Nirmala
Jagdishchandra Kabra Vs. The Transport Commissioner & Ors [1997] INSC 163 (14 February 1997)
K.
RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEAD NOTE:
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 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 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.
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