Apsrtc, Mushirabad, Hyd. Vs. State Transport Appellate Tribunal, Andhra Pradesh, Hyd. and ors. - Court Judgment

Excerpt:
(i) motor vehicles - renewal of permit - section 81 of motor vehicles act, 1988 - order passed by competent authority for permit granted to third respondent was invalid - application for renewal of permit presented before authorities - illegal order passed earlier cannot be allowed to be extended after its time of operation has ended - renewal of permit is totally a fresh grant - held, at time of granting renewal of permit illegal order passed earlier need not be considered. (ii) automatic renewal of permit - section 81 of motor vehicles act, 1988 - clause 4 of g.o. ms. no.735 dated 03.06.1971 does not interfere with existing holders of stage carriage permits but those who need renewal or new permits would not get it automatically - renewal of permit can be given after complying with preconditions set out by act it is a privilege and not an right accrued. - specific relief act, 1963 [c.a. no. 47/1963]. sections 31 & 34: [bilal nazki, v.v.s. rao & g. chandraiah, jj] [per court] cancellation of registered sale deed inherent power of registering authority - fraudulent transfer of property sale taking place by reason of fraud played by transferor and transferee held, it is void. true owner can nullify the sale by executing and registering a cancellation deed without seeking declaration or cancellation of fraudulent transfer deed from court. registering authority is empowered to cancel sale deed earlier registered. registration of document cannot be understood to be an absolute sale divesting vender of its title else it would render sections 31 and 34 of specific relief act, otiose. -- transfer of property act,1882[c.a. no. 4/1882]. sections 53 & 126: [per court] cancellation of registered sale deed inherent power of registering authority - fraudulent transfer of property sale taking place by reason of fraud played by transferor and transferee held, it is void. true owner can nullify the sale by executing and registering a cancellation deed without seeking declaration or cancellation of fraudulent transfer deed from court. registering authority is empowered to cancel sale deed earlier registered. registration of document cannot be understood to be an absolute sale divesting vender of its title else it would render sections 31 and 34 of specific relief act, otiose. - (3) notwithstanding anything contained in sub-section (2), the regional transport authority or the state transport authority as the case may be, entertain an application for the renewal of a permit after the last date specified in that sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified. --(a) the financial condition of the applicant as evidenced by insolvency, or decrees for payment of debts remaining unsatisfied for a period of thirty days, prior to the date of consideration of the application; harinath learned standing counsel for apsrtc appearing on behalf of the appellant -corporation submitted that the learned single judge went wrong inasmuch as he failed to take into consideration that the third respondent herein did not have valid permits and as such the question of renewal thereof does not arise. strong reliance in support of the aforementioned contention has been placed on gajraj singh v. venkataramana, would contend, is clearly beyond the competence of the regional transport authority. in support of the aforementioned contention, strong reliance has been placed on p. 19. in view of the foregoing discussion, the findings of the learned single judge, as noticed hereinabove, must be held to be clearly erroneous having regard to the full bench decision of this court k. such finding, clearly is contrary to the decision of the apex court in gajraj singh (supra). 20. for the reasons aforementioned, the writ appeals are to be allowed and they accordingly allowed.s.b. sinha, c.j. 1. these appeals which involve common questions of fact and law were heard together and are being disposed of by this common judgment. they are directed against a common order date 10-6-2001 passed by a learned single judge of this court in writ petition nos. 22056 and 22057 of 1994. facts 2. the facts in brief are: the appellant - corporation is third respondent in both the writ petitions. the writ petitions were filed by the third respondent herein to quash the order of the first respondent dated 12-2-1994 whereby and whereunder the order of the second respondent was confirmed. 3. the, writ petitioner-third respondent was granted two pucca stage cartage permits on the inter-district route of anantapur -madanapalli - via - bathalapally, kadiri, balasamudram cross, molakalacheruvu, somapalem cross and bathalapalem cross extending lover a distance of 137 k.m. he applied for variation in the route. when his application was pending, the appellant-corporation published a draft scheme on 1-11-1974 under section 68(c) of the motor vehicles act, 1939 ('the act' for brevity) covering the original route. the third respondent was, however, granted variation by order dated 7-3-1975. the draft schemewas approved by the government by its order dated 3-6-1975 and the same was published on 4-6-1975. the permits granted to the third respondent were cancelled. the revisions preferred there against by the third respondent were allowed by the tribunal on 12-2-1976. the appellant filed writ petition no. 2528 of 1976 against the said order and that writ petition was allowed, 'the appeals and s.l.p., preferred by the third respondent were also dismissed. the third respondent who had been given renewals of permits from time to time and had been operating two buses. after expiry of period of permits, the third respondent filed applications for renewal which were also rejected. against the rejection of renewal applications, the third respondent filed appeals and the same were rejected. hence the writ petitions. 