Mohd. Saleem vs State Of U.P. And 5 Others
2022 Latest Caselaw 1 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 10
 
Case :- WRIT - A No. - 7780 of 2019
 
Petitioner :- Mohd. Saleem
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Shiv Ram Misra,Shashi Nandan, Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Greesh Kumar Malviya
 
with
 
Case :- WRIT - A No. - 9058 of 2019
 
Petitioner :- Mohd. Ayub And Another
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Shiv Ram Misra,Rahul Agarwal,Shashi Nandan, Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Greesh Kumar Malviya,Shesh Kumar Srivastava
 
with 
 
Case :- WRIT - A No. - 6340 of 2020
 
Petitioner :- Mohd. Saleem And 4 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shiv Ram Misra,Ram Krishna Mishra,Sr. Advocate (Shashi Nandan)
 
Counsel for Respondent :- C.S.C.,Greesh Kumar Malviya
 
with
 
Civil Misc. Recall Application No. 02 of 2019
 
in
 
Case :- WRIT - A No. - 17224 of 2019
 
Petitioner :- Gulsher Ahmad
 
Respondent :- State Of U P And 7 Others
 
Counsel for Petitioner :- Samarath Singh,Hritudhwaj Pratap Sahi,Sankalp Narain
 
Counsel for Respondent :- C.S.C.,Shiv Ram Misra
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Shashi Nandan, Senior Advocate, assisted by Sri Shiv Ram Misra, learned counsel for the petitioner, learned Standing Counsel for respondents No.1 to 3, Sri G.K.Singh, Senior Advocate, assisted by Sri Greesh Kumar Malviya for private respondent Nos.4 and 5 and Sri Shek Kumar Srivastava, learned counsel for respondent No.6.

2. These are four connected writ petitions which are in regard to the dispute among the private bus operators for inter state route known as Datia-Chatarpur-via-Jhansi Naugaon. Writ petition nos. 7780 of 2019 and 9058 of 2019 have been filed assailing the order dated 09.05.2019 passed in Appeal No. 28 of 2015 by the State Transport Appellate Tribunal, U.P. at Lucknow (hereinafter referred as STAT), while writ petition no. 6340 of 2020 assails the order dated 27.02.2020 passed by the STAT passed in Appeal No. 33 of 2015. While in writ petition no. 17224 of 2019 a civil misc. recall application has been filed by one Tanveer Ahamad for recalling the order dated 01.11.2019 passed by this Court.

3. As the controversy raised in all four connected writ petitions are similar, thus, these petitions are heard together and decided by a common order with the consent of counsel for the parties.

4. Facts in brief for better appreciation of the controversy are herein stated as under;

5. That within the jurisdiction of State Transport Authority there is a route known as Datia-Chatarpur-via-Jhansi Naugaon route. Total length of the route is 158 kilometres out of which 87 kilometres lie within the jurisdiction of State of U.P., while 71 kilometres stretch in the jurisdiction of State of M.P.

6. For providing transport facilities to the public of inter state route a reciprocal agreement was arrived between the State of U.P. and State of M.P. on 21.11.2006 which was published in the gazette. According to the agreement, route at serial no. 86 provided for ten permits with twenty trips to be allotted to the private bus operators of State of U.P. Pursuant to which several applications were filed for grant of permits for the route by the petitioners as well as the contesting respondents.

7. For the first time, on 17.03.2011 the applications came up for consideration before the STA, and the authority rejected all the applications on the ground that some of the information in column of form no. S.R. 20 was not filled by the applicants. Against the decision of STA, appeals were filed before the STAT and vide order dated 21.02.2013 all the appeals filed by the different applicants were allowed and matter was remitted to the STA for reconsideration.

8. The order of STAT was subject matter of challenge before this Court through various writ petitions, being writ petition nos. 13684 of 2013, 13686 of 2013, 13689 of 2013, 13687 of 2013 and 12157 of 2013, on the ground that power of the STAT was co-extensive with that of STA and it should have decided the matter itself without remitting the matter to the STA. On 5/12-3/2013 all the writ petitions were allowed by this Court and matter was remitted to the STAT who was required to decide the same on merits. STAT on 10.05.2013 dismissed all the appeals. Against the said decision several writ petitions being writ petition nos. 29556 of 2013, 30406 of 2013, 30404 of 2013, 30396 of 2013 and 30401 of 2013, were filed challenging the order of STAT.

9. This Court on 19.12.2014 allowed all the writ petitions and remitted the matter to the STA for reconsideration with specific directions to consider the applications of the applicants after considering the comparative merit. The entire exercise was to be concluded within six weeks from the date of the judgment.

10. STA on 16.04.2015 granted five permits to petitioners of writ petition no. 6340 of 2020. The said decision was questioned by one Rauf Khan by filing writ petition no. 28044 of 2015. This Court on 15.05.2015 dismissed the said writ petition on the ground of alternative remedy and required him to file an appeal against the decision of STA.

