Sri A. Venkatesh S/O Sri Achappa Vs. the Regional Transport Authority by Its Secretary, - Court Judgment

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- order 26 & rule 9: [ashok b. hinchigeri, j] appointment of court commissioner -appointment of taluk surveyor as court commissioner for ascertaining as to in which survey number the suit schedule property is situated challenged on the ground that the appointment of the court commissioner for collecting the evidence on behalf of a party is absolutely impermissible held, the object of local inspection is not so much to obtain evidence, which from its very peculiar nature can only be had at the spot. if there is a serious dispute with regard to the area and boundaries of the land in question, the non-appointing of the court commissioner results in the serious miscarriage of justice. when the trial court, on perusing the oral and documentary evidence placed on its record, has formed the view that the matter calls for the appointment of the court commissioner, it cannot be found fault with.v. gopala gowda, j.1. these two appeals are filed - one by the transferee of the permit and another by the regional transport officer, questioning the correctness of the order passed by the learned single judge in wp 2391/2009 on 23.3.2009 in so far as the transferee is concerned in disposing of the writ petition and the appellant in the connected appeal is aggrieved of the observations made in paras 10, 11 and 12 of the order of the learned single judge and the direction issued to the principal secretary to the transport department to take disciplinary action against her. they have prayed for setting aside the order of the learned single judge by allowing the appeals by setting aside the order impugned in these appeals urging various grounds.2. these two cases were heard together at the stage of preliminary hearing and we proceed to pass the following common judgment. there is no need for us to advert to the facts in this judgment as the learned single judge has referred to the relevant facts in the impugned order.3. learned counsel sri b.r. sundararaja gupta on behalf of the transferee of the permit to ply his vehicle submits that the confirmation of the order of the karnataka state transport appellate tribunal (hereinafter called as kstat) by the learned single judge in the impugned order is illegal, unjust and it has occasioned failure of justice. therefore, the order impugned in his appeal and the order impugned in the writ petition are liable to be set aside and quashed respectively in exercise of this court's appellate jurisdiction and power.4. it is contended by the learned counsel that the learned single judge failed to take into consideration the fact that the transferee appellant is not a party in the revision proceedings initiated by the 3rd respondent herein, challenging the grant of permit in favour of original permit holder rudrappa as he had acquired the right of the permit as it was transferred to his name with effect from 31.12.2002 from the original permit holder, who is the party in the proceedings before the kstat. therefore, he is a proper and necessary party to the proceedings and without impleading him to the proceedings and giving an opportunity to defend the order of renewal in granting permit, the kstat has passed the order setting aside the renewal of the permit in favour of the transferor m. rudrappa. therefore, the order of the kstat is in violation of the principles of natural justice, though the same was brought to the notice of the learned single judge, he was not considered the same and quashed an order of the kstat challenged in the writ petition and therefore, the order challenged in the writ petition and the writ appeal are vitiated in law and liable to be quashed and set aside by this court by allowing the appeal.5. it is further contended that, the action and inaction on the part of the 1st and 3rd respondents cannot be attributed to the transferee appellant to treat him as not an aggrieved person in respect of the order of the kstat, as his renewal application for a further period of five years by the 2nd respondent in respect of the permit in question was kept pending and the order of the kstat is contrary to the notification dated 7.11.2003 published on 13.3.2003 in the karnataka gazette, wherein, the state government in exercise of its statutory power under section 102 of the motor vehicles act, 1988, has modified the earlier scheme framed by it in exercise of its power under section 68f of the repealed motor vehicles act, 1939. therefore, as on the date of the notification, the transferee or the transferor had availed the benefit of the permit to ply his vehicle on the route in question that is saved in the notification which has modified the earlier scheme - kolar pocket scheme. therefore, the impugned order of the kstat is vitiated in law. this important aspect of the matter is not examined by the learned single judge. hence, he requests this court to set aside the same and quash the order impugned in the writ petition by allowing the writ petition of the transferee appellant.6. sri m.c. narasimhan, learned senior counsel appearing for the appellant in the connected appeal, who is the regional transport officer, now working at mandya contends that the order of the learned single judge giving a direction to the principal secretary to the transport department to place her under suspension forthwith and to hold a detailed inquiry and pass orders within a period of six months by not accepting her additional affidavit dated 20.3.2009 filed before him, wherein officer has stated that the mistake committed by her was by oversight, not intentional and that she owes an unconditional apology to the court