Calcutta High Court (Appellete Side)
Puspa Devi Bagla And Another vs The State Of West Bengal & Others on 30 June, 2016
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Samapti Chatterjee
WP 22396(W) of 2015
Puspa Devi Bagla And Another
Vs
The State of West Bengal & Others
For the Petitioners : Mr. Abhrajit Mitra, Learned Advocate
Mr. Satadeep Bhattacharya, Learned Advocate
Mr. Puja Beriwal, Learned Advocate
For the State : Mr. Amal Kumar Sen, Learned Advocate
Mr. Bhaskar Nandi, Learned Advoate
Heard on : 01.03.2016, 14.03.2016, 16.03.2016, 05.04.2016
Judgment on : June 30, 2016.
Samapti Chatterjee, J.
1. The petitioner filed the present writ petition assailing the impugned rejection letter dated 6th July, 2015 by the concerned public vehicles authority.
2. Issues involved in this case (i) Whether the motor vehicles authority can allow the petitioner to retain his registration number being WBG1 to a brand new Honda Mobilio car proposed to be purchased in future by the petitioner and (ii) Whether non-allowing the petitioner to retain the registration number being WBG1 for the proposed vehicle to be purchased by the petitioner clearly hits principles of res- judicata ?
FACT OF THE CASE
3. The case of the petitioner in brief is as follows :-
The father-in-law of the petitioner no.1 and father of the petitioner no.2 Satyanarayan Bagla (since deceased) was the owner/proprietor of Bagla Motors and one Fiat car having Registration No.WBG1. After the demise of Satya Narayan Bagla Lalit Kumar Bagla being the heir of Satya Narayan Bagla became the owner of the said Fiat car. The said registration number WBG1 was assigned to the petitioner no.1 to a newly purchased Honda City Car pursuant to the Hon'ble Court's order dated 4th September, 2006 only after the order passed on 22nd November, 2006 in contempt proceedings. The petitioner's proposal to retain the said registration number WBG1 for his proposed Honda Mobilio Car booked with the authorised dealer for Honda vehicles namely Chandrani Enterprises was rejected by the respondent authorities.
Hence, the presence writ petition.
SUBMISSIONS OF THE LEARNED ADVOCATES
4. Mr. Abhrajit Mitra, learned senior counsel appearing for the petitioner strongly submitted that the respondent authority has no right to reject the petitioner's prayer to retain the said registration number WBG1 for the proposed newly Honda Mobilio car.
5. Mr. Mitra further contended that by virtue of the earlier order dated 4th September, 2006 the petitioner was allowed to retain the said number for his newly purchased Honda City Car but unfortunately in the present case the refusal of the petitioner's prayer to retain the said registration number WBG1 for his newly proposed car to be purchased clearly hits contrary to the principles of res-judicata.
6. Mr. Mitra further contended that by virtue of the Hon'ble Court's order the petitioner was allowed to retain the said registration number by the Motor vehicles Department, therefore, it is the obligatory duty on the part of the Motor Vehicles Department to allow the petitioner to retain the said registration number for the proposed car to be purchased by the petitioner.
7. Mr. Mitra further vehemently urged that the rejection of the petitioner's prayer by the authority is illegal, arbitrary and at the same time very much unfair, unjust and unwarranted.
8. Mr. Mitra further contended that the authority has no right to sit upon the fact already decided by the Hon'ble Court and on the basis of that it has already been acted upon by allowing the petitioner to retain the said registration number WBG1 for his earlier Honda City Car. Therefore, rejection of the petitioner's same prayer by the same authority is nothing but clearly hits the principles of res-judicata. In support of his contention Mr. Mitra relied on a ancient decision reported in AIR 1928 (Cal) Page 777(Tarini Charan Bhattacharjee and others vs Kedar Nath Halder).
Mr. Mitra also relied on an Apex Court decision reported in 2005 (7) SCC Page-190 Paragraph -24-26 (Iswar Dutt vs Land Acquisition Collector And Another) on the point of estoppel. Those paragraphs are quoted below :-
"Para-24-Yet again in Arnod v.National Westminster Bank Plc. The House of Lords noticed the distinction between cause of action estoppel and issue estoppel : (All ER pp 46 C-E and 47 C-D) "Cause of action estopel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been litigated between the same parties or their privies and having involved the same subject-matter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened,....Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue."