11. Rauf Khan filed Appeal No. 28 of 2015 before the STAT. One Gulsher Ahamad also filed an appeal and revision on 01.06.2015 against the order of STA dated 16.04.2015 before the STAT. The appeal and revision of Gulsher Ahamad was dismissed by the STAT on 10.04.2019 and 13.02.2019 on the ground of limitation, as it was filed beyond the period of limitation i.e. 30 days as the STA had taken decision on 16.04.2016.

12. Appeal and revision filed by one Garima Agarwal against the order of STA was also dismissed by the STAT on 26.09.2018 on the ground of limitation. However, appeal filed by Rauf Khan was heard by the STAT, and was partly allowed on 09.05.2019 granting permit to Rauf Khan, Gulsher Ahamad and Garima Agarwal. Further, the permit granted earlier to Mohd. Saleem, Mohd. Ayub and Tanveer Ahamad was cancelled on the ground that Rauf Khan, Gulsher Ahamad and Garima Agarwal were higher in merit and their vehicles were of later models. The order of STAT was challenged in writ petition nos. 7780 of 2019 and 9058 of 2019 by Mohd. Saleem and Mohd. Ayub, as far as the permits granted to Gulsher Ahamad and Garima Agarwal are concerned, on the ground that the order dated 09.05.2019 failed to take note of the fact that appeals and revisions filed by Gulsher Ahamad and Garima Agarwal stood dismissed by the earlier order of the STAT on the ground of limitation and their case cannot be considered.

13. Gulsher Ahamad filed writ petition nos. 17224 of 2019 and 17222 of 2019 challenging the order passed by the STAT dismissing his appeal and revision on the ground of limitation dated 13.02.2019 and 10.04.2019. On 01.11.2019 and 13.11.2019 this Court while allowing the writ petition directed the STAT to decide the appeal and revision on merit. In the said writ petition counsel of Mohd. Saleem, petitioner no. 1 in writ petition no. 6340 of 2020, had appeared, however, a recall application has been filed in writ petition no. 17224 of 2019 by one Tanveer Ahamad.

14. Acting on the remand order passed by this Court, the appellate authority on 27.02.2020 partly allowed the appeal of Gulsher Ahamad and remitted the matter to the STA for reconsideration on merits, setting aside the earlier decision of STA dated 16.04.2015. While the revision of Gulsher Ahamad, after remand order was passed by this Court, has been dismissed. It is against the order dated 27.02.2020 passed on the appeal of Gulsher Ahamad that writ petition no. 6340 of 2020 has been filed by the petitioners in that writ petitions. Hence, the following writ petitions have been preferred.

15. Sri Shashi Nandan, learned Senior Counsel, appearing for the petitioners in writ petition nos. 7780 of 2019, 6340 of 2020 and 9058 of 2019, submitted that once the appeal and revision of Gulsher Ahamad and Garima Agarwal stood dismissed by the STAT in the year 2018 and 2019, no question arose for allowing and granting them permit by the STAT in the appeal filed by Rauf Khan vide order dated 09.05.2019. He next contended that the provisions of Limitation Act does not apply in the proceedings under the Motor Vehicle Act 1988 (hereinafter called as the ''Act of 1988'), the power to condone the delay does not vest in the authorities.

16. It was next urged that Section 89 of the Act of 1988 only provides for filing of an appeal by an aggrieved person whose application is refused by the State or the Regional Transport Authority for grant of permit. While Section 90 empowers the STAT to entertain the revision where no appeal lies. According to him, there is no power vested with the Tribunal to condone the delay in challenging the order passed by the State or Regional Transport Authority.

17. Once the Tribunal had found that there was delay in filing the appeal and revision by the two applicants namely Gulsher Ahmad and Garima Agarwal, the Tribunal was not justified in granting permit to both these applicants granting benefit in the appeal filed by Rauf Khan. He, however, categorically submitted that the petitioners are not claiming any relief against Rauf Khan and their grievance is only against Gulsher Ahamad and Garima Agarwal.

18. On the question of recall application filed in writ petition no. 17224 of 2019, learned Senior Counsel submitted that it was filed without issuing notice to all the applicants and the present recall application was at the behest of one Tanveer Ahamad, who was not heard before the delay was condoned and the matter was remitted to the Tribunal to hear the matter afresh. Apart from the plea of limitation no other point was canvassed by the learned Senior Counsel challenging as to the merits of the case.

