Dinesh Kumar vs State Transport Appellate Tribunal and Another

V.N. Khare, J.—This petition and the above connected writ petition raise common question of facts and law and are, therefore being disposed of by a common judgment.

For purposes of Motor Vehicles Act, 1988 (hereinafter referred to as the Act) there is a route know as Bulandshahr-Aurangabad-Lakhauti-Khan-pur-Amarpur-Dhandhiani and allied routes (hereinafter referred to as the route). The route lies within the jurisdiction of Regional transport authority, Meerut. The Regional Transport Authority invited applications for grant of permanent stage carriage permit on the route. The Petitioners of these writ petitions in response to said invitation submitted applications for grant of permanent stage carriage permits on the route. The Regional Transport Authority. In its meeting held on 22-9-1989 granted permits to the Petitioners Respondent No. 2 who is an existing operator of the route challenged the resolution dated 22-9-1989 by filing revision before the State Transport Appellate Tribunal, U.P. Lucknow (hereinafter referred to as the Tribunal). The Tribunal by its order dated 25-5-1990 allowed the revision on the ground that the notification published on 22-9-1989 reconstituted the Regional Transport Authority, Meerut by revoking the earlier notification and, therefore, the earlier Regional Transport Authority had no jurisdiction to consider the applications and grant any permit. It is against this order that the Petitioners have come up before this Court by means of these petitions under Article 226 of the Constitution.

Learned Counsel for the Petitioners urged that the notification published in the extra ordinary official gazette of 22-9-1989 did not come into effect on the said date as it was not available in the officer of the Authority at Meerut when the Regional Transport Authority granted permit to the Petitioners. The argument of the learned Counsel for the Respondent is that the notification dated 22-9-1989 has come into effect on the date when it was published i.e. 22-9-1989, and, therefore, the Regional Transport Authority which was constituted In pursuance of the earlier notification had no authority to grant permit and the view taken by the Tribunal is perfectly in accordance with law.

Section 68 of the Act provides that the State Government shall, by notification in the official gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in Sub-section (13), and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas as may be specified in the notification, in respect of each Regional Transport Authority: the powers and functions conferred by or under this chapter on such Authorities; Sub-section (2) of Section 68 further provides that a Regional Transport Authority shall consist of a chairman and such other persons (whether officials or not), not being more than two, as the State Government may think fit to appoint, the State Government in exercise of its powers conferred u/s 68 of the Act constituted Regional Transport Authority by notification dated 27-7-1989. The Regional Transport Authority, Meerut was reconstituted by notification dated 22-9-1989 published in the U.P. Extra Ordinary Gazette. The notification published in U.P. Gazette Extra Ordinary on 22-9-1989 shows that in exercise of powers under Sub-sections (1) and (2) of Section 68 of the Act read with Section 21 of General clauses Act and rule 54 of U.P. Motor Vehicle rules read with Clause (a) of Sub-section (2) of Section 217 of the said Act of 1988 in super session of Government notification dated 27-7-1989 Governor was pleased to constitute with immediate effect the Regional Transport Authorities as mentioned in column 2 of schedule annexed to the notification for the regions named against each in column 4 of that schedule to exercise and discharge the powers and functions throughout the areas men-toned in column 5 of the said schedule vide sl. No. 4 of the Schedule appended to the said notification the Regional Transport Authority, Meerut was constituted and in column 3 thereof it is mentioned as below:

Commissioner, Meerut Division, Meerut--Chairman.

Deputy Transport Commissioner, Meerut zone, Meerut--Member

It is admitted between the parties that the order granting permit was passed by the Commissioner of Meerut Division in his capacity as Chairman of the Regional Transport Authority as per constitution of the Regional Transport Authority vide notification dated 27-7-1989 and the Deputy Transport Commissioner, Meerut Zone did not participate in the said meeting. The first question that requires determination is as to whether the notification dated 22-9-1989 reconstituting Regional Transport Authority, Meerut came into effect in law on the same day or when it became available in the office of the authority at Meerut.

