Court No. - 50
Case :- WRIT - A No. - 13418 of 2019 Petitioner :- Mohd. Javed Respondent :- State Transport Appellate Tribunal And 2 Others Counsel for Petitioner :- Shobhit Dubey,Anant Ram Dube Counsel for Respondent :- C.S.C.
Hon'ble Ashok Kumar,J.
Heard Sri A.R. Dube, learned counsel for the petitioner and Sri P.K. Giri, learned Additional C.S.C., who represents all the respondents.
Considering the nature of the order that is being passed, the learned counsel for the respondents does not pray for time to file counter affidavit and therefore with the consent of learned counsel for the parties, this petition is being disposed of finally.
The petitioner is aggrieved by an order and the judgment of the State Transport Appellate Tribunal, U.P. dated 26.04.2019 thereby the State Transport Appellate Tribunal, herein after referred as the 'Appellate Tribunal' has dismissed / rejected the Misc. Case No. 30 of 2019 filed by the petitioner solely on the ground of limitation without touching the merit of the case.
The fact of the case are that the petitioner is indulged in transport business and he applied for grant of permanent stage carriage permit on the route. The application of the petitioner for grant of stage carriage permit is considered by the Regional Transport Authority, Aligarh and the Regional Transport Authority, Aligarh by its resolution have granted permanent stage carriage permit to the petitioner by imposing model condition of vehicle of ten years age. The date of grant of permission by the Regional Transport Authority, Aligarh was 22.11.2018, however according to the petitioner the order of grant of permission was not pronounced on the said date i.e. on 22.11.2018 and it was kept pending by the Regional Transport Authority, Aligarh.
The petitioner claims that on several times he approached the office of the Regional Transport Authority, Aligarh and requested for issuance of the copy of the grant of permission, however the same was not delivered.
According to the petitioner the application is moved on 19.12.2018 before the Regional Transport Authority, Aligarh with a request to provide the certified copy of the order granting the permission dated 22.11.2018 to the petitioner but neither any information was supplied nor the copy of the decision was issued.
The petitioner claims that he has continuously approached the office of the Regional Transport Authority, Aligarh but failed in his efforts to get the copy of the order dated 22.11.2018 of grant of permission.
The petitioner submits that the copy of the order dated 22.11.2018 passed by the Regional Transport Authority, Aligarh was only provided to the petitioner on 21.02.2019 in which the date of issuance of the copy of the order was mentioned as 19.12.2018 instead of 21.02.2019. The petitioner approached the office of the Secretary, Regional Transport Authority, Aligarh to correct the date of issuance of the order dated 22.11.2018 but no heed was paid on the request of the petitioner to correct the date of issuance of the copy of the order dated 22.11.2018.
The counsel for the petitioner submits that since permanent stage carriage permit has been granted to the petitioner on the applied route with the condition that for lifting the permit the age of the vehicle should not be more than ten years.
According to the petitioner the condition stipulated in the permit was not correct nor acceptable, hence the petitioner was advised by his counsel to file a Misc. case before the State Transport Appellate Tribunal, U.P., hence the petitioner has filed Misc. case before the State Transport Appellate Tribunal, U.P. at Lucknow, which was numbered being Misc. Case No. 30 of 2019.
The above Misc. case was heard by the Appellate Tribunal and is decided by judgment and order dated 26.04.2019 whereby the Misc. case of the petitioner is dismissed on the ground of limitation without touching the merit of the case, hence the present petition.
The contention of the counsel for the petitioner is that admittedly the copy of the judgment and order passed by the Regional Transport Authority, Aligarh has been served upon the petitioner on 21.02.2019 against which the Misc. case has been filed by the petitioner on 18.03.2019, that is within a period of 30 days, even then the Appellate Tribunal has dismissed the Misc. case of the petitioner treating the same is filed beyond the prescribed limitation.
Learned counsel for the petitioner submits that the copy of the impugned order passed by the Regional Transport Authority, Aligarh dated 22.11.2018 is received on 21.02.2019 and not on 19.12.2018 therefore the rejection of the Misc. case by the appellate Tribunal is totally illegal, arbitrary and bad.
