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2002 DIGILAW 575 (MP)

NIRJA GUPTA v. STATE OF MADHYA PRADESH

2002-06-25

RAJENDRA MENON

body2002
RAJENDRA MENON, J. ( 1 ) THE petitioner by this petition has challenged the order dated 12-6-1999 (annexure P/3) and the orders annexures P/1 and P/2, seizure memo and panchnama prepared seizing the vehicle of the petitioner and order, annexure P/10 dated 21-6-1999 passed by the Taxation Authority, Gwalior. It is the case of the petitioner that she is the owner of the Stage Carriage No. MP-6-B-0344 which has been illegally seized by the respondent No. 3 on 12-6-1999. It is also the case of the petitioner that she holds a valid permit No. 235/91 which was valid upto 4-4-2001 for the route Gwalior to Sheopur. Under the provisions of the Madhya Pradesh Motor Yan Karadhan Rules, 1991 framed under the Madhya Pradesh Motor Yan Karadhan Adhiniyam, 1991 (hereinafter referred to as Rules of 1991, a provision is made in Rule 12 for intimation for non-use of the permit. As the vehicle in question developed certain mechanical fault, on 29-5-1999, in compliance with Rule 12 of the Rules of 1991, the competent authorities were informed that the vehicle is under repair and is not being used. The petitioner has its stores at Barad. The vehicle after minor repairs at Gwalior was being carried to Barad for further repairing. It is stated that the provision of S. 66 (3) (p) of the Motor Vehicles Act read with explanation 7 of First Schedule of the Adhiniyam of 1991, enables the owner to transport the vehicle for repairs. ( 2 ) RESPONDENT 3 on 12-6-1999 seized the vehicle and prepared panchnama, annexures P/1 and P/2 respectively and took the vehicle to Police Station, Barad about 50 meters from the place of seizure. ( 3 ) IT is the case of the petitioner that the vehicle was seized when it was parked on the said of the road and there was no driver on the vehicle. When the driver came to know about it, he went to the Police Station where notice, annexure P/3 was given to him wherein it was indicated that a fine of Rs. 50,000/- under S. 16 (3) read with S. 3 of item No. iv sub-item (g) of the first Schedule of the Adhiniyam, 1991 is being imposed on the ground that the vehicle was found carrying passengers and was not having proper permit. 50,000/- under S. 16 (3) read with S. 3 of item No. iv sub-item (g) of the first Schedule of the Adhiniyam, 1991 is being imposed on the ground that the vehicle was found carrying passengers and was not having proper permit. It is stated that seizure of the vehicle was because of violation of S. 39 read with S. 192 of the Motor Vehicles Act. It is submitted that S. 39 speaks of non-registration of the vehicle. Registration certificate, annexure P/4 was produced. The other contravention was with regard to plying of the vehicle without permit and carrying passengers in it on hire or reward. It is submitted that the entire action is illegal and contrary to the provisions of law. Inviting attention to a Division Bench judgment of this Court in the case of Mahendra Arora v. The Transport Commissioner, M. P. Gwalior, AIR 1993 Madh Pra 29, it is submitted that the entire action is vitiated for non-compliance of the provisions of the rules and regulations in view of the said judgments. ( 4 ) SHRI K. N. Gupta, learned Govt. Advocate appearing for the respondents submitted that as there was violation of statutory rules and regulations contained in annexure R/2 i. e. the rules in question, penalty has been imposed for plying the vehicle with-out proper permit. It is submitted by him that as the action has been taken as per rules of 1998, the aforesaid Division Bench judgment which is of the year 1992 is not applicable in the facts and circumstances of the present case. ( 5 ) I have heard the learned counsel for the parties. ( 6 ) A perusal of Annexure P/10 dated 21-6-1999 passed by the Taxation Authority indicates that on 16-6-1999 the vehicle was seized as it was found plying without proper permit. The vehicle was seized after obtaining signatures of the driver, conductor and other witnesses, fine of Rs. 1,000/- per passenger has been imposed and accordingly, a sum of Rs. 50,000/- is being recovered. ( 7 ) THIS Court in the case of Mahendra Arora (AIR 1993 Madh Pra 29) (supra) after considering the provisions of S. 16 (3) of the Motor Vehicles Act, 1988 and the rules framed thereunder has considered the procedure to be adopted for seizure of vehicle and conditions to be specified before effecting seizure. 50,000/- is being recovered. ( 7 ) THIS Court in the case of Mahendra Arora (AIR 1993 Madh Pra 29) (supra) after considering the provisions of S. 16 (3) of the Motor Vehicles Act, 1988 and the rules framed thereunder has considered the procedure to be adopted for seizure of vehicle and conditions to be specified before effecting seizure. After considering in detail various aspects of the matter including the provisions of seizure, etc. in paragraph 29 it has been observed as under :-WE also hold that for a valid seizure for non-payment of tax payable in terms of Section 3 and Item No. IV, sub-item (g) of First Schedule of the Act, the following conditions are to be satisfied :- (a) Before seizure, the search of the vehicle is to be made in accordance with rule 16 of the Rules/niyam read with S. 100 (4), Cr. P. C. At least two independent and respectable inhabitants of the locality shall be called upon to witness the search. They shall sign the seizure memo prepared in the manner herein specified. (b) in the list of things seized prepared in accordance with S. 100 (5) Cr. P. C. not only the particulars of the vehicle and any document pertaining thereto seized during search shall be given, the particulars of