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2022 DIGILAW 1674 (GUJ)

Ashokkumar Surajbhan Jat v. State Of Gujarat

2022-12-01

MAUNA M.BHATT, SONIA GOKANI

body2022
JUDGMENT : SONIA GOKANI, J. 1. The petitioner is seeking to challenge, by way of the present petition under Article 226 of the Constitution of India, the action of the authority, where his vehicle is consequently detained for the second time after its release on collecting the tax, penalty, etc. within one day. 2. Brief facts, leading to the present petition, are as follows: The petitioner is the owner of Omni bus contract carriages bearing registration No.RJ 51PA 5494 and is covered with valid All India Permit. The petitioner also had paid tax of Rs.60,000/- at the quarterly rate valid for entire country. The respondent vide its challan no.GJ6587220312213716 seized and detained the said vehicle on 12/03/2022. The bus was having 33 sleepers and 8 sitting capacity at the time of its permission. The said aspect is also noted in the permit granted to him in respect of All India Tourist Permit (Bus)- Non Air-Conditioner. 3. It is averred by the petitioner that the respondent has demanded a tax for the period from April, 2021 to March, 2022 of Rs.4,88,760/-, penalty of Rs.2,86,325/- and interest of Rs.52,957/-, in all a sum of Rs.8,28,042/-. The same has been paid which is evident from receipt dated 07/04/2022 issued by the respondent authority. Respondent no.3 also recovered an amount of Rs.75,000/- as compounding fees, by receipt dated 07/04/2022. It is alleged that the authority concerned, by putting the petitioner to undue pressure and exercising the coercion, has obtained this amount for releasing the tourist bus and has also obtained the declaration dated 17/03/2022. 4. It is the grievance of the petitioner that respondent No.2 had again seized and detained the said tourist bus after two days of the release from the parking place on 09/04/2022 by issuing challan no.GJ23799220409164107 and demanded Rs.65,000/- towards compounding fees once again. The petitioner being aggrieved by this action, approached respondent no.2 for the release of the tourist bus. But his request was answered in vain on the ground that respondent No.2 is awaiting for some instructions from RTO Bhilwara & the vehicle had not been released. It is his grievance that once an amount has already been paid along with penalty and interest and the compounding fees, respondent had no authority to once again detain the vehicle. But his request was answered in vain on the ground that respondent No.2 is awaiting for some instructions from RTO Bhilwara & the vehicle had not been released. It is his grievance that once an amount has already been paid along with penalty and interest and the compounding fees, respondent had no authority to once again detain the vehicle. Hence, he prays as follows : “13(A) Your Lordships will be pleased to issue a writ or mandamus, or any other appropriate writ, order or direction, to the respondent no.2 to set aside the demand of Rs.65,000/- and grant refund of Rs.9,03,042/- ; (B) Pending hearing and final disposal of the present petition, Your Lordships would be pleased to stay the operation, execution and implementation of any coercive action pursuant to the said challan dated 09/04/2022 and also release the said tourist bus forthwith; (C) Your Lordships will be pleased to award the cost of this petition; (D) Your Lordships be pleased to grant such other and further orders, as may be deemed just, fit and proper in the interest of justice.” 5. This Court had issued Notice on 04/08/2022 (Coram: Justice N.V.Anjaria and Justice Bhargav D. Karia). 6. Affidavit-in-reply on behalf of respondent No.2 is filed by Mr.Parixitkumar G. Sahani, Inspector of Motor Vehicle, Regional Transport Office, Ahmedabad, wherein he had denied all the allegations. According to this reply, the petitioner is the owner of the Omni Bus having vehicle number RJ 51 PA 5494 and as per original registration document, the vehicle had 33 sleeping capacity and 8 sitting capacity and this was known to the authority when on 12/03/2022 the vehicle was intercepted at Radhe Fortune, Bhat, Ahmedabad for regular inspection. During inspection, 38 sleeping capacity were found and restricting the movement of the driver, again dimensions of the motor vehicle in terms of length, height and overhanging was found. As per verification, the vehicle had permit of 33 sleeping capacity, thus the alteration of the vehicle was made without valid permission from the concerned authorities, which is in clear violation under Section 182A(4) of the Motor Vehicles Act,1988. That as per the driver, the motor vehicle has also been picking up the passengers from various locations and in contravention of