K.Kumar v. Poomani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.10.2009 C O R A M :THE HONOURABLE MR.H.L.GOKHALE, THE CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE N. PAUL VASANTHAKUMAR W.A.No.1511 of 2009andM.P.No.1 of 2009K.Kumar ... Appellant -vs-1.Tmt.Poomani2.The State Transport Appellate Tribunal, City Civil Court Building, Chennai.3.The Regional Transport Authority,Theni District. ... RespondentsPRAYER : Appeal filed under Clause 15 of the Letters Patent againstthe order, dated 02.9.2009 made in W.P.No.62 of 2009 on the file ofthis Court. This petition presented to this court under Article 226of Constitution of India to issue a writ of Certiorarified mandamusto pass an order of interim stay of the operation of the impugnedorder passed by the first Respondent in M.V.Appeal NO.119 of 2008 on20.11.2008 reversing the order of the second respondent inproceedings No.05864/A2/2008 dated 25.4.2008 pending disposal of thewrit petition.For appellant : Mr.V.Raghavachari For respondents : Mr.K.M.Venugopal for R1 Mr.Raja Kalifulla, GP for R2 & R3 https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T(JUDGMENT OF THE COURT WAS DELIVERED BY THE HONOURABLE THE CHIEF JUSTICE)Heard Mr.V.Raghavachari, learned counsel in support of thisappeal. Mr.K.M.Venugopal, learned counsel appears for the contestingrespondent No.1/caveator. Mr.Raja Kalifulla, learned GovernmentPleader appears for respondents 2 and 3.2. The appeal seeks to challenge the order passed by a learnedSingle Judge, whereby the learned Single Judge has set aside theorder passed by the second respondent - State Transport AppellateTribunal, which in turn had set aside the order passed by the thirdrespondent – Regional Transport Authority.3. The short facts leading to this appeal are this-wise:-The appellant and the respondent No.1 are brother and sisterrespectively. The respondent No.1, who is presently aged about 40years, is his eldest sister and she got married long back. The fatherof the appellant and the respondent No.1 was running a transportbusiness and he owned two buses. He executed a Will on 13th December2006 saying that this business, after his death, will devolve on theappellant herein. He died on 12th February 2008. Subsequently, theappellant had applied for transfer of permit and his mother andsisters, including the first respondent, gave their consent on 22ndFebruary 2008. It appears that the first respondent withdrew herconsent on 18th March 2008, which is the case of the appellant herein.The case of the first respondent is that her signature had been takenby force. The appellant's application for transfer of permit was,therefore, turned down by the original authority, i.e. the respondentNo.3. The appellant filed an appeal to the second respondent. Thesecond respondent allowed that appeal and directed that the permit betransferred in favour of the appellant.4. Being aggrieved by that order, the first respondent filed awrit petition, which has been allowed by the learned Single Judgeand, therefore, this appeal has been filed by the appellant herein.5. Mr.Raghavachari, learned counsel for the appellant, pointsout that under the relevant Rules, viz., The Tamil Nadu Motor VehicleRules, 1989 (for short 'the Rules'), all that is required is that theparty applying for transfer of permit on death of the permit holder,has to produce No Objection Certificate from all the legal heirs,which has been done in the instant case. That is the requirement of https://hcservices.ecourts.gov.in/hcservices/ Rule 214 of the Rules. He points out that after necessary documentswere submitted, the first respondent changed her stand. Initially,she submitted that her signature was taken by unlawful means and byforce. Subsequently, she contended that her signature was fabricated.The learned counsel pointed out that therefore the appellateauthority went into all these aspects and allowed the transfer underRule 214. The learned Single Judge, however, referred to Rule 212 ofthe Rules and took the view that the respondent No.1 had withdrawnher consent before the order for transfer of permit was passed.According to Mr.Ragavachari, the view of the learned Judge iserroneous. Rule 212 has no application to the facts of this case.Rule 214 is the relevant Rule. He also points out that a suit hasbeen filed by the respondent No.1 and subject to the decision in