HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.18708 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Goutam Kumar Sarangi S/o Sri Basanta Kumar Sarangi, At- Bagda, P.S. Basta Dist: Balasore. … Petitioner -Versus- State Transport Appellate Tribunal, And others, … Opp. Parties For Petitioner : Mr.R.K.Rath, Sr. Advocate M/s. M.Balakrishna Rao & R.K. Pattnaik. For Opp. Parties : Mr. J. Pal (S.C.) (for O.Ps 1 – 3) Mr. H.P. Mohanty (for O.P. no.4) ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Hearing: 21.12.2010 & Date of Judgment : 20.04.2011 B.N. MAHAPATRA, J. This writ petition has been filed with a prayer to set aside the order dated 19.12.2009 passed in Misc. Case No. 17/2009 under Annexure- 8 by opposite party no.2, Chairman, State Transport Authority, Orissa as well as the judgment dated 12.10.2010 in M.V. Appeal No. 06 of 2010 under Annexure-15 passed by opposite party no.1-State Transport Appellate Tribunal. 2. Petitioner’s case in a nutshell is that the petitioner initially availed a temporary permit from opposite party no.2 valid from 27.01.2008 to 24.05.2008 in respect of his bus bearing Registration No, OR-22-B-1557 for plying on the interstate route from Bhubaneswar to Haldia. Due to mechanical trouble the petitioner intended to dispose of the said bus and accordingly obtained “No Objection Certificate” vide letter No. 30.05.2008 wherein the petitioner undertook to place a better vehicle. Equipped with a better model vehicle the petitioner again applied for grant of permit on his erstwhile route Bhubanesar to Haldia and opposite party no.2 granted permit in favour of the petitioner in respect of his new bus bearing Registration No. OR-22-C-7297 valid from 18.09.2009 to 14.01.2010, from 15.01.2010 to 11.02.2010 and from 12.02.2010 to 10.06.2010. According to the petitioner, long distance night buses plying in between Orissa & West- Bengal covering routes such as Puri to Contai, Puri to Haldia, Bhubaneswar to Haldia, Bhubaneswar to Nandakumar and Bhubaneswar to Bajkul etc. were given timings on each alternate day in a week. Initially the petitioner was allotted Cuttack departure time at 20.10 hours and in the permit valid till 7.10.2010, he was allotted 20.00 hours as departure time. When the matter stood thus, opposite party no.4, the owner of the buses, bearing Registration Nos. OR-0IL-6215 and OR-01M-3875 submitted objection before opposite party no.2-Chairman, State Transport Authority alleging 2 clash of timings with the service operated by the petitioner on the route from Bhubaneswar to Haldia. On the basis of the said objection Misc. Case No.17 of 2009 was instituted and the matter was heard and disposed of vide order dated 19.12.2009 by opposite party no.2 revising timings of the petitioner’s service directing the petitioner to avail last available slot. Against the said order, the petitioner preferred M.V. Revision No.03/2010 before opposite party no.1-State Transport Appellate Tribunal. During pendency of the said Revision, the petitioner moved opposite party no.2 to reconsider the allotment of departure timing from Cuttack granted in its order dated 19.12.2009 and to grant him previous timings which was allotted to him in the year 2008. Considering the petitioner’s grievance, opposite party no.2 granted permit in favour of the petitioner in his original timings. Thereafter, the petitioner withdrew the revision filed by him. Opposite party no.4 being dissatisfied with such allotment of timings (Annexure-13) in favour of the petitioner preferred W.P.( C) No.11716 of 2010 before this Court. Since this Court was not inclined to entertain the writ petition on the ground of availability of alternative remedy, opposite party No.4 filed M.V. Appeal No. 06 of 2010 before opposite party no.1. The learned Tribunal allowed the appeal preferred by opposite party no.4 vide impugned judgment dated 12.10.2010. Hence the present writ petition challenging the order dated 19.12.2009 passed in Misc. Case No. 17 of 2009 as well as the judgment dated 12.10.2010 passed in M.V. Appeal No. 06 of 2010. 