- (1.)THE State Transport Authority of Orissa (opposite party No. 1) invited applications from Transport Operators for grant of two permanent stage carriage permits for the route between Sambalpur within the State of Orissa and Ranchi within the State of Bihar. Twenty four persons applied for grant of such permits. At the meeting scheduled for consideration of those applications, ten applicants in all appeared. The Transport Authority after considering the respective claims of the parties decided to grant the permits to the respective petitioners of the present writ applications. One Retanlal Marothia, aggrieved by rejection of his application carried an appeal under Section 64 of the Motor vehicles Act to the State Transport Appellate Tribunal (opposite party No. 2 ). The Appellate Authority set aside the grant of permits, held that the Transport authority had no jurisdiction to consider and grant the permit to the petitioner in O. J. C. No. 33 of 1975 and remitted the matter for reconsideration of the applications of the appellant and the other grantee by the Transport Authority. Petitioner in O. J. C. No. 33 of 1975 challenges the order of the appellate authority holding that the grant in its favour is without jurisdiction and the petitioner in the connected case challenges the remand order by contending that when the other grantee was removed from the arena of consideration, there was no justification to remand the matter as in the vacancy caused by the decision of the appellate authority, the disgruntled appellant could have been fitted in.
(2.)THE point raised by counsel for the petitioner in O. J. C. No. 33 of 1975 is that the finding of the appellate Tribunal in regard to the petitioner is not sustainable in law. Admittedly the petitioner is a registered partnership firm. The main office of the firm is at Ranchi in the State of Bihar and the firm has several branches in different places in India. Some of the partners own immovable properties at various places in the State of Orissa and one of them k. N. Jaiswal resides permanently at Cut-tack and conducts the business of the firm within the State from here. It is alleged that the partnership firm also has extensive business within the State. A partnership firm is not a legal person and the question of its residence has to be determined not by referring to its place of registration or location of the registered office, but with reference to the place of residence of its partners. In this view of the matter, it is submitted, the petitioner-firm should have been found to be residing within the jurisdiction of the State Transport Authority of Orissa and the application made to that authority was in order and the Tribunal went wrong in holding that the State transport Authority of Orissa has no jurisdiction to entertain and consider the application by the petitioner. Learned Standing Counsel appearing for the State transport Authority supports this stand while Mr. Ranjit Mohanty appearing for opposite party No. 3 supports the order of the appellate authority.
(3.)SECTION 45 of the Motor Vehicles Act (hereinafter referred to as the 'act')provides:---
" (1) Every application for a permit shall be made to the Regional transport Authority of the region in which it is proposed to use the vehicle or vehicles; provided that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles. Provided further that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States, the application shall be made to the Regional Transport Authority of the region in which the applicant resides or has his principal place of business. (2) Notwithstanding anything contained in Sub-section (1), the State Government may, by notification in the Official Gazette direct that in the case of any vehicle or vehicles proposed to be used in two or more regions lying in different States, the application under that subsection shall be made to the State Transport Authority of the region in which the applicant resides or has his principal place of business. (3 ). . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . "
Learned Standing Counsel for the Transport Department has produced before us a notification of the State Government dated 14th July, 1970, which runs thus: "no. 11793/t. T. C. 64/70. In exercise of the powers conferred by Subsection (2) of Section 45 of the Motor Vehicles Act, 1939 (Act IV of 1939) as amended by Act 56 of 1969, the State Government do hereby direct that in the case of any vehicle or vehicles proposed to be used in two or more regions lying in different States, the application under the sub-section shall be made to the State transport Authority of the region in which the applicant resides or has his principal place of business. " in view of this notification, the only question germane for consideration is as to whether the petitioner-firm resides or has his principal place of business within the State of Orissa. The requirements are alternate. Counsel for the petitioner claims that a firm does not have a legal persona and the rule applicable to a company for determining its residence does not apply to a firm. This contention is directly supported by a decision of the Supreme Court in the case of dulichand Laxminarayan v. Commissioner of Income-tax Nagpur, AIR 1956 SC 354. Mr. Mohanty for the opposite party No. 3 while not disputing this position relies on a decision of the Supreme Court in the case of Erin Estate, Galah, ceylon v. Commr. of Income-tax Madras, (1958) 34 ITR 1 : (AIR 1958 SC 779)where residence of a partnership for the purposes of the Income-tax Act of 1922 was in issue. The Court followed the test of control and management and ruled that a de facto control and management has to be proved for the purpose of determining the residence of the firm 'control and management of affairs of a firm' contemplated under the Act referred to the controlling and directing powers which are even described as the 'head and brain'. There is no dispute that this is an appropriate test. Mr. Roy for the petitioner placed considerable emphasis on two tests -- the first one being of the Madras High Court in the case of Kanan Lorry Service, Pollachi v Nataraja Motor Service, Pollachi, AIR 1962 Mad 198 and the second one being the case of Ratanlal v. State Transport appellate Authority, Madhya Pradesh, AIR 1969 Madh Pra 204. Both these decisions relate to interpretation of Section 45 of the Act. Since we do not propose to interfere with the direction of remand, and we think it appropriate that the matter should be investigated by the Transport Authority as directed by the Appellate Tribunal, we do not intend to say anything finally. We, however, propose to vacate the final order of the Tribunal deciding that the petitioner was not entitled to apply to the State Transport Authority of Orissa. As was indicated by the Madras High Court, the provision is essentially one relating to the place of application or the authority to whom the application has to be made. It does riot preclude the jurisdiction of the permit-granting authority to consider an application which is otherwise properly made by satisfying the requirements of the statute. Therefore, the appellate authority was in error in holding that the State Transport Authority of Orissa could not deal with an application of the petitioner. If the petitioner was actually a resident of Bihar, it was open to the petitioner to make the application to the bihar Transport Authority and if that application was forwarded for consideration by the State Transport Authority of Orissa, jurisdiction of the state Transport Authority of Orissa to deal with the application could not be disputed. In the circumstances, the conclusion of the Tribunal that the petitioner's application could not be considered must be vacated. Petitioner's stand is that it resides in the State of Orissa because some of its partners permanently reside here and its principal place of business is also located within the State. It is not for us to either accept or negative this stand. In fact, when such a dispute had been raised it was for the appellate authority to investigate into the assertion of fact either by itself or by remitting the matter to the Transport Authority. We think it appropriate to require the transport Authority to deal with this claim of the petitioner. In case, the transport Authority is satisfied that the petitioner satisfies one of these alternatives the application made by the petitioner directly to the State transport Authority of Orissa would be in order and the Transport Authority would be competent to deal with the matter. Accordingly we would require the transport Authority (opposite party No. 1) to investigate into this assertion of the petitioner and on its finding its jurisdiction to deal with the case would depend.