HARISHBHAI LAXMANBHAI PATEL v. STATE — 1982 DIGILAW 103 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) IN this petition under Article 226 of the Constitution the petitioner challenges the action of respondent No. 3 police sub-inspector Jawahar Chowk Chowky Sabarmati seizing the petitioner s autorickshaw No. G. R. T. 77 on the allegation that at the time of its seizure the said rickshaw was driven rashly and negligently and contrary to the provisions of the Motor Vehicles Act 1939 and the rules framed thereunder. The petitioner contends that the third respondent has no power to seize the said rickshaw especially on the ground that at the relevant time more than permissible number of passengers were being carried in the said rickshaw. ( 2 ) IN order to appreciate the grievance of the petitioner in its full perspective it would be desirable to quickly glance through a few relevant facts leading to this petition. The petitioner owns an autorickshaw No. G. R. T. 77. It is an owner-driven rickshaw and the petitioner himself plies the same. The petitioner is having a regular driving licence and a permit is given by the competent authority enabling the petitioner to ply the said rickshaw in the city of Ahmedabad as a passenger-rickshaw. The number of the said permit is 27598 and it is valid upto 1-1-1985. The case of the petitioner is that on 3-6-1982 at about 10. 45 p. m. the petitioner was driving his rickshaw near Sabarmati Toll Naka. That he had started from S. T. stand near the Sabarmati Toll Naka and was proceeding towards Chandkheda. At that time there were five passengers in his rickshaw. Out of these five passengers two were sick and were suffering from sun-stroke and vomitting. All these five passengers were in one group and they requested him to take them in one rickshaw and to take them to their residence at Chandkheda. The case of the petitioners is that looking to the entreaty made by the passengers and looking to the urgency of the matter as two passengers were sick he allowed all the passengers to be carried in his rickshaw and he drove on the vehicle. The case of the petitioners is that looking to the entreaty made by the passengers and looking to the urgency of the matter as two passengers were sick he allowed all the passengers to be carried in his rickshaw and he drove on the vehicle. After he started his rickshaw and drove it for some time respondent No. 3 followed the rickshaw on his scooter and intercepted the petitioner near Janta Nagar opposite O. N. G. C. office and ordered the petitioner to take the rickshaw to Jawahar Chowk Chowky alongwith the passengers. The petitioner complied with the said order and carried the rickshaw alongwith the passengers to the police chowky. At the police chowky relatives of the passengers came to request respondent No. 3 to release them all but respondent No. 3 arrested in all 8 persons alongwith the petitioners and put them in lock-up and the rickshaw was also seized and was taken in the police custody. Respondent No. 3 lodged a complaint against all the persons under secs. 279 and 114 of the I. P. Code read with secs. 112 and 116 of the Motor Vehicles Act. That after detention of three hours all the passengers and the Petitioner were released on bail but the rickshaw was not given back to the petitioner and it was kept in custody of respondent No. 3 unlawfully and unauthorisedly. In the aforesaid circumstances the petitioner has filed the present petition in this court. ( 3 ) ON 15-6-1982 this petition was admitted to final hearing by me and I granted ad-interim mandatory order directing release of the rickshaw subject to the condition that the petitioner should furnish solvent security in the sum of Rs. 5 0 to the satisfaction of respondent No. 2 Commissioner of Police and on furnishing such security the rickshaw in question was to be handed over to the petitioner by way of interim arrangement. The rickshaw is accordingly handed over to the petitioner. The petition has reached final hearing before me today. ( 4 ) MR. Patel learned Advocate for the petitioner submitted that the action of respondent No. 3 in seizing the rickshaw in question is ex-facie unauthorised illegal and without jurisdiction and consequently this court may grant necessary declaration to that effect and that it may be held that for the offences under secs. 279 and 114 of the 1. P. Code and secs. Patel learned Advocate for the petitioner submitted that the action of respondent No. 3 in seizing the rickshaw in question is ex-facie unauthorised illegal and without jurisdiction and consequently this court may grant necessary declaration to that effect and that it may be held that for the offences under secs. 279 and 114 of the 1. P. Code and secs. 112 and 116 of the Motor Vehicles Act alleged to have been committed by the petitioner respondent No. 3 could not have seized the rickshaw and his action was totally ultra vires his powers. ( 5 ) MR. Bhairaviya learned Advocate for the respondent on the other hand contended that the action of respondent No. 3 in seizing the rickshaw in the question was not unauthorised but it was backed up by statutory power available to respondent No. 3 under the provisions of sec. 129-A of the Motor Vehicles Act. It is therefore necessary to examine the aforesaid short question as to whether under the provisions of sec. 129-A of the Motor Vehicles Act the third respondent has any power or authority to seize the rickshaw with respect to which the aforesaid alleged offences are said to have been committed by the driver. Sec. 129-A of the Act requires to be reproduced at this stage in extenso:"any police officer authorised in this behalf or other person authorised in this behalf by the State Government may if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of sec. 22 or without the permit required by sub-sec. (1) of sec. 