Bhagwan Sharma Vs. the Prescribed Authority (Transport Commissioner, Gwalior), Gwalior and anr. - Court Judgment

Raina, J.

1. This is a petition under Arts. 226 & 227 of the Constitution.

2-3. The petitioner is a bus operator. His bus No. MPH 7091 was duly registered and he had paid road tax upto 31-12-1971 as required by the M.P. Motor Vehicles Taxation Act, 1947 vide Annexure A. On 16-9-1971, the petitioner was served with a notice by the Registering Authority (Regional Transport Officer, Gwalior) --non-petitioner No. 2, calling upon him to show cause why action under Section 33 of Motor Vehicles Act, 1939 (hereinafter referred to as the Act) should not be taken against him for the following offences:--

(1) On 24-1-1971, the bus was found over-loaded by 11 passengers;

(2) On 26-5-1971, the bus was found carrying 6 passengers without tickets;

(3) On 9-8-1971, the bus was found plying on nationalised route without permit on hire vide Annexure B.

The petitioner submitted his reply to the show cause notice on 25-9-1971 vide Annexure C. Thereafter, non-petitioner No. 2 issued a letter dated 7-10-1971 calling upon the petitioner to attend the office on 12-10-1971 in connection with the case vide Annexure D. According to the petitioner, this notice was not delivered to him till 12-10-1971. But in spite of this, the Registering Authority proceeded to suspend the registration certificate of the petitioner for four months vide Annexure F. Aggrieved by this order, the petitioner preferred an appeal before the prescribed Authority (non-petitioner No. 1) under Section 35 of the Act vide Annexure G. As there was delay in the disposal of the appeal, and no stay was granted during the pendency of the appeal, the petitioner filed a petition before this Court, which was dismissed by this Court with the observations:--

'It must be presumed that the Prescribed Authority is alive of its responsibility in the matter and would act promptly.'

Thereafter, the appeal was disposed of and was dismissed on merits vide order dated 8-11-1971 (Annexure J). The contention of the petitioner is that the suspension of the registration certificate Was not according to law inasmuch as he was not given due opportunity of being heard in the matter and that the orders of the non-petitioners relating thereto are liable to be quashed.

4. The main contention of the learned counsel for the petitioner is that he was not given due opportunity of being heard in the matter and that there was a violation of the principles of natural justice. There can be no doubt that the functions of the Registering Authority as well as of the Appellate Authority are quasi-judicial in nature and as such they are required to have a judicial approach and follow, the rules of natural justice in discharging that function. The essential element of judicial approach and the most important rule of natural justice is that due opportunity should be given to the party who is affected by the order to make a representation and to be heard before the order is made.

5. In Bhagatpura M.T. Co-operative Society v. K.S. Jhala AIR 1965 Raj 149 it was held that an order under Section 33 of the Act is quasi-judicial in nature and is liable to be quashed, if it is passed without hearing the party concerned. A similar view was expressed in Ramaswamy v. R. T. Officer, AIR 1965 Mad 403 and it was emphasised in that case that the opportunity of making a representation must be not merely formal but effective. The principle enunciated in these cases is well settled and it is needless to refer to other authorities in this connection.

6. The point for consideration, therefore, is whether the impugned order of suspension of the registration certificate was passed without giving due opportunity to the petitioner of making a representation and of being heard in the matter. Shri P.L. Dube, learned Government Advocate who appeared for the non-petitioners urged that the question whether the petitioner was given due opportunity of being heard or not, can be properly decided only after looking into the record of the case, and since the petitioner is in substance praying for a writ of certiorari, he ought to have requested the Court for sending for the record of the proceedings. According to him, the petitioner having failed to do so, he cannot claim a decision on this point in his favour. It is no doubt true that in proceedings for a writ of certiorari, the record must be sent for and the petitioner ought to have moved this Court in this behalf. A certiorari is, in fact, a writ directed to the officers of the inferior Courts to submit the records of the case to enable the superior court to enquire into the legality of the impugned order and to quash it, if necessary. Thus, in proceedings for a writ of this nature a decision cannot properly be arrived at without looking into the record. Ordinarily it is for the petitioner to request the Court to send for the record, but we do not consider that it would be proper to dismiss the petition merely on the ground that the petitioner has failed to do so. We would have ourselves sent for the record, but there is no time to do so, because the petitioner is pressing for immediate decision as the period of suspension of the certificate is due to expire within a couple of days. We, therefore, proceed to consider the case of the petitioner on the basis of the material on record.

