Dismissed

Sita Devi v. The State Of Bihar and Ors.

Patna HC10 Jul 2014CWJC/11255/2014

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging the State Transport Appellate Tribunal's order regarding the maintainability of an appeal. The Court held that an order directing an applicant to amend timetable details does not constitute a final refusal of a permit under Section 89 of the Motor Vehicles Act, as the application remains pending under Section 71(2).

What did the court decide?

The writ application was disposed of with a direction to the petitioner to submit an amended route/time-table excluding Patna Junction for fresh consideration.

Sita Devi Vs The State Of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.11255 of 2014

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====================================================== Sita Devi, wife of Sri Pramod Kumar, R/o 24 Vivek Bihar, P.O. + P.S.Bahadurpur, District- Patna. .... .... Petitioner/s Versus 1. The State of Bihar through Principal Secretary, Department of Transport, Government of Bihar, Patna. 2. Chairman, State Transport Appellate Tribunal, Government of Bihar, Patna. 3. South Bihar Regional Transport Authority, Patna through Secretary. 4. Darvin Kumar Choudhary, Son of Late Satyanarain Choudhary, VillRanisari, P.O. + P.S.- Bakhtiyarpur, District- Patna. 5. Rakesh Kumar, Son of Sri Tanik Prasad Singh, Resident of A/33PC Coloney, P.O. + P.S.- Kankarbag, District- Patna. 6. Mithelesh Kumar, Son of Late Krishna Bhagwan Thakur, Resident of B/140, P.C. Coloney, Kankarbag, P.O. + P.S.- Kankarbag, DistrictPatna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sanjay Kumar Pandey, Advocate. For the Respondent/s : Mr. S.S.Prasad, S.C. 10 Mr. Anil Kumar, A.C. to S.C. 10 Mr. Sanjay Kumar, A.C. to S.C. 10. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER

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2 10-07-2014 Heard learned counsel for the parties.

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Assailing the impugned order passed by the State Transport Appellate Tribunal, Bihar, Patna (hereinafter referred to as 'the Tribunal') dated 13.05.2014 in Transport Appeal No. 39 of 2013, learned counsel for the petitioner has pressed only one issue, namely that the view taken by the Tribunal that the appeal filed by the petitioner was not maintainable before it is absolutely in teeth of the provisions made in the Motor Vehicles Act (hereinafter referred to as 'the Act'). In this regard learned counsel for the

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petitioner has gone to explain and elucidate that when an application was filed by the petitioner for grant of permit giving detail of timing and the route, the decision of the Regional Transport Authority (hereinafter referred to as the Authority) in rejecting the route or timing by itself will actually amount to rejection of the grant of permit so as to make the order appellable in terms of Section 89 of the Act.

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Per contra, learned counsel appearing on behalf of the respondents has submitted that the impugned order, in question, in the shape it has been passed by the Authority by way of only granting the petitioner an opportunity to amend the timing in the application, would not amount to rejection of applications for the grant of permit to the petitioner so as to make the same appellable in terms of Section 89 of the Act. In this regard, attention of this Court has been invited by him towards the Section 71 of the Act which according to him would a complete answer to the aforesaid submission of the learned counsel for the petitioner.

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In the considered opinion of this Court, the submission of learned counsel for the State has to be accepted for more than one reason. Section 89 of the Act, while prescribing the provisions of appeal, lays down the eventualities in which such appeal can be filed. To that extent, it would be useful to quote Section 89 of the

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Patna High Court CWJC No.11255 of 2014 (2) dt.10-07-2014

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Act as a whole:

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89. Appeals- (1) Any person:

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(a) 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

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(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or

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(c) aggrieved by the refusal to transfer the permit under Section 82, or

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(d) aggrieved by the refusal of the State or a Regional Transport authority to countersign a permit, or by any condition attached to such counter-signature, or

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(e) aggrieved by the refusal of renewal of a permit, or

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(f) aggrieved by the refusal to grant permission under section 83, or

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(g) aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal 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.