4. the learned single judge in view of the provisions contained in section 81 of the 1988 act came to the conclusion that the power is available to the authority to reject the renewal only on the ground specified herein and no other provision empowers the authority to refuse renewal. the learned single judge observed that if the authorities feel that the permit was issued contrary to the provisions of the act, it would be open for them to initiate action to cancel or vary the permit. the learned single judge found the orders of the state transport appellate tribunal and the authority illegal and contrary to the provisions of section 81(4)(a) and (b) of the 1988 act. ultimately, the learned single judge set aside the orders of the authorities and directed them to renew the permits of the third respondent for a further period of five years in accordance with the rules. relevant provisions 5. section 81 of the 1988 act, which deals with duration and renewal of permits and relevant for the present purpose, reads thus: 1) a permit other than a temporary permit issued under section 87 or, a special permit issued under sub-section (8) of section 88 snail be effective [from the date of issuance or renewal thereof] for a period of five years: provided that where the permit is countersigned under sub-section (1) of section 88, such countersignature shall remain effective without renewal for such period so as to synchronise with the validity of the primary permit. (2) a permit may be renewed on an application made not less than fifteen days before the date of its expiry. (3) notwithstanding anything contained in sub-section (2), the regional transport authority or the state transport authority as the case may be, entertain an application for the renewal of a permit after the last date specified in that sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified. (4) the regional transport authority or the state transport authority, as the case may be, may reject an application for the renewal of a permit on one or more of the following grounds, namely:-- (a) the financial condition of the applicant as evidenced by insolvency, or decrees for payment of debts remaining unsatisfied for a period of thirty days, prior to the date of consideration of the application; (b) the applicant had been punished twice or more for any of the following offences within twelve months reckoned from fifteen days prior to the date of consideration of the application committed as a result of the operation of a stage carriage service by the applicant, namely:- (i) plying an' vehicle- (1) without payment of tax due on such vehicle; (2) without payment of tax during the grace period allowed ,for payment of such tax and then stop the plying of such vehicle, (3) on any unauthorised route; (ii) making unauthorised trips: provided that in computing the number of punishments for the purpose of clause (b), any punishment stayed by the older of an appellate authority shall not be taken into account; provided further that no application under this sub-section shall be rejected unless an opportunity of being heard is given to the applicant. (5) where a permit has been renewed under this section after the expiry of the period thereof, such renewal shall have effect from the date of such expiry irrespective of whether or not a temporary permit has been granted under clause (d) of section 87, and where a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refunded. submissions - case law 6. mr. k. harinath learned standing counsel for apsrtc appearing on behalf of the appellant - corporation submitted that the learned single judge went wrong inasmuch as he failed to take into consideration that the third respondent herein did not have valid permits and as such the question of renewal thereof does not arise.strong reliance in support of the aforementioned contention has been placed on gajraj singh v. state transport appellate tribunal, : air1997sc412 . 7. mr. t. venkataramana, the learned counsel appearing on behalf of the third respondent, on the other hand, would submit that the writ petitioner - third respondent was granted permits in the year 1954. a draft scheme was prepared only in the year 1975 which did not come in the way of extension of the route from somapalem cross to somapalem. according to the learned counsel, even assuming that the said purported extension was void, but the appellant herein having not questioned the same at any point of time, it is estopped/ precluded from questioning the same now. the learned counsel would urge that even in terms of the approved scheme, exemptions had been granted. according to the learned counsel, despite coming into force of the approved scheme, the permits had been renewed on more than one occasion and only when, even after payment of requisite fee, applications for grant of renewal were med, the same were rejected solely on the ground that the first renewal was illegal. such an