3 3. Mr. R. K. Rath, learned Senior Advocate appearing for the petitioner submits that both the impugned orders are perverse, against the weight of materials available on record and suffer from error apparent on the face of records, for which the same are liable to be quashed. The order dated 19.12.2009 passed by opposite party no.2 was not communicated to the petitioner. A bare perusal of the said order dated 19.12.2009 would reveal that even though the same was passed on the above said date, subsequent events such as the petitioner availing temporary permit from 15.01.2010 to 11.10.2010 have been mentioned which establish that the said order was antedated. Opposite Party no.4 could not have questioned the timings of the petitioner before opposite party No.2 without ventilating his grievance before the appellate/revisional authority. Opposite Party no.2 committed illegality in passing the impugned order dated 19.12.2009 as the permit granted to the petitioner was unconditional one. Opposite party no.2 committed illegality in directing allotment of last available timing slot to the petitioner’s bus after opposite party No.4’s timing from both ends i.e. from Bhubaneswar to Haldia when there was no objection to the return trip timing of the petitioner from Haldia by opposite party no.4. The petitioner is senior to opposite party no.4 in respect of route from Puri to Haldia with Cuttack departure timing 20.00 hours. Opposite Party No.4 having given the said route after induction of petitioner’s service on the route from Bhubaneswar to Haldia, he is not entitled to time preference in the eye of law. The law is well settled that an old permit holder will get preference in timing over a new 4 entrant. When the bus on a given day can operate at 20.00 hours, 20.15 hours 20.30 hours on identical inter-State routes as night services with equal time gap, there was no justification on the part of opposite party no.2 to disturb almost same time gap of 19.55 hours, 20.10 hours and 20.20 hours on the alternate day. The order dated 19.12.2009 is against the interest of traveling public. In absence of any public complaint against the allotted timings of the petitioner before the authorities, passing of the impugned order asking the petitioner to avail the last time slot after service of opposite party no.4 is bad both on facts as well as in law. 4. Mr. Rath further argued that the Tribunal has not considered the legal contentions urged by the petitioner in its judgment dated 12.10.2010 passed in M.V. Appeal No. 06 of 2010. The appeal filed by opposite party no.4 was not maintainable in law, as none of the clauses under Section 89 of the MV Act was attracted. Opposite party no.4 has availed permit with irrational timings in respect of his vehicle and thus approached the Court with unclean hands. Learned Tribunal should not have interfered with the order dated 20.5.2010 passed by opposite party no.2 without any valid reason. Learned appellate authority should have remanded the matter back to opposite party no.3-State Transport Authority in view of the order dated 04.08.2010 passed by this Court in W.P.(C) No. 11320 of 2010. Learned Tribunal has committed an error in not deciding the said issue which goes to the root of the instant case. This Court held that opposite party no.3 is competent to decide the lis with regard to the 5 allotment of timings between the buses. Opposite party no.1 is not correct in holding that opposite party no.2 does not have the authority to pass the impugned order dated 20.5.2010 granting route permit with timings in favour of the petitioner. Opposite party no.2 while granting fresh temporary permit has only corrected/rectified the apparent mistake committed by the said authority and the same does not amount to reviewing his previous order. Every authority is enjoying its inherent power to correct the factual mistake committed by it when the same is brought to the notice of the said authority by any aggrieved person. The specific case of the petitioner is that during pendency of the case since the authority reconsidered the matter and corrected the factual mistakes committed by it in its order dated 19.12.2009, the petitioner withdrew the case. By the time opposite party no.1 passed the impugned judgment on 12.10.2010, the order dated 20.5.2010 lost its validity as the petitioner’s permit expired on 6.10.2010. By virtue of the order passed by opposite party no.1, there is possibility that opposite party nos. 2 & 3 will direct the petitioner to operate his bus with the set of timings in terms of order dated 19.12.2009 passed in Misc. Case No. 17 of 2009. The judgment dated 12.10.2010 affects the fundamental rights of the petitioner guaranteed under Article 19(1)(g) and 21 of the Constitution of India. 