Here also the bar is complete to relitigation but its operation can be thwarted under certain circumstances. The House then finally observed : (All ER p. 50 C-E) "But there is room for the view that the underlying principles upon which estoppel is based, public policy and justice have greater force in cause of action estoppel, the subject-matter of the two proceedings being identical, than they do in issue estoppel, where the subject- matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success."
Para-25-In Gulabchand Chhotalal Parikh v State of Bombay the Constitution Bench held that the principle of res judicata is also applicable to subsequent suit where the same issues between the same parties had been decided in an earlier proceeding under Article 226 of the Constitution.
Para-26- It is trite that the principle of res judicata is also applicable to the writ proceedings."
Mr. Mitra also relied on a Hon'ble Supreme Court decision reported in 1970 (1) SCC Page-613 Paragraph-11 (Mathura Prasad Bajoo Jaiswal And Others vs Dossibai N.B. Jeejeebhoy) which is quoted below :
"Para-11-It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness of otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. in interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in Section 11, Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land."
On the same point also Mr. Mitra relied on a Full Bench reference reported in Calcutta Weekly Notes Vol-XXXIII Page-126 (Tarini Charan Bhattacharya and Others vs Kedar Nath Haldar) and also relied on a Hon'ble Supreme Court decision reported in AIR 1964 SC Page 1013 Paragraph-17(Amalgamated Coalfields Ltd. And Another etc vs Janapada Sabha Chhindwara And Others) Mr. Mitra also relied on a Apex Court decision reported in 2010 (3) SCC Page-353, Paragraph-60 (S. Nagaraj (Dead) By Lrs. And Others vs B.R. Vasudeva Murthy And Others) on the point of principle of per- inquirium.
Mr. Mitra also relied on a Apex Court decision reported in 2014 (11) Page-774 Paragraph-21 (Shiv Chander More And Others vs Lieutenant Governor And Others)
9. Per contra, Mr. Amal Kumar Sen, learned Advocate appearing for the State authority strongly contended that principle of res-judicata does not apply in the case in hand.
10. Mr. Sen further vehemently urged that the earlier order of this Hon'ble Court was in respect of a vehicle namely Honda City car but present cause of action is totally different from the earlier cause of action as in the present case the petitioner made representation before the Motor Vehicles Authority to allow the petitioner to retain the same registration number WBG1 in respect of Honda Mobilio vehicle would be purchased by the petitioner in near future. Therefore, the cause of action arising between the parties in respect of the earlier writ petition and the cause of action in the present case is totally different which cannot be projected to be hit by principle of res-judicata.
11. Mr. Sen further drew my attention to Sections 39, 41(1), 41 (3), 41 (6) and 44 of the Motor Vehicles Act, 1988 and the Rules time to time framed thereunder which are quoted below:-
"Section-39-Necessity for registration-No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.
Section-41 (1)-Registration, how to be made.-(1) An application by or on behalf of the owner of a motor vehicle for registration shall be in such form and shall be accompanied by such documents, particulars and information and shall be made within such period as may be prescribed by the Central Government:
Provided that where a motor vehicle is jointly owned by more persons than one, the application shall be made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act. Section-41(3)-The registering authority shall issue to the owner of a motor vehicle registered by it a certificate of registration in such form and containing such particulars and information and in such manner as may be prescribed by the Central Government. Section-41 (6)-The registering authority shall assign to the vehicle, for display thereon, a distinguishing mark (in this Act referred to as the registration mark) consisting of one of the groups of such of those letters and followed by such letters and figures as are allotted to the State by the Central Government from time to time by notification in the Official Gazette, and displayed and shown on the motor vehicle in such form and in such manner as may be prescribed by the Central Government.
Section-44-Production of vehicle at the time of registration-The registering authority shall before proceeding to register a motor vehicle or renew the certificate of registration in respect of a motor vehicle, other than a transport vehicle, require the person applying for registration of the vehicle or, as the case may be, for renewing the certificate of registration to produce the vehicle either before itself or such authority as the State Government may by order appoint in order that registering authority may satisfy itself that the particulars contained in the application are true and that the vehicle complies with the requirements of this Act and of the rules made thereunder."