with a request to drop further proceedings against her, causes prejudice to her case if, the disciplinary authority initiates disciplinary proceedings as it is not left with anything to the disciplinary authority to conduct an inquiry regarding her action in renewing the permit in favour of the transferee appellant. therefore, he submits that the order is vitiated in law and the observation made by the learned single judge in the impugned order would certainly cause prejudice to her defence. it is further contended by him, that, while giving a direction in the impugned order by the learned single judge, he was required to make an observation that the principal secretary of the transport department shall not be influenced by the observations made in the order while initiating legal proceedings against her and, not making such an observation in the order affects her right and therefore, the observation made against her and the directions of the learned single judge to the principal secretary to conduct an enquiry are liable to be set aside by allowing her appeal.7. after hearing the learned counsel and senior counsel for the parties, we directed the addl. government advocate smt. vijaya to produce the file in relation to the grant of permit by way of renewal to find out the factual position with reference to the averments made at paras 3 and 4 of the affidavit of the appellant's officer filed in wp 2391/2009. further, by an order dated 3.9.2009 after hearing the learned senior counsel sri m.c. narasimhan in the connected appeal, learned addl. government advocate was directed to secure the records in relation to the renewal of permit in favour of the permit holder and transfer of the same in favour of the transferee appellant.8. in pursuant to the said direction, learned advocate general has made available the original records for our perusal. we have perused the same. the relevant 'notes' will be adverted to in the reasoning portion while answering the following points which are formulated in both these appeals:(i) whether the order of the kstat dated 13.11.2003 passed in revision petition 418/2000 without impleadment of the transferee appellant is in violation of the principles of natural justice and not considering this aspect, the order of the learned single judge is vitiated in law?(ii) whether the transfer of permit in favour of the transferee appellant on 31.12.2002 is by the regional transport authority of the erstwhile kolar district as per the notification dated 1.7.1989 issued by the state government is valid? if it is not a valid transfer, whether the transferee acquires any right to challenge the order of the kstat?.(iii) whether the renewal of permit (in favour of the transferee) subsequent to the order dated 13.11.2003 in favour of the transferee by the regional transport officer - appellant in the connected appeal, is in conformity with section 68 mv act by the delegated authority under rule 54 of the rules, is legal and valid?.(iv) whether the observations made at para 10, 11 & 12 of the impugned order in not accepting the affidavit of the rto - appellant in the connected appeal are made against her and direction issued to the prl. secretary to initiate disciplinary proceedings against her including to keep her under suspension and shift her from that place, is required to be expunged and set aside by this court by allowing her appeal?.9. after careful consideration of the rival legal contentions urged on behalf of the parties and perusal of the record of respondent no. 1, we have answered the above contentious points against the appellants by recording the following reasons:the points 1 to 3 are interrelated in connection with the first appeal and we answer the same together against the appellant transferee. the correctness of the grant of permit in relation to nationalised route in favour of the transferor/permit holder was rightly challenged by the 3rd respondent ksrtc as the permit granted by the rto in favour of the transferee in respect of the route to question is undisputedly a nationalised route under the kolar pocket scheme under section 68f of the repealed act. as on the date of the challenge of the order of granting permit, there was no transfer of the permit from the original permit holder in fevour of the transferee appellant. during pendency of the revision petition 418/2000 on the application filed by the transferee as could he seen from the original records. at page 13 of the original file, according to note no. 49, referred to the resolution of the rta on sab. iv 93/94 dated 21.8.2002, the grantee was directed to obtain endorsement of transfer of permit within thirty days from the date of receipt of the proceedings and the same was served on 13.12.2002 upon the appellant/transferee, the resolution referred to in the note no. 49 on the said subject by the rta is not forthcoming in the original file of the rto. further the office of the rto had out up the note regards the permit furnishing particulars in the aforesaid note and, placed the matter for orders at note no. 50. note no. 51 dated 21.12.2002 says note no. 52 says 'approved' by the rto - appellant in the connected appeal.10. section 82 of the motor vehicles act deals with the transfer of permit, which provision states that as provided under sub-section (2) of the above section. the permit shall not be transferable from one person to another except with the permission of the transport authority. transport authority' is defined under section 68 of the act which reads thus:section 68 - transport authorities:1. the state government shall, by notification in the official gazette, constitute for the state a state transport authority to exercise and discharge the powers and functions specified in