JUDGMENT
U.N. Sinha, J.
1. The petitioner has filed this application under Article 226 of the Constitution of India praying that an order of the Appeal Board, under the Motor Vehicles Act, dated the 17th June. 1969 (Annexure 2), so far as it
affected the petitioner, be quashed by a writ of certiorari. By that order, passed on appeal, an order granting stage carriage permit to the petitioner by the South Bihar Regional Transport Authority for the route Jehanabad-Kurtha has been set aside, on the ground that the petitioner was a minor. It may be mentioned at this stage, that, out of the route, a distance of two miles from Jehanabad has been nationalised and, therefore, Bihar State Road Transport Corporation had objected to the grant of a permit over the nationalised route also, and this objection had been overruled by the Road Transport Authority on the ground that the nationalised portion was a negligible distance covering the municipal limits only. As against this matter Bihar Road Transport Corporation has filed C. W. J. C. 1085 of 1969, which will be dealt with separately.
2. The relevant facts are these: It is stated that Jehanabad-Kurtha route covering a distance of 14. miles had been advertised for grant of permanent stage carriage permit (two trips up and down) and applications were invited for the same. Eleven applicants had applied for one vacancy on the route. It is stated that South Bihar Regional Transport Authority, Patna, considered the respective claims of the parties and granted permit to the petitioner and a copy of the order has been annexed as Annexure 1. Against this order respondent No. 3 and Bihar State Road Transport Corporation filed appeals before the Appeal Board of the State Transport Authority, and for the reasons given in the order (Annexure 2), the Appeal Board granted permit to respondent No. 3, after reversing the order granting permit to the petitioner. The circumstances under which the petitioner did not get any relief under Section 64-A of the Motor Vehicles (Bihar Amendment) Act, 1949 have been mentioned in paragraph 6 of the writ application and hence this application has been filed for the relief mentioned above. As indicated earlier, the order granting permit to the petitioner has been reversed on the ground that he was a minor and it is contended in the writ application that a new point had been allowed to be taken by respondent No. 3 at the appellate stage, and that the order incorporated in Annexure 2 is wholly illegal. It appears from the record that in this writ application, the petitioner’s father has filed his own Vakalatnama as guardian of the petitioner and the parties have proceeded in this case on the footing that the writ petitioner is still a minor.
3. The only question which has been agitated on behalf of the petitioner is that there is no bar under the Motor Vehicles Act for the grant of a stage
carriage permit to a minor. A counter-affidavit has been filed on behalf of respondent No. 3 stating the circumstances under which the question of minority of the writ petitioner had been raised before the appellate authority. The main allegation in this counter-affidavit is that the petitioner being a minor, the appellate authority had rightly refused to grant him the stage carriage permit in question. It is not necessary to refer to the other documents filed on behalf of the parties, as only the same points have been reiterated and challenged. On an application made on behalf of the writ petitioner, the State Government has also been made a party-respondent. In order to appreciate the contentions raised by the parties, the relevant portion of the order of the Appeal Board is quoted below:–
“It was argued on behalf of the respondent that the fact that the respondent was a minor would not disqualify him for getting a permit. It was further contended that according to Section 2(19) of the Motor Vehicles Act the ‘owner’ means:–
“where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement;
It was, therefore, contended that a permit could be granted to a minor.
I have examined the records and I have also considered the arguments. To my specific question as to why the minority of the applicant was not disclosed and why the application was signed by Sri Prayag Choudhary as a major, no satisfactory reply was given. It is no doubt true that a minor could be given the permit provided the fact is disclosed and some responsible legal guardian files application on behalf of the minor. A minor cannot be prosecuted for offence under the Motor Vehicles Act and it is, therefore, not proper to grant any permit to any minor unless a proper application is received and supported by a legal guardian.
In view of the reasons given above I would set aside the order of granting the permit to Sri Prayag Chaudhary who is admittedly a minor.
