IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.02.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.24563 of 2008, 958 of 2009 and W.P.(MD)No.3694 of 2007 and connected miscellaneous petitions. .. M.Sivaji .. Petitioner in WP.24563/2008 R.Nallthambi .. Petitioner in WP.958/2009 S.V.S.Ramesh Kumar .. Petitioner in WP(MD)No.3694/2007 vs. 1.The State Transport Appellate Tribunal, High Court Buildings Chennai 104. 2.The Regional Transport Authority Pudukottai Pudukottai District. 3.S.V.S.Ramesh Kumar 4.R.Nallathambi .. Respondents in W.P.No.24563/2008 1.M.Sivaji 2.The Regional Transport Authority Pudukottai Pudukottai District. 3.S.V.S.Ramesh Kumar https://hcservices.ecourts.gov.in/hcservices/ 4.The Presiding Officer The State Transport Appellate Tribunal, Chennai 104. .. Respondents in WP.No.958/2009 1.The Transport Commissioner Chepauk, Chennai 9. 2.The Regional Transport Authority Pudukottai Pudukottai District. 3.M.Sivaji 4.R.Nallathambi 5.The State Transport Appellate Tribunal, City Civil Court Buildings Chennai 104. .. Respondents in WP(MD)No.3694/2007 (R5 impleaded vide order date 4.7.2007 in MP No.3/2007 in WP 3694/2007) Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records relating to the order of 1st respondent in M.V.Appl.No.68/2007 dated 17.9.2008 confirming the order of the 2nd respondent dated 25.1.2007 (WP No.24563/2008) and 4th respondent in appeal No.68/2007 dated 17.9.2008 and the order passed by the 2nd respondent in this proceeding No.A2/26744/06 dated 25.1.2007 (WP No.958/09) and writ of Certiorarified Mandamus calling for the records connected with the order passed in proceedings A2/26744/06 dated 25.1.2007 passed by the 2nd respondent and to quash the portion of the last paragraph of the order such as "the transferee Thiru S.V.S.Ramesh Kumar, S/o.S.V.S.Vairavan Servai, No.743, Periyar Nagar, Rajagopalpuram, Pudukkottai, is hereby directed to produce the permit and registration certificate of the vehicle TN 55-K-5583 together with valid insurance certificate, fitness certificate and current tax paid within four months form the date of the receipt of this order failing which the sanction accorded will be revoked as per rule 213(1) of Tamil Nadu Motor Vehicle Rules 1989 without further notice and consequently issue appropriate directions to the 2nd respondent directing the 3rd and 4th respondent to produce the permit and registration certificate of the vehicle TN https://hcservices.ecourts.gov.in/hcservices/ 55-K-5583 together with insurance certificate, fitness certificate and current tax paid as per rule 213 (1) of Tamil Nadu Motor Vehicle Rules 1989 (WP 3694/2007). For petitioner : Mr.S.Ravee Kumar in WP.24563/08, R.1 in WP.958/09 & R.3 in WP(MD)No.3694/07 For petitioner : Mr.R.Thiagarajan,Sr.Counsel in WP.958/09, for Mr.K.Raja R.4 in WP.24563/08 & WP(MD)No.3694/07 For petitioner : Mr.N.Gopalakrishnan in WP(MD)No.3694/07, R.3 in WP.24563/08 & WP.958/09. For R.2 in WP.Nos.24563/08: Mr.R.Murali 958/09 & WP(MD)No.3694/07 Government Advocate and also for R.1 in WP(MD)No.3694/07 .. COMMON ORDER All these writ petitions are filed challenging the impugned judgment of the State Transport Appellate Tribunal, Chennai, passed in M.V.Appeal No.68 of 2007 dated 17.9.2008. While the W.P.No.24563 of 2008 has been filed by M.Sivaji, the appellant before the Tribunal, W.P.No.958 of 2009 has been filed by the third respondent before the Tribunal, viz., R.Nallathambi and W.P.(MD) No.3694 of 2007 filed by the second respondent before the Tribunal, by name, S.V.S.Rameshkumar. 2. For the purpose of brevity, the parties are referred to as found in W.P.No.24563 of 2008. 3. The writ petitioner in W.P.No.24563 of 2008, M.Sivaji is stated to have applied for permit for plying his bus bearing registration No.TN-55-K-5583 on the route Kalamavur gate to Peravoorani in respect of which it is stated that he has been granted permit by the second respondent, the Regional Transport Authority, Pudukottai which is valid up to 14.1.2011. https://hcservices.ecourts.gov.in/hcservices/ 3(a). It is the case of the petitioner that since he was to go out of the country, he made his cousin brother, Nagaraj to look after his bus. It is stated that since there was certain fraud alleged to have been committed by him, there was a loss and at the request of the third respondent, S.V.S.Rameshkumar and his father who are stated to be known to the petitioner and who have approached to rescue the petitioner from his problems, the petitioner consented to give a joint application to transfer the bus permit to the name of the third respondent, on the belief that the third respondent would transfer the permit again in the name of the petitioner after solving the problems. Accordingly, a joint application dated 12.6.2006 was filed by the petitioner and the third respondent, S.V.S.Rameshkumar to transfer the stage carriage permit in respect of TN-55-K-5583 plying on the said route in favour of the third respondent, under section 82 of the Motor Vehicles Act. 3(b). While