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 seize and detain the vehicle and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used without the permit required by sub-sec. (1) of sec. 42 he may instead of seizing the vehicle. (1) of sec. 42 he may instead of seizing the vehicle. seize the certificate of registration of the vehicle and shall issue an acknowledgement in receipt thereof; Provided further that where a motor vehicle has been seized and detained under this section for contravention of the provisions of sec. 22 such vehicle shall not be released to the owner unless and until he produces a valid certificate of registration under this Act in respect of that vehicle". A mere look at the aforesaid provisions shows that the duly authorised police officer can seize a motor vehicles in three contingencies; (i) if he has reason to believe that the concerned vehicle has been or is being used in contravention of the provisions of sec. 22 of the Act; (ii) or that it is being used without the permit required by sub-sec. (1) of sec. 42 of the Act and (iii) or it is being used 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. This section also indicates that even when in the aforesaid three contingencies the concerned vehicle is seized it is only for a temporary period wherein temporary safe custody has to be provided for by the seizing authority. The first proviso gives an alternative power to the seizing authority in case when he has reason to believe that the concerned vehicle has been or is being used without permit as required by sub-sec. (1) of sec. 42. In such a case instead of seizing the vehicle he may seize the certificate of registration while the second proviso takes care of a contingency in which the concerned vehicle is seized by the officer having reason to believe that the vehicle has been used in contravention of the provision of sec. 22 Thus these two provisos have nothing to do with the contingency in which the concerned vehicle is seized on the ground that it is used in contravention of any of the conditions of the permit relating to the route or the area for which or the purpose for which the vehicle may be used. So far as the facts of the present case are concerned the question regarding contravention of provisions of sec. 22 and/or the question of plying the vehicle without a permit under sub-sec. So far as the facts of the present case are concerned the question regarding contravention of provisions of sec. 22 and/or the question of plying the vehicle without a permit under sub-sec. (1) of sec. 42 do not arise for consideration. ( 6 ) MT. Bhairaviya for the respondents submitted that the action of seizure of the vehicle for temporary safe custody was taken by respondent No. 3 as he had reason to believe that the vehicle in question was used in contravention of the conditions of the permit relating to the route on which or the area in which or the purpose for which the vehicle could be used under the permit and that it was not the case of the respondents that the petitioner had committed breach of the provisions of sec. 22 or that he had plied the vehicle without having a valid permit as required by sec. 42 (1 ). It is obvious that contravention of the provisions of sec. 22 can arise in only those cases where the concerned vehicle is driven without the vehicle being registered. In the present case the vehicle was already registered and was hearing registration No. G. R. T. 77 at the relevant time. Thus the question of contravention of provisions of sec. 22 was out of picture. Similarly there was no question of violation of the provisions of sec. 42 (1) which lays down that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods save in accordance with the conditions of a permit granted or countersigned by 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. It is not the case of any one that at the relevant time the petitioner had plied the rickshaw without having valid permit issued under sec. 42 (1 ). Mr. Bhairaviya therefore rightly concentrated on the third contingency as contemplated by sec. 129 A of the Act which according to him clothed the third respondent with ample power to seize the rickshaw in question. In trying to refute the aforesaid contention of Mr. Bhairaviya Mr. 42 (1 ). Mr. Bhairaviya therefore rightly concentrated on the third contingency as contemplated by sec. 129 A of the Act which according to him clothed the third respondent with ample power to seize the rickshaw in question. In trying to refute the aforesaid contention of Mr. Bhairaviya Mr. Patel for the petitioner submitted that the main grievance against the petitioner was that he had driven the rickshaw rashly and negligently at the relevant time by over-loading the rickshaw in as much as he had carried five passengers though permissible limit of the