Citation Codes

Equivalent Citations

citation codes

Case Number

S.B Civil Writ Petition No. 396 of 1966

Attorney(S)

C.L Agarwal, D.P Gupta, B.K Maheshwari and R.R Vyas for respondents
Chandmal Lodha and J.G Chhangani for petitioner

Judges

Mr. Jagat Narain

Acts

sec. 57(3) of the Motor Vehicles Act and rule 81
sec. 57(3).14. An examination of rule 81
sec. 57(3) along with rule 81
sec. 57(3) read with rule 81.
sec. 57(3) and rule 81
sec. 5(3) an rule 81(b)
clause (b) of rule 81
rule 81(b)

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Smart Summary

Judicial Opinion Summary — Zahoor Ahmed Mohammad Shafi v. Transport Appellate Tribunal

Factual and Procedural Background

This is a writ petition under Article 226 brought by Zahoor Ahmed Mohammad Shafi (through sole proprietor Mohammad Shafi), a displaced stage carriage operator of the Ajmer–Beawar route whose permit was cancelled on 27-3-1963 due to nationalization.

The petitioner applied on 17-7-1963 for a permit for the Nasirabad–Merta City route (via Mangaliawas, Pisangan, Govindgarh, Alniyawas). The application was published in the Rajasthan Gazette on 29-8-1963 with a notice that representations and objections could be submitted within 30 days; the date, time and place of the meeting at which the application would be considered were not then notified, but a subsequent notification was said to follow. Contesting respondents (Nos. 4–7) filed an objection within 30 days and furnished a copy to the petitioner on 1-10-1963.

Subsequent Gazette notifications scheduled meetings of the Regional Transport Authority (RTA) at Jaipur (one Gazette dated 20-2-1964 setting meetings for 13–14 March; another dated 26-3-1964 setting meetings for 1–3 April 1964). The agenda for the RTA meeting was pasted on the RTA notice board on 25-3-1964 (six days before the meeting) but the agenda was not published in the Gazette.

At the RTA meeting a non-temporary stage carriage permit was granted to the petitioner (resolution annexure 7). Respondents Nos. 4–7 were not present. They learned of the RTA resolution on 23-10-1964 when the petitioner sought counter-signature at the RTA Jodhpur, then obtained a copy of the Jaipur RTA resolution and filed an appeal against the grant on 18-11-1964.

The Transport Appellate Tribunal held the appeal to be within time, concluded that the RTA had failed to publish notice of the date of hearing as required by section 57(3) read with rule 81, set aside the RTA order granting the permit and remanded the matter to the RTA for fresh decision after giving parties an opportunity of hearing. The present writ petition challenged the Tribunal's decision.

Legal Issues Presented

Whether section 57(3) of the Motor Vehicles Act, read with rule 81 of the Rajasthan rules, requires that notice of the date of hearing be published in the Rajasthan Gazette at least thirty clear days before the date of hearing (as contended by respondents) or whether the Tribunal's interpretation that seven days' publication sufficed is correct (as criticised by the petitioner).
Whether publication in the Gazette (and related notice board postings) constitutes sufficient notice for proceedings before the Regional Transport Authority, or whether personal service of notice of hearing is required (the respondents contended that personal notice should be served).
Whether the contesting respondents' appeal was within the prescribed limitation period given the alleged lack of notice of the hearing and the time at which they became aware of the RTA resolution.

Arguments of the Parties

Petitioner's Arguments

The writ petition challenges the Tribunal's finding that section 57(3) read with rule 81 prescribes that notice of the date of hearing should be published in the Gazette at least seven days before the meeting; petitioner contended that this finding is erroneous.