7. The petitioner was served with a notice to show cause why action under Section 33 of the Act may not be taken against him, specifying therein three distinct offences vide Annexure B. It is no doubt true that the first two offences alleged to have been committed on 24-1-1971 and 26-5-1971 are not relevant and could not be made the foundation of the proposed action under Section 33 of the Act. We need not deal with this matter any further because this was also the view of the appellate authority vide Annexure J, and it was not disputed before us by the learned Government Advocate. Thus, the only charge that the petitioner had to meet was whether he plied the bus on hire on 19-8-1971 on a nationalised route without permit. The contention of the petitioner is that although it is true that the bus was found plying on nationalised route without permit, when checked On 19-8-1971, it was not plying for hire as it was merely carrying the employees of the petitioner. It is however significant that the petitioner did not make this submission in his reply vide Annexure C. He merely denied the allegations in the notice and urged that even if the offence was committed, the petitioner could not in law be put in double leopardy, a contention which on the face of it is not tenable and was not at all pressed before us.

8. It appears from the order of the Prescribed Authority vide Annexure J, that the petitioner was prosecuted for plying the bus on hire on nationalised route without permit on 19-8-1971 and was convicted on his own admission. It, therefore, appears that the contention of the learned counsel for the petitioner that the bus was not plying on hire at the material time is devoid of substance, being an afterthought.

9. Under Clause (b) of Sub-section (1) of Section 33 of the Act, the certificate of registration can be suspended for a period not exceeding four months by the Registering Authority, if it has reason to believe that it has been used for hire or reward without a valid permit. Shri K.S. Srivastava, learned' counsel for the petitioner urged that the certificate cannot be cancelled if the motor. vehicle has been used in the aforesaid manner only once and not repeatedly. We do not, however, find any merit in this contention looking to the plain language of the provision. Thus, the conviction of the petitioner for plying the bus for hire without a valid permit could form a reasonable basis for the suspension of his certificate, and it appears that there has been no injustice in this case.

10. Shri Srivastava was at pains to point out that due procedure was not followed by the authorities concerned and the appellate Authority took into account a judgment, copy of which was not furnished to him. As pointed out above, the record is not before us and it is, therefore, difficult to say what actually transpired before the impugned order was passed. But It is clear that the petitioner was given a show cause notice vide Annexure B and was called upon to appear in the office on 12-10-71 It is significant that though in para 4 of the petition, the petitioner states that he did not receive letter Annexure D upto 12-10-1971, he does not make any positive statement that he could not appear before the Authority and make his submission before the impugned order was passed. The contention of the petitioner that he was denied an opportunity by the Registering Authority to show that the bus was not being plied on hire at the material time and was merely carrying the employees of the petitioner would have been entitled to some consideration, if this fact had been expressly stated in the reply (Annexure C).

But this has not been done. Even assuming that there has been some flaw in the procedure followed by the Registering Authority, the petitioner cannot succeed unless he is able to' show that this has resulted in injustice to him. The remedy under Articles 226 and 227 is discretionary and the -jurisdiction of this Court under the said Articles cannot be invoked merely to rectify an error of law or procedure unless it has resulted in manifest injustice.

11. In Veerappa Pillai v. Raman & Raman, 1952 SCR 583 = (AIR 1952 SC 192) their Lordships made the following observations which are pertinent here:--

'Such writs as are referred to in Article 226 are obviously intended to enable the High Court to Issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice.'

A similar view was expressed by their Lordships in Sangram Singh v. Election Tribunal, Kotah, 1955 (2) SCR 1 = (AIR 1955 SC 425). Their Lordships held at page 8 in the said case that the Courts will not exercise jurisdiction under Article 226 unless substantial injustice has ensued or is likely to ensue. In the instant case, it appears to us that no injustice has been done to the petitioner and that his main grievance is that certain procedural requirements were not fulfilled.

12. We may also observe that the conduct of the petitioner in respect of these proceedings has not been straightforward. The reply given by him to the show cause notice was evasive, inasmuch as he did not state that the bus on the material date was not plying for hire. He also suppressed the fact that he had been convicted in a Criminal Court in respect of the alleged offence on his own admission. Since it appears that the action against the petitioner was founded on his conviction in a Criminal Court, which was based on his own admission, the action of the Registering Authority appears to be fair and proper, and there appears to be no justification for interference in this case.

13. The petition, therefore, fails and is hereby dismissed. We, however, make no order as to costs in the circumstances of this case.