order, mr. venkataramana, would contend, is clearly beyond the competence of the regional transport authority. in support of the aforementioned contention, strong reliance has been placed on p. jayarama naidu v. the s.t.a.t. and ors., 1989 (1) scale 1067, k. pamanna v. the s.t.a.t., : air1992ap368 (fb) and e.b. veera raghavaiah v. mohd. imthiazuddin, : 1997(2)alt327 (db). findings 8. a draft scheme in terms of chapter iv-a of motor vehicles act, 1939 ('the act' for brevity) was published in respect of anantapur - madanapalle - via - bathulapalli, mudigubba, kadiri, mulakala cheruvu and angallu (171 km.) by reason of g.o. ms.no. 735, home (transport-v) department, dated 3-6-1975. exemption in terms of the said scheme was granted only in respect of existing holders of the stage carriage permits in respect of such route or routes which partially overlap the proposed route. the third respondent was initially granted two stage carriage permits on the inter-district route of anantapur - madanapalle - via -bathulapalli, kadiri, balasamudram cross, mulakala cheruvu, somapalem cross and bathalapalem cross. the distance of the said route was 117 km. an application for variation by way of extension was filed by him from somapalem cross to somapalem, a distance of 5 km. and curtailment of route from 126th km. to 129th km. pursuant to the approval of the draft scheme on or about 4-6-1975, the permits of the third respondent had been cancelled. however, the revisions filed there against by the third respondent were allowed. the appellant herein filed a writ petition before this court which was allowed. the matter was carried up to the supreme court and ultimately the slp filed by the third respondent was dismissed. several writ petitions were filed before this court relating to curtailment or extension of route with which we are not concerned. the learned single judge, in his order which is impugned herein, has inter alia held that cancellation of a permit on the ground of contravention of the provisions of the act stand on a different footing than the refusal to grant renewal. the learned single judge relying on or on the basis of section 81(4)(a) and (b) of the 1988 act held that an application for renewal can be rejected only on the ground specified therein. on the aforementioned findings, the writ petitions were allowed. 9. grant of a permit simplicitor was provided for under chapter iv of the act whereas grant of permit on nationalised route is covered by chapter iv-a thereof. after coming into force of motor vehicles act, 1998 the matters relating to control oftransport is dealt with in chapter vi whereas nationalisation of routes by reason of approval of the scheme in favour of the state road transport corporation is provided for in chapter vi-a thereof. a full bench of this court in k. pamanna (supra) relying on or on the basis of several decisions of the apex court including adarsh travels bus service v. state of u.p., : air1986sc319 , held that when a scheme is approved, no variation or extension of permit in the route is permissible. the matter may, however, be different when the scheme is in draft stage. 10. renewal is a fresh grant. a permit-holder may have a right of renewal, but before such a right is exercised and an order of renewal is passed, the restriction imposed in terms of the provisions of the act must be borne in mind by the competent authority. renewal of motor vehicle permit, it is trite, is not automatic. 11. extension of route of grant of renewal after the approve scheme came into force on 4-6-1975 was illegal. apart from the aforementioned full bench judgment that we have referred to hereinbefore in k. pamanna (supra), in mohd. yousuf basha v. a.p.s.r.t.c., 1979 (2) an.wr 403, wherein the parties are the same as before us choudary, j. speaking for the division bench inter alia held: as the granting of a variation of a route certainly amounts to granting of an authorization in relation to a route or a portion thereof, we are of the clear opinion that such an act is forbidden by section 68-f (1-d) notwithstanding the fact that under the provisions of the act occurring in parts other than chapter iv-a the variation of a route is treated merely as an alteration of condition of the permit. 12. the orders impugned in the writ petitions are on the same grounds whereinreliance has been placed on the aforementioned judgment. 13. in the aforementioned backdrop, the submission of mr. venkataramana may be considered. an order which is wholly without jurisdiction is void. it may be true that an invalid order is also required to be set aside. the aforementioned proposition of law is supported on the premise that even an invalid order may be valid for one purpose and invalid for another purpose. in the instant case, however, we are faced with a different situation. the invalid order by way of renewal of permit is no longer existing. the sole question thus which arises for consideration is as to whether the illegality or invalidity would be allowed to perpetuate despite the said order has lapsed by efflux of time. upon the expiry of time during which the invalid order operated, it is non-est in the eye of law. it is one thing to say that an invalid order is required to be set aside by a competent authority, but it is another thing to say that an illegality or invalidity should not be allowed to perpetuate after the said order became non-est in the eye of law. renewal of permit of