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(2) The State Government shall constitute such number of Transport Appellate Tribunals as it thinks fit and each such Tribunal shall consist of a judicial officer who is not below the rank of a District Judge or who is qualified to be a Judge of the High Court and it shall exercise jurisdiction within such area as may be notified by that Government.

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(3) Notwithstanding anything contained in sub-section (1) or such-section (2) every appeal pending at the commencement of this Act, shall continue to be proceeded with and disposed of as if this Act had not been passed.

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Learned counsel for the petitioner has submitted that

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the case in hand as with regard to maintainability of the appeal will be only by way of under Section 89(1)(a) as underlined above. From a bare reading of Section 89(1)(a) of the Act, it would be more than clear that an appeal may be maintainable in only two eventualities. Firstly, when the Authority refuses to grant permit and secondly, when any condition is attached while granting permit. In the present case the order, in question passed by Authority against which an appeal was filed by the petitioner

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did not envisage either rejection of the permit or imposing any condition for grant of permit. In fact, the learned counsel for the petitioner has himself very fairly submitted that the timing given in the permit cannot be said to a condition in the permit.

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In this background, if the impugned order passed by the Authority itself is examined, this becomes absolutely clear that when the application of the petitioner for grant of permit from Kankarbag to Engineering College via Patna Junction and Gandhi Maidan was filed, three objections were received, from Rakesh Kumar, Mithilesh Kumar and Dravin Kumar Chaudhary. After withdrawal of the objection by Dravin Kumar Chaudhary, when the matter was heard and decided by the Authority in the light of the objection of the remaining two objectors, namely, Rakesh Kumar and Mithilesh Kumar, it had passed the impugned order that the timing prayed for by the petitioner in the permit could not be allowed and, therefore, the petitioner should be asked to submit a fresh timing in order to get his permit. This part of the order cannot be said to be rejection of the application of the petitioner by the authority for grant of permit. In fact, the petitioner’s application would be deemed to be still kept pending by the Authority inasmuch as the petitioner was only asked to give a revised timing. This is, in fact, also very much permissible under

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Section 71(2) of the Act, which is quoted hereinbelow:

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71. Procedure of Regional Transport Authority in considering application for stage carriage permit.-

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(1) X X X X X X

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(2) A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened:

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Provided that before such refusal an opportunity shall be given to the applicant to amend the time-table so as to conform to the said provisions.

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(underlining for emphasis)

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The proviso, therefore, to Section 71(2) of the Act leaves nothing for speculation that a decision for refusal of permit has not been taken as yet by the Authority and, in fact, the petitioner has been only asked to amend timing excluding Patna Junction. It may be open for the petitioner either to amend or to not amend his such timing but till he does not carry out the amendment and his case is reconsidered, it cannot be said that his application for grant of permit has already been rejected. The moment this aspect becomes clear, there would be no difficulty in holding that an appeal against such order was not maintainable inasmuch as the same was only by way of exercise of power by the Authority under proviso to Section 71(2) of the Act.

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In view of the fact that the learned counsel for the petitioner has not gone into the correctness of the reason of the congestion of traffic at Patna Junction for submission of revised timing, this Court will not be required to give any finding in this

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regard.

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Learned counsel for the petitioner has then submitted that the petitioner had misconstrued the scope of impugned order passed by Authority only because no permit had been issued and that is why he had moved in appeal before the Tribunal or before this Court questioning the order of the Tribunal. He has also submitted that if the order passed by the Authority, as contained in Annexure-1, has to be read only for change of route and timing the petitioner is still prepared to carry out such change excluding Patna Junction.

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In that view of the matter, if the petitioner carries the order of the Authority and submits an amended route with revised time table excluding Patna Junction, his case for grant of permit shall be considered by the Authority in accordance with law.

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With the aforementioned observations and directions, this writ application is disposed of.

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(Mihir Kumar Jha, J)

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Sujit/-

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Sita Devi v. The State Of Bihar and Ors.

Case brief

What is this about?

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Sita Devi v. The State Of Bihar and Ors.

Case brief

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