http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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