Gracy Thomas v. Regional Transport Authority, Pathanamthitta & Secretary, Regional Transport Authority, Pathanamthitta

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 8TH DAY OF JULY 2016/17TH ASHADHA, 1938** **WP(C).No. 16723 of 2016 (M)** **----------------------------** **PETITIONER:** **----------** **GRACY THOMAS, THAYYIL MEPPURUTHU HOUSE, VADASSERIKKARA.P.O., PATHANAMTHITTA.** ## **BY ADV. SRI.P.DEEPAK** **RESPONDENT(S):** **--------------** ## **1.THE REGIONAL TRANSPORT AUTHORITY,** **PATHANAMTHITTA.** ## **2.THE SECRETARY,** **REGIONAL TRANSPORT AUTHORITY, PATHANAMTHITTA.** **BY SENIOR GOVERNMENT PLEADER SMT.K.A.SANJEETHA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 16723 of 2016 (M) ----------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS:**| |---|---| |**-----------------------**|| |**P1 :**|**A TRUE COPY OF THE NOTICE DATED 16.1.2016.**| |**P2 :**|**A TRUE COPY OF THE COMMUNICATION DATED 8.2.2016**| ||**ADDRESSED TO THE 2ND RESPONDENT.**| |**P3 :**|**A TRUE COPY OF THE PROCEEDINGS OF THE 1ST**| ||**RESPONDENT DATED 5.2.2016.**| |**RESPONDENT(S)'**|**EXHIBITS:**| |**-----------------------**|| |**EXT.R2(A) :**|**TRUE COPY OF THE CHARGE MEMO DATED 23.9.2015.**| |**EXT. R2(B):**|**TRUE COPY OF THE NOTICE DATED 5.12.2015.**| |**EXT. R2(C) :**|**TRUE COPY OF THE NEWS PAPER REPORT**| ||**DATED 29.1.2016.**| |**EXT. R2(D) :**|**TRUE COPY OF THE DESPATCH REGISTER.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| **mbr/** ## **SHAJI P. CHALY, J.** ----------------------------------------------- **W.P.(C). No. 16723 of 2016 ----------------------------------------------Dated this the 8[th] day of July, 2016** ## **JUDGMENT** Petitioner has filed this writ petition challenging Ext.P3 order passed by the 1[st] respondent, whereby permit of the petitioner in respect of HGV Tipper Lorry bearing No.KL-03/T 8468 is suspended for a period of six months w.e.f. 5.2.2016. 2. Material facts for the disposal of the writ petition are thus; petitioner is a registered owner of heavy goods vehicle bearing registration No.KL-03/ T 8468. Petitioner was served with Ext.P1 notice dated 16.1.2016 from the office of the 2[nd] respondent informing her that a meeting of the 1[st] respondent is scheduled to be held on 29.01.2016 at 10.30 a.m. at the Collectorate Conference Hall, Pathanamthitta. It was also informed that, in the said meeting the 1[st] respondent would take a decision with regard to the action to be taken in respect of the check report issued to the petitioner's vehicle on 8.8.2015. Petitioner was directed to appear in person or through any person duly authorised by her to furnish her W.P.(C). No.16723 of 2016 2 explanation, evident from Ext.P1. 3. On 29.01.2016, according to the petitioner, she was duly present at the notified place and time. However, it was informed that, the meeting of the 1[st] respondent scheduled to be held on that day stands deferred and that she would be duly informed in due course with respect to the date and venue of the deferred meeting. According to the petitioner, thereafter, there was no intimation from the side of the respondents for more than a week. Therefore, petitioner enquired in writing to the office of the 2[nd] respondent as per Ext.P2 as to the probable date of the next meeting of the 1[st] respondent. It also contended that there was no reply from the 2[nd] respondent to Ext.P2. According to the petitioner, the election to the State Legislature was notified and petitioner thought that meeting of the Transport Authority in the State including the 1[st] respondent would be held only after the scheduled polls. Therefore, petitioner did not make any further enquiries in the matter. 4. On 27.4.2016, almost three months after the date of W.P.(C). No.16723 of 2016 3 originally scheduled meeting of the 1[st] respondent, petitioner was served with a decision of the 1[st] respondent apparently taken in a meeting of the 1[st] respondent held on 5.2.2016, suspending the goods carriage permit issued to the petitioner for a period of six months w.e.f. 5.2.2016, evident from Ext.P3. According to the petitioner, from Ext.P3 it is clear that, the communication was signed only on 26.4.2016 and forwarded to the Assistant Motor Vehicles Inspector on 27.04.2016 for effecting service on the petitioner. Therefore, it is contended that, on receipt of Ext.P3 notice only, petitioner happened to know that a meeting of the 1[st] respondent was in fact held on 5.2.2016. The impugned decision was taken to suspend her permit even without notice to her. That apart it is also contended that, Ext.P3 is a nonspeaking order and it does not give any reason for the action taken except to say that the permit of the vehicle of the petitioner is suspended for a period of six months w.e.f. 5.2.2016. 