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Devi Sahai Agarwal Vs. Transport Appellate Tribunal, Rajasthan, Jaipur and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 47 of 1964
Judge
Reported inAIR1970Raj48; 1969()WLN111
ActsMotor Vehicles Act, 1939 - Sections 60 and 64; Constitution of India - Article 226
AppellantDevi Sahai Agarwal
RespondentTransport Appellate Tribunal, Rajasthan, Jaipur and anr.
Appellant Advocate R.K. Rastogi, Adv.
Respondent Advocate M.M. Vyas, Addl. Adv. General
Cases ReferredIn Y. Thirupathi v. Andhra State
Excerpt:
motor vehicles act, 1939 - section 60--cancellation of permit--transport appellate tribunal cancels permit on basis of resolution of the rta--notice to party not given--whether cancellation is erroneous.;cancellation of a permit is a penalty which may be imposed against a holder but before it can be done, the holder has to be afforded an opportunity. the order of cancellation of a permit being in the nature of a quasi-judicial and calls for the application of the principles of natural justice.;in this case there is no notice giving more than what b. is reported to have said. the mere fact that b. was examined, assuming it to be the correct position is not enough. the resolution condemns the petitioner of which he had no notice and therefore violates the principles of natural justice. -..........appeal of the petitioner on the 23rd january 1964, said that rjl 6127 had no permit on shahpura-jaipur route but the going on shahpura-jaipur route was also in contravention of the permit granted to rjl 6127 and the vehicle therefore committed a breach of the conditions of the permit and therefore the order of the rta was proper and need not be interfered with. the tat therefore cancelled the permit no. 2111 on jaipur-bikaner route saying that it was an error on the part of the rta to have cancelled the petitioner's permit on shahpura-behror route in respect of rjl 283.19. now before this court it is said that the petitioner contravened the terms of the permit on taipur-bikaner route in respect of rjl 6127 because it carried passengers even beyond alwar, and the petitioner submits.....
Judgment:
ORDER

B.P. Beri, J.

1. This is a petition under Article 226 of the Constitution of India complaining against the cancellation of a stage carriage permit under Section 60 of the Motor Vehicles Act and seeks a writ of Certiorari against the order of the Transport Appellate Tribunal, Rajasthan dated the 23rd January, 1964.

2. The petitioner is a transport operator and held one stage carriage permit on Shahpura-Behror route and another on Jaipur-Bikaner route of 235 miles length travelling over the Jaipur and Bikaner regions under the Motor Vehicles Act. The non-temporary stage carnage permit was granted to the petitioner in lieu of compensation as he was displaced on account of nationalisation of Jaipur-Alwar route of which the petitioner held a permit. There is no dispute so far. The petitioner contends that the Jaipur-Bikaner permit was granted to him by the State Transport Authority (hereinafter called the State Transport Authority) whereas the respondents contend that it was the Regional Transport Authority (hereinafter called the RTA) which had done so. However, the stitioner had his permit on Shahpura ehror route for vehicle No. RJL 283 whereas his Jaipur-Bikaner permit was in respect of his vehicle No. RJL 6127. The petitioner received a letter No. 8930 dated the 25th January, 1963, signed by the Assistant Regional Transport Authority and to that a copy of a complaint was annexed alleging that the vehicle RJL 6127 was found plying on the nationalised route of Shahpura without permit as reported by Brij Mohan T. I. The petitioner denied the complaint by his letter of the 23rd March, 1963. The RTA in its meeting of the 3rd and 4th October, 1963, vide its resolution No. 10 cancelled the petitioner's permit in respect of his vehicle RJL 6127 plying on Shahpura Beh-ror route. The petitioner appealed to the Transport Appellate Tribunal (hereinafter called the TAT) inter alia complaining that the petitioner was not given any opportunity to produce his witness. The TAT by its order of the 23rd January, 1964, dismissed the petitioner's appeal but modified the resolution of the RTA by cancelling the petitioner's permit on Jaipur-Bikaner route. The petitioner has now moved this Court.

