Punjab-Haryana High Court
M/S Ex-Servicemen Highways Regd vs Stc Punjab And Others on 22 February, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 3939 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 3939 of 2013
Date of Decision : February 22, 2013
M/s Ex-Servicemen Highways Regd., Barnala
.... PETITIONER
Vs.
STC Punjab and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. Jagdish Marwaha, Advocate,
for the petitioner.
AUGUSTINE GEORGE MASIH, J.
Present writ petition has been preferred by the petitioner impugning order dated 17.04.2000 (Annexure P-1) passed by the State Transport Commissioner and the order dated 27.09.2011 (Annexure P-2) passed by the State Transport Appellate Tribunal dismissing the appeal of the petitioner being time barred.
Briefly, the facts of the case are that the applications were invited for grant of Five Stage Carriage Permits for plying buses on five return trips daily on Ludhiana-Baretta via Raikot, Mehal Kalan, CWP No. 3939 of 2013 2 Barnala, Bhikhi, Biroke, Budhlada route for a period of five years by the State Transport Commissioner (hereinafter referred to as 'STC') on the recommendations of the Survey Officer through a notice, which was published in the Motor Transport Gazette Weekly, Chandigarh. In response thereto, 224 applications were received by the STC including that of the petitioner-company, who was a new entrant. The contents of the applications received by the STC were published in the Motor Transport Gazette Weekly, Chandigarh on 15.06.1998 for inviting objections to the applications. No objections were received by the STC.
A meeting was held in the office of the STC on 10.06.1998 and after hearing the applicants, the orders were kept reserved. Petitioner, all through, had been approaching the office of the STC for enquiring about the fate of the application of the petitioner for the grant of permit but every time, it was informed that the decision is pending. On 21.10.2010, one of the partners of the petitioner-company visited the office of the Regional Transport Authority, Patiala. It was then the dealing official informed him that the order dated 17.04.2000 (Annexure P-1) had already been passed by the STC. The same day, the representative applied for the certified copy of the order by making the payment of the requisite fee and the same was supplied on that very day. Aggrieved with the rejection of the application of the petitioner-company, appeal was preferred by the petitioner on 03.11.2010 before the State Transport CWP No. 3939 of 2013 3 Appellate Tribunal, Punjab, which has been rejected vide order dated 27.09.2011 (Annexure P-2) being time barred leading to the filing of the present writ petition.
It is the contention of the counsel for the petitioner that as per Section 80(2) of 2nd proviso of the Motor Vehicles Act, it is mandatory for the STC to give to the applicant in writing its reason for refusal of the grant of permit after giving him an opportunity of being heard in the matter. It mandates the supply of the copy of the order rejecting the application, which admittedly has not been sent to the petitioner-applicant. Further, under Rule 85 of the Motor Vehicle Act, 1989, an appeal against the order of non-grant of permit can only be preferred within a period of 30 days of receipt of the order and the said 30 days would run from the date, on which the certified copy of the order has been received but that would only come into force if the order of rejection of the application is conveyed to the applicant. He, therefore, contends that the moment the petitioner came to know about the passing of the order by the STC, he applied for the same and filed appeal within the period of limitation and, therefore, the appeal could not have been dismissed by the State Transport Appellate Tribunal on the ground of it being time barred. In support of this contention, counsel for the petitioner has placed reliance upon a judgment passed by this Court in CWP No. 15186 of 2010 titled as Jain Motors Regd. Patiala vs. The State Transport Appellate Tribunal and others, decided on 12.12.2011.
CWP No. 3939 of 2013 4
I have considered the submissions made by the counsel for the petitioner and with his assistance, have gone through the records of the case.
The questions with regard to the formal communication of the order by the STC to the aggrieved party and the period to file appeal have been duly considered by the Full Bench of this Court in Jagtar Singh vs. The State Transport Appellate Tribunal and others, 2009 (1) RCR (Civil) 928, where this Court has, in para 6 and thereafter in paras9 and 10, held as follows:-
"6. The remedy by way of an appeal before the State Transport Appellate Tribunal is available to anyone aggrieved of an order passed by the State or Regional Transport Authority. That remedy is, however, subject to the condition that it is availed within the time prescribed for the purpose. A stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. That is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the Act. So viewed two inferences are clear viz. (i) Sections 80 and 89 of the Act read with Rule 85 of the Rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (ii) the period of limitation for any appeal CWP No. 3939 of 2013 5 against the order is reckonable from the date of such communication. Thus far there is no difficulty. The question that adds an interesting dimension is whether a party, who knows about the order of rejection made by the State or Regional Transport Authority, can sit back and indefinitely wait for a formal communication of the order and file the appeal at his sweet will. Our answer to that question is in the negative. While it is true that communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a time of his convenience to file an appeal on a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. Any interpretation of the provisions of Section 80 and 89 of the Act and Rule 85 of the Rules that would give rise to such an absurdity shall have to be eschewed. Diligence or the lack of it in seeking redress is a crucial aspect in matters relating to law of limitation. One can understand that if a party does not know about the making of the order either actually or constructively it may CWP No. 3939 of 2013 6 claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. Allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it.
