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Gujarat High Court
Judgename :C.K.THAKKER
RAMKRISHNA BUS TRANSPORT - Appellant
Versus
STATE - Respondent
S.C.A. 2866 of 1989
Decided On : 06/30/1994
Motor Vehicles Act, 1988 - Sec. 207 - Whether authorises police officer or authorised persons to detain/seize a vehicle plying contrary to the provisions of Motor Vehicles Act - Held, yes, if the police officer or authorised person has reason to believe that offence under section 192 (1) has been or is being committed.
It is, therefore, clear that the power given to seize and detain the vehicle under Section 129-A (Section 207 of the New Act) is to be exercised by the police officer or the authorised person when he has reason to believe that an offence punishable under Section 123 (1) (Section 192 (1) of the New Act) has been or being committed. The contention that police officers or authorised persons have no power or authority to detain motor vehicle has no merit and requires to be rejected. As held by the Supreme Court the power to seize and detain a vehicle can be exercised by a Police Officer or authorised person under Section 207 of the Act if he has reason to believe that an offence punishable under Section 192 has been or is being committed. The contravention of any of the conditions of permit would amount to driving of a vehicle without permit. Since it is the case of the respondents that the petitioners are having contract carriage permits and they are plying their vehicles as stage carriage, without being armed with valid permit for such use, police officers and authorised persons can seize and detain vehicles in exercise of powers under Section 207 of the Act.
[Paras 21, 25 & 32]
Motor Vehicles Act, 1988 - Secs. 207 read with Secs. 2 (7) and 2 (40) and Sec. 192 - Contract carriage and stage carriage - Distinction - Petitioners Vehicles having obtained contract carriage permit plying as stage carriage permit - Held, breach of conditions of permit amounts to no permit - Sec. 207 is there attracted.
If a vehicle is driven in contravention of terms and conditions of permit Section 207 of the Act is attracted, Beach of condition of permit amounts to no permit at all.
[Para 29]
Interpretation of Statute - Motor Vehicles Act, 1988 - Sec. 207 - "May" used in proviso to Sec. 207(1) - Whether directory or mandatory - Held, "May" should be read as "may" and not "shall" - Proviso is directory and not mandatory - Contrary interpretation would defeat the provisions of law.
Looking to the provisions of sub-sections (1) and (2) of Section 207, read with proviso to sub-section (1) of Section 207 of the Act, there is no doubt in my mind that the intention of the legislature is well reflected by construing `may as `may which is directory, permissive and enabling and not as `shall, which, is mandatory, obligatory and absolute. A police officer or authorised person in exercise of power under Sec. 207 (1), `may seize and detain the vehicle. If the contention of the petitioner is accepted and `may in proviso to Sec. 207 (1) will be read as `shall, if such person produces a certificate of registration of the vehicle, the police officer or authorised person cannot detain and seize the vehicle and even though such person is not holding effective driving licence and under the Act, he cannot drive a vehicle in any public place, such vehicle cannot be detained and seized. In other words, a police officer or authorised officer cannot prevent such person from driving the vehicle in any public place without effective driving licence and he will have to allow such person to commit offence punishable under the Act. Such construction, in my opinion, would defeat the provisions of law and cannot be accepted.
[Para 41]
Motor Vehicles Act, 1988 - Sec. 207 - Constitution of India - Art. 14 - Whether equality clause be invoked to justify the violation of law - Held, No.
If one operator is plying his vehicles in violation of statutory provisions, other operators relying upon Article 14 of the Constitution of India cannot be allowed to commit breach of law. The court cannot countenance such plea and permit other operators also to violate law by invoking equality clause enshrined in Article 14 of the Constitution. That is not the sweep of Article 14.
[Para 51]
Motor Vehicles Act, 1988 - Sec. 207(1) and (2) - Constitution of India - Art. 226 - Discretionary power granted under section 207 (1) and (2) - Court under Art. 226 cannot direct statutory authorities to exercise discretionary power in particular manner - Appropriate relief can however, be granted if the power is misused - Judicial restraint.
