1. This is a petition under Article 226 of the Constitution by Messrs. Chiranji Lal Kallu Ram, owners or a passenger bus registered in Delhi State in their name with registration mark DLP 3677, praying for the quashing of an order passed by respondent No. 3 Shri G. B. Lal, Deputy Transport Commissioner (Passenger Tax), U.P., Lucknow, on the 1st of December, 1967, for the suspension of the registration certificate of the vehicle for a period of four months from the date of surrender, the order sought to be quashed being purported to be passed under Section 33 of the Motor Vehicles Act, 1939 (hereinafter to be described as 'the Act'), read with Rules 33 and 244 (a) of the U.P. Motor Vehicles Rules, 1940 (hereinafter to be described as 'the Rules).
2. The petitioners case is that on a special permit issued by the Delhi State Transport Authority on the 7th of July, 1967, their staff brought a reserved party from Delhi to Aligarh in that bus. The bus was being taken back to Delhi on the 9th of July, 1967, it is claimed, without any passengers on hire or reward, though this claim is denied in the counter-affidavit, when it was check by respondent No. 3 purporting to act as the Deputy Transport Commissioner (Enforcement), U. P., Lucknow. At the time the impugned order was passed. Shri G. B. Lal, respondent No. 3, however, had been transferred from the post of Deputy Transport Commissioner (Enforcement) to the post of the Deputy Transport Commissioner (Passenger Tax). Respondent No. 3 sent a notice for service on the petitioners on the 22nd of August, 1967, alleging that the date of validity of the special temporary permit relating to the bus having been tampered with by the petitioners, they should show cause why the registration certificate be not suspended under the provisions of Section 33 of the Motor Vehicles Act. A reply was sent to that notice on behalf of the petitioners whereafter another notice was sent on behalf of the respondent No. 3 as Deputy Transport Commissioner (Enforcement) on the 31st of October, 1967,alleging therein that the vehicle was plying without a permit and they were required to show cause for the suspension of the registration certificate of the said bus. In the mean-time, however, the petitioners had been prosecuted before the Regional Transport Magistrate, Aligarh, but they were acquitted on the 27th of September. 1967 A reply was sent on the 17th of November, 1967, through counsel by the petitioners to respondent No. 3 to the notice dated the 31st of October, 1967. During the period, however, respondent No. 3 was transferred from his earlier post of the Deputy Transport Commissioner (Enforcement) to that of the Deputy Transport Commissioner (Passenger Tax) and he took over charge of the new post on the 28th of November 1967 after relinquishing charge of the earlier post and it was when he was holding the post of the Deputy Transport Commissioner (Passenger Tax) that he passed the impugned order on the allegation that the vehicle was carrying five passengers on hire without a valid permit It is in these circumstances that this writ petition has been filed challenging the validity of the order so passed.
3. A number of grounds has been urged before me against the validity of that order and I propose to deal with them one by one. Before, however, I deal with the points raised before me, it would be better to refer to the relevant provisions of the Act and the Rules.
4. Section 33 of the Motor Vehicles Act, in so far as it is relevant, provides that if any registering authority or other prescribed authority has reason to believe that any motor vehicle within its jurisdiction is being used for hire or reward without a valid permit for being used as such, the authority may, after giving the owner an opportunity of making any representation he may wish to make (by sending to the owner a notice by registered post acknowledgment due at his address entered in the certificate of registration), for reasons to be recorded in writing, suspend the certificate of registration of the vehicle for a period not exceeding four months.
5. Section 35 of the Act provides that any owner of a motor vehicle aggrieved by an order of suspension made under Section 33 may within thirty days of the date on which he has received notice of such order, appeal against the order to the prescribed authority.
6. The word 'prescribed' has been defined in Section 2 (21) of the Act as meaning prescribed by rules made under the Act.
7. Rule 22 of the Rules provides that the authority to hear appears against the orders of the registering authority shall be the Deputy Transport Commissioner (Administration) and the decision of the appellate authority shall be final.
8. Rule 33 provides that any Magistrate of the first and second class or any of the officers of the Transport Department specified to column (1) below Sub-rule (a) of Rule 244 or any Police officer not below the rank of Deputy Superintendent may suspend the certificate of registration of a motor vehicle under Section 33 of the Act.
