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2014 DIGILAW 32 (ORI)

Anjana Babulal Darabad v. Commissioner

2014-01-15

B.R.SARANGI

body2014
Judgment Dr. B.R. Sarangi, J. 1. In the above batch of writ petitions, the petitioners have challenged the Vehicle Checking Reports issued by the authorities under Motor Vehicles Act and the rules framed thereunder. Since common questions of facts and law are involved in these writ petitions, they have heard together and are disposed of by this common order. The fact leading to issuance of Vehicle Checking Reports against the owner/driver/conductor is that they have violated the conditions of Motor Vehicles Act, 1988 and Rules framed thereunder, in that there was want of Taxation, Permit, Fitness Certificate, Registration Certificate, Certificate from the Pollution Control Board, over-loading, unauthorized persons driving the vehicle, driving vehicles in contravention of Sections 3 or 4 of the Motor Vehicles Act, driving at excessive speed and driving by a drunken person or by a person under the influence of drugs. It is appropriate to mention here that for contravention of provisions of the M.V. Act and Rules framed there under, penalty has been prescribed under Chapter-XIII of the M.V. Act and procedure has also been envisaged under the said Act to work out its remedy. But instead of complying the same, the owners/drivers/conductors have straightaway approached this Court invoking the extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India without availing the statutory remedies available under the said Act. 2. Learned counsel appearing for the petitioners in these writ petitions state that by approaching this Court they have got efficacious remedy. Therefore, by-passing forum available under the provision of M.V. Act and Rules framed thereunder, they have invoked the extraordinary jurisdiction of this Court under Articles 226 and 227 of Constitution of India. It is further stated that the transport authorities having not acted in consonance with the provisions of law, finding no other way, they have approached this Court. In support of such contention, they have placed reliance on the judgment of the apex Court in P. Ratnakar Rao and others v. Government of Andhra Pradesh and others, AIR 1996 SC 2523 and also a unreported order of this Court in Shiv Shankar Agrawal v. Regional Transport Officer and others passed in O.J.C. 485 of 1995 disposed of on 16.03.1995. 3. Mr. 3. Mr. J. Pal, learned standing counsel appearing for the Transport Department has vehemently objected to the contention raised by the learned counsel for the petitioners and stated that when a complete mechanism is available under the statute, namely, Motor. Vehicles Act and Rules framed thereunder, there is no valid or justifiable reason available to the petitioners for invoking the extraordinary jurisdiction of this Court by filing these writ petitions. Apart from the same, he has stated that to streamline the procedure and deviate the difficulties, Government has considered the situation and has issued a circular bearing No. 3 of 2018 dated 9.12.2013 imparting certain instruction/proposing the steps to be taken by the Motor Vehicle Department Officers in consonance with the provisions of law proposed to take steps for which it can benefit. Apart from that in exercise of power conferred under section 200 of M.V. Act, Government in the Transport Department has issued a Notification published in the official Gazette bearing No. 1151 dated 29.09.1995, empowering various authorities to compound the offences, in the event, the aggrieved persons are not willing to compound the offences, he can then and there make an application to send the record to the court. Therefore, he argued that the writ petitions should be dismissed as alternative remedy is available under the statute and the petitioners must avail the benefit of the circular issued by the Transport Department for their future cause of action. 4. Having regard to the above fact and circumstances and the contention raised by the learned counsel for the parties, the following questions arise for consideration as to whether: 1) the writ petition is maintainable in view of availability of alternative remedy under the statute? 2) the mechanism available under the statute is sufficient for just and proper adjudication of the case under the Motor Vehicles Act and Rules framed thereunder? 5. On perusal of the provisions contained in the M.V. Act and Rules framed thereunder, it is made clear that the M.V. Act is a self contained code and it provides for appealable/revisable forum for which due alternative remedy is available under the statute. Therefore, no writ petitions should have been entertained by this Court. 