Respondents' / Contesting Parties' Arguments

The contesting respondents argued that section 57(3) mandates a clear period of thirty days between publication and the date of hearing and that rule 81(b) prescribes that publication of the particulars in the Rajasthan Gazette suffices to give notice of the hearing.
They further contended that because the RTA failed to give required Gazette notice of the date of hearing, they had no notice and therefore their appeal to the Transport Appellate Tribunal was within time.
Separately, respondents advanced the argument (relying on an excerpt from Will's Constitutional Law) that proceedings before the RTA are not proceedings in rem and therefore notice by publication may be insufficient — they contended that personal notice should be served on all concerned parties.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ashok Bus Transport Corporation, Bhilwara v. The Appellate Tribunal of the State Transport Authority	Referenced for the proposition that a period of 30 days has been prescribed for filing representations under section 57(3) (the court notes that in that earlier matter the application was published on 11th July and considered on 29–30 July, in violation of section 57(3)).	The court relied on the observation that thirty clear days' notice of the date of hearing is required and treated the earlier handling (July publication and late-July hearing) as contravening the statutory requirement; the decision supports the view that 30 days' notice is necessary if date of filing representations and date of hearing are both published.
Narayana v. S.T. Authority	Addressed the legality of publishing two separate notifications (one for filing representations and a later one for the date of hearing).	The court observed that two separate notifications are not illegal (as held in Narayana), but emphasized it is desirable to follow the letter of the law and rule and that where two notifications are used, thirty days must be provided for representations in accordance with the observations in the Ashok Bus case.
M.A. Saddiqui v. Appellate Tribunal of the State Transport Authority Rajasthan	Interpretation of the words "furnish simultaneously" in section 57(4): substantial compliance (rather than strict simultaneity) suffices where a person making representation takes reasonable steps to ensure the applicant receives a copy soon after the representation is delivered to the RTA.	The court applied this principle to hold that the contesting respondents had substantially complied with section 57(4) when they furnished a copy of their representation to the petitioner on 1-10-1963, and therefore the Tribunal's decision on this point was correct.

Court's Reasoning and Analysis

The court undertook a textual and structural interpretation of section 57(3) of the Motor Vehicles Act and rule 81 of the relevant rules, focusing on timing and mode of publication required for applications for stage carriage permits.

Key statutory text considered (quoted in the opinion) requires that upon receipt of an application the RTA shall publish the application (or substance thereof) together with:

a notice of the date before which representations may be submitted; and
a notice of the date, not being less than thirty days from such publication, and the time and place at which the application and any representations will be considered.

From the text the court drew two conclusions: section 57(3) contemplates a joint notification fixing (1) the last date for submission of representations and (2) the date of hearing; and the statutory phrase "not being less than thirty days from such publication" qualifies the date of hearing (requiring at least 30 days between publication and hearing) rather than the last date for representations.

Turning to rule 81, the court analyzed clauses (a) and (b):

Rule 81(a) requires posting a copy of the whole application, together with the notice of the last date for representations and the date appointed for consideration, on the RTA notice board.
Rule 81(b) states that publication in the Rajasthan Gazette (together with posting on the notice board not less than seven days before the date appointed for receipt of representations) shall be sufficient compliance with section 57(3).

The court concluded that the seven-day requirement in rule 81(b) applies only to the posting on the notice board of the last date for receipt of representations. Rule 81(b) does not prescribe a seven-day Gazette notice for the date of hearing. Rather, the combined reading of section 57(3) and rule 81(b) means that notice of the date of hearing must be published in the Gazette at least thirty clear days before the hearing.

The court further explained that compliance with the law requires publication in the Gazette of both the date of the meeting and the agenda for the meeting (so that the date of hearing for a particular application is effectively notified). Simply publishing the date of the meeting in the Gazette without publishing the agenda, or posting agenda only on the notice board less than thirty days before the meeting, does not satisfy the statutory requirement and therefore interested parties cannot be deemed to have constructive notice.

On the contention that personal notice was required rather than Gazette publication, the court considered the cited passage from Will's Constitutional Law but rejected the submission: it held that section 57(3) contemplates notice by publication in the prescribed manner and rule 81 prescribes publication in the Gazette; thus Gazette publication suffices for proceedings before the RTA.

Applying these principles to the facts, the court found:

The agenda for the RTA meeting was not published in the Gazette at all; it was only pasted on the RTA notice board on 25-3-1964 (six days before the meeting).
Because the date of hearing for the petitioner's application was not published in the Gazette thirty clear days in advance, the contesting respondents did not have constructive notice of the hearing date and hence could not be deemed present at the hearing.
The contesting respondents learned of the RTA resolution on the date and in the manner they alleged, and their appeal filed on 18-11-1964 before the Transport Appellate Tribunal was therefore within the period of limitation.
On the question of furnishing a copy of the representation to the applicant, the court applied the M.A. Saddiqui precedent to hold that the contesting respondents' action of furnishing a copy to the petitioner on 1-10-1963 constituted substantial compliance with section 57(4).

Holding and Implications

Final Disposition: The writ petition is dismissed.