5. Yet another legal contention raised by the petitioner is W.P.(C). No.16723 of 2016 4 that, as provided under Section 86 of the Motor Vehicles Act, 1988, the Transport Authority is empowered to cancel the permit or suspend it for such period as it thinks fit. However, the reasons for suspension or cancellation of the permit could be only as per sub-section (1). That apart it is also contended that as per the proviso to Section 86 (1)(f) no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation. That apart as per sub-section (3) to Section 86, the Transport Authority is empowered to cancel or suspend the permit only after giving to the holder in writing its reasons for the action taken. Therefore, according to the petitioner, the 1[st] respondent has violated the mandatory stipulations under Section 86 of the Motor Vehicles Act, 1988. It is in this background this writ petition is filed. 6. Second respondent has filed a counter affidavit refuting the allegations and statements and demands made by the petitioner. That apart it is contended that the goods vehicle of the petitioner was intercepted and checked on W.P.(C). No.16723 of 2016 5 18.8.2016 by the Assistant Motor Vehicles Inspector, attached to the Sub Regional Transport Office, Adoor and certain irregularities were noticed by the said Inspector. It was found that the vehicle was carrying M-sand from Konni to Pandalam and as per the Weighment Certificate produced, total weight is 24290Kg. as against the GVW in the Registration Certificate 16,200 Kg. Therefore, an overload of 8,090 Kg. was detected and directed to off the excess loads before proceeding further under Section 194 r/w Section 113 of the Motor Vehicles Act. The Checking Officer has prepared check report and submitted the same along with Weighment Certificate dated 8.8.2015 before the Joint Regional Transport Office, Adoor. As the vehicle come under the jurisdiction of Sub Regional Transport Office, Ranni, the check report has been forwarded to that office for further action. It is also contended that on 23.9.2015, a charge memo has been sent to the petitioner directing to remit the compounding fee of Rs.10,000/- as per the provisions of the Motor Vehicles Act within 7 days, failing which, further action was stipulated without any further W.P.(C). No.16723 of 2016 6 communication. In the charge memo, an opportunity is given to the permit holder to show cause as to why the permit in respect of the vehicle should not be suspended or cancelled under Section 86 of the Motor Vehicles Act, 1988, evident from Ext.R2(a). It is further submitted that thereafter petitioner has made an application before the Joint RTO, Ranni for hypothication termination and for the renewal of regular permit in respect of the vehicle on 12.11.2015. While processing the application, check report in question was found to be pending against the vehicle for disposal. Therefore, a letter dated 05.12.2015 has been sent to the petitioner directing her to appear before that authority to remit Rs.10,000/- towards the compounding fee and to close the check report accordingly, evident from Ext.R2(b). But the petitioner failed to appear before the authority or has not remitted the compounding fee. Thereafter, on 11.12.2015, petitioner has sent a request to the Joint RTO to endorse the termination of hypothication and to issue the renewal of W.P.(C). No.16723 of 2016 7 permit in the light of clause 20 and 30 of Circular No.17/2011 without disposing of the pending check report. According to the 2[nd] respondent, clause 20 and 30 of Circular No.17/2011 was quashed by this court in W.P.(C) No.27041/2011 dated 22.01.2013. That apart it is contended that as per the directions issued by this court in W.P.