5. Mr.H.P.Mohanty, learned counsel appearing on behalf of opposite party No.4-Subodh Kumar Bhuyan submitted that originally the petitioner obtained Transport Permit in respect of bus bearing No.OR-22-B- 1557 on the Inter-State route Bhubaneswar to Haldia with Cuttack 6 departure timing at 20.00 hours for 119 days w.e.f. 27.01.2008 to 24.05.2008. The petitioner filed objection to the said timings. On 11.03.2008, the Secretary, State Transport Authority, Orissa (for short, ‘STA’) passed an order directing to issue notice for cancellation of the temporary permit obtained by the petitioner by suppressing facts. The petitioner thereafter surrendered the temporary permit and abandoned the route. After lapse of more than one and half years, the petitioner again applied for temporary permit in respect of its another vehicle bearing No.OR- 22-C-7297 on the said route Bhubaneswar to Haldia in the vacancy of OR- 22-B-1557. The opposite party No.4 objected the same, but the petitioner could be able to manage and get the earlier timing modified to depart Cuttack at 20.10 hours just 10 minutes after the timing allotted to its earlier vehicle OR-22-B-1557 and temporary permit was issued on 17.09.2009 w.e.f. 18.09.2009 to 14.01.2010. On 20.05.2010, the Chairman, STA granted temporary permit to the petitioner for 119 days w.e.f. 11.06.2010 to 07.10.2010 with Cuttack departure timing at 20.00 hours by wrongly reviewing its own order dated 19.12.2009 passed in Misc. Case No.17 of 2009. It was argued that the Chairman has neither power nor competence to review his own order. The said order dated 20.05.2010 was challenged before the State Transport Appellate Tribunal, Orissa, Cuttack in M.V. Appeal No.6 of 2010 and the learned Tribunal quashed the impugned order dated 20.05.2010. Pursuant to the order dated 12.10.2010 passed by the learned State Transport Appellate Tribunal (for short, ‘Tribunal’) in M.V. Appeal No.6 7 of 2010, an office order was issued in respect of the petitioner’s bus bearing registration No.OR-22-C-7297 regarding allotment of timings and the same was intimated to the petitioner. There was no illegality in the order passed by the learned Tribunal in M.V. Appeal No.6 of 2010. Therefore, he has prayed for dismissal of the writ petition. 6. Mr. J. Pal, learned counsel appearing on behalf of State Transport Authority submitted that the order passed by the learned Tribunal is in conformity with the provisions of the M.V. Act and needs no interference in this petition. 7. On the rival contentions urged on behalf of the parties, the following questions fall for consideration by this Court: (i) Whether the order dated 20.05.2010 (Annexure-12) passed by O.P. No.2-Chairman, STA revising the timing granted to the petitioner in the order dated 19.12.2009 passed in Misc. Case No.17/09 amounts to review of its earlier order? (ii) Whether the Chairman, STA has any power to review its own order dated 19.12.2009 earlier passed in Misc. Case No.17 of 2009? (iii) Whether the STAT is justified in quashing the order dated 20.05.2010 passed by the Chairman, STA, in reviewing its order dated 19.12.2009 passed in Misc. Case No.17 of 2009? (iv) Whether the Chairman, STA is competent/authorize to pass the order dated 19.12.2009 in Misc. Case No.17 of 2009 (Annexure-8)? (v) What order? 