Patna High Court
Bijay Kumar vs The State Of Bihar And Ors. on 6 March, 1991
Equivalent citations: II(1992)ACC57, 1992(1)BLJR252
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT R.N. Sahay, J.
1. In this writ application under Articles 226 and 227 of the Constitution of India the petitioner has impugned the legality of the order passed by the State Transport Commissioner, Bihar, Patna (respondent No. 2) dated 3rd August, 1990 (Anexure-4) nullifying the letter of authority granted to the petitioner by the Secretary, South Chotanagpur Regional Transport Authority, respondent No. 3, for establishing a testing station as envisaged under Sub-section (2) of Section 56 of the Motor Vehicles Act, 1988 (to be referred to as "The Act")
2. The short question that arises for consideration is as to whether the order as contained Annexure 4 has been passed on misinterpretation of the relevant provisions relating to the grant of permit for establishing a Testing Station.
3. The petitioner holds degree in Production Engineering. On 21-3-1990 the petitioner filed an application in the office of the District Transport Officer, Ranchi in Form 40 as provided under the Central Motor Vehicles Rules, 1989 for grant of letter of authority to establish an authorized Testing Section for the purpose of issue of renewal of a certificate of fitness to transport vehicles.
4. On receipt of the said application, the District Transport Officer, Ranchi directed Shri Ashok Kumar, Inspector of Factories, Doranda, Ranchi, for verification of the equipments installed by the petitioner in the proposed authorized testing station. After inspecting the premises and having verified the installed equipments, he found the same in good running condition and also in conformity with the Sub-rule (2)(e) of Rule 63 of the Central Rules and submitted his report to the District Transport Officer, Ranchi, vide his letter No. 627 dated 21-6-1990.
5. After completing all necessary enquiries, the Distract Transport Officer, Ranchi sent all the parers and documents to the respondent No. 3 for doing the needful. The petitioner also deposited Rs. 5,000 as fee prescribed under Rule 81 of the Central Rules and also deposited a sum Rs. 10,000 as security deposit.
6. Respondent No. 3 having satisfied himself that the requirements of Sub-Rules (3) and (4) of Rule 63 of the Central Rules were satisfied granted a letter of authority in prescribed From 39 (Annexure 2). The permit was Valid for five years.
7. The petitioner asserts on the basis of Annexure-2 testing work of the transport vehicles commenced and he also employed skilled person for this purpose.
8. The petitioner was surprised to receive a letter dated 13-11-1990 Annexure 3 whereby respondent No. 3 in pursuance of the direction of respondent No. 2 purported to cancel the letter of authority (Annexure 2). The petitioner was further directed to surrender the letter of authority.
9. Mr. S.N. Lal learned Counsel for the petitioner contends that the order as contained in Annexure-4 on the basis of which the letter of authority was cancelled was absolutely without jurisdiction because the ground for cancellation of Annexure-2 was founded on totally erroneous interpretation of the relevant provision relating to grant of permit for Testing Station. Respondent No. 2 directed the respondent No. 3 to cancel the letter of authority because the State Government had not notified the registering authority for the purpose of granting licence for the purpose of Testing Station.
10. At this stage it would be necessary to refer to the relevant provisions relating to grant of licence for establishing Testing Station.
11. Section 56 of the Motor Vehicles Act, 1988 provides as follows:
Certificate of fitness of transport vehicles:(1) Subject to the provisions of Sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purpose of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government issued by the prescribed authority or by an authorized Testing Station mentioned in sub-section (2) to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made there under:
Provided that where the prescribed authority or the authorized Testing Station refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.
The authorized testing station referred to in Sub-section (1) means a vehicle service station or public or private garage which the State Government, having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages.
The remaining provisions of this section are not relevant for the purpose of the case.
12. Under Section 51(1) of the Act, it is mandatory to obtain a certificate of fitness for a valid registration of a motor vehicle, The certificate of fitness can be issued by the prescribed authority or any, authorized testing station as provided in Sub-section (2) of Section 56, Sub-section (2) of Section 56 of the Act is a new provision. There was no such provision in Motor Vehicles Act, 1939 in respect of authorized Testing Station.
