Punjab-Haryana High Court
Jain Motors Regd. Patiala vs The State Transport Appellate Tribunal ... on 12 December, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
C.W.P.No.15186 of 2010 alongwith two connected petitions -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. C.W.P. No.15186 of 2010
Jain Motors Regd. Patiala ..Petitioner
Vs.
The State Transport Appellate Tribunal & Ors. ...Respondents
2. C.W.P. No.17522 of 2010
Binder Kaur ...Petitioner
Vs.
The State Transport Appellate Tribunal & Ors. ...Respondents
3. C.W.P. No.18048 of 2010
Jagroop Singh & Anr. ...Petitioners
Vs.
The State Transport Appellate Tribunal & Ors. ...Respondents
Date of Decision:12.12.2011
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- S/Shri Baldev Kapoor & Rajinder Sharma, Advocates
for the petitioners.
Mr.R.P.S.Sidhu, AAG, Punjab for respondent Nos.1 to 3.
Nemo for respondent No.4.
Mehinder Singh Sullar, J. (Oral)
As identical questions of law and facts are involved, therefore, I propose to dispose of the instant writ petitions, by virtue of this common order to avoid the repetition. However, the facts, which are essential to be noticed for the limited purpose of deciding the core controversy, involved in the writ petitions, have been extracted from (1) CWP No.15186 of 2010 titled as "Jain Motors Regd. Patiala. vs. The State Transport Appellate Tribunal & Ors." for ready reference in this context.
C.W.P.No.15186 of 2010 alongwith two connected petitions -2-
2. The epitome of the facts, culminating in the commencement, relevant for disposal of the present writ petitions and emanating from the record, is that in the wake of notice published in the Motor Transport Gazette Weekly, Chandigarh dated 1.1.1998, the petitioner and other bus operators applied for the grant of regular stage carriage permits for plying the buses on Patran-Talwandi Sabo via Moonak, Beniwal etc. route for a period of five years, in view of the provisions of The Motor Vehicles Act, 1988 and The Punjab Motor Vehicles Rules, 1989 (hereinafter to be referred as "the Act and relevant rules"). The matter was considered in the meeting held on 18.6.1998. While granting the indicated stage carriage permits to the General Manager, the Punjab Road Transport Corporation (in short "the PRTC"), the application of the petitioner was rejected by the State Transport Commissioner, Punjab-respondent No.2 (for short "the STC"), by virtue of impugned order dated 17.4.2000 (Annexure P1).
3. Aggrieved by the order (Annexure P1), the appeal (Annexure P2) filed by the petitioner was dismissed as well, being time barred, by the State Transport Appellate Tribunal, Punjab-respondent No.1 (for brevity "the STAT"). Thereafter, it (petitioner) filed CWP No.8461 of 2007 and a Division Bench of this Court remanded the matter back to the STAT for re-adjudication of the issue of limitation, through the medium of order dated 21.8.2007 (Annexure P3).
4. In pursuance of the order (Annexure P3), the STAT again dismissed the appeal of the petitioner as time barred, by way of impugned order dated 1.2.2010 (Annexure P4).
5. Faced with the situation, the petitioner still did not feel satisfied and preferred the present writ petition, challenging the impugned orders (Annexures P1 & P4), invoking the provisions of Article 226 of the Constitution of India.
6. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, as the impugned order (Annexure P4) cannot C.W.P.No.15186 of 2010 alongwith two connected petitions -3- legally be sustained, therefore, the instant writ petition deserves to be partly accepted in this regard.
7. As is evident from the record that the petitioner alongwith other persons applied for the indicated stage carriage permits on the said route, in pursuance of advertisement dated 1.1.1998. The matter for grant of stage carriage permits was considered by the STC in the meeting held on 18.6.1998, but the decision was taken only on 17.4.2000 (Annexure P1) after a lapse of more than 1¾ years, rejecting the claim of the petitioner.
8. In the wake of CWP No.8461 of 2007 filed by the petitioner, a Division Bench of this Court remitted the matter back to the STAT for its fresh decision. Instead of deciding the appeal on merits, in pursuance of order (Annexure P3), the STAT again dismissed the appeal of petitioner only on the ground that it had acquired the constructive knowledge about the passing of the said order, by virtue of impugned order (Annexure P4), which is under challenge in the present writ petition.
9. Above being the position on record, now the short and significant question, though important, that arises for determination in the present writ petition is, as to whether the STAT was justified in again dismissing the appeal of the petitioner as time barred or not?
10. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative.
11. As is clear that the application for the grant of permit is required to be moved and decided in terms of section 80 of the Act. Section 89 postulates that any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or by the revocation or suspension of the permit or by any variation of the conditions thereof, or by the refusal to transfer the permit under section 82, or by the refusal of the State or a Regional Transport Authority to counter-sign a permit, or by any C.W.P.No.15186 of 2010 alongwith two connected petitions -4- condition attached to such countersignature, or by the refusal of renewal of a permit, or by the refusal to grant permission under section 83, or aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the STAT constituted under sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final.
