Orissa High Court
Dinesh Mehta vs Sta, Odisha And Others on 19 February, 2015
Equivalent citations: AIR 2015 ORISSA 88, (2015) 3 ACC 278
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 20339 OF 2014
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Dinesh Mehta ......... Petitioner
- versus -
STA, Odisha and others ......... Opp. Parties
For Petitioners: M/s. B.N. Prasad, L.N. Das,
For Opp.Parties: M/s. Pr`
avakar Behera, P. Raj,
(for opposite party no.2)
Mr. J. Pal, Standing Counsel for Transport
Department
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 05.02.2015 | Date of Judgment: 19.02.2015
Dr. B.R.Sarangi, J.The petitioner, a passengers transport operator, files this petition to set aside the order of cancellation of permit dated 04.11.2013 passed by the State Transport Authority ( in short „STA‟)- opposite party no.1, vide Annexure-7 and consequential confirmation made in appeal by the learned State Transport Appellate Tribunal, Orissa, Cuttack dated 29.09.2014, vide Annexure-10.
2. The short fact of the case, in hand, is that the petitioner in accordance with provisions of Sections 60 and 80 of the Motor 2 Vehicles Act, 1988 (in short "MV Act"), applied to the State Transport Authority, Orissa, Cuttack under Section 66 read with Rule 45(1)(a) for grant of permanent permit in respect of Stage Carriage on the route Rourkela to Kutmakachar via Biramitrapur, Simdega and back. In the said application, vide Annexure-5 he has provided his address as "Quarter No. D-208, Koel Nagar, Rourkela-796014, Dist.- Sundargarh"
and also specifically stated under Clause-9 that he has also got a permanent permit of other vehicle from Simdega to Rourkela in P.P. No. 03/2008.C/s. No.17G/2008 from Jharkhand State Transport Authority and such permit was for a period of five years. On consideration of such application, opposite party no.1 granted a permanent permit in respect of inter State route Rourkela to Kutmakachar via Biramitrapur, Simdega and back in respect of vehicle No. JH-07A-9311 which was valid till 29.06.2016 w.e.f. 30.06.2011 for a period of five years. While the petitioner was plying his vehicle pursuant to the permanent permit granted by opposite party no.1, opposite party no.2 raised an objection indicating the fact that the petitioner has obtained a permanent permit from Jharkhand authority vide P.P. No. 3/8 showing his address as " S.N. Ganguli Road, Ranchi, Kotwali, Dist- Ranchi, Jharkhand" but he has obtained a permanent permit from the Odisha State Transport authority showing his address as "Quarter No. D-208, Koel Nagar, Rourkela-796014, Dist.- Sundargarh". It is stated by opposite party no.2 that suppressing the material facts and misrepresenting his residence and principal place of 3 business he has obtained permanent permit from the State of Odisha. Therefore, the opposite party no.1 should cancel the permanent permit granted in favour of the petitioner. Such objection was raised by opposite party no.2 in Misc. Case No. 72 of 2012. The petitioner was called upon to show cause as to why permanent permit granted in his favour, shall not be cancelled. Pursuant to such notice of show cause, the petitioner filed his reply raising a preliminary objection with regard to the locus standi of opposite party no.2 and produced all the materials and documents including Voter ID Card, Addhar Card, Indian Union Driving Licence, copy of certificate of marriage issued by the local authority and documents showing his permanent residence and place of business at Rourkela and his maternal grandfather‟s house at Rourkela and has never suppressed or misrepresented the authority as alleged by opposite party no.2 and sought to drop the proceeding. But opposite party no.1 without considering the materials available on record and considering the same in proper perspective, upon hearing the parties on 20.09.2013 passed the impugned order of cancellation of permanent permit granted in favour of the petitioner on 04.11.2013, vide Annexure-7. Being aggrieved by the said order, the petitioner preferred an appeal before the State Transport Appellate Tribunal, Odisha, Cuttack in MV Appeal No. 2 of 2014. Though the petitioner sought for grant of stay of the impugned order dated 04.11.2013 till final adjudication of the matter, the same was refused. When grant of permanent permit of the very same route in question was published in 4 local daily news paper, the petitioner again submitted another application seeking for a direction against opposite party no.1 not to proceed further. On consideration of the same, the learned Tribunal after hearing all the parties, passed the order directing the authorities not to take any final decision subject to result of the appeal. Finally, the matter was heard by the Tribunal vide order dated 29.09.2014 in Annexure-10 and the learned Tribunal dismissed the appeal. Hence this application.