Section 66(1), the permit conditions are being violated. The details of the trips of the vehicles have been produced, which are as follows : Sr. That as per the driver, the motor vehicle has also been picking up the passengers from various locations and in contravention of Section 66(1), the permit conditions are being violated. The details of the trips of the vehicles have been produced, which are as follows : Sr. No. Month No of Trips 1. May 2021 7 days 2. June 2021 9 days 3. July 2021 14 days 4. August 2021 16 days 5. September 2021 14 days 6. October 2021 13 days 7. November 2021 17 days 8. December 2021 15 days 9. January 2022 16 days 10. February 2022 14 days 11. March 2022 7 days till 12.03.2022 It is further the say of the respondent that from Fastag details, this can be verified and on examining these details, the petitioner has been asked to pay tax as provided under Section 3 of the Gujarat Motor Vehicle Tax Act, 1958, specified in Clause (v) in Scheduled I. The petitioner had made payment of the tax for April 2021 to June 2021 with false declaration of 33 sleeping capacity. Therefore, as per the notification dated 16.11.2019 issued by the Ports and Transport Department, the penalty of double amount of tax is leviable along with remaining tax amount. The tax is also levied along with 25% penalty and interest. 7. Mr.Chitharmal Kumavat through the Power of Attorney of the petitioner, had given a declaration on affidavit that the motor vehicle is in his full possession from 08/04/2021 and he is driving the motor vehicle on Rajasthan-Gujarat route. The petitioner is engaged in pick & drop of the individual persons from various locations, which is in violation of the All India permit. He is also ready to pay the applicable fine. The motor vehicle was detained under section 207 of the Motor Vehicles Act and upon payment of the requisite fees, penalty, etc., it had been released. 8. Once again, during the inspection of the motor vehicle on 09/04/2022, the vehicle was seized. On 11/05/2022, reply was received from the RTO, Bhilwara in relation to the change of permit, 36 sleeping capacity was permitted with 1 sitting capacity. 9. A letter was written to the RTO Bhilwara for providing the details of the fees paid by the petitioner and dimensions of the motor vehicle including height, length, width overhanging, gangway, etc. also had been called for. 9. A letter was written to the RTO Bhilwara for providing the details of the fees paid by the petitioner and dimensions of the motor vehicle including height, length, width overhanging, gangway, etc. also had been called for. A reminder letter was also sent on 19/09/2022 and it was also asked to provide the copy of any photograph or video of the inspection for taking final decision in the said matter. 10. On 25.11.2022, an email was addressed to the Commissioner of Transport, Rajasthan stating that the motor vehicle was altered in the Vahan portal during the detention period at RTO Ahmedabad. It was also stated to provide the copy of any photograph or video of the inspection for taking final decision in the said matter. That the reply of the said email is awaited. 11. According to the respondent, the petitioner has not disclosed the altered sleeping capacity and altered dimensions of the motor vehicle before the concerned authority for obtaining the All India Tourist Permit. Thus, he has not complied with the conditions of permit and is in contravention of Section 66(1) of the Motor Vehicle Act. The vehicle has been rightly detained under section 207 of the Motor Vehicle Act, which permits any police officer or other person authorized on behalf of the State to seize and detain the vehicle, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of section-3 or Section-4 or Section-39 or without the permit required under sub-section (1) of Section-66 or in contravention or any condition of such permit. Rule 128 of the Center Motor Vehicles Rules, 1989 provides that the “Tourist vehicle” other than cab, taxicab, campers shall conform to the dimensions specified in the Rule 93 of the Center Motor Vehicles Rules,1989. That as per Rule 93, the overall width of the motor vehicle shall not exceed 2.6 meters. That the overall length of the motor vehicle shall not exceed 12 meters. That the overhand of the motor vehicle shall not exceed 60% of the wheel base. The petitioner’s vehicle was exceeding the overall dimensions of the motor vehicle in length and overhang. That the over dimensions in the motor vehicles, according to the respondent, are dangerous and majority part are reason for accidents. That the overhand of the motor vehicle shall not exceed 60% of the wheel base. The petitioner’s vehicle was exceeding the overall dimensions of the motor vehicle in length