Implications and Direct Effects:

The decision of the Transport Appellate Tribunal — which had set aside the Regional Transport Authority's order granting a permit to the petitioner and remanded the matter for fresh decision after giving an opportunity of hearing — is effectively upheld by the dismissal of the writ petition (the court agreed with the Tribunal's conclusion that the contesting respondents had not been given the notice required by law and that their appeal was within time).
The court ordered that the case be remanded to the Regional Transport Authority for a fresh decision in accordance with law after affording parties an opportunity of hearing (as directed by the Tribunal's order).
The parties were directed to bear their own costs of the writ petition.
The opinion does not purport to lay down a novel precedent beyond its statutory interpretation; it applies established interpretative rules to section 57(3) and rule 81 and relies on earlier authorities to resolve questions of substantial compliance and timing of notices.

End of summary.

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M/S. Zahoor Ahmed Mohammad Shan v. The Transport Appellate Tribunal, Rajasthan

Jagat Narayan, J.:— This is a petition under Art. 226 of the Constitution by Zahoor Ahmed Mohammad Shafi, through its sole proprietor Mohammad Shafi, Motor Transport Operator, Nasirabad, District Ajmer, against an order of the Transport Appellate Tribunal. The petition has been contested on behalf of respondents Nos. 4 to 7.

2. 1 he petitioner is a displaced operator of the Ajmer-Beawar route whose permit was cancelled on 27-3-63 on account of nationalization. On 17-7-63 he applied for a permit on the Nasirabad-Merta City via Mangaliawas, Pisangan, Govindgarh, Alniyawas route. The application of the petitioner was published in the Rajasthan Gazette dated August 29, 1963 (annexure 1). It was notified that representations and objections against the grant of permit could be submitted within 30 days from the date of publication. The date, time and place of the meeting at which the application and the representations were to be considered was not notified. But it was stated that a subsequent notification about it would follow. The contesting respondents filed an objection against the grant of permit to the petitioner before the Regional Transport Authority within 30 days and furnished a copy of it to the petitioner on 1-10-63.

3. In the Gazette dated 20-2-64 it was notified that a meeting of the Regional Transport Authority, Jaipur, will be held on 13th and 14th March, and the agenda of the meeting will be pasted on the notice board a week before the meeting. Another notification was published in the Gazette dated 26th March, 1964 notifying that the meeting of the Regional Transport Authority will be held at Jaipur on 1st, 2nd and 3rd April, 1964 and that the agenda for the meeting will be pasted on the notice board within one week before the meeting (annexure 4).

4. The agenda for the above meeting was pasted on the notice board on 25-3-64 vide annexure 5. It included the consideration of cases for grant of alternative fresh stage carriage permits on the Nasirabad-Merta via Mangaliawas, Pisangan route. This notice was thus pasted on the notice board 6 clear days befit the date of the meeting. The agenda for the meeting was not published in the Gazette.

5. At the above meeting of the Regional Transport Authority a non-temporary stage carriage permit was granted to the petitioner on the Nasirabad-Merta City route vide its resolution annexure 7. Respondents Nos. 4 to 7 were not present at the meeting.

6. The contesting respondents filed an appeal against the grant of permit to the petitioner on 18-11-64. They alleged that they had no notice that the application of the petitioner and their representation against it would be considered by the Regional Transport Authority at its meeting held on 1st, 2nd and 3rd April, 1964. They learnt about the resolution of the Regional Transport Authority granting permit to the petitioner on 23rd October, 1964 when the latter moved an application before the Regional Transport Authority Jodhpur for counter-signatures of the permit in question. They immediately applied for a copy of the resolution of the Regional Transport Authority Jaipur and filed an appeal on receipt of the copy.

7. The Transport Appellate Tribunal held that the appeal was within time as the contesting respondents had no notice that the application of the petitioner and their representation against it would be considered by the Regional Transport Authority Jaipur at its meeting held on 1st, 2nd and 3rd April, 1964, the Regional Transport Authority having failed to publish a notice of the date of hearing as required by sec. 57(3) read with rule 81. The Transport Appellate Tribunal was of the opinion that a reading of sec. 57(3) along with rule 81 goes to show that notice of the date of hearing should be published in the Gazette at least 7 days before the date of the meeting. If it is not so published the respondents cannot be Page: 171deemed to have notice of the date of hearing. The order of the Regional Transport Authority granting a permit to the petitioner was accordingly set aside and the case was remanded to the Regional Transport Authority for a fresh decision in accordance with law after giving an opportunity of hearing to the parties concerned.

