Gujarat High Court
Jiteshbhai Jayantibhai Dalsaniya vs State Of Gujarat on 18 May, 2018
Author: A.J.Shastri
Bench: A.J. Shastri
C/SCA/4096/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4096 of 2018
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JITESHBHAI JAYANTIBHAI DALSANIYA
Versus
STATE OF GUJARAT
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Appearance:
MR MJ MEHTA(5797) for the PETITIONER(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3,4
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 18/05/2018
ORAL ORDER
[1] The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:
"8. A) Your Lordship may be pleased to admit/allow this Petition.
B. Your Lordships may be pleased to direct the respondent authorities to release the Vehicle of the present petitioner (numbers of which mentioned in the cause title of the petition) in view of the fact that the police department has no authority and/or power to seize/detain vehicle under the provisions of Motor Vehicle Act and in view of the fact that the RTO, Bardoli had already given NOC qua the Vehicle of the petitioner.
C. Your Lordships may be pleased to hold and declare that the police department has no power/ Page 1 of 18 C/SCA/4096/2018 ORDER authority/ jurisdiction to seize/detain vehicle under the provisions of Motor Vehicle Act in view of the instructions issued by the police department.
D. Your Lordships may be pleased to grant such other and further relief/s that may be deemed fit and proper in the facts and circumstances of the case;"
[2] The case of the petitioner in brief is that the petitioner is engaged in the business of Transport and he is having a Truck bearing registration No. GJ-19-X-3207 registered before the Regional Transport Authority in the name of the petitioner and this is an activity of transporting for generating income. The vehicle in question is having all valid registration certificate and necessary permission. It is further the case of the petitioner that on 22.02.2018 when the truck in question was passing through Dabhoi, the respondent No.2 who is the Police Sub Inspector, In- charge of Dabhoi Police Station has intercepted, and according to the petitioner, illegally detain the vehicle under the provisions of Motor Vehicles Act, 1988 (hereinafter referred as to the "Act) particularly under Sections 130(3), 66, 192, 158, 177 and 207 of the Act. The case of the petitioner is that whenever vehicle is transiting mineral for violation of Miner Rules the police authority has no power to seize the vehicle under Section 207 of Act. Therefore, by raising a contention that police department has no power to seize the vehicle or to prevent overloading vehicle and as such having no power with police authority the seizure of truck in question is without the authority of law. It is further the case of the petitioner that under the provisions of Right to Information Act, on 01.08.2014 the information was sought by the petitioner about initiation of action by police department and it was informed under said particulars that on 14.03.2013 and 07.07.2014 the instructions have been passed to all the Page 2 of 18 C/SCA/4096/2018 ORDER concerned police departments of entire State indicating that the police department has no power, authority or jurisdiction to prevent overloading and or to take action under the provisions of Act and as such by placing reliance upon Section 207 of Act, a contention is raised that seizure of the truck in question is without the authority of law. Since, there was no Authority an Arbitrary Act is committed by respondent authority on 02.03.2018, a complaint was made to the higher authority of police department against the conduct of Police Inspector, Dabhoi Police Station-respondent No.2 and requested to initiate appropriate action for committing such act and for registering the complaint under the provisions of Prevention of Corruption Act. It is further stated by petitioner, on 12.03.2018 a representation was made to respondent No.2 by the petitioner that RTO, Bardoli has given NOC qua the vehicle of petitioner and as such the vehicle may be released forthwith and it is a recurring loss of Rs.10,000/- per day for such illegal detention which loss has come to Rs.3,00,000/-, and therefore, for seeking urgent orders for release of vehicle on the ground that under Section 207 of the Act there is no power of seizure and as such petition was filed before this Court. On such submission, on 15.03.2018 the notice was issued by this Court, and thereafter, upon receipt of the notice, the authority has come out with a case which has been submitted by the learned AGP but essential submissions rather main submission of the petitioner is only that under Section 207 of the Act the police department has no authority to seize the vehicle and there is no other submissions made by the learned advocate for the petitioner.
[3] To meet with such stand taken by learned advocate appearing for the petitioner, on instructions, a detail affidavit-in- reply filed on behalf of respondent No.2 authority pointing out Page 3 of 18 C/SCA/4096/2018 ORDER that the petitioner has not come out with a clean hand and there is a suppression of material of fact, and therefore, even if there is a good case on merit, no interference in equitable jurisdiction be exercised. It is further submitted by learned AGP that half details are provided of the fact that subsequent events after the seizure have not been projected, and therefore, the petition based upon suppression of material fact is also not to be entertained. Additionally, the learned AGP has submitted that the main affected party i.e. Geology Department has not been joined at all conveniently by the petitioner despite the fact that the truck in question is seized while transporting mineral in it and was found to be overloaded, and therefore, real concerned party is the Geologist. It has been contended that police authorities are in aid and assistance of Geology Department exercising powers, and therefore, it cannot be said that respondent No.2 has basically without any power has seized the vehicle.
