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Madhya Pradesh High Court · body

2011 DIGILAW 729 (MP)

Shailendra Kumar Motwani v. State of M. P.

2011-07-06

R.S.JHA

body2011
ORDER R.S. Jha, J. 1. The petitioner has filed this petition being aggrieved by order dated 9.6.2011 passed by the Regional Transport Inspector, Bhopal and the order dated 28.6.2011 passed by the Chief Judicial Magistrate, Bhopal. 2. The brief facts, leading to the filing of the present petition, are that the petitioner, who is having an All India Permit, was required to ply his bus No.UP 75 M 2246 from Kanpurto Pachmari between 5.6.2011 and 10.6.2011. On 9.6.2011 when the vehicle was passing from Gandhi Nagar, Bhopal the same was stopped, checked and thereafter it was seized by the authorities vide seizure memorandum dated 9.6.2011 on the ground that it was plying without permit and the certificate of tax payment as required under Section 16(3) of the M.P. Motor Yan Karadhan Adhiniyam, 1991 (hereinafter referred to as 'the Adhiniyam of 1991') was not shown to the authority in spite of demand. The petitioner thereafter filed an application under section 457 of the Code of Criminal Procedure, 1973 for release of the vehicle before the Chief Juducial Magistrate, Bhopal but the same has been rejected by the impugned order dated 28.6.2011 on the ground that the matter was under consideration in accordance with the Adhiniyam of 1991 and under such circumstances the Court has no jurisdiction to release the vehicle. The petitioner, being aggrieved, has filed the present petition. 3. Shri Sudesh Verma, the learned Govt. Advocate, appearing on behalf of the respondent/State on advance copy, submits that the petition filed by the petitioner should not be entertained in view of the alternative remedy available to the petitioner under the provisions of the Adhiniyam of 1991. 4. The petitioner, being aggrieved, has filed the present petition. 3. Shri Sudesh Verma, the learned Govt. Advocate, appearing on behalf of the respondent/State on advance copy, submits that the petition filed by the petitioner should not be entertained in view of the alternative remedy available to the petitioner under the provisions of the Adhiniyam of 1991. 4. It i s vehemently contended by the learned counsel for the petitioner that the petitioner was plying his vehicle under an All India Permit and in such circumstances the authorities could not have seized the vehicle on finding any violation in the permit conditions specifically in view of the decision of the Supreme Court rendered in the case of State of Maharashtra and others vs. Naned-Parbhani Z.L.B. M. V Operators Sangh, 2000 (2) T.A.C 608 (SC) and the decision of this Court in Nikhata Afros and others vs. Union of India and others, AIR 1997 M.P. 41 , wherein it has been held that the appropriate authority should seize the registration certificate instead of detaining the vehicle as provided by section 207(1) of the Motor Vehicle Act, 1988. It is stated that against the order passed by the authority the petitioner had approached the Chief Judicial Magistrate, Bhopal for release of his vehicle but the same has been rejected on the ground that it is not maintainable and, therefore, he has no other remedy under any provision of law except to approach this Court under Articles 226 and 227 of the Constitution of India. 5. From a perusal of the impugned seizure vide seizure memorandum, Annexure P-9, dated 9.6.2011 filed by the petitioner along with the petition it is clear that the petitioner's vehicle has been seized as the same was plying without permit and the certificate envisaging payment of motor vehicle tax was not produced. The seizure memo further indicates that the vehicle has been seized in exercise of powers under section 16(3) of the Adhiniyam of 1991. 6. The seizure memo further indicates that the vehicle has been seized in exercise of powers under section 16(3) of the Adhiniyam of 1991. 6. The provisions of Section 16(3) and 16(4) of the Adhiniyam of 1991 are in the following terms:- (3) The Taxation Authority or any officer authorised by the State Government in this behalf may if he has reason to believe that a motor vehicle has been or is being used without payment of tax, penalty or interest due, seize and detain such motor vehicle and for this purpose take or cause to be taken any step as may be considered proper for the temporary safe custody of such motor vehicle and for the realisation of tax due. (4) Where a motor vehicle has been seized and detained under sub-section (3), the owner or the person in charge of such vehicle may apply to the taxation Authority or any Officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and if such authority or officer after verification of such documents, is satisfied that no amount of tax is due in respect of that vehicle, may be an order in writing release such vehicle. 7. Section 20 of the Adhiniyam of 1991 provides for the remedy of an appeal to a person aggrieved by the seizure of a motor vehicle under section 16 of the Ahiniyam of 1991 and Section 20-A thereof provides for appeal against an order of confiscation. 