and overhang. That the over dimensions in the motor vehicles, according to the respondent, are dangerous and majority part are reason for accidents. Therefore, the petitioner is violating the All India Tourist permit and also putting the life of the passengers in danger. It is say of the respondent that the petitioner did not produce any valid documents or permission from the concerned authorities evidencing that the alteration made in the sleeping capacity are valid before the answering respondent. The petitioner did not maintain the list of tourist in physical or electronic form which shall contain the details of origin and destination of each passenger as provided Rule 11 of the All India Tourist Vehicle (Authorisation or Permit) Rules, 2021. Hence, second time, seizure was valid. 12. We have heard extensively learned advocate Mr.Ramkrishna B. Dave for the petitioner and learned AGP Mr.Trupesh Kathiriya for the respondents. We find a complete non-coordination between the department in the entire matter. We find that from 12/03/2022 to 07/04/2022, there was a seizure and detention of the vehicle and the very vehicle was released after collecting the tax, penalty, compounding fees, etc., which had made a total Rs.9,03,042/- (Rs.8,28,042/- + Rs.75,000/-). This was essentially seized on 12/03/2022 on the ground that it had All India Permit for 33 sleepers and 8 sitting capacity instate. Physically when verified, it had 38 sleepers capacity. It also says that extra 3 sleepers seats were fitted and 2 sitting seats were fitted behind the driver seat. 13. We also noticed that there was no panchnama drawn. We have particularly inquired from learned AGP. He on getting inputs from the Officer, who is present, has submitted to this Court that there was no panchnama drawn on 12/03/2022. For the first time, panchnama was drawn on 25/03/2022 and that is the day on which, the fresh permission has been uploaded by the transport department of the Rajasthan, which permits the sleeper capacity of 36 and sitting capacity of 1 person. For the first time, panchnama was drawn on 25/03/2022 and that is the day on which, the fresh permission has been uploaded by the transport department of the Rajasthan, which permits the sleeper capacity of 36 and sitting capacity of 1 person. We noticed that panchnama, which is forming the part of the record shows on 25/03/2022 at 5:30 pm, speaks of total sleepers found at 38 and it is bifurcated as follows : SEATING/ SLEEPER LAYOUT INNER ROOM UPPER BERTH 6 DOUBLE SLEEPER BERTHS = 6 x 2 = 12 SLEEPER 6 SINGLE SLEEPER BERTHS = 6 x 1 = 6 SLEEPER LOWER BERTH 6 DOUBLE SLEEPER BERTHS = 6 x 2 = 12 SLEEPER 7 SINGLE SLEEPER BERTHS = 7 x 1 = 7 SLEEPER CABIN ROOM 1 DRIVER SEAT 3 SEATS BEHIND DRIVER SEAT 2 SEATS IN FROM OF INNER ROOM which is foldable 1 SEAT NEAR PASSENGER DOOR 1 SLEEPER ABOVE DRIVER SEAT TOTAL SLEEPER FOUND = 38 TOTAL SEATS FOUND = 7 (INCLUDING DRIVER) 14. It appears that the power of attorney holder had also before the concerned authority, paid the entire amount of the taxes and had admitted of his mistakes of making violation of some of the Rules. The vehicle was being driven by one Mr.Shambhulal Rabari, who was a driver whereas declaration is one by Mr.Chitharmal Kumavat, who is owner as power of attorney holder from 08/04/2021. It is the case of the petitioner that this declaration has been obtained per force; we will not go into that aspect. Suffice to note at this stage that the owner had given a declaration and had admitted the violation however, even after getting the All India Permit, on his legitimate request, the permit had changed the number of the seats to make thirty six (36) sleepers and one (1) sitting. The authority in Gujarat was not satisfied and therefore, had written to the Regional office at Rajasthan. It is a matter of record that newly given permit on 25/03/2022 was not produced by the petitioner but the same was downloaded from the website of the Transport Department of the State of Rajasthan. 14.1 What is very intriguing is as to how the Regional Officer, Gujarat would be in a position to question this document, which had given a detail of changed capacity of sitting and of sleepers. 14.1 What is very intriguing is as to how the Regional Officer, Gujarat would be in a position to question this document, which had given a detail of changed capacity of sitting and of sleepers. Assuming that the vehicle since was in the detention from 12/03/2022 to 07/04/2022, it had created a doubt in the mind and hence, had communicated to the concerned authority and called for the basic details on 07/05/2022 by saying that as per Vahan report, alteration of the vehicle was done at Bhilwara on 15/03/2022 with receipt No. RJ51R22030000810 and how that alteration without vehicle is possible, since the vehicle was detained in RTO, Ahmedabad. The reply, that was received on 11/05/2022, says that physical observations were made on 09/03/2022 when the vehicle was there. It was not entered into the register and this change of 36 sleepers and 1 sitting capacity from 33 sleepers and 8 sitting capacity, was after the physical verification. However, not being satisfied with that also, once again on 08/06/2022, a communication was sent seeking the following details : “1. The details of fees paid by applicant for alteration of vehicle. 