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Smt. Krishna Devi vs State Of U.P.Through Secy … on 21 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved on 26.07.2019

Delivered on 21.01.2020

Court No. – 11

Case :- MISC. SINGLE No. – 5582 of 2009

Petitioner :- Smt. Krishna Devi

Respondent :- State of U.P. and others

Counsel for Petitioner :- Ashok Kumar Srivastava

Counsel for Respondent :- C.S.C., A.K.Singh Somvanshi, K.S.Rastogi, Manoj Kumar Singh, Piyush Kumar Singh

Hon’ble Sudhir Agarwal,J.

1. Heard Sri Ashok Kumar Srivastava, Advocate, for petitioner and learned Standing Counsel for respondents-1 and 2. None has appeared on behalf of respondent-3 though the case has been called in revise. Hence I proceed to hear and decide this case after hearing learned counsel for petitioner and learned Standing Counsel.

2. By means of present writ petition filed under Article 226 of Constitution of India, petitioner has prayed for a writ of certiorari to quash judgment and order dated 01.10.2007 passed by Transport Commissioner (Zone) Lucknow/Appellate Authority in Appeal No. 02 of 2007 relating to Vehicle No. UP 30 C-8113/Tractor/Hardoi whereby it has allowed the appeal and set aside order dated 23.07.2007 passed by Registration Officer.

3. The case set up by the petitioner is that he purchased Vehicle No. UP 30 C-8113 (Tractor-New Holland Ford) and also accessories like Trolley, Leveler, Cultivator, two Engines, Leister, two Motors and two Fans for cultivating his field. Respondent-3, Thamaman Singh, was appointed as Caretaker for operating the aforesaid Tractor with accessories. He did not give any outcome/profit for the last two years to the petitioner and misappropriated the amount earned. Consequently, petitioner ousted respondent-3 from his Caretakership on 03.04.2006.

4. Petitioner came to know that respondent-3 in collusion with Ashok Singh, Avadhesh Singh and Devendra Singh fraudulently made documents and transferred the aforesaid Tractor in his name though petitioner has not sold Tractor or other things, relating to Tractor to Respondent-3. Consequently petitioner lodged F.I.R. on 11.04.2006 being Case Crime No. 230 of 2006 under Sections 420, 467, 468 I.P.C. against Respondent-3, Ashok Singh and Avadhesh Singh at Police Station Pali, District Hardoi. Original document of Tractor and accessories continued to be possessed by petitioner and he has never signed any transfer letter nor submitted the same to the office of Assistant Regional Transport Officer (hereinafter referred to as “ARTO”). Respondent-3, however, submitted forged documents including alleged transfer letter in the office of ARTO for getting registration transferred in his name.

5. It appears that ARTO, in the meantime, has already passed an order on 06.01.2006 allowing transfer of vehicle in question to respondent-3 and when petitioner made complaint, ARTO by order dated 23.07.2007 cancelled his order dated 06.01.2006. Respondent-3 filed an appeal under Section 57 of Motor Vehicles Act, 1988 (hereinafter referred to as “Act, 1988”) and the same has been allowed by Deputy Commissioner/ Appellate Authority by order dated 01.10.2007. It has set aside order dated 23.07.2007 passed by ARTO on the ground that against order dated 06.01.2006, remedy of appeal was available and ARTO himself could not have recalled the order, therefore, order dated 23.07.2007 is bad.

6. It has also been stated that a cross report was lodged by respondent-3 which has been registered as Case Crime No. 192 of 2007 under Section 406 I.P.C in which he has stated that Tractor was purchased by petitioner while accessories were purchased by respondent-3 in the name of his son Ashok Kumar from Ms. Hans Engineering Work, Suraj Kund, Meerut. Respondent-3 and petitioner were using Tractor and accessories for their agricultural operations. Later on respondent-3 sold out some of his land to the adopted son of Shiv Kumar, Son of Mahipal. Shiv Kumar and the petitioner, Smt. Krishna Devi, also sold their land and Tractor was sold to respondent-3 for a consideration Rs. 1,80,000. Respondent-3 applied for transfer of registration which was accepted and allowed by ARTO by order dated 06.01.2006. After transfer, petitioner, Shiv Kumar and others were allowed by respondent-3 to use his Tractor and Trolley for transporting upto Sugarcane Mill but petitioner took advantage of the situation, attempted to take away Tractor and Trolley against which respondent-3 made a complaint to Police Station, Pali, on 02.04.2006. Police called both the parties along with their relevant documents whereupon Station Officer asked for original documents which were handed over by respondent-3 and Station Officer saying that we will make inquiry detained respondent-3 at Police Station. Later on, with the collusion of Police, the accused, i.e., petitioner and others took away everything i.e., Tractor etc. and documents.

7. Counsel for petitioner could not dispute that in respect of both criminal cases registered, matter is still pending before Magistrate and no final order has been passed. It is also evident from the aforesaid facts that issue of ownership of Tractor is involved. According to petitioner, respondent-3 has manufactured some documents and on that basis obtained an order from the office of ARTO while the case set up by the respondent-3 is that petitioner has sold Tractor to respondent-3 and after transfer, has taken away Tractor with the help of Police in an illegal manner.

8. The issue of ownership or whether there was any sale by petitioner involves investigation of disputed questions of fact and cannot be examined under Article 226. At this stage, this Court has to examine whether appellate order dated 01.10.2007 has been validly passed or not.

9. It has not been doubted that an order of transfer was passed by ARTO on 06.01.2006. Against such order, petitioner has remedy of appeal but instead of availing the same, petitioner filed an application seeking recall whereupon ARTO recalled its earlier order and cancelled the same vide order dated 23.07.2007.

10. Counsel for petitioner could not show any provision for review available under Act, 1988. Unless power of review is there, ARTO could not have recalled or reviewed its earlier order particularly when remedy of appeal is already provided in the Statute.

11. It is contended that respondent-3 obtained order of transfer of registration by playing fraud on the basis of forged documents and fraud vitiates everything, therefore, absence of power of review will not take away authority from ARTO of cancelling its earlier order.

12. As a matter of proposition, it cannot be doubted that if an order has been obtained by playing fraud, no specific provision for review or recall is required since fraud vitiates everything, therefore an order obtained by fraud can always be recalled or revoked. But in the present case, the question is whether documents submitted by respondent-3 before ARTO were forged or not and it is still a matter of inquiry in the criminal cases registered by both the sides. Matter is yet to be investigated by Police, hence no final opinion can be expressed on this aspect at this stage.

13. In these facts and circumstances, in my view, the appropriate remedy available to petitioner was to file an appeal under Section 57 of Act, 1988, as has been observed by Appellant Authority, which remedy was not availed by petitioner. Therefore, Appellate Authority has rightly observed that in absence of any provision for review/recall, petitioner should have availed remedy of appeal and ARTO was not justified in recalling its earlier order. Therefore, it has rightly set aside recall order dated 23.07.2007. I find no reason to interfere with the order impugned in the present writ petition but make it clear that it will be open to petitioner to avail remedy of appeal now against the order dated 06.01.2006 and, in case, such an appeal is filed within thirty days from today, Appellate Authority shall consider the same after giving opportunity to all concerned parties and pass appropriate order in accordance with law on merits.

14. The writ petition is disposed of in the manner hereinabove.

Dt. 21.01.2020

PS

 

 

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