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Bhagatpura Motor Transport Co-operative Society Ltd. Vs. K.S. Jhala and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1523 of 1964
Judge
Reported inAIR1965Raj149
ActsConstitution of India - Article 226; Motor Vehicles Act, 1939 - Sections 33, 33(1), 35(2) and 64; ;Motor Vehicles Rules - Rules 67 and 74
AppellantBhagatpura Motor Transport Co-operative Society Ltd.
RespondentK.S. Jhala and anr.
Appellant Advocate D.P. Gupta, Adv.
Respondent Advocate M.M. Vyas, Govt. Adv.
DispositionPetition accepted
Cases ReferredIn R. v. Manchester Legal Aid Committee
Excerpt:
.....ministerial capacity, it is clearly under a duty to act judicially. now the opportunity of making the representation can, by no means, become effective unless there is the opportunity to make good that representation and in a fit case where evidence can alone make good that representation the opportunity to adduce evidence will have to be afforded. we are thus satisfied that the act of suspension of the registration certificate has to be performed quasi judicially. 1, is vitiated for two reasons namely, (1) that the petitioner was not afforded an opportunity to make good his representation, and (2) that the respondent no. section 35 of the act clearly provides that any owner of a motor vehicle aggrieved by an order under section s3 of the act may, within 30 days of the intimation of the..........of personal hearing, it is submitted that the proceedings were administrative in nature and not quasi judicial. further it is urged that the respondent no. 1, himself being on the spot, no further enquiry was necessary. the petitioner contended at the time of hearing that the impugned order was bad on account of the following reasons :--(1) that the respondent no. 1, had violated the principles of natural justice inasmuch as he did not afford opportunity to the petitioner to prove its case by leading evidence when it was demanded of him; (2) that section 33 (1) (b) of the act was not attracted as the petitioner had a permit for plying the vehicle for hire or reward. that provision is applicable, according to the petitioner, only when a vehicle had never been permitted to ply for hire.....
Judgment:

Kan Singh, J.

1. The petitioner, who is a Cooperative Society registered under the Rajasthan Cooperative Societies Act and plies a stage carriage bus-No. R J R 2814, on Hanumangarh Dabwali via Sangana route in Ganganagar district, has filed this writ petition under Article 226 of the Constitution challenging the order dated 27-8-64 (Ex-4 on the record) passed by respondent No. 1, under Section 33(b) of the Motor Vehicles Act, hereinafter to be referred as 'the Act', whereby the registration certificate of the vehicle R J R 2814 was suspended for a period of four months.

2. The petitioner Messrs. Bhagatpura Motor Transport Co-operative Society Limited, Bhagatpura, was granted a non-temporary permit valid for a period of three years on 18-4-63, and normally the permit would be valid upto 17-4-1966. On 27-7-64, respondent No. 1, (Regional Transport Officer) served a notice on the petitioner calling upon him to show cause within a week why its registration certificate be not suspended as the stage carriage bus was found plying on another route Sangaria--45 R. D. on 24-7-1964 carrying passengers. According to the petitioner he gave a reply to the notice denying the correctness of the allegations and asked for an opportunity to explain the exact position personally and for producing the necessary evidence. According to the petitioner, this opportunity was not afforded by the respondent who was not favourably disposed towards it and nurtured personal illwill on account of it having made complaints against the Regional Transport Officer prior to the matter covered by the notice had arisen. The petitioner has, therefore, approached this Court making grievance of the order of the Regional Transport Officer on the ground that the same was passed without proper hearing and in violation of the principles of natural justice.

3. The writ petition has been opposed by the respondents. It is averred on their behalf that the bus in question was found plying on Sangaria--45 R. D. route on 24-7-1964, and was caught red handed white it was so plying. Certain tickets issued by the petitioner were also taken in custody by the Sub-Inspector, Transport, Ganganagar and respondent No. 1 was himself present. A proper seizure memo was prepared at the spot in the presence of motbirs. It is denied that respondent No. 1 bore any ill will against the petitioner. As regards the contention for not giving of personal hearing, it is submitted that the proceedings were administrative in nature and not quasi judicial. Further it is urged that the respondent No. 1, himself being on the spot, no further enquiry was necessary. The petitioner contended at the time of hearing that the impugned order was bad on account of the following reasons :--

(1) That the respondent No. 1, had violated the principles of natural justice inasmuch as he did not afford opportunity to the petitioner to prove its case by leading evidence when it was demanded of him;

(2) That Section 33 (1) (b) of the Act was not attracted as the petitioner had a permit for plying the vehicle for hire or reward. That provision is applicable, according to the petitioner, only when a vehicle had never been permitted to ply for hire or reward. In this connection it is pointed out that in the case of transport vehicles plying for hire or reward, it is only the Regional Transport Authority who can take action under Section 60 of the Act by way of suspending or cancelling a permit;

(3) That the action of the respondent No. 1, was mala fide as he bore ill will against the petitioner.