5. On perusal of the provisions contained in the M.V. Act and Rules framed thereunder, it is made clear that the M.V. Act is a self contained code and it provides for appealable/revisable forum for which due alternative remedy is available under the statute. Therefore, no writ petitions should have been entertained by this Court. The Constitution Bench of the apex Court in G. Veerappa Pillai v. Raman & Raman Ltd., 1952 SC 192 have already decided the point involved in the writ petitions which has been followed and reiterated in subsequent judgments in Assistant Collector of Central Excise v. Dunlop India Ltd., AIR 1985 SC 330 , Ramendra Kishore Biswas v. State of Tripura, 1999 SC 294 and in Shivgovinda Anna Patil v. State of Maharashtra, AIR 1999 SC 2281 . Apart from the same, time and again apex Court has held that a party must exhaust the statutory remedies before resorting to writ jurisdiction and the same has been decided in C.A. Abahim v. I.T.O., AIR 1961 SC 609 and in H.B. Gandhi v. M/s. Gopinath & Sons, 1992 (Suppl.) 2 SCC 312. 6. So far as entertaining the writ petitions is concerned, it should be within a limited compass, to mean, the writ court can entertain the petition provided the order is alleged to be without jurisdiction or has been passed in flagrant violation of the principles of natural justice, or the provisions of the Act/Rules are under challenge. This view has been taken by the Constitution Bench of the apex Court in K.S. Venkataraman & Co. v. State of Madras, AIR 1966 SC 1089 . The apex Court in Sheela Devi v. Jaspal Singh, AIR 1999 SC 2859 has categorically held that if the statute itself provides for a remedy of revision, writ jurisdiction cannot be invoked. 7. Considering the above principles and the law laid down by the apex Court and looking into the provisions contained in the M.V. Act and Rules framed thereunder, this court is of the opinion that if adequate remedies are available under the statute the petitioners have approached this Court invoking extraordinary jurisdiction without availing the same, the writ petitions will not be maintainable. Entertaining the writ petitions, would otherwise amount to permit the petitioners to by-pass the remedies available under the statute, which is not in conformity with the law. Entertaining the writ petitions, would otherwise amount to permit the petitioners to by-pass the remedies available under the statute, which is not in conformity with the law. Accordingly the petitioners should not be encouraged to avail the extraordinary jurisdiction of this Court by-passing the statutory remedy available under the provisions contained in the Orissa Motor Vehicles Act and Rules framed thereunder. 8. On perusal of the provisions contained in the M.V. Act, it is found that Chapter-XIII of M.V. Act, 1988 prescribes offences, penalties and procedure. In the said chapter, it is provided that for some of the offences, only fine can be imposed. For committing certain offences, the offender can be punished by imprisonment ranging from three months to three years. Vehicle Checking Reports are issued for offences which are punishable under different sections for combination of offences, which include fine and imprisonment which may extend from six months to a maximum of three years depending upon the nature of offences. 9. As it reveals from the writ petitions, some of the vehicle checking reports which have been challenged are of beyond maximum period of three years as prescribed under the Act and some of them are within three years. But without availing the alternative remedy under the statute, they have approached this Court invoking the extraordinary jurisdiction of this Court ventilating their grievance. 10. Let us now consider the provisions contained under Section 207 of M.V. Act, which read as under: Section 207. Power to detain vehicles used without certificate of registration permit, etc. But without availing the alternative remedy under the statute, they have approached this Court invoking the extraordinary jurisdiction of this Court ventilating their grievance. 10. Let us now consider the provisions contained under Section 207 of M.V. Act, which read as under: Section 207. Power to detain vehicles used without certificate of registration permit, etc. (1) Any police officer or other person authorized in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provision of Section 3 or Section 4 or Section 39 or without the permit required by sub-section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle: xxx xxx xxx xxx (2) Where a motor vehicle has been seized and detained under sub-section (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorized in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose. 11. Thus it is evident that Section 207 of the Act clearly provides that the person aggrieved may approach the Transport Authority or any officer authorized in this behalf by the State Government for release of the vehicle and he shall release the vehicle subject to such conditions as the authority or officer may deem fit. 12. 