3. Mr. B.N. Prasad, learned counsel for the petitioner strenuously urged that opposite party no.2 has no locus standi to raise any objection with regard to the grant of permanent permit in respect of the route in question. Therefore, the impugned order of cancellation at his behest is arbitrary, unreasonable and contrary to the provisions of law. In addition to the same, it is urged that the reasons for raising objection in respect of permanent permit granted by opposite party no.1 that the petitioner suppressed the material facts, is not correct as in the application filed under Annexure-5, under Clause-9, it was specifically indicated that the petitioner is permanent permit holder No. 3/8 in respect of very same route and the address which has been mentioned in Clause-3 being indicative of the fact that he is a resident of Rourkela, that ipso facto cannot take away the rights to carry out his business in Odisha even if the petitioner was granted the permanent permit from Jharkhand State indicating his address in the 5 State of Jharkhand as his place of residence or place of business and being a citizen of India, he has got every right to carry out business in any State which is in conformity with his rights as enshrined under Article 19 of the Constitution of India and as such there is no such provisions under M.V. Act to put a restriction in respect of operator for grant of permanent permit on the ground of residence or principal place of business. Therefore, the order of cancellation made by opposite party no.1 and consequential confirmation made by the State Appellate Tribunal cannot sustain. Therefore, Annexure-7 and Annexure-10 are liable to be quashed.
4. Mr. J. Pal, learned Standing Counsel for the Transport Department, stated that the petitioner had never taken a ground that he has got a principal place of business at Rourkela, thereby he has violated the statutory provisions contained under Section 69 of MV Act by obtaining two permits one from STA, Jharkhand and another from STA, Odisha. Under Sub-Section(2) of Section 69 of the MV Act, the petitioner could not have his place of residence or principal place of business in two States and that too at the same time. Therefore, by practising fraud on opposite party no.1, permit has been obtained though the factum mentioned in Clause-9 of the application that the petitioner has got permanent permit from the State of Jharkhanda, was over-looked by the authorities. Therefore, the petitioner having violated the provisions contained in Section 69 of the M.V. Act, grant of 6 permanent permit in his favour in respect of the route in question cannot sustain. In addition to that if any reasonable restriction has been imposed, it cannot be construed as violation of Article 19 of the Constitution of India and that imposition of reasonable restriction is well within the competence of the authority and therefore, the action taken by the authority is justified.
5. Mr.P.Behera, learned counsel for opposite party no.2 strenuously urged that inter-State route has been opened pursuant to the inter-State agreement between the two States in accordance with the provisions contained in Section 88(5) and (6) of the M.V. Act, 1988. He further urged that the route in question has been opened pursuant to the reciprocal transport agreement made between the States of Odisha and Jharkhand published under Section 88(6) of the M.V. Act vide notification no. 1679 dated 28.3.2007. In the said notification, the route in question has been indicated as against Sl.No.7. As per such reciprocal transport agreement, quota has been fixed for grant of permit according to which one permit is to be granted in Oidsha and one permit is to be granted by Jharkhand. As per the provisions contained in Section 69 of the M.V. Act, restriction has been imposed in making application for grant of such permit. As per the said provision, the applicant shall make application to the authority of the region in which he/she resides or has his/her principal place of business. The petitioner has availed permanent permit in respect of his 7 vehicle bearing No.JH-01Q-1500 on the inter-State route from Simdega to Rourkela and back from S.T.A., Jharkhand, Ranchi showing his permanent address as "S.N. Ganguli Road, Ranchi, Kotwali, Dist- Ranchi, Jharkhand". Such permanent permit was submitted before the S.T.A., Odisha and was duly countersigned by it up to 7.6.2013. It is stated that while making application to opposite party no.1, the petitioner has shown his address in Col.No.3 as "Quarter No. D-208, Koel Nagar, Rourkela-796014, Dist.- Sundargarh". Therefore, he has suppressed the material facts before opposite party no.1 and accordingly, considering the objection raised by this opposite party no.2, authorities are justified in cancelling the permanent permit granted in favour of the petitioner and this Court may not interfere with the same. In support of the contention he has relied upon the decision of Madhya Pradesh High Court in Mathuradas Regular Motor Services, Gwalior and others v. State Transport Authority and others, AIR 1963 MP 361 and of this Court in Smt.Sushila Chand v. State Transport Authority, Orissa and others, AIR 1999 Orissa 1.