passengers was only three. Mr. Patel submitted that for the alleged action on the part of the petitioner a criminal complaint is already filed but sec. 129 A does not empower respondent No. 3 to seize the rickshaw on the allegation that he had reason to believe that the petitioner had carried more than permissible number of passengers viz. three in the present case. That overloading of rickshaw contrary to the permissible limit of passengers as contemplated by the permit would not fall within the provisions of sec. 129 A. ( 7 ) SO far as the aforesaid contention of Mr. Patel is concerned it appears From a mere look at the permit issued to the petitioner with respect to the vehicle in question and which is annexed as annexure A to the petition that as per condition No. 5 maximum number of passengers which can be carried in the vehicle would be three passengers plus driver-in all four persons. It is therefore obvious that the petitioner at the time of seizure of the rickshaw is alleged to have committed breach of condition No. 5 of the permit meaning thereby that he had overloaded the rickshaw beyond the permissible limit. ( 8 ) IN the light of the aforesaid factual position a moot question arises as to whether the third respondent was entitled to invoke his power of seizure under sec. 129 A of the Act. As already seen above the third contingency in which the police officer duly authorised can seize a vehicle is the contingency in which the concerned police officer has reason to believe that any breach is committed with respect to any condition of the permit relating to the route on which or the area in which or the purpose for which the vehicle may be used. Breach of condition No. 5 of the permit allowing only three passengers to be carried in a rickshaw in addition to the driver is not a breach with respect to any condition of the permit relating to the route on which or the area in which or the purpose for which the vehicle may be used. The condition of the permit regarding route of operation or area of operation of the concerned vehicle is found provided in condition No. 6 of the permit which provides for route or area for which the permit is valid; while the purpose for which the vehicle may be used is laid down by condition No. 11 of the permit which states that this permit does not entitled the holder to use vehicle herein described as a stage carriage or as a goods vehicle for hire. It is therefore obvious that the third respondent could have validly exercised the power of seizure of the vehicle if he had reason to believe that either condition No. 6 or condition No. 11 was committed breach of by the petitioner at the relevant time. Condition No. 5 permitting maximum of passengers to be carried in the vehicle is not a condition a breach whereof is contemplated by any of the provisions of sec. 129 A which can enable the police officer to seize the vehicle. It must therefore be held that merely on account of the breach of condition permitting maximum number of passengers to be carried in a vehicle the third respondent had no power to seize the vehicle with respect to the use of which the said condition was alleged to have been violated by its driver. Mr. Patel is therefore right when he contends that even assuming that the petitioner had committed breach of condition No. 5 of the permit and had exceeded the number of passengers permitted to be carried in the vehicle the third respondent only on that count had no power or authority to seize the vehicle. He could at the highest proceeded against the petitioner under the provisions of the Motor Vehicles Act by taking suitable action against him and which he had already done by registering offences under secs. He could at the highest proceeded against the petitioner under the provisions of the Motor Vehicles Act by taking suitable action against him and which he had already done by registering offences under secs. 112 and 116 of the said Act which proceedings of course will have to be carried to their logical end and the petitioner will be answerable to meet the charges levelled against him on that count. But all the same on this allegation the third respondent had no jurisdiction or power to seize the rickshaw. ( 9 ) MR. Bhairaviya then alternatively submitted that even assuming that the third respondent had no power to seize the rickshaw on account of the breach of condition No. 5 of permit which called upon the petitioner to carry only three bona fide passengers in his rickshaw and he had overloaded the rickshaw at the relevant time even then the power of seizure can flow under sec. 129 A on the ground that the petitioner had committed breach of condition No. 6 regarding the route and area for which the permit is valid and if it is shown that the vehicle in question can be plied only within the city limits of Ahmedabad in the light of the relevant condition of the permit as the petitioner had admittedly taken the rickshaw outside the city limits of Ahmedabad and was proceeding to Chandkheda beyond the city limits at the relevant time when his rickshaw was seized it can be said that the third respondent was entitled to seize the rickshaw on the ground that the petitioner contravened the condition of the permit relating to the route on which and the area in which the vehicle in question can be used under the permit. Now it