In State of Maharashtra Vs. Hans George, , a question arose whether the Respondent therein could be convicted for importing gold in India contrary to the provisions of Foreign Exchange regulation Act 1947 in disregard of a notification issued by Reserve Bank: of India in official Gazette. The Reserve Bank of India in this case issued a notification published in official Gazette on 24-11-1962 in supersession to earlier notification the act of the Respondent in this case in importing gold in this country was although in accordance with the earlier notification dated 25-8-1948 but was in breach of notification published on 24-11-1962. The Respondent in this case has left Zurich on 27-11-1962 and it was argued that he could not have bad the knowledge of the notification of the Reserve Bank of India which was published in the Gazette on 24-11-1962 in India. Inspite of the fact that Section 8 of the Foreign Exchange Regulation Act, 1947 did not provide for the manner in which the Reserve Bank of India would provide for general or special permission, by reason of the Gazette notification it has held that the Respondent must be attributed with the knowledge of the contents thereof in the eye of law. A Full Bench, of this Court in case of Avdhesh Singh and Another Vs. Bikarma Ahir and Others, , held that the publication of statement in Official Gazette amounts in law as effective publication relying on decision of the Supreme Court in the case of State of Maharashtra v. Mayer Hans George (supra). In the case of D. Chemchiah v. Commissioner of Police Madras AIR 1948 Mad 288 , it was held that the statute comes into effect at the first moment of the day on which it becomes law. In Haji Lal Mohd. Biri Works, Allahabad through Abdul Hamid Vs. The state of U.P. and Others, , it was held that the Act came into force on the day it was published in the Official Gazette and not when it received the President''s assent. The decision referred to above lay down without ambiguity that a notification comes into effect on the date when it is published. The publication of notification is taken ''as effective publication and not the knowledge or availability of the said Gazette Notification In view of this it must be held that the grant of permit by the Regional Transport Authority was in the teeth of the notification dated 22-9-1989 which constituted afresh Regional Transport Authority, Meerut.

Learned Counsel for the Petitioners strongly relied upon a decision of this Court in the case of U.S. Awasthi and Another Vs. Inspecting Assistant Commissioner of Income Tax (Acquisition Range) and Another, . in this, it appears that attention of this Court was not drawn to the judgment of Supreme Court in State of Maharashtra v. Mayer Hans George and Full Bench decision of this Court in Avdesh Singh v. Bikarma Ahir (supra) and therefore it is of no help to the Petitioners.

Learned Counsel for the Petitioners relying on observations of the Supreme Court in the case of State of Maharashtra v. Mayer Hans George (supra) argued that in any case the gazette notification dated 22-9-1989 published on the same day must be taken to have come into effect on 23-9-1989 and not on 22-9-1989. The passage relied upon by the learned Counsel for the Petitioners in the case of State of Maharahtra v. Mayer Hans George (supra) is as follows:

...As we have stated earlier, the notification by the Reserve Bank was published in the Gazette of India on November 24, 1962 and hence even adopting the view of Bailhache, J. the notification must be deemed to have been published and brought to the notice of the concerned individuals on the 25th of November, 1962" (under-line mine).

On the strength of this observation learned Counsel strongly argued that in the present case also the notification published on 22-9-1989 may be treated to have come into force on 23-9-1989 and in that case on 22-9-1989 the old authority had complete jurisdiction to grant permits and. therefore, the order of State Transport Authority Appellate Tribunal deserves to be quashed.

