Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 07.08.2013
Judgment pronounced on : 14.08.2013
+ W.P.(C) 5026/2013
DELHI AUTORIKSHAW SANGH & ORS. ..... Petitioner
Through: Ms Rani Chhabra, Adv.
versus
GOVERNMENT OF NCT OF DELHI & ORS. ..... Respondents
Through: Ms Zubeda Begum and Ms Sana
Ansari, Advs for GNCTD
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
V.K. JAIN, J.
1. The issue involved in this writ petition is as to whether a vehicle
found being driven without a permit or in contravention of the terms of a
permit, can be subjected to impounding under Section 207 and
cancellation or suspension of permit under Section 86 of M.V. Act, even
where the owner and/or driver of the vehicle have been prosecuted under
Section 66 read with Section 192A of the said Act.
W.P(C) No. 5026/2013 Page 1 of 11
2. The petitioners before this Court are some auto-rickshaw drivers
and two associations of auto-rickshaw drivers in Delhi. Section 66 of
Motor Vehicles Act, 1988, to the extent it is relevant for the purpose of
this writ petition, provides that no owner of a motor vehicle shall use or
permit the use of the vehicle as a transport vehicle in any public place
whether or not such vehicle is actually carrying any passengers or goods
except in accordance with the conditions of a permit granted or
countersigned by a Regional or State Transport Authority or any
prescribed authority, authorising him the use of the vehicle in that place
in the manner in which the vehicle is being used. Thus, holding a permit
and complying with its conditions is mandatory for an auto-rickshaw
driver. The contravention of Section 66 is punishable under Section 192A
of the Act, which provides that the driver of a motor vehicle, using the
said vehicle in contravention of the provisions of sub-section (1) of
Section 66 or in contravention of any condition of a permit, relating to the
purpose for which the vehicle may be used, as well as the owner, causing
or allowing a motor vehicle to be used in the aforesaid manner, shall be
liable to punishment, which for the first offence is a fine not exceeding Rs
5000/-, but not less than Rs 2,000/- and for any subsequent with
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imprisonment, which may extend to one year, but shall not be less than
three months or with fine which may extend to Rs 10,000/-, but shall not
be less than Rs 5,000/- or with both. The Court, however, for the reasons
to be recorded, may impose a lesser punishment.
3. Section 86 of Motor Vehicles Act, 1988, to the extent it is relevant,
provides that the Transport Authority, which granted the permit, may
cancel the same or suspend it for such period as it thinks fit, in the event
of breach of any condition specified in Section 84 or of any condition
contained in the permit or if the holder of a permit uses or causes or
allows a vehicle to be used in any manner not authorized by the permit, or
the holder of the permit ceases to own the vehicle covered by the permit.
Section 84 prescribes the conditions which are necessarily attached to
every permit and inter alia include (a) that the vehicle to which the permit
relates carries valid certificate of fitness issued under section 56 and is at
all times so maintained as to comply with the requirements of the Act and
the rules made there under; (b) that the vehicle to which the permit
relates is not driven at a speed exceeding the speed permitted under this
Act; (c) that any prohibition or restriction imposed any fares or freight
fixed by notification made under section 67 are observed in connection
W.P(C) No. 5026/2013 Page 3 of 11
with the vehicle to which the permit relates; (g) that the name and
address of the operator are painted or otherwise firmly affixed to every
vehicle to which the permit relates, on the exterior of the body of that
vehicle on both sides thereof in a colour or colours vividly contrasting to
the colour of the vehicle centered as high as practicable below the
window line in bold letters.
However, no order for cancellation of suspension of permit can be
passed, without giving opportunity, to its holder, to furnish his
explanation. Where a Transport Authority cancels or suspends a permit,
it is required to give to the holder, reasons in writing for the action taken
by it. Any person aggrieved by revocation or suspension of the permit
can prefer an appeal to the State Transport Appellate Tribunal in terms of
Section 89(1) of the Act.
4. Section 207 (1) of the Act, to the extent it is relevant, provides that
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, without the permit 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
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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 to this sub-section 207(1) permits the officer, who finds a vehicle
being used without permit required under sub-section (1) of Section 66 to
seize the certificate of registration of the vehicle instead of seizing the
vehicle itself. Sub-section (2) of Section 207 enables the owner or person
in charge of the seized vehicle to apply to the Transport Authority or any
officer authorized by the State Government in this behalf, for the release
of the vehicl e and such authority or officer may, after verification of
relevant documents which the application is required to submit, order
release of the vehicle and while releasing the vehicle, he may impose
such conditions as are deemed appropriate in this regard.
5. The grievance of the petitioners before this Court, who are some
auto-rickshaw drivers in Delhi and two Associations of Auto-Rickshaw
Drivers is that when an auto-rickshaw is found being driven, without a
permit or in violation of the conditions subject to which the permit has
been granted, besides prosecuting the auto-rickshaw and/or its owner, the
respondents are also taking actions under Section 86 of the Act for
W.P(C) No. 5026/2013 Page 5 of 11
cancelling and/or suspending the permit and under Section 207 for
impounding the vehicle. Their contention is that once an auto-rickshaw
driver or its owner is prosecuted under Section 66 of the Act and either he
compounds the offence or suffers the sentence prescribed in Section
192A of the Act, it is not open to the respondents to take action under
Section 86 and/or 207 of the Act.
