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2001 DIGILAW 407 (ALL)

NIRMAL KUMAR DWIVEDI v. STATE OF UTTAR PRADESH

2001-04-27

VINEET SARAN

body2001
V. SARAN, J. ( 1 ) BY means of this revision Nirmal Kumar Dwivedi has challenged the order dated 14-2-2000 of the learned Judicial Magistrate (Pollution), Lucknow refusing to release his three wheeler vehicle of Vikram make registered as UP 32 T 4675. The vehicle was seized and challaned by Madiaon police as it was not fitted with a scrubber and ever since the vehicle is rotting under the open sky without use. The sole ground for rejecting the applicants application was that the Lucknow Bench of the Allahabad High Court has passed an order dated 30-3-2000 in Writ Petition No. 2102 (MB) of 1997 in which it has been directed that only the High Court may release such vehicles. This is not the only case of its kind. These days the Bench here at Lucknow is flooded with cases for the release of such vehicles. Lucknow Magistrates at large appear to be of the same view. In a large number of cases various Honble Judges of this Court has released the vehicles. ( 2 ) I have heard learned counsel for the applicant and learned State counsel. ( 3 ) COPY of the order dated 30-3-2000 in Writ Petition No. 2102 (MB) of 1997 has been placed before me by the applicant and I have also looked into the file of the above writ petition. The said writ petition was filed as a Public Interest Litigation by one Sri B. K. Singh, Advocate in person, but he has also signed on several occasions describing himself as counsel for the petitioner. In the bulky record of the writ petition, one comes across variety of orders in large number which have been passed on various counts. Every now and then many new matters are being joined and added in the writ petition which remains undisposed of since 1997. Perhaps the disposal of the writ petition may not be possible in years to come. It leaves one guessing whether even the petitioner is eager for disposal of the writ petition one way or the other. One of the orders which concerns the release of the vehicles was passed on 30-3-2000 by a Bench. The relevant portion of the order reads thus :". . . . It leaves one guessing whether even the petitioner is eager for disposal of the writ petition one way or the other. One of the orders which concerns the release of the vehicles was passed on 30-3-2000 by a Bench. The relevant portion of the order reads thus :". . . . WE direct the Assistant Regional Transport Officer and the Superintendent of Police (Traffic) that in case within fifteen days the Vikram Tempos will not be fitted with the scrubber, they would not be allowed to ply the same in the City of Lucknow and its permits will be cancelled. It would be the sole responsibility of the traffic police and its sub-ordinate to see that the Tempos whose permits are for rural areas only, should not enter into the City area, and if it enters into the City area, they would be seized by the traffic police and would not be released except by the order of this Court. " ( 4 ) IT is evident that scrubbers were not original fitment provided with these vehicles and, therefore, in the early part of its order the Bench directed that scribbers be fitted to such vehicles. The order of the Bench also makes it clear that Vikram tempos which are not fitted with scrubbers would not be allowed to ply in the city area of Lucknow. In other words, the order did not prohibit such vehicles being plied in the rural areas. ( 5 ) THE case of the applicant is that he had given an undertaking that he would ply his vehicle only in the rural areas, but even then the vehicle has not been released due to the above mentioned order dated 30-3-2000 of the High Courts order and irreparable loss was being suffered by the applicant. ( 6 ) PRIOR to the order dated 30-3-2000 of the Division Bench, the release of the vehicles was being dealt with by the concerned Magistrates, but thereafter the vehicle owners have no option but to rush to this Court for desired relief. It appears that the order of the Bench reproduced above is being viewed by Lucknow Magistrates as an order prescribing them from exercising jurisdiction vested in them by Ss. 451 to 457 of the Code of Criminal Procedure (for short, the Code ). It appears that the order of the Bench reproduced above is being viewed by Lucknow Magistrates as an order prescribing them from exercising jurisdiction vested in them by Ss. 451 to 457 of the Code of Criminal Procedure (for short, the Code ). It may be emphasised here that the legislature has taken care by enacting Chapter XXXIV (Section 451 to Section 459) of the Code to deal exhaustively with the disposal of property and even a provision for an appeal is to be found in S. 454, Cr. P. C. In my opinion the learned Magistrates have not been able to discern the implications of the order of the Bench. I am of the considered view that the above order only provides that when such a vehicle is seized by the traffic police, it would not be released except by the order of this Court. Ways of the police are well known and, therefore, the Bench thought it proper to fetter the police from making seizures and releasing such vehicles in an arbitrary manner. By no stretch of imagination it can be held that the Bench meant to repeal or suspend the provisions of Chapter XXXIV of the Code. It is no doubt true that Judges do lay down law, but while doing so they do not act in the manner as the Parliament does. Judges cannot repeal or even amend any provision of law enacted by the Parliament. Only when some law is ultra vires the Constitution, the same may be struck down. Of course, if there is any ambiguity in any enactment, the Courts may reasonably interpret the same to make it workable. At the same time by construing a law, Courts cannot put law enacted by the Parliament out of gear. Accordingly, there is no escape from conclusion that the learned Magistrates do have power to release the vehicles after considering the facts and circumstances of each case. ( 7 ) THE tiny Vikram tempos running to and fro on the streets of Lucknow are not only lifetime for the common man, but are also means of a morsel of food to the family of those who ply them. They are individuals of meagre means. They somehow manage to purchase these vehicles usually by obtaining loans from financers or Banks. They are individuals of meagre means. They somehow manage to purchase these vehicles usually by obtaining loans from financers or Banks. The moment their vehicles are seized, they are unable to repay the instalments and they are also thrown out of employment. These helpless persons join the stream of millions of unemployed countrymen and driven by hunger they may be tempted to take to crimes to fill the mouths of their children. Lying uncared for under the open sky these priceless possessions of their owners get totally rusted and reduced to junk. Many of them may not afford to come to this Court losing their vehicles for good. Even if some interim order of the Court has not been complied with, compliance can be ensured by other means and not by wrecking the owners economically leaving them to starve. There is no law; at least none has been shown to me, providing for confiscation or destruction of these vehicles for lack of scrubbers. I am of the opinion that it would be very unkind to ruin these tempo owners for thier small fault which can be cured even otherwise. I am further of the view that there is no justification for not releasing these vehicles to their owners. ( 8 ) ACCORDINGLY, this revision is allowed and it is directed that vehicle of Vikram make bearing registeration No. UP 32 T 4675 shall be released in favour of the applicant on his giving an undertaking to the learned Magistrate concerned that in case he wants to ply the vehicle within the city of Lucknow, he shall get a scrubber fitted to his vehicle within a period of ten days from the actual release of the vehicle to him. Revision allowed. .