At, High Court of Orissa
By, THE HONOURABLE MR. JUSTICE D.P. MOHAPATRA & THE HONOURABLE MR. JUSTICE A. PASAYAT
For the Petitioner: G.P. Mohanty, Advocate. For the Opposite Parties: Standing Counsel (Transport).
1. The controversy raised in this case relates to the power of Officers of the State Motor Vehicle Department to take away vital documents like registration certificate, fitness certificate and driving licence at the time of checking of vehicles.
2. In this application filed under Articles 226 and 227 of the Constitution the petitioner has prayed to issue a writ of mandamus to the opposite parties directing them not to seize the motor vehicle documents excepting under circumstances as provided under Sections 206 and 207 of the Motor Vehicles Act, 1988 (Act No. 59 of 1988).The State Govt. represented by its Secretary in the Transport department, the State Transport Authority, Orissa represented by its Secretary, the Commissioner of Transport, the Regional Transport Authority, Puri represented through its Secretary and the Regional Transport Officer, Bhubaneswar are impleaded in the writ petition as opposite parties 1 to 5 respectively
3. The gist of the facts stated in the writ application relevant for the present purpose may be stated thus:-
The petitioner is a transport operator plying three trucks bearing registration Nos. ORG 4112 ORG 6637 and ORG 7717 on different inter-state and inter State routes on the basis of permanent permits. Usually his vehicles operate in the States of Orissa and Andhra Pradesh. The petitioner alleges that it has become routine with the State motor vehicle enforcement authorities to seize vital M.V. documents like
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registration book, fitness certificate and driving licence of the driver when they conduct checking of the vehicles irrespective of the nature of irregularity/infraction allegedly detected at the checking. The checking officers require the driver of the vehicle of compound the offence by paying certain amount of fee and if he expresses his inability to do so the M.V. documents are taken away. It is contended by the petitioner that the practice is wholly illegal, not supported by the provisions of the statute and Rules and it causes serious harassment and prejudice to transport operators like the petitioner. To prop up his submission the petitioner has annexed two check reports, dated 7.11.1988 (Annexure 3) and 1.12.1989 (Annexure 3). In the former it s noted “Checked the vehicle which was plying from Kantabanji to Cuttack loaded with wooden logs having excess load projection of more than one metre. The driver did not compound the case. Hence impounded the R.C. and D.L. The vehicle is plying”. In the second report it is noted “Stopped and checked the vehicle while going to Jagatpur from Gopalpur with the load o fertilisers and with the following defects: (1) Using multi toned air horn (2) The driver is driving the vehicle wearing lungi (3) No hand signal device (4) No first aid box (5) No dulb horn. Refused to compound. Imounded the R.C. book.” It is further alleged by the petitioner that though attention of the Transport Commissioner cum-Chairman, State Transport Authority, Orissa has been drawn to such illegal practice frequently followed his subordinate officers no effective step has been taken by the said authority to put an end to the practice. In these compelling circumstances the petitioner has filed the writ application seeking the reliefs noticed earlier. At the hearing of the case the learned counsel for the petitioner stated that though the petitioner has filed the case in his individual capacity the litigation is really of a representative character since it reflects the common grievance of all operators, particularly those dealing with transport of goods.4. The opposite parties 4 and 5 in separate returns filed by them have tried to support the action of the enforcement officers referring to certain provisions of the Act and the Rules which will be discussed later in the judgment However, it is accepted by the learned Statnding Counsel appearing for them that actions like seizure of vehicle, impounding of motor Vehicle documents like registration book, fitness certificate and driving licence can only be exercised strictly in accordance with the provisions in the Act or the Rules. Such action cannot be exercised merely under the shelter of departmental instructions.5. Considering the nature of the question that falls for adjudication, it will be convenient to notice some statutory provisions relevant for the purpose. We shall refer to the provisions in the new Motor Vehicles Act No. 59 of 1988 which received the assent of the President on 14.10.1988 and was published in the Gazette of India on 17.10.1988.Section 53 of the Act provides for suspension of registration by the registering authority or other prescribed authority in the circumstances enumerated in the section. Section 55 makes provision for cancellation of registration by the registering authority. Section 86 makes provisions for cancellation and suspension of permits on the breach of any condition specified in section 84 or of any condition contained in the permit; or if the holder of permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit and other circumstances enumerated in the Section.Chapter VIII of the Act contains provisions regarding control of traffic. In the said Chapter section 112 deals with limit of speed. It lays down, inter alia, that the State Government or any authority authorised in its behalf by the State Government may, if satisfied that it is necessary to restrict the speed to motor vehicles in the interest of public safety or convenience or because of the nature of any road or bridge, by notification in the Official Gazette and by causing appropriate traffic signs to be placed, fix such maximum speed limit or minimum speed limit as it thinks fit for motor vehicles of any specified class or description of motor vehicles etc. Similarly section 113 which deals with limits of weight and limitations on use empowers the State Government to prescribe conditions for issue of permits for heavy goods vehicles or heavy passenger motor vehicles by the State or Regional Transport Authorities and may prohibit or restrict the use of such vehicles in route. Section 130 casts a duty on the driver of a motor vehicle in any public place to produce his licence for examination by any police officer in uniform on demand. Similar duty is cast on the conductor to produce his licence for examination and on the owner of the vehicle to produce the registration certificate, certificate of insurance of the vehicle and also the certificate of fitness of demand by the registering authority or any person authorised in its behalf by the State government.Chapter XIII of the Act contains provisions relating to offences, penalties and procedure. Thereunder in section 117 it is provided that whoever contravenes any provision of the Act or of any rule, regulation or notification made thereunder shall, if no penalty is provided