8 8. To deal with question nos. (i) it may be noted that the real dispute between the parties is relating to allotment of up-trip departure timing from Cuttack on interstate route permit. The facts which are not in dispute are that the petitioner obtained a temporary permit in respect of his bus bearing registration No.OR-22-B-1557 on the interstate route, i.e., Bhubaneswar to Haladia with Cuttack departure time at 20.00 hours for 119 days with effect from 27.01.2008 to 24.05.2008. The petitioner sold the said bus and purchased a new one bearing registration No.OR-22-C-7297 and applied for temporary permit on the said route, i.e., Bhubaneswar to Haladia in the vacant place of its earlier bus. In respect of the new bus, the petitioner was allotted Cuttack departure timing at 20.10 hours which is just ten minutes after the timing allotted to its earlier vehicle, i.e., OR-22-B-1557. The temporary permit was issued on 17.09.2009 with effect from 18.09.2009 to 14.01.2010. Subsequently, hearing objection, the Chairman, STA vide his order dated 19.12.2009 in Misc. Case No.17/09(Annexure-8) directed the petitioner to avail the last available slot from both side. Being dissatisfied with the said order, the petitioner filed M.V. Revision No.3 of 2010 before the learned Tribunal challenging the order of the Chairman, STA. Petitioner also applied to O.P. No.2-Chairman, STA to grant temporary permit with Cuttack departure timing at 20.00 hours. The Chairman, STA (O.P. No.2) granted temporary permit to the petitioner for 119 days from 11.06.2010 to 07.10.2010 with Cuttack departure timing with 20.00 hours by modifying timing allotted to the petitioner by order dated 19.12.2009 in Misc. Case 9 No.17 of 2009. By order dated 19.12.2009 passed in Misc. Case No.17 of 2009 the petitioner was directed to avail last available slot, and subsequently the said timing was changed to 20.00 hours vide order dated 20.05.2010 (Annexure-12). It certainly amounts to review of the earlier order passed in Misc. Case No.17 of 2009 by the Chairman, STA. 9. Question No.(ii) is as to whether the Chairman, STA has any power under the Statute to review his own order. It is stated at the Bar that no such power is vested with the Chairman, STA. 10. Unless the power of review is expressly conferred upon the Chairman, STA under the statute, he cannot exercise the power of review upon himself to review his own order. In Patel Chunibhai Dajibha V. Narayanrao Khanderao Jambekar, AIR 1965 SC 1457, the Hon’ble Supreme Court had held that in absence of any power of review, the Tribunal could not have subsequently reconsidered its previous decision and the subsequent order re-opening the matter was illegal, ultra-vires and without jurisdiction. In Harbhajan Singh V. Karam Singh and others, AIR 1966 SC 641, the Apex Court has held that in absence of any provision in the Act granting express power of review, it is manifest that review could not be made and the order in review was ultra-vires, illegal and without jurisdiction and the High Court has rightly quashed it by the grant of writ under Article 226 of the Constitution. 10 In Patel Narshi Thakershi & Ors v. Pradyumna Singhji Arjun Singhji, AIR 1970 SC 1273, the apex Court held that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication and in absence of any provision in the Act, review of an earlier order is impermissible. This Court in Jayaram Bhuyan v. State of Orissa & Ors, 2008 (II) OLR 438, held that in absence of enabling statutory provision for review the Director of Higher Education has no power of review. In view of the above, the order of review dated 20.05.2010 (Annexure-12) passed by the Chairman, STA is not sustainable in law. 11. Question No.(iii) relates to correctness of the order of State Transport Appellate Tribunal passed in M.V. Appeal No.6 of 2010. Learned State Transport Appellate Tribunal has allowed M.V. Appeal No.6 of 2010 by quashing the order dated 20.05.2010 passed by the Chairman, STA in reviewing his own order dated 19.12.2009 passed in Misc. Case No.17 of 2009 with the following reasons: “The contention as advanced by learned counsel for the petitioner that the said order of Chairman vide Annexure- 7 is to correct/rectify the factual errors/mistakes crept into the petitioner’s permit file has not been support by any evidence. The S.T.A. delegates i.e. its Chairman/Secretary its power to grant TEMPORARY PERMIT and the orders passed by them are appellable/revisable by S.T.A. Tribunal. The authorities thus exercise delegated concurrent powers. Therefore, as Chairman, he is not appealable/revisable authority against the order passed by himself or the order passed by the Secretary, S.T.A. Further, when the order passed by the Chairman, S.T.A. vide Annexure-6 allowing last slot time in favour of the petitioner has been challenged 11 in the revision before this Tribunal and ultimately withdrawn, the same is deemed to have attained its finality. The learned Chairman, S.T.A. has no authority to pass an order vide Annexure-10 on 20.05.2010 revising the timing granted earlier to the petitioner by disposing the Misc. Case No.17 of 2009 vide Annexure-6. Hence, the same order vide Annexure-10 is liable to be quashed.” 