(C) No.27041/2011, hypothication in respect of the vehicle in question with SBT, Vadaserikkara has been terminated and regular permit has been renewed and endorsed the same in the permit, by the Joint Regional Transport Officer, Ranni, as the other records of the vehicle are found correct. However, Ext.R1(a) check report dated 8.8.2015 remained pending before the 2[nd] respondent for disposal. Therefore, Joint RTO, Ranni has forwarded Ext.R1(a), with a request to submit it before the Regional Transport Authority for the procedure to be adopted for the disposal of the same. 7. It is thereupon that the check report has been submitted before the Regional Transport Authority on 5.2.2016 briefing the entire history. On 16.1.2016 Ext.P1 W.P.(C). No.16723 of 2016 8 letter was sent to the petitioner from the office of the Regional Transport Officer, Pathanamthitta and directed her to appear before the Regional Transport Authority to explain her version in the subject. The date, time and venue were marked clearly in the said letter. But neither the permit holder nor a proxy representing her has appeared before the Regional Transport Authority. A general notice regarding the postponement of the meeting dated 16.1.2016 was published in the notice board of the office of the respondent on 29.01.2016. The said notice was also published in the newspaper dated 29.1.2016, evident from Ext.R2(c). In spite of the same, there was no representation for the petitioner on 5.2.2016 and since no explanation was offered on the said date, the Regional Transport Authority passed Ext.P3 order dated 5.2.2016. The decision of the Regional Transport Authority has been communicated to the petitioner on 29.4.2016 with registered A.D., evident from Ext.R2(d). Therefore, the grievance voiced by the petitioner that, Ext.P3 order was passed without notice to the petitioner and without W.P.(C). No.16723 of 2016 9 giving opportunity to furnish any explanation is not correct. Petitioner was also directed to appear before the authority as per Ext.P1 letter dated 16.1.2016. Therefore, the contention of the 2[nd] respondent is that petitioner has not made out any case warranting interference of this court under Article 226 of the Constitution of India. 8. Heard learned counsel for the petitioner, learned Senior Government Pleader for respondents and perused the pleadings and documents on record. 9. Learned counsel for the petitioner reiterated the contentions raised in the writ petition. Apart from the same, two predominant contentions are raised by the petitioner; (1) As per Section 86 of the Motor Vehicles Act, (shortly called “the Act”) the authority is vested with power for cancellation of suspension of permit, however, the said power is circumscribed by the proviso to Section 86(1)(f) which read thus: “provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation.” W.P.(C). No.16723 of 2016 10 (2) As provided under Section 86(3), where a Transport Authority cancells or suspends a permit, it shall give to the petitioner in writing its reasons for the action taken. 10. So far as the 1[st] contention is concerned, admittedly, petitioner was issued with Ext.P1 notice dated 16.1.2016 directing petitioner to appear before the Regional Transport Authority, Pathanamthitta on 29.1.2016. However, the contention of the petitioner is that, the said meeting was adjourned and the petitioner was under the impression that a further notice will be issued. It is the admitted case that, no further individual notice was issued. But Ext.R2(c) publication was made in a daily newspaper circulating in the area whereby, it was informed that the meeting convened on 29.1.2016 is adjourned to 5.2.2016. Petitioner relying on rule 124 of the Kerala Motor Vehicles Rules (shortly called “the Rules”) contended that, notice contemplated under the Rules, is a service of communication to parties. As provided under rule 124 of the Rules, the delivery of communication to a party is provided; W.P.(C). No.16723 of 2016 11 (a) by delivery or tender of a copy of the communication to the addressee. - (b) by recorded delivery or under certificate of posting. - (c) by registered post. Therefore, according to the counsel, merely because a paper publication is carried out by the authority convening a meeting is not in accordance with the mandatory requirement provided under the Rules. 