19. Sri G.K. Singh, learned Senior Counsel, appearing for the contesting respondent Gulsher Ahamad, in all connected matters, submitted that the U.P. Motor Vehicle Rules, 1998 (hereinafter referred as the ''Rules of 1998'), Rule 60 provides that every decision of the Regional Transport Authority and the State Transport Authority shall be published on the notice board by the Secretary of the concerned authority. He then contended that Rule 91 provides for the period for filing the appeal which is 30 days and has to be counted from the date of receipt of the order. As in the present case the information which was received by Gulsher Ahamad was on 06.05.2015 about the order dated 16.04.2015, thus, the appeal was within the prescribed time limit.

20. He next submitted that second proviso to Section 90 of the Act of 1988 provides that the revision may be entertained after the prescribed period of 30 days upon an application subject to satisfaction of Tribunal, thus, it is wrong to say that no provision for condonation of delay has been provided under the Act. He next urged that the controversy relating to the condonation of delay and appeals being filed beyond the period of limitation has been dealt in case of Mansoor Beg Vs. State of U.P. (Misc. Single No. 13158 of 2019) decided on 09.05.2019, Mohd. Javed Vs. State Transport Appellate Tribunal and 2 others (Writ-A No. 13418 of 2019) decided on 26.08.2019, Smt. Roshan Ara Vs. State Transport Appellate Tribunal and 2 others (Writ-A No. 15933 of 2019) decided on 14.10.2019 and Ganesh Prasad Sahu Vs. State Transport Appellate Tribunal, Lucknow and others (Misc. Single No. 25976 of 2018) alongwith connected matters decided on 10.12.2019.

21. He then submitted that after the remand by this Court on 19.12.2014 the STA was duty bound to consider all the applications on the basis of comparative merit, but the authority proceeded to grant the permit ignoring the fact that on the date of consideration the vehicles which were of later models of Gulsher Ahamad and Garima Agarwal and Rauf Khan were not considered and placed at a lower merit than those of the petitioners whose vehicles were of older model, and were placed at a higher merit. According to the learned Senior Counsel appearing for the respondent the controversy regarding the limitation as raised by the petitioners' counsel has been set to rest by the decisions as quoted above and the Tribunal has wrongly interpreted provisions of Section 89 and 90 of the Act of 1988 and has not considered the Rule 91 of the Rules of 1998.

22. Having heard the rival submissions and upon careful consideration of the material on record, before proceeding to decide the matter on merits, relevant extract of the provisions of Act of 1988 and Rules of 1998 are necessary for better appreciation of the case. Section 89 and 90 of the Act of 1988 are extracted hereasunder;

"89. Appeals.--(1) Any person-

(a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or

(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or

(c) aggrieved by the refusal to transfer the permit under section 82, or

(d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such countersignature, or

(e) aggrieved by the refusal of renewal of a permit, or

(f) aggrieved by the refusal to grant permission under section 83, or

(g) aggrieved by any other order which may be prescribed,

may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final.

1[(2) The State Government shall constitute such number of Transport Appellate Tribunals as it thinks fit and each such Tribunal shall consist of a judicial officer who is not below the rank of a District Judge or who is qualified to be a Judge of the High Court and it shall exercise jurisdiction within such area as may be notified by that Government.]

(3) Notwithstanding anything contained in sub-section (1) or sub- section (2), every appeal pending at the commencement of this Act, shall continue to be proceeded with and disposed of as if this Act had not been passed.

Explanation.-For the removal of doubts, it is hereby declared that when any order is made by the State Transport Authority or the Regional Transport Authority in pursuance of a direction issued by the Inter-State Transport Commission under clause (c) of sub-section (2) of section 63A of the Motor Vehicles Act, 1939 (4 of 1939), as it stood immediately before the commencement of this Act, and any person feels aggrieved by such order on the ground that it is not in consonance with such direction, he may appeal under sub-section (1) to the State Transport Appellate Tribunal against such order but not against the direction so issued.

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."

23. Likewise Rule 60 and Rule 91 of the Rules of 1998 are extracted hereasunder;

"60. Publication of the decisions of the Transport Authority--Every decision of each Regional Transport Authority and the State Transport Authority shall be published on the notice board by the Secretary of the concerned Regional Transport Authority or the State Transport Authority, as the case may be for information to the persons concerned.

91. Appeal against the order of State or Regional Transport Authority.--(1) The authority to decide an appeal against the order of the State Transport Authority or a Regional Transport Authority in respect of matters dealt with in clauses (a), (b), (c), (d), (e), (f) and (g) of sub-section (1) of Section 89 shall be the State Transport Appellate Tribunal, constituted under sub-section (2) of Section 89.

(2) Any person aggrieved by an order referred to in sub-rule (1) may prefer an appeal within thirty days of the receipt of the order to the Chairman of the said Tribunal in the form of memorandum along with the requisite number of envelopes and necessary postage stamps for making service of notices through registered post on the respondents other than the State and Regional Transport Authorities. The memorandum shall set-forth concisely and under distinct heads the grounds of objection to the order appealed from. The memorandum shall be accompanied by as many copies thereof as there are respondents and shall also be accompanied by a certified copy of the order appealed against.