The petitioners are accordingly seeking the following directions in
this writ petition:-
“a) Pass an order, direction and/or any other
appropriate writ declaring the action of the
respondents in challaning the vehicles of the
Petitioners under section 66/192A and further
initiating proceedings under section 86 of the
Motor Vehicles Act as illegal, unjustified, contrary
to the provisions of the Act and also in violation of
the fundamental rights guaranteed to the
Petitioners under Articles 14 and 19 of the
Constitution;
b) Pass an order, direction and/or any other
appropriate writ directing the respondents, their
officials, representatives, nominees, assignees not
to take action against the Petitioners contrary to the
provisions of the Motor vehicles Act”
6. The learned counsel for the respondents, who appears on advance
notice, opposes the petition and submits that the Act permits them not
only to prosecute the auto-rickshaw driver and/or its owner under Section
W.P(C) No. 5026/2013 Page 6 of 11
66 read with Section 192A, but also to revoke and/or suspend the permit
under Section 86 and impound the vehicle under Section 207 of the Act.
7. I have carefully perused the provisions of Section 86 of the Act and
I find nothing in the said provision which would preclude the respondents
from permitting or suspending the vehicle in case the driver and/or owner
of the vehicle is prosecuted under Section 66 read with Section 192A of
the Act. Section 66 treats the driving of a vehicle or allowing it to be
driven, without permit or in contravention of the terms of a permit as a
criminal offence, which is punishable under Section 192A of the Act.
Section 86 of the Act, on the other hand, is a civil consequence which
follows when a vehicle is found being driven in contravention of the
conditions of the permit granted to the owner of the vehicle. As noted
earlier, one of the conditions necessarily attached to a permit is that the
vehicle shall not be driven at a speed prescribed for such a vehicle. If the
driver of a vehicle is prosecuted for driving at a higher than the permitted
speed and the matter rests at prosecuting him and/or the owner of the
vehicle under Section 66 read with 192A of the Act, nothing prevents him
from continuing to drive the vehicle at more than the prescribed limit,
thereby continuing to violate an important condition attached to the
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permit. If, however, the permit is cancelled, it will not be possible for the
vehicle to be driven at higher than the prescribed limit. If the permit is
suspended, that would work as a deterrence for the future since it will not
be possible to drive the vehicle for the period during which the permit is
suspended. Another necessary condition attached to every vehicle is that
there will be no violation of the restrictions imposed with respect to fare
and freight fixed by way of notification under Section 67 of the Act. If
the driver of a auto-rickshaw charges higher than the prescribed fare or
freight and no action other than prosecution under Section 66 read with
Section 192A is taken, that may not deter him from continuing to charge
higher fare and/or freight, considering that it is only rarely that such
complaints are made by the passengers, who are made to pay more than
the prescribed fare and/or freight. On the other hand, if the auto-rickshaw
driver and its owner in case the owner is different from the driver, know
that driving at more than the prescribed speed and/or charging more than
the prescribed fare and/or freight entail serious consequences such as
cancellation and suspension of permit and impounding of the vehicle, the
rickshaw driver would think more than once before exceeding the
prescribed speed and/or demanding more than the prescribed fare and/or
W.P(C) No. 5026/2013 Page 8 of 11
freight. The provisions for cancellation and suspension of permit and
impounding of the vehicle therefore serve a salutary purpose of ensuring
strict compliance with the terms of the permit besides ensuring that no
vehicle is driven, without a permit in this regard. There are various other
conditions attached to a permit, some of them for the benefit of auto-
rickshaw drivers such as limiting the hours of work for them. If the
provisions of Section 86 of the Act are not invoked, the owners of the
auto-rickshaw, who hire auto-rickshaw drivers on monthly wages, may
compel them to ply the auto-rickshaw for more than the prescribed hours.
Such treatment of the auto-rickshaw drivers besides being risky to their
own health and safety may also jeopardize the safety of the passengers
since a tired driver who has already plied the auto-rickshaw for
prescribed hours, may not be in a position to drive it safely and that may
result in the vehicle getting involved in some accident, causing injuries
not only to the passengers, but also to the auto-rickshaw driver. In any
case, as noted earlier, the provisions of Section 86 being independent of
the provisions of Section 86, there is nothing in the Act to suggest that
prosecution under Section 66 read with Section 192A precludes the
W.P(C) No. 5026/2013 Page 9 of 11
respondent from initiating action for cancellation and suspension of
permit under Section 86 of the Act.
8. As regards impounding of vehicles under Section 207 of the Act,
again, there is nothing in the provision to suggest that the power to detain
vehicle cannot be exercised if the driver and/or owner has been
prosecuted under Section 66/192A of the Act. The purpose of detaining
the vehicle being driven, without permit or in contravention of the permit,
is to ensure that it does not continue to be plied, without permit or in case
there is a permit already issued, the driver of the vehicle does not
continue to ply the vehicle in contravention of the terms subject to which
the permit has been granted. Though the provisions contained in Section
86 for cancellation and suspension of permit and the provisions contained
in Section 207 of the Act for detaining the vehicle are aimed at achieving
the same objective, i.e., a vehicle should not be driven, without permit or
in contravention of the conditions of a permit, action under Section 86 of
the Act would not be sufficient because such an action cannot be taken
immediately, if the vehicle is found being driven in violation of the
conditions of a permit. Unless the vehicle is detained under Section 207
of the Act, it would be possible for the driver of the vehicle to continue to
W.P(C) No. 5026/2013 Page 10 of 11
ply it till the time the permit is suspended taking recourse of the
provisions of Section 86 of the Act. Moreover, the power under Section
207 of the Act can be exercised not only where a vehicle is driven in
contravention of the terms of the permit, but also in a case where it is
being driven without any permit at all, whereas, Section 86 of the Act
applies only to the case where permit has been issued, but the vehicle is
being driven in contravention of the conditions attached to the permit. In
any case, the powers under Section 207 of the Act are independent of the
power to prosecute under Section 66 read with Section 192A of the Act.
9. For the reasons stated hereinabove, I find no merit in the writ
petition and the same is hereby dismissed. There shall be no order as to
costs.
V.K.JAIN, J
AUGUST 14, 2013
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