M/S. Sky Highways Pvt. Ltd. Vs. the State Transport Appellate Tribunal, Punjab and Another - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the petitioner as well as respondents no. 47 of the motor vehicles act, 1939, the petitioner could have served the interests of the public better than the respondent. pab 1777. in fact, the certificate issued by the registering authority clearly shows that the bus had been transferred by the respondent in the name of m/ s. pathela has placed strong reliance on the affidavit of mr. even otherwise, for reasons best known to the respondent, the original affidavit has not been produced but only a true copy thereof has been attached with the written statement.order1. the petitioner is aggrieved by the order of the state transport appellate tribunal, punjab, by which it has varied the order of the state transport commissioner.a few facts may be noticed.2. on november 1, 1987, the state transport commissioner issued a notice inviting applications for the grant of two permits with return trips on the thein dam --amritsar route. the petitioner as well as respondents no. 2 applied for the grant of permits aiong with various other applicants. on september 17, 1988, the state transport commissioner considered the claims of various applicants. it granted one return trip to the petitioner. none was granted to respondent no. 2. the respondent along with various other aggrieved parties filed an appeal before the tribunal. vide order dated august 27, 1990, the tribunal has varied the order of the state transport commissioner and ordered that the petitioner shall be granted half return trip instead of one return trip and half return trip shall be granted to respondent no. 2. aggrieved by this order, the petitioner has approached this court through the present writ petition. the order of the tribunal has been challenged primarily on the ground that if suffers from an error apparent on the record in as much as the finding that the respondent had bus no. pab 1777, isvirtually based on non-existent assumption. it has also been averred that in accordance with the provisions of s. 47 of the motor vehicles act, 1939, the petitioner could have served the interests of the public better than the respondent.3. in the written statement filed on behalf of respondent no. 2, the claim of the petitioner has been controverted. it has been inter alia averred that the respondent had been granted a temporary permit on january 22, 1987 when it had purchased a bus. however, on account of the permit having expired, the bus in question was transferred temporarily. along with the written statement, an affidavit of mr. sukhdev singh, director.of m/s. new janta bus service pvt. ltd., batala, has been produced as annexure r-1. on these pre-mises, it has been prayed that there is no merit in this petition and may be dismissed with 4. i have heard learned counsel for the parties.5. mr. mahesh grpver, learned counsel for, the petitioner. has made a two-fold submission. firstly, he contends that a permit is normally granted to a person who is in a position to provide efficient service to the travelling public. according to the learned counsel, respondent no. 2 did not have any bus either on september 17, 1988 when the state transport commissioner had considered the matter or on august 27, 1990 when the appellate tribunal had decided the appeal. learned counsel submits that since the respondent was not having any bus at the relevant time, the finding recorded by the tribunal that the bus was standing idte was wholly incorrect and the order is consequently vitiated. on the other hand, mr. s. c. pathela, learned counsel for respondent no. 2 contends that bus no. pab 1777 is in lact owned by the respondent. it has been leased out in m/s. new janta bus service pvt. ltd., batala. he also submits that according to the affidavit filed by the director of the said company, the respondent can retrieve this bus at any time.6. the petitioner has made a categoricalaverment in paragraph 11(i) of the petition that bus no. pab 1777 is not in possession of respondent no. 2. reference has also been made to the certificate issued by the registering authority (mv), amritsar to the effect that 'bus no. pab 1777 was originally registered in the name of m/s. new united transport (p) ltd., amritsar. after that it was transferred in the name of m/s. tiwana pehalwan transport co. regd., amritsar. on 29-6-1988, this bus has been transferred in the name of m/s. new janta bus service (p) ltd., batala as per order of r.t.a., jalandhar no. 1380 dated 5-2-87. as per record of this office, no bus in the name of m/s. tiwana pehalwan transport co. regd., amritsar stands registered in this office at this stage.' this certificate was given on an application dated august 30, 1990 filed by the petitioner. it has been further averred that 'neither at the time of grant of permit by the state transport commissioner nor at the time of the dismissal of the appeal was he (respondent no. 2) in possession of bus no. pab 1777'. in reply to these averments, it has been averred by the respondent that the bus has been temporarily transferred in the name of m/s. new janta bus service pvt. ltd., batala. without going into the nature of transfer, the fact remains that neither on september 17, 1988 nor on august 27, 1990, the respondent was in possession of bus no. pab 1777. in fact, the certificate issued by the registering authority clearly shows that the bus had been transferred by the respondent in the name of m/ s. new janta bus service pvt. ltd., batata on june 30, 1988. that being so, the finding recorded by the tribunal is apparently contrary to record and cannot be sustained.7. mr. pathela has placed strong reliance on the affidavit of mr. sukhdev singh, director of m/s. new janta bus service pvt. ltd. a perusal of this affidavit shows that no date is mentioned thereon. it is not known as to when this affidavit was signed or attested. even otherwise, for reasons best known to the respondent, the original affidavit has not been produced but only a true copy thereof has been attached with the written statement. further more, it has been stated in this affidavit that 'bus no. pab 1777 ofm/-s. tiwana pehalwan transport co. regd. amritsar has been taken by us on hire and the same has been got transferred in the name of m/s. new janta bus service pvt. ltd., batala'. the affidavit goes on to mention that the bus is returnable to m/s. tiwana pehalwan transport co. regd. amritsar as and when needed.8. at this stage, mr. pathela has stated that the original affidavit of which r-1 is a cony is in his brief and a perusal thereof shows that mr. sukhdev singh had been identified on july 29, 1988. on this premises, learned counsel seeks to contend that the affidavit had been executed on july 29, 1988; even if it is assumed to be so, it is clear that bus had been transferred by the respondent on or before july 29, 1988. it did not have the bus in its possession on september 17, 1988 when the state transport commissioner had decided the case or on august 27, 1990 when the appellate tribunal had passed the impugned order.9. still further, there is nothing on record, not even a bare averment, that the respondent has retrieved the bus from m/s. new janta bus service pvt. ltd., batala. in this situation, it is apparent that the finding of the appellate tribunal that the respondent's bus was standing idle suffers from an error apparent on record and cannot be sustained.10. mr. pathela also contended, that oneof the partners of respondent-firm is an ex-serviceman and the other partners are unemployed graduates. he also points out that one of the partners of the firm has a driving licence for a heavy transport vehicle. on this basis, learned counsel submits that the respondent was in fact entitled to be preferred to the petitioner. even if all these matters are assumed to be correct, the possession of a bus is a necessary pre-requisite for providing efficient transport service to the travelling public. apparently, the respondent does not possess any bus. till, then, it can have no claim to the grant of any preferential treatment.11. in view of the above, the writ petition is allowed. the impugned order in so faras it relates to the petitioner is set aside. theorder passed by the state transport commissioner granting one return trip on thetehin dam-amritsar route, is restored. in thecircumstances of the case, there will bo noorder as to costs. 12. petition allowed.