As between the claims of Sri Ram Prit Singh and Sri Bihari Sao I find that Sri Bihari Sao has already permit for 64 miles. So far as Sri Ram Prit Singh is concerned, he is newcomer without any permit.”
It has been argued on behalf of the petitioner that from the order of the Appeal Board it is not clear as to what view was taken on the question under
consideration, as it has been held that a minor could be given a permit provided the fact is disclosed and some responsible legal guardian files an application for permit on behalf of the minor. It is not disputed in this case that the minor himself had filed his application for permit without mentioning his minority or majority.
4. On the question in issue in this case, it is a curious feature of the Motor Vehicles Act, 1939 (Act 4 of 1939)–hereinafter to be called the Act–that it is nowhere stated that a minor is not entitled to any permit. Age limits have been laid down in connection with the driving of motor vehicles in Section 4 of the Act, which reads thus:–
“4. (1) No person under the age of eighteen years shall drive a motor vehicle in any public place.
(2) Subject to the provisions of Section 14, no person under the age of twenty years shall drive a transport vehicle in any public place.” For necessity of permit for use of transport vehicle, the relevant portion of Section 42(1) of the Act states as follows: —
“No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or counter-signed by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used.”
Elaborate rules have been framed as Bihar Motor Vehicles Rules, 1940 (hereinafter to be called the Rules) and Chapter IV thereof deals with the control of transport vehicles. Rules 48 and 49 deal with the forms of application for permits and permits themselves. Rule 48 states that every application for a permit in respect of a particular stage carriage must be made in Form P. St. P. A. Rule 49 states that a particular stage carriage permit shall be granted in Form P. St. P. Form P. St. P. A. states, amongst others, that the applicant has to give his full name, the name of his father (in case of an individual), address, route or routes, the area for which the permit is desired, the type of vehicles etc. It is nowhere mentioned in this form that a minor must apply through his guardian. At the end of the form the applicant has to put his signature or thumb impression. The permit itself mentions the name of the holder, father’s name, address etc. In the form itself there is no indication as to how the holder will be described if he is a minor. Therefore, there is no clear bar against a minor person applying for a particular stage carriage permit nor is there any bar in granting him such a permit either in the Act or in the Rules.
Our attention has been drawn to some sections of the Act by the learned Advocate-General, for a conclusion that a minor person cannot apply for a permit nor can he be granted one. The sections mentioned in this connection are Section 5, Section 22 and Section 42 of the Act, read with Section 2(19) of the definition section. The relevant portion of Section 42 has already been quoted above and Sections 2(19), 5 and 22 are quoted below:
“2. In this Act, unless there is anything repugnant in the subject or context,–
... ...
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(19) 'owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement;"
"5. No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Section 3 or Section 4 to drive the vehicle".
“22. No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner.”
Under Section 5 read with Section 2(19) it is urged by the learned Advocate-General that where a person in possession of a motor vehicle is a minor, the bar imposed by Section 5 is on his guardian. Thus, it is argued that even if a minor is in possession of a motor vehicle he is not the “owner” within the meaning of the Act, even for the purpose of Section 5 of the Act. Under Section 22 it is argued that even if a minor is in possession of a motor vehicle, the prohibition is on his guardian in not permitting the vehicle to be driven in any public place or any other place for the purpose of carrying passengers or goods unless the vehicle is registered. It is argued, therefore, that for the purpose of Section 22 also, the minor himself has to be ignored even if he is in possession of a motor vehicle. Under Section 42 also it is argued that the expression “owner”, mentioned therein, refers to the guardian of a minor where the latter is in possession of a motor vehicle and the prohibition is on the guardian of the minor, who shall not use or permit the use of a transport vehicle in any public place save in accordance with the conditions of a permit granted.
Apart from these provisions of law the learned Advocate-General placed before us some other sections of the Act in urging that a minor person cannot be granted a private stage carriage permit. These Sections are 72(4), 112 and 123 of the Act. Sections 72(4), 112 and the relevant portion of Section 123 of the Act are quoted below:–
Section 72 (4)– “Where the driver or person in charge of a motor vehicle or trailer driven in contravention of Subsection (2) or Clause (a) of Sub-section (3) is not the owner, a Court may presume that the offence was committed with the knowledge or under the orders of the owner of the motor vehicle or trailer.”