12. Sequelly, Rule 85 of the relevant rules posits that a person desiring to prefer an appeal against an order of the State or a Regional Transport Authority referred to in sub-section (1) of section 89 shall, within thirty days of the receipt of the order, prefer an appeal in the form of a memorandum, in duplicate, one copy of which shall bear a court fee stamp of one hundred rupee to the STAT together with a certified copy of that order. Sub-rule (2) of this rule further envisages that upon receipt of an appeal in accordance with sub-rule (1), the appellate authority shall appoint a time and place for hearing of the appeal giving the parties not less than thirty days' notice. Likewise, rule 86 provides the procedure in hearing appeals.
13. A conjoint and meaningful reading of these provisions would reveal and make it obligatory for the authorities making the order to communicate it to the concerned party and the period of limitation for any appeal against the order is reckonable from the date of such communication of written order itself. Reliance in this regard can be placed to a Full Bench judgment of this court in case Jagtar Singh v. The State Transport Appellate Tribunal & Ors. AIR 2009 Punjab and Haryana 114 (FB).
14. As indicated earlier, in the instant case, the main ground, which appears to have been weighed with the STAT to again dismiss the appeal of petitioner as time barred, was that since the stage carriage permit granted to PRTC has been further renewed, so, it can be presumed that it (petitioner) acquired the knowledge of passing the impugned order. Here, to my mind, the STAT has C.W.P.No.15186 of 2010 alongwith two connected petitions -5- slipped into a deep legal error and the reason is merely speculative. There must be a positive evidence on record to duly prove that the petitioner had in fact actually acquired the knowledge of impugned order, which is missing in the present case.
15. What cannot possibly be disputed here is that a person desiring to prefer an appeal against an order of the State or a Regional Transport Authority has a right to file appeal within thirty days of receipt of the order, as contemplated under Rule 85 of the relevant rules. Therefore, the prescribed period of limitation would only commence from the date on which the order was received by the party concerned, unless and until there is a strong and positive evidence of acquisition of knowledge of the impugned order, which is totally lacking in the instant case. This matter is no more res integra and is well settled.
16. An identical question came to the considered by the Hon'ble Apex Court in a recent case State of Maharashtra & Ors. v. M/s Ark Builders Pvt. Ltd. AIR 2011 Supreme Court 1374, wherein it was ruled that "if the law prescribes that a copy of the order/award is to be communicated, delivered, dispatched, forwarded, rendered or sent to the parties concerned in a particular way and in case the law also sets a period of limitation for challenging the order/award in question by the aggrieved party, then the period of limitation can only commence from the date on which the order/award was received by the party concerned in the manner prescribed by the law. Thus, the period of limitation prescribed under Section 34 (3) of the Act (therein) would start running only from the date a signed copy of the award is delivered to/received by the party making the application for setting it aside under Section 34(1) of the Act." The law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case.
17. Sequelly, there is another aspect of the matter, which can be viewed from a different angle. The fundamental jurisprudence and the basic concept of law of limitation is well settled. The Hon'ble Supreme Court in cases Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others, AIR 2002 C.W.P.No.15186 of 2010 alongwith two connected petitions -6- Supreme Court 1201 and The State of West Bengal v. The Administrator, Howrah Municipality and others, (1972) 1 Supreme Court Cases 366 : AIR 1972 SC 749, has reiterated that the expression "sufficient cause" within the meaning of Section 5 of the Act should receive a liberal construction when no mala fide is imputable to a party, so as to advance substantial justice.
18. Similarly, in case Sital Prasad Saxena (dead) by LRs v. Union of India and others, AIR 1985 Supreme Court 1, it was ruled that the Courts should recall that "what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties.
19. Likewise, the Hon'ble Apex Court in cases N.Balakrishnan v. M.Krishnamurthy, (1998) 7 Supreme Court Cases, 123 and Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others, AIR 1987 Supreme Court 1353, has held that the legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy and enumerated the following principles:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's C.W.P.No.15186 of 2010 alongwith two connected petitions -7-
delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
20. It is not a matter of dispute that the STC considered the matter on 18.6.1998 and passed the order on 17.4.2000 (Annexure P3) after lapse of period of 1¾ years. It is no where mentioned that the indicated order be communicated. Perhaps that was the reason that the impugned order (Annexure P1) was never communicated to the concerned party. As soon as the petitioner acquired the knowledge, then it filed the appeal, which was twice dismissed by the STAT as time barred. Therefore, no motive can possibly be attributed that it was benefitted in any manner by late filing the appeal. The case of the petitioner squarely falls within the ambit of and the law laid down by the Hon'ble Supreme Court in the aforesaid judgments is the complete answer to the problem in hand.
21. In the light of aforesaid reasons, the instant writ petitions are accepted. Consequently, the impugned order (Annexure P4) is hereby set aside. The matter is again remitted back to the STAT to decide the appeal of petitioner afresh on merits in accordance with law.
22. The parties through their counsel are directed to appear before the STAT on 31.1.2012 for further proceedings.
(Mehinder Singh Sullar) 12.12.2011 Judge AS Whether to be referred to reporter? Yes/No