4. There was considerable argument on the second, point about the proper interpretation of Section 33 (1) (b) of the Act, but in view of the conclusion that we have reached on point No. 1, we do not think it will be necessary to deal with the second question. For the purposes of the present case we assume, without deciding, that that section covers even a transport vehicle which has a permit for one route for plying for hire or reward and has been found plying on a route not covered by the permit as in the present case. On this assumption we proceed to deal with the first question immediately. The third question is regarding the alleged mala fides of respondent No. 1 and is one of fact. We may observe that a quasi judicial act is also an administrative act, though a duty is cast on the executive authority acting quasi judicially to conform to norms of judicial procedure in performing the act in exercise of executive powers. We may quote the following observations from Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 S C 308 :

'The concept of a quasi-judicial act implies that the act is not wholly judicial, it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power.'

The more difficult question is as to when can it be said that a particular executive act is required to be performed according to the norms of judicial procedure. There have been a series of cases, both in England and in India, which bring out the essential difference between an executive act simpliciter and an executive act required to be performed quasi judicially. In Province of Bombay v. Khushaldas S. Advani, A I R 1950 S C 222, their Lordships of the Supreme Court pointed out that there are three requisites in order to determine that the act of a body may be said to be a quasi judicial act, namely that the body of persons (i) must have legal authority, (ii) to determine questions affecting the rights of the parties, and (iii) must have the duty to act judicially. It was also pointed out that the real and determining test for ascertaining whether an act authorised by a statute is a quasi judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by third condition, because the first two attributes may be common both in pure administrative act and an administrative act which is of quasi judicial nature.

It has been held in a number of cases of the Supreme Court after Advani's case, A. I. R. 1950 S. C. 222, such as Radheshyam Khare v. State of Madhya Pradesh, AIR 1959 SC 107, Saghir Ahmed v. State of U. P., AIR 1954 S C 728, New Prakash Transport Co., Ltd, v. New Suwarna Transport Co., Ltd., (S) AIR 1957 S C 232 and Nagendra Nath Bora v. Commissioner of Hills Division, AIR 1958 S C 398, that the question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in judicial decisions. The following two tests were laid down in AIR 1959 S C 107.

'The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in judicial decisions.'

'According to the principles so laid down by judicial decisions, where an authority which is not a court is empowered by the statute to decide a dispute between parties and there is nothing in the statute to the contrary, the authority is under a duty to act judicially and the decision of the authority is a quasi-judicial act; and when a statutory authority has power to do an act which will affect the rights of a subject then although there are no two parties and the contest is between the authority and the subject the final determination of the authority will be a quasi judicial act provided the statute requires the authority to act judicially.'

5. The test, according to the latest English decisions is much the same. In R. v. Manchester Legal Aid Committee, it was observed as follows :--

'The true view, as it seems to us, is that the duty to act judicially may arise in widely different circumstances which it would be impossible, and indeed, inadvisable, to attempt to define exhaustively. Where the decision is that of a court then, unless, as in the case, for instance, of Justices granting excise licences, it is acting in a purely ministerial capacity, it is clearly under a duty to act judicially. When, on the other hand, the decision is that of an administrative body and is actuated in whole or in part by questions of policy, the duty to act judicially may arise in the course of arriving at that decision.'

6. Let us now turn to the language of Section 33 of the Act itself and apply the test as laid down in the passages extracted above. Now, the moment a registration certificate is obtained by the owner of a motor vehicle, he acquires the right to ply the motor vehicle on the road or at any public place. The suspension or cancellation of the registration certificate results in denial of that right. Before Teaching the conclusion that an owner has contravened the provisions of Section 33 (1) (b) of the Act, authority is required to serve a notice on the owner of the vehicle and it is only 'after giving the owner an opportunity of making any representation he may wish to make' that the authority is entitled to suspend the registration certificate. Now the opportunity of making the representation can, by no means, become effective unless there is the opportunity to make good that representation and in a fit case where evidence can alone make good that representation the opportunity to adduce evidence will have to be afforded. The decision that the authority has to reach is not contemplated to be a capricious or an arbitrary one, but should only to be reached in a reasonable manner after the required opportunity of making the representation to the owner of the vehicle is given. There is an appeal provided under Section 35 of the Act, against an order that may be passed under Section 33 of the Act. Section 35 runs as follows :

'Section 35. Appeals (1) Any owner of a motor vehicle aggrieved by an order of refusal under Section 27 to register a motor vehicle or under Sub-section (1) of Section 38 to issue a certificate of fitness or by an order of suspension or cancellation made under Section 33 or 34 or by an order of cancellation under Sub-section (3) of Section 38 may, within thirty days of the date on which he has received notice of such order, appeal against the order to the prescribed authority.