thesaid suit, in the meanwhile, the permit ought to be allowed to betransferred, which is what the appellate authority has done.6. Mr.Venugopal, learned counsel appearing for the respondentNo.1, on the other hand, submitted that Rule 212 is the relevantRule. Since the consent had been withdrawn, the permit could not havebeen transferred and the view taken by the learned Single Judge isright.7. The relevant Rules, viz., Rule 212 and Rule 214 of the Rulesread as follows:-''212. Withdrawal of consent for transfer. -When the consent of either or both the parties tothe transfer of a permit is withdrawn before transfer issanctioned, the Transport Authority shall drop furtherproceedings in regard to the transfer of that permit:Provided that, when either of the partieswithdraws such consent, the Transport Authority shall,before dropping such proceedings inform the other partyof the withdrawal of consent."214. Transfer of permit on death of permit holder.- (1) An application for the transfer of permitunder sub-section (3) of Section 82 shall be accompaniedby the fee specified in the Table under rule 279together with the certificate of death of the permitholder issued by the competent authority a heirshipcertificate issued by an officer of the revenuedepartment not below the rank of a Tahsildar and ''NoObjection Certificate" from all the legal heirs otherthan the applicant, if there are more than one legalheir to the deceased permit holder. If in such cases,the permit has been endorsed or extended under theprovisions of these rules, the endorsement or extension https://hcservices.ecourts.gov.in/hcservices/ shall cease to have effect on the date of transferunless the Transport Authority which granted theendorsement or extension directs that it shall becontinued.(2) If the Transport Authority allows the transferof the permit, it shall call upon the applicant toproduce, within four months from the date of receipt ofthe order sanctioning the transfer, the certificate ofregistration of the vehicle with the particulars of thetransfer of ownership of the vehicle stated thereontogether with valid certificate of fitness and proof forthe payment of the current tax under the Tamil NaduMotor Vehicles Taxation Act, 1974 (Tamil Nadu Act 13 of1974) and the permit. In the event of the applicantfailing to produce the relevant records within theperiod of four months aforesaid, the transport authorityshall revoke the sanction.(3) The Transport Authority may delegate the powerconferred upon it under sub-rule (2) to its Secretary incases where the Secretary has sanctioned the transfer ofpermit.(4) The powers referred to in sub-rule (2) shallalso be exercisable by the appellate or revisionalauthority, as the case may be, if the transfer of permitis allowed by such authority." 8. Now as can be seen from these two Rules, Rule 212 deals withthe transfer, which is transfer inter vivos. Rule 214 in termsprovides for a transfer in the event of the death of the permitholder. This being so, it will be Rule 214, which will apply.Inasmuch as all necessary documents were tendered, the authorityconcerned was expected to pass the necessary order. As alreadystated, the suit is pending between the parties. In that suit, therespondent No.1 has sought a declaration that the Will isinoperative, bad in law and that it should not be acted upon. Thatwill be decided in the suit.9. Mr.Raghavachari, learned counsel appearing for theappellant, states that he will maintain the account. At the highest,in the event the respondent No.1 succeeds, she will have a 20% share,since there are three daughters, one son and a widow left behind bythe deceased. This will take care of the interest of the respondentNo.1. https://hcservices.ecourts.gov.in/hcservices/

10. Therefore, the writ appeal is allowed. The order passed bythe learned Single Judge is set aside. The order passed by theappellate authority stands restored. The permit will be transferredaccordingly. Consequently, the connected miscellaneous petition isclosed. There will be no order as to costs.Sd/ Asst.Registrar/true copy/ Sub Asst.Registrarjs To1.The State Transport Appellate Tribunal, City Civil Court Building,Chennai.2.The Regional Transport Authority, Theni District. + 1 cc to Govt. Pleader SR No.57297+ 1 cc to M/s.V.Raghavachari, Advocate SR 57275 W.A.No.1511 of 2009 and M.P.No.1 of 2009 AKR (CO)RH (9.11.09)