is an admitted fact that the vehicle was seized while it was outside Ahmedabad Municipal limits and was proceeding to wards Chandkheda. Thus at the relevant time the vehicle was being used beyond the municipal limits of Ahmedabad City. The question is whether the said fact can amount to any contravention of the condition of the permit with respect to route or area for which the permit was granted. Mr. Bhairaviya placed strong reliance on the averments in para 2 of the petition wherein it is stated that the petitioner was having valid permit issued by the competent authority bearing No. 27598 for the city Ahmedabad. Mr. Bhairaviya placed strong reliance on the averments in para 2 of the petition wherein it is stated that the petitioner was having valid permit issued by the competent authority bearing No. 27598 for the city Ahmedabad. Mr. Bhairaviya also invited my attention to a zerox copy of the permit in form P. CO. P. part A annexure A to the petition and part I of the permit at annexure B to the petition. A look at the zerox copies shows that so far as condition No. 6 is concerned the blank column against the said condition seems to have been filled in by a rubber-stamp dated 16-7-1977 and column No. 7 of the said permit shows that the permit is valid upto 1-1-1985 from 2-1-1982. Thus on the date of the incident the permit was operative. So far as condition No. 6 of the permit is concerned the zerox copy of the permit annexed to the petition did not clearly bring out the nature and extent of the rubber stamp and the recitals contained in the said rubber stamp I therefore called upon the learned Advocate for the petitioner to produce the original permit before me. Mr. Patel for the petitioner therefore produced before me the original permit No. 27598 granted by the Regional Transport officer Ahmedabad with respect to the vehicle in question. The original permit shows that condition No. 6 with respect to the route and area for which the permit is valid is comprehensive enough to include not only the city of Ahmedabad but also the adjoining districts of Ahmedabad (rural) Gandhinagar Mehsana Banaskantha and Sabarkantha. The original rubber stamp affixed against the blank column pertaining to condition No. 6 reads as under :- Validity extended to districts of Ahmedabad (rural) Gandhinagar Mehsana Banaskantha and Sabarkantha. Mr. Bhairaviya also saw the original permit and the rubber stamp endorsement against condition No. 6 and he fairly stated that in view of this rubber stamp the petitioner is entitled to ply his rickshaw not only within the Ahmedabad city but can also validly ply the same in the adjoining districts as mentioned in the rubber stamp endorsement and that the place at which he was intercepted would certainly be covered by the aforesaid endorsement. It is therefore obvious that the petitioner had not committed breach of condition No. 6 regarding the route and the area for which the permit is valid when he was intercepted while proceeding from Sabarmati S. T. stand towards Chandkheda. Consequently the petitioner had not committed breach of the above condition No. 6 regarding the area and the route. It is not the case of respondent No. 3 that the petitioner had committed breach of condition No. 11 regarding the purpose for which the vehicle was permitted to be used. It is obvious that the rickshaw in question was being used as a passenger rickshaw and was not being used as Stage carriage or goods vehicle for hire at the relevant time. Hence there was no violation with respect to condition No. 11. Consequently respondent No. 3 had no power or authority to seize the rickshaw in question as none of the contingencies contemplated by sec. 129a of the Act had occurred in the facts of the present case. It must therefore. beheld that respondent No. 3 had no power or authority to seize the petitioners rickshaw on 9-6-1982 under sec. 129a of the M. V. Act and if it was found by respondent No. 3 that the petitioner had committed offences punishable under secs. 279 and 114 I. P. Code read with sec. 112 and 116 of the Motor Vehicles Act the third respondent can take legal action against the petitioner by registering necessary complaint and which he has promptly done. But all the same he could not have seized the rickshaw on the basis of the alleged offences said to have been committed by the petitioner on the day in question. It must therefore be declared that the third respondent was not authorised to seize the petitioners rickshaw and his action was illegal and ultra vires. But save and except giving the aforesaid declaration no further relief need be given to the petitioner as the rickshaw in question is already restored in possession of the petitioner by an interim order granted by me on 15 In this connection it has got to be observed however that the security of Rs. 5 0 furnished by the petitioner will now stand discharged as it is held that the third respondent had no power or authority to seize the said rickshaw on the facts of the present case. 5 0 furnished by the petitioner will now stand discharged as it is held that the third respondent had no power or authority to seize the said rickshaw on the facts of the present case. Rule is accordingly made absolute to the aforesaid extent and subject to the aforesaid directions with no order as to costs. Petition allowed. .