12. For the reasons stated above, we do not find any infirmity or illegality in the impugned order dated 12.10.2010 passed in M.V. Appeal No.6 of 2010 (Annexure-15) so far it relates to quashing of the order dated 20.05.2010 (Annexure-12) passed by the Chairman, STA revising his own order dated 12.12.2009 passed in Misc. Case No. 17 of 2009 warranting interference by this Court. 13. Question No.(iv) is as to Whether the Chairman, STA is competent/authorize to pass the order dated 19.12.2009 in Misc. Case No.17 of 2009 (Annexure-8)? At this juncture, it is felt necessary to refer the order of this Court dated 04.08.2010 passed in W.P.(C). No.11320 of 2010. The relevant portion of the said order is quoted below. “…the authority for grant of permit including assigning timing vests with the S.T.A. under section 72 read with section 80(2) of the Act which expressly confers power upon only the State Transport Authority. Sub-section (2) of Section 80 does not state that the State Transport Authority constituted by the State Government under section 68(1) shall delegate its power to its Member- Secretary under rule 41 on the basis of Section 68(5). In this view of the matter, section 68(5) and rule 41 cannot be pressed into service unless the provisions of section 80(2) is suitably amended. The R.T.A. or S.T.A. constituted under section 68 cannot also re-delegate power to any member of the authority constituted by the State Government for the reasons that a delegate cannot re- 12 delegate its power. Therefore, assigning the timings in exercise of power under rule 75 on the basis of the permit issued in favour of the petitioner by the Secretary is without jurisdiction. Therefore, it is nullity in the eye of law and is liable to be quashed. On this ground itself the impugned order is accordingly quashed and the writ petition is allowed.” However, we are told that the above said order of this Court is challenged before the Apex Court and the same is stayed. 14. In course of hearing, it was brought to our notice that S.T.A. in its 193rd meeting held on 12.11.1992 in the office chamber of the Transport Commissioner-cum-Chairman, S.T.A., Orissa delegated certain powers in favour of Chairman, S.T.A. As per clause (vii) of Item No.4(A) power has been delegated to Chairman, STA to grant temporary permits up to a period of four months in respect of stage carriage, where the route is interstate one. Sub-clause (ix) of the said Item No.4(A) delegates power to approve the timing of arrival and departure of stage carriage plying on intra-State routes. 15. Since the aforesaid order of this Court dated 04.08.2010 is stayed till that Civil Appeal is disposed of by the Apex Court, the Chairman, STA may exercise the power to grant temporary permit in respect of stage carriage where the route is an interstate route. 16. In the fact situation, the matter is remitted to the Chairman, STA with a direction to give opportunity to the petitioner and the private opp. party and pass order in accordance with law within a period of four weeks from today. Till then the existing timings allotted to O.P. No.4 vide order dated 19.12.2009 passed in Misc. Case No.17 of 2009 shall be in force. Liberty is 13 given to both parties to raise all the legal and factual contentions before the Chairman, STA who shall examine the same and pass a reasoned order. 17. With the above observations, the writ petition is disposed of. ……………………... B.N.Mahapatra, J. V.Gopala Gowda, CJ. I agree. …....……………….. Chief Justice 14 Orissa High Court, Cuttack Dated 20th April, 2011/ss/skj/ssd