(3) (i) The appeal may be filed and argued by the appellant himself or by an agent or an Advocate, duly authorised in this behalf. On behalf of the respondent, other than the transport authority, the appeal may be argued by the respondent himself, by an agent or an Advocate duly authorised in this behalf.

(ii) On behalf of the transport authority, the Deputy Transport Commissioner (Tribunal) or an officer of the Transport Department, an agent or an Advocate duly authorised in this behalf by the Transport Commissioner may argue the appeal and may generally appeal", act and plead before the Appellate Tribunal.

(4) Upon receipt of an appeal in accordance with sub-rules (1), (2) and (3), the Tribunal may fix a date within the office hours, for hearing of the appeal giving the transport authority concerned, other respondents, if any and the appellant, not less than thirty days' notice and shall in that case, order the appellant to deposit the fee as specified under Rule 125.

(5) The notice of the date of the hearing shall be given by registered post to the appellant and the respondent, other than the transport authority on the address given in the memorandum of appeal or at any other address that may be filed by them for the purpose. The notice to the transport authority shall be given through the Deputy Transport Commissioner (Tribunal) or through such other person who may be appointed to argue the appeal before the Appellate Tribunal.

(6) The Appellate Tribunal may for sufficient reason, restore an appeal dismissed in default or for want of prosecution on an application moved by an appellant within fifteen days from the date of the knowledge of the order of dismissal of the appeal.

(7) The appellant shall, within fourteen days of the receipt of the intimation of the date of hearing, submit to the Tribunal copies of the documents upon which the appellant proposes to rely. The respondent shall have a right to file papers, on which he relies, within a week of the filing of the documents by the appellant.

(8) The Secretary, State Transport Authority, or Regional Transport Authority may give copies of any document connected with an appeal preferred under sub-rule (2) on payment of fee as specified under Rule 125.

(9) The Secretary, State Transport Authority, or Regional Transport Authority may allow any person interested in an appeal to inspect the file connected with such appeal on payment of fee as specified under Rule 125."

24. From careful reading of Section 89 of the Act of 1988 it is clear that any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or by any condition attached to a permit granted to him or aggrieved by revocation or suspension of permit, or by any portion of condition, refusal to transfer the permit, refusal of State or Regional Transport Authority to countersign of permit or any condition attached to such counter signature or refusal of renewal of a permit or refusal to grant permission under Section 83 may file an appeal with the STAT.

25. Likewise Section 90 of the Rules of 1998 deals with making an application to STAT against an order of State Transport Authority or Regional Transport Authority against which no appeal lies. The first proviso to Section 90 provides that no revision application shall be entertained unless it is made within 30 days from the date of order.

26. Second proviso to Section 90 provides leverage to the STAT for entertaining application after expiry of 30 days, if it is satisfied that the applicant was prevented by good and sufficient cause from making an application in time.

27. The Rules of 1998 having been framed under the provisions of the Act of 1988 read with Section 21 of General Clauses Act, 1987. Rule 60 provides for publication of every decision of the Regional Transport Authority and State Transport Authority on the notice board by the concerned Secretary for information to the persons concerned. Rule 91 (2) provides for procedure for filing an appeal by any aggrieved person before the STAT against the order of the STA or Regional Transport Authority within 30 days of the receipt of the order, meaning thereby that the period of limitation shall start running from the date of receipt of the order and not from the date of passing of the order.

28. This case has chequered history and initially applications filed by the bus operators for plying on Datia-Chatarpur-via-Jhansi-Naugaon route for the first time came for consideration in the year 2011. As the application stood rejected on technical ground the decision was challeged before the Tribunal, which allowed and remanded the matter to the STA. However, on the writ petitions filed by the different applicants on the ground of power of Tribunal being co-extensive with that of STA, the matter was remanded to the Tribunal to decide the same. However, the appeals were dismissed by the Tribunal, which led to the filing of number of petitions by the bus operators before this Court, and on 19.12.2014 the matter was remitted to the STA for reconsideration, allowing the writ petition with specific direction for considering the comparative merit of each applicant and the entire exercise was to be completed within six weeks.