12. Mr. Sen also emphasized upon Rule 47, 48 and 49 of the said Act which are quoted below :-
"Rule-47-Application for registration of motor vehicles- (1) An application for registration of a motor vehicle shall be made in Form 20 to the registering authority within a period of seven days from the date of taking deliver of such vehicle, excluding the period of journey and shall be accompanied by :-
(a) Sale certificate in Form 21;
(b) Valid insurance certificate;
(c) Copy of the proceedings of the State Transport Authority or Transport Commissioner or such other authorities as may be prescribed by the State Government for the purpose of approval of the design in the case of a trailer or a semi trailer;
(d) original sale certificate from the concerned authorities in Form 21 in the case of ex-army vehicles;
(e) proof of address by way of any one of the documents referred to in rule 4;
(f) temporary registration, if any;
(g) road-worthiness certificate in Form 22 from the manufacturers, Form 22A from the body builders;
(h) Custom's clearance certificate in the case of imported vehicles along with the licence and bond, if any:
PROVIDED that in the case of imported vehicles other than those imported under the Baggage-Rules, 1998, the procedure followed by the registering authority shall be same as those procedure followed for registering of vehicles manufactured in India
(i) appropriate fee as specified in rule 81;
(j) proof of citizenship; and
(k) proof of legal presence in India in addition to proof of residence in case of foreigners.
(2) In respect of vehicles temporarily registered, application under sub-rule (1) shall be made before the temporary registration expires.
48. Issue of certificate of registration On receipt of an application under rule 47 and after verification of the documents furnished therewith, the registering authority shall, subject to the provisions of section 44, issue to the owner of the motor vehicle a [certificate of registration in Form 23 or Form 23A, as may be specified in the Notification issued by the concerned State Government or Union Territory Administration[within the period of thirty days from the receipt of such an application] PROVIDED that where the certificate of registration pertains to a transport vehicle it hall be handed over to the registered owner only after recording the certificate of fitness in Form 38 [within the period of thirty days from the date of receipt of such an application].
49. Registration records to be kept by the registering authority Every registering authority shall keep in Form 24 a permanent register of motor vehicles registered by it under Section 41 and of motor vehicles of other States for which new registration marks are assigned by it under sub-section (2) of the section 47 and shall also enter in such record under the respective registration numbers, all changes made with reference to the provisions of sub-section (10) or sub-section (14) of Section 41, sub-section (5) of section 49, sub- section (6) of section 50, sub-sections (1), (2), (3) and (5) of section 51, sub-section (4) of Section 52, orders of suspension under section 53 and order of cancellation under sections 54 and 55."
13. Mr. Sen further strongly argued that doctrine of principle of res-judicata does not apply in the present case as at the material point of time no rule was there except Rule 61 (4).
14. Mr. Sen further vehemently argued that no issue has been decided between the parties by the earlier order of the Court and in that writ petition in fact no issue was at all framed, therefore Mr. Sen contended that doctrine of principle of res-jduciata does not apply in the present case.
In support of his contention Mr. Sen relied on a Hon'ble Supreme Court decision reported in 1997 (11) SCC Page-206 Paragraph-3 ( Inder Singh And Another vs Financial Commissioner, Punjab And Others) Mr. Sen also contended that there is no estoppel to statute as has been made by rejection of the petitioner's representation for retaining the same registration number. In support of his contention Mr. Sen relied on a Hon'ble Supreme Court decision reported in 1996 (6) SCC Page-634 Paragraph-13 (I.T.C Bhadrachalam Paperboards And Another vs Mandal Revenue Officer, A.P And Others) Mr. Sen also relied on a Hon'ble Supreme Court decision reported in 2013 (5) SCC Page-427 Paragraph-34 (Rajasthan State Industrial Development And Investment Corporation vs Subhash Sindhi Cooperative Housing Society, Jaipur And Others) Mr. Sen also relied on a Hon'ble Supreme Court decision reported in 2006 (5) SCC Page-752 Paragraphs-11 & 12 (Mayuram Subramanian Srinivasan vs CBI).
DECISION WITH REASONS
15. After considering the submissions advanced by the learned Advocates and after perusing the various decisions relied on by the learned Advocates I find that admittedly the cause of action of the earlier writ petition and the cause of action arising due to the rejection of the petitioner's representation is not same and identical because in the earlier writ petition no issue has been decided between the parties by the Hon'ble Court. Only the Hon'ble Court directed the respondent authorities to allow the petitioner to retain the registration number WBG1 for his newly purchased Honda City car but in the present case admittedly the petitioner did not purchase any Honda Mobilio car as yet and only on the basis of the desire to purchase that car the petitioner made representation before the authority to allow him to retain the said registration number WBG1 for the car he would purchase in near future.
