowledge of the court  its  jurisdiction  to
\ncarry  on  execution is not affected by a stay
\norder  which must  in  the  very  nature of
\nthings be  treated  to  be  a prohibitory  order
\ndirecting  the  executing  court   which
\ncontinues to have jurisdiction to stay its hand
\ntill further orders.\t  It  is  clear\t that as
\nsoon as  a  stay  order  is withdrawn,  the
\nexecuting  court is entitled  to  carry  on
\nexecution  and there is no question of fresh
\nconferment  of jurisdiction  by  the  fact that
\nthe  stay  order  has\tbeen withdrawn.  The
\njurisdiction of the court  is  there all along.
\nThe only effect of the stay order is to prohibit
\nthe executing  court from proceeding further
\nand that  can only take  effect when the
\nexecuting court has knowledge  of the order.
\nThe executing court may have knowledge of
\nthe  order on  the order being communicated
\nto it by the court  passing the stay order or
\nthe executing court may be informed of the
\norder by one party or the other with an
\naffidavit in support of  the information or in
\nany other way.  As soon  therefore as the
\nexecuting court has come to know of the order
\neither by communication from the court
\npassing the stay order or by an affidavit from
\none party or the other or in any other way the
\nexecuting court cannot proceed further and if
\nit does so it acts illegally.  There can be no
\ndoubt that no action for contempt  can  be
\ntaken against an executing  court,  if  it
\ncarries\t on execution in ignorance of the
\norder of stay and this  shows the necessity of
\nthe knowledge of the  executing court before
\nits jurisdiction can be affected by the  order.
\nIn effect therefore a stay order is more or less
\nin the same position as an order of injunction
\nwith one difference.\t  An order of injunction is
\ngenerally issued to a party and it is forbidden
\nfrom doing certain acts.  It is well-settled\tthat
\nin  such  a  case  the party  must  have
\nknowledge  of\t the injunction order before it
\ncould be penalized for disobeying it.  Further
\nit is equally well-settled that the  injunction
\norder  not  being  addressed  to the  court,  if
\nthe  court proceeds  in  contravention  of the
\ninjunction order, the proceedings are not a
\nnullity.\tIn the case of a stay order, as  it is
\naddressed to the court  and\t prohibits  it
\nfrom proceeding  further, as soon as the court
\nhas  knowledge  of the order it is bound to
\nobey it and if it does not, it acts illegally, and
\nall proceedings taken after the knowledge  of
\nthe  order would be a nullity.\tThat in our
\nopinion  is  the only  difference between, an
\norder of injunction to a  party and an order of
\nstay to a court.  In both cases knowledge of
\nthe party concerned or of the court is
\nnecessary\t before the prohibition takes effect.
\nTake the case where a stay order has been
\npassed but it is never brought to the notice of
\nthe court,\tand the court carries in proceedings
\nignorance thereof. It can hardly be said that
\nthe  court  has lost jurisdiction because of
\nsome order of  which   has  no knowledge.\n<\/p>\n
This to our mind clearly follows from the
\nwords of O. XLI R. 5 of the Code of Civil
\nProcedure which  clearly lays down that mere
\nfilling of an appeal does not operate as stay  of
\nproceedings in execution, but the  appellate
\ncourt has  the  power stay  of  execution.
\nObviously when the appellate court orders the
\nstay of execution the order can have affect
\nonly when it is made known to  the  executing
\ncourt. We cannot agree that an order staying
\nexecution is similar to an order allowing an
\nappeal and quashing execution  proceedings.
\nIn the case where the execution proceeding is
\nquashed, the order takes effect in immediately
\nand there is nothing left to execute. But
\nwhere a stay order is passed, execution still
\nstands and can go on unless the court
\nexecuting the decree has knowledge of the
\nstay order.  It is only when the executing
\ncourt has knowledge  of  the stay order that
\nthe court must  stay its hands and anything it
\ndoes thereafter would be a nullity  so long as
\nthe stay order is in force”.\n<\/p>\n
The Court then stated;\n<\/p>\n
“Though the court which is carrying on
\nexecution is not deprived\tof the jurisdiction
\nthe moment a stay order is passed, even
\nthough it has no knowledge of it, this does not
\nmean  that when the court gets knowledge of
\nit is  powerless to  undo any possible injustice
\nthat might have been  caused to  the party in
\nwhose favour the stay  order was  passed
\nduring\tthe period till the court has
\nknowledge of the stay order. We are of opinion
\nthat section 151 of the Code of Civil
\nProcedure would always be available to the
\ncourt executing the decree, for in such a case,
\nwhen the stay order is brought to its notice it
\ncan always act under Section 151, and set
\naside steps taken between the time the stay
\norder was passed and the time it was brought
\nto its notice, if that is necessary in the ends of
\njustice and the party concerned asks it to do
\nso. Though, therefore, the  court  executing
\nthe decree cannot  in our opinion be  deprived
\nof its jurisdiction to carry on execution till it
\nhas knowledge  of the  stay order, the court
\nhas the power in our view to set aside the
\nproceedings taken between the time when the
\nstay order  was  passed and the time when it
\nwas brought to its notice, if it is asked to do
\nso and it considers that it  is necessary  in
\nthe interests of justice that the interim
\nproceedings should be set aside”\n<\/p>\n
An interesting question came up for consideration
\nbefore this Court in Nawabkhan Abbaskhan v. State of
\nGujarat<\/a> (1974) 2 SCC 121 : AIR 1974 SC 1471. In that
\ncase, an externment order was passed against N on
\nSeptember 5, 1967 under the Bombay Police Act, 1951.
