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2017 DIGILAW 621 (KER)

K. Sathyan, S/o. Krishnan v. K. K. Babu

2017-03-30

ANTONY DOMINIC, NAVANITI PRASAD SINGH

body2017
JUDGMENT : Navaniti Prasad Singh, J. Respondent No.7 to the writ petition is the appellant. He filed this writ appeal challenging the judgment dated 16.3.2017 passed by the learned Single Judge in W.P.(C)1009/2017. Without going into the several facts, suffice it to say that the learned Single Judge found it to be virtually an admitted position that upon remand by the State Transport Appellate Tribunal, the Regional Transport Authority was to consider the cases of the writ petitioner, respondent No.4 and the Kerala State Road Transport Corporation (KSRTC). In fact notices were issued by the Secretary of the Regional Transport Authority for such a hearing, and it was the Secretary of the Regional Transport Authority who heard the matter but orders were passed by the Regional Transport Authority. Learned Single Judge found that this was a procedure unknown to law and in violation of the principles of natural justice. Thus, he set aside the order of the Regional Transport Authority and remanded the same to Regional Transport Authority for fresh hearing in accordance with law. 2. Learned counsel for the appellant in support of the appeal submits that a comparison of Section 86 of the Motor Vehicles Act, which specifically provides for an opportunity to be granted to persons to be heard when Section 103 thereof, which makes no mention of hearing, would show that impliedly hearing is excluded from the provisions of Section 103. 3. In our view, this submission cannot be accepted for more than one reason. An order passed under Section 103 would amount to cancellation of a permit already granted. Undoubtedly, it would have severe civil consequences. This will establish that if any action administrative or quasi judicial is to be taken to the prejudice of a person having adverse effect on him and having civil consequences, the person has to be heard and any action taken or order passed without hearing would be void ab initio being in violation of principles of natural justice. Therefore, according to us, the submission that no hearing is required cannot be accepted. Therefore, according to us, the submission that no hearing is required cannot be accepted. Insofar as the second submission that Section 86 provides for hearing whereas Section 103 does not so provide is concerned, we make it clear that the Apex Court in the case of S.L. Kapoor v. Jagmohan and others reported in AIR 1981 SC 136 in paragraph 10 held thus: "It is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, opportunity is to be considered as excluded from that other provision. It may be a weighty consideration to be taken into account by the weightier consideration is whether the administrative action entails civil consequences." 4. In that view of the matter, we have to hold that for exercise of powers under Section 103 of the Motor Vehicles Act, parties who are likely to be affected are to be heard and in the facts as noted above, notices of hearing were given to both the parties. Thus, the contention of the appellant cannot be sustained. 5. It is then submitted that as Regional Transport Authority was dealing with the Scheme, merely because the Secretary heard the matter and Regional Transport Authority passed order, no prejudice was caused to the writ petitioner. We are unable to accept this proposition. It is well settled that where a person has to take a decision, it is he who is to hear the matter. Law does not contemplate that a person who hears does not decide and a person who decides does not hear. This position is again settled by the Apex Court in Gullapalli and Nageswara Rao and others v. Andhra Pradesh State Road Transport Corporation and Another [ AIR 1959 SC 308 ] where the matter was heard by the Secretary, Transport and a decision was taken by the Minister. The Apex Court clearly held that it was a case of application of power and no decision at all after hearing. In paragraph 31 the Apex Court held thus: The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure. 6. Thus, on both these grounds, we find that there is no reason to interfere with the judgment of the learned Single Judge. This appeal fails and it is accordingly dismissed. All pending I.As. shall stand closed.