sub-section (3) and shall in like manner constitute regional transport authorities to exercise and discharge throughout such areas (in this chapter referred to as regions) as may be specified in the notification, in respect of each regional transport authority; the powers and functions conferred by or under this chapter on such authorities:provided that in the union territories, the administrator may abstain from constituting any regional transport authority.1....2....3....4....5....11. the state government in exercise of its statutory power under the above provision of the act has notified the erstwhile kolar regional transport authority vide notification dated 1.7.1989. according to the said notification, the deputy commissioner of the district is the chairman, the superintendent of police is the member and the rto is the secretary. therefore, the transfer of permit from original permit holder is not in conformity with the provisions of section 82(2) r/w section 68 of the m.v. act. hence, the appellant transferee had not acquired a valid right with regard to the permit in question. in that view of the matter, the contention urged on behalf of the transferee that he has not been heard in the matter by the kstat in the revision petition filed by respondent no. 3 to set aside the renewal of the permit in favour of the transferor the original permit holder, which permit came to be transferred in favour of the appellant-transferee with effect from 31.12.2002, is wholly untenable in law as he had not acquired a statutory right by getting the permit transferred legally in his favour. therefore, learned single judge has rightly not interfered with the order though not for this reason, but the reasons assigned by him in the impugned order are different, however the conclusion arrived at by him in the impugned order on the contentious point in not interfering with the order of the kstat are legal and valid, the same are supplemented by us with our reasons as stated supra. further, as could be seen from the original file of the rto of kolar, grant of permit on 17.8.1989 in favour of the original permit holder transferor is also not by the regional transport authority as notified by the state government in the notification referred to supra under section 68(1) of the mv act. on this ground also, the order passed by first respondent has challenged before the revision authority by respondent no. 3, contending that it is a nullity in the eye of law. the secretary/rto alone could not have exercised power for grant of permit in favour of transferor original permit holder under section 68 of the mv act. further, if the rule 54 of kmv rules is contrary to the statutory provision of section 68(1) of the mv act. the above said rule is a subordinate legislation, framed by the state government in exercise of its statutory power under section 96 of mv act, the same must yield to the provisions of act. in this regard, it would be necessary for us to refer to the constitution bench judgment in the case of lohia machines ltd. v. union of india reported in : air 1985 sc 421 at para 57, wherein it has laid down the law the relevant portion of which is extracted thus:57. the proposition that the rule making authority does not have any power to encroach upon any substantive provision in the statute appears to be beyond dispute. by virtue of section 295(1) of the income-tax act, the rule making authority is empowered to make rules for carrying out the purposes of the act.the above said decision of the apex court aptly applicable to the fact situation under section 68 of the mv act, the member secretary of the first respondent has no power either to grant permit originally or by renewal or transfer the same from the original permit holder to the transferee in exercise of power under rule 54 of the rules, which is contrary to the statutory provision of section 68 of the mv act and law laid down by the apex court in the above referred case. further exercise of power by the member secretary of the first respondent under rule 54 amounts to further sub-delegation in his favour, which is not permissible in law. if the action of the member secretary of the first respondent in granting permit originally or by way of renewal and transfer of the permit in favour of the appellant/transferee is accepted as valid and legal, the purpose and object of the constitution of regional transport authority by the state government in exercise of its power under section 68(1) of the mv act will be defeated. the object of the state legislature under the above statutory provision of the act conferring power for grant of permit and transfer of the same upon regional transport authority constituted by the state government is that grant of permit in favour of a person in respect of routes is an important power and therefore it had conferred upon the regional transport authority consisting the head of the revenue district as the chairman and the superintendent of police as its member, to which the regional transport officer is only required to function as the secretary of the rta. the kstat should have allowed the revision on the ground that the grant of permit originally and later by renewal and transfer of the permit in favour of the appellant-transferee is not by the first respondent constituted by the state government in exercise of its power under section 68 of the mv act by issuing the notification of 1989, referred to supra. but, it had set aside the order of grant of permit passed in favour of the transferor for their valid reasons. the reason assigned by the kstat is that the 3rd respondent revision petitioner before it was not heard in the matter by first respondent before granting the permit by way of renewal in favour of the