so, the 4th respondent, R.Nallathambi is stated to have objected to the transfer of permit in the name of the third respondent on 27.6.2006. It is stated that such objection has been raised by the 4th respondent before the transfer was effected in the name of the third respondent. It is the case of the petitioner that after the 4th respondent raised objection, the second respondent has not passed any order of transfer and the same is kept pending. It is the case of the petitioner that the note order stated to have been passed by the second respondent on 28.6.2006 was not passed. The second respondent issued a notice to the petitioner as well as the respondent 3 and 4 to conduct hearings on several dates and final hearing was conducted on 22.1.2007. 3(c). It is stated that thereafter, the petitioner came to know about the fraudulent intention of the third respondent to cheat him and therefore, he gave a letter to the second respondent on 16.1.2007 withdrawing the transfer application dated 12.6.2006. It is alleged that during the course of hearing, when the petitioner came to know about some manipulations stated to have been effected by the third respondent, certain complaints have been made. However, the second respondent ultimately passed orders on 25.1.2007 transferring the permit in the name of the third respondent based on the consent application dated 12.6.2006. 3(d). It is, against the said order of the second respondent, the petitioner filed appeal before the first respondent Tribunal in MV.Appeal No.68 of 2007 and the Appellate Tribunal by the impugned judgment dated 17.9.2008, confirmed the order of the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 4. W.P.(MD) No.3694 of 2007 has been filed by the third respondent S.V.S.Rameshkumar challenging a portion of the original order of the second respondent dated 25.1.2007, by which the third respondent as transferee has been directed to produce the permit and registration certificate of the vehicle together with valid insurance certificate, fitness certificate and certificate as to the payment of current tax within four months from the date of receipt of the order, failing which the sanction accorded would be revoked as per rule 213(1) of the Tamil Nadu Motor Vehicles Rules 1989 without further notice, and also to issue a consequential direction to the second respondent to direct the respondents 3 and 4 to produce registration certificate of the vehicle along with insurance certificate, tax certificate, etc. 5. The writ petitioner and the 4th respondent have filed the writ petitions in W.P.No.24563 of 2008 and 958 of 2009 respectively challenging the impugned order of the first respondent Tribunal on the ground that the same is against the provisions of the Tamil Nadu Motor Vehicles Rules that no note order or sanction was passed by the second respondent on 28.6.2006 and the same was created in collusion with the third respondent, that the note order can neither be a sanction, nor an order as contemplated under the Motor Vehicles Rules, that the note order itself does not amount to granting the sanction and the existence of such note order has never been revealed at any point of time, that even if any such order was passed, the same can be cancelled and therefore, by virtue of the powers under rule 210 of the Tamil Nadu Motor Vehicles Rules 1989, the second respondent ought to have cancelled such note order, that various other internal communications show that there is no note order, that the petitioner has not received any consideration for the purpose of transfer in the name of the third respondent, that in the representation dated 16.1.2007, the petitioner has withdrawn the application for transfer, that the first respondent has failed to consider the true impact of the rule 210 of the Tamil Nadu Motor Vehicles Rules,1989 and that there is no finding on the order of the second respondent dated 28.6.2006, apart from many other grounds. 6. In W.P.No.958 of 2009, the writ petition filed by the 4th respondent Nallathambi, the 4th respondent in fact supported the writ petitioner on the basis that there was no such note order by the Regional Transport authority and that the writ petitioner in W.P.No.958 of 2009 raised objection about the transfer even before the transfer application made by the third respondent and the petitioner and the same should have been taken by the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 6(a). It is the case of the 4th respondent Nallathambi in his writ petition that he entered into an agreement with the petitioner M.Sivaji and his brothers to purchase the permit in respect of the vehicle bearing registration No.TN-55-F-6070 and paid full sale consideration and obtained delivery note and sale receipt in the prescribed Form Nos.29 and 30 and the said Sivaji gave a joint application in his favour and he also paid the proper fees in the Office of the Regional Transport Authority on 6.1.2004 for the transfer of permit. In the meantime, the vehicle bearing registration No.TN-55-F-6070 was replaced by the new vehicle bearing registration No.TN-55-K-5583 and the loan availed in respect of that vehicle was cleared by him and after the repayment of the new vehicle, a fresh joint application was filed by the writ petitioner in W.P.No.24563 of 2008 and the same was submitted on 5.10.2005 along with all documents stating that the said application is based on the sale consideration which was passed earlier in 2003. 