L.N. Chhangani, J.
1. This is a petition by Lal Mohammed under Article 226 of the Constitution of India praying for a writ in the nature of certiorari, prohibition, mandamus or any other writ, order or direction, to quash and set aside the order of the Regional Transport Authority dated 1-7-1968 and the order in appeal dated 22-2-1969.
2. The facts relevant for the disposal of this writ application may be briefly stated as follows:--
The petitioner is the holder of a non-temporary stage carriage permit on Jodhpur-Barmer route. The permit issued to him covers bus No. RJQ 1291.
A complaint was lodged against the petitioner for carrying passengers in excess of the seating capacity of the bus. The petitioner was served with a notice under Section 60 of the Motor Vehicles Act (hereinafter referred to as the Act) to show cause why the permit should not be cancelled. The petitioner appeared before the Regional Transport Authority at its meeting held on 1-7-1968 and offered to compound the breach of condition and to pay an amount of Rupees 300/-. The Regional Transport Authority agreed to compound the breach of the condition and to accept Rs. 300/- as compounding fee. It was, however, further resolved by the Regional Transport Authority that the petitioner should deposit the amount of Rs. 300/- within 15 days, failing which his permit shall stand cancelled.
The petitioner did not deposit the amount of Rs. 300/- within 15 days. He, however, deposited the amount of Rs. 300/- on 28th September, 1968. After the deposit of Rupees 300/-, the petitioner received a notice from the Secretary, Regional Transport Authority, on 28-12-1968 intimating that the permit of the petitioner had been cancelled in pursuance of the aforesaid resolution of the Regional Transport Authority. The petitioner thereafter filed an appeal before the Transport Appellate Tribunal challenging the resolution of the Regional Transport Authority on various grounds. The Transport Appellate Tribunal dismissed the petitioner's appeal as tune-barred. After the dismissal of the appeal, the petitioner filed the present writ application challenging the resolution of the Regional Transport Authority as also the order of the Transport Appellate Tribunal dismissing the appeal as time-barred, on various grounds which shall be referred to hereinafter. The petitioner also submitted an application for staying the operation of the resolution of the Regional Transport Authority. This application came up before a learned Single Judge of this Court on 28-3-69. The learned Judge in the absence of any opposition by the Regional Transport Authority, stayed the operation of the resolution of the Regional Transport Authority cancelling the petitioner's permit and allowed the petitioner to ply his bus.
3. The Regional Transport Authority and the Transport Appellate Tribunal have not cared to appear to oppose the writ application.
4. In support of the petition, the learned counsel for the petitioner advanced the following contentions:--
1. That the permit granted to the petitioner did not specify the maximum number of persons to be carried and there was no condition prohibiting the carriage of more passengers than the number specified.
2. That the Regional Transport Authority having agreed to accept an amount of Rupees 300/- from the petitioner in lieu of the cancellation or suspension of the permit under Sub-section (3) of Section 60 of the Act, it could not have been simultaneously passed an order under Sub-section (1) cancelling the permit even in the form of a conditional order stating that if the fine is not paid within 15 days, the permit shall stand cancelled.
3. That under Sub-section (2) of Section 60 of the Act, the Transport Authority cancelling or suspending a permit is required to give to the holder of the permit in writing its reasons for taking action against him. Rule 108 of the Rajasthan Motor Vehicles Rules, 1951 prescribes the period of limitation as 30 days from the date of the receipt of the order sought to be appealed against Having regard to these provisions, it is contended that the petitioner's appeal was within limitation and the Transport Appellate Tribunal was not justified in rejecting the appeal as time barred.
4. That the petitioner had no knowledge that he was required to deposit the amount within 15 days and that the Regional Transport Authority had passed a mandatory order to the effect that in case the composition fee is not paid within 15 days, the permit shall stand cancelled. In support of this contention, he emphasised the fact that he voluntarily paid Rs. 300/- on 28th of September, 1968 before the receipt of the notice of the Secretary, Regional Transport Authority, intimating to him that his permit had been cancelled.
5. The first contention requires an investigation of facts. The petitioner did not raise any such controversy before the Regional Transport Authority. On the other hand, accepting the breach of law, he agreed to pay an amount of Rs. 300/- as compounding fee. I do not feel inclined to permit the petitioner to make a new ground in the writ application when the point cannot be properly and effectively decided without investigation of facts. The contention is, therefore, rejected.