original permit holder is the ground on which the holder of permit by way of renewal was set aside by placing reliance upon the division bench judgment of this court in the writ appeal referred to in the order impugned in the writ petition. the order of grant of permit by way of renewal was set aside by the kstat and the matter was remitted back first respondent rta to reconsider the matter on filing modified application for grant of permit by way of renewal. therefore, no statutory right is accrued either in favour of the transferor or in favour of the transferee to challenge the order of the kstat in the writ petition.12. we have examined all these legal aspects in the appeals with a view of find out the correctness of the order of the learned single judge. for the aforesaid reasons, the transferee's appeal must fail.13. in so far as the appeal of the appellant rto in the connected appeal is concerned, her predecessor in office who had exercised his power as delegated authority for the grant of permit by way of renewal in favour of the transferee was set aside by the kstat in revision petition on 13.11.2003. for the reason that before grant of permit for the subsequent period, the respondent no. 3 was not heard, which is in violation of the principles of natural justice as it is an interested party in the proceedings, as the permit granted in favour of the transferor was in respect of the nationalised route. the application filed by the transferee was not in compliance with the observation made by the kstat in the order impugned in the writ petition filed by the transferee appellant. when the regional transport authority was a party to the proceeding before the kstat in the revision petition filed by respondent no. 3, the facts are mentioned in the original file in which the application for grant of permit by way of renewal was at the instance of the transferee appellant was considered and renewed by the appellant-transferee after the order was passed by kstat. the original permit holder should have filed modified application in relation to nationalised route upon which monopoly is there with the 3rd respondent corporation, without these being such applications by the original permit holder she has passed an order granting permit by way of renewal in favour of the appellant-transferee who is not legally entitled and therefore her action is not only illegal as she alone has exercised her power under rule 54 of the rules, which is contrary to section 68 of the m.v. act, despite there being a regional transport authority, constituted by the state government vide notification dated 1.7.1989 in exercise of its statutory power, the same is in utter disobedience to the order of the kstat and the notification referred to supra, she has renewed the permit in favour of the appellant-transferee. therefore, the learned single judge has rightly made the observation stating that the grant of permit in favour of the transferee appellant is in blantant violation of rule of law. on the basis of the averments in the writ petition filed by the transferee appellant, who had sought for quashing the order dated 13.11.2003, the learned single judge on 21.9.2009 has set aside the grant of renewal of permit in favour of the transferee, we have accepted the reasoning recorded by the learned single judge in his order while answering the points 1 to 3 in this judgment.14. the transferor was a party before the appellate tribunal. the 1st respondent - rta was a party before it but, the learned single judge has mentioned that the 1st respondent by its secretary has proceeded to renew the permit in favour of the transferee. in that circumstance, the 1st respondent was directed to show cause as to why she should not be placed under suspension pending inquiry against her for the above said act. pursuant to the said direction issued to her during pendency of the writ petition, she had filed affidavit, the relevant paragraphs of the affidavit filed by the officer reads thus:para 3:i humbly submit that in the above petition the petitioner has questioned the correctness of the endorsement dated 8.12.2008 issued by the secretary, regional transport authority, chikkaballapur. i submit that the endorsed renewal of permit in question is for the period between 18.1.2004 to 17.1.2009. an application for renewal of permit was filed in the office of the secretary, kolar on 5.1.2004 which was considered by me under the powers delegated by the regional transport authority under the time of considering the application of the petitioner, there was no orders of the hon'ble karnataka state transport appellate tribunal which was stated to be passed on 13.11.2003 in rp 413/2000.para 4i humbly submit that after hearing the petitioner and since there was notification no. ht75/tma/2001 dated 7.11.2003. published to the karnataka gazette dated 13.11.2003 (on the same day the judgment of kstat was pronounced) wee made available. i humbly submit that in the said notification, holder of permit which were issued, renewed and pending for renewal are permitted to operate on the routes to which the permit is issued, subject to condition that they should not pick up or set down the passengers on the routes or portion of nationalised routes under the kolar pocket scheme.15. the correctness of the said averments are examined by us with reference to the original file note sheets of subject no. 54(11)/93-94. after the order passed by the kstat at note 49, a note, is put up by the office of rtq which reads thus:49. resolution of rta under subject no. 54(iv)/93-94 dated 21.8.02 for perusal in detail.the granter was directed to obtain endorsement of transfer of permit within 30 days from date of receipt of the proceedings. the copy of proceedings