8. Against the above order the present writ petition has been filed and it is contended that the finding of the Transport Appellate Tribunal that sec. 57(3) read with rule 81 prescribes that the notice of the date of hearing should be published in the Gazette at least 7 days before the meeting is erroneous. The contention on behalf of the respondents is that sec. 57(3) prescribes clear 30 days notice of the date of hearing and rule 81(b) prescribes that the notice of the date of hearing shall be given by publication in the Rajasthan Gazette. Having considered sec. 57(3) of the Motor Vehicles Act and rule 81 I am of the opinion that the contention on behalf of the respondents is correct.

9. The relevant part of sec. 57(3) runs as follows—

“On receipt of an application for a stage carriage permit or a public carrier's permit the Regional Transport Authority shall, make the application at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and (a notice of) the date, not being less than thirty days from such publication, on which, and the time and place at which the application and any representations received will be considered.”

10. A perusal of the above provision goes to show that sec. 57(3) contemplates a joint notification fixing:

(1) the last date by which representations may be submitted, and

(2) the date of hearing.

11. Whereas no period is expressly prescribed under sec. 57(3) for submitting representations, a period of clear 30 days is specified as the period which must elapse between the date of publication of the application or its substance and the date of hearing. It is quite clear from the above provision that the Legislature contemplated that there should be 30 days notice of the date of hearing. The words “not being less than 30 days from such publication” qualify the words “the date at which the application and any representations received will be considered”. They do not qualify the words “the date before which representations may be submitted”. Coming now to rule 81 the material clauses are (a) and (b), which run as follows:

Applications, publication of—(a) Further to provisions of sub-sec. (3) of sec. 57 of the Act, upon receipt of an application for a stage carriage permit for a public carrier's permit the Secretary of Regional Transport Authority shall post a copy of the application, together with the notice of the date before which representations may be submitted and of the date appointed for consideration, on a suitable notice board situated on the premises of the Authority.

(b) It shall be a sufficient compliance with the provisions of sub-sec. (3) of sec. 57 of the Act if the particulars specified in that sub-section are published in the Rajasthan Gazette, and posted on the notice board of the office of the Regional Transport Authority not less than seven days before the date appointed for the receipt of representations.”

12. Clause (b) prescribes the mode of publication under sec. 57(3). It lays down that it shall be sufficient compliance with the provisions of sub-sec. (3) of sec. 57 of the Act if the particulars specified in that sub-section are published in the Rajasthan Gazette. The words “and posted on the notice board of the office of the Regional Transport Authority not less than 7 days before the date appointed for the receipt of representations” apply only to the fixing of the last date for the receipt of representations. They do not apply to the fixing of the date of hearing.

13. Clause (a) makes provisions in addition to the provision made under sec. 57(3). Whereas sec. 57(3) lays down that it will be sufficient compliance if the substance of the application is published, rule 81(a) provides that the whole of the application shall be published on the notice board together with the notice of the date before which representations may be submitted and of the date appointed for consideration. This clause contemplates simultaneous publication of the last date for filing representations and the date fixed for hearing like sec. 57(3).

14. An examination of rule 81 goes to show that under clause(b) clear 7 days notice is to be given on the notice board of the Regional Transport Authority of the last date fixed for receipt of representations. No period of notice is prescribed under this rule for the date of hearing.

15. It will thus be seen that both sec. 57(3) and rule 81 contemplate simultaneous publication of the last date fixed for receipt of representations ane date fixed for hearing. Under section 57(3) no period is expressly fixed for in representations. But it is prescribed that at least 30 days notice of the date hearing shall be given. Under clause (b) of rule 81 the manner of publication is prescribed as publication in the Rajasthan Gazette. The effect of sec. 5(3) an rule 81(b) is that notice of the date of hearing shall be published in the Rajasthan Gazette at least 30 days before the meeting at which hearing takes place. Unless the date of the meeting of the Regional Transport Authority is published in the Gazette along with the agenda for the meeting it cannot be said that notice of date of hearing has been given through publication in the Gazette. Thus for a compliance with the requirement of the law it is not sufficient to publish tease of the meeting of the Regional Transport Authority without publishing the ages a for the meeting in the Gazette. Both the date of the meeting and the agenda or it should be published in the Gazette, thirty clear days ahead.

16. The last date for filing representations need not be published in the Gazette, but it has to be published on the notice board of the Regional Transpor Authority 7 clear days before the date so appointed.

