Punjab-Haryana High Court
Patiala Golden Cooperative Transport ... vs The State Transport Appellate Tribunal on 13 February, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 10134 of 2009
Date of Decision : 13.2.2013
Patiala Golden Cooperative Transport Society Limited ..... Petitioner(s)
Versus
The State Transport Appellate Tribunal, Punjab and others ..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. Baldev Kapoor, Advocate, for the petitioner (s).
Ms. Monica Chhibber Sharma, DAG Punjab.
Mr. Ashu Punchhi, Advocate, for respondent No. 4.
Mr. P.S. Bawa, Advocate, respondent No. 5.
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner, a Cooperative Transport Society, has approached this Court impugning the order dated 27.3.2009 (Annexure-P-5) passed by the State Transport Appellate Tribunal, Punjab, (in short 'STAT'), dismissing the appeal filed by the petitioner being time barred. Challenge has also been posed to the order dated 10.4.2001 (Annexure-P-3), passed by the State Transport Commissioner, Punjab (in short 'STC'), granting the stage carriage permit to respondents No. 3 to 5.
It has been stated in the writ petition that in pursuance to the surveyor report, a notice was published in the Motor Transport Gazette dated 24.2.2000, inviting applications for grant of six regular stage carriage permits for plying buses on six return trips. In response thereto, 170 operators including the petitioner and private respondents submitted their applications CWP No. 10134 of 2009 -2- staking their claim for grant of permit. Contents of the applications were published in the Motor Transport Gazette dated 8.8.2000. No objection was preferred to oppose the grant of permits to the route in question.
Claim of all the applicants was heard by respondent No. 2 in its meeting held on 22.1.2001 where the petitioner also appeared and claimed the grant of permit being a new entrant besides being cooperative society consisting of 11 members, all of whom were holding valid heavy transport driving licenses. After hearing the claims of the applicants in the meeting, order was reserved, which was passed on 10.4.2001 without notice or intimation to the petitioner. The said order was not communicated to the petitioner despite there being an order by respondent No. 2 that it was to be communicated. The management of the petitioner being a new entrant despite making inquiries about the status of its application from the office of Regional Transport Authority, Jalandhar, did not get any information. Rather every time it was informed to them that the order as and when passed and received from respondent No. 2 would be communicated to the petitioner. It was only on 14.2.2008 that the President of the petitioner-Society who had gone to the office of Regional Transport Authority, Jalandhar, was verbally informed that order dated 10.4.2001 had already been passed and the application of the petitioner-Society has not been accepted. At this stage, petitioner submitted an application for obtaining certified copy of the order which was prepared and supplied on 1.4.2008 and the appeal under Section 89 of the Motor Vehicles Act, 1988 (in short 'the Act') was filed before the STAT on 30.4.2008 within a period of 30 days from the date of supply of certified copy within the limitation prescribed. The said appeal apart from merits has been dismissed CWP No. 10134 of 2009 -3- by the STAT on the ground that it had been filed after a lapse of about six years and is badly time barred.
Counsel for the petitioner has referred to Section 89 of the Act to contend that the limitation for filing the appeal has been provided in Rule 85 of the Punjab Motor Vehicle Rules, 1989 (in short 'the Rules'), according to which, appeal has to be filed within 30 days of the receipt of order. Since the petitioner did not receive the copy of the order nor was it aware of the fact that the decision has been taken upon its application, there was no occasion for the petitioner to file an appeal prior to the date on which the appeal had been filed. As a matter of fact, STC had specifically stated in its order dated 10.4.2001 (Annexure-P-3) that the order be communicated, but still the same was admittedly not communicated to the petitioner and, therefore, the dismissal of the appeal of the petitioner by the STAT on the ground of it being barred by limitation is not sustainable. Petitioner has placed reliance upon the judgments passed by this Court in CWP No. 15186 of 2010 titled as Jain Motors Regd. Patiala Versus The State Transport Appellate Tribunal and others, decided on 12.12.2011, CWP No. 3423 of 2012 titled as Manjit Kaur Versus State Transport Appellate Tribunal, Punjab and another, decided on 19.9.2012 and the judgment of the Hon'ble Supreme Court in State of Maharashtra and others Versus M/s Ark Builders Pvt. Ltd., AIR 2011 SC 1374 as also Full Bench judgment of this Court in CWP No. 8229 of 2007 titled as Jagtar Singh Versus The State Transport Appellate Tribunal and others, decided on 30.1.2009. On this basis, prayer has been made for acceptance of the writ petition and the remand of the case to the STAT for decision of the case afresh.