Therefore it cannot accepted that the cause of action of the earlier writ petition and the cause of action of the present writ petition is same and identical though parties are same in both the cases.
16. To decide the said issue of res judicata the provision of Section 11 of the Civil Procedure Code is to be looked into which is quoted below :
"Section 11- Res judicata-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been herd and finally decided by the such Court."
The Explanation VIII provides as follows :
"Explanation VIII-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
17. In my considered view by the earlier order no issue has been decided by the Hon'ble Court between the parties. I also find that there is substance in the argument of Mr. Sen that there is no provision under Motor Vehicles Act that any person at his sweet-will and desire could be allowed to retain any registration number of his choice.
I also cannot ignore the submission of Mr. Sen that long back the authority has adopted policy to issue computerised number therefore nobody can be allowed by the authority to retain any registration number at his sweet will and desire. But only in special case some special registration number could be allotted by the Motor Vehicles Department following the relevant rules.
I also cannot appreciate the proposition that a person without purchasing a new car could approach the authority to retain the registration number of his old car for the car yet to be purchased. It is like advance booking of a particular number for the car to be purchased in future.
Therefore, in my considered view point raised in the present case is not same and identical with the point raised in the earlier writ petition. Consequently, action on the part of the respondent authority to reject the petitioner's prayer for retaining the same registration number WBG1 for car which would be purchased by the petitioner in near future could not be assailed as res judicata on the part of the respondent authority.
18. This Court also cannot shut it's eyes when admittedly it is noticed that in earlier writ petition only Rule 61 (4) of the Motor Vehicles Rules 1989 was cited but no issue regarding the relevant rule for retention of existing registration number in the future was framed or decided in the earlier writ petition. Therefore, rejection of the petitioners representation for retention of the earlier registration number for the vehicle which would be purchased by the petitioner in future cannot be assailed to be as barred by Section 11 of the Civil Procedure Code.
19. Now I deal with the decisions relied on by Mr. Mitra. In "Iswar Dutt" case (supra) the respondent authority admitted compensation thereafter failed to comply with the same. Therefore, it was the duty of the authority to pay the compensation as has been directed by the Hon'ble Court as the judgment has attained finality between the parties in the same proceedings. But in the present case though the parties are same but the cause of action is not the same and the proceeding is also different. In the earlier writ petition the petitioner was allowed to retain the same registration number WBG1 for his Honda City car but in the present writ petition no car has yet been purchased by the petitioner for retaining the said registration number. Therefore, it cannot be suggested that cause of action of the earlier writ petition and the cause of action of the present writ petition is same and identical.
In the case of "Mathura Prasad Bajoo Jaiswal and Others" (supra) the Court had, inter alia, held that a decision on an issue of law will be as res jduicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority.
Where the decision is on a question of law, i.e. the interpretation of a statute, it will be res jduicata in a subsequent proceeding between the same parties where the cause of action is the same but in the present case no issue has ever been decided in earlier writ petition, no question of law has been decided by the earlier writ petition and not only that the cause of action of the earlier writ petition and the cause of action of the present writ petition is also not same. Therefore this decision has no application in the present case.
The Full Bench decision in "Tarini Charan Bhattcharya and Others" (supra) is also not applicable as no issue has been decided between the parties and the cause of action of the earlier writ petition and the cause of action of the present writ petition is also not same.
In "Amalgamated Coalfields Ltd. And Another etc" (supra) the petitioner during pendency of the writ petition filed another writ petition on the same issue therefore it was held by the Hon'ble Supreme Court that the second writ petition is barred by res judicata, this case is also not applicable in the case in hand.
The decision in of "Shiv Chander More And Others" (supra) also has no application in the present case in hand.
The Case of "S. Nagaraj (Dead) By Lrs. And Others" (supra) is also not applicable in the case in hand. Therefore on the basis of the discussions as above in my considered view the rejection of the petitioner's application by the respondent authority for retention of registration number WBG1 for his Honda Mobilio car that would be purchased in future by the petitioner is not barred by principle of res judicata.
20. Therefore, in my opinion there is no ambiguity or illegality or irregularity or infirmity committed by the respondent authority at the time of rejection of the petitioner's application. That being the scenario in my considered view the impugned order does not deserve any interference by this Hon'ble Court.
21. Accordingly, the writ petition stands dismissed however no order as to costs.
22. Urgent photostat certified copy of this judgment, if applied for be supplied to the parties after fulfilling all the formalities.
(Samapti Chatterjee, J)