29. It was from here on that the real dispute arose as the STA on 16.04.2015 considered all the applications and granted permit to five petitioners of writ petition no. 6340 of 2020 on the ground that Mohd. Saleem, Mohd. Ayub and Tanveer Ahamad on the date of earlier meeting held on 17.03.2011 had the latest model of the vehicle, which as on date is old and, thus, 45 days time was given to them to procure vehicle of new model while Hajjan Shamsunnisha Begam and Amir Raza, who had purchased the vehicle in the year 2015 were entitled for the grant of permit. It would be apposite to place the record relied by the STA in its meeting held on 16.04.2015 for the grant of permit considering the applications of various applicants, their vehicles, model and the date of registration. Relevant portion of the said meeting is extracted hereasunder;

"आज के बैठक में परिशिष्ट-ख के क्रमांक-1 से 10 पर एवं परिशिष्ट-ग के क्रमांक-01 से 16 तक उल्लिखित आवेदकों द्वारा प्रस्तावित वाहनों का विवरण निम्नवत् है-

परिशिष्ट-ख के आवेदकों का विवरण

क्रमांक

आवेदक का नाम

प्रस्तावित वाहन

माडल

पंजीयन तिथि

श्री मोहम्मद सलीम

यूपी-93/एटी-5657

फरवरी, 2013

22.4.2013

हज्जन समशूननिशा बेगम

यूपी-93/एटी-6645

दिसंबर, 2014

27.1.2015

गुलशेर अहमद

यूपी-93/एटी-6647

जनवरी, 2015

27.1.2015

श्री मुहम्मद अय्युब

यूपी-93/एटी-2569

फरवरी, 2013

30.4.2013

श्री आमिर रजा

यूपी-93/एटी-6646

दिसंबर, 2014

27.1.2015

श्री संतोष कुमार कोरी हरिजन एवं श्री मो० यूनुस खां

यूपी-95/बी-3286

10.5.2011 सह आवेदक श्री मो० यूनुस खां के नाम पंजीकृत है।

श्री रऊफ खां

यूपी-93/एटी-6649

जनवरी, 2015

27.1.2015

श्रीमती सफीना बानो

यूपी-93/एटी-6648

नवंबर, 2014

27.1.2015

श्री तनवीर अहमद

यूपी-93/टी-6780

यूपी-93/एटी-3193

10.3.2011

10.3.32011

श्रीमती गरिमा अग्रवाल

यूपी-93/एटी-6888

दिसंबर, 2014

2.3.2015

परिशिष्ट-ग के आवेदकों का विवरण।

श्री जावेद अख्तर

MP-16/P-0358

वाहन क्रय करने का सौदा होने की बात कही गयी है किंतु वह वाहन आवेदक के नाम पंजीकृत नहीं है।

श्रीमती शशी अरोरा

UP75/M3515

22.3.2012

श्रीमती आस्था अरोरा

MP07/P6777

13.10.2014

श्रीमती सीमा अरोरा

MP07/P5777

9.10.2015

श्री राजकुमार अरोरा

UP75/M7652

अगस्त,2014

1.11.2014

श्री पवन अरोरा

MP07/P9777

13.10.2014

श्री तनवीर अहमद

UP93/AT3193

10.3.2011

श्री मो० सलीम

UP93/AT5657

22.4.2013

श्री मो० आयूब

UP93/AT2569

30.4.2013

श्री मजीद खान

मेसर्स अशोका लीलेंड से वाहन बुक कराने की बात कही गयी।

श्री अनूप शिवहरे

MP07/P2255

1.12.2009

श्रीमती गरिमा अग्रवाल

UP93/T9556

20.4.2012

श्रीमती सिया जानकी

----

----

परमिट स्वीकृत होने पर नई वाहन क्रय कर परमिट प्राप्त करने की बात कही गयी।

श्री शहरयार अहमद

UP-93/AT-1732

----

आवेदन पत्र के प्रस्तावित वाहन आवेदक के नाम पंजीकृत होने का प्रमाण प्रस्तुत नहीं किया गया। परमिट स्वीकृत होने पर नई वाहन क्रय कर परमिट प्राप्त करने की बात कही गयी।

क्षेत्रीय प्रबंधक, उत्तर प्रदेश राज्य सड़क परिवहन निगम, झांसी।

UP93/T0611

27.3.2008

क्षेत्रीय प्रबंधक, उत्तर प्रदेश राज्य सड़क परिवहन निगम, झांसी।

UP93/T2482

4.6.2009

आज की बैठक दिनांक 16.4.2015 में आवेदकों द्वारा प्रस्तावित वाहनों के माडल एवं पंजीयन के आधार पर परिशिष्ट-ख के क्रमांक-10 पर उल्लिखित आवेदिका श्री गरिमा अग्रवाल, क्रमांक-7 पर उल्लिखित आवेदक श्री रऊफ खां, क्रमांक-3 पर उल्लिखित श्री गुलशेर अहमद, क्रमांक-5 पर उल्लिखित श्री आमिर रजा एवं क्रमांक-2 पर उल्लिखित हज्जन समसुननिशा बेगम मेरिट में क्रमशः 1, 2, 3, 4 व 5 पर आते हैं। "

30. From the decision of STA it is clear that Rauf Khan, Gulsher Ahamad and Garima Agarwal, who were having the vehicles of 2014-15 model, were not considered eligible while the petitioners having the older model were granted permit ignoring the directions of this Court dated 19.12.2014, solely on the ground that on the initial date of application i.e. 17.03.2011 they were having the vehicles of the higher model. The challenge made by Gulsher Ahamad to the order of STA was to be seen from the date of receipt of the order as provided under Rule 91 (2), and not from the date of order. The appellate authority recorded a categorical finding that Gulsher Ahamad came to know about the order on 06.05.2015, thus, his appeal was within time and rightly set-aside the order of STA and remanded the matter for reconsideration.

