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2019 DIGILAW 854 (JHR)

Md. Fakruddin Khan v. State of Jharkhand

2019-04-11

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : 1. This writ petition is filed under Article 226 of the Constitution of India whereby and where under a writ in the nature of writ of certiorari has been sought to be issued for quashing the order dated 31.08.2018 (Annexure-2) by which permit of the petitioner being Permit No.17 of 2013 for the Route-Ranchi to Ambikapur and Permit No.47 of 2015 for the Route-Gumla to Ambikapur has been cancelled. The specific case has been made out by the petitioner before the cancellation of permit, no show cause notice has been issued in order to strengthened his submission, he has referred the cancellation order as contained in page No.19 to the writ petition whereby and where under it has been reflected for both the permits i.e. Permit No.17 of 2013 and permit No.47 of 2014 have been cancelled. 2. It is the case of the petitioner that if there is any irregularity and violation of the terms of conditions of the permit or any statutory Rule applicable, the permit/permits can be cancelled but before taking such decision the principle of natural justice is to be provided i.e. mandate of the statute also. He further submits that this issue has been raised before the appellate tribunal also but without making any reference about the said ground, the decision taken by the original authority, has been affirmed and therefore the order of cancellation of permit/permits and the appellate order are not sustainable in the eye of law being in violation of principle of natural justice. 3. Mrs. Richa Sanchita, learned G.A.-V, appearing for the State of Jharkhand, has argued out the case by submitting that it is a case of commission of forgery committed by the petitioner, since for a vehicle two permits is being utilized by the petitioner i.e. Permit No.17 of 2013 and Permit No.47 of 2015 for a route for the vehicle No.JH-03K-2693 and therefore the same is contrary to the terms and conditions of the permit and hence the decision has been taken by the competent authority by resorting to the provision of Section 86(a)(d) for cancellation of permit and therefore, there is no infirmity in the aforesaid, hence the impugned order may not be interfered with. 4. 4. Having heard learned counsel for the parties and upon hearing them in details, wherein much have been argued on merit regarding the commission of forgery on the part of the petitioner, which has seriously been disputed by the petitioner. Much emphasis has been given by the learned counsel for the petitioner when the permit has been issued, subject to the terms and conditions of the provision of Section 86 of the Motor Vehicle Act, 1988 therefore, the said provision ought to have been followed which contains that before cancellation of permit, reasonable opportunity of hearing is to be given to the permit-holders, but having not done so, the impugned order cancellation of permit is per-say illegal and contrary to the statutory provision. 5. This Court, after appreciating the argument advanced on behalf of the petitioner and after going across the provision of Section 86 of the Motor Vehicle Act, 1988 has found that the permit can be cancelled on the ground of provision stipulated therein, subject to the condition that before the cancellation of permit, an opportunity of hearing is to be given to the permit-holders, the aforesaid provision is referred herein under as:- “86. Cancellation and suspension of permits.- (1) The Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit— (a) on the breach of any condition specified in section 84 or of any condition contained in the permit, or (b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorized by the permit, or (c) if the holder of the permit ceases to own the vehicle covered by the permit, or (d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or (e) if the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purposes for which the permit was granted, or (f) if the holder of the permit acquires the citizenship of any foreign country: 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. 6. 6. Herein, after going across the impugned order, this Court has found that there is a reference of an application made by the petitioner which has been referred under the heading details ¼fOkOkj.kh½ and thereafter the authority has taken decision for cancellation of the permit but there is no stipulation in the aforesaid order regarding compliance of the proviso to Section 86 of the Motor Vehicle Act, 1988 and it is the settled position of law that, if anything has been provided under the statute, the authorities are to act in pursuance to the statute on the basis of the principle that a thing is to be done on the basis of the provision stipulated under the statute and if contrary to that, decision taken would be said to be not in accordance with law, following the said principle, according to the considered view of this Court as would be evident from the impugned order that there is no reference of any show cause notice and as such the same is in violation of proviso to Section 86 of the Act, 1988. In view thereof, the order of cancellation of permit by the concerned competent authority is held to be not in accordance with law, accordingly the same is quashed. 7. It is equally settled that on technicality no one can be allowed to take any advantage, therefore, the matter needs reconsideration by the authority on their own end. 8. In view thereof, the matter is remanded before the competent authority for taking a fresh decision but before doing so, provision of Section 86 of the Act, 1988 which contains the provision of providing an opportunity for hearing is to be followed, in view thereof, the concerned respondents are directed to issue show cause notice to the petitioner within a period of two weeks from the date of receipt of copy of this order. 9. The petitioner is directed to submit his reply within a period of two weeks from the date of receipt of show cause notice. 10. The concerned competent authority in consequence thereof, is directed to take final decision in accordance with law and without being prejudiced by this order within a period of two weeks from the date of receipt of such representation. 11. The operation of permit will depend upon the final outcome of the decision to be taken by the competent authority as aforesaid. 11. The operation of permit will depend upon the final outcome of the decision to be taken by the competent authority as aforesaid. 12. Accordingly, this writ petition stands disposed of.