2. All the dimension of bus height, length, width overhang, gangway at the time of inspection done by your authority on dt.09-03-22.” This appears to be more an act of an appellate authority or a superior authority. In fact, the Regional Transport Officer, Ahmedabad is the officer of the same rank as that of Regional Transport Officer, Bhilwara, to whom, he had addressed this communication. Be that as it may, it was not at all to possible because it was not even the scope of the officer concerned to so question it or for whatever reasons may silence, one had led to another communication on 19/09/2022, where he again questioned this act of the respondent authority asking him as to how this alteration after the inspection on 09/03/2022 is feasible as per his letter dated 11/05/2022. Fees payment is after the date of inspection, which is contradictory and therefore, he sought to provide the inspection video or photographs, if available, of the date of inspection, for taking final decision in the said matter. Fees payment is after the date of inspection, which is contradictory and therefore, he sought to provide the inspection video or photographs, if available, of the date of inspection, for taking final decision in the said matter. When not received any reply, and by continuing seizure and detention of the vehicle, he has once again written on 25/11/2022, during the course of hearing of this matter, to justify the his own action, he wrote as follows : “It came to our notice that vehicle details are altered in vahan portal during the detention period at RTO Ahmedabad. We had communicated that details of RTO Bhilwara vide letter (Reference-2). We received revert communication from RTO Bhilwara but as fees for alteration was paid on date of detention 12-03-2022 we have further asked details vide letter (Reference-3) about details of dimension of vehicle inspected by authority 09-03-22 or any videography or photography done by authority during said inspection. We have not still received any communication.” 15. We noticed that all throughout what has not been made clear by the respondent authority is as to how in a day’s time, there could be a possibility of any change in sitting or sleeping capacity even if there is a direction from the first officer, who had detained and seized the vehicle and after collecting the entire amount including the penalty, had released the vehicle. It appears that the officer who subsequently seized the vehicle is of the same rank and we have particularly queried as to whether or not he would be aware of the seizure, which had taken place from 12/03/2022 to 07/04/2022. The answer given to us is that he was aware and yet he has so done it. We were not shown even the panchnama drawn on 12/03/2022 at the time of seizure. However, the panchnama of 25/03/2022 even if reflecting the position of the vehicle, the fact remains that at the time of release of vehicle on 07/04/2022, nowhere there is a direction from the authority to amend the position or to make any correction, more particularly, after the fresh permit was downloaded from the concerned website of parivahan portal available to all officers and having come to know that change is made in sleeper capacity to 36 and sitting capacity to 1. Assuming that there is one additional seat at the best, it was permissible for the authority concerned to seek the penalty, which in the instant case, it has collected. 16. Section 182A(4) of the Motor Vehicles Act,1988, provides that the owner of the vehicle, if alters the motor vehicle, including by way of refitting of the motor vehicle part, in a manner not permitted in the Act, Rules or Regulations, he shall be punished with an imprisonment for a term, which may extend to six months, or with fine of Rs.5,000/- per such alteration or with both. Sub-section (2) of Section 200 provides for composition of certain offences. Sub-section (2) of Section 200 provides that if an offence has been compounded under sub-section (1) the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence. In the instant case, no prosecution has been initiated and fine has been collected from him. The compounding fees had also been collected from the petitioner and it appears that the prosecution for any violation has not been initiated. 