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Madhya Pradesh High Court · body

2003 DIGILAW 566 (MP)

Arun v. State of M. P.

2003-04-21

A.K.GOHIL

body2003
ORDER 1. Petitioners have filed this writ petition under Article 226 of the Constitution of India challenging the order dated 21.2.2003 (Annexure P-8B) issued by the Secretary, Department of Transport Bhopal; and the order dated 27.2.2003 (Annexure P-9) issued by the Transport Commissioner, M.P., Gwalior; and to declare them as ultra vires to the extent of operation of private contract carriages covered with All India Tourist Permits or certain specified routes; and also prayed for quashment of seizure memo dated 12.3.2003 of Transport Inspector, Flying Squad, Indore (Annexure P-4). 2. The brief facts of the case are as follows: Petitioner No.1 is the owner of Tourist Vehicle bearing registration number MP-09-S-7935 which is covered under the All India Tourist Permit valid from 1.4.2000 to 31.3.2005. The authorization is also valid till 31.3.2003. The vehicle was also having certificate of fitness. The petitioner deposited tax of Rs. 28,000/- on 28.2.2003 and token was issued on 12.3.2003 for the period from 12.3.2003 to 31.3.2003. On 12.3.2003 when the bus was going on way from Indore to Shirdi, it was checked by respondent No.5, Inspector, Flying Squad of Regional Transport Officer, Indore and it was seized and was kept in the Police Station Kishanganj, thereafter it was directed to be released but release order was not handed over till the filing of the petition. When it was seized, it was alleged in the seizure memo that the tax was not paid for the month of March. Panchnama was prepared. Bus was detained and passengers were not permitted to travel by that bus and they were put to great inconvenience and harassment. During the course of the argument, learned counsel for petitioners submitted that this action has been taken illegally against the aforesaid bus in view of the order dated 27.2.2003 (Annexure P-9) by which the Transport Commissioner has put total ban on the private bus; whereas the petitioner was having valid permit and he had already paid the tax, against which the petitioners have filed this petition challenging the action of the respondents. 3. 3. In reply respondents-State has filed reply denying the allegations and also an affidavit stating therein that the order dated 21.2.2003 (Annexure P-8B) is not the order but it is the letter addressed to the Transport Commissioner asking him to participate in the meeting which is to be held on 24.2.2003 and the order dated 27.2.2003 (Annexure P-9) was in operation from 1.3.2003 to 31.3.2003 and after 31.3.2003 the same has come to an end and the petition has become infructuous as such. As regards the seizure of bus on 12.3.2003, it is further submitted that on the next date i.e. 13.3.2003 it was ordered that the vehicle be released but the same could not be handed over to the petitioner as no one appeared either before the Regional Transport Officer or before the In-charge of Police Station Kishanganj to take back the bus. 4. The respondents No. 3 and 4 Corporation have also supported the action of the State Government. 5. I have learned counsel for the parties. 6. Shri G.M. Chaphekar, learned Senior Advocate instructed by Shri A.S. Kutumbale and Shri B.K. Rawat, for the petitioners vehemently opposed the action of the State Government and the order dated 27.2.2003 (Annexure P-9) and submitted that the same is contrary to the provisions of the Motor Vehicles Act as well as to the mandate of law. They have further submitted that even after payment of tax, the vehicle was illegally seized and respondent No. 5 In-charge Inspector, Transport Flying Squad has himself mentioned the fact of depositing the amount of tax in Panchnama (Annexure P-5) but even after the same illegally seized the bus and it was handed over to the concerned Police Station. The passengers were put to great inconvenience and harassment who were going to Shirdi from Indore on a special trip. All the 28 passengers were traveling as one party. List of the passengers was also submitted and thereafter the vehicle was not released not handed over till the petition was filed. Learned counsel for the petitioners vehemently opposed such kind of action of the State Government as well as respondent No. 5 Inspector and the authorities. All the 28 passengers were traveling as one party. List of the passengers was also submitted and thereafter the vehicle was not released not handed over till the petition was filed. Learned counsel for the petitioners vehemently opposed such kind of action of the State Government as well as respondent No. 5 Inspector and the authorities. They further submitted that the Government or the Transport Commissioner cannot issue such directions of total ban of the contract buses on road which are having All India Tourist Permit and the seizure of the vehicle is also contrary to the proviso of section 207 of the Motor Vehicles Act. It is also in violation of the provisions of the Motor Vehicles Act and fundamental rights guaranteed by the Constitution, and also the decisions of the Supreme Court as well as Division Bench of this High Court. Learned counsel for the petitioners placed reliance on the decisions in the case of State of Maharashtra and others v. Nanded-Parbhani Z.L.B.M.V. Operator Sangh, reported in (2000) 2 SCC 69 ; in the case of Nirmala Jagdishchandra Kabra v The Transport Commissioner and others reported in AIR 1997 SC 1405 ; in the cast of Nikhata Afros and others v. Union of India and others, reported in AIR 1997 MP 41 (DB), and prayed for strict directions to the respondents as per the petition. 