11. Thus it is evident that Section 207 of the Act clearly provides that the person aggrieved may approach the Transport Authority or any officer authorized in this behalf by the State Government for release of the vehicle and he shall release the vehicle subject to such conditions as the authority or officer may deem fit. 12. In State of Maharashtra v. Nanded Parbhaniz L.B.M.V. Operator Sangh, (2000) 2 SCC 69 : ( AIR 2000 SC 725 ), the Hon'ble Supreme Court explaining the scope of Section 207 of the Act of 1988 had observed as under:- The aforesaid power of seizure has been conferred upon the appropriate authority, which power is in fact a sovereign power of the State and has been delegated to the police officers in discharge of their duties of law enforcement and in the enforcement of an orderly society. The power, therefore, is required to be exercised with care and caution and the power has to be exercise of power is fully satisfied ...................... the police officer would be authorized to detain a vehicle, if he has reason to believe that the vehicle has been or is being used in contravention of Section 3 or Section 4 or Section 39 or without the permit required under sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used. 13. Similarly, in Nirmala Jagdish Chandra Kabra v. Transport Commissioner, (1997) 9 SCC 227 : ( AIR 1997 SC 1405 ), the Hon'ble Supreme Court has held as under:- There is a power for compounding the offence provided in Section 206 of the Act. In the light of sub-section (1) of Section 207, if the officer authorized in that behalf of the opinion that the vehicle has been or is being used in contravention of any of the aforesaid provisions of the Act or conditions of permit relating to the route on which or the area in which or the purpose for which the vehicle is used, he may seize and detain the vehicle or compound the offence. The statutory power given to the authorized officer under Section 207 is to ensure compliance of the provisions of the Act. Therefore, the mandamus sought for cannot be issued, as referred to earlier. 14. The statutory power given to the authorized officer under Section 207 is to ensure compliance of the provisions of the Act. Therefore, the mandamus sought for cannot be issued, as referred to earlier. 14. In view of the provisions contained in the Act, the parties should approach the appropriate forum for exhausting their remedies instead of approaching this Court invoking its extraordinary jurisdiction. In view of the huge pendency of cases for years together, it is to be considered whether such applications can be considered by this Court at this Stage. 15. As it reveals from Chapter-XIII of the M.V. Act, penalty varies from six months to maximum three years depending upon the nature of offences for which VCRs have been issued and in the meantime in many of the cases, that period has already expired. Therefore, what remedy can be available to those cases. Section 2(n) of the Code of Criminal Procedure Code defines offence, which read as follows: Section 2(n):- "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1971 (1 of 1871). 16. Section 468 of the Cr.P.C. imposes a Bar to take cognizance after lapse of the period of limitation, which reads as follows: Section 468:- Bar to taking cognizance after lapse of the period of limitation – (1) Except as otherwise provided elsewhere in this code, no court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be:- a) Six months, if the offence is punishable with fine only, b) One year, if the offence is punishable with imprisonment for a term not exceeding one year. c) Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, be most severe punishment. 17. (3) For the purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, be most severe punishment. 17. Considering the above provisions of law, since the penalty under the M.V. Act varies from six months to three years, in respect of vehicle checking reports issued for offences where the maximum punishment that can be imposed is three years but in the meantime that period has already been over, forwarding such VCRs to the Magistrate, would be hit by Section 468 of the Cr.P.C. Therefore, no useful purpose can be served if at this stage the matter is directed to be tried by the court having jurisdiction over the same. So far as the matters which are pending within three years, in which cases, it has been indicated in the vehicle checking reports to approach the concerned STA/RTA on a particular date, but the said date has already been over, it appears that the concerned STA/RTA instead of sending the matter to the concerned court having jurisdiction, are sitting tight over the same as a result no steps could be taken by the concerned court. On the other hand, it facilitated the owners/drivers/conductors to approach this Court by filing the writ petitions. Thereby, there is a non-adherence to the provisions of the M.V. Act and Rules framed thereunder. 18. In course of hearing, the circular No. 3 of 2013 dated 9.12.2013 issued by the Transport Commissioner, Orissa it has been brought to the notice of the Court wherein it is stated that Officers of OMVD are seizing motor vehicle documents and other documents in a routine manner in contravention of Section 206 of M.V. Act, 1988. Section 206 of M.V. Act, 1988 provides that any Police Officer or other person authorized in this behalf by the State Government may, if he has reason to believe that any identification mark carried on a motor vehicle or any license, permit, certificate of registration, certificate of insurance or other documents produced by the driver or the person in-charge of motor vehicle is false document within the meaning of Section 464 of IPC, seize the mark or document. If the officer of OMVD has reasons to