[4] Learned AGP has further submitted that in fact royalty passes were not available with the petitioner there was a panchnama executed on 22.02.2018 and pursuant to which even the Collector (mineral branch) has issued a show-cause notice on 03.03.2018 whereby the petitioner is supposed to pay a penalty to the extent of Rs.2,22,949/- evaluated by the authority, and therefore, the appropriate authority has no jurisdiction is of no avail to the petitioner. On the contrary, by virtue of issuance of a notice on 03.03.2018, the custody is to be construed that of Geologist Department even though physical custody may not be with him, and therefore, the Geology Department was of vital consideration the same ought to have been made party. Apart from this, it has also been contended by the learned AGP that the police authorities are to act in coordination with Geology Department and as such there is no absolute proposition that Page 4 of 18 C/SCA/4096/2018 ORDER there is no power at all with authority may be that under Section 207 of Act. The police authority may not have power while seizing the vehicle carrying overloaded mineral but then if it has acted in coordination with Geology Department and for the interest of Geology Department, the action cannot be said to be wholly unauthorized.
[5] Apart from this, learned AGP has further submitted that even the recent instructions have not been brought to the notice by the petitioner before this Court, in which, the Director General of Police by communication dated 20.12.2017 has directed all the Police Commissioner and all Superintended of Police to ensure that at any time when vehicle is illegally transporting mineral is seized and may not be released till proper documents are produced or as per the directions of the National Green Tribunal. Such communication is attached at Annexure- IV with affidavit-in-reply and as such pursuant to these instructions also the police authority cannot be said to be acting without the authority. Even Government Resolution dated 17.01.2011 issued by the Industries and Mines Department, Sachivalaya Gandhinagar has also formed the various Redressal Committees at various level in which at Taluka level the police inspector is also one of the member of the committee, and therefore, the contention of petitioner that police would not have any authority to look into such illegality cannot be expected. On the contrary, the police authorities are under duty to enforce and immediately report to the concerned department and in this case even concerned department upon such noticing has issued show-cause notice which has been suppressed from this Court. Not only this Government Resolution dated 17.01.2011 but even subsequent Resolution dated 19.09.2014 is also relevant and so long as these Resolutions are not under challenge it cannot be said that action Page 5 of 18 C/SCA/4096/2018 ORDER is wholly without the authority of law. In fact, the meeting which is took place on 09.09.2010 held by Task Force Committee formed by the Government has also resolved that police authorities have power to seize vehicle and the same is reflecting clearly from paragraph 5 of communication dated 31.01.2011 by the Director General of Police (CID Crime) and this is also clearly suggesting that the authority has acted in furtherance of enforcement of law and as such no relief can be granted solely by construing under Section 207 of the Act. In fact, conjoint reading of the relevant provisions are to be looked into in conformity which clearly suggest that seizure of vehicle is rightful act on the part of the authority, and therefore, simply because some hyper technicality is being shown to the Court the admitted illegality of carrying of mineral without royalty passes and thereto on overloading wait cannot be ignored and this being extraordinary jurisdiction, no equitable relief to be granted looking to the conduct of the petitioner.
[6] To strengthen submission made by learned advocate appearing for the petitioner, learned AGP an attention is drawn to some of the documents which are attached to the affidavit-in- reply and has ultimately canvased that the relief prayed for does not deserve to be granted.
[7] Having heard the learned advocates appearing for the parties and having gone through the material on record, prima facie suggest following circumstances which are not possible to be ignored by this Court while exercising extraordinary jurisdiction which is purely equitable in nature.
[7.1] It is undisputed fact that the vehicle in question has been seized by respondent No.2 being Police Officer on Page 6 of 18 C/SCA/4096/2018 ORDER 22.02.2018 mainly on the grounds that there were no valid original documents available at the time when vehicle was intercepted. It was also found that the truck in question was in transit with overload of mineral, and therefore, while seizing, an offence is registered by respondent No.2 authority and appropriate report was also made in the form of complain bearing complain No.31 of 2018. It is further not in dispute that when the vehicle in question was seized, the truck in question was having overloaded mineral and for which no royalty passes were available.
[8] The most material fact which is to be taken note of in the present proceeding is that petition is affirmed on 14.03.2018 and was heard by this Court on 15.03.2018 and the averments which are made on oath are mainly generating two issues, one the power related to Section 207 of the Act and another is an identical order passed in Special Civil Application No.13800 of 2015 and has contended for release of vehicle that in similar matter, the Court has considered the case, secondly NOC was given by RTO authority and police authority has no power to seize the vehicle. Now, based upon these averments which are made on 14.03.2018 till affidavit-in-reply filed by department there was no even an attempt made by learned advocate to disclose the material facts which are coming out from affidavit-in-reply. Even at the time when petition was heard, the honesty was shown by the petitioner not to declare these facts nor even to make any amendment and has also chosen not to file any rejoinder and as such the averments which have gone in affidavit-in-reply are not disputed by the petitioner. Now, on the basis of these averments on oath by the petitioner in the petition, following facts are clearly not disclosed before the Court:
Page 7 of 18 C/SCA/4096/2018 ORDER(a) A specific show cause notice was issued and received by the petitioner, issued by Collector (mineral branch) on 03.03.2018, which has a figure of penalty to the extent of Rs.2,22,949/-.