3. The petitioner's contentions are that the permit on Jaipur-Bikaner route having been granted by the STA could not be cancelled by the RTA, a subordinate authority in view of the language of Section 60 of the Motor Vehicles Act (hereinafter called 'the Act'); that the principles of natural justice have been violated firstly because the charge against the petitioner was in regard to Shah-pura-Behror vehicle for going on the said route without necessary documents but the petitioner's permit on Jaipur-Bikaner route has been cancelled; that the cancellation has been done on the alleged evidence of T. I. Brijmohan who was never examined and at least whose statement was never recorded; that the petitioner has been alleging that his vehicle had gone to the Kacha Banda on the out-skirts of the City of Jaipur for filling petrol and he has been persistently asking the specific place where his vehicle was caught plying but no one has ever cared to tell him this, and that the petitioner wanted to produce evidence, name the witness and wanted to produce him but no opportunity was afforded to him to do so. The allegation in the resolution that he had been given sufficient opportunity is factually erroneous.

4. The TAT and the RTA respondents in this case filed a brief reply on the 12th February, 1964, without any affidavit and when the petitioner's counsel pressed that his allegations should be accepted because they were apparently unrebutted, on the 11th February, 1969, the respondents came forward with an additional reply with some documents. The learned counsel for the petitioner seriously protested against this additional reply because new pleas of facts are being trotted out some five years after the filing of the petition by him. While the respondents cannot be complimented for this leisurely behaviour, I would consider at appropriate place if necessary whether I would take into consideration these new pleas or not. The case of the respondents is that the petitioner was granted the permit by the RTA and not the STA; that the petitioner was carrying passengers beyond Shahpura; that T. I. Brijmohan reported about it; that the petitioner has suppressed the letter which accompanied the copy of the complaint; that the petitioner should have produced the witness before the RTA; that the RTA made an error in the naming of the route which was rectified by the TAT in appeal; and that the petitioner was guilty of violating a term of his permit because he plied on a nationalised route and therefore his permit was rightly cancelled.

5. From the rival contentions the following questions emerge for determination:

(1) Whether it was the STA Jaipur or the RTA Jaipur which granted the cancelled permit to the petitioner?

(2) Whether the cancellation suffers from violation of principles of natural justice and/ or on account of there being an error apparent on the face of the record?

6. As the petitioner succeeds on the second question, it is not necessary to wade through the labyrinth of the first. I, therefore, propose to examine question No. 2 first.

7. This question revolves around the pivot of Section 60 of the Act, and it is therefore, proper to extract out the relevant portion of that section:

'60. (1) The Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit--

(a) on the breach of any condition specified in Sub-section (3) of Section 59, or of any condition contained, in the permit; or

(b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit; or

(c) ....

(d) .....

(e) .....

(f) .....

Provided that no permit shall be cancelled unless an opportunity has been given, to the holder of the permit to furnish his explanation.

(1A) .....

(2) Where a Transport Authority cancels or suspends a permit or reduces the number of vehicles or the routes or area covered by a permit, it shall give to the holder in writing its reasons for the action taken.

(3) Where a permit is liable to be cancelled or suspended under Clause (a) or Clause (b) or Clause (c) of Sub-section (1) and the Transport Authority is of opinion that having regard to the circumstances of the case, it would not be necessary or expedient so to cancel or suspend the permit if the holder of the permit agrees to pay a certain sum of money, then, notwithstanding anything contained in Sub-section (1), the Transport Authority may, instead of cancelling or suspending the permit as the case may be, re-cover from the holder of the permit the sum of money agreed upon.'

