New Samundri Transport Co. (P) Ltd. vs State Transport Commissioner, Punjab

V.K. Bali, J. (Oral)

The basic point for determination in this writ petition is as to whether a matter finally decided inter se the parties can be reopened at the asking of the party, who has lost the matter on the ground that some more evidence has become available that might clinch the issue otherwise. Before the question is answered, one way or the other, it shall be necessary to notice in brief, the facts giving rise to the question mentioned above.

The petitioner is a private limited company duly incorporated under the provisions of the Companies Act and seeks writ under Article 226 of the Constitution of India in the nature of certiorari setting aside or quashing order of the State Transport Commissioner, Punjab dated 27th May, 1993 (Annexure P7). The petitioner company is engaged in the business of providing stage carriage facilities to the travelling public on various routes in the state of Punjab on the basis of regular stage carriage permits granted by the competent authority. It is pleaded that the petitioner company is one of the oldest stage carriage operators in the State of Punjab and had been operating stage carriages on various routes on the basis of regular stage carriage permits granted by the competent authority including on Moga Kotkapura, MuktsarMalout and MuktsarKotkapura routes to the entire satisfaction of the authorities and the travelling public. Unfortunately, the petitioner went under financial stringency and became sick in the year 1969 70. This resulted in failure of the petitioner to obtain regular stage carriage permits some of which were granted in alternative arrangement to other operators including the State Undertakings. The positive case of the petitioner is that it was temporary surrender permissible under rule 4.64(a) of the Punjab Motor Vehicles Rules, 1940 (hereinafter referred to as `the Rules 1940''). Since the management of the petitioner was always eager to restore its financial position, it was able to do so in 1986 when it applied to the State Transport Commissioner that temporary route permits surrendered by it be restored. The State Transport Commissioner after fully satisfying himself restored all the regular State permits in favour of the company by his order dated 16.5.1986, the operative part of the order reads as thus:

``Mileage to the New Samundri Transport Co. P. Ltd. Ferozepur on the following routes is restored purely on temporary basis for a period of four months without prejudice to any right or claim which may reflect any decision taken by the Government on the new passenger transport policy to be finalized:

S. No.

Name of the route

No. of permits

R.Ts.

1.

MogaKoktapura

2.

MuktsarMalout

3.

FerozepurMuktsar via Sadiq

1,1/2

4.

FerozepurMuktsar via Koktapura

10

5.

MuktsarKoktapura

5."

It is further the case of the petitioner that temporary stage permits were granted to it because after the expiry of scheme in the year 1977 neither any regular state permits were issued not any permit was renewed in the State in Punjab and only temporary permits were renewed. For this reason the petitioner too was granted temporary permit instead of regular permits. This practice of grant of temporary permits continued in the State till the Apex Court issued directions vide judgment in Jagjit Transport Co. v. State Transport Commissioner, AIR 1987 Supreme Court 2272. The Supreme Court held that the grant of temporary permits on the routes where there was a regular need was wrong and issued directions to the State Transport Commissioner to grant regular permits on all such routes by suo moto inviting applications and to renew the regular stage carriage permits wherever the applications for such renewal were pending. In the case of the petitioner, however, these temporary permits continued to be issued from time to time. None including respondents 2 and 3 challenged the order of respondent No. 1 dated 16.5.1986 whereby permits of the petitioner were restored to it and thus order dated 16.5.1986 became final. However, Punjab Roadways, Muktsar filed a complaint with the respondent No. 1 on 10.6.1986 that the petitioner company had surrendered the permits on MogaKoktapura route under the 60:40 scheme and because of this complaint, respondent No. 1 stopped issuing temporary permits in favour of the petitioner company on the said routes and initiated an enquiry into the matter. Despite the fact that three years had expired, respondents 2 and 3 could not substantiate the allegations made in the complaint dated 10.6.1986. This left the State Transport Commissioner with no choice but to revive the regular stage permit on the routes aforesaid as ordered by the Supreme Court in Jagjit Transport Co.''s case (supra) as reported in AIR 1987 Supreme Court 2272. Vide order dated 9.7.1991, the State Transport Commissioner renewed three regular stage carriage permits with four trips. While giving relief to the petitioner company as referred to above, the objections filed by respondents 2 and 3 were rejected. The order has been annexed with the present writ petition as Annexure P.1. One return trip from MogaKoktapura route was not granted to the petitioner company even though with regard to other routes this prayer wa allowed. The petitioner preferred an appeal before the State Transport appellate Tribunal for limited relief i.e. for grant of returned trip of MogaKoktapura. The appeal preferred by the petitioner company before the Appellate Tribunal was allowed on 28.5.1992, copy of order is Annexure P.2. This order was challenged by the Pepsu Road Transport Corporation by way of Civil Writ Petition No. 14914 of 1992, which was dismissed by a Division Bench of this Court on April 7, 1993 by passing a detailed order. Punjab Roadways, Moga, which also failed to substantiate the allegations made in the complaint, also challenged the order by way of Civil Writ Petition No. 393 of 1993. This matter was being adjourned from time to time and ultimately came up for hearing on July 14, 1993 and the same was dismissed as having become infructuous. Immediately before the above mentioned writ petition was dismissed as infructuous, on another complaint of similar nature, as referred to above, the State Transport Commissioner had cancelled the route permits granted to the petitioner vide Annexure P1. This was done by virtue of order Annexure P7. This order, Annexure P7, as mentioned in the earlier part of the judgment, is subject matter of challenge in the present writ petition.

