The Buwani Khera Co-operative Transport Society Limited Vs. the General Manager, Haryana Roadways - Court Judgment

J.S. Khehar, J.

1. The petitioners in this case are Cooperative Transport Societies. Their buses have permits to operate in district Bhiwani. The present controversy relates to the extension of the route originally allotted to the petitioners (by State Transport Authority) through the order dated 11.8.2002. Suffice to it state that the original permit granted to the petitioners authorizing them to operate on the Tosham to Devrala via Dhani, Mahu, Shimli, Sungerpur route was extended vide an order dated 12.8.2002 up to Badhra. After the extension of the route, the buses of the petitioners could ply from Tosham to Badhra vis Dhani, Mahu, Shimli, Sungerpur, Jui. The order dated 12 8.2002, passed by the State Transport Authority, needs to be extracted in this order; since it would have a bearing on the final determination of the controversy. The same, is therefore, reproduced hereunder:

Extension granted to the Buwani Khera Cooperative Transport Society, Bhiwani.

2. The society has made a demand for extension of 29 kms in its original route from Sungarpur to Badhra. The extension is granted to the society on this condition that the society will not leave any village of its original route. Besides this, the District Transport Officer shall issue offer letter only after verification of the distance.

Extension granted to the Bapora Trishul Co-operative Transport Society Limited, Bhiwani.

3. The society had earlier taken extension of 10 Kms from Devrala to Dighava which the society wants to leave. The society is granted permission to leave the earlier extension and granted extension of 29 KMs from Sungerpur to Badhra on the condition that it will not leave any village on its original route. Besides this, the District Transport Officer shall issue offer letter only after verification of the distance.

4. It is apparent from the order passed by the State Transport Authority, that the extension of the route, allowed to the petitioner, would take effect only after the verification of the distance of the extended route. For the aforesaid purpose, the State Transport Authority had directed the District Transport Officer, Bhiwani, to issue an offer letter to the petitioners only after satisfying himself that the extended route does not exceed 29 kilometers. It would be pertinent to mention, that under the one time option policy issued by the State Government, extension of a route could be allowed only up to 24 kilometers, and in addition thereto, a further five kilometers for the sole purpose of linking the terminating point of the route with an adjoining town for the convenience of the passengers.

5. The District Transport Officer in continuation of the order dated 12.8.2002 issued two separate orders, authorizing the extension of the permit to the petitioners up to the limits envisaged by the order dated 12.8.2002. The two orders passed by the District Transport Officer in favour of the petitioners have been placed on record as Annexres P-10 and P-11 respectively. The aforesaid orders are dated 9.9.2002. Interestingly, the District Transport Officer, Bhiwani did not record any findings in the aforesaid orders expressing, whether or not, the extension allowed to the petitioners satisfied the limit of 24/29 kilometers envisaged under the one time option policy of the State Government. The order passed in favour of the petitioners being identical, it would suffice to extract only one of the said orders herein. The relevant portion of Annexure P-10 is accordingly, reproduced hereunder:

Your application for the increase/alteration of route from Sungerpur to Badhra on the above noted subject has been considered by the State Transport Authority and the extension/alteration has been granted on the following conditions:

So if you are interested in the above said increase, you have to complete the below given formalities :

1. After the increase, on full body bus Rs. 20,000/- per month and on Mini Bus Rs. 14,000/- per month as passenger tax will have to be paid. If you are interested to take the above said increase, you will have to deposit the present full passenger tax and 50% of the advance passenger tax and proof thereof should be attached with the acceptance letter. Besides, a certificate from the Excise and Taxation Department regarding the total payable tax shall also be attached.

2. Proof of deposit of road tax. If any kind of road tax is due then proof of deposit of that road tax and 50% of the quarterly road tax will be produced and the total road tax payable shall be got assessed and proof thereof attached.