6(b). It is stated that after the said petitioner Sivaji executed the joint application, there has been some dispute in the joint family and there was a panchayat and the dispute persisted. In the meantime, the third respondent, S.V.S.Rameshkumar took advantage of the dispute and in the guise of helping the said Sivaji, he entered into a joint application on 12.6.2006 before the Transport Commissioner, Chennai, which is, according to him, to grab the permit, since the consideration had already been paid by the 4th respondent Nallathambi. 7. In the counter affidavit filed by the second respondent in W.P.No.24563 of 2008, viz., the Regional Transport Authority, it is sated that the petitioner in the said writ petition along with the third respondent S.V.S.Rameshkumar filed a joint application on 12.6.2006 in respect of the stage carriage permit for the vehicle in TN-55-K-5583 plying on the route from Kalamavur gate to Peravoorani, to transfer the permit in the name of the third respondent and the said application was presented before the Transport Commissioner, Chennai and forwarded to the Regional Transport Office, Pudukottai on 14.6.2006 to process the same and pass orders in accordance with law. 7(a). It is stated that the second respondent received the said application on 22.6.2006 and both the petitioner and the third respondent appeared before the second respondent on 22.6.2006 and affixed their signatures on the said date before the Regional Transport Officer. It is stated that on the same day, the Regional Transport Officer called for a report from the Motor Vehicles Inspector Grade-I, Pudukottai regarding the genuineness of the residential address and workshop inspection, etc. and the Motor Vehicles Inspector also filed a report. It is https://hcservices.ecourts.gov.in/hcservices/ stated that on 26.6.2006 itself the Secretary to the Regional Transport Authority, Pudukottai submitted a detailed note for orders of permit before the Regional Transport Authority and on the same day, the Authority made an endorsement stating, “what is the procedure to be following for such transfer of permit as per rules extent? Have those rules and procedure been followed?” 7(b). It is stated that on 27.6.2006, the Secretary to the Regional Transport Authority submitted a detailed note about the procedure and on 28.6.2006, the second respondent passed an order viz., “Since all statutory provisions and conditions have been met, permission may be granted for transfer of permit. Put orders to that effect”. It is stated that in the meantime, the 4th respondent, Nallathambi sent a telegram on 27.6.2007 stated to have been received at 2.30 p.m. stating that he is running the vehicle on the route, and requested the second respondent to desist from transferring the permit to third parties without his consent and production of original permit and registration certificate of the vehicle. The said telegram was put up before the second respondent on 7.7.2006 to convene a hearing among the applicants and objectors and hearing notice was issued on 7.7.2006 calling upon the parties to appear on 24.7.2006. 7(c). On 24.7.2006, the petitioner and the third respondent filed a joint written representation along with an authorization letter of the petitioner, in which they have stated that the 4th respondent Nallathambi has no locus standi to object to the transfer and therefore, asked for early disposal of the joint application without reference to the objection of the 4th respondent. However, the objector asked for adjournment of hearing to 8.8.2006 and subsequently to 18.8.2006 and on the said date, both the objector and the joint applicants did not appear and the matter was adjourned. In the meantime, the third respondent filed W.P.No.9475 of 2006 in the Madurai Bench of Madras High Court to transfer the proceedings based on the note file order of the second respondent dated 28.6.2006. 7(d). In the meantime, the petitioner submitted a letter dated 16.1.2007, which was received by the second respondent on 19.1.2007 stating that he is withdrawing the joint application submitted on 12.6.2006. Since the order was passed by the second respondent on 28.6.2006 effecting transfer, the second respondent became functus officio and the hearing on the basis of the letter https://hcservices.ecourts.gov.in/hcservices/ of the petitioner dated 16.1.2007 was justified. Ultimately, the Regional Transport Authority passed the order on 25.1.2007 stating that the note order passed on 28.6.2006 holds good and the transfer has been allowed and the objection raised by the 4th respondent Nallathambi has been considered and rejected. 