passengers found travelling their total number, names and addresses shall also be given. (c) In preparing Form U" in terms of Rule 17, the number of seat found occupied by passengers transported in the vehicle shall be mentioned and tax due payable for release of the vehicle shall be reckoned at the rate of Rs. 600/- per such seats (and not for the total authorised capacity) for the period ending with the last day of the month. ( 8 ) EVEN though this said judgment was rendered in the year 1992, the procedure seizure etc. , still remains the same. The change brought about vide Annexure R/2 in the year 1998 is only with regard to the quantification of the penalty. The argument of the learned Govt. ( 8 ) EVEN though this said judgment was rendered in the year 1992, the procedure seizure etc. , still remains the same. The change brought about vide Annexure R/2 in the year 1998 is only with regard to the quantification of the penalty. The argument of the learned Govt. Advocate that after the rules of 1998 were framed vide annexure R/2, the law laid down in the case of Mahendra Arora (supra) is not applicable is misconceived annexure R/2 only provides for the rate at which penalty is to be imposed whereas the Division Bench in the aforesaid case has laid down the procedure which has to be followed for making a valid seizure. A perusal of the conditions stipulated in paragraph 29 reproduced hereinabove clearly indicates that the following conditions have to be fulfilled before seizure of the vehicle :- (1) Two independent and respectable inhabitants of the locality have to be called and they have to be made witness to the seizure. Their signature has to be attested in the seizure memo; (2) Apart from particulars of the vehicle and the documents, it should be clearly mentioned that the seizure memo should give the particulars of the passengers found travelling, that member names and addresses, the number of seats found occupied and other details. ( 9 ) A perusal of the seizure memo filed vide Annexures P/1 and P/2 in the instant case indicates that it does not comply with the mandatory requirements which have been laid down by the Division Bench in Mahendra Arora (AIR 1993 Madh Pra 29) (supra) except for mentioning passengers found travelling, the seizure memo does not indicate the particulars of the passengers who were found travelling, their names and addresses etc. Even the number of passengers found travelling is not mentioned. The total number of seats occupied by these passengers are also not mentioned. That apart particulars of the so called witnesses to the seizure memo are also not indicated except that some signature of one person in the column meant for witnesses. No particulars like his name, address etc. is indicated in Annexure P/2. As far as Annexure P/10 is concerned, in this also the signatures of two independent witnesses, their particulars etc. , are not mentioned. No particulars like his name, address etc. is indicated in Annexure P/2. As far as Annexure P/10 is concerned, in this also the signatures of two independent witnesses, their particulars etc. , are not mentioned. That being so, the seizure is in contravention of the mandatory provisions as indicated by this Court in the case of Mahendra Arora (supra ). ( 10 ) IN the order impugned Annexure P/10 dated 21-6-1999, apart from recording the submissions of the counsel, no reason has been given. The order impugned does not indicate application of mind or consideration of the submissions made by the petitioner. When a categoric statement was made that the vehicle was being taken for repairs and the permit had been surrendered, this aspect of the matter was not at all considered by the Taxation Authority while passing the order impugned Annexure P/10, dated 21-6-1999. Merely on the assumption that the vehicle has been seized and the seizure memo indicates that the passengers were travelling and the vehicle was not having proper permit, the assessment of the penalty has been imposed. The competent authority while exercising the powers under S. 16 (4) of the Adhiniyam, 1991 should have applied its mind, particularly when the Penal provision is being enforced against the owner of the vehicle. ( 11 ) TAKING into consideration the totality of the facts and circumstances of the case and on consideration of the law laid down by the Division Bench in the case of Mahendra Arora (AIR 1993 Madh Pra 29) (supra), this Court is of the considered view that the requirement of the statute and the mandate of the Division Bench have not been followed. The seizure of the vehicle is contrary to the provisions of the law and in fact the same being not in accordance with law has to be vitiated. Consequently the entire proceedings initiated against the petitioner in pursuance to the seizure memo Annexures P/1 and P/2 have also to be quashed. The impugned seizure memo Annexures P/1 and P/2 and the consequential order vide Annexure P/10 dated 21-6-1999 imposing the penalty are all quashed. The petition is accordingly allowed. ( 12 ) DURING the course of hearing, it has been indicated by the learned counsel for the petitioner that in pursuance to the interim order passed by this Court, petitioner had deposited as amount of Rs. 20,000/ -. The petition is accordingly allowed. ( 12 ) DURING the course of hearing, it has been indicated by the learned counsel for the petitioner that in pursuance to the interim order passed by this Court, petitioner had deposited as amount of Rs. 20,000/ -. In view of the fact that the petition is being allowed and the impugned orders are being quashed, the amount, if any, deposited by the petitioner in pursuance to the interim order shall be refunded. Parties to bear their own costs. Revision allowed. .