Judgment:
ORDER

1. The petitioner is aggrieved by the order of the State Transport Appellate Tribunal, Punjab, by which it has varied the order of the State Transport Commissioner.A few facts may be noticed.

2. On November 1, 1987, the State Transport Commissioner issued a notice inviting applications for the grant of two permits with return trips on the Thein Dam --Amritsar route. The petitioner as well as respondents No. 2 applied for the grant of permits aiong with various other applicants. On September 17, 1988, the State Transport Commissioner considered the claims of various applicants. It granted one return trip to the petitioner. None was granted to respondent No. 2. The respondent along with various other aggrieved parties filed an appeal before the Tribunal. Vide order dated August 27, 1990, the Tribunal has varied the order of the State Transport Commissioner and ordered that the petitioner shall be granted half return trip instead of one return trip and half return trip shall be granted to respondent No. 2. Aggrieved by this order, the petitioner has approached this Court through the present writ petition. The order of the Tribunal has been challenged primarily on the ground that if suffers from an error apparent on the record in as much as the finding that the respondent had Bus No. PAB 1777, isvirtually based on non-existent assumption. It has also been averred that in accordance with the provisions of S. 47 of the Motor Vehicles Act, 1939, the petitioner could have served the interests of the public better than the respondent.

3. In the written statement filed on behalf of respondent No. 2, the claim of the petitioner has been controverted. It has been inter alia averred that the respondent had been granted a temporary permit on January 22, 1987 when it had purchased a Bus. However, on account of the permit having expired, the BUS in question was transferred temporarily. Along with the written statement, an affidavit of Mr. Sukhdev Singh, Director.of M/s. New Janta Bus Service Pvt. Ltd., Batala, has been produced as Annexure R-1. On these pre-mises, it has been prayed that there is no merit in this petition and may be dismissed with

4. I have heard learned counsel for the parties.

5. Mr. Mahesh Grpver, learned counsel for, the petitioner. has made a two-fold submission. Firstly, he contends that a permit is normally granted to a person who is in a position to provide efficient service to the travelling public. According to the learned counsel, respondent No. 2 did not have any Bus either on September 17, 1988 when the State Transport Commissioner had considered the matter or on August 27, 1990 when the appellate Tribunal had decided the appeal. Learned counsel submits that since the respondent was not having any Bus at the relevant time, the finding recorded by the tribunal that the Bus was standing idte was wholly incorrect and the order is consequently vitiated. On the other hand, Mr. S. C. Pathela, learned counsel for respondent No. 2 contends that Bus No. PAB 1777 is in lact owned by the respondent. It has been leased out in M/s. New Janta Bus Service Pvt. Ltd., Batala. He also submits that according to the affidavit filed by the Director of the said Company, the respondent can retrieve this Bus at any time.

