IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 3148 of 2009 Lallan Singh, son of late Thanapati Rai, resident of Mohalla – Karbighahia P S – Jakkanpur, P O – G P O, District & Town – Patna - Petitioner Versus 1 The State of Bihar through the Secretary, Department of Transport, Bishweshwaraiyya Bhawan, Bailey Road, Patna 2 South Bihar Regional Transport Authority, Patna through its Secretary 3 Chairman, South Bihar Regional Transport Authority, Patna 4 Secretary, South Bihar Regional Transport Authority, Patna 5 Anita Upadhaya, wife of Sri Anil Kumar Upadhaya, resident of Road No 20, H N 76, Srikrishna Nagar, P O – Srikrishna Nagar, P S – Budha Colony, District – Patna - Respondents *** For the petitioner : M/s Sunil Kumar Gupta, Ashok Kumar Jha & Anil Kr, Advocates For the S t a t e : Smt Nilu Agrawal, G A X For respondent No 5 : M/s Rajendra Narayan & Anil Kr Upadhaya, Advocates *** 3 31.03.2009 Petitioner is aggrieved by order dated 20.02.2009, as contained in Annexure-13, by which the Commissioner, Patna Division, acting as the Chairman of the Regional Transport Authority, has conquered with the notes of the Secretary of the Regional Transport Authority and thereby refused renewal of petitioner’s stage carriage permit granted under the provisions of the Motor Vehicles Act and the Rules Framed thereunder. Stage carriage permit is granted in terms of Section 72 of the Motor Vehicles Act. The permit is a permission to ply on a route, its persons specific, its routes specific but when it comes to vehicle, it is not for a particular vehicle. The reason for this will be indicated later. 2 It is not that a vehicle gets a permit. It is a person who gets a permit to ply a vehicle thereunder. A permanent permit granted is usually valid for a period of 5 years. In case of petitioner, the permit was granted for the period 28.01.2004 to 27.01.2009 in respect of a public carrier mini bus of 1990 model having Registration No BR 1-A 8805. The procedure for applying for and granting permit is contained in Section 80 of the Act. Sub-section (4) thereof deals with replacement of permit. This provision, if compared to and read with Section 83, would establish that permit is independent of the vehicle because Section 83 talks of replacement of vehicle under a permit. Section 81 of the Act deals with renewal. Section 81 sub-section (4), which is relevant for the present purpose, is quoted hereunder : 81. Duration and renewal of permits.- (1) … … … (2) … … … (3) … … … (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 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:- 3 (i) Plying any 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 order 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. A reading of Section 81 would show that a permit once granted, on application, has to be renewed without any discretion there being on the authority if conditions are fulfilled and the authorities can refuse renewal on specific grounds which have been enumerated in sub- section (4). Therefore, renewal is as a matter of right. Renewal cannot be refused on any ground not mentioned in sub-section (4) of Section 81 if other conditions for grant of permit are satisfied. The whole problem, in the present case, is in relation to this. As noted above, petitioner was granted the stage carriage permit which was to expire on 27.01.2009 in respect of a vehicle which was 1990 model mini bus. Petitioner intended to replace the vehicle by a newer model vehicle and, as such, made an application for replacement to the authorities in terms of Section 83 read with Rule 4 83 of the Bihar Rules on 28.08.2008. Petitioner states that immediately thereafter, on 03.09.2008, even a public notice was published in the newspaper by the Regional Transport Authority notifying petitioner’s vehicle for replacement of a new vehicle within one month. Petitioner was issued notice for replacement of his vehicle by a newer vehicle within one month. This appears to be pursuant to a policy of the Regional Transport Authority not to permit vehicles which were more than 15 years old to be plied under any permit. This was then followed by a public notice published in newspapers directing inter alia the petitioner in respect of his vehicle BR 1-A 8805 for its immediate replacement within one month by a newer vehicle. Petitioner states that pursuant to his application for replacement on the ground that the vehicle was old with a vehicle of 2003 model, enquiries were made, reports submitted. Then, as contemplated under Section 55 of the Act, petitioner made an application to the District Transport Officer for permission intimating destruction of the vehicle and consequential cancellation of registration of vehicle. From the above, it would be seen that the petitioner had made an application for replacement of vehicle as far back as on 28th of August, 2008 and the same was kept pending. Now the time for renewal was also approaching as the permit was to expire on 27.01.2009. In such a situation, on 06.01.2009, the petitioner made a renewal application in respect of the permit as well. While these matters were pending, the Regional Transport Authority also noticed the petitioner that in the Janta Darbar, it had been pointed that the vehicle in question that is BR 1-A 8805 had been scrabbed but still the 5 petitioner had not got another vehicle transferred to his permit. Obviously, this notice was issued in total ignorance of the ground reality where petitioner’s application was already pending for four months without the authority acting upon it. Now, as the period for permit was expiring, trade rivalry arises. Respondent No 5 intended to create a vacancy so that she could apply for a permit in that vacant slot. With petitioner’s occupying that slot, that was not possible. From the impugned order dated 20.02.2009, as contained in Annexure-13, it is apparent that respondent No 5 intervened before the Chairman of the Regional Transport Authority and raised an issue that where on petitioner’s own admission, his vehicle had been scrabbed, could a permit be renewed in absence of the vehicle. The Commissioner, who was the Chairman of the Regional Transport Authority as would appear from the ordersheet, noted this question by his order dated 30.01.2009 for the Secretary to respond. The Secretary of the Regional Transport Authority gave a long opinion pointing out that the petitioner should not have got his vehicle scrabbed without taking orders in respect of renewal and change of vehicle in the permit and having done so, the permit was rendered vehicleless and, as such, could not be renewed. It is basically this stand, the validity of which that has to be judged in the present proceedings. In fairness to learned counsel for respondent No 5, who has sought hard to