11. Per contra learned Senior Government Pleader contended that the authority has issued a notice, evident from Ext.P1 directing the petitioner to be present on 29.1.2016. But on that day the meeting was adjourned. According to the learned Senior Government Pleader, a notice was published in the notice board adjourning the meeting to 5.2.2016 and also the same was intimated to the public as per Ext.R2(c) paper publication that the meeting will be held on 5.2.2016. Now the question is whether the notice carried out by paper publication is a proper notice ? Learned counsel for the W.P.(C). No.16723 of 2016 12 petitioner has relied on the judgment of the Apex Court in **Babu Varghese v. Bar Council of Kerala** [1999 KHC 194] and invited my attention specifically to paragraph 25, which reads thus: “It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor (1875) 1 Ch.D.426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor 63 Indian Appeals 372 = AIR 1936 PC 253 who stated as under: “Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.” 12. Therefore, it is the contention of the counsel that Rule 124 has prescribed the manner in which a notice is to be served. Therefore, overlooking the mandate contained therein, carrying out paper publication will not suffice the situation. 13. Taking into account the rival submissions made across the Bar, I am of the considered opinion that the W.P.(C). No.16723 of 2016 13 authority has issued notice to the petitioner, evident from Ext.P1 to appear before the authority on 29.1.2016, which is an admitted fact. However, the meeting could not take place on the said date. Consequent to which, a notice was published in the notice board adjourning the meeting to 5.2.2016 and also carried out a paper publication dated 29.1.2016. Since the publication was carried out in the newspaper dated 29.1.2016, it is categoric and clear that, a decision was taken earlier. Therefore, if the petitioner had gone to the office of the authority on 29.1.2016, definitely the petitioner would have found that the meeting was adjourned to 5.2.2016. Rule 124 of the Kerala Motor Vehicle Rules deals with the issuance of communication under Chapter V and it was thereupon only that Ext.P1 notice was issued to the petitioner, evident from Ext.P1. On a reading of Rule 124, I could not gather any indicative factor to arrive at a conclusion that at every stage of the very same proceedings on each occasion, notice provided under the Rule is to be issued. So also it is well settled in judicial and other proceedings, a W.P.(C). No.16723 of 2016 14 notice for appearance is mandatory, which is a sine qua non in terms of principles of natural justice. Thereafter normally and ordinarily future posting date is provided on the date of the posting itself and no further notice is issued for every successive posting, unless it is specified so. There was sufficient information to the petitioner by paper publication and also publication of notice in the office of the Regional Transport Authority. Therefore, I am of the considered opinion that petitioner is not entitled to succeed on the said point. 14. The next question is whether as provided under Section 86(3), a speaking order is passed by the Regional Transport Authority. Learned counsel for the petitioner relied on the very same judgment cited supra to canvass the proposition that when a statute prescribes a particular act to be done in a particular manner, the same is to be followed by the statutory authority. The same is a well settled proposition in law. It is categoric and clear from Section 86(3) that the authority is bound to pass an order by writing its reasons. 15. On a perusal of Ext.P3, it is categoric and clear that there are no reasons assigned by the 1[st] respondent. The W.P.(C). No.16723 of 2016 15 decision in Ext.P3 reads as follows: “Perused the records in connection with this file. Secretary RTA is directed to suspend the permit in respect of HGV - Tipper KL-03-T8468 for a period of 6 months w.e.f.15.02.2016.” 16. Therefore, I am of the considered opinion that petitioner is entitled to succeed on the said point. In that view of the matter Ext.P3 is set aside and I direct the 1[st] respondent to re-consider the issue in accordance with law. In order to enable the authorities to proceed with the matter, petitioner is directed to appear before the 1[st] respondent on 5.8.2016 and the 1[st] respondent shall take a decision on the issue in accordance with law after providing reasonable opportunity of hearing to the petitioner. Writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv 12.07.2016