3. Proof of deposit of Adda fee and if Adda fee is due then proof of deposit of 50% of monthly installment.

4. Affidavit with regard to the above said conditional should be produced Specimen of the affidavit is attached.

So if you are interested to accept the above said extension/alteration with the conditions as set out by the State Transport Authority, you should submit your acceptance letter with the duly attested affidavit as per specimen after depositing the amount as stated above within 15 days of the receipt of this letter so that new power could be issued to you.

Sd/-

District Transport Officer-Cum-

Regional Transport Authority

Bhiwani

It is only on the receipt of the orders dated 9.9.2002 that the petitioners commenced to operate their buses on the extended route.

6. From the pleadings of the instant writ petition, it emerges that notices dated 29.9.2003 were served on the petitioners informing them, that the extension of the route from Sungerpur to Badhra was beyond the 24/29 kilometers, and therefore not in consonance with the one time option policy of the state Government. In fact, by the aforesaid show cause notices, the petitioners were informed, that the extension allowed to them was up to 34 kilometers. The distance of the extended route was determined on the basis of inquiries made by the Chairman, Regional Transport Authority, Bhiwani himself, from the Superintending Engineer, PWD (B&R;), Bhiwani, as also from the District Transport Officer, Bhiwani, (who had ascertained the details in respect of the extension in route by visiting the office of the Superintending Engineer, PWD (B&R;), Bhiwani).

7. After the issuance of the aforesaid notices to the petitioners, the impugned order dated 30.10.2003 was passed by the Chairman, Regional Transport Authority, Bhiwani wherein the Chairman of the Regional Transport Authority, Bhiwani arrived at the definite conclusion that the extension in the route permit granted to the petitioners was 30.95 kilometers, and as such, not in consonance with the maximum extension permissible under the one time option policy of the State Government. This order came to be passed by the Chairman of the Regional Transport Authority, in exercise of powers vested in the Regional Transport Authority, under Section 72(2)(xxii) (a) of the Motor Vehicles Act, 1988 (hereinafter referred to as an 'Act').

In order to assail the impugned order dated 30.10.2003 (Annexure P-8), (earned counsel for the petitioners has raised two jurisdictional issues. Firstly that there is no power of review expressly vested in any authority under the provisions of the Act, and as such, after extension in their route permits had been granted to the petitioners vide orders dated 12.8.2002 and 9.9.2002, the same could not be varied or reviewed. Secondly, that the Regional Transport Authority comprises of two members, namely, the Director Transport as Chairman of the Regional Transport Authority, and the District Transport Officer as Member Secretary of the Regional Transport Authority. It is pointed out that the impugned order dated 30.10.2000 have not been passed only by the Chairman, Regional Authority, Bhiwani cannot be deemed to be an order of the Regional Transport Authority.

8. In order to canvass the first proposition, learned Counsel for the petitioners has invited our attention to the decision rendered by the Division Bench of the Court in State Transport Commissioner, Punjab v. New Samundri Transport Company (Private) Limited Letters Patent Appeal No. 716 of 1996 decided on 6.5.1997. Learned Counsel for the petitioners has empathetically relied on the following observations recorded therein:

Learned counsel for the appellants relied on Mithilesh Garg v. Union of India and Ors. : AIR1992SC443 and Trilochan Singh Maddan v. State of Punjab and Ors. 1996(1) S.C.T. 628. The conspectus of law in National Cooperative consumer Federation of India v. The market Committee, Bhiwani and Ors. , Gowrishankar and Anr. v. Joshi Amba Shankar Family Trust and Ors. : [1996]2SCR949 emerges that; the power of review like any other power of appeal or revision must be conferred by law; (2) that the quasi-judicial authority cannot review its own order unless the power of review is expressly conferred upon it by the statute under which it derives its jurisdiction and (3) it has become axiomatic that the law should be certain, settled and consistent even if wrong unless it is powers so that the citizens can settle their dispute or matters; it cannot be kept uncertainty for time immemorial; (4) finality of the order has to be adhered to in a civilized society. It is only on account of legislative act or change in policy by the State involving the public interest or for similar or pan maleria reasons that the settled things can be unsettled. Settled things cannot be upset on the drop of a hat or merely articulative of the objections of the law. This golden principle that a person cannot be vexed on the same question twice has even been recognized by the Constitution of India. The authorities cannot try the same issue on the same question of fact between the same parties again and again at their sweet will and keep the Domocles's sword hanging over the parties heads.

