Full Judgment Text
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PETITIONER:
ISHWARI YATAYAT COOPERATIVE SOCIETY
Vs.
RESPONDENT:
STATE TRANSPORT APPELLATE AUTHORITY AND OTHERS
DATE OF JUDGMENT22/08/1975
BENCH:
ACT:
Motor Vehicles Act, 1939, s. 46-Application by
unregistered Cooperative Society for grant of permit-
Maintainability.
HEADNOTE:
Practice and Procedure-Contention not raised in High
Court or in special leave petition-If can be entertained
during arguments.
The Regional Transport Authority granted a permit to
the appellant. The Appellate Authority allowed the appeal
filed by a rival applicant and set aside the order after the
matter was remanded to i by the High Court. The appellant
filed a writ petition, but the High Court confirmed the
order of the Appellate Authority.
Dismissing the appeal to this Court,
^
HELD: The application of the appellant for permit was
not maintainable as the appellant was not a registered
cooperative society when the application was made, though it
was registered at the time when the applications were
considered and disposed of by the Regional Transport
Authority. [409E]
Since the appellant was not 3 registered cooperative
society can the date of the application there was no person
in the eye of the law who could file a valid application
under s.46 of the Motor Vehicle Act. When an application for
permit is filed by a person it has to be published and
objections invited but if such an application is filed on
behalf of a non-existent person it is impossible for
objectors to state the reasons for their objections. Though
the appellant had applied for registration there was no
certainty that registration would be granted. [409GH]
Kali Kinkar Kundu v. Sadluan Chandra Dey, A.I.R. 1971
Calcutta 171 and Azad Motor Transport Cooperative Society
Ltd v. State Transport Appellate Authority, Misc. Petition
No. 489 of 1966 decided on 17-11-1966 by the High Court of
Madhya Pradesh at Jabalpur (Unreported), referred to.
(2) Though the rival applicant did not challenge the
grant of the permit in favour of the appellant on the ground
that the appellant was not a registered society, such a plea
was entertained and considered by the Appellate Authority
without any objection from the appellant. Further, the
appellant, in its writ petition did not contend that it was
not open to the Appellate Authority to entertain and
consider the plea as it was not raised by the rival
applicant before Appellate Authority or the High Court at
any previous stage of the proceedings. Even in the
application for special leave the appellant had not taken
such a ground. Therefore, the appellant could not be allowed
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to contend, at the stage of arguments, that the Appellate
Authority and the High Court went wrong in entertaining the
plea. [409C-E]
JUDGMENT:
CIVIL APPELLATE Jurisdiction: Civil Appeal] No. 758 of
1971.
Appeal by special leave from the Judgment and order
dated 27th January 1971 of the Madhya Pradesh High Court of
Judicature a. Jabalpur in M.P. No. 85 of 1968.
M N. Phadke, Naunit Lal and Lalita Kohli, for the
appellant.
F. S. Nariman, and P. C. Bhartari, for respondent 3(a)
to 3(e).
408
The Judgment of the Court was delivered by
MATHEW, J.-This is an appeal, by special leave, from
the judgment of the high Court of Madhya Pradesh at Jabalpur
holding that the appellant was not entitled to the permit in
question for the reason that the application for grant of
permit was not maintainable in law.
The Regional Transport Authority, Indore, by a
notification dated 23-10-1959 invited applications for two
single trip permits for running stage carriage on Nanda-
Indore and Indore-Nagda routes via Hingoria, Gautampura and
Depalpur. The appellant submitted an application for grant
of permit on the Nagda-lndore route on 11-11-1959 and M/s.
Jawahar Yatayat Cooperative Society submitted its
application of 20-11-1959 for Indore-Nagda route. One Smt.
Akhtari Begum, now represented by respondent No. 3,
submitted two applications, one for grant of permit on the
Nagda-Indore route and the other for a permit on the Indore-
Nagda route. One Jaiswal Transport Cooperative society and a
few others also applied for permits.
The Regional Transport Authority by its order dated 27-
2-1961 granted two permits: one to the appellant and the
other to M/s. Jawahar Yatayat Cooperative Society and
rejected the other applications. Smt. Akhtari Begum, Jaiswal
Transport Cooperative Society and two others filed separate
appeals before the State Transport Appellate Authority
(hereinafter called ’Appellate Authority’). The Appellate
Authority by its order dated 25-9-1962 maintained the order
of the Regional Transport Authority and dismissed the
appeals.