for the offence, be punishable for the first offence, with fine which may extend to one hundred rupees and for any second or subsequent offence with fine which may extend to three hundred rupees. Section 200 which makes provision for composition of certain offences lays down that any offence whether committed before or after the commencement of the Act punishable under the sections enumerated therein, may, either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State Government may, by notification in the Official Gazette specify in this behalf. In Sub-section 2 of section 200 it is laid down that where an offence has been compounded under Sub-section (1) the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence. Section 206 provides, inter alia, that any police officer or other person authorised in this behalf by the State Government may, if he has reasons to believe that any identification mark carried on a motor vehicle or any licence, permit, certificate of registration, certificate of insurance or other document produced to him by the driver or person in charge of a motor vehicle is a false document within the meaning of section 464 of the I.P.C., seize the mark or document and call upon the driver or owner of the vehicle to account for his possession of or the presence in the vehicle of such mark or document and further that any police officer or other person authorised in this behalf by the State Government may, if he has reasons to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it to the Court taking cognizance of the offence and the said Court shall on the first appearance of such driver before it, return the licence to him in exchange for the temporary acknowledgment given under Sub-section (3). Section 207 deals with power to detain vehicles uses without certificate of registration permit etc. It lays down that any police officer or other person authorised in this behalf by the State Government may, if he has reasons to believe that a motor vehicle has been or is being used in contravention of the provisions of section 3 or section 4 of section 39 or without the permit required by Sub-section (1) of section 66 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, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle. The proviso to section 207(1) lays down that where nay such officer or person has reasons to believe that a motor vehicle has been or it being use in contravention of section 3 or section 4 or without the permit required by Sub-section (1) or section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgement in respect thereof. Sub-section(2) of section 207 makes the provision that the owner or the person, in charge of the motor vehicle which has been seized or detained under Sub-section (1), may apply to the transport authority or any Officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority of officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.In Chapter XIV appears the hearing “Miscellaneous” and section 213 of the Chapter provides for appointment of motor vehicles officer. Sub-section (1) of he said section provide that the State Govt. may for the purpose of carrying into effect the provisions of this Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it thinks fit ad under Sub-section (3), the State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions and in particular and without prejudice to the generality of the foregoing power to prescribe the uniform to be worn by them, the authorities to which they shall be subordinate, the duties to be performed by them the powers (including the powers exercisable by police officers under this Act) to be exercised by them and the conditions governing the exercise of such powers.6. The foregoing discussion regarding statutory provision is not intended to be exhaustive. It is intended to highlight the position that the Motor Vehicles Act is a self contained Code making provisions regarding the powers to be exercised, the restriction/ regulation to be prescribed by the State Government by rules or notifications, regarding appointment of officers to exercise of such power, regarding the manner of exercise of such powers etc. Therefore, the powers to be exercised by the Officers of the Motor Vehicles Department have to be strictly in accordance with the provisions of the Motor Vehicles Act, the rules framed thereunder and the notifications issued in the manner prescribed by the statute. No power which is not prescribed in the manner provided under law is available to be exercised under the cloak of controlling the traffic or enforcing the provisions of the statute. It is to be borne in mind that under the stature the Officers of the Motor Vehicle Department are vested with drastic powers to regulate, curtail and in appropriate cases, even to prohibit movement of goods vehicles and transport vehicles. The impact of such action on free flow of commerce and free movement of the goods throughout the country cannot be over emphasised. It is therefore necessary to exercise due caution and proceed strictly in accordance with the revisions of the statute, the statutory rules and the statutory notifications while enforcing the provisions of the Act in general and in particular the drastic provisions like impounding of the vehicles and impounding of vital documents. Any arbitrary and mechanical exercise of power on the part of Officers of the Motor vehicles Department in this regard will not merely cause financial loss to the concerned party but will cause serious inconvenience to the travelling public and will affect free flow of trade and commerce. In the very nature of things, it follows that such illegal, arbitrary and mechanical exercise of power may give rise a cause of action for claim of damages against the delinquent officer concerned and the cloak of enforcement of the provisions of the statute will not be available to them in such circumstances. It is therefore desirable that responsible public officers should realise their responsibility in the matter and act strictly in accordance with law. They should clearly state in the check report the infraction/ violation of statutory provisions which they detect at the time of checking and reason why they retain the motor vehicles documents and other papers. This will enable the competent authority under the statute and the Court to properly deal with the matter in the appropriate proceeding. We hope that the superior officers of the Department who exercise control over the enforcement agency under the Motor Vehicles Act will impress upon their subordinate the duty and responsibility in the matter so that occasion for complaint of the nature raised in this writ application may be avoided in future. We further hope that the discussions and observations made in this judgment will provide a guideline for further in depth consideration of the matter at the appropriate level in the department.7. The writ application is dismissed of with the above observation. There will be no order for costs of this proceeding.A. Pasayat, J.I agree.
"1991 (2) ACC 372,"