8. The authority which can cancel or suspend a permit is the one which granted it. The proviso which is couched in negative language lays down in a mandatory form that no permit shall be cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation. Subsection (2) further provides that the authority cancelling or suspending a permit shall give to the holder in writing his reasons for the action taken. Under Section 64(b) an appeal lies against an order of revocation or suspension of a permit. All these factors go to show that the cancellation of a permit is a penalty which may be imposed against a holder; but before it can be done, the holder has to be afforded an opportunity to furnish his explanation, he has to be told on what grounds the permit has been cancelled and he has a right of appeal. In my opinion, therefore, the order of cancellation of a permit being in the nature of a penalty, the action of the authority is of a quasi judicial nature and calls for the application of the principles of natural justice. There is ample authority for this proposition in decided cases.

9. In Krishna Gopal v. Regional Transport Authority, 1960 Raj LW 156 (157) which was a case of suspension of a permit, Jagat Narayan J. delivering the judgment of the Bench observed:

'On the other hand an order cancelling or suspending a permit passed under Section 60 of the Motor Vehicles Act is a quasi judicial order which is appealable under Section 64(b). .....An order suspending a permit under Section 60 is an order of punishment and before such an order can be passed rules of natural justice require that a hearing should be given to the party intended to be punished. It was held in K. Balagangadharan v. C. R. Traffic Board, AIR 1957 Trav-Co 141 that the proviso to Section 60(1) cannot apply where the permits have not been cancelled but only suspended, yet rules of natural justice require that a person should be given a fair opportunity to state his case before he is punished.'

10. In Madan Mohan v. S. T. A. Authority, M. P., AIR 1966 Madh Pra 144 Dixit C. J. delivering the judgment of the Bench, inter alia, observed:

'The proviso to Section 60 (1) lays down that no permit shall be cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation. The person proceeded against must first be apprised of the allegations against him falling under categories mentioned in Section 60 (1).'

In this case, AIR 1966 Madh Pra 144, this having not been done, the order of the cancellation o the permit was quashed.

11. In S. V. M. Transport v. S. T. A. Tribunal, AIR 1965 Mad 471, a permit was suspended because the conductor of the vehicle refused to carry a girl passenger unless she had paid for a full ticket. The R. T. A. suspended the permit on the ground that the girl was under 12 years of age and this conclusion was reached by a mere look of the girl. It was held that the order of suspension was bad because the proceedings were of a 'criminal nature' and it was, therefore, essential that facts were established beyond reasonable doubt and there was no legal or proper basis for fixing age with reasonable certainty. The order of suspension was quashed.

12. The learned Deputy Government Advocate invited my attention to Dhanmul v. Regional Transport Authority, Salem, AIR 1959 Mad 531, where another learned Judge of the Madras High Court observed that the examination of a witness is not necessary for the suspension of the permit under Section 60 because there is no power given to the R. T. A. to summon witnesses or to enforce their attendance. The omission in the statute in this respect suggests that it was not the intention of the legislature that the authorities should examine any witnesses and all that the proviso to Sub-section (1) of Section 60 requires is that before a permit is cancelled, the holder of the permit should be given an opportunity to furnish his explanation. Therefore, the cancellation of the permit was upheld and the writ petition was dismissed.

13. The grievance of the petitioner before me is manifold. His first submission is that he was not specifically told at what precise place was he found contravening the terms and conditions of his permit. AD that he was told was that he was plying without a permit and other documents 'from Shahpura' on the nationalised route; that the route on which the vehicle was found to be travelling by the R. T. A. was 'Shahpura-Behror' route while the TAT found that he was plying on 'Shahpura-Jaipur' route. The case now trotted out, subject to being permitted by the Court, was that he was plying between 'Shahpura-Alvvar' route carrying passengers. The second grievance is that though the petitioner wanted to examine a witness of his own to controvert the allegations against him, he was not given such an opportunity. It will be necessary to examine the facts closely on these questions.

14. The petitioner has alleged in paragraph 5 of his petition that he was served With a letter No. 8930 dated the 25th January, 1963, under the signatures of Shri M. L. Gupta the Assistant Regional Transport Officer along with a copy of the complaint alleging that the bus No. RJL 6127 of the petitioner was found plying on the nationalised road from Shahpura without permit as complained by Shri Brij Mohan T. I. The petitioner submitted his reply to the said letter on the 23rd March, 1963, denying all the allegations.

15. The petitioner has not produced the letter No. 8930 of 25th January, 1963. The respondent has made a grievance at it that it has been suppressed. The respondent has not produced its office copy of the letter on the ground that the tile of this case has been lost. As early as the 14th of February, 1964, this Court had ordered the learned Government Advocate to call for the entire record relating to this cancellation as there Was some dispute regarding the recording of the statements of witnesses. The learned Government Advocate undertook to produce the said record on the 18th February, 1964, and that the record which is available with the learned Deputy Government Advocate now does not contain even the copy of the first notice served on the petitioner. The grievance of the learned Deputy Government Advocate, therefore, has no substance for the record of the case was ordered to be preserved and produced for the examination of the Court and yet it is reported to be lost.

However, this question need not detain me anv further because in the first answer submitted on behalf of the respondents on the 12th February, 1964, in answer to paragraph 5 all that has been staled is that the letter mentioned by the petitioner was despatched for the Secretary of the R. T. A. and the rest of the allegations contained in para 5 of the petition were not disputed. I, therefore, take it as proved that a letter was sent from the office of the RTA and with this was enclosed a copy of the complaint made by Shri Brij Mohan Sharma T. I. who said that bus No. RJL 6127 was plying without permit and other documents from Shahpura on the nationalised route. There are a number of other complaints relating to other vehicles contained in the copy of the T. I.'s complaint where it has been stated for instance, that bus RJL 857 picked up the passengers from Dausa to Jaipur, bus RJL 1120 picked up the passengers from Jaipur to Bharatpur and Kanota; bus RJL 3026 picked up passengers from Jaipur to Madhuwalan portion etc., but no such allegation is levelled against RJL 6127. The petitioner made a reply to the aforesaid allegation by his letter of the 23rd March which is Ex. 3 repudiating the complaint of Shri Brij Mohan Sharma and positively stating that the vehicle had gone to Kucha Bunda in Jaipur for taking petrol and it was there that Shri Brij Mohan Sharma challaned the vehicle, damaged its gear and forcibly obtained the signature of the conductor on the challan. Later the T. I. assured the petitioner that no action would be taken.

16. When the case came up before the R. T. A. on the 3rd/4th October 1963, the resolution which it passed is in the following language:

'Resolution No. 10

Item No. 10.

Vehicle No. RJL 6127 plying on Shahpura-Behror route was found to be plying without permit on the nationalised mute on 29-10 62. Shri Devi Sahai Agrawal represented by Shri Fassiuddin Counsel was served with notice on 7-3-63, but he did not care to file any reply. They are, however, contending the notice today and wanted to produce witness Shri Hazarilal. A sufficient adjournment was given to produce this witness but he was not produced. The Inspector Shri Brij Mohan detecting the offence was examined and the case was found to be correct.

Resolved, therefore, that the permit be and is hereby cancelled.

Announced.'

This is Ex. 4.

17. This resolution suffers from certain errors apparent on the face of it. The first is that to the notice served by the RTA a reply was made by the petitioner and it is erroneous to say that the petitioner did not care to file any reply. The letter of the 23rd March is there on the record and its receipt and the fact that it was sent to the RTA as alleged in para 5 of the petition have not been disputed in paragraph 5 of the reply. The meeting took place on the 3rd/4th October, 1963, and it is nobody's case that this question of cancellation of the permit was examined earlier than that day and therefore it is also incorrect to say that sufficient adjournment was given to the petitioner to produce his witnesses. It is alleged that the Inspector Shri Brij Mohan detecting the offence was examined but his statement is not before the Court. It is contended by the petitioner that Brij Mohan was not examined and his statement was not on record and it was for that purpose that this Court ordered on the 14th February, 1964, that the record of the RTA should be made available for scrutiny. The learned Deputy Government Advocate conceded before me that except the report of the T. I. there is no other statement of the T. I. Brij Mohan on the record of the RTA as available to him.