9. Sub-rule (1) of Rule 244, as it stood prior to the amendment of that rule by Gazette Notification No. MVR-AM-1667-TM/ XXX-B-95-P-64 dated May 17, 1966, published in the UP Gazette dated the 28th of May, 1966, included among the authorities of the Transport Department Deputy Transport Com-missioner (Enforcement) but not Deputy Transport Commissioner (Passenger Tax) or (Yatri-Kar), though by the said amendment the Deputy Transport Commissions (Passenger Tax) or (Yatri-Kar) has also been added to the list.
10. The first point that has been raised is that the Deputy Transport Commissioner (Passenger Tax) has no power to cancel the permit. This point seems to have been raised in ignorance, as the learned counsel for the petitioners was not aware of the notification which has authorised the Deputy Commissioner (Passenger Tux) also to cancel the permit.
11. It was then urged that even if the Deputy Transport Commissioner (Passenger Tax) had power to cancel the permit under Section 33 of the Act, the case was started when respondent No. 3 was the Deputy Transport Commissions (Enforcement) but the order was passed when he was Deputy Transport Commissioner (Passenger Tax) and as the file under which the proceedings were started related to the Enforcement Department, the person who succeeded respondent No. 3 at the post of Deputy Transport Commissioner (Enforcement) ought to have disposed of that file and passed the ultimate order and not respondent No. 3 who had left that post. This contention I find difficult to accept The matter is not akin to the filing of a case in a Court of law where only that Court can dispose of the matter in which the case has been instituted and not any other Court unless the case has been transferred to that Court by an appropriate authority. This is a departmental matter and as both Deputy Transport Commissioner (Enforcement) and Deputy Transport Commissioner (Passenger Tax) have authority to cancel the permit and respondent No. 3 started the proceedings when he was Deputy Transport Commissioner (Enforcement), there seems to be no irregularity in his passing an order when he became Deputy Transport Commissioner (Passenger Tax) on the proceedings earlier started by him as Deputy Transport Commissioner (Enforcement).
12. The next point urged is that while the notice served on the petitioners was to the effect that there had been a clear forgery committed in the permit inasmuch as the date in the permit had been altered and cause was required to be shown as to why this permit should not be suspended the permit has actually been suspended on the ground that the vehicle was being used for hire or reward without a valid permit. It was further pointed out that even in the subsequent notice that was sent on the 31st of October. 1967 (copy Annexure 3), the petitioners have not been required to show cause that they were using for hire orreward the vehicle without a valid permit, but the notice was to the effect that they were plying, the vehicle without a valid permit. As such it has been urged that the notice being not a proper notice, as required under Section 33 of the Act, the order of cancellation of the permit cannot be sustained.
13. Here again I find it difficult to accept the contention. It may be that the first notice dated the 22nd of August, 1967, was not a notice in accordance with provisions of Section 33 of the Act, but the second notice, though it did not use the words that the petitioners were using on hire or reward the said vehicle, states that the vehicle was being plied with a valid permit. The word 'ply', according to its dictionary meaning, connotes the going of to and fro between places regularly for custom. The use of the word 'plying', therefore, cures the defect, if any, in the earlier notice and it cannot IK; said that the notice was not a proper notice.
14. The next point urged was that the law contemplates the filing of an appeal against an order of suspension, but no provision has been made under the rules for the filing of an appeal against the order of suspension passed by the Deputy Transport Commissioner 'whether relating to Enforcement or Passenger Tax, as the rules do not provide for the filing of any appeal against the orders passed by these authorities. The petitioners thus found it difficult to exercise the statutory right granted to them by the filing of an appeal under Section 35 of the Act.