9. To canvass the same proposition, learned Counsel for the petitioners has also relied on a Full Bench judgment of this Court in Deep Chand and Ors. v. Additional Director, Consolidation of Holdings, Punjab and Anr. A.I.R. 1964 Punjab 249 wherein this Court observed as under:

(18) The contention that power to recall an erroneous order is distinct and different from power of review and is, therefore, inherent in every quasi judicial tribunal, is supported neither by statute nor by any recognized principle or precedent, and indeed the difference appears to be too tenuous to form the basis of a sound argument. In the absence of statute, persuasive principle or binding authority, I am, as at present advised, unable to persuade myself to sustain the bald contention, for in my view, power to recall an order like the one before us is only another name for the power to review it, and, therefore, cannot, be claimed as a separate and distinct jurisdiction as suggested.

10. Reliance has also been placed on the decision rendered by the Apex Court in Patel Narshi Thakeri and Ors. v. Pradyurnansinghji Arjunsinghji : AIR1970SC1273 , wherefrom learned Counsel for the petitioners invited our attention to the observation made in paragraph 4 of the said judgment, which is being extracted hereunder:

4. The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr. Mankodi was functioning as. the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a view of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence, the same cannot be ignored. The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Manodi was liable to be set aside.

11. Reliance was last of all placed on a judgment rendered by a Division Bench of this Court in Jaidev Singh v. State of Haryana (1982)2 I.L.R. Punjab and Haryana 442 wherein the judgment referred to above had been considered and it was concluded as under:

One of the first and highest duties of all courts is to take care that the Act of the Court does no injury to any of the suitors. To say that we are aware, is not to say that whenever a Court after wrongly deciding a case between two parties discovers that the decision was wrong it has the inherent jurisdiction to re-open the matter and to set matters right by altering the decision. In many cases when the Court had made a mistake the party who has suffered for that mistake is without any remedy except what he can get in accordance with the provisions of appeal, revision or review. As the Courts are careful to point out again and again, Courts of Law have the jurisdiction to decide wrongly as well as rightly and the mere fact that the decision is wrong does not give a party a remedy. 'These observations, in my opinion, clearly negative any inherent power of jurisdiction in a judicial, and if I may so with respect also in quasi judicial tribunal, to re-open a decided cause and set matters right by altering the decision merely on discovering an error in it on the merits.

To concede such a wide power of review would in my opinion, introduce into judicial and quasi judicial decisions, disconcerting element of permanent uncertainty and unpredictability tendering to give an impression of quasi judicial lawlessness, which I cannot persuade myself to uphold. If courts do not possess such a wide and sweeping power it is difficult to accede such a wide power in statutory judicial or quasi-judicial tribunals.

Hence, the State Government or the State Transport Commissioner has no authority even to recall the previous order.

12. In sum and substance on the basis of the judgments referred herein above, it is empathetically submitted that unless the powers of review has been expressly vested under a statutory provision, the same cannot be exercised by any authority, even to correct or modify an earlier order passed by it, in exercise of the statutory authority expressly vested in it. A perusal of the impugned order reveals that the same was passed in exercise of authority vested under Section 72(2)(xxii), which is being reproduced hereunder:

72. Grant of stage carriage permits.- (1) Subject to the provisions of Section 71, a Regional Transport Authority may, on an application made to it under Section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:

Provided that no such permit shall be granted in respect of any route or area not specified in the application.

(2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage or a specified description and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely;

(xxii) that the Regional Transport Authority may, after giving notice of not less than one month-

(a) vary the conditions of the permit;

(b) attach to the permits further conditions:

Provide that the conditions specified in pursuance of Clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometers, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so - varied or any part thereof.