Section 68 of the Act provides for creation of Regional Transport Authority for different regions. It also confers powers upon them to exercise and discharge functions conferred upon them Section 68 of the Act does not contemplate a void in relation to any particular Regional Transport Authority and upon the constitution of a new Transport Authority with effect from the date so specified to consequences follow at the same time. Once the old authority looses its jurisdiction to consider and grant permit and the new authority acquires that jurisdiction at the same moment See Ratan Lal Gupta v. Mohd. Ramzani 1973 ALJ 139. Nationally and in the eye of law there is no time gap in the exercise of powers and functions conferred by Chapter V of the Act. Where a notification dated 22-9-1989 was issued revoking earlier notification, the new Transport Authority comes into effect and the existence of reconstituted Regional Transport Authority cannot be postponed to a later date i.e. 23-9-1989 the day on which the Regional Transport Authority was reconstituted, the old authority looses its jurisdiction as it does not exist in the eye of law. I have already noticed that an Act which comes into force on a particular date is deemed to have effect from the first moment of that date In the case of D. Chenchiah v. Commissioner of Police Madras (supra) certain persons were arrested at 5 A.M. in the morning of 23rd of January 1947, the ordinance was published on 23rd January 1947 which empowered the State to arrest the Petitioners. Although ordinance was published on 23-1-1947 it was held that the Ordinance must be deemed to have had effect from mid night on the night between 22nd and 23rd which means that it was in operation at the time when the Petitioners were arrested. The statute begins to operate from the first moment of the day on which it becomes law. In Civil Misc. Writ Petition No. 254 of 1978 decided by a bench of this Court on 18-11-1981 held that the notification having been published in the Gazette of 25-4-1977. the new members appointed as members of the State Transport Authority became member of that authority w.e.f. 25-4-1977. It was observed that the approval must be given by duly constituted State Transport Authority as the member giving approval must be existing member of the State Transport Authority on the day when the approval was given.

Once it is found that it is accepted view of law that a notification comes into effect immediately on the date of its publication, its effectiveness cannot be postponed to a later date.

In the case of State of Maharashtra v. Mayer Hans George (supra reliance was placed by the counsel for the Respondents on the judgment of Bailhache, J. in Johnson v. Sargant and sons 1918 I KB 1. It is necessary to give some facts in order to know in what context the aforesaid observations was made by Hon''ble the Supreme Court. In that case an order of Food Controller dated 16th May said to have been contravened the same day. Bailhache, J. held that he was unable to hold that the order came into operation before it was known and it was not known untill morning of May 17. In this case Hon''ble Supreme Court after holding that by reason of publication of Gazette notification the Respondents must be attributed with the knowledge of the contents thereof in the eye of law alternatively held that even adopting the view of Bailhachi, J. the notification must de deemed to have published and brought to the notice of the concerned individuals on 25-11-1962 as the Petitioner was arrested on 27th/28th of November.

The words "hence even" occurring in the said observations are very significant and. therefore, the observation of the Supreme Court was not by way of laying down law as what their Lordships wanted to lay down bad said earlier before making that observation. In my opinion the Petitioners cannot derive any support from the said observation for persuading me to hold that on 22-9-1989 the old Regional Transport Authority was competent to grant permit to the Petitioners.

Learned Counsel for the Petitioners then made a half hearted argument that even if the Regional Transport Authority was not competent to grant permit on 22-9-1989 the appellate tribunal who has a co-extensive power to grant permit ought to have granted permit when the complete record of the case was before it and this omission on the part of the Regional Transport Authority was refusal to exercise jurisdiction vested in it. The argument has no merit It is true that the appellate tribunal has coextensive power to grant permits when the complete record was before it, but where there is no application of mind by the authority competent to grant permit, this co-extensive power to grant permit cannot be exercised by the appellate tribunal In this case the authority which granted permit to the Petitioners was not an authority in the eye of law. Had the newly constituted Regional Transport Authority considered the matter, then what the learned Counsel urged could be accepted. But in the present case the newly reconstituted Regional Transport Authority did not meet to consider the applications of the Petitioners and, therefore, the question of consideration of grant of permit by the State Transport Appellate Tribunal does not arise.

In view of the above there is no merit in these petitions which are accordingly dismissed with costs. Since the matter concerns to the grant of permit for the benefit of traveling public, in the circumstances of the case, it is necessary that the Regional Transport Authority may decide the matter expeditiously