31. Similarly, in the appeal filed by Rauf Khan the Tribunal recorded a categorical finding that the STA had not complied the direction of this Court dated 19.12.2014 and had considered the applications which were lower in merit vis.a.vis. granted permit to those vehicles which were of older models, and vehicles of later models were denied from the zone of consideration. The Tribunal rightly cancelled the permit granted to Mohd. Saleem, Mohd. Ayub and Tanveer Ahamad whose vehicles were of older models while those of Gulsher Ahamad, Rauf Khan and Garima Agarwal were of later models.

32. The law relating to whether the State Transport Authority should consider respective claim on the date of consideration or on the date of application stood decided by the Apex Court as early as in 1965 in case of A.S. Jalaluddin Vs. Balasubramania Bus Services (P) Ltd. decided on 31.10.1967 followed by another decision of Apex Court in case of Maharashtra State Road Transport Corporation Vs. Mangrulpir Jt. Motor Service (P) Ltd. 1971 (2) SCC 222 which was followed and reaffirmed by Apex Court in case of Esskey Roadways (Firm) Vs. Anandhakrishnan Bus Service 1994 (6) SCC 71, wherein Apex Court held that the date of consideration of application was relevant and not the date of application. Relevant paragraph nos. 2 and 3 are extracted hereasunder;

"2. The only question that arises for consideration in this appeal is whether the RTA should consider the respective claims as on the date of the consideration or as on the date of the application. The RTA held that the date of application was the relevant date. But the Appellate Authority and the High Court found that the date of the consideration was the relevant date. Admittedly, the respondent-partnership firm was reconstituted on 1-4-1976 taking one Easwaran as a managing partner and it was registered on 21-5-1976 under Section 69 of the Partnership Act. Admittedly, the managing partner had the technical qualification as on the date of consideration. The managing partner being the technically qualified man, the respondents are entitled to the award of two more marks on the ground of qualifications. The Appellate Tribunal taking that fact into consideration awarded 10 marks and on comparative evaluation, since the respondent by then had three permits, granted the permit to the respondent. The question whether the date of consideration is the relevant date is no longer res integra. This Court in Maharashtra State Road Transport Corpn. v. Mangrulpir Jt. Motor Service (P) Ltd. held that: (SCC p. 230, para 22)

"The High Court was in error on the second question in holding that the Regional Transport Authority would have to consider the respective qualifications of the applicants as on the date of their applications and not as on the date of the actual consideration by the Regional Transport Authority of the applications for the grant of permit."

This Court considered diverse circumstances in support of that conclusion. This Court said that as on the date of the application if insolvency petition is pending against one of the applicants, but on the date of consideration if he is declared to be an insolvent, he becomes disentitled to the grant of permit by operation of law. As on the date of the application if there is no conviction, but as on the date of consideration, if an applicant is convicted, he also becomes ineligible for consideration.

3. Another circumstance arose in Dhani Devi v. Sant Bihari case was that when one of the applicants before the consideration died and his LRs were brought on record. When it was questioned, this Court held that the LRs are entitled to be considered as inheriting the estate of the deceased applicant for grant of permit. In A.S. Jalaluddin v. Balasubramania Bus Service (P) Ltd.3 the question arose that whether the applicant who secured the residential qualification by establishing a branch office at one of the terminus of the route would be considered eligible as on the date of the consideration. This Court held that he is entitled. In view of these considerations, it must be held that the date of consideration is the relevant date for the purpose of considering the eligibility to grant the required marks under Section 46 of Act 4 of 1939. This law being in operation from 1970, we do not think that it requires any reconsideration by this Court by a larger Bench. Accordingly, we hold that the date of consideration is the relevant date on which the respective claims of the candidates have to be considered for award of the marks for grant of permit. It is made clear that this declaration of law is confined to and peculiar of the statutory operation under Section 46 Act 5 of 1958."

33. Argument of learned Senior Counsel Sri Shashi Nandan that no provision for condonation of delay exist under Section 89 and 90 of the Act of 1988 cannot be accepted, as the second proviso to Section 90 categorically provides for the same giving the power to the Tribunal to condone the delay in case the cause shown is sufficient. Similarly, Rule 60 read with Rule 91 (2) of the Rules of 1998 clearly provides for the publication of the decision of the transport authority as well as Sub-Rule 2 of Rule 91 provides for period of limitation of 30 days from the date of receipt of order. As there is no denial to the fact that the order of the State Transport Authority was conveyed on 06.05.2015, the appeal was within time.