the third respondent is a fresh grant. the impugned order, therefore, has not been passed as a valid order which was allowed to be continued. at the time of fresh grant, the question as to whether such permit had been granted or not, although is required to be considered by the competent authority it is not so in the instant case. in gajraj singh (supra), it has been held: since the appellants had obtained permits by mistake of the law and misconception of law on the part of the competent authorities applied under section 81 and had been granted renewal of their respective permits under section 81 after 1-7-1989, such grant of renewal of the permits should be treated to be temporary permits under section 87 of the act. therefore, the private operators, be theycovered by chapter v or vi, should apply for and obtain afresh permits before the expiry of the period mentioned in their respective permits or renewed for consideration under section 71 and grant under section 72 of the permits afresh consistently with section 2(31) of the act. such permit alone would be a permit defined in section 2(31) of the act. thereafter, before expiry thereof, they shall apply for and the sta/rta person/authority concerned may grant or refuse: renewals of permit for reasons to be recorded under section 81 of the act. 14. in the aforementioned case the supreme court also held that discretion given by a statute connotes making a choice between competing considerations according to rules of reason and justice and not arbitrary or whim but legal and regular. sections 70 and 71 read with section 81 do indicate that grant of permit or renewal thereof not a matter of right or course. it is subject of rejection for reasons to be recorded in support thereof. therefore, right to renewal of a permit under section 81 is not a vested or accrued right but a privilege to get renewal according to law in operation and after compliance with the preconditions and abiding the law. it was further held that there is a distinction between right acquired or accrued, and privilege, hope and expectation to get a right. a right to apply for renewal and to get a favourable order would not be deemed to be a right accrued unless some positive acts are done, before repeal of act 4 of 1939 or corresponding law to secure that right of renewal. 15. in the aforementioned situation, we may now consider the decision relied upon by mr. venkataramana. 16. in jayarama naidu (supra), the question was, during the pendency of the draft scheme, whether variation could be granted. in that case, draft scheme had notbeen finalised. in the instant case, the approved scheme had come into force. 17. in veera raghavaiah (supra), a division bench of this court has inter alia held that even a void order can be attacked in a collateral proceeding. the said decision runs counter to the submission of mr. venkataramana. in pamanna (supra), a full bench of this court also held: once a scheme is published under section 68-d of the act, the area to which it relates is called 'notified area' and the route to which it relates is called 'notified route'. sri g. suryanarayana, learned counsel, who led the arguments on behalf of the private operators, contended that what is prohibited by section 68-ff of the act is only 'granting of any permit' but not 'variations of the conditions of permit'. in view of the aforesaid decision of the supreme court (adarsh travels), it is not possible to accept the contention of the learned counsel for the private operators. it is clear from the above that after the approved scheme is published the embargo under sec 68-ff of the act . operates even to the grant of variations of a permit in respect of any notified area or notified route, except in accordance with the provisions of the scheme. 18. the submission of mr. venkataramana to the effect that clause (4) of the note appended to g.o.ms. no. 735, dated 3-6-1975 would enable the third respondent to obtain renewal of permit. the said note provides that the existing holders of stage carriage permits in respect of such route or routes, which partially overlap the proposed route, are not affected by the approved scheme. such a scheme must be interpreted strictly. what is stated by the aforementioned scheme is, the existing holders of stage carriage permits are notaffected, and it does not speak of new stage carriage permits which have come up or renewal of existing stage carriage permits. the stage carriage permits which existed at the time of publishing the scheme are only not affected by the said scheme. in other words, clause (4) of the note applies to the stage carriage permits existed at the time of publication of such notification only and not the permits granted at that time or renewal thereof or otherwise. 19. in view of the foregoing discussion, the findings of the learned single judge, as noticed hereinabove, must be held to be clearly erroneous having regard to the full bench decision of this court k. pamanna (supra) as also the decisions of the apex court as noticed hereinbefore. in section 81(4)(b) of the 1988 act, nowhere is stated that the renewal should be granted automatically. such finding, clearly is contrary to the decision of the apex court in gajraj singh (supra). 20. for the reasons aforementioned, the writ appeals are to be allowed and they accordingly allowed. however, in the facts and circumstances of the case, there shall be no order as to costs.