Learned counsel for the petitioner placed reliance of the provision of Section 90 of the Motor Vehicles Act, 1988 which reads as follows:-
"Section 90. Revision.- The State Transport Appellate Tribunal may, on an application made to it, call for the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority against which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final.
Provided that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a State Transport Authority or Regional Transport Authority, unless the application is made within thirty days from the date of the order.
Provided further that the State Transport Appellate Tribunal may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by good and sufficient cause from making the application in time.
Provided also that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard."
Learned counsel for the petitioner submits that admittedly the order dated 22.11.2018 passed by the Regional Transport Authority, Aligarh was not communicated to the petitioner either on the date of order or thereafter or before 21.02.2019 therefore the rejection of the Misc. case by the Appellate Tribunal on the ground of limitation is wholly illegal bad and is also against the provision of Section 90 of the Motor Vehicles Act, 1988.
Learned counsel for the petitioner has referred the second proviso of Section 90 of the Act.
Learned counsel for the petitioner submits that since there was no delay in filing the Misc. case at the hands of the petitioner therefore there was no occasion to file the delay condonation application.
He has further referred Rule 91(2) of U.P. Motor Vehicle Rules, 1998 which provides that any aggrieved person may prefer an appeal within a period of 30 days of the receipt of the order.
In the instant case the petitioner claims that he received the copy of the order impugned only on 21.02.2019 and the same was never communicated to the petitioner prior to 21.02.2019 therefore the Misc. case filed by the petitioner on 18.03.2019 is well within the prescribed period of limitation.
Assailing the order passed by the Appellate Authority, learned counsel for the petitioner has submitted that under Rule 60 of the U.P. Motor Vehicles Rules, 1998 every decision of the Regional Transport Authority or State Transport Authority has to be published on the notice board by the Secretary of the concerned Regional Transport Authority or the State Transport Authority and in absence of its publication or proof of its communication / information of the order, the date of the order would be deemed to be the date on which the order is communicated or published and as there exists no material on record to show that the order was published, as per the provisions of the Motor Vehicles Rules or otherwise communicated to the petitioner, the date of the order would be deemed to be the date of its knowledge, hence Misc. case of the petitioner was filed well within the period of limitation. In the alternative, it has been submitted that in any view of the matter since the Appellate Authority had the power to condone the delay in filing the appeal, the Misc. case of the petitioner ought not to have been rejected on the ground of limitation or on technical ground as such the Misc. case ought to have been decided by the Appellate Tribunal on merits.
Learned Additional C.S.C., who has appeared on behalf of all the respondents, though sought to defend the order passed by the Appellate Authority but did not dispute the fact that the Appellate Authority / Appellate Tribunal had the power to condone the delay as per the provisions of second proviso to Section 90 of the Motor Vehicles Act, 1988.
Having considered the rival submissions, I am of the opinion that prima facie there appears no delay in filing the Misc. case before the Tribunal however, the delay if any noticed by the Tribunal ought to have been condoned when the petitioner has explained in his memo of appeal / affidavit that the order was neither published nor communicated and that no knowledge about the order was received by the petitioner upon enquiry from the office of the respondent no. 2 and that the copy of the order was only received by the petitioner on 21.02.2019 the Appellate Tribunal should have been proceeded in the matter by deciding the Misc. case filed by the petitioner on merits.
It is well settled that power to condone the delay has to be liberally construed to advance the cause of justice and the limitation should not be used to shut out adjudication on merits, particularly, where the delay is not inordinate which, if condoned, would cause substantial prejudice to the other affected party. Accordingly, this Court considers it appropriate to set aside the order passed by the State Transport Appellate Tribunal, U.P., Lucknow, dated 26.04.2019 and the Appellate Tribunal therefore is directed to proceed in the matter and to decide the Misc. case filed by the petitioner on its merit.
The Appellate Tribunal will consider all legal and factual pleas on merits to be raised before it by the petitioner.
With the above directions, the writ petition stands allowed. Order Date :- 26.8.2019 SK Srivastava