Madras High Court
M.Shanmugavel vs The Secretary on 2 April, 2014
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.04.2014
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.Nos.9070 & 9071 of 2013
M.Shanmugavel .. Petitioner in W.P.No.9070 of 2013
M.Palanivel .. Petitioner in W.P.No.9071 of 2013
-vs-
1. The Secretary
State Transport Authority
Puducherry
2. The State Transport Authority
Chennai
3. M.Vasudevan .. Respondents 1 to 3 in both the W.Ps.
4. M.Palanivel .. 4th respondent in W.P.No.9070 of 2013
5. M.Shanmugavel .. 4th respondent in W.P.No.9071 of 2013
6. M.Venkatesan
7. S.Vanaja
8. R.Maheswari .. Respondents 5 to 7 in both the W.Ps.
W.P.No.9070 of 2013 is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the first respondent herein to transfer the permit along with the vehicle plying on the inter-state route "Puducherry to Villupuram" along with spare bus bearing Regn.No.PY-01/N-5649 from the name of the deceased permit holder Tmt.Rajaveni in the name of the petitioner pursuant to the transfer application dated 26.9.2012.
W.P.No.9071 of 2013 is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the first respondent herein to transfer the permit along with the vehicle plying on the inter-state route "Pondicherry to Chennai" from the name of the deceased permit holder Tmt.Rajaveni in the name of the petitioner pursuant to the transfer application dated 26.9.2012.
For Petitioners :: Mr.V.T.Gopalan
Senior Counsel for
Mrs.Radha Gopalan
For Respondents :: Mr.A.Tamilvanan
Government Advocate (Pondy)
for R1
Mr.A.Kumar
Special Government Pleader
for R2
Mr.R.Natarajan for R3
Mr.M.Mano Bala for R6 & R7
No appearance for R4 & R5
ORDER
There are two writ petitions. Mr.M.Shanmugavel, S/o Manickasamy has filed W.P.No.9070 of 2013 seeking for issuance of a writ of mandamus, to direct the first respondent-Secretary, State Transport Authority, Puducherry to transfer the permit along with the vehicle plying on the inter-state route "Puducherry to Villupuram" along with spare bus bearing Registration No.PY-01/N-5649 from the name of the deceased permit holder Tmt.Rajaveni in the name of the petitioner pursuant to the transfer application dated 26.9.2012. W.P.No.9071 of 2013 has been filed by Mr.M.Palanivel, S/o Manickasamy for almost a similar relief of issuance of a writ of mandamus, to direct the first respondent-Secretary, State Transport Authority, Puducherry to transfer the permit along with the vehicle plying on the inter-state route "Puducherry to Chennai" from the name of the deceased permit holder Tmt.Rajaveni in the name of the petitioner pursuant to the transfer application dated 26.9.2012.
2. Advancing arguments in both the writ petitions, Mr.V.T.Gopalan, learned senior counsel appearing for the petitioners submitted that originally the father of the petitioners late Sri.S.Manickasamy was enjoying the transport permits in respect of the vehicles (i) bearing Registration No.PY-01/S-3993 plying on the inter-State route "Puducherry to Villupuram" via Thirukannur, (ii) bearing Registration No.PY-01/AB-5649 plying on the inter-State route "Puducherry to Chennai" via Thirukannur along with the spare bus permit in respect of the vehicle bearing Registration No.PY-01/N-5649. Unfortunately, the father of the petitioners Sri.S.Manickasamy died on 19.8.2001, thereupon, no objection certificate to transfer the permits from the name of their father in the name of their mother Tmt.Rajaveni was given and an application was also made by Tmt.Rajaveni for transfer of the permits with the first respondent after complying with the formalities prescribed under the Motor Vehicles Act and the rules framed thereunder. Subsequently, the first respondent transferred the above said permits along with the vehicles in her name. When the above said vehicles were run in the name of the petitioners mother, she also died on 23.9.2012. Therefore, after the death of Tmt.Rajaveni, both the petitioners, being the legal heirs, succeeded to the possession of the vehicles along with the permits plying on the routes "Puducherry to Villupuram" via Thirukannur and "Puducherry to Chennai" via Thirukannur along with the spare bus bearing Registration No.PY-01/N-5649. Thereafter, both the petitioners, within 30 days from the date of her death, intimated the death of their mother to the first respondent expressing their willingness to use the permits and run the vehicles by making individual applications for transfer of the respective permits as required under Section 82(3) of the Motor Vehicles Act read with Rule 79(1) & (2) of the Pondicherry Motor Vehicles Rules along with the payment of the requisite fee of Rs.100/- each. In addition thereto, a newspaper publication in Form P.Tr.D.A. was also enclosed. The permits in respect of the vehicles are valid upto 27.7.2014 and 26.6.2015 respectively.