Smt. Akhtari Begum and Jaiswal Transport Cooperative
Society challenged the validity of the order in writ
petitions before the High Court. The High Court quashed the
order of the Appellate Authority and remanded the case for
fresh disposal by that authority. Thereafter the appeals
filed by Smt. Akhtari Begum and Jaiswal Transport
Cooperative Society were headed and the Appellate Authority
by its order dated 7-8-1964 again dismissed the appeals and
thus maintained the order passed by the Regional Transport
Authority granting permits in favour of the appellant and
M/s. Jawahar Yatayat Cooperative Society.
Smt. Akhtari Begum and M/s. Jaiswal Transport
Cooperative Society again filed separate writ petitions
before the High Court challenging the order of the Appellate
Authority. The High Court allowed the writ petitions and
remanded the cases to the Appellate Authority for deciding
both the appeals afresh. The Appellate Authority, by its
order dated 31-1-1968 allowed the appeal filed by Smt.
Akhtari Begum and set aside the order of the Regional
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Transport Authority granting permits ’ in favour of the
appellant and M/s. Jawahar Yatayat Cooperative Society. Both
the permits were ordered to be granted to M/s. Akhtari
Begum.
The reasoning of the Appellate Authority was that the
applications of the appellant and M/s. Jaiswal Transport
Cooperative Society were invalid as they were not registered
as cooperative societies on the date on which the
application for permits were made to the Regional Trans
409
port Authority and so the applications were not maintainable
in law.Two writ petitions were filed before the High Court
by the appellant as well as by M/s. Jawahar Yatayat
Cooperative Society challenging the order. The High Court
agreed with the conclusion of the Appellate Authority that
the applications for grant of permits filed by the writ
petitioners were not maintainable and dismissed the writ
petitions by a
common order.
The only question which falls for consideration in this
appeal is whether the view taken by the High Court that the
application for permit was not maintainable as the appellant
was not a registered cooperative society when the
application was made, even though it was registered at the
time when the applications were considered and disposed of
by the Regional Transport authority was correct.
It is no doubt true that in both the writ petitions
filed by Smt. Akhtari Begum, no challenge was made to the
grant of the permit in favour of the appellant for the
reason that the application for permit was filed before the
society was registered. But the plea was entertained and
considered by the Appellate Authority without any objection
by the appellant. In other words, the appellant never
objected to the plea bail raised and considered by the
Appellate Authority. Nor did the appellant plead in the writ
petition before the High Court that it was not open to the
Appellate Authority to entertain or consider this plea as it
was not raised by Smt. Akhtari Begum before the Appellate
Authority or the High Court at any previous stage of the
proceeding. Even in the Special Leave Petition, the
appellant has not taken a ground that the plea was not
available to the third respondent before the Appellate
Authority and in the High Court as it was not raised by Smt.
Akhtari Begum in the appeal filed by her before the
Appellate Authority or in the writ petitions filed before
the High Court. Therefore, we cannot allow the appellant to
contend at this. stage that the Appellate Authority and the
High Court went wrong in entertaining the plea.
When the application for grant of permit was made,
there was no registered cooperative society in existence.
The appellant submitted that an application for the
registration of the Society was pending when the application
for grant of permit was made. But that is a matter of no
moment. Since no registered cooperative society was in
existence on the date of the application for grant of
permit, the application was not maintainable. The fact that
the appellant was registered as a cooperative society before
the date on which the Regional Transport Authority
considered the applications for permits is also of no
consequence as there was no valid application before the
Regional Transport Authority. When an application for
permits is filed by a person, it has to be published and
objections invited. The objectors are free to file
representations against the grant of permit to the
applicant. Now, if an application for grant of permit is
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filed on behalf of a non-existent person, it is impossible
for objectors to state the reasons for their objections.
There was no certainty in this case that the application for
registration would be granted and that the appellant would
become a juristic per son even when the objectors would have
had to file the representations.
410
In Kali Kinkar Kundu v. Sadhan Chandra Dev (1) the
High Court A of Calcutta had to consider the question
whether an application for grant of a permit could be filed
on behalf of a company before it was incorporated. The Court
held that the application was incompetent.
In Azad Hind Motor Transport Cooperative Society Ltd.
v. State Transport Appellate Authority (2) it was held by
the High Court of Madhya Pradesh that until a cooperative
society is registered, it has no juristic personality and so
an application for grant of permit made by a person
purporting to be on its behalf was not maintainable.
We think that. in principle, it stands to reason to
hold that since tile appellant was not a registered
cooperative society on the date of the application for grant
of the permit, there was no person in the eye of the law who
could file a valid application under s.46 of the Motor
Vehicles Act for grant of a permit. The High Court was right
in its view that the application for grant of permit to the
appellant was not maintainable and in dismissing the writ
petition.
We dismiss the appeal but in the circumstances without
any order as to costs.
Appeal dismissed.
V.P.S.
411