Chattisgarh High Court
Dinesh Kumar Gupta vs State Of Chhattisgarh 6 Wps/4027/2018 ... on 18 June, 2018
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
W.P.(C)No.1418/2018
Page 1 of 6
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (C) No.1418 of 2018
Order reserved on: 18-5-2018
Order delivered on: 18-6-2018
Dinesh Kumar Gupta, S/o Bachcha Lal Gupta, aged about 42
years, R/o Hasiya Road, Ambikapur, District Surguja (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, through Secretary, Department of Transport,
Mantralaya, Mahanadi Bhawan, New Raipur, District Raipur (C.G.)
2. Regional Transport Authority, Ambikapur, District Ambikapur (C.G.)
---- Respondents
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For Petitioner: Mr. Santosh Gupta, Advocate. For Respondents / State: Mr. Ashish Surana, Panel Lawyer.
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Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order
1. Taking exception to the order dated 2-11-2017 passed by the Regional Transport Authority - respondent No.2 herein by which the petitioner's application for grant of regular stage carriage permit on route Ambikapur to Kansabel has been rejected, this writ petition has been filed on the ground that the order passed by respondent No.2 is in violation of Section 80(2) of the Motor Vehicles Act, 1988 (for short, 'the MV Act').
2. Mr. Santosh Gupta, learned counsel appearing for the petitioner, would submit that without complying Section 80(2) of the MV Act, the petitioner's application has been rejected which is in teeth of the decision rendered by this Court in W.P.(Art. 227)No.801/2015 W.P.(C)No.1418/2018 Page 2 of 6 (Abdul Shafiq v. Regional Transport Authority, Raipur), decided on 26-7-2016.
3. Whereas, Mr. Ashish Surana, learned Panel Lawyer appearing on behalf of the State/respondents, would support the impugned order and would submit on the basis of record available that on 7-10- 2017, the petitioner and objectors were heard and the case was reserved for orders and thereafter, the petitioner's application was rejected and reasons have been recorded in writing for refusal of the permit and thus, the provisions of Section 80(2) of the MV Act have been followed religiously. He would rely upon the decision of this Court in the matter of Surendra Pal Singh v. State of Chhattisgarh and another 1, the decision of the Punjab and Haryana High Court in the matter of Jagtar Singh v. The State Transport Appellate Tribunal and others 2 and the decision of the Kerala High Court in the matter of N. Vineetha v. The Regional Transport Authority and another 3.
4. I have heard learned counsel for the parties and considered their rival submissions made herein-above.
5. Sub-section (2) of Section 80 of the MV Act states as under: -
"80. Procedure in applying for and granting permits.
--(1) xxx xxx xxx (2) A Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-
section (1) of section 66 shall not ordinarily refuse to grant an application for permit of any kind made at any 1 W.P.(C)No.943/2014, decided on 1-7-2014 2 AIR 2009 P&H 114 (FB) 3 AIR 2004 Ker 24 W.P.(C)No.1418/2018 Page 3 of 6 time under this Act:
Provided that the Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66 may summarily refuse the application if the grant of any permit in accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-section (3) of section 71 or of contract carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-section (3) of section 74:
Provided further that where a Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66 refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter."
6. On perusal of the second proviso to sub-section (2) of Section 80 of the MV Act, it is quite vivid that where the prescribed authority refuses the application for grant of permit, it shall give to the applicant in writing the reasons for refusal and an opportunity of being heard. However, in Abdul Shafiq (supra), a coordinate Bench of this Court held as under: -
"6. Bare perusal of the provision would manifest that an application for grant of permit shall not ordinarily be refused and it is for this reason, the proviso prescribes that whenever the Regional Transport Authority or State Transport Authority refuses an application for grant of a permit, it shall give to the applicant in writing its reasons for the proposed refusal and afford opportunity of being W.P.(C)No.1418/2018 Page 4 of 6 heard in the matter. The language is plain and unambiguous that the proposed rejection of application has to be informed to the applicant and is required to be afforded opportunity of hearing on such proposed refusal of the application.