13. Section 65 of the Act empowers the State Government to make rules inter alia for "the appointment, function and jurisdiction of registering and other prescribed authorities" [Section 65(2)]. Admittedly the Statement had framed no rules when the permit was issued to the petitioner by respondent No. 3.
14. The Central Government in the exercise of its powers vested under the various provisions of the Act has framed Central Motor Vehicles Rules, 1989 (hereinafter referred to as the Central Rules).
15. Rule 63 of the Central Rules provides for regulation and control of authorized testing station. The relevant part of the aforementioned rule reads as follows:
No operator of an authorized testing station shall issue or renew a certificate of fitness to a transport vehicle under Section 56 without a letter of authority in Form 39 granted by the registering authority (2) An application for grant of renewal of a letter of authority under Sub-rule (1) shall be made in Form 40 to the registering authority having jurisdiction in the area in which the service station or garage situated and shall be accompanied by:
(a) the appropriate fee as specified in Rule 81;
(b) a security deposit of rupees ten thousand in such manner as may be specified by the State Government.
Explanation.--For the purpose of this Rule and Rules 62 to 72, the registering authority means an officer not below the rank of the Regional Transport Officer of the Motor Vehicles Department established under Section 213 (The remaining rules are not relevant for the purpose of the case and hence omitted).
16. Shri S.N. Lal, the learned Counsel for the petitioner has submitted that it is very clear from the explanation appended to Rule 63(2) of the Central Rules that the, registering authority for the purpose of this rule, shall be an officer not below the rank of Regional Transport Officer of the Motor Vehicles Department established under Section 213 of the 1988 Act. Shri Lal has invited out attention to Bihar Motor Vehicles Rules, 1940 which had been framed by the State Government under Motor Vehicles Act, 1939. Rule 175 of the Bihar Rules prescribed the officers of the Motor Vehicles (Transport Department) and under Sub-Rule (4) thereof, the Regional Transport Officers are one of the prescribed authorities. Under Sub-rule (4) of Rule 176 of the Bihar Rules, the Secretaries of the Regional Transport Authorities are the Regional Transport Officers. According to Shri Lal in the instant case, the permit was issued by the Secretary of the Regional Transport Authority who by virtue of the abovementioned rule, also the Regional Transport Officer.
17. Section 213(i) of the Act provides that the State Government may, for the purpose of carrying into effect the provisions of this Act, establish a Motor Vehicles Department and appoint such persons as it thinks fit. It is admitted that the Motor Vehicles Department has not been constituted under the new Act, Shri Lal, however, contends that by virtue of repeal and saving provision as contained in Section 217 of the New Act" "the Notification, Rule Regulation, Appointment etc. made under the Bihar Motor Vehicle Rules, 1940 so far it is not inconsistent in the provision of this Act, shall be deemed to have been issued, made, granted, done or taken under the corresponding provision of this Act". Shri Lal, therefore, contended that respondent No. 3 was thus fully empowered to exercise the powers of the Regional Transport Officer and to grant permit to the petitioner under Rule 03 of the Central Rules.
18. The sumission of Shri Lal though attractive cannot be accepted, if, we go deep into the matter. Explanation 2, Rule 63 of the Central Rules only says the registering authority for the purpose of Rules 62 to 72 shall be an officer of me Motor Vehicle Department who shall "be an officer not below the rank of Regional Deputy (sic) Officer" Shri Lal reads this as "the Regional Transport Officer (sic) of the Motor Vehicles Department". The Registering Authority may be an officer of the Motor Vehicles Department of the rank of Regional Transport Officer or higher rank. So the contention of Shri Lal appears to be misconceived.
19. As stated earlier, there was no provision like Section 56(2) of the new Act and hence there was no question of their being any authority to discharge the function of the registering authority for the purpose of Rule 63(2) of the Central Rules. In this view of the matter Section 217(2)(a) is plainly not applicable in the present case.
20. I am, therefore, of the view that unless the State Government appointed a person to exercise the power of the Registering Authority under Rule 63(2) of the Central Rules, the power to grant permit for authorized service station cannot and could not have been exercised by the Secretary, Regional Transport Authority respondent No. 3. Shri Lal has also submitted that the impugned order as contained in Annexure-4 to this writ application was passed without armoring the petitioner any opportunity of hearing. Probably contention of Shri Lal is based on Rule 69 of the Central Rules, which provided for opportunity of heating in case of cancellation of letter of authority. The cancellation of the petitioner's permits was not for any of the reasons mentioned in Rule 69 of the Central Kales and hence there was no question of Hearing because the permit was cancelled because respondent No. 3 had no authority to issue letter of authority to the petition.