17. The question that arose now for the court’s consideration is as to whether the officer, who subsequently seized the vehicle on 09/04/2022 should not have been mindful enough in detaining the vehicle for the very reason for which, it was under detention from 12/03/2022 to 07/04/2022. The officer, who released the vehicle, after collecting taxes, penalty as also the compounding fees, never directed any kind of alteration and it was only one day which had passed and on 09/04/2022 again, from very same department, another officer seizes the vehicle and continues to detain the vehicle for more than six months!!! We have noticed that on 11/05/2022, it had already received the reply and in fact, there was no question of doubting the genuineness of document because it was from the portal itself, that the new permit was downloaded by Gujarat Officers. In fact, for satisfying itself, Gujarat Regional Officer had communicated with the authority concerned at Rajasthan which had categorically conveyed that entry in the register was missing of change of sleeping/sitting numbers, otherwise, inspection had been carried out on 09/03/2022 itself. The officer concerned, who seized the second time was bent upon proving his contention wrong and hence, communications from the regional office, Gujarat continued. The officer concerned, who seized the second time was bent upon proving his contention wrong and hence, communications from the regional office, Gujarat continued. It is also surprising as to how the senior officer also unmindful of the entire details continued to write letters just because one of his junior officers was desirous of justifying his action of seizure the second time in one day’s time, alleging continuity of breach. He never received any reply of the communication of June,2022 and thereafter, of September,2022. Once again wrote on 25/11/2022 and in the communication sent again today morning, says that after verifying from Bhilwara, the authority of Rajasthan would be replying and there is no certainty of days to the same. This according to us is height of the arbitrariness on the part of the Regional office of Gujarat, which has been given the powers for better serving the citizens of the country. If being concerned with the citizens and their lives and particularly, one additional seat in driver’s cabin, which had according to the officer made it difficult for the movement of the seat which may create some danger to the passengers as argued before us by the Ld.AGP, without any basis on substantiating material despite the new permit, it does not give any officer any right to deprive anyone from carrying on his business by detaining the vehicle for an indefinite period, once again, when the very vehicle was detained for that very violation for which it had paid the taxes, penalty, compounding fees, interest, etc. There are surprisingly strenuous efforts to justify the actions of the second time detention and even before this court also, the marathon attempts on the part of learned AGP were made to question the fresh permit of Rajasthan office. It is pointed out to this court that the action he has taken is absolutely correct. We wonder as to how the Regional Office, Ahmedabad in an All India Permit has an authority to question, the permit granted by the State of Rajasthan, unless, of course, it finds that the vehicle is missing or there is some serious fraud or forgery, which was to be brought to the senior officer. We wonder as to how the Regional Office, Ahmedabad in an All India Permit has an authority to question, the permit granted by the State of Rajasthan, unless, of course, it finds that the vehicle is missing or there is some serious fraud or forgery, which was to be brought to the senior officer. We also want to make a specific note of the fact that the reply to the queries raised by the Regional Officer, Gujarat, received the first time reply on 11/05/2022 by Regional Office, Rajasthan and thereafter, the queries were raised by the very authority i.e. the Regional Officer and not by any junior officer. It is surely expected from the Senior Officer to be mindful of the entire picture of law and also the demarcated boundaries of offices of each state. No one can be permitted to assume the role of a superior officer when it has none and in the process, it surely cannot be oblivious of depriving a person with the very modest means plying his vehicle from his livelihood. If he needs to undergo this ordeal and face this kind of harassment, this would shake the very confidence of a common man. In the hands of those, who are welded with the powers also need the restraints and those, who are given the powers are always expected