15. As has been pointed out earlier already, Section 35 provides for the filing of an appeal within thirty flays of the date on which the notice of suspension of the permit is received and the appeal has to be filed against the order of the prescribed authority. Rule 22 provides for the filing of an appeal against the order of a registering authority to the Deputy Transport Commissioner (Administration), but it does not provide for the filing of an appeal against the order of the Deputy Transport Commissioner (Enforcement) or (Passenger Tax) to any authority. Under Section 2 (28) of the Act 'registering authority' means an authority empowered to register motor vehicles under Chap. III of the Act and under Rule 21 the registering authority shall be the Regional Transport Officer or the Assistant Regional Transport Officer or any Regional Inspector of the Transport Department authorised by the Regional Transport Officer or the Assistant Regional Transport Officer to perform the duties of the registering authority under the rules. The Deputy Transport Commissioner (Enforcement) or the Deputy Transport Commissioner (Passenger Tax) is not one of the registering authorities. As such, no appeal against the order of suspension passed by any of them could be filed under Rule 22 before the Deputy Transport Commissioner (Administration). It was, however, the duty of the State Government to frame rules providing for appeals against the orders passed by these authorities as without doing so the right conferred by Section 35 of the filing of appealcannot be effectively exercised. The learnedcounsel appearing on behalf of the State could not point out any provision under the rules under which any appeal could be filed against the orders passed by the Deputy Transport Commissioner (Enforcement) or (Passenger Tax). The tact that no such provision has been made in the Rules does not mean that the order passed in this case by the Deputy Transport Commissioner was without jurisdiction, but that order cannot be enforced unless a provision is made in the rules prescribing an authority to whom an appeal would lie in such a case and an appeal has been filed and rejected, for only then can it be said after the exercise of the right of appeal that the order had become final. Incidentally, it may be pointed out that the petitioners in this case did file an appeal before the Deputy Transport Commissioner (Administration), but the memorandum was returned on the ground that he had no authority to hear the appeal.
16. It was further urged on behalf of the petitioners that Shri G. B. Lal, respondent No. 3, being the person himself who issued the notice to the petitioners, could not sit in judgment against his own act requiring the petitioners to show cause why their permit be not cancelled, because it would violate the principles of natural justice. This contention, however, I am not prepared to accept. The notice mentioned certain facts, namely, that the petitioners were plying without a valid permit the vehicle in question on the 9th of July, 1967. No facts asserted in the notice, which may have been in the knowledge of respondent No. 3, were challenged in reply to the notice contained in Annexure 4. Respondent No. 3 was, therefore, not called upon to sit in judgment over his own allegation of facts or matters which were within his personal knowledge. If any legal points were raised before him, it was certainly open to him to give a hearing and come to his own conclusions. The notice being only a tentative notice, no principle of natural justice has, in the circumstances, been violated.
17. The next point urged on behalf of the petitioners was that the petitioners having already been acquitted by the Regional Transport Magistrate at the trial, the registration certificate could not now be suspended on the same facts. This contention also cannot be accepted. In the first place, the petitioners have not produced the order of the Regional Transport Magistrate. The assertion in paragraph 6 of the petition that there has been acquittal by the Regional Transport Magistrate, Aligarh has not been admitted in the counter-affidavit and ignorance is pleaded of the same. A copy of the judgment of the Magistrate, in the circumstances, could have been filed in the case which has not been done. Secondly the prosecution of the petitioners for plying a vehicle without a permit is a proceeding by nature different from the proceeding relating to the suspension of the registration certificate for so plying the vehicle and is independent of it. The Magistrate had authority to try the petitioners for the offence committed by themwhile respondent No. 3 had authority to suspend the registration certificate, and there does not seem to be any reason why because the Magistrate acquitted the petitioners, if at all, the registration certificate could not be suspended if the authority having jurisdiction was of the opinion that the petitioners were plying the vehicle without a valid permit.
18. Before 1 part with the case, I may point out that the learned counsel for the petitioners vehemently challenged the fact that the vehicle was carrying any passengers at the time it was checked by respondent No. 3 and as such it could not be said that it was being used for hire or reward. I have not entered into this controversy about facts, as this assertion has been denied in the counter-affidavit.
19. Altogether, therefore, the writ petition is allowed only to this extent that thoughthe order dated the 1st of December, 1967,passed by respondent No. 3 shall not be quashed, it shall not be enforced so long as thepetitioners are not given an opportunity of prosecuting an appeal against that order beforean authority that may be prescribed under therules for entertaining and hearing such appeals.In the circumstances, the parties shall beartheir own costs.