8. As is evident from a perusal of the aforesaid provisions of law, the taxation authority or the authorized officer has the power to seize and detain a motor vehicle in case where he has reason to believe that it is being used without payment of tax, penalty or interest due and that on such seizure the owner or person in charge of the vehicle is required to and has the remedy to apply to the taxing authority or the officer authorized in this behalf along with all relevant documents for the release of the vehicle and that the authority concerned, if satisfied' on verification of such documents that no amount of tax is due, may by an order in writing release such vehicle. The provisions of Section 20(b) of the Adhiniyam of 1991 also makes it clear that in case any adverse orders are passed against the owner of the vehicle under section 16 of the Adhiniyam of 1991, he has the remedy of filing an appeal against the seizure of the motor vehicle. 9. In the instant case the authority, in exercise of powers under section 16(3) of the Adhiniyam of 1991, has seized the vehicle of the petitioner and in such circumstances the appropriate remedy of the petitioner, as provided under section 16(4) of the Adhiniyam of 1991, was to apply before the authority itself along with all relevant documents for release of his vehicle. Admittedly the petitioner, instead of doing so, filed an application under section 457 of the Code of Criminal Procedure before the Chief Judicial Magistrate, Bhopal who has rightly rejected the same on account of the fact that the matter had been seized by the competent authority under the provisions of the Adhiniyam of 1991, in view of the ouster clause contained in Section 16(5) thereof. It is an admitted fact that the petitioner instead of filing an application for release of the vehicle, under Section 16(4) of the Adhiniyam of 1991, has directly approached this Court by filing the present petition. 10. It is also apparent that as the petitioner's vehicle has been seized in exercise of powers under section 16(3) of the Adhiniyam of 1991 and not under the provisions of Section 207(1) of the Motor Vehicle Act, 1988, which Adhiniyam statutorily prescribes the powers, procedure as well as the remedy regarding seizure of vehicles and, therefore, the judgments relied upon by the petitioner, which relate to Section 207 of the Motor Vehicle Act, 1988, have no applicability to the present case and in such circumstances this Court in exercise of powers under Articles 226 and 227 of the Constitution of India cannot be persuaded to hold that the authority had no power to seize the vehicle or to release the vehicle under Section 16 of the Adhiniyam of 1991 as any writ or direction to that effect would render the statutory powers and procedure, conferred on the authority and prescribed under section 16 of the Adhiniyam of 1991, nugatory and superfluous. 11. 11. In the instant case, by seizing the vehicle and drawing up the seizure memo, the proceedings as required by Section 16 (3) of the Adhiniyam of 1991 have been initiated against the petitioner and, therefore, the appropriate remedy of the petitioner is to approach the authority concerned by filing ah application along with all relevant documents to satisfy them that he has not violated any provisions of law and he cannot be permitted to bypass the statutory procedure and directly approached this Court under Article 226 and 227 of the Constitution of India without even filing any application for release under Section 16(4) of the Adhiniyam of 1991. I am persuaded to say so as what is the amount of tax to be paid and whether the requisite amount of tax has been paid or not or whether the tax paid is less than the tax prescribed or as to whether the petitioner has any liability to pay tax, penalty, interest, etc. are all disputed questions of fact which have to be looked into and decided by the authority under section 16(4) of the Adhiniyam of 1991 and cannot be adjudicated upon by this Court in exercise of its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. It is for this very purpose that this alternative efficacious statutory remedy has been provided under the provisions of Sections 16(3) and 16(4) of the Adhiniyam of 1991 and thereafter under the provisions of Section 20 of the Adhiniyam of 1991 by way of an appeal. 12. Similar view has been taken by this Court in W.P No. 5843/2009 (Khwaja Mohd. Iqbal vs. State of M.R And Others) decided on 22.6.2009 wherein the same counsel had appeared for the petitioner therein. 13. As the petitioner has the aforesaid alternative efficacious statutory remedy, the objection as to entertaining the present petition at this stage, raised by the learned Govt. Advocate, is sustained and the petition filed by the petitioner is disposed of with liberty to the petitioner to approach the concerned authority under the provisions of Section 16 of the Adhiniyam of 1991 by applying for release of the vehicle seized by them in accordance with law. Advocate, is sustained and the petition filed by the petitioner is disposed of with liberty to the petitioner to approach the concerned authority under the provisions of Section 16 of the Adhiniyam of 1991 by applying for release of the vehicle seized by them in accordance with law. It is further observed that in case the petitioner files such an application for release before the concerned authority within a week from the date of obtaining a certified copy of the order passed today, the concerned authority shall consider the same and pass reasoned orders thereon after giving due opportunity of hearing to the petitioner expeditiously in accordance with law preferably within a period of two weeks thereafter. 14. It needs no emphasis to state that the petitioner, if aggrieved, would have the right to assail the order passed by the authority by filing an appeal under section 20 of the Adhiniyam of 1991. 15. With the aforesaid liberty and observations, the petition filed by the petitioner stands disposed of. 16. C.C as per rules.