are served on 13/12/02.on 21.12.02 following are filed.1) letter dated 21.12.02.2) challan for rs. 100/-with fee. ch. no. 1454709/21.12.02.3) rc of tn23/n 253- as per rc, t/o noted in favour of sri. a. venkatesh s/o. late achappa, muthur street, siddalaghatta, kolar - wef 20/12/02.4) fc valid upto 14.1.2003.5) tax card - tax paid upto 31.1.03.6) ins certi-vt 11/1/03d.s.a. for remarks pl.the above said note was also prior to the purported transfer of the permit in favour of the transferee and also subsequent grant of permit by way of renewal on 12.1.2004. therefore, the officer was required to peruse the order of the kstat and was also required to examine her power for grant of permit by way of renewal keeping in view the provisions of section 68 of the m.v. act. the same is contrary to the direction issued to the rta kolar in the order of the kstat, appellant/officer in the connected appeal has renewed the permit in favour of the transferee. the same is in blatant violation of the order and the statutory provisions of the act. therefore, learned single judge's observation that grant of renewal of permit in favour of the transferee in respect of the route in question which is one of the nationalised routes in favour of the ksrtc is in violation of law and therefore a direction is issued by the learned single judge to the principal secretary of the transport department of the state government as mentioned above. the officer has gone to the extent of stating the facts in her affidavit which are not borne out from the record with reference to the notification dated 13.11.2003, which portion is extracted above, is also the reason for grant of permit by way of renewal in favour of the transferee, which averments are not mentioned in her notings in the original file. the averments made by her in her affidavit with a view to justify her illegal action apart from the applicability of the said modified notification issued by the state government under section 102 of mv act to the facts of the case. in view of the decision of the supreme court in the case of ksrtc v. ashrafulla khan and ors. reported in : 2002 (2) scc 560, wherein the apex court after examining the constitution bench decision referred therein with regard to the legal effect of nationalisation of routes and the monopoly created to the state owned transport undertakings and grant of permits in favour of private transport operators available to nationalised route is permissible or not, made an observation at para 29 in the said decision leaving liberty to the state government to enact the law. we do not want to deal with those aspects in this judgment, in view of the observation made in the said judgment after referring to the constitution bench judgment while examining the legality and validity of nationalisation of routes under section 68f of the repealed act, as to what is the effect of grant of permit to private transport operators, whether it amounts to over riding and intersection on such nationalised routes. anyway, the modified notification issued by the state government cannot be treated as the law is what is held by the supreme court way back in 1960. this matter requires reconsideration in an appropriate writ petition proceedings pending before this court.16. the officer has gone to the extent of justifying her illegal action of granting permit by way of renewal in favour of appellant-transferee swearing to certain facts in her affidavit not borne out from the original file, is a serious matter, to be examined by this, but the learned single judge did not do so. we also restrain to do it because learned single judge has made certain observations and the same are justified having regard to the facts of this case because the appellant officer in blatant violation of the quasi judicial order of kstat, has granted the permit in favour of the appellant/transferee by way of renewal, which action of her not only in violation of the provisions of the mv act and law laid down by the apex court and this court. though learned sr. counsel sri narasimhan on behalf of the appellant's officer contends that the observations made in the order of the learned single judge prejudice her case, the same cannot be accepted by us and it would be suffice for us to say that the observations need not influence the disciplinary authority to record the finding on the conduct, but the same can be taken note of. on the basis of documentary evidence from the original file and therefore the finding has to be recorded by him after affording an opportunity to her and therefore the same need not be expunged by this court. for the reasons stated supra, we modify the direction contained in the impugned order only to the extent that it is for the disciplinary authority or the prl. secretary of the transport department to examine the case having regard to the nature of action taken by the appellant officer either to keep her under suspension pending inquiry or not as it is the domain of the disciplinary authority, but it has to examine the gravity of the conduct of the officer in exercising her power contrary to the orders passed by kstat, provisions of the mv act and law on the point at issue. though this court can make such observation, we leave this matter for the disciplinary authority and the disciplinary action that would be initiated need not be influenced by the observations made by the learned single judge. the disciplinary proceedings against the appellant's officer shall be concluded and a report should be submitted to the registry within six months from the date of receipt of this order.17. for the reasons stated supra, we dismiss both the appeals, with observations in so far as appellant's the officer in the connected appeal is concerned.