18. After this resolution Ex. 4 was passed, an appeal was taken to the TAT by the petitioner and there an application containing additional grounds of appeal was submitted in which it was specifically averred that the petitioner was not told the specific nature and the place of the offence and the permit granted to the petitioner in respect of RJL 6127 was for Jaipur-Bikaner route whereas his permit on Shahpura Beh-ror route in respect of another vehicle could not be cancelled. It was also complained that the checking of the vehicle was done at Kucha Banda and not at Shahpura as mentioned in Ex. 4; that the petitioner had taken his witness Hazarimal on the date of the impugned order Ex. 4 and yet he was not examined. The TAT while rejecting the appeal of the petitioner on the 23rd January 1964, said that RJL 6127 had no permit on Shahpura-Jaipur route but the going on Shahpura-Jaipur route was also in contravention of the permit granted to RJL 6127 and the vehicle therefore committed a breach of the conditions of the permit and therefore the order of the RTA was proper and need not be interfered with. The TAT therefore cancelled the permit No. 2111 on Jaipur-Bikaner route saying that it was an error on the part of the RTA to have cancelled the petitioner's permit on Shahpura-Behror route in respect of RJL 283.

19. Now before this Court it is said that the petitioner contravened the terms of the permit on Taipur-Bikaner route in respect of RJL 6127 because it carried passengers even beyond Alwar, and the petitioner submits that this altogether new plea after five years of the writ petition should not be taken into consideration.

20. I will examine the position both without taking into account this allegation as well as after taking it into consideration.

21. The original grievance in T. I.'s report (Ex. 2) is in respect of two counts that the vehicle was plying (a) without permit and (b) other documents and from Shahpura. The RTA by its resolution Ex. 4 found that the vehicle was plying in between Shahpura and Behror which is a nationalised route and for which the vehicle had no permit. The TAT modified the resolution by cancelling the permit of Jaipur Bikaner calling this to be a mistake.

22. In Byrne v. Kinematograph Renters Society Ltd., 1958-2 All ER 579 Barman J. while considering the rule of notice under the principles of natural justice observed that the person accused should know the nature of the accusation made' and it is one of the principal rules of natural justice.

23. In Marriott v. Minister of Health, 1935-105 LJKB 125 Swift J. laid down that 'a Tribunal must take care that the views of both the contending parties and the contentions they submit and the evidence they proffer are given proper weight.'

24. In Mukhtar Singh v. State of U. P., AIR 1957 All 297, it was laid down that every person whose civil rights are affected must have a reasonable notice of the case he has to meet.

The nature of the case set out in the complaint, annexure Ex. 2 is different from the finding given in the Resolution Ex. 4 and corrected in the TAT's order Ex. 6. The petitioner has been consistently and also repeatedly complaining that he should be told where his vehicle was checked but neither the RTA nor the TAT has told him the precise place notwithstanding the fact that the petitioner has been saying that it was at Kucha-Banda Jaipur when he had gone to fill in the petrol that his vehicle RJL 6127 was checked. In view of this allegation of the petitioner it became necessary for the RTA to precisely come to a conclusion as to the place where the petitioner was found plying his vehicle RJL 6127, in contravention with the terms of his permit so that the penalty of cancellation of his permit could be imposed against him. Neither the RTA nor the TAT pinpointed the place where the vehicle contravened the terms of the permit which they cancelled,

25. Now looking at the case after including the allegations which have now beentrotted out after five years that the petitioner was carrying passengers near the octroi post, Alwar, when it was checked byBrij Mohan T. I., I find that this was nevera case put to the petitioner either in thefirst notice or in the meeting of the RTA orbefore the TAT and he is Being condemnedon the allegation of which he had had neverany specific notice. It is a flagrant violation of the principles of natural justice tocondemn a man without telling him whathe is accused of.