Section 112.– “Whoever contravenes any provison of this Act or of any rule made thereunder shall, if no other penalty is provided for the offence, be punishable with fine which may extend to one hundred rupees, or, if having been previously convicted of any offence under this Act he is again convicted of an offence under this Act, with fine which may extend to three hundred rupees.”
Section 123.– “Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 22 or without
the permit required by Sub-section (1) of Section 42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for a first offence with fine which may extend to one thousand rupees and for a subsequent offence if committed within three years of the commission of a previous similar offence, with imprisonment which may extend to six months or with fine which may extend to two thousand rupees, or with both”
It is contended that upon a breach of any of these provisions, a minor holding a permit will have to be prosecuted if a permit has been granted to a minor, and it cannot be the policy of the State to prosecute minor persons. It is difficult to appreciate this argument, as a general principle of law, when the Act is silent on the point under consideration. It is difficult to hold on Section 2(19) of the Act that the guardian of a minor must apply for a permit, as their Lordships of the Supreme Court have held in the case of K.M. Vishwanatha Pillai v. V.M. Shanmugham Pillai reported in AIR 1969 SC 493, that, Section 42(1) does not require that the owner himself should obtain the permit. So, even if “owner” means the guardian of a minor, when the person in possession of a motor vehicle is a minor, it is not necessary for the
owner himself to apply for a permit, as held by the Supreme Court. Their Lordships have also taken into consideration the definition of a permit given in Section 2(20), which shows that all permits need not be in the name of the owner, because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owner’s name. Therefore, the sections of the Act and the Rules, mentioned above, do not indicate that a minor cannot apply for a permit nor can he be granted one.
Then argues the learned Advocate-General, from paragraph 17 of the form of application for a permit, that a minor cannot apply for a permit. This paragraph reads thus:–
“I/We hereby declare that the above statements are true and agree that they shall be conditions of any permit issued to me/us.”
It is contended that as a minor cannot enter into a contract, he cannot agree to the conditions of any permit granted to him and it must, therefore, follow that a permit cannot be granted to him. This argument is also too far-fetched for a decision on the matter in controversy. A permit in the form P. St. P. is not granted as a result of any contract. It is granted under Rule 49(a) (i) of the Rules and in that sense, a permit has a statutory validity. It is difficult to understand why a minor cannot say that he agrees to the conditions of the permit issued to him, and if it comes to that, even in the absence of a clause of this nature in the application for a permit, the permit itself will not lose any force of its own. So far as the Act is concerned. Section 46 states the particulars which have to be mentioned in an application for stage carriage permit and the matters that the Regional Transport Authority must consider for the grant of a stage carriage permit are enumerated in Section 47. Neither of these sections states that minority of an applicant will be a bar for the grant of a stage carriage permit. Some connected matters for grant of a stage carriage permit are also mentioned in Section 48 of the Act. but minority of an applicant is not said to be a bar. As indicated earlier, the Appeal Board did not hold that the minority of an applicant was a bar to the grant of a permit. It has been held that a minor can be granted a permit provided the fact is disclosed and some responsible legal guardian files an application on the minor’s behalf. No provision of law has been shown to us in support of this conclusion.
5. For the reasons given above, the order incorporated in Annexure 2 is
quashed by a writ of certiorari and the order passed by South Bihar Regional Transport Authority granting permit to the writ petitioner must be held to have been a valid order, subject to the modification that must be made as indicated in the judgment delivered today in C. W. J. C. No. 1085 of 1969 (Pat). In short. South Bihar Regional Transport Authority will exclude the portion of the Jehanabad-Kurtha route which falls within the notified scheme from the permit to be granted to the petitioner. The writ application is accordingly allowed; but, in the circumstances of the case, there will be no order for costs.
Kanhaiyaji, J.
6. I agree.