7(e). The application filed by the petitioner Sivaji on 16.1.2007 for withdrawal of consent dated 26.6.2006 was rejected since by that time, the sanction order was passed on 28.6.2006 itself. In the said order, the second respondent directed the transferee third respondent to produce the permit, registration certificate of the vehicle, etc. as per rule 213 of the Tamil Nadu Motor Vehicles Rules 1989, which is challenged by the third respondent transferee in W.P.(MD) No.3694 of 2007. The writ petitioner filed an appeal before the Appellate Tribunal against the order of the second respondent which was also dismissed. 8. The point that is to be considered in these writ petitions is, whether the note order stated to have been passed by the second respondent on 28.6.2006, allowing the joint application filed by the petitioner along with the third respondent dated 12.6.2006 for transferring the permit in respect of the vehicle in question in favour of the third respondent S.V.S.Rameshkumar is valid and that has the effect of transferring the permit in favour of the third respondent? 9. While considering the said question, it is incidental to find out as to whether the conduct of the petitioner, who has given the joint application along with the third respondent on 12.6.2006 requesting transfer of permit in the name of the third respondent and who has also taken a stand at the time of hearing on 24.7.2006 that the 4th respondent Nallathambi has no locus standi to object the transfer, but subsequently changed his stand by going back from his earlier stand, is acceptable, especially when the second respondent passed orders on 25.1.2007 confirming the note order dated 28.6.2006. 10. A reading of the entire facts show that the writ petitioner, who has jointly signed along with the third respondent, S.V.S.Rameshkumar on 12.6.2006 agreeing for transfer of permit in respect of the stage carriage bearing registration No.TN-55-K-5583 and subsequently reiterated the same on the date of hearing before the second respondent on 24.7.2006 stating that the 4th respondent Nallathambi has no locus standi to question the said transfer, has chosen to take a different stand by joining hands with the 4th respondent Nallathambi to go against the third respondent, the original transferee under the joint application dated 12.6.2006. The main objection raised on behalf of the writ petitioner is that the note order passed by the second respondent https://hcservices.ecourts.gov.in/hcservices/ dated 28.6.2006 cannot be deemed to be an order passed under the Motor Vehicles Rules and according to him, some fraud has been played in obtaining such order. The 4th respondent who was originally objected to by the petitioner has now joined with the petitioner to raise objections against the third respondent. 11. It is seen that the sale receipt dated 28.4.2003 stated to be issued by the petitioner Sivaji for an amount of Rs.4 lakhs in the name of the 4th respondent Nallathambi is relating to another and different vehicle bearing registration No.TN-55-F- 6070 running on a different route between Pudukottai and Peravoorani via, Alangudi, Aranthangi and Subramaniapuram, as per the permit which was valid up to 14.1.2006. It is in respect of that vehicle the petitioner Sivaji has signed in Form Nos.29 and 30. 12. Even though it is stated that thereafter as against the said consideration for the transfer of the above said vehicle, there was a joint application made by the petitioner and the 4th respondent in respect of the vehicle in question viz., TN-55-K- 5583, there is nothing to show that the second respondent who is the authority competent to effect such transfer has passed any order of transfer in the name of the 4th respondent. In the meantime, there are receipts to show that the petitioner received an amount of Rs.8 lakhs from the third respondent on 28.6.2006 for the purpose of transferring the permit in respect of TN-55-K- 5583, in respect of which originally the joint application was made by the petitioner and the third respondent on 12.6.2006 to the Transport Commissioner, Chennai which was transferred to the second respondent on 26.6.2006 and on the said date, both the petitioner and the third respondent affixed their signatures before the Regional Transport Officer who also countersigned the same. 13. The second respondent passed the note order on 28.6.2006. It was only on 16.1.2007, the petitioner addressed a letter to the second respondent withdrawing his joint application dated 12.6.2006. A reference to the letter dated 16.1.2007 makes it clear and it is also admitted that the joint application entered between the petitioner and the third respondent dated 12.6.2006 as it is filed by the petitioner himself in his typed- set of papers, was again signed before the second respondent after the application was received from the Transport Commissioner on 26.6.2006 and it was, only thereafter on 16.1.2007, the petitioner chose to give his objections withdrawing the original consent application. Inasmuch as the joint application is stated to have been filed by the petitioner and the 4th respondent Nallathambi as early as 5.10.2005, in which nobody is stated to have claimed any interest on the basis of https://hcservices.ecourts.gov.in/hcservices/ orders from the second respondent, nor the second respondent has passed any order transferring the permit in the name of the 4th respondent, the present claim of the 4th respondent can only be termed as a collusive attempt with the petitioner to help him illegally to get over the third respondent. 