It is apparent from Sub-clause (xxii) of Section 72(2) that the Regional Transport Authority has jurisdiction, inter alia, to vary the conditions of a permit. It is clear from a perusal of Section 72(2)(i), that the area for which a permit is granted, as well the route or routes specified in the permit, constitute a condition of the permit. Thus, viewed, there is no doubt that an alteration in the route assigned to an Operator can varied by the Regional Transport Authority in exercise of statutory power expressly vested in it under Section 72(2)(xxii) of the Act. Since, as noticed hereinabove, specific authority has been vested in the Regional Transport Authority to pass such an order, as the impugned order in the instant case, we are of the opinion, that the judgments relied upon by learned Counsel for the petitioners are clearly inapplicable to the present controversy. In none of the judgments cited by him, the aforesaid provision has been taken into consideration, nor was it the case of the parties in the cases referred to, that there was any express authorization which permitted the concerned Authority to pass an order reviewing its earlier decision. The conceded position, in all the judgments relied upon by the learned Counsel for the petitioners was, that there was no express provision authorizing the review of the determination rendered by the different authorities involved. In view of the express authorization contained in Section 72(2)(xxii) of the Act, we find no merit in the first contention of the learned Counsel for the petitioners.

13. In so far as second contention is concerned, namely, whether or not the Chairman of the Regional Transport Authority could have passed the impugned order by himself, on behalf of the Regional Transport Autnority, it is the vehement contention of the learned Counsel for the respondents, that the impugned order was actually and factually never passed by the Chairman of the Regional Transport Authority, Bhiwani, Reading extensively from the impugned order dated 30.10.2003, learned Counsel for the respondents referred to the factual position depicted in paragraph 3 of the said order to show, that the impugned order came to be passed only after the District Transport Officer, Bhiwani (who is the Member Secretary of the Regional Transport Authority, Bhiwani) had informed the Chairman of the Regional Transport Authority, Bhiwani, that the distance of the extended route was beyond the permissible limited of 24/29 kilometers. Learned Counsel for the respondent has also invited our attention to the factual position narrated in paragraph 5 of the impugned order, wherein it is asserted that the order had been issued with the concurrence of the District Transport Officer, Bhiwani-cum-Member Regional Transport Authority, Bhiwani.

Despite the aforesaid submissions advanced on behalf of the learned Counsel for the respondents, learned Counsel for the petitioners has invited the attention of this Court to the joint written statement filed on behalf of respondents No. 2 to 4, wherein, in paragraph 20(vii), it was averred as under:

That Para No. 2C(vii) of the petition is wrong and hence denied. State Transport Authority is higher authority of Secretary Regional Transport Authority, Bhiwani. However, the Chairman Regional Transport Authority and Regional Transport Authority, Bhiwani are one person, so the extension granted can be cancelled by the Chairman Regional Authority, Bhiwani, under Section 86 of Motor Vehicle Act, 1988.

14. It is submitted by the counsel for the petitioners, on the basis of the part of the reply extracted above, that the impugned order dated 30.10.2003 was passed by the Chairman of the Regional Transport Authority, Bhiwani by himself without associating the District Transport Officer, Bhiwani. It is further the case of the learned Counsel for the petitioners, that even if the District Transport Officer, Bhiwani had made certain inputs available to the Chairman of the Regional Transport Authority, Bhiwani, on the basis of which notices were issued to the petitioners under Section 72(2)(xxii), it was imperative for both the members of the Regional Transport Authority, to consider the response of the petitioners to the said show cause notice. It is submitted that there is no material on the record of this case to establish, that the District Transport Officer, Bhiwani, ever applied his mind to consider the reply submitted by the petitioners to the show cause notice dated 29.9.2003, or that he was a party to the final determination.