CWP No. 10134 of 2009 -4-
On the other hand, counsel for respondents have referred to the Full Bench judgment of this Court in Jagtar Singh's case (supra) to contend that even if no formal communication of the order passed by the State or Regional Transport Authority has not been done, 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. It is contended that the petitioner has asserted in the writ petition that it had been enquiring about the fate of its application regularly with the Regional Transport Authority, Jalandhar and had been approaching the office of the said authority quite frequently. If that is accepted, there was no reason why the petitioner has not come to know about the passing of the order. That apart, it has been asserted that the application of the petitioner was rejected about six years before the filing of the appeal and after the acceptance of the applications of the private respondents by the STC, the successful parties had been plying their buses on the route in question. It can, therefore, be presumed that the petitioner was well aware about grant of permit to the private respondents and had constructive knowledge about the rejection of its permit. It is, therefore, asserted that the petitioner had been lax in approaching the appellate authority in time and the appeal has rightly been dismissed apart from the merits on delay as well. Prayer has, therefore, been made for dismissal of the writ petition.
I have heard counsel for the parties and with their assistance have gone through the records of the case.
At the very outset, it may be recorded here that the order of the STAT has not been challenged by the counsel for the petitioner on merit and CWP No. 10134 of 2009 -5- no arguments on this aspect has been addressed by any of the counsel. This impugned order has been asserted to be not sustainable on the ground that it has wrongly rejected the appeal of the petitioner being time barred.
Facts as have been recorded above need not to be referred here again as there is no dispute about them. The question which requires to be answered in the present case is whether it is mandatory for the authority deciding the applications of the parties, who had applied for the permit, to communicate the order and if no such communication is made whether the period of limitation prescribed for filing an appeal under rule 85 of the Motor Vehicles Rules would commence from the date of receipt of the said order or the date on which the aggrieved party acquires actual or constructive knowledge about making thereof.
Answer to this question stands settled by the Full Bench of this Court in Jagtar Singh's case (supra). Relevant part of the said order reads as follows :-
"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. 10134 of 2009 -6- 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 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."
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 CWP No. 10134 of 2009 -7- 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 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 view of the above, date of knowledge of the making of the order would be the determinative factor whether the appeal has been filed by the party within limitation or not.
The STAT has dealt with this aspect in paras-15 and 16 of the order dated 27.3.2009 (Annexure-P-5) which reads as follows :- CWP No. 10134 of 2009 -8-
"15. In Jagtar Singh's case (supra), it has been specifically held that even in 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 same, shall start running from the date the aggrieved party acquired actual or constructive knowledge of making of the said order. Whether or not the aggrieved party had any such knowledge will, however, be a matter depending upon the peculiar facts and circumstances of the case. In this case, the applications made by the appellants were rejected about six years before filing of these appeals. The successful parties had been found plying on the route in question. In these circumstances, it is not possible to believe that the appellants did not know or could not have had the knowledge of passing the order of all these years. When the route was being operated, the appellants must be presumed to know that the permits had been granted to the other parties and not to them, meaning thereby that they had the constructive knowledge about the rejection of their request for permit.
16. In these circumstances, the appeals filed by them after lapse of about six years, are badly time barred and on this score also, the same are also liable to be rejected."
I am in full agreement with the findings recorded by respondent No. 1.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH) JUDGE 13.2.2013 sjks