3. Adding further, it was pleaded before the Court that under Section 82(3) of the Motor Vehicles Act, the transport authority is bound to transfer the permits on an application submitted in favour of the persons succeeding to the possession of the vehicles covered by the permits. In view of that, the petitioners made individual applications on 26.9.2012 for transfer of the respective permits in their name. But the first respondent has not transferred the permits in the name of the petitioners. Therefore, reminders were sent on 2.1.2013 stating that the petitioners had complied with all the formalities required under Section 82(2) of the Motor Vehicles Act read with Rule 79(1) & (2) of the Pondicherry Motor Vehicles Rules and hence the permits should be transferred in their name from the name of their mother Tmt.M.Rajaveni. But the first respondent has not considered the same and there was no response. In view of no progress on the applications made by the petitioners seeking transfer under Section 82(3) of the Motor Vehicles Act, both the petitioners have come before this Court for the reliefs as stated above.
4. Adding further, the learned senior counsel for the petitioners stated that the first respondent, after receipt of the applications made by the petitioners, in the public interest, should have taken on file both the applications and allowed in favour of both the petitioners for the reason that when two applications have been filed by both the petitioners asking for transfer of permits in their name, for the reason that the petitioners mother Tmt.Rajaveni died on 23.9.2012, the first respondent should have kept in mind that no permit can be allowed to be used in the name of a dead person. Secondly, the public interest should not suffer by stopping the vehicles, when the permits had already been granted in favour of the petitioners mother. When it has been a settled law that even if there is a dispute between two or more parties, the authority should consider the grant of transfer of permit without entering into the civil dispute. But these facts have not been properly appreciated by the first respondent. Continuing his arguments, it was stated that in the present cases, a suit has been filed by Mr.M.Vasudevan, the brother of the petitioners and third respondent herein, on the file of the learned II Additional District Munsif, Pondicherry in O.S.No.1139 of 2011 seeking only a bare injunction against the mother of the petitioners from transferring the permits in favour of the petitioners. When the third respondent has not filed any suit for partition, the suit is nothing but only an infructuous suit that does not have any consequence. Therefore, the pendency of the suit filed by the third respondent-M.Vasudevan cannot come in the way of grant of transfer of permits. In support of his submissions, the learned senior counsel also relied upon an unreported order of this Court in W.P.Nos.620, 621 and 14801 of 2007 dated 30.4.2010 (E.Kumuda v. The Regional Transport Authority, Salem and others) to say that if the permit is not transferred within the prescribed time limit, there is a possibility of losing the permit itself. It may not help either the petitioners or the respondents and it is open for the contesting respondent viz., the brother of the petitioners to raise the issue in the civil Court and if he proves he is entitled to a share of the property and there is time enough to work out his share that may be decreed in the suit. On this basis, it was further contended that when the third respondent has already filed a civil suit in O.S.No.1139 of 2011 on the file of the learned II Additional District Munsif, Pondicherry seeking for only a permanent injunction against the mother of the petitioners Tmt.Rajaveni restraining her from transferring the permits in favour of the petitioners, without asking for any permanent relief like a decree for declaration or title, this Court, without being influenced by the pendency of the civil suit instituted by the third respondent, should give a direction to the first respondent to consider the two applications as per Section 82(3) of the Motor Vehicles Act. Moreover, the relief sought for in the said suit has now become infructuous, since the mother of the petitioners died on 23.9.2012 and the petitioners have succeeded to the possession of the vehicles. Otherwise, both the petitioners would be losing the permits of the vehicles themselves. He has also relied upon one another unreported judgment of this Court in W.A.No.1511 of 2009 dated 28.10.2009 (K.Kumar v. Tmt.Poomani and others) for the same ratio.
