Allahabad High Court
Smt. Neetu Sood vs The State Transport Appellate Tribunal ... on 14 August, 2013
Author: Tarun Agarwala
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR COURT NO.2 Civil Misc. Writ Petition No. 12796 of 2011 Smt. Neetu Sood Vs. The State Transport Appellate Authority and others ********** Hon'ble Tarun Agarwala,J.
Heard Sri Alok Saxena, the learned counsel for the petitioner and Sri V.K.Singh, the learned counsel assisted by Sri G.K.Malviya, the learned counsel for the respondents.
There is an inter-State route known as Pichhore-Jhansi via Dinara, Biloa, Panihar which is 70.06 kms. in length. A major portion of the route, i.e., 49.06 kms. lies in the State of Madhya Pradesh and 21 kms. lies in the State of Uttar Pradesh. As per the reciprocal agreement arrived at between the two States, a strength of two permits for four trips is fixed from the Uttar Pradesh side.
It transpires that a vacancy of one permit for two trips was made available from the Uttar Pradesh side. For this purpose, the petitioner applied for grant of a stage carriage permit on the route in question under Section 72 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") read with Rule 62 of the Uttar Pradesh Motor Vehicles Rules, 1998 (hereinafter referred to as "the Rules"). In this application, the petitioner showed her address of Jhansi. The application of the petitioner and others remained pending before the State Transport Authority, Lucknow. Accordingly, the petitioner filed Writ Petition No.4485 of 2009 (M/B), before the Lucknow Bench of this Court, which petition was disposed of with a direction to the authority concerned to consider and decide the application of the petitioner.
The State Transport Authority considered the grant of stage carriage permit on the route in question in its meeting, held on 20.5.2009. It transpires that four applications were received and was considered by the authority. The sole criteria adopted by the State Transport Authority was the model of the vehicle to be used on the route in question. The State Transport Authority in its meeting date 20.5.2009 granted the permit in favour of respondent No.3, Arvind Kumar Yadav, on the ground, that he offered a vehicle which was a 2004 model, whereas, the petitioner offered a 2002 model.
The petitioner, Neetu Sood, being aggrieved by the grant of stage carriage permit in favour of respondent No.3, filed an appeal before the State Transport Appellate Authority, Lucknow, under Section 89(1)(a) of the Act. The appeal of the petitioner was allowed and was remanded to the regional transport authority to consider the issue of the superiority of the model of the vehicle given by respondent No.3. This direction was issued, on the ground, that the appellant had also offered a vehicle of 2005 and 2009 model and had sought time to file the papers, which was granted by the State Transport Authority and that the appellant had filed the necessary affidavit on 21.5.2009. It was also alleged by the petitioner that whereas the respondents offered a 2004 model, the vehicle, which was endorsed on the permit, was of a 2000 model. The Tribunal also directed the Regional Transport Authority to consider as to whether the petitioner Neetu Sood was a resident of Uttar Pradesh or not and consequently, eligible to apply for a stage carriage permit.
The respondent No.3, being aggrieved by the order of the Tribunal, filed Writ Petition No.71620 of 2010, which was allowed and the order of the Tribunal was set aside. The Writ Court directed that since the Appellate Tribunal had coextensive powers, it should have decided the matter itself on merits instead of remitting the matter to the State Transport Authority.
Based on the said direction of the Writ Court, the Tribunal again heard the matter and dismissed the appeal by an order dated 11.2.2011. The Tribunal held, that the appellant, Neetu Sood, was not a permanent resident of Uttar Pradesh, inasmuch as, the appellant had shown her address of Gwalior which is in the State of Madhya Pradesh in the memo of appeal and consequently, held that she was not entitled to hold a permit. The Tribunal further held, that even though the appellant had offered a superior model, but, since she is not a permanent resident of Uttar Pradesh, she is not entitled for any relief. The petitioner, being aggrieved by the order of the Tribunal, has filed the present writ petition.
The learned counsel for the petitioner contended that the petitioner has been non-suited only on account of the fact that she had mentioned her temporary address of Gwalior in the memo of appeal, without considering the other documents filed before the Tribunal, to indicate that she was a permanent resident of Jhansi, which is in the State of Uttar Pradesh. The learned counsel for the petitioner submitted that the Tribunal has not considered these documents nor there is any discussion about these documents in the order.
On the otherhand, the learned counsel for the respondents submitted that all the documents, which had been filed by the petitioner were procured after the meeting was held on 20.5.2009 and therefore, such documents cannot be taken into consideration. It was also contended that the petitioner's application for grant of a permit was not in accordance with Rule 62 of the Rules and, therefore, her application was liable to be rejected and consequently, the petitioner was not entitled for any relief from the Writ Court.
In rejoinder, the learned counsel for the petitioner contended that the application of the petitioner was filed in accordance with the provision of Rule 62 of the Rules and assuming without admitting that the petitioner had filed an incomplete application, the same could not be rejected on technical grounds.
Having heard the learned counsel for the parties, the Court finds that the State Transport Authority can grant a stage carriage permit under Section 72 of the Act on such terms and conditions contained therein. Rule 62 of the Rules provides that the application for a permit shall specifically mention about the ownership of the bus and general reputation or character of the applicant.