create a vacancy at the level of the Chairman of the Regional Transport Authority, his submissions must be noted. He submitted that in fact petitioner was a huge defaulter in respect of the 6 said vehicle and had wrongly got the permit. The vehicle was in fact not plyable and on the route aforesaid, he was actually plying another vehicle. At a point of time, the other vehicle, with its number plate, was seized by the police and it is at that time, he was required to produce his vehicle for inspection which he could not and, therefore, he has taken the plea that the vehicle needed to be scrabbed being old. Unfortunately however correct the story may be, that has not been the ground for taking action by the authorities which is impugned in the present proceedings. An order publicly made in discharge of statutory duty, is yet established has to be judged on basis of what is written in the order and not on basis of affidavits or facts otherwise brought on record. This position has been settled way back by the Apex Court in the case of Mohinder Singh Gill –Versus- Chief Election Commissioner, New Delhi since reported in AIR 1978 Supreme Court 851. Thus, the validity of the order of the Commissioner acting as a Chairman of the Regional Transport Authority has to be judged on basis of that order and nothing beyond that. From the sequence of events noted above, it would be seen that the Regional Transport Authority had taken a decision not to grant permits to vehicle which were more than 15 years old. They had even noticed the petitioner invidually and informed the petitioner in newspaper as well for immediate replacement of his vehicle which was much more than 15 years old by a newer vehicle. Two things flow from this, (1) under directions of statutory authority, petitioner was obliged to replace his vehicle and (2) that the vehicle so replaced automatically became scrabbed because, without permit, 7 vehicle is of no value. Petitioner even, prior to the said notices, had himself applied for replacement of vehicle. Now it has to be determined as to what are the rights of a person seeking replacement of vehicle. Section 83 provides for replacement of vehicle and is to be read with Rule 83. There are no ifs and buts in the matter. The only condition is that the replacement would be permitted by a ready worth vehicle of similar configuration. Beyond this, the authorities have no discretion in the matter. They are bound to allow replacement of vehicle of similar configuration. The matter does not end there. Rule 72 obliges the authority to take a decision within one month. Here, in the present case, the petitioner made an application for replacement of vehicle which is his undeniable right. The authorities wanted and noticed him to replace the vehicle within one month. The orders were not passed even on his own application for replacement of the vehicle and now when the petitioner has scrabbed the vehicle, it is being said that there being no vehicle, no renewal of the permit itself could be granted. The petitioner is, thus, being uprooted from the root itself. I regret that a senior statutory functionary like a Commissioner was not aware of the provisions of Rule 72 which obliges him to dispose of the matter within one month. The application was made as far back as on 28.08.2008. Had the application got the due attention which the statute wanted promptly, there would not have been any problem but the authorities chose to delay the matter and, thus, taking advantage of the changed facts in the delayed circumstances have refused renewal of petitioner’s permit which he has a right. In this connection, I can only refer to what 8 Chief Justice Chagla said almost five decades back in the case of All India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” First, the statutory authority abducted his function to the Secretary then the matter got lingered beyond the time statutorily prescribed. Had authorities passed an order in September, 2008 itself, there would have been no problem at all but it was not so done. Petitioner, in view of decision of the authority themselves, could not ply the said vehicle any more. It had to be scrabbed. It was scrabbed. The authorities were, thus, bound first to pass an order with regard to the request of the petitioner for replacement of the vehicle which application was pending for over four months but surely the authorities had something else in mind. Because if such an order was first passed then there would have been cause to refuse renewal of the permit. So conveniently, no order was passed with regard to replacement of vehicle which the authorities were bound to pass within one month instead taking note of the vehicle that the vehicle had been scrabbed. That was 9 made a ground for refusing to grant renewal. This, in my view, cannot be sustained. As noted above, apart from petitioner making application for replacement of vehicle, it was authorities’ own decision, as noticed to the petitioner and notified in newspaper in respect of the petitioner, directing him to replace vehicle within one month. He complied with it. He was not told anymore that he was required to do. The authorities slept over the matter and got involved in other issues not relevant. Now the very permit of the petitioner is being cancelled by virtue of its non-renewal. All I can notice is the judgment of the Apex Court under somewhat similar circumstances in the case of Murarilal Jhunjhunwala –Versus- State of Bihar & Others since reported in 1991 Supp (2) Supreme Court Cases 647 where the Apex court has deprecated the bureaucracy and the licensing authority of Bihar in trying to cover up their own default as against the rights of the citizens. In that case, a dealer had made an application for grant of licence. He was told lincence had been granted. For four years, his renewal applications were accepted. He was never told that he was required to do anything more. Then the Collector, who was the licensing authority, ordered his prosecution for doing business without licence. This Court refused to interfere in the matter but the Apex Court not only set aside the prosecution but directed grant of licence forthwith. Considering the above facts and circumstances and the law, as indicated above, the impugned order of the Chairman of the Regional Transport Authority cannot be sustained and is set aside. The 10 authorities are directed to consider the renewal of petitioner’s permit forthwith with replacement of the vehicle, as prayed by him and as directed by the authority himself. Necessary orders in this regard must be passed within one month from the date when copy of this order is produced before the Regional Transport Authority concerned. The writ application is, thus, allowed. M.E.H./ ( Navaniti Prasad Singh)