6. In view of the aforesaid pleaded facts, the following questions emerge for consideration:
(i) Whether the opposite party no.2 has got any locus standi to raise objection with regard to permanent permit granted in favour of the petitioner by opposite party no.1?8
(ii) Whether opposite party no.1 is justified in cancelling the permanent permit granted in favour of the petitioner on the basis of the objection raised by opposite party no.2?
7. Coming to the first question regarding the locus standi of opposite party no.2 to raise objection, it appears that admittedly, opposite party no.2 is a passenger transport operator, may be a business rival of the petitioner. When the notification was issued for grant of permanent permit in respect of Jharkhanda State, opposite party no.2 was not the applicant for the same route in respect of which the petitioner submitted his application. However, on consideration of his application, the petitioner was granted permanent permit bearing P.P. No. 03/2008.C/s. No.17G/2008, basing upon which the he is plying his vehicle in the route Simdega to Rourkela and back. Even pursuant to the notification issued by opposite party no.1, opposite party no.2 is not an applicant for grant of permanent permit in respect of Rourkela-Simdega and back via Biramitrapur. It is the further admitted case that opposite party no.2 had never raised any objection when the petitioner‟s application under Annexure-5 was under
consideration by opposite party no.1. More so, when objection was invited by opposite party no.1, opposite party no.2 had never objected to the same. After grant of permanent permit in favour of the petitioner, while he was operating with effect from 30.6.2011, objection was raised by opposite party no.2 in the year 2013, basing 9 upon which the petitioner was called upon to show cause on 26.2.2013. The opposite party no.2 having not made application pursuant to the notification issued by opposite party no.1 for the route for which the petitioner applied for and having not made any objection at the time of consideration of the application of the petitioner, at a subsequent stage, he cannot and could not have raised any objection and the authority should not have taken into consideration such objection. Since opposite party no.2 is one of the rival passenger transport operators, at his behest the authority could not have considered the objection and cancelled the permit granted in his favour, which itself is hit by Article 19(1(g) of the Constitution of India.
8. The question of "locus standi" of the competitor had come up for consideration before the apex Court in The Nagar Rice and Flour Mills and others v. N.Teekappa Gowda and Bros. and others, AIR 1971 SC 246, wherein the apex Court while considering the provisions of Section 8(3)(c) of Rice Milling Industry (Regulation) Act, 1958 in paragraph 9 has come to hold as follows :
"Where the owners of an existing rice mill shifted its existing location and obtained the necessary permission for change of location from the Director of Food and Civil Supplies, even if it be assumed that the previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, the competitor in the business (owner of another rice mill) can have no grievance against the grant of permission permitting the installation on a new site. The right to carry on business being a fundamental right under Art 19 (1) (g) of the Constitution, its exercise is subject only to the restrictions imposed by law in the interests of the general public under Art. 19 (6) (i)."10
9. Similarly in Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578, a four-Judge Bench speaking through Sarkaria,J. observed as below:
"46. Thus, in substance, the appellants' stand is that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition. Such harm or loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity, Juridically, harm of this description is called damnum sine injuria, the term injuria being here used in its true sense of an act contrary to law.*The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large."
