GH AHMAD GADDA Vs. STATE

JUDGEMENT

(1.) THIS is a petition filed by one Ghulam Ahmad Gadda son of Qadir Joo Gadda resident of Watalkadal, Srinagar, praying for the issue of a writ of Mandamus under Art. 32 2A of the Constitution of India as applied to the State of Jammu and Kashmir against the State of Jammu and Kashmir Chief Secretary to the Government and against the Registering and Licensing Authority Traffic Control Department, Srinagar. The petitioner has stated in his petition that he owns property lorry No. J&K 1922, Ford 1943 Model, and that he had been plying this lorry and living on the income earned by plying it; that the lorry is in a perfect fit condition and a certificate of fitness was issued by the Respondent No. 2 after inspection on 15 -1 -1956; notwithstanding this certificate of fitness respondent No. 2 on 8 -2 -1956 in reply to petitioners application for grant of permit for 1956 informed him that revival of permit was out of question and refused to allow him to run the vehicle; that the petitioners fundamental rights of use and running the lorry had been infringed by the order passed by respondent No. 2 by not issuing the permit to ply the lorry. Lastly it was stated that respondent No. 2 had not given any consideration to the repeated requests, of the petitioner to desist from placing obstructions in his right of using property and in pursuing his occupation and business which has resulted in continuous loss to the petitioner and is clearly a violation of his fundamental rights. It Has been prayed that a writ of Mandamus or certiorari or any other appropriate writ be issued against the respondents directing them to allow the petitioner to use and run his lorry or alternatively to grant the requisite permit for plying the said lorry.

(2.) OBJECTIONS have been filed by the respondents and it is stated therein that the petitioner for the first time on the 29th June put in an application for the grant of a route permit and this application was decided in February 1956 and that the action of respondent No. 2 in refusing the route permit is covered by the Motor Vehicles Act and there has been no infringement of the fundamental rights of the petitioner. It was further pleaded that the petitioner had an adequate alternative remedy by way of appeal under S. 64 of the Motor Vehicles Act and as such the petition would not lie. The petitioner should have under chapter 4 rule 4 -26 of the Jammu and Kashmir Motor Vehicles Rules filed an appeal to the Minister Incharge Police Department. According to his own admission the petitioner was informed of the order on 8/13th February 1956, and be allowed his remedy under law to become time barred and he cannot now come and claim "relief by way of writ.

(3.) THE learned counsel for the petitioner has raised a number of points in support of his petition and the counsel appearing for respondents has raised a preliminary objection to the hearing of the petition. I proceed to decide first the preliminary objection raised by the counsel for the respondents. The objection is to the effect that appeal lay against the impugned order under S. 64 of the Motor Vehicles Act which reads as under; - "Any person ........... a aggrieved by the refusal of the registering authority to grant a road certificate, or by any condition attached to a road certificate granted to him, or, * * * * * * * d aggrieved by the refusal of renewal of a road certificate. May within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard.