Full Judgment Text
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PETITIONER:
NIRMALA JAGDISHCHANDRA KABRA
Vs.
RESPONDENT:
THE TRANSPORT COMMISSIONER & ORS.
DATE OF JUDGMENT: 14/02/1997
BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This special leave petition arises from the order of
the Division Bench of the Gujarat High Court made On
December 4, 1996 in LPA No. 1430/96. The Motor Vehicle
Inspector had imposed penalty of Rs. 1,000/- etc. for
violation of the conditions of the contract carriage permit.
It was found that the vehicle was being used as stage
carriage in violation of the breach of the conditions of the
permit inasmuch as petitioner was collecting individual
fares @ Rs. 1.60 per passenger and was not using the vehicle
as a tourist; vehicle hired to one group party. The
petitioner filed writ petition in the High Court Seeking the
relief as under:
"To allow this petition and to
issue appropriate writ, direction
and order holding and declaring
that the respondent authorities
have no legal right or power or
authority to either seize or detain
the petitioner’s vehicles shown at
Annexure A to this Petition in
purported exercise of power under
Section 207 of the Motor Vehicles
Act, 1988 solely on the allegation
of collection of individual fare
from the passengers."
The learned single Judge and the Division Bench refused
to grant the relief in the face of Section 207 (1) read with
proviso thereto of the Motor Vehicle Act, 1988 ( for short,
the ’Act’ ). Section 207 of the Act postulates the power to
detain vehicle used without certificate of registration
permit, etc. Sub-section (1) provides thus:"
"Any police officer or other person
authorised 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 provisions
to Section 3 or Section 4 or
Section 39 or without the permit
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required by 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,
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."
The proviso postulates thus:
"provided that whether any such
officer or person has reason to
believe that a motor vehicle has
been or is being used in
contravention of Section 3 or
Section 4 or without the permit
required by sub-section (1) of
Section 66 he may, instead of
seizing the vehicle, seize the
certificate of registration of the
vehicle and shall issue an
acknowledgment in respect thereof."
There is power for compounding the offence provided in
Section 206 of the Act. In the light of the Sub-section (1)
of Section 207, if the officer authorised in that behalf is
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 the 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 authorised officer
under Section 207 is to ensure compliance of the provision
of the Act. Therefore, the mandamus sought for cannot be
issued, as referred to earlier.
It is contended by Shri Arun Jaitley, learned senior
counsel for the petitioner that the petitioner has taken the
vehicle on hire basis from the owner of the vehicle who had
the permit for contract carriage of the passengers from one
destination to another. They are not collecting any
individual fare on route by picking up or setting down the
passengers. They are picking up passengers from one place
and taking them for tour to the other destination and,
therefore, it is a "contract carriage" within the meaning of
Section 2(7) of the Act. It is not a Stat carriage permit
but one of contract carriage and, therefore, the view taken
by the High Court is not correct in law. It is true that if
the holder of the vehicle obtains a contract carriage, the
owner may carry a passenger or passengers for hire or reward
on contract, whether expressed or implied, for the use of
such vehicle as a whole for the carriage of passengers
mentioned therein and entered into by a person which a
holder of a permit in relation to such vehicle or any person
authorised by him in this behalf on a fixed or an agreed
rate or sum. I other words, the very permit for which the
contract for carriage of the passengers granted should
contain the names of the passengers to carry from one
destination to another destination without picking up or
setting down en route for hire or reward but when the holder
of a permit is another and permits them to carry the
passengers and makes the contract de hors those mentioned in
the list of passengers enclosed to the permit as contract
carriage and takes the passengers. from one destination to
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another, even without picking up or setting down en route,
the necessary consequence would be that the vehicle has been
or is being used as a stage carriage but not a contract
carriage. Under those circumstances, obviously, the
authority had rightly detained the vehicle for the
contravention of the conditions of the permit. Therefore,
the mandamus, as sought for, was rightly refuse by the High
Court. The learned counsel sought reliance on a judgment of
the Madras High Court in N. Krishnasami Chetty & Ors. vs.
The Licensing Officer [Air 1988 Madras 274]. The learned
Judges have not correctly appreciated the legal position.
Therefore, it is not correct in view of the above law. It is
accordingly overruled.
The special leave petition is accordingly dismissed.