Before the contentions raised by Mr. Baldev Kapoor, learned counsel for the petitioner, are taken note of, it may be mentioned that the basic ground on which route permit granted to the petitioner, on a complaint made by Punjab Roadways, respondent 2 and was cancelled, was that petitioner had surrendered these route permits under the scheme known as 50:50 and 60:40. Operative part of the impugned order, Annexure P78, reads thus:

``From the above discussion it is clearly proved that the New Samundri Transport Company actually surrendered the following return trips in 1961 and 1970 under 50:50 and 60:40 schemes:

MogaKotkapura route 5 return trips

MuktsarKotkapura route 5 return trips

MuktsarMalout route 5 return trips

Later on the company got 3 permits with 5 return trips on Moga Kotkapura route, one permit with 5 return trips on MuktsarKotkapura route and two permits with 5 return trips on MuktsarMalout route restored by concealing the factum of the surrender and also obtained grant of regular permits against the surrendered trips. The company has neither categorically denied the fact of surrender nor has adduced any evidence to show that the company ever possessed more return trips than the surrendered ones on these routes. As such the allegations that the permits on these routes were obtained by misrepresentation/concealment stand proved against the company.''''

Mr. Baldev Kapoor, Advocate, counsel for the petitioner company vehemently contends that the competent authority had already gone into the issue and on facts determined that the petitioner had never surrendered his route permits in 50:50 or 60:40 scheme. Once the basic facts leading to issue between the parties as to whether the surrender was temporary one as is the case of the petitioner or it was in pursuance of the scheme as per case of respondents, had been gone into by the competent authority and determined finally, it was not only unjust but wholly impermissible for the same very parties to reagitate the same matter over and over again.

The respondents, on the other hand, contend that when order, Annexure P1 was passed in favour of the petitioner, the Punjab Roadways could not lead proper evidence. On basic facts, there is hardly any dispute. From the pleadings of the parties, the main points that emerge for discussion and adjudication are as to whether the petitioner had voluntarily surrendered the route permits under the schemes, referred to above or temporarily surrendered under 1940 Rules as also that as to whether there was proper evidence before the State Transport Commissioner to hold that the petitioner had surrendered the route permits under the schemes and while order, Annexure P1, was passed in its favour, petitioner had misrepresented the facts. Mr. Baldev Kapoor, learned counsel appearing for the petitioner vehemently contends that there was no evidence whatsoever before the authorities concerned to return a finding that the petitioner had surrendered the route permits in pursuance of the schemes known as 50:50 or 60:40 as also that no mis representation was ever made by the petitioner when order Annexure P1 was passed.

I have heard learned counsel for the parties and with their assistance gone through the records of the case.