xxx xxx xxx xxx xxx
9. The case at hand as noticed above presents a converse situation. Here the statute makes the period of limitation to start not from the date of the making of the order but from the date of the receipt of the same by the party affected by it. The question is whether knowledge about the making of the order against the party concerned should like the cases referred to earlier also give rise to start of limitation even when there is no formal communication of the order. Our answer to that question is in the affirmative. Knowledge whether actual or constructive of the order passed by the State or Regional Transport Authority should, in our opinion, result in commencement of the period of limitation. Decisions CWP No. 3939 of 2013 7 rendered by the Division Benches of this Court in Jaspal Singh vs. State of Punjab and others Civil Writ Petition No.14874 of 2000 disposed of on 29.8.2001, Capt. Amrit Pal Singh and others Vs. State Transport Appellate Tribunal, Punjab and others, Civil Writ Petition No.3544 of 2002, disposed of on 15.7.2002, Mavi Bus Service Registered, Khanna Vs. State Transport Appellate Tribunal, Punjab and another, Civil Writ Petition No.7451 of 2005, disposed of on 21.5.2007 and in Indian Bus Service (Regd.) Malerkotla Vs. State Transport Appellate Tribunal, Punjab and others, Civil Writ Petition No.3114 of 2003, disposed of on 4.8.2006 in our view correctly hold that in cases where the State or Regional Transport Authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. We may, however, point out that the said decisions do not elaborate whether a person, who knows about the order made by the State or Regional Transport Authority, can still wait for a formal communication of the same before filing an appeal to the State Transport Appellate Tribunal. That aspect has been noticed only in Banda Bahadur's case (supra) referred to by us in the CWP No. 3939 of 2013 8 earlier part of this judgment. The Court had in that case formulated the following question:-
" Can a person who knows about the order, can still wait for orders and suddenly come up with the plea that since the order had not been communicated, he would file the appeal giving any date to his convenience as the date of the knowledge of the order."
10. Relying upon Raja Harish Chandra's case (supra), the Court answered the question in negative and held that since the application made by the petitioner had been rejected and a permit granted to the opposite party in November, 1988 and since the successful party had started plying on the route concerned, it was not possible to believe that the petitioner did not know or could not have had the knowledge of the making of the order for more than two years. When the route was being operated, observed the Court, the petitioner must be presumed to know that permit had been granted to the other party and not to it, thereby giving to the aggrieved party the constructive knowledge about the rejection of his request for a permit. We respectfully approve the reasoning given in the decision rendered by this Court in Banda Bahadur's case (supra) and hold that even in CWP No. 3939 of 2013 9 cases where there is no formal communication of the order passed by the State or Regional Transport Authority, the period of limitation prescribed for filing the appeal would start running from the date the aggrieved party acquires actual or constructive knowledge of the making of the said order. Whether or not the aggrieved party had any such knowledge will, however, be a matter to be seen by the Tribunal in each case depending upon its peculiar facts and circumstances. It will not, therefore, be necessary or proper for us to enumerate exhaustively situations in which such knowledge can be imputed to the party aggrieved, while examining whether or not the appeal is within limitation."
In the light of the above, it cannot be said that merely because a formal communication of the order by the authority to the petitioner has not been sent, therefore, the period of filing appeal would run from the date the petitioner obtained the certified copy of the order and filed the appeal. What is important is the knowledge about the passing of the order whether it is actual or constructive knowledge of making of such order to the aggrieved party as the matter to be sent by the Tribunal in each case depending upon its peculiar facts and circumstances.
In the light of the Full Bench judgment referred to above, the judgment relied upon by the counsel for the petitioner in the case CWP No. 3939 of 2013 10 of Jain Motors Regd. Patiala (supra) would not be applicable to the present case.
In the present case, the State Transport Appellate Tribunal has duly considered this aspect in para 7 of its order, which reads as follows:-
"7. In the case in hand, the impugned order is dated 17.4.2000 and it has been passed on the basis of the meeting held on 10.8.98. The present appeal has been presented before this Tribunal against this order on 3.11.2010 i.e. after a gap of more than ten and a half years from the date of passing of this order. It is the specific stand of respondents No. 3 and 4 that they have been operating their bus services on the route in question on the basis of the permits granted to them vide the impugned order from the very beginning. As per the record, the appellant Company is having its Head Office at Barnala. Barnala is also one of the stages falling on the route in question. Then there is no explanation on the part of this appellant as to what steps it had taken in order to know the fate of its application during the above said period of more than ten and a half years after holding of the meeting on 10.8.98. So, in these circumstances, it is held that there is sufficient material available on the record to hold that this appellant was CWP No. 3939 of 2013 11 having constructive knowledge about passing of the impugned order much prior to 21.10.10, the date as alleged in the appeal regarding acquiring of knowledge about passing of the impugned order, even though it was not conveyed to it by any transport authority. So, this appeal is held to be barred by limitation."
A perusal of the above shows that the petitioner was having constructive knowledge about the passing of the impugned order much prior to 21.10.2010, the date as alleged in the appeal regarding acquiring of knowledge about passing of the impugned order. The reason assigned and the conclusion drawn by the State Transport Appellate Authority while coming to the conclusion that the appeal of the petitioner is time barred, is fully justified which does not call for any interference by this Court.
Finding no merit in the present writ petition the same stands dismissed.
( AUGUSTINE GEORGE MASIH ) JUDGE February 22, 2013 pj