26. I have taken into consideration the new plea of fact as now advocated five years after the event and even this situation does not alter the conclusion that the petitioner had had no notice of specific allegation as a result of which his permit was being cancelled. In fact, this new plea, assuming this to be true, adds to the confusion of the notice. The petitioner's vehicle was stopped and checked at Alwar of which there is no specific mention in the original complaint of T. I. Brij Mohan Lal. That his vehicle was carrying passengers is also not indicated in T. I.'s note of complaint, as it has been done about other cases. The vagueness of the original notice to the petitioner is thus heightened by inclusion of these new materials. It is, therefore, not necessary to decide whether this new plea should be permitted or not because even on its consideration the result remains the same namely that the petitioner had no precise notice of the accusation on the basis of which his permit was cancelled.

27. Let me now take up the question of evidence having been proffered by the parties. The case of the petitioner is that no evidence was recorded by the RTA and none is forthcoming. In Y. Thirupathi v. Andhra State, AIR 1957 Andh Pra 608, it has been observed:

'It is well settled that the Transport Authorities under the Motor Vehicles Act exercise judicial or quasi judicial functions. The Regional Transport Authority is therefore bound to record the statements of persons examined before it so as to enable the High Court as also the higher authorities, on appeal or revision to examine those statements and decide whether its conclusions are correct or not.'

In this case, the RTA had passed an order suspending the petitioner's permit for a period of six months on the ground that there was overloading of passengers relying on the report of a Deputy Superintendent of Police in preference to the statements made by certain respectable witnesses made before it. The statements were, however, not reduced to writing and no reasons were given for rejecting those statements. The order of suspension was confirmed on appeal and revision by the Central Road Traffic Board and the Government respectively. It was held by the Andhra Pradesh High Court that the order of suspension should be quashed as the RTA had erred in giving its judgment merely on the report of the Deputy Superintendent of Police.

28. So far as the Madras authority in Am 1959 Mad 531 is concerned it has not been noticed in AIR 1965 Mad 471. However, in my opinion the correct position seems to be that if there is any factual controversy regarding the facts alleged for the cancellation of a permit, then the substance of what the witnesses for and against have deposed must be recorded. This is necessary because there is an appeal provided under the Motor Vehicles Act itself and no appellate authority can possibly apply its mind on the facts and assess them unless it has some sort of memoranda regarding the evidence adduced before the subordinate tribunal. It is true that there is no provision for enforcing the attendance of witnesses before the RTA even in the Rajasthan Rules but from that no inference can be deduced that witnesses cannot be or should not be examined. All that can be said is that if the parties produce their witnesses they must be heard and factual controversies should be resolved by reference to those witnesses. Cancellation of a permit, as I have already held above, is a penalty and before a person can be punished, law gives him an opportunity to be heard and that hearing would be perhaps in some cases a mere ritual if his witnesses are not heard. Therefore, with great respect, I am not prepared to agree with the decision in AIR 1959 Mad 531.

29. In the case before, me there is no notice giving more than what Brij Mohan is reported to have said. I do not know on what basis could the TAT come to the conclusion that Brij Mohan was examined by the RTA. The mere fact that Brij Mohan was examined, assuming it to be the correct position, is not enough. It is what he said really mattered and this could not be considered by the TAT unless there were some notes to show what he had actually stated. Therefore the resolution of the RTA suffers from an error apparent on the face of the record as it is inconsistent with the notice. The resolution condemns the petitioner on a ground of which he had no notice and thereby violates the principle of natural justice. The TAT was also handicapped for want of record of the alleged statement of T. I. Brij Mohan and it could not apply its mind in the absence of the specific allegation on the basis of which the permit had been cancelled. I, therefore, hold that both these resolutions namely the resolution No. 10 passed by RTA Jaipur and the order of the TAT dated the 23rd January, 1964, cancelling the petitioner's permit in regard to his vehicle RJL 6127 suffer from the aforesaid infirmities and are hereby quashed. The petitioner will get his costs of this petition.


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