7. The provision clearly provides for opportunity of hearing for the specific purpose or object and the stage on which such opportunity is to be afforded is also mentioned. If the stage, on which opportunity of hearing is affected, is ingrained in the statutory provision, the applicant has statutory right of hearing at that stage and non-affording of such opportunity would vitiate the order."
7. Whereas, another coordinate Bench of this Court in Surendra Pal Singh (supra) has laid that opportunity of hearing is necessary by observing as under: -
"Whatever may be the reason, if the law requires that opportunity of hearing is required to be afforded before rejecting application, it is obligatory on the part of the respondent to hear the petitioner and pass an order in accordance with law.
Therefore, on this short issue, the order of the Court below is set aside. The matter is remanded back to the respondent No. 2, who shall afford opportunity of hearing to all the interested parties, and then pass the order, as early as possible preferably within a period of two months from the date of receipt of a copy of this order."
8. Thus, there is a conflict between the principle of law laid down by the two decisions of this Court in Abdul Shafiq (supra) and Surendra Pal Singh (supra), whereas, a Full Bench of the Punjab and Haryana High Court in Jagtar Singh (supra) held as under: - W.P.(C)No.1418/2018 Page 5 of 6
"3. A combined reading of Sections 80, 89 of the Motor Vehicles Act and Rule 85 of the Rules makes it manifest that the State or Regional Transport Authority passing an order appealable under Section 89 is by reason of Second proviso to Section 80(2) obliged to provide to the applicant whose application has been declined, the reasons in writing for such refusal. This implies that the State or Regional Transport Authority is required to communicate any order made by it that refuses an application for grant of a permit of any kind, which order in turn is required to contain reasons for such refusal. In an ideal situation, no sooner an order is passed by the State or Regional Transport Authority against an application refusing to grant a permit of any kind under the Act, the same must be communicated to the party seeking such permit, who can then resort to the remedy of an appeal under Section 89 of the Act open to it within the time stipulated under Rule 85 of the Rules. It is the failure of the State or Regional Transport Authorities to comply with that requirement that has given rise to considerable litigation in this Court, in which the aggrieved parties have often claimed that they did not have any knowledge of the passing of the order as the order in question was never communicated to them. The practice of not communicating the order to the parties concerted was noticed by a Division Bench of this Court in Banda Bahadur Highways Private Limited, Ludhiana v. State Transport Appellate Tribunal, Punjab, Civil Writ Petition No. 9982 of 1996 disposed of on 16.07.1997 and the need for communication of the order emphasized in the following passage:-
"Before parting with the same, it deserves to be mentioned as it had come to our notice that respondent No. 2 is adopting a practice not to inform the persons whose applications have been refused. As noted above, it some times creates a W.P.(C)No.1418/2018 Page 6 of 6 situation which leads to unnecessary litigation. In accordance with the acts and the rules, respondent No. 2 should inform the party about the order so passed."
9. In my view there is a conflict of opinion between the two decisions of this Court in Abdul Shafiq (supra) and Surendra Pal Singh (supra) with regard to the procedure to be followed by the competent authority while considering an application for permit. It requires reasons for refusal of application after consideration of the facts of the case after hearing the parties. Therefore, in my opinion, in order to have substantive pronouncement on the point, the matter requires consideration by a larger Bench. Thus, in exercise of power conferred under Rule 33 of the High Court of Chhattisgarh Rules, 2007, the matter is referred to a Division Bench on the following stated question: -
"What is the correct procedure to be followed by the competent authority while considering the application for permit under Section 80(2) of the Motor Vehicles Act, 1988? AND / OR Whether, the authority is required to supply proposed reasons for rejection of application before affording opportunity of hearing to the applicant concerned?"
10. Let the matter be placed before Hon'ble the Chief Justice for constituting the appropriate larger Bench for considering the question.
Sd/-
(Sanjay K. Agrawal) Judge Soma