Section 69 of the Act is relevant for the purpose of deciding the controversy involved in the present case. For facility, the said provision is extracted therein:
"69. General provision as to applications for permits- (1) Every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles :
Provided that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles;
Provided further that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States, the application shall be made to the Regional Transport Authority of the region in which the applicant resides or has his principal place of business.
(2) Notwithstanding anything contained in sub-section (1), the State Government may, by notification in the Official Gazette, direct that in the case of any vehicle or vehicles proposed to be used in two or more regions lying in different States, the application under that sub-section shall be made to the State Transport Authority of the region in which the applicant resides or has his principal place of business."
A perusal of the aforesaid provision indicates, that where the vehicle is proposed to be used in two or more regions lying within the same State, the application would be made to the Regional Transport Authority of the region in which a major portion of the proposed route lies, and in case the portion of the route is equal, then the application would be made to the Regional Transport Authority of the region in which the applicant proposes to keep its vehicle. The proviso to sub section (1) of Section 69 of the Act indicates that where the vehicle, which is proposed to be used in two or more regions lying in different States, the application would be made to the Regional Transport Authority of the region in which the applicant resides or has his principal place of business.
In support of this contention, the learned counsel for the respondents vehemently contended that the word "resides" means a permanent residence. In support of his contention, the learned counsel placed reliance upon a decision of the Supreme Court in Union of India and others vs. Dudh Nath Prasad, A.I.R. 2000 SC 525 and Smt. Jeewanti Pandey vs. Kishan Chandra Pandey, A.I.R. 1982 SC 3.
The learned counsel tried to impress the Court that in view of the aforesaid decisions, the word "resides" means where a person has a permanent residence or has stayed for a considerable period of time. The submission of the learned counsel for the respondents cannot be accepted.
The word "resides" used under Section 45 of the Motor Vehicles Act, 1939, is pari materia to Section 69 of the present Act. A Division Bench of the Madhya Pradesh High Court in Ratan Lal vs. State Transport Appellate Authority, Madhya Pradesh and others, A.I.R. 1969 MP 204 held, that having regard to the object and purpose of Section 45 and the second proviso, the word "resides" must be construed as including both permanent and temporary residence.
The Supreme Court in Jagir Kumar vs. Jaswant Singh, AIR 1963 SC 1521, in the context of the jurisdiction of the Magistrate under Section 488 of the Code of Criminal Procedure, 1898 for entertaining a petition of a wife, for maintenance, considered the meaning of the word "resides" and held-
"The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings including domicile in (sic) and the most technical sense and temporary residence. Whichever meaning is given to it one thing is obvious and it is that it does not include a casual stay in, or flying visit to a particular place. In short, the meaning of the word would, in the ultimate analysis depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. that the said meaning"
In the light of the aforesaid, the Tribunal committed a manifest error in non-suiting the petitioner, on the ground, that the petitioner had given her address of Gwalior in the memo of appeal, without considering the explanation as to why she had given the address of Gwalior and without considering other documents relating to her residence and Section 69 of the Act. The Court is of the view that the owner of the vehicle may be a permanent resident of a particular place, but, at the same time, he can carry on his business at another place. There is no bar under any law that a owner of a vehicle, who is a permanent resident of a particular place, cannot ply his vehicle in a different region and cannot keep his vehicle in that region for business purposes.
In the light of the aforesaid, the Tribunal has not considered the provision of Section 69 of the Act. It is not necessary that the petitioner should be a permanent resident of that region where she has filed an application for grant of a stage carriage permit. The order of the Tribunal on this issue cannot be sustained.
The learned counsel for the respondents contended that the finding of the Appellate Tribunal, on the question of superiority of the vehicle offered by the petitioner, was incorrect and that the petitioner could not challenge this finding as there was no occasion for the respondents to challenge it since the appeal of the petitioner was dismissed. The learned counsel submitted that the vehicle offered by the petitioner, which has led the Appellate Tribunal to give a finding that the petitioner offered a superior model vehicle could not be taken into consideration since the said vehicle was already being used in a permit granted to the petitioner for another route. The learned counsel submitted that the same vehicle cannot be used for two routes. In support of this submission, the learned counsel placed certain documents before the Court to prove that the vehicle offered by the petitioner was already being used on another route. The learned counsel further submitted that the application of the petitioner was incomplete and was liable to be rejected. The said application could not be cured by filing an affidavit after the date of the consideration for the grant of permit by the State Transport Authority.
In the light of the submissions made by the learned counsel for the respondents, the Court finds, that since the impugned order of the Tribunal, on the question of permanent residence, cannot be sustained, the Court is of the opinion that the entire order has to be set aside and the matter has to be reconsidered by the Tribunal afresh. The Court is of the view that the order of the Tribunal, relating to the superiority of the model, offered by the petitioner shall also be reconsidered afresh.
In the light of the aforesaid, the impugned order of the Tribunal dated 11.2.2011 is quashed. The writ petition is allowed. The matter is again remitted to the Tribunal to decide the appeal of the petitioner afresh within three months from the date of the production of a certified copy of the order, on the question of residence and model of the vehicle. It would be open to the parties to file fresh evidence on the question of residence and superiority of model of vehicle.
Order Date :-14.8.2013 AKJ (Tarun Agarwala,J.)