6. The second contention raises the question of interpretation of Sub-section (3) of Section 60 of the Act. Sub-section (3) was not enacted with the original Act. The result was that before the Amending Act of 1956 the Regional Transport Authority was constrained to cancel or suspend the permit for even a minor breach of the relevant laws. In the light of the experience of the working of the Act, the legislators thought it proper; to dispense with the punishment of cancellation or suspension of permit in case of trivial breaches of the relevant laws and, therefore, added Sub-section (3) enabling the Transport Authority to impose, instead of severe punishment like suspension or cancellation of the permit, a lesser punishment by recovery of composition fee and to enable, the Transport Authority to compound minor breaches of law. The Sub-section contemplates the following steps before an order under this section can be passed--
1. Firstly, there should be some breach of law for which a permit is liable to be cancelled or suspended.
2. The second step is the formation of opinion of the Transport Authority that having regard to the circumstances of the case it will not be necessary and expedient to suspend or cancel the permit and the determination of amount which the permit holder should be called upon to pay instead of cancellation or suspension of permit;
3. The offer of the permit holder to pay the amount sought to be recovered from him instead of cancellation or suspension of permit and the agreement by him to pay the amount,
7. After the completion of the three steps and in case the permit holder agrees to pay the amount then Sub-section (3) contemplates an order in the following terms:--
'Notwithstanding anything contained in Sub-section (1), the transport authority may, instead of the cancelling or suspending the permit, as the case may be, recover from the holder of the permit the sum of money agreed upon.'
From the above analysis of the Sub-section, it is clear that the Sub-section contemplates an order alternating with an order under Subsection (1) and tbat it does not contemplate simultaneous order, both under this Sub-section and under Sub-section (1) by giving the form of a conditional order. I am supported in this view by a judgment of the Andhra Pradesh in M. Ramakrishna Mudaliur v. Regional Transport Authority, Chitloor, 1967-2 Andh WR 353. Exercising powers under Section 68 of the Act, the Andhra Pradesh State framed Rule 244 reading as follows:--
1. 'If a Transport Authority considers that instead of suspending or cancelling a permit under Clauses (a), (b) or (c) of Sub-section (1) of Section 60 the permit-holder may be given the option to pay a compounding fee under Section 60 (3) it shall issue a notice in Form CN to the permit-holder by Registered Post Acknowledgment Due or by delivering it to him in person.
2. The permit-holder shall be allowed ten days' time from the date of receipt of the Notice to pay the compounding fee. The Transport Authority may however, grant extension of time in exceptional cases.'
Form CN was prescribed, the relevant portion of which reads as follows:--
'The permit-holder is hereby given the Option under Section 60 (3) of the Act paying a compounding fee of Rs. ..... in (words) ..... within ten days of the date of receipt of this notice into any Government Treasury. If payment is not made and the treasury receipt produced within the time stipulated action will be taken to suspend or cancel the permit.'
Section 60 Sub-section (3) of the Act and the Rule 244 along with the form CN came up for consideration in that case. A Bench of the Andhra Pradesh High Court referred to the decision of Gopal Rao Ekbote, J., in Writ Petn. No. 95 of 1965 (AP), Ch. Seshagiri Rao v. Transport Authority, decided on 25th July, 1966 and observed:--
'..... the learned Judge on an exhaustive consideration of the entire question held that Section 60 of the Act does not contemplate the passing of two orders one under Sub-section (3) and the another under Sub-section (1) for the same offence and that Sub-section (3) thereof does not contemplate any order of an interlocutory nature and that it contemplates the passing of an independent order. The learned Judge further held that the condition in Form CN goes beyond the rule-making power and that the same should be struck down as being ultra vires. We are in respectful agreement with the conclusions of the learned Judge in the said ruling.'
In this view of the law, I hold that the Regional Transport Authority having agreed to accept the amount of Rs. 300/- from the petitioner, could not have simultaneously passed an order cancelling the permit by giving it a conditional form and the part of the resolution cancelling the permit on non-payment of fine is not sustainable being not warranted by law.
8. I need not pronounce any final opinion on the third contention of the petitioner by which he challenges the order of the Transport Appellate Tribunal holding the petitioner's appeal as time barred. The petitioner having filed an appeal and having secured no relief and the part of the resolution challenged by the petitioner being unsustainable, I feel justified in setting it aside in the exercise of extraordinary jurisdiction under Article 226 of the Constitution, having regard to the facts and the circumstances of the case.
9. It is also unnecessary to decide the fourth contention.
10. The writ application is allowed and the order of the Regional Transport Authority dated 1-7-1968 cancelling the permit and that of the Transport Appellate Tribunal dated 22-2-1969 dismissing the petitioner's appeal are set aside. There will be no order as to costs.