5. While answering to the objection raised by the learned counsel for the third respondent on the question of maintainability of the writ petitions, since the petitioners have deliberately suppressed the pendency of the civil suit filed by the third respondent, it has been stated that the prayer made in the civil suit filed by the third respondent is totally different from the one made by the petitioners in the present writ petitions. Even otherwise, the suit filed by the third respondent has now become infructuous. Secondly, when the prayer sought for in the present applications pending before the first respondent is relatable to Section 82(2) of the Motor Vehicles Act, whereas the prayer made by the contesting third respondent in the pending suit is relatable to Section 82(1) of the Act, the learned senior counsel submitted that all the contesting defendants in the suit have been impleaded in the present writ petitions. Therefore, the question of suppression does not arise, as contended by the learned counsel for the third respondent. Hence, the argument made by the learned counsel for the third respondent that there was suppression of fact is far from acceptance. On this basis, he prayed for allowing the writ petitions.
6. Per contra, Mr.R.Natarajan, learned counsel appearing for the third respondent-M.Vasudevan, heavily objecting not only on the prayer but also on the maintainability of the writ petitions filed by the petitioners, submitted that when the third respondent has already filed a civil suit by impleading both the petitioners as necessary parties, it is the bounden duty cast upon the petitioners to mention about the factum of pendency of the suit. Moreover, when the suit was filed in the year 2011, both the writ petitions came to be filed after two years. By the time both the writ petitions were filed, both the petitioners received notices from the civil Court. But, completely suppressing both the pendency of the civil suit and the receipt of notices, the petitioners have deliberately withheld some of the vital details and information relating to the relief sought for by the third respondent in the suit in O.S.No.1139 of 2011. Therefore, the petitioners, who have come to this Court with unclean hands, should be relegated without giving any relief. Adding further, it was stated that when there was a family arrangement entered into between the family members after the death of the father of the petitioners and the third respondent on 24.10.2001 agreeing to transfer the permits in respect of the vehicles in question in favour of Tmt.Rajaveni, their mother, which has been the subject matter of dispute both in the present writ petitions and the civil suit, immediately after the death of Tmt.Rajaveni on 23.9.2012, the petitioners ought not to have run the vehicles. without deciding the share of the properties including movables, immovables and also the vehicles, which have been transferred in the name of the petitioners mother late Tmt.Rajaveni after the death of their father Sri.S.Manickasamy. In any event, when there is no partition effected amongst the family members, both the petitioners ought not to have moved any application behind the back of the third respondent, when the third respondent is also equally entitled to have a share in the permits relating to the vehicles that were owned and transferred from the name of their father Sri.S.Manickasamy in favour of their mother Tmt.Rajaveni.
7. Continuing his arguments, it was further submitted that both the petitioners Mr.M.Shanmugavel and Mr.M.Palanivel have made one another false averment before the first respondent, as though they are entitled to move applications seeking the transfer of permits from the name of Tmt.Rajaveni in respect of the vehicles bearing Registration No.PY-01/S-3993 plying on the inter-State route "Puducherry to Villupuram" via Thirukannur along with the spare bus bearing Registration No.PY-01/N-5649 in the name of Mr.M.Shanmugavel and in respect of the vehicle bearing Registration No.PY-01/AB-5649 plying on the inter-State route "Puducherry to Chennai" via Thirukannur in the name of Mr.M.Palanivel. When the family arrangement dated 24.10.2001 provides for division of family properties including the aforesaid state carriage permits and spare bus permit along with other movable/immovable properties within a period of six months, after the demise of their father Sri.S.Manickasamy, when a discussion took place in the family and as per the discussion held in the family on 24.10.2001, an arrangement was made amongst the family members and the same was reduced into a writing. As per the said family arrangement, all the parties had agreed that the transport permits which have been held by the father of the petitioners and the third respondent should be transferred in the name of their mother Tmt.Rajaveni for the time being. Therefore, after the demise of their mother, all the family members should effect division of the properties as agreed upon in the family arrangement dated 24.10.2001. But unfortunately, in the present cases, without even disclosing the family arrangement dated 24.10.2001 and the pendency of the suit filed by the third respondent, both the petitioners have come to this Court. Therefore, if this Court grants the prayer sought for by the petitioners, the pendency of the suit also may face some drawback. Therefore, he prayed for dismissal of the writ petitions.