14. A reference to the original order of the second respondent dated 25.1.2007 shows that the second respondent passed an order on 28.6.2006, of course, a note order, but, in the meantime, since objections were received, for the purpose of giving opportunity to all the parties, a detailed enquiry was conducted. In fact, the first respondent in his original order, has found that the objection raised by the 4th respondent is not entertainable under Rule 211 of the Tamil Nadu Motor Vehicles Rules,1989. 15. Under Rule 211 of the Tamil Nadu Motor Vehicles Rules,1989 only the parties to the application for transfer of permit are entitled to have summons of hearing. The said Rule is as follows: “ 211. Summoning of parties.- The Transport Authority may summon both the parties to the application for the transfer of a permit to appear before it. If the application raises doubts or suspicion of trafficking in permits or involves transfer to a person who in the opinion of the Transport Authority is not qualified and eligible for the grant of a new permit, the application shall be rejected.” As correctly found by the second respondent, the original authority, the so-called objections of the 4th respondent do not fall within the ambit of Rule 211 and therefore, the second respondent has found that the objections raised by the 4th respondent are not sustainable in law. As far as the claim of the petitioner who has withdrawn the consent on 17.1.2007 is concerned, the original authority has come to a conclusion as per Rule 212 of the said Rules as follows: “ 212. Withdrawal of consent for transfer.- When the consent of either or both the parties to the transfer of a permit is withdrawn before transfer is sanctioned, the Transport Authority shall drop further proceedings in regard to the transfer of that permit: https://hcservices.ecourts.gov.in/hcservices/ Provided that, when either of the parties withdraws such consent, the Transport Authority shall, before dropping such proceedings inform the other party of the withdrawal of consent.” The second respondent has already taken a decision and therefore, the question of withdrawal after such decision does not arise. 16. This Court on reference to the file produced by the learned Government Advocate, is able to find that in fact a note order was passed by the second respondent on 26.6.2006. The contention of the learned counsel for the petitioner, by placing reliance on Rule 210, that the transfer has to be treated as void for giving false information, has absolutely no meaning. That apart, Rules 208, 209 and 210 are to be read together. Under Rule 210 which is as follows: “210. Transfer to be void for false information.- Without prejudice to any other penalty to which the parties may be liable, any transfer of a permit ordered upon an application which the Transport Authority is subsequently satisfied was false in respect of the matter specified in rule 209 or in respect of any other materials particular shall be void.” Only if there are material to show that a false information has been given not only in respect of the particulars relating to premium, etc., but also in respect of other material particulars, the transfer of permit would be declared void, apart from imposition of penalty. That is absolutely not an issue before the second respondent in this case at all. In the absence of any material to show that any fraud has been played by the third respondent or any misleading statement has been made when the second respondent passed orders by way of note order dated 28.6.2006, it is not possible to accept the contention of the learned counsel for the petitioner and the 4th respondent that the transfer effected in the name of the third respondent should be held as void. The second respondent having effected transfer has not communicated the same for the reason that in the meantime, objection was raised and in order to give opportunity to all the parties, he gave notice of hearing to all the parties. 17. The judgment of the Supreme Court in Sethi Auto Service Station and another vs. Delhi9 Development Authority and others [(2009) 1 SCC 180], on which reliance was placed by Mr.R.Thiagarajan, learned senior counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioner to show that departmental notes have no sanction of law is certainly not applicable to the facts of