21. For the reasons aforesaid, I hold that the respondent No. 3 was not competent to grant permit to the petitioner, in as much as he was not empowered to exercise the power of Registering Authority under Rule 63 of the Rules. The cancellation of licence, therefore, by respondent No. 3 on the direction of respondent No. 4 does not suffer with any infirmity.
22. The learned Government Advocate, during the course of hearing submitted that during the pendency of the writ application, respondent No. 3 has been empowered to exercise the power of registering authority for the purpose of grant of letter of authority for testing station. The petitioner has already complied with the formalities required under rules for grant of permit. In the circumstances he may file a fresh application before the competent authority and since his application has already been found to be in order and respondent No. 3 was satisfied that the petitioner deserves grant of letter of authority in view of his qualification and other relevant matters, the same may be considered along with the applications of all other eligible candidates within a reasonable time and preferably within four weeks from the date of submission of his application. It is further observed that the petitioner along with his application need not deposit the requisite fees, which have already been deposited by him.
23. This application is dismissed on the aforementioned observation and direction. There shall be no order as to cost.
S.B. Sinha, J.
24. I entirely agree with the judgment proposed to be passed by my learned brother R.N. Sahay, J. However, I would like to add a few words of my own.
25. It is submitted that the matter relating to grant of licence to authorised testing stations was brought into the Statute Book for the first time by reason of Section 56 of the Motor Vehicles Act, l988.
26. According to Mr. S.N. Lal, in terms of Section 133-A of the Motor Vehicles Act, 1939, a Motor Vehicles Department was established and in terms of Rule 175 of the Bihar Motor Vehicles Rules, the same was adopted by the State of Bihar with minor modifications, and thus ipso facto, the Regional Transport Authority would be deemed to be the proper authority for grant of licence in respect of authorized service stations in view of the fact that Bihar Rules was saved in terms of repeal and saving clause contained in Section 217 of the Motor Vehicles Act, 1988.
27. In terms of Section 217 of the Motor Vehicles Act, 1988, notwithstanding repeal of Motor Vehicles Act, 1.39, any notification or rule etc" issued or any other thing done or any other action taken under the repealed enactment and in force immediately before commencement shall, so far as it is not inconsistent with the provisions of the New Act, be deemed to have been issued, made granted, done or taken under the corresponding provisions of the New Act.
28. From a plain reading of Section 217 of the Motor Vehicles Act, 1988 therefore, it is evident that what is saved is the action taken pursuant to the provisions of 1939 Act and not such actions which were not envisaged thereunder.
29. The petitioner was granted a letter of authority of 9-7-1990, The said grant was made by the secretary of South Chhotanagpur Regional Transport Authority (respondent No. 3). Explanation to Rule 63(2) of the Central Motor Vehicles Rules, 1989 provides that for the purpose of the said Rules another Rules 62 to 72, the Registering Authority means an officer not below the rank of Regional Transport Officer of the Motor Vehicles Department established under Section 213.
30. Explanation appended to Sub-rule (2) to Rule 63 of the Central Motor Vehicles Rules, 1989, therefore, is an interpretation clause for the purpose of Rules 62 to 72 thereof. An interpretation clause is not a substantive enactment. In terms of Sub-rule (1) of Rule 63 aforementioned, an embargo has been placed upon operation of an authorized testing station unless a letter of authority in form of authority in Form 39 is granted by the Registering Authority. The said rule, therefore, expressly and/or by necessary implication provides for appointment of a registering authority. This would further be evident from the fact that in terms of sub-section (2) of Section 56 of the New Act, a Vehicle Service Station or public or private garage may be authorized as an authorized testing station which the State Government, having regard to the experience training and the ability of the operator of such station or garage and the testing equipment and the testing personnel therein may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages. Grant of permit to such authorized testing stations evidently comes within the purview of words 'regulation and control' of such station or garages within the purview of sub-section (2) of Section 56 of the said Act.