7. In reply Shri Prakash Verma, learned Govt. Advocate for respondents-State submitted that the order dated 27.2.2003 (Annexure P-9) was issued for a temporary period and that was fully in accordance with the provisions of the Motor Vehicles Act and there was noting wrong in the said order and in the instant case at the time of checking of the bus on 12.3.2003 the vehicle was not having the token of depositing the tax and the tax was deposited subsequently. Therefore, the action taken by the respondents is perfectly legal and justified. He further submitted that the said order dated 27.2.2003 has come to an end and this petition has also become infructuous. He further submitted that the Regional Transport Officer has already directed for the release of the bus. Therefore, he prayed for the dismissal of the petition. 8. Therefore, the action taken by the respondents is perfectly legal and justified. He further submitted that the said order dated 27.2.2003 has come to an end and this petition has also become infructuous. He further submitted that the Regional Transport Officer has already directed for the release of the bus. Therefore, he prayed for the dismissal of the petition. 8. Having heard learned counsel for the parties, it is true that the order dated 27.2.2003 was only for a temporary period from 1.3.2003 to 31.3.2003 and the same has come to an end and the same is not in operation when the matter was heard Therefore, the relief of the petitioners for the quashment of the same cannot be accepted as the same is not in operation. I have perused the aforesaid order. Though the State Government has the right to check the contract carriage (All India Permit Bus) if the same is being plied contrary to the provisions of Motor Vehicles Act but from the language of the order it appears that strict directions were issued with regard to the plying of contract carriage and the intention was to put total prohibition on the specified routes. This direction of total prohibition was contrary to the provisions of the Motor Vehicles Act. This direction in the order that the vehicle be seized was also contrary to the proviso of section 207 of the Motor Vehicles Act. In the case of Nikhata Afros (supra), the Division Bench of this High Court after considering the proviso has already directed that instead of vehicle, registration certificate of the vehicle should be seized. Therefore, this direction in the order was contrary to the mandate of law. It is expected from the Officers of the State Government that in future, they will take care in issuing directions and only such directions should be issued which are clear and in conformity with the provisions of the law and rules and the direction which are contrary to the mandate of law or rules, or which violate the fundamental rights of the citizens, should not be issued Since the order (Annexure P-8B) has come to an end, therefore, I do not think that any case is made out for its quashment. 9. So far as the case in hand is concerned respondent No. 5 in its seizure-memo (Annexure P-5) himself has mentioned the fact of depositing tax. 9. So far as the case in hand is concerned respondent No. 5 in its seizure-memo (Annexure P-5) himself has mentioned the fact of depositing tax. He has also mentioned the amount of Rs. 28,000/- as also receipt number and its date, though it is wrong, but when he has mentioned this fact in the seizure memo it means that a the time of checking of the vehicle, the receipt and token were available in the bus even then he seized the vehicle on the ground that the tax was not paid. In Annexure R-I the Regional Transport Officer has himself mentioned this fact that on enquiry it was found that the tax for the month was paid. Though it was directed that the vehicle be released but this direction was not properly and timely communicated to the petitioners, nor bus was released. Admittedly the vehicle remained in the custody of the Police from 13.3.2003 till the end of the month. From this fact it is clear that respondent No.5 has not acted legally and properly and ha illegally seized the bus. Therefore, it is directed that the amount of tax for the month of March i.e. Rs. 28,000/- paid by the petitioners be refunded back to them as they could not ply the vehicle even after payment of tax. Cost of Rs. 1,000/- is also imposed on respondent No.5 for his illegal action in the matter. This amount of cost of Rs. 1,000/- shall be borne by respondent No.5 personally and shall not be taxed to the Government fund for his illegal action looking to the great inconvenience hardship and harassment to the passenger who were travelling in the bus. 10. Consequently this petition is partly allowed to the extent as indicated above with no order as to costs.