6. The petitioner has made a categoricalaverment in paragraph 11(i) of the petition that Bus No. PAB 1777 is not in possession of respondent No. 2. Reference has also been made to the certificate issued by the Registering Authority (MV), Amritsar to the effect that 'Bus No. PAB 1777 was originally registered in the name of M/s. New United Transport (P) Ltd., Amritsar. After that it was transferred in the name of M/s. Tiwana Pehalwan Transport Co. Regd., Amritsar. On 29-6-1988, this Bus has been transferred in the name of M/s. New Janta Bus Service (P) Ltd., Batala as per order of R.T.A., Jalandhar No. 1380 dated 5-2-87. As per record of this office, no bus in the name of M/s. Tiwana Pehalwan Transport Co. Regd., Amritsar stands registered in this office at this stage.' This certificate was given on an application dated August 30, 1990 filed by the petitioner. It has been further averred that 'neither at the time of grant of permit by the State Transport Commissioner nor at the time of the dismissal of the appeal was he (respondent No. 2) in possession of Bus No. PAB 1777'. In reply to these averments, it has been averred by the respondent that the Bus has been temporarily transferred in the name of M/s. New Janta Bus Service Pvt. Ltd., Batala. Without going into the nature of transfer, the fact remains that neither on September 17, 1988 nor on August 27, 1990, the respondent was in possession of Bus No. PAB 1777. In fact, the certificate issued by the Registering Authority clearly shows that the Bus had been transferred by the respondent in the name of M/ s. New Janta Bus Service Pvt. Ltd., Batata on June 30, 1988. That being so, the finding recorded by the Tribunal is apparently contrary to record and cannot be sustained.

7. Mr. Pathela has placed strong reliance on the affidavit of Mr. Sukhdev Singh, Director of M/s. New Janta Bus Service Pvt. Ltd. A perusal of this affidavit shows that no date is mentioned thereon. It is not known as to when this affidavit was signed or attested. Even otherwise, for reasons best known to the respondent, the original affidavit has not been produced but only a true copy thereof has been attached with the written statement. Further more, it has been stated in this affidavit that 'Bus No. PAB 1777 ofM/-s. Tiwana Pehalwan Transport Co. Regd. Amritsar has been taken by us on hire and the same has been got transferred in the name of M/s. New Janta Bus Service Pvt. Ltd., Batala'. The affidavit goes on to mention that the bus is returnable to M/s. Tiwana Pehalwan Transport Co. Regd. Amritsar as and when needed.

8. At this stage, Mr. Pathela has stated that the original affidavit of which R-1 is a cony is in his brief and a perusal thereof shows that Mr. Sukhdev Singh had been identified on July 29, 1988. On this premises, learned counsel seeks to contend that the affidavit had been executed on July 29, 1988; Even if it is assumed to be so, it is clear that bus had been transferred by the respondent on or before July 29, 1988. It did not have the bus in its possession on September 17, 1988 when the State Transport Commissioner had decided the case or on August 27, 1990 when the appellate Tribunal had passed the impugned order.

9. Still further, there is nothing on record, not even a bare averment, that the respondent has retrieved the bus from M/s. New Janta Bus Service Pvt. Ltd., Batala. In this situation, it is apparent that the finding of the Appellate Tribunal that the respondent's bus was standing idle suffers from an error apparent on record and cannot be sustained.

10. Mr. Pathela also contended, that oneof the partners of respondent-firm is an ex-serviceman and the other partners are unemployed graduates. He also points out that one of the partners of the firm has a driving licence for a heavy transport vehicle. On this basis, learned counsel submits that the respondent was in fact entitled to be preferred to the petitioner. Even if all these matters are assumed to be correct, the possession of a bus is a necessary pre-requisite for providing efficient transport service to the travelling public. Apparently, the respondent does not possess any bus. Till, then, it can have no claim to the grant of any preferential treatment.

11. In view of the above, the writ petition is allowed. The impugned order in so faras it relates to the petitioner is set aside. Theorder passed by the State Transport Commissioner granting one return trip on theTehin Dam-Amritsar route, is restored. In thecircumstances of the case, there will bo noorder as to costs.

12. Petition allowed.