34. Moreover, after the remand of the matter by this Court on 19.12.2014 the STA was duty bound to comply with the directions while disposing of the applications for grant of route permit only on the basis of comparative merit of the parties, including considering the latest model of vehicle. The decision of the STA holding that on the date of earlier application of petitioner Mohd. Saleem, Mohd. Ayub and Tanveer Ahamad were having the vehicles of latest model and thus a window of 45 days was granted in the year 2015 so as to enable them to get the vehicle of latest model was totally against the mandate of this Court, as the applicants on the date of consideration i.e. 16.04.2015 were not having vehicles of the latest model and were lower in merit, but the STA arbitrarily and illegally granted permit which was totally in defiance of this Court's order.

35. A coordinate Bench of this Court in case of Mansoor Beg (Supra) had in extenso considered the power of condoning delay relying upon the decision of Apex Court in case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, 1987 (2) SCC 107. Relevant paragraph is extracted hereasunder;

"Hon'ble Supreme Court not once but on several occasions has emphasized on adopting justice-oriented approach by the courts/judicial authorities or Tribunals. In the case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, reported in [(1987) 2SCC 107], it has been held that the power to condone the delay is conferred in order to enable the courts to do substantial justice to the parties by disposing of the matters on merits and further that the expression "sufficient cause" is elastic enough to enable the courts to apply the law in a meaningful manner to subserve the ends of justice. Hon'ble Supreme Court goes on to the extent of observing that to subserve the ends of justice is the life-purpose of existence of the institution of Courts. In the said case, Hon'ble Supreme Court calls for adopting a liberal approach in the matters relating to condonation of delay in instituting the proceedings before the Courts/Tribunal and has thus formulated the following principles:

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

Thus, on a bear reading of the aforesaid legal principles enunciated by Hon'ble Supreme Court, broadly speaking the approach while considering a prayer or application seeking condonation of delay in instituting any proceedings which should be adopted by a court or a judicial forum or tribunal is that it should not proceed on the premise or assumption that delay in approaching the court is always deliberate and that the primary function of the court or an adjudicatory authority is to adjudicate the dispute, rather than to shut its door to a litigant or a party.

It would be of some relevance to state that what needs to be borne in mind is that the expression "sufficient cause" is adequately elastic so as to apply the law relating to condonation of delay in a meaningful manner to subserve the ends of justice. The approach of the court or tribunal in such a matter should be liberal, non-pedantic and justice-oriented. While there cannot be any presumption of deliberately causing delay, in case the party institutes the proceedings with delay and is found to have acted cursorily or negligently, the said aspect is also to be taken into account by the courts. However, in absence of lack of bona fide or gross negligence or in absence of any attempt by a party to adopt dilatory tactics, the approach of the courts/tribunal should always be to provide opportunity of seeking adjudication of the issue by condoning the delay.

If the impugned order passed by the STAT is analyzed on the aforesaid reasoning given herein above, the same cannot be permitted to be sustained in the eyes of law.

In some what similar matters, this Court has considered similar approach adopted by the STAT while deciding the application seeking condonation of delay in the case of Zila Bus Operators Association and others Vs. State of U.P. and others, Writ-A No. 9993 of 2018. The Court in the said case has held that delay of about 15 days ought to have been condoned when an explanation was offered by the revision-applicant. Similar view has been taken by this Court yet in another case decided on 08.03.2019 in Automotive Parivahan Sahkari Samiti Ltd. And another Vs. State Transport Appellate Tribunal and another (Misc. Single No. 6760 of 2019)."

36. In Ganesh Prasad Sahu (Supra), this Court had an occasion to consider the decisions of the STAT in appeals and revisions which were dismissed on the ground of limitation, the Court relying upon various decisions of the Apex Court as well as this Court held as under;

"Thus, from the above, it would be clear that the manner in which the Tribunal has dealt with the orders is flawed and is not supported by the proper reason. The Tribunal has not considered the effect of the language used in the Rule 91 of U.P. Motor Vehicles Rules, 1998. Even assuming if the appeals were not found to be within thirty days from the date of receipt of the order then the explanation given by the petitioners ought to have been considered for condonation of delay. On the contrary, the reasons given by the Chairman, U.P. State Transport Appellate Tribunal is with an intention of defeating the ends of justice and has quoted portions from various decisions without considering what the judgments rendered by the Apex Court have held regarding the phrase "sufficient cause" which came to be interpreted by the Apex Court in various decisions which are being noticed hereinafter."

37. In Mohd. Javed (Supra), this Court found that where there was no publication as mandated under Rule 60 of the Rules of 1998 the appeal could not be dismissed on the ground of limitation and matter was to be adjudicated on merit. Similar view was taken in case of Smt. Roshan Ara (Supra).