10. In Mithilesh Garg v. Union of India, AIR 1992 SC 443, the apex Court held that the existing operators have no locus to challenge the transport permits issued to other operators by observing as under:"
"As mentioned above the petitioners are permit holders and are existing operators. They are plying their vehicles on the routes assigned to them under the permits. They are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g) of the Constitution of India. There is no threat of any kind whatsoever from any authority to the employment of their right to carry on the occupation of transport operators. There is no complaint of infringement of any of their statutory rights. Their only effort is to stop the new operators from coming in the field as competitors. We see no justification in the petitioners‟ stand."11
11. In view of the ratio decided by the apex Court in the above judgments and also the subsequent judgments, it is evident that the rival operators have no locus standi to challenge the transport permit issued in favour of the other operator. Applying the same to the present context, admittedly, opposite party no.2 is a passenger transport operator, who had neither made any application for grant of permanent permit in his favour in the route to which the petitioner made the application nor has he raised any objection at the time of consideration of the application filed by the petitioner for grant of permit. Therefore, at a belated stage, he cannot raise any objection against grant of permanent permit in favour of the petitioner. By this process, the petitioner is deprived of getting full enjoyment of his fundamental rights guaranteed to him under Article 19(1)(g) of the Constitution of India. That apart there is no complaint of infringement of statutory rights by opposite party no.2 but his only effort is to stop the petitioner from coming to the field as competitor. Therefore, the opposite party no.2 has no locus standi to raise any objection with regard to the grant of permanent permit in favour of the petitioner by opposite party no.1. Without considering this aspect, both the opposite party no.1 as well as the State Transport Appellate Tribunal have committed gross error apparent on the face of record by cancelling the permit at the instance of opposite party no.2, which cannot be sustained.
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12. Considering question no.(ii),it is seen that the allegation made by opposite party no.2 is that the petitioner has obtained permanent permit from Jharkhand State showing his address as "S.N. Ganguli Road, Ranchi, Kotwali, Dist- Ranchi, Jharkhand" and also permanent permit from Orissa State showing his address as "Quarter No. D-208, Koel Nagar, Rourkela-796014, Dist.- Sundargarh". By indicating so, it is stated that the petitioner has suppressed and misrepresented the fact of his residence and principal place of business and prayed for cancellation of permanent permit granted in his favour for the inter-state route, Rourkela to Kutmakachar via Biramitrapur, Simdega and back. As it appears from Annexure-5, the application so submitted before the Odisha State Transport Authority, in clause-3, the petitioner has given the address as mentioned above. But at the same time, under clause-9 of the said application in Annexure-5, it is clearly indicated that the petitioner has got another stage carriage permit valid in the State in respect of other vehicle from Simdega to Rourkela in respect of P.P. No. 03/2008.C/s. No.17G/2008. Therefore, the petitioner has not suppressed any material facts before opposite party no.1 while considering his application in Annexure-5, rather, he has disclosed the fact that he has got another stage carriage permit, then it is left open to the authority, who could have verified the application and on consideration the same, granted permanent permit in his favour. While considering such application, a plea has been taken by the authority stating that the same has been over-looked and that ipso 13 facto does not entitle the opposite party no.1 to cancel the permanent permit in favour of the petitioner. Section 69 of the M.V. Act, states about the general provision as to the application for grant of permit, which is as follows :-
"69. General provisions as to application 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.
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."
13. As per the second proviso to sub-section (1) of Section 69, it is made clear that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States, the application shall be 14 made to the Regional Transport Authority of the region in which the applicant resides or has his principal place of business. (emphasis supplied)
14. „Reside‟ has been described in Oxford Dictionary, to mean, "dwell permanently or for a considerable time, to have one‟s settled or usual abode, to live in or at a particular place". The meaning of „reside‟ as per Black Law Dictionary (5th Edn.) means live, abide, sojourn, stay, remain, lodge. To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one‟s residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as a quality to be vested as a right.
