1. The writ petitioner is a company, and plies under valid permit a stage carriage with registration No. MDX 884 on the route between Kasargod and Sulliya via Adhur. That permit has been, under Section 60 of the Motor Vehicles Act, suspended For a month, on the ground of the petitioner's having plied from May 1, 1957 to May 3, 1957 the bus without any current certificate of fitness. The appeal before the Appellate Tribunal had failed, though the period of suspension been reduced to a week. Various grounds have been taken against the aforesaid orders in the writ petition, two of which are: firstly, that the suspension under the section is illegal because such an order can only be passed under Section 123, and the next is that the Secretary who had directed the suspension has no authorisation under Section 123, and the order would be without jurisdiction. It is further urged that the initial error vitiating the exercise of jurisdiction would not be curable by the exercise of the appellate power in the case.
2. We think the first ground is sufficiently supported by decisions. In Puran Singh v. State of U.P., AIR 1959 All 489, it has been held that a person proceeded against for not having certificate of fitness, cannot be punished under Section 60, because the effect of Section 22, read with Ss, 38 and 41 of the Motor Vehicles Act, is that a vehicle would not be deemed to be duly registered without a certificate of fitness under Section 38. The learned Judge has held that the result of absence of certificate of fitness is to render the vehicle as though not registered in accordance with Section 22, and any contravention of the Section is punishable under Section 123. The relevant extract from the aforesaid judgment reads thus:
'A contravention of Section 22 is punishable under Section 123 which makes punishable the driving of a motor vehicle in contravention of Section 22. The proper course in this case would, therefore, have been to proceed against the petitioner under Section 123. In any case, Section 60 failed to confer the jurisdiction on the Transport Authority to suspend the permit'.
The order in the case was accordingly quashed. This Court bas in Oommen v. Secretary, R.T.A. Kottayam, O. P. No. 327 of 1959, D/- 2-8-1960 (Kerala) followed the aforesaid decision. It follows that there are two decisions taking the view that failura to have certificate of fitness cannot be proceeded against under Section 60, but would be punishable under Section 123. The learned Government Pleader fairly conceded the correctness of the aforesaid proposition; and it is, therefore, clear that the order against the writ petitioner cannot be sustained, and must be vacated.
3. As the petition succeeds on the first ground, we do not propose to decide the next, which can be adjudicated where the decision on the point be inevitable for the proper disposal of the petition.
4. Accordingly, the writ petition is allowed.Having regard to the circumstances of the case, wemake no order for costs.