38. As it is eventually clear that the STA had entertained the applications of the petitioners of writ petition no. 6340 of 2020 on the ground that they were at higher merit, with latest model of vehicle on the date of application i.e. in the year 2011, thus, entitled for grant of permit was totally against the dictum of Apex Court as the relevant date was the date of consideration of the applications and not the date on which it was made before the authority. Moreover, on 19.12.2014 the transport authority was required to consider all the applications strictly on the basis of comparative merit which has been ignored and applications of the contesting respondents had been overlooked and the appeals and revisions filed by the contesting respondents were dismissed solely on the ground of limitation.

39. The technical argument raised by the petitioners' counsel cannot be accepted as the authorities were duty bound to consider all the applications before it, on the date of consideration strictly on the basis of comparative merit and directions of this Court. The Act or the Rules does not bar any remedy to the applicants whose applications are refused or they can be non-suited on the technical ground. The very purpose and basis for providing of an appellate and revisional forum is to rectify the mistake of authority and to check its arbitrary action and decision.

40. In the present case, the STA had deliberately granted permits to the five petitioners, though they were lower in merit and having vehicles of lower model. The Act or the Rule nowhere puts embargo upon the entertainment of any appeal or revision filed with any delay. The second proviso to Section 90 clearly gives handle to the revisional authority to entertain revision upon cause showing ''sufficient'. Likewise Rule 60 read with Rule 91 mandates for the period of 30 days to be reckoned from the date of order as well as the order being published by the authority on the notice board. It has no where been a case of the authority or the petitioners that despite the order being served upon the contesting respondents, the appeal was filed beyond the statutory period provided under the Act or the Rules.

41. The Tribunal had rightly considered the fact of non-compliance of the directions of this Court dated 19.12.2014 in the appeal filed by Rauf Khan and had categorically recorded finding that STA had wrongly granted permit in favour of Mohd. Saleem, Mohd. Ayub and Tanveer Ahamad, who were placed lower in merit and were having vehicles of older model.

42. This Court cannot shut its eye while doing justice on mere technicalities and the action of the authorities has to be judged and gauged on each and every frontier, and whether the directions are complied with or not. This Court finds that the STA had committed gross illegality and in an arbitrary manner had circumvented the order of this Court dated 19.12.2014 and conveniently granted window of 45 days to Mohd. Saleem, Mohd. Ayub and Tanveer Ahamad to upgrade their vehicles which was never the intention of this Court and the direction was straight and clear to decide the applications considering the comparative merit within six weeks.

43. Lastly an attempt has been made by petitioners' counsel to demonstrate the fact that no notice was issued by the Tribunal after the matter was remanded by this Court in deciding the appeal.

44. From perusal of the order-sheet, which has been appended as annexure no. 18 to the writ petition, it is more than apparent that notices were issued to all the parties and they had appeared. Thus, the argument as regards notice fails and has no merit for consideration, as the parties had been litigating before the authorities and this Court and are aware of the matter at each and every stage, and the argument that notices were not issued and served cannot be accepted as the matter has been hotly contested by them at each and every stage right from the Tribunal to this Court.

45. A recall application has been moved by one Tanveer Ahamad in writ petition no. 17224 of 2019 which was disposed of vide order dated 01.11.2019 with a direction to the appellate tribunal to decide the appeal on merit after affording opportunity of hearing to all the concerned parties. The sole ground taken is that Tanveer Ahamad, who was one of the applicant for grant of permit, was not heard before the matter was relegated to the authority. From the order passed by this Court it appears that Mohd. Saleem, the main contesting party, was heard through his counsel and the order was passed with the consent of counsel for the parties directing the Tribunal to decide the matter on merit.

46. As this Court had not decided the writ petition on merit and had only remanded the matter to the appellate authority to consider and decide the appeal on merit, after hearing the parties, the recall application at the behest of one of the candidate is not maintainable and is dismissed as misconceived, as this Court had not adjudicated the matter on merit.

47. On due consideration of merits of the case, this Court finds that no interference is required to the order dated 09.05.2019 passed by the STAT in appeal no. 28 of 2015 filed by Rauf Khan, which is matter of challenge in writ petition nos. 7780 of 2019 and 9058 of 2019, challenging the order of STA dated 16.04.2015, as the order passed by the STA was in defiance to the directions of this Court dated 19.12.2014, and applicants lower in merit were considered by the authority while granting permit.

48. Similarly, no interference is required in writ petition no. 6340 of 2020 which challenges the order passed by the STAT dated 27.02.2020 whereby the appeal of Gulsher Ahamad has been partly allowed and matter has been remitted to the STA.

49. All the writ petitions along with recall application fails and are hereby dismissed.

[Rohit Ranjan Agarwal, J.]

Order Date :- 03.01.2022

Shekhar