This Court is of the considered view that when on appropriate pleadings, the parties have contested the issues emerging from the pleadings and the matter has been finally determined, the same cannot be reopened over and over again. Whereas, autrifoisacquit is the cardinal principle governing criminal jurisprudence, no one can be vexed twice for the same cause of action is equally settled proposition of law in determining civil matters. It is, no doubt, true that the principle ``no one can be vexed twice for the same cause of action'''', insofar as codified law is concerned, finds mention in Section 11 of the Code of Civil Procedure but in considered view of this Court, the principle enshrined under Section 11 of the Code cannot be confined to civil suits alone. In principle, the said rule is applicable to all kinds of disputes. But for civil suits, the said principle may not apply with all its rigour and meticulous preconditions attached to the applicability thereof, nevertheless, the said principle cannot be ignored in other civil proceedings as nonadherence of this principle would open flood gates of litigation and the Court shall become store house of unending litigation.

It has been amply demonstrated before me that the very question that was involved while passing Order, Annexure P7 was also involved while deciding the controversy interse parties vide Annexure P1. What I have said above is manifest from reading of order, Annexure P1. That being so, order Annexure P1, at this stage, needs immediate perusal. Item No. 1 mentioned in Annexure P1 focused the issue between the parties. The same was to consider the applications of M/s New Samundri Transport company Pvt. Ltd., Ferozepur for the renewal of three regular stage carriage permits with five return trips daily on MogaKotkapura route. The first and foremost objection in opposition of the claim of the petitioner finds mention at page No. 26 of the paper book i.e. internal page 2 of the Annexure P1. The objection raised by Punjab Roadways Moga was that the transporter had surrendered the permits to Punjab Roadways under 60:40 scheme. Relevant portion of Annexure P1 reads thus:

``Shri Bachhitter Singh, Time Table Inspector, Punjab Roadways, Moga, stated that the Company had surrendered their three stage carriage permits with five return trips daily under 50:50 scheme earlier and under 60:40 scheme in 1970. Moreover, in the list of routes of this company dated 30.4.1977 which was produced by him, these route permits do not figure any where. He argued that if in 1977 this company did not have route permits, how could it claim its restoration now. This list was supplied by Secretary, Regional Transport Authority, Ferozepur to General Manager, Punjab Roadways, Moga, he stated.''''

The objection pertained to both the schemes. At page 30 of the paper book this is how the authority proceeded in the matter:

``To thrash out the gravity of objection, Punjab Roadways, Muktsar and later Punjab Roadways, Moga where addressed to put forth any authenticated proof of having this mileage surrendered in favour of Punjab Roadways but nothing tangible was brought on record by them. Apart from this, the entire matter was thrashed out at Head Office level. Keeping in view the entire record available there, it was ultimately concluded on the basis of agenda of the meeting with the representative of Punjab Motor Union to be held on 1.1.1970 under 60:40 scheme, that one return trip on MogaKotkapura route was agreed upon by the company to surrender in favour of Punjab Roadways. Acing on the basis of this conclusion, and after considering the matter thoroughly applications of this company were considered/processed for the grant of three regular stage carriage permits with four return trips daily which were left with the company in balance.''''

Again at page 32 of the paper book, proceedings are mentioned. The matter was then concluded in favour of the petitioner by the State Transport Commissioner by observing as follows:

``The contention of Punjab Roadways, Moga that three return trips were surrendered in 1959 under 50:50 scheme is rebutted by the fact that Regional Transport Authority, Jalandhar has verified existence/validity of three permits with five return trips upto 30.6.1969. However, the arguments of State Transport Undertaking that one return trip was surrendered in 1970 under 60:40 scheme is accepted even though the proceedings of meeting are not there on record. Thus it is clear that the company had three permits after 1970 though it was allowed to lift temporary permits on 23.5.1986. As far as objections by other operators are concerned I reject those of PRTC on the ground that there is enough traffic potential on the route line. Also Highways Roadways objections does not sustain since there is no evidence regarding their objections. As per orders of the Hon''ble Supreme Court of India dated 27.7.1987 all those permits which were being issued on temporary basis for want of transport policy were to be regularised by 13.5.1990. No action was taken in this case all along because of the dispute of the party with State Transport Undertakings as detailed above, Now that the position stands clarified in view of above discussion these temporary permits that were already regular in nature have to be renewed in favour of the applicant.