17. The finding of the Tribunal that the notice of the date of hearing should be published 7 clear days before the hearing takes place is no doubt erroneous has to be published in the Rajasthan Gazette 30 clear days before the date of hearing. I may here point out that in Ashok Bus Transport Corporation, Bhilwara v. The Appellate Tribunal of the State Transport Authority (1) it was held by ??? Bench of this Court that a period of 30 days has been prescribed for filing representations under sec. 57(3). This question did not arise for consideration before the Bench. The last application was published on 11th July, 1957 and was considered at the meeting held on 29th and 30th July, 1957. This was in violation of sec. 57(3) which, as I have held above, prescribes a notice of the date of hearing of clear 30 days. If in the notification publishing the application, the date of filing representations and the date of hearing are both published as contemplated by sec. 57(3) then clear 30 days notice is sufficient. Sec. 57(2) contemplates that ordinarily a permit shall be issued in a period of 6 weeks after the filing of the application. In actual practice however a much longer time is taken. Only the date fixed for filing representations is first published. The date of hearing is notified ??? Two separate notifications about these two dates are not illegal as was held in Narayana v. S.T Authority (2). It is however desirable to follow the letter of the law and the rule. If two separate notifications are published then 30 days time is to be given for filing representations in accordance with the observations made in Ashok Bus Transport Corporation, Bhilwara v. The Appellate Tribunal of State Transport Authority (1). Further 30 clear days notice of the date of hearing by publication in the Gazette is necessary. If this is not done then the affected parties cannot be deemed to have notice of the date of hearing and if they are not present they can complain they did not get an opportunity of hearing.

18. On behalf of the respondents it was also contended that the proceedings before the Regional Transport Authority not being proceedings in rem notice by publication is not sufficient and personal notice of hearing should be served on all the parties concerned. Reliance is placed on the following passage occurring in Will's Constitutional Law, 1936 Edition, at page 664—

“Essentials of Notice— When notice is required by due process of law, in order to be sufficient it must notify a person of the time and place, including the tribunal before whom a claim is to be made; apprise him of the nature of the cause against him; come to a person of reasonable intelligence; and afford him sufficient opportunity to prepare and make his answer, case of proceedings in rem notice by publication is sometimes sufficient. Where the proceedings are not in rem, substituted or constructive notice is due process of law only when personal service cannot be obtained, even as to property within the jurisdiction of the court.”

19. In my opinion sec. 57(3) contemplates the giving of notice by publication in prescribed manner and R. 81 prescribes the manner of publication as publication in the Gazette. Notice of the date of hearing by publication in the Gazette is therefore sufficient so far as the proceedings before the Regional Transport Authority are concerned.

20. In view of what has been held above the contesting respondents did not have notice of the date of hearing fixed by the Regional Transport Authority for the consideration of the application of the petitioner and the representations filed against it. Firstly, the law requires that the date of hearing shall be notified in the Gazette. That can only be done by notifying in the Gazette not only the date of the meeting of the Regional Transport Authority but also the agenda for the meeting. The agenda the meeting was not published in the Gazette at all. Secondly the law lays down that the date of hearing shall be notified 30 clear days before the meeting. Unless notice is given as prescribed by the law the interested parties cannot be deemed to have constructive notice of the date of hearing. The contesting respondents learnt about the resolution granting permit to the petitioner in the manner alleged by them. The appeal filed by the respondents on 18-11-64 before the Transport Appellate Tribunal was therefore within limitation. In M.A Saddiqui v. Appellate Tribunal of the State Transport Authority Rajasthan (3) it was held by a Division Bench of this Court that the words “furnish simultaneously” should be read liberally and so long as the person making the representation has taken steps to see that a copy of the representation reaches the person applying for ??? reasonably soon after the representation is delivered to the Regional Transport Authority, he has substantially complied with the last part of sec. 57(4). There appears to be no reason why it should be insisted upon that the party should also actually receive the copy of the representation before the period of limitation has expired. In this viewer of the matter substantial compliance with sec. 57(4) was made by the contesting respondents when they furnished a copy of their representation to the petitioner on 1-10-63. The decision of the Transport Appellate Tribunal on the point is correct.

21. I accordingly dismiss the writ petition. In the circumstances of the case, I leave the parties to bear their own costs of it.

M/S. Zahoor Ahmed Mohammad Shan v. The Transport Appellate Tribunal, Rajasthan

Judicial Opinion Summary — Zahoor Ahmed Mohammad Shafi v. Transport Appellate Tribunal

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' / Contesting Parties' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

M/S. Zahoor Ahmed Mohammad Shan v. The Transport Appellate Tribunal, Rajasthan

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