believe that the driver of a motor vehicle who is charged with any offence under the M.V. Act may abscond or avoid service of summons, seize the licence held by such driver and forward to the court and grant acknowledgement. Therefore, instruction has been issued to the OMVD Officers not to impound licence, permit, certificate of registration, certificate of insurance or other documents in routine manner except in the manner specified under Section 206 of M.V. Act, 1988. It has further been instructed that the owner/driver or the person in-charge of a motor vehicle must not be put to undue harassment. After verification about genuineness of seized documents, either prosecution may be launched or documents to be returned within fifteen days. 19. The circular further mentions that there is no specific provision in the M.V. Act, 1988, C.M.V. Rules, 1989 and OMV Rules, 1993 to withhold grant of Fitness Certificate on the ground of pendency of VCRs, application for grant/renewal of fitness certificate, grant of permit shall not be withheld/refused on the ground of pendency of VCR. However, the vehicle owner shall pay tax/penalty due, if any, before grant/renewal of fitness certificate as prescribed under Rule 22 of OMV Rules, 1993. It is also clarified in the circular that the subsequent purchaser of motor vehicle cannot be punished/penalized for the offence committed by the previous owner for which VCR was drawn. Thus the subsequent purchaser of motor vehicle should not be insisted to compound the offence relating to VCR drawn against previous owner. The VCR drawn against the previous owner will be sent to SDJM/JMFC/Transport Magistrate for adjudication. For pendency of VCR of the erstwhile owner, grant/renewal of permit, fitness certificate and transfer and transfer of ownership cannot be refused to the subsequent owner. It is also made clear that where driver of a vehicle refuses to stop and avoid checking by the OMVD Officer on duty, VCR may be drawn and the OMVD Officer shall record details of vehicle in the VCR after getting required information from the concerned RTO Office and notice should be issued to the owner of the vehicle along with a copy of the VCR to furnish his reply. 20. 20. In spite of the arrangements made pursuant to the circular bearing No. 3 of 2013 dated 9.12.2013 since the pending VCRs have not been closed, therefore as a matter of principle, it is proposed to lay down the procedure for disposal of the VCRs in consonance with the order passed by this Court earlier in Abhishek Mathur v. R.T.O., Bhubaneswar in W.P.(C) No. 10371 of 2013. In course of hearing, an affidavit has been filed on behalf of the Transport Commissioner, Odisha with regard to the proposed steps to be taken for laying down the procedure for disposal of VCRs, which is yet to be approved by the Government. Pending consideration/approval of the proposal made by the Transport Commissioner, Orissa vide his letter No. 470/TC dated 10.01.2014 laying down the procedure for disposal of VCRs by the Government, the following directions are given to circulate for disposal of Vehicle Checking Reports: i) In view of the aforesaid discussion and finding arrived at by this Court, the writ petitions as against the VCRs is not maintainable and parties are to exhaust the remedies under the provisions of the M.V. Act and Rules framed thereunder. ii) The VCRs issued prior to 2010 which are pending, the same should be dropped as it is hit by the provisions contained in Section 468 of the Cr.P.C. iii) Pending VCRs with effect from 2011 onwards, should be considered in the light of the circular issued on 9.12.2013 bearing circular No. 3 of 2013 read with Gazette Notification No. 1151 dated 29.09.1995, issued under section 200 of the M.V. Act, 1988. iv) The State Government is directed to consider the recommendation of the Transport Commissioner-cum-Chairman, State Transport Authority, Orissa, Cuttack and lay down the procedures, in respect of VCRs which are pending after 2011 as expeditiously as possible. v) Pending such approval, direction is hereby given to the OMVD Officers issuing the VCR to direct the driver/owner/person in possession and control of motor vehicle either compound the offence on payment of prescribed fine offline/online or to appear before the STA/RTA and produce the demanded documents for disposal of VCR within fifteen days, failing which the VCR issuing officer will submit prosecution report before the court having jurisdiction, namely, Transport Magistrate/J.M.F.C./S.D.J.M. for adjudication of the VCR within fifteen days from the date on which compounded fine was to be paid. The Transport Magistrate/J.M.F.C./S.D.J.M. may allow compounding of the offences, strictly in conformity with the Gazette Notification No. No. 1151 dated 29.09.1995. As prescribed under Rule 139 of C.M.V. Rules, 1989, the owners/driver/conductor may also send Xerox coy of R.C./I.C/Permit/D.L. and any other relevant documents duly attested by Police Officer or any other officer to the officer who demanded the documents by registered post within fifteen days from the date of issue of VCR. With the above observation and direction, the writ petitions are disposed of. Disposed off.