Therefore, I, I.L. Dawra, IAS, State Transport Commissioner, Punjab Chandigarh in exercise of the powers conferred upon me hereby reject the objections raised and allow renewal of three regular stage carriage permits with four return trips daily on MogaKotkapura route on regular basis in favour of New Samundri Transport Co. P. Ltd., Ferozepur for a period of three years. I further direct Secretary RTA, Ferozepur to obtain token tax clearance certificate upto date, fitness certificate of buses on the fleet of the company and other required documents and realisation of the fee for the past period and upto date before issuance of these regular stage carriage permits. Orders to be conveyed.

Dated: 9.7.1991.

Sd/.''''

The portions, as extracted above, from order, Annexure P1, manifest that the plea of the respondents that the petitioner had surrendered its route permits in pursuance of the schemes known as 50:50 or 60:40 was rejected and yet it is on the solitary plea of same very respondentTransport that the impugned order, Annexure P7 has been passed. There were proper pleadings of the parties in issue which required determination and final order thereon vide Annexure P1 was passed. It was thereafter not at all open for the Roadways to revive its claim on the same very grounds on which they had opposed grant of state carriage permits. If it was perhaps a case of misrepresentation or concealment of facts, one could understand the desirability of reopening the matter. It was established before the competent authority and a firm finding of fact was recorded that the petitioner had not surrendered its route permits in pursuance of the scheme aforesaid. The respondents herein have not been able to show me that in obtaining order Annexure P1, any misrepresentative was made by the petitioner. While passing order, Annexure P7, the authority concerned, while returning a finding that the petitioner had misrepresented, relied upon letter No. 42923/CA2/C (date is not legible) from the Director, State Transport, Punjab, to the State Transport Commissioner, Punjab, requesting for grant of permits on various routes including two return trips on Moga Kotkapura route, five return trips on KotkapuraMuktsar route, two and half on MuktsarMalout route surrendered by the New Samundri Transport Company. It has further been mentioned in the impugned order that a plain reading of the statement enclosed with the letter made it clear that all the above routes had been surrendered by New Samundri Transport Company in first and second phase of 60:40 scheme. It is also mentioned that specific allegations regarding surrender of the routes have been made in the notices issued to the Company and the reply of the Company did not contain categorical denial of the fact of surrender.

I am afraid these findings, on the available material, could not be returned by the concerned authority. I have seen letter of the year 1961 as also taken into consideration the so called nondenial of the petitioner when some notices were served upon it. Insofar as letter of the year 1961, copy whereof has been annexed with the written statement as Annexure R3, is concerned, positive case of the petitioner, as sought to be made out by Mr. Baldev Kapoor, is that it is nonauthenticated one and was produced at the time of arguments before the concerned authority and the same is not even signed by anyone. It is also being said that the same was in a tornout condition. This case is behind heard from last three days and on earlier occasions as well Mr. Handa had sought time to contact the department so as to make the records available to the Court. Original of Annexures R3 and R4 have not been shown to the Court. That being so, there appears to be substantial merit in the contention of Mr. Kapoor that these documents were not genuine. That apart, from Annexure P8 it is absolutely clear that the petitioner was plying buses on the routes in question upto June 13, 1972. Annexure R4 attached by the respondents with their written statement also militates against the case set up by the Punjab Roadways. This is a communication from Mr. Mulkh Raj Pahwa, General Manager to the Provincial Transport Controller, wherein it is mentioned that operation on the routes mentioned in the communication including MogaKotkapura was commenced with effect from July 21, 1961. Looked from any angle, thus, the findings recorded by the concerned authority while passing order, Annexure P7, cannot be sustained. The findings to the effect that the petitioner, while asking for restoration of route permits vide order, Annexure P1, had misrepresented and concealed the facts, are set aside and so is order, Annexure P7. It may be mentioned here that if the finding with regard to misrepresentation or concealment of facts might not be available to the Punjab Roadways, it is conceded position that there would be no provisions for reviewing the earlier orders passed by the concerned competent authority which had jurisdiction to decide the matter.

For the reasons mentioned above, this petition is allowed and, as mentioned above, order, Annexure P7, is quashed. Parties are, however, left to bear their own costs.