15. In order to substantiate, that an order validly passed by the Regional Transport Authority, must be an order passed by both members of the Regional Transport Authority i.e. The Chairman, as well as, the Member Secretary thereof, learned Counsel for the petitioners placed reliance on a decision rendered by a Division Bench of this Court in The New Krishna Co-operative Transport Society Limited v. State of Haryana and Ors. C.W.P. No. 3583 of 2003, decided on 2.9.2003 wherein this Court recorded the following conclusions:

We have thoughtfully considered the respective submissions. A reading of notification Annexure P6 dated 20.9.2002 shows that in compliance of directions given by the Supreme Court in Civil Appeal No. 6974 of 2001, decided on 9.7.2002 -The Mor Modern Cooperative Society Ltd. v. State of Haryana and Ors. : [2002]SUPP1SCR87 and in exercise of the powers conferred upon it by Sub-section (1) and Clause (i) of the second proviso to Sub-section (2) of Section 68 of the Act. The State Government superseded notification dated 20.2.2001 and constituted Regional Transport Authorities for various regions including Ambala, Karnal and Kurukshetra consisting of Director, Transport, Haryana (as Chairman) and District Transport Officer (as Secretary) to exercise and discharge the powers and functions conferred by or under chapter-V of the Act on such authorities for the area specified in the notification. Therefore, respondent No. 2 alone did not have the jurisdiction to pass order on the applications filed by the petitioner for grant of permits on Ambala City to Karnal, Ambala City to Kaithal, Naraingarh to Ambala routes and orders Annexure P5 and R-II are liable to be quashed on this ground alone

16. Having heard the learned Counsel for the rival parties in respect of the second contention, advanced on behalf of the petitioners, we are satisfied that the impugned order dated 30.10.2003 was passed singularly by the Chairman of the Regional Transport Authority, Bhiwani. There is no material on the record of this Court to show, that the District Transport Officer, Bhiwani exercised his authority as Member Secretary of the Regional Transport Authority along with the Chairman of the Regional Transport Authority when the impugned order dated 30.10.2003 was passed. In fact, there is no material on the record of this case to show any consideration at the hands of the District Transport Officer, Bhiwani after the show cause notice dated 29.9.2003 was issued under Section 72(2)(xxii) of the Act to the petitioners. We are satisfied that the Chairman of the Regional Transport Authority, Bhiwani had no jurisdiction to pass the order dated 30.10.2003, singularly, on behalf of the Regional Transport Authority, Bhiwani in view of the decision rendered by this Court in The New Krishna Cooperative Society Limited's case (supra). The impugned order dated 30.10.2003 is, therefore, liable to be set aside, and is accordingly, set aside.

17. Since the impugned order, has been set aside, only for reason of a jurisdictional error, we consider it just and fair to direct the Regional Transport Authority, Bhiwani, to reconsider the entire issue and pass a fresh order in accordance with law, after affording the petitioners an opportunity of hearing. The petitioners shall obviously have the right to establish before the Regional Transport Authority, Bhiwani that the extended permit does not exceed the prescribed limits contained in the one time option policy of the State Government. The petitioners by themselves, or through their authorized representatives, shall appear before the Regional Transport Authority on 23.1.2006, for which the Chairman of the Regional Transport Authority, shall fix a meeting of the Regional Transport Authority, Bhiwani, on 23.1.2006. The final order on the issue, shall be passed by the Regional Transport Authority, Bhiwani, positively within one month thereafter.

18. Despite the fact that the impugned order dated 30.10.2003 has been quashed, we consider it just and appropriate to restrain the petitioners from operating on the extended route till the final order is passed, by the Regional Transport Authority, Bhiwani. Our aforesaid determination is based on the fact, that it is averred in the impugned order, that the extension granted to the petitioners was in contravention of the one time option policy of the State Government, inasmuch as, under the aforesaid policy, maximum extension up to 24/29 kilometers can be granted, whereas, the extension granted to the societies in the present case is stated to be of 30.95 kilometers. No material has been placed in record of this case, by the petitioners, to controvert the aforesaid factual determination at the hands of the respondents. However, as a safe-guard, we have now permitted the petitioners to establish the correct factual position, in connection with the distance of the extended route, before the Regional Transport Authority, Bhiwani.