(2) The appellate authority shall give notice of the appeal to the original authority and alter giving opportunity to the original authority and the appellant to be heard either personally or by pleader in the appeal pass such orders as it thinks fit.'

Sub-section (2) of Section 35 is more or less assimilated to the procedural provisions of hearing appeals under Section 64 of the Act. This affords a further clue to get at the true character of the proceedings before the registering authority or the prescribed authority. In view of the grave consequences that will result in denial of a vested right to an owner of motor vehicle, the act will have to be construed to be one quasi judicial in character. As per observations from the English case extracted above, it cannot be said that the administrative body is actuated in whole or in part by questions of policy. It is a matter of inflicting of punishment for a wrong act on the part of the owner of the motor vehicle and is not merely one of policy. We are thus satisfied that the act of suspension of the registration certificate has to be performed quasi judicially. Let us now see whether this was so performed.

7. The vehicle was detected plying on hire on Sangaria 45 R. D. route on 24-7-64 at 5.30 a. m. without a valid permit for the route. Notice to show cause was delivered to the petitioner on 27-7-64. Thereafter, the petitioner asked for an opportunity to explain the exact situation in person to the Regional Transport Officer and show the necessary record of tickets and registers to satisfy that the complaint was not genuine. Respondent No. 1 did not accede to the request and by his order dated 27-8-64, he called upon the petitioner to surrender his registration certificate forthwith, and it was ordered to be suspended for a period of four months with immediate effect. We are surprised that even though the respondent No. 1 did not choose to call the petitioner personally as desired by the latter he had taken more than a month in passing his order. Disposal of the matter would not have been delayed much, had the opportunity asked for by the petitioner been afforded in the meantime. Apart from this it appears that the respondent No. 1 was himself present when the vehicle was detected on 24-7-64.

It is a fundamental principle of natural justice that person who is himself a witness in the case and the facts to be determined are in his personal knowledge should not take upon himself the duty of a final arbiter of the matter in controversy. Justice should not only be done, but manifestly and undoubtedly be seen to be done. The following observations from AIR 1959 S C 308 may usefully be referred to :

'It is a fundamental principle of natural justice that in the case of quasi judicial proceedings, the authority empowered to decide the dispute between opposing parties must be one without bias towards one side or other in the dispute. It is also a matter of fundamental importance that a person interested in one party or the other should not, even formally, take part in the proceedings though in fact he does not influence the mind of the person, who finally decides the case. This is on the principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done.'

We are, therefore, of the opinion that the order passed by the respondent No. 1, is vitiated for two reasons namely, (1) that the petitioner was not afforded an opportunity to make good his representation, and (2) that the respondent No. 1, who had personal knowledge of the material facts had himself decided the matter.

8. Coming now to the last contention namely, that the respondent No. 1, was actuated with malice. It is sufficient to observe that this allegation is stoutly denied by the respondent and this being a question of fact we are not persuaded to go into it. More so, on account of our conclusion on the first point.

9. Before parting with the judgment we may deal with one more matter broached by the learned Government Advocate. Section 35 of the Act clearly provides that any owner of a motor vehicle aggrieved by an order under Section S3 of the Act may, within 30 days of the intimation of the decision, appeal against the order to the prescribed authority. Prescribed authority, according to Section 2 of the Act, means an authority prescribed by the Rules. Rule 74 (a) of the Rules framed under the Act prescribes the authority for hearing appeals against the orders of the registering authority to be the Regional Transport Authority. The registering authority is undoubtedly the District Magistrate. Thus, Rule 74 has laid down the authority for hearing appeals against the orders of the District Magistrate as registering authority, but Rule 74 omits to prescribe the appellate authority when action has been taken by any officer empowered under Rule 67 of the Rules. This lacuna in the Rules has remained, because it was not brought up to date after Section 33 of the Act was amended in 1956 with the insertion of Sub-section (1) (b) therein. The learned Government Advocate argued that it is a case of casus omissus. We are not inclined to go into this matter any further, than to invite the attention of the Government to this lacuna which needs to be rectified by a proper amendment of Rule 74 of the Rules under the Motor Vehicles Act,

10. The result is that, in view of our conclusions we hereby accept the writ petition and quash the order of the Assistant Regional Transport Officer, Bikaner Region, Bikaner, dated 27-8-64 (Ex. 4 on the record). As good part of four months period covered by Ex-4, has already gone by, we direct that no further action shall be taken by the respondents against the petitioner in this behalf. In the circumstances of the case we order parties to bear their own costs.


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