The power conferred on police officers and authorised persons to detain and seize a motor vehicle is discretionary in nature. This court, in exercise of extraordinary jurisdiction under Article 226 of the Constitution cannot direct the statutory authorities to exercise their discretion in a particular manner. It would not only amount to trangressing of judicial limits but would also interfere with legislative provisions and render them nugatory. The discretion has to be exercised reasonably considering the facts and circumstances of the case on hand and no rule of universal application can be laid down. Again, if the power is abused, an appropriate action can be taken in accordance with law by the aggrieved party but in the light of specific provision in sub-section (1) of Sec. 207 read with sub-section (2) thereof, it cannot be contended that a police officer or authorised person has no power to seize and detain a vehicle or that after a vehicle is seized and detained, such officer or person will have no option but to release the vehicle under the proviso to sub- section (1) of Section 207 if certificate of registration is produced. In any case, in absence of necessary facts, relevant evidence and sufficient materials, no blanket direction can be given to the respondent authorities not to seize or detain a vehicle or to release the vehicle in case of application of proviso to Section 207(1).
[Para 57]
( 1 ) IN all these petitions, the petitioners have challenged the action of the respondent authorities of detaining and seizing Motor vehicles under Sec. 129a of the Motor Vehicles Act, 1939 (hereinafter referred to as "the Old Act") and under Sec. 207 of the Motor Vehicles act, 1988 (hereinafter referred to as "the New Act") inspite of their having All India Permits as contract carriages simply on the ground that the vehicles were not used as contract carriages. Common questions of fact and law have been raised in all petitions and it is, therefore, appropriate to decide them by a common judgment. For appreciating the controversy in question, few relevant facts of the petition first in point of time, i. e. , Special Civil Application No. 2866 of 1989 may now be stated.
( 2 ) THAT petition is filed by Ramkrishna Bus Transport and others for appropriate writ, direction and/or order under Art. 226 of the Constitution of India directing the respondents, their servants and agents including the authorised officers both of the Motor Vehicles Department and the Police department not to seize and detain the petitioners vehicles under Sec. 129a of the Motor Vehicles Act, 1939, if the vehicles are actually covered under All India Tourist Permit granted under Sec. 63 (7) of the old Act on the ground that the passengers had paid individual fare. Consequential prayers have also been made. Interim relief is also prayed restraining the respondent authorities from seizing and detaining the vehicles.
( 3 ) IT is the case of the petitioners that all the petitioners are citizens of India. They are registered owners of luxury omni buses having capacity of 35 passengers. They have obtained All India tourist Permit in accordance with law. They were plying their vehicles numbers of which have been mentioned in para 2 of the petition. It is asserted that the petitioners do not ply vehicles as "stage carriages" but the vehicles are given on hire as par terms and conditions attached to the permit and as a whole to a single party of passengers having a specific designation, without stopping for picking up or setting down passengers at places en route. In case of tour organisers, the contract is a single contract between petitioners and tour organisers. Tour organisers make a consolidated payment to the petitioners for hiring the vehicle as a whole on time or distance basis for which a single receipt is furnished to them. Such vehicle is only for travel from one point to another on the route mentioned in the contract and in the permit, without picking up or setting down passengers en route. In the course of travel all along, no individual passengers were picked up or set down. In case of contract with a party, naturally, individual passengers pay individual fare to tour leader and such leader on behalf of the group will pay the entire amount to the petitioners. In case of tour organiser also, individual passengers pay individually to the tour organiser, who in turn will pay that amount and furnish details of the list of passengers to the petitioners. According to the petitioners, there is no provision either in the Act or in the Rules which prohibits payment by passengers to the leader of the party or to the tour organiser. A list of passengers is to be carried with the vehicle. There are sufficient means and particulars to verify the correctness or otherwise of the information by the authorities. The action is strictly in accordance with the provisions of the act as also in conformity with the Bombay Motor Vehicles Rules, 1959.
( 4 ) THE petitioners have contended that power to seize and detain a public service vehicle is drastic and extraordinary power and could be granted only under the Act or Rules made thereunder. Since such provisions interfere with fundamental right of the petitioners to carry on business guaranteed by Art. 19 (l) (g) read with Art. 304 of the Constitution of India, they must be construed strictly and in favour of
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