to use them with utmost care and caution. The Officer concerned would be always expected to perform the duties but, over zealousness in the instant case has led to such a grim situations. Here, that appears to have happened, which has resulted into detention of the vehicle, which had an All India Permit and where Rajasthan Authority had already corrected the permit by allowing it to add 36 sleepers plus 1 seat of sitting. Additional seat which is being mentioned in the panchnama of 25/03/2022 is in the cabin of the driver and not elsewhere, which is possibly meant for the driver. It is attempted to be justified by learned advocate Mr.Dave that it is meant for the co-driver and is foldable. However, we would not delve into that dispute. If it is a violation, collection of penalty for that limited breach also, cannot be questioned so far as action of the first officer of Gujarat is concerned and therefore, his request for refund of the entire amount of Rs.9,03,000/- is not found acceptable. 18. However, we would not delve into that dispute. If it is a violation, collection of penalty for that limited breach also, cannot be questioned so far as action of the first officer of Gujarat is concerned and therefore, his request for refund of the entire amount of Rs.9,03,000/- is not found acceptable. 18. At the same time, the court finds reasonableness in his asking back the amount of tax, which is already paid with the Rajasthan state by way of an All India Permit and who had thereafter also paid the amount for the next year for continuing his permit. Therefore, there does not appear any justification in collecting the taxes, which has been done in the instant case to the tune of Rs.4,88,760/- with interest of Rs.52,975/-. 19. So far as the collection of tax is concerned, learned AGP has drawn our attention to the All India Tourist Vehicle (Authorisation or Permit) Rules, 2021 and particularly Rule 3, which permits the application for authorisation or grant of permit. Definition clause 2(d) states “Permit” as thus: “2(d) “permit” means a permit issued by the Transport Authority to enable a tourist vehicle operator owner to ply tourist vehicle throughout the territory of India without payment of taxes or fee levied by the State of Union territory through which it plies.” This being a tourist vehicle, having All India Permit, it does not need to pay any additional taxes or any fees, that may be levied by the State or Union territory once it is paid. Here also, it is not being disputed that the vehicle has All India Permit and change that had been made by the Rajasthan authority, also has been specifically conveyed from the document dated 25/03/2022. Not eventually it is collection of tax or interest, which has been collected for alleged unauthorised trips, is missing and first detaining plus seizure order dated 12/03/2022. More is it in the second order also, which has detained the vehicle from 09/04/2022. Justification of the second seizure would amount to our embracing to the action, which we have found to be not only highhanded but contrary to the provisions of law and also, amounting to asking the citizen to do an impossible task. As in 24 hours time, nobody can change even the sitting capacity of one seat, which officer concerned found in the driver seat. As in 24 hours time, nobody can change even the sitting capacity of one seat, which officer concerned found in the driver seat. Not to talk about the additional three sleepers, etc., which no longer had been illegal in wake of subsequent permit of 25/03/2022 issued by the Rajasthan State. It is also so much essential and necessary for the officer to respect the action of other authority unless there is a forgery or fraud found because the parameters adopted by the officer for satisfying itself are also not what was being justified by any of the provisions of the Rules. Resultantly, the petition is allowed partially. Let there be an immediate release of the vehicle. Report of which, shall come to this Court in 24 hours’, with a direction to refund the tax amount to the tune of Rs.4,88,760/- with interest of Rs.52,957/-, which is already paid to the Rajasthan Government by the petitioner. As the same time, demand of sum of Rs.65,000/- (Rupees Sixty Five Thousand) needs to be quashed and set aside. 20. The penalty on tax to the tune of Rs.2,86,325/- (Rupees Two Lakhs Eighty Six Thousand Three Hundred Twenty Five) and compounding fees to the tune of Rs.75,000/- (Rupees Seventy Five Thousand) collected by the office for the first time when the vehicle was seized need not be refunded to the petitioner. 21. The amount of cost Rs.10,000/- (Rupees Ten Thousands) shall be recovered from the respondents, to be given to the petitioner. Direct service is permitted.