8. Again coming to the interim prayer made by the petitioners in the writ petitions, it was further stated that when both the petitioners have prayed for an interim direction to maintain status quo by permitting Mr.M.Shanmugavel to run the vehicle bearing Registration No.PY-01/S-3993 on the inter-State route "Puducherry to Villupuram" via Thirukannur along with the spare bus bearing Registration No.PY-01/N-5649 and Mr.M.Palanivel to run the vehicle bearing Registration No.PY-01/AB-5649 plying on the inter-State route "Puducherry to Chennai" via Thirukannur pending disposal of the writ petitions, it shows that the petitioners have come to this Court with unclean hands to get an order behind the back of the third respondent. Therefore, the prayer made in both the writ petitions should be disallowed. Adding further, it was stated that when the petitioners mother Tmt.Rajaveni was not knowing English language, an impression is created by both the petitioners by filing affidavits that she had signed the transfer application requesting the first respondent to transfer the permits in favour of the petitioners. After knowing the conduct of the petitioners, the third respondent has also given his objection on 7.9.2010 to the first respondent clearly mentioning the pendency of the suit in O.S.No.1139 of 2011 and one another letter dated 24.10.2012 has also been filed by the third respondent for transfer of permits referred to above in his favour by paying the prescribed fee and the same has also been received by the first respondent on the said date. When the third respondent's objection followed by various reminders are pending on the file of the first respondent, the prayer sought for by the petitioners in the writ petitions should not be considered. In support of his submissions, he has also relied upon a Division Bench judgment of this Court in the case of Seetharami Reddy v. Joseph Vilangadhan, 1995-2-L.W.556 to contend that abuse of the process of the Court by making deliberate misrepresentation and suppression of fact viz., concealing the fact of pendency of the civil suit, should be held against the petitioners. Relying upon another judgment of this Court in the case of Ganesa Raja and others v. The Tirunelveli City Municipal Corporation Council represented by its Mayor, Tirunelveli and another, 2000 Writ L.R.843 for the very same proposition, the learned counsel submitted that since the petitioners have come to this Court by filing the writ petitions without disclosing the pendency of the suit, they are not entitled to get any relief.
9. Heard the learned counsel for the parties.
10. Mr.M.Shanmugavel and Mr.M.Palanivel, by filing separate writ petitions, have sought for issuance of a writ of mandamus to direct the first respondent-Secretary, State Transport Authority, Puducherry to transfer the permit along with the vehicle plying on the inter-state route "Puducherry to Villupuram" along with spare bus bearing Registration No.PY-01/N-5649 and plying on the inter-State route "Puducherry to Chennai" from the name of the deceased permit holder Tmt.Rajaveni in the names of the respective petitioners on the basis of the transfer applications dated 26.9.2012. The father of the petitioners and the third respondent Mr.S.Manickasamy was originally owning the permits in respect of the aforesaid vehicles. Unfortunately, after the death of the said Mr.S.Manickasamy, no objection certificate was submitted by all the family members to transfer the permits from the name of Mr.S.Manickasamy in the name of Tmt.Rajaveni, who is the mother of both the petitioners and the third respondent. After some time, the said Tmt.Rajaveni also died on 23.9.2012. Thereafter, both the petitioners have filed individual applications dated 26.9.2012, as legal heirs of the deceased Tmt.Rajaveni, for transfer of permits before the first respondent on the ground that they have succeeded to the possession of the vehicles plying on the aforesaid inter-State routes. The said applications were filed within 30 days from the date of death of Tmt.Rajaveni. When the said applications were filed under Section 82(2) of the Motor Vehicles Act read with Rule 79(1) & (2) of the Pondicherry Motor Vehicles Rules after making the payment of the requisite fee thereon along with the newspaper publication in form P.Tr.D.A., the first respondent has not processed the said applications. The reason appears to be that the third respondent-Mr.M.Vasudevan had already filed his objection on 30.5.2011 followed by two reminders dated 7.10.2011 and 21.11.2011. Again by giving one another objection letter dated 18.7.2012, the third respondent has clearly mentioned about the suit filed by him in O.S.No.1139 of 201 on the file of the learned II Additional District Munsif, Pondicherry. That apart, he has also given one another letter dated 24.10.2012 for transfer of permits referred to above in his favour by paying the prescribed fee, which was also received by the first respondent on the same day. Besides, the fifth respondent-Mr.M.Venkatesan, one of the sons of the deceased permit holder, had already filed his objection dated 31.8.2010 before the first respondent with a request to stop the issue of necessary proceedings and entries of transfer in the relevant records such as registration certificates and other records.