31. Rule 63 postulates appointment of a registering authority. But by reason of the explanation appended to Sub-rule (2) of Rule 63. an embargo has merely been placed that ha shall not be an officer below the rank of Regional Transport Officer of the Motor Vehicles Department.
32. The State Government has issued a notification dated 5th September, 1990 which is contained in Anuexure-7 whereby and whereunder all Deputy Transport Commissioner-cum Secretary to the Regional Transport Authorities were appointed as Regional Transport Officers and have also been authorized to perform all the functions relating to regulation and control of authorized testing station in terms of Rules 63 to 72 of the Central Rules.
33. As respondent No, 3 was, thus, not authorized, he lacked inherent jurisdiction to issue the letter of authority dated 9-7-1990 as contained in Annexure-2 to the writ application. The same having, thus, bean issued by a person having no authority was void ab initio.
34. Mr. Lal submitted that in any event, the petitioner was entitled to an opportunity of being heard before the impugned order could be passed.
35. As the letter of authority as contained in Anaexure-2 to the writ application was wholly without jurisdiction, the same was non est in the eye of law.
36. The functions of the State of Bihar as also the authorities delegated with the power to exercise statutory function under the provisions of the Motor Vehicles Act and the Rules framed thereunder being in the nature of delegated authority, in terms of the provisions of the Motor Vehicles Act and the Rules framed thereunder, the statutory functionaries can perform their functions only within the four corners of the Statute.
As the respondent No. 3 was not designated as a competent officer for the purpose of exercising the statutory function in terms of Rules 62 to 72 of the Central Motor Vehicles Rules, his action in granting the certificate, as contained in Annexure-2 to the writ application in favour of the petitioner was void ab initio and a nullity.
37. Assuming that the petitioner was entitled to an opportunity of hearing, this Court has given the said opportunity to the petitioner to place all its viewpoints. In this view of the matter, the decisions cited by Sri Lal in Rai Restaurant and Anr. v. Municipal Corporation of Delhi and Raghunath Thakur v. State of Bihar and Ors. reported in 1989 BLJR 529 have no application in the facts and circumstances of this case.
38. Further, it is well known that issuance of a writ of certiorari is discretionary. In the event the impugned order as contained in Annexure-5 is quashed, the same would bring back to life another illegal order as contained In Annexure-2 to the writ application It is now known that in such a situation, this Court may refuse to interfere or may quash both the orders.
39. Reference in this connection may be made to Shivji Prasad and Ors. v. The State of Bihar and Ors. reported in (1991) 1 BLJR 70 : 1991 (1) PLJR 363: wherein a Division Bench of this Court of which I was a member, held:
It is now well-settled by various decisions of this Court as also the Supreme Court of India the issuance of a writ of certiorari is a discretionary remedy. The writ jurisdiction of the High Court only provides for a discretionary remedy in favour of a party and it should not be exercised for quashing an order which upright give rise to another illegal order and if it is not in public interest.
Reference in this connection may be made to Pramod Kumar and Ors. v. State of Bihar and Ors. reported in 1989 (37) BLJR 147, in which it has been held as follows:
In this connection reference may be made to the case of Godde Venkateswara Rao v. Government of Andhra Pradesh and Ors. AIR 1966 SC 823. Abdul Majid and Ors. v. The State Transport Appellate Authority Bihar and Ors. AIR I960 Pat 333, Debendra Prasad Gupta v. The State of Bihar and Ors. 1977 BBCJ 543 : Hari Prasad Mandal v. Additional Collector 1978 BBCJ 575; Banwari Lal Newatia v. Under Secretary To Government of India and Ors. 1982 BLT 311 and 1988 (1) 5CC p. 40. The aforementioned decisions are authorities for the proposition that writ jurisdiction of a High Court only provides for discretionary remedy and it should not be exercised for quashing an order which might give rise to another illegal order as if substantial justice has been done to the parties.
In this connection reference may be made to a recent decision of mine in the case of Jai Bharat Transport Co. v. Central Coal Field Ltd. reported in 1988 BLT (Re) at page 192 wherein it was held that a High Court would be justified in a given case to refuse to interfere with an illegal order if it is inequitable so to do or if the same would be against the public interest.