15. The apex Court in Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20, considering the meaning of „reside' as has been described in Oxford Dictionary and Black Law Dictionary mentioned above, held that the meaning of „reside', therefore, covers not only the place where the person has a permanent resident but also the place where the person has resided for a „considerable time‟.
16. In Jeewanti Pandey v. Kishan Chandra Pandey, AIR 1982 SC 3, the apex Court while considering the meaning of „reside' has held that „reside' means to make an abode for a considerable time 15 to dwell permanently or for a length of time, to have a settled abode for a time. It is the place where a person has a fixed home or abode.
17. Coming to the question of consideration of "principal place of business", it is necessary to refer to the provisions of Order XXX, Rule 3(b), CPC and Section 58(1) (b) of the Indian Partnership Act, 1932, as per which "principal place" means office at which the business of the company is managed. Therefore, "principal place of business" means where the governing power of the corporation is exercised, where those meet in council who have a right to control its affairs and prescribe what policy of the corporation shall be pursued and not where the labour is performed in executing the requirements of the corporation in transacting its business. "Principal place of business" means the place designated as the principal place of business of the corporation in its certificate of incorporation.
18. Taking into consideration the above meaning of principal place of business attached to the second proviso to sub-section (1) of Section 69, the application submitted before Jharkhand State Transport Authority as well as Odisha State Transport Authority, only requires to provide the address where the applicant resides or of his principal place of business. Here the word used „or‟ cannot be construed as „and‟. Therefore, if the petitioner has got either residence or principal place of business, he can make an application for grant of permanent permit. So far as the address given in Annexure-5, the 16 petitioner has produced the documents the factum of Voter ID Card, Addhar Card, Indian Union Driving Licence, copy of certificate of marriage issued by the local authority and the documents showing his permanent residence and place of business at Rourkela and his maternal grandfather‟s house at Rourkela. That ipso facto cannot be construed that the petitioner has suppressed any material facts before this Court with regard to the factum where he resides or his principal place of business. Therefore, opposite party no.1 while passing the order in Annexure-7 in cancelling the permanent permit in favour of the petitioner on consideration of the objection by opposite party no.2, who has no locus standi in the matter, has committed gross error by misconstruing the provisions contained in M.V. Act and the Rules framed thereunder and the State Transport Appellate Tribunal while considering the appeal has confirmed the order passed by opposite party no.1 without looking into the statutory provisions on misconstruction of both fact and law.
19. The reliance placed on Mathuradas Regular Services, Gwalior and others (supra) by learned counsel for opposite party no.2 is not applicable to the present context. In that case, the Madhya Pradesh High Court has stated that the applicant has no place of business within the region of Regional Transport Authority. Therefore, he cannot claim permit for inter-state route running through two adjoining States of Madhya Pradesh and Maharashtra while considering 17 the parimateria provision for Section 45(2) of the MV Act, 1939. In Smt. Sushila Chand (supra) this Court had considered the proceeding of the State Transport authority on the ground of improper constitution of STA thereby raising a question of jurisdiction of the authority for grant of permanent permit and as such there is no allegation of non-compliance of principles of natural justice and therefore, this Court came to hold that since the petitioner did not raise a point that the STA was not properly constituted at the time of consideration of her application, thereby taking a chance of succeeding in the proceeding before it. Therefore, at subsequent stages he is debarred by her own conduct from raising an objection before the Court that the STA has not been properly constituted. Therefore, this Court held that by taking the decision, the STA has not committed any illegality or irregularity on the face of it, and therefore, rejected the contention of the petitioner. It is further held that there is no violation of principles of natural justice while considering the application of the petitioner in the said writ petition. The ratio of the said case is not applicable to the present context and as such the same is distinguishable.
20. In view of such position, the orders so passed by opposite party no.1 as well as the State Transport Appellate Tribunal vide Annexures-7 and 10 are hereby quashed and the permanent permit granted in favour of the petitioner is hereby revived. 18
21. Accordingly, the writ petition is allowed. There shall be no order as to cost.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 19th February, 2015/Ajaya/PKSahoo