11. In view of the above, the first respondent was unable to proceed with any of the applications filed by the parties, resultantly, the writ petitions have been filed. Although many grounds have been taken by the petitioners, admittedly, as per Section 82(3) of the Motor Vehicles Act, the transport authority should consider any application filed under Section 82(2) and pass appropriate orders. In the present cases, after the death of the permit holder Tmt.M.Rajaveni, the petitioners have moved individual applications stating that they have succeeded to the possession of the vehicles covered by the permits in respect of the vehicles bearing Registration No.PY-01/S-3993 plying on the inter-State route "Puducherry to Villupuram" via Thirukannur along with the spare bus bearing Registration No.PY-01/N-5649 in the name of Mr.M.Shanmugavel and in respect of the vehicle bearing Registration No.PY-01/AB-5649 plying on the inter-State route "Puducherry to Chennai" via Thirukannur in the name of Mr.M.Palanivel from the name of the deceased Tmt.Rajaveni. In fact, the petitioners Mr.M.Shanmugavel and Mr.M.Palanivel, the third respondent-Mr.M.Vasudevan and the fifth respondent-Mr.M.Venkatesan are all brothers, as they are the sons of Tmt.Rajaveni. On the death of the petitioners mother Tmt.Rajaveni on 23.9.2012, both the petitioners have been in possession of the vehicles. Although a plea has been taken by the third respondent before this Court that he had filed a suit in O.S.No.1139 of 2011 seeking permanent injunction against the mother of the petitioners not to transfer the permits in favour of the petitioners and therefore the applications filed by the petitioners under Section 82(2) of the Motor Vehicles Act before the first respondent should not be taken up by the first respondent, this Court is unable to see any such ground from the pleadings mentioned in the copy of the plaint filed in O.S.No.1139 of 2011. A close reading of the pleadings in the plaint would indicate that the third respondent has asked for only a permanent injunction on the basis of the family arrangement entered amongst the members of the family. When the third respondent, who filed the suit, which is now pending, has not made any specific pleading in the suit as well as in his counter affidavit opposing the prayer that he has filed any suit for partition of movables, immovables including the permits in question, the pendency of the suit for grant of permanent injunction to restrain the petitioners mother Tmt.Rajaveni and the other defendants viz., the petitioners in these writ petitions, is not going to help this Court to consider the objection raised by the third respondent. Inasmuch as the third respondent, who has filed the suit, has not substantiated his objection that the transfer of permits should not be effected in favour of the petitioners, this Court is of the considered view that the suit is almost an infructuous one and does not carry any consequential effect.
12. Be that as it may, when both the petitioners and the third respondent have approached the first respondent asking the first respondent to consider the applications for transfer of permits from the name of Tmt.Rajaveni in respect of the vehicles bearing Registration No.PY-01/S-3993 plying on the inter-State route "Puducherry to Villupuram" via Thirukannur along with the spare bus bearing Registration No.PY-01/N-5649 and in respect of the vehicle bearing Registration No.PY-01/AB-5649 plying on the inter-State route "Puducherry to Chennai" via Thirukannur and the third and fifth respondents have made number of objections, this Court, on the basis of the order passed by this Court in W.P.Nos.620, 621 and 14801 of 2007 dated 30.4.2010 (E.Kumuda v. The Regional Transport Authority, Salem and others), is only inclined to direct the first respondent to consider the applications filed by both the petitioners along with the objections filed by the third and fifth respondents on merits and pass appropriate orders in accordance with law within a period of six weeks from the date of receipt of a copy of this order. Needless to mention that the first respondent is at liberty to issue notice to all the affected parties and hear them before deciding the applications filed by the petitioners. With this observation and direction, both the writ petitions are disposed of. Consequently, M.P.Nos.1 of 2013 are closed. No costs.
Index : yes/no 02.04.2014
Internet: yes
ss
To
1. The Secretary
State Transport Authority
Puducherry
2. The State Transport Authority
Chennai
T.RAJA, J.
ss
W.P.Nos.9070 & 9071 of 2013
02.04.2014