\nIn contravention of the said order, N entered the
\nforbidden area on September 17, 1967 and was,
\ntherefore, prosecuted. During the pendency of the
\ncriminal proceedings, however, the externment order
\npassed against N was challenged in the High Court
\nunder Article 226 of the Constitution and was set aside
\non July 16, 1968. Taking note of the said fact, the trial
\nCourt acquitted N but an appeal filed by the State
\nagainst the order of acquittal came to be allowed by the
\nHigh Court holding that when the contravention took
\nplace in September, 1967, the order was very much
\noperative and hence N was liable for committing breach
\nof that order. He was, therefore, convicted by the High
\nCourt.  N approached this Court.\n<\/p>\n
Allowing the appeal and reversing the decision of
\nthe High Court, this Court held that once the externment
\norder was declared illegal, it was of no effect, and N
\ncould never be held guilty of flouting such order.
\nRubinstein was quoted by the Court who stated;
\n\t“How does the validity or nullity of the
\ndecision affect the rights and liabilities of
\nthe persons concerned? Can the persons
\naffected by an\tillegal act ignore and disregard
\nit with impunity?  What are the remedies
\navailable to the aggrieved  parties? When  will
\nthe courts recognize\ta  right  to compensation
\nfor damage occasioned by an illegal act ?
\nAll  these questions revert to the  one  basic
\nissue;  has the  act  concerned  ever had  an
\nexistence or is it merely a nullity ?\n<\/p>\n
\t      Voidable acts are those that, can be
\ninvalidated in certain proceedings; these
\nproceedings are, especially formulated for the
\npurpose of directly challenging such
\nacts…… On the other hand, when an act is
\nnot merely voidable but void, it is a nullity
\nand can be disregarded and impeached in any
\nproceedings, before any court or tribunal and
\nwhenever it is relied upon. In other words, it
\nis subject to ‘collateral attack’.”\n<\/p>\n
Kelson’s pure theory of law was also considered
\nwho stated that when a Court holds an act as nullity, it
\nis not merely a declaration of nullity, “it is true
\nannulment, an annulment with retroactive force”.
\nThough, no final opinion was expressed on wide
\nranging problems in public law of illegal orders and
\nviolations thereof by citizens, the Court ruled that in the
\nfacts and circumstances of the case, when the order of
\nexternment was held illegal by a competent Court on the
\nground that it was passed in violation of the principles of
\nnatural justice, it was of no effect. The Court quashed
\nthe ordernot killed it then but performed the formal
\nobsequies of the order which had died at birth. “The legal
\nresult is that the accused was never guilty of flouting an
\norder which never legally existed”.   (emphasis supplied)
\nIn the instant case, admittedly, the order passed by
\nSTAT was finally set aside by the High Court in writ
\npetitions. Therefore, even if the contention of the learned
\ncounsel for the appellants is held to be well founded that
\nRTA, Bikaner was not made aware of interim order
\npassed by the learned single Judge and hence it could
\nconsider the applications and pass appropriate orders
\nthereon, since the order of STAT remitting the matter to
\nRTA was finally quashed and set aside, all consequential
\nactions must be held illegal and of no effect.  In our
\nopinion, the High Court was perfectly right and wholly
\njustified in ignoring the directions issued by STAT and
\ngrant of permits by RTA in favour of the appellants.
\nFor the foregoing reasons, all the appeals deserve
\nto be dismissed and they are accordingly dismissed. In
\nthe facts and circumstances of the case, however, there
\nshall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Vishnu Dutt & Ors vs State Of Rajasthan & Ors on 15 December, 2005 Author: C Thakker Bench: Ashok Bhan, C.K. Thakker CASE NO.: Appeal (civil) 1159-1170 of 2004 PETITIONER: VISHNU DUTT & ORS. RESPONDENT: STATE OF RAJASTHAN & ORS. DATE OF JUDGMENT: 15\/12\/2005 BENCH: ASHOK BHAN & C.K. THAKKER JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-15811","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nVishnu Dutt & Ors vs State Of Rajasthan & Ors on 15 December, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vishnu-dutt-ors-vs-state-of-rajasthan-ors-on-15-december-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vishnu Dutt & Ors vs State Of Rajasthan & Ors on 15 December, 2005 - 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