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2013 DIGILAW 835 (PAT)

Md. Abul Hasan v. R. G. Holdings Private Limited

2013-07-16

AHSANUDDIN AMANULLAH, S.N.HUSSAIN

body2013
JUDGMENT S.N. HUSSAIN, J. 1. The first letters patent appeal has been filed on behalf of the then District Transport Officer, Purnea, whereas, the second letters patent appeal has been filed by the State of Bihar through the Secretary, Department of Transport, Government of Bihar, Patna. Both of them have been filed against the same judgment and order dated 25.03.2008 passed in C.W.J.C. No. 9073 of 2007, by which the writ petition of the writ petitioner, who is respondent no. 1 in both the aforesaid letters patent appeals, was allowed with a direction to the State to pay a sum of Rs. 50,000.00 as compensation and further liberty was granted to the writ petitioner to move the appropriate Court if he thought he was entitled to anything more. Liberty was also granted to the State to realize the said amount from the concerned officer, who was found responsible. Hence both the aforesaid letters patent appeals have been heard together and are being decided by this common judgment. 2. The claim of the appellants in both the appeals is that learned Single Judge has failed to appreciate that the official position had not been abused by the authority concerned and he had proceeded in the case merely on the basis of his genuine belief with respect to violation of the provisions of law as the vehicle was plying with invalid documents, but inspite of that the authority concerned had to face the ordeal of prosecution under section 379 of the Indian Penal Code for frivolous claim of seizure of vehicle although it was in discharge of his official duty. The conduct of the appellant of the first letters patent appeal was with bona fide intent in charging the fine and also in the matter of release of vehicle. 3. Learned counsel for the appellants submitted that the objective of sections 103 and 158 of the Act had not been appreciated by the learned Single Judge and had been wrongly applied in the facts of the present case as the object was to facilitate the owner to produce genuine document within the time frame and not to facilitate any person, who did not produce any genuine document. It was claimed that the concerned authority under the command of the District Magistrate and the Superintendent of Police, Purnea was deputed in special drive for checking of vehicles to prevent illegal plying of vehicles as the State Government was suffering huge loss of revenue. Hence when the writ petitioner did not produce the genuine documents, his vehicle was seized for breach of section 39 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act for the sake of brevity) specially when proviso to Clause 1 of section 207 of the Act did not provide seizure of document as alternative for seizure of vehicle if it related to breach of section 39 of the Act. In these circumstances, the Sub-Divisional Judicial Magistrate vide order dated 02.07.2007 himself rejected the writ petitioner’s application for release of vehicle. 4. Learned counsel for the appellants averred that the authority concerned acted in good faith in discharge of official duty and took prompt steps for verification of documents from the concerned authority by registered post and on return of the letter special messenger was deputed for the purpose and passed order of release of vehicle without fine after ascertaining the genuineness of its ownership. This was specially done because Purnea is the border district of Nepal and it is a matter of common knowledge that smuggling was prevalent in that area by vehicles with spurious documents. Hence Rule 259(5)(b) of the Bihar Motor Vehicles Rules and the obligation of the District Transport Officer to act in aid of the State Policy is obligatory and as such he could not have defied the direction of the higher authorities because he had no discretion of his own. 5. Although the impugned order of the learned Single Judge was directed towards the District Transport Officer, who is the appellant in the first letters patent appeal, but learned counsel for the State of Bihar, which is the appellant in the second letters patent appeal, had argued in full force in support of the District Transport Officer stating that the said officer was performing his duty and had not violated any rule nor did he act in a mala-fide manner and furthermore his suspicion was bona fide and his action was justified. 6. On the other hand, learned counsel for the writ petitioner, who is respondent no. 6. On the other hand, learned counsel for the writ petitioner, who is respondent no. 1 in both the letters patent appeals, vehemently opposed the contentions of learned counsel for the appellants in both the appeals and stated that the order of the learned Single Judge was well considered and there was no material to show that there existed any genuine apprehension, on the basis of which such illegal action could be taken against him. He further claimed that due to the impugned action, the writ petitioner had suffered huge loss at the hands of the authorities of the State of Bihar. 7. Considering the averments made by learned counsel for the parties and the materials on record, it appears to be undisputed fact that at the instance of the District Magistrate and the Superintendent of Police, Purnea, during the concerned period there was a special drive for checking of vehicles for preventing illegal plying of vehicles specially when the concerned area was prone to smuggling, due to which the State Government was suffering huge loss of revenue. In that special drive, the vehicle concerned of the writ petitioner was stopped and checked. 8. The specific claim of appellant-authorities is that at the time of checking, the persons in the vehicle could not produce any genuine documents and they were acting in suspicious manner and in those circumstances the vehicle was seized as there is no provision of seizure of document as alternative for seizure of vehicle if it relates to breach of section 39 of the Act. However, this fact is not contradicted by the writ petitioner by producing any evidence in that regard. Hence the documents were sent first by registered post and then by special messenger and only after ascertaining the genuineness regarding ownership, the vehicle was released. In the meantime, the Sub-Divisional Judicial Magistrate himself rejected the application of the writ petitioner for release of the vehicle in question. 9. In the aforesaid circumstances, even if the seizure and subsequent release of the vehicle was not strictly as per law, it cannot be said that the conduct of the authorities concerned was mala-fide and not in good faith. 9. In the aforesaid circumstances, even if the seizure and subsequent release of the vehicle was not strictly as per law, it cannot be said that the conduct of the authorities concerned was mala-fide and not in good faith. In these circumstances, if an act, which is not in accordance with the strict term of law, is done in good faith without any mala-fide motive, the higher authorities are justified in correcting the said act, but it does not justify inflicting huge penalty on such authority, specially when there is no material to show that he had intentionally committed any illegality with mala-fide intentions. 10. In the said circumstances, both the aforesaid letters patent appeals are allowed and the impugned order dated 25.03.2008 passed in C.W.J.C. No. 9073 of 2007 is modified only to the extent that the writ petitioner is not entitled to get compensation of Rs. 50,000.00 or any other amount payable by the State or any of its authorities including the appellant of the first letters patent appeal, nor the said authority will be liable to pay any such amount to the writ petitioner.