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2012 DIGILAW 2285 (RAJ)

Rameshwar Chaudhary v. State of Rajasthan

2012-12-11

ALOK SHARMA

body2012
JUDGMENT 1. - This petition has been filed challenging the order dated 9-12-2009 passed by the Secretary, State Transport Authority, Jaipur (hereinafter 'the Authority'), whereby the permit granted to the petitioner for plying mini-bus on route No.30 at Jaipur has been cancelled on the ground that the petitioner was not regularly plying his vehicle on the route as mandated. 2. Learned counsel for the petitioner submits that against the impugned order dated 9-12-2009 the petitioner has preferred an appeal under Section 89 of the Motor Vehicles Act, 1988 (hereinafter 'the 1988 Act') before the State Transport Appellate Tribunal, Jaipur (hereinafter 'the Tribunal'). But the Tribunal is not presently functioning owing to non-appointment of the judicial Member. Consequently, this writ petition should be heard on merits. 3. Learned counsel for the petitioner submits that the permit for plying mini-bus granted to the petitioner under Section 72 of the 1988 Act could no doubt be cancelled in terms of Section 86 thereof for breach of conditions of the permit. He however submits that under the proviso to Section 86 of the 1988 Act no permit could be cancelled unless an opportunity was given to the holder of the permit to furnish his explanation to breaches alleged. It is submitted that no opportunity of furnishing an explanation to alleged breach of conditions of permit was given to the petitioner before passing the impugned order dated 9-12-2009. It is submitted that on this short ground the writ petition deserves to be allowed. 4. Learned counsel for respondents Mr.Krishna Verma fairly admits that the Tribunal is not functioning owing to non-appointment of the judicial member. He however submits on merits that the impugned order dated 9-12-2009 for cancellation of permit has been passed after issuing a show cause notice dated 15-10-2009 to the petitioner, which was served on him consequent to which principles of natural justice as also the mandate of the proviso to Section 86 (1) of the 1988 Act were satisfied. Counsel submits that service on the petitioner is evident from the report of Process server, which indicates that the notice for providing a hearing before cancellation was affixed at the residence of the petitioner as he himself could not be found. It is submitted that the permit was cancelled owing to plying of the bus by the petitioner irregularly for over two years. It is submitted that the permit was cancelled owing to plying of the bus by the petitioner irregularly for over two years. No good defence to the allegation aforesaid was forthcoming with the petitioner remaining absent in spite of service. This fact is buttressed from the impugned order itself. He submits that in any event of the matter, the permit was valid only till 18-6-2011. It is thus prayed that the writ petition be dismissed. 5. Heard learned counsel for the parties, and perused the material available on record of writ petition including the impugned order dated 9-12-2009. 6. A look at the report of process server on the notice issued to the petitioner under Section 86 of the 1988 Act would indicate that the said notice is stated to have been affixed at the residence of the petitioner not served personally on him. Service on the petitioner however can not be accepted in view of the absence of the name and address of witnesses in whose presence the notice was allegedly affixed on the residence of the petitioner. Further another aspect of the matter need to be noted. The address of the petitioner has been indicated in the notice to be House No.C-388, Road No.4, when in fact the correct address of the petitioner is House No.C-388, Road No.14. As stated above, the affixation of the notice dated 15-10-2009 purportedly at the residence of the petitioner has not been supported by any witness. On principles analogous to the provisions of Order 5 Rule 17 of the Civil Procedure Code, in my considered view service by way of affixation of notice should have been supported by two witnesses, whose names and address ought to be recorded/ disclosed by the Process Server on his report. Admittedly this comfort of notice having been properly served on the petitioner by way of affixation at his residence is not available to the satisfaction of the court. 7. In the facts and circumstances of the case it cannot be held that the principles of natural justice or the mandate of proviso to Section 86 (1) of the 1988 Act stood complied with as sought to be argued by Mr. Krishna Verma. 7. In the facts and circumstances of the case it cannot be held that the principles of natural justice or the mandate of proviso to Section 86 (1) of the 1988 Act stood complied with as sought to be argued by Mr. Krishna Verma. This court is not satisfied from the material on record that the petitioner was properly served the show cause notice or had an opportunity to contest it as warranted by law and principles of natural justice. 8. Consequently the impugned order dated 9-12-2009 passed by the Secretary, Regional Transport Authority, Jaipur is quashed and set aside and the matter is remanded for decision afresh after complying with the principles of natural justice. 9. The writ petition stands allowed accordingly.Petition allowed. *******