(b) It is also not to dispute that pursuant to intention by police authority, the show cause notice was issued and as such police authority appears to have acted in coordination and has immediately reported about the seizure of vehicle.
(c) It is also not in dispute that the seizure memo was executed in writing, in which, the particulars have been pointed out that no original papers related to vehicle were kept along with it and further either metric ton mineral was overloaded in the truck, and therefore, what is emerging from seizure memo which has been issued signed by the authority well within the knowledge of petitioner that there is a clear violation of provisions of the Act along with the provisions contained under Mines and Mineral Act, and therefore, essentially, it is not the offence only with respect to Motor Vehicle provisions.
(d) It is also reflecting that neither a word about Geology Department is mentioned nor petitioner has chosen to disclose the show-cause notice issued by Collector (mineral branch) nor has thought it fit to join Geology Department as a party which conduct itself is self-explanatory.
(e) The main reliance is placed is with regard to the right to information application and the particulars Page 8 of 18 C/SCA/4096/2018 ORDER which have been provided which are undisputedly of August 2014 whereas the reply of authority has a specific reference of subsequent Resolutions dated 17.01.2011 as well 19.09.2014 i.e. after August 2014.
(f) Further there is also no reference with regard to a communication dated 20.12.2017 issued by the Director General of Police, and therefore, these material particulars which are not controverted are also not disclose and petition is based upon the information of August 2014 much prior to this petition, and therefore, non-disclosure of all relevant materials would be a conduct which cannot be ignored by this Court.
[9] Yet another circumstance has not been dealt with rather it is specifically admitted that Task Force Committee has resolved in a meeting dated 09.09.2010 that the police authorities have power to seize vehicle. Now this has chosen not to be dealt with and as such to allow the petitioner to rely upon solely on interpretation of Section 207 of the Act would be nothing but a travesty of justice. On the contrary, from disclosure of all these materials, it appears that there is a gross suppression of material fact by the petitioner and relevant department has not been joined as a party, and therefore, non- joinder of a necessary party is also a circumstance which cannot be overlooked.
[10] Yet another conduct of the petitioner is not possible to be digested by this Court but despite all these non-disclosure despite non-joinder of relevant department to the procedure only harping upon Section 207 of the Act and an attempt is made to Page 9 of 18 C/SCA/4096/2018 ORDER get the truck in question is released by relying upon for identical order claiming to be applicable is also an attempt which is not worth to be appreciated. While going through the order dated 26.08.2015 passed in Special Civil Application No.13800 of 2015, this Court found that it was a case in which the Court has directed respondent RTO authority to consider and decide the application within a period of 7 days after taking into consideration the notification dated 22.02.2002 and shall pass a reasoned order. Now here is a case in which an affidavit-in-reply, it has been clearly referred to a communication dated 20.12.2017 issued by the Director General of Police a Resolution dated 17.01.2011 in which Redressal Committee has resolved a reference to yet another Government Resolution dated 19.09.2014, and additionally, a communication issued by the Commissioner of Police (CID Crime) dated 31.01.2011. Now, these are the documents have not been disputed nor dealt with nor countered by petitioner, and therefore, to make an attempt just to rely upon the decision dated 26.08.2015 and forthwith release the vehicle is a request which tantamount to be misguided the Court. As a result of this, these are the particulars which are specifically reflecting on record is not permitting this Court to exercise extraordinary equitable jurisdiction. The relevant paragraphs of affidavit-in-reply contained in paragraphs 7, 8, 9, 10, 11, 12, 13 and 14 are the relevant paragraphs which are sufficient enough to refuse the request of petitioner to issue mandamus upon the department and to interpret only Section 207 of the Act and ordered to release the vehicle. In fact, this suppression of material fact before this Court is disentitling the petitioner from seeking any equitable relief from this Court.
[11] The law is amply clear that whenever any attempt is made to suppress the material fact even if there is a good case Page 10 of 18 C/SCA/4096/2018 ORDER on merit, the same is to be dismissed with cost. As a result of this, keeping this principle in mind, this Court is of the opinion that the petition deserves to be dismissed with appropriate cost, in view of aforesaid peculiar set of circumstances. Since, petition is based upon such premise, the Court is not inclined to exercise extraordinary jurisdiction which is equitable in nature and keeping in view a well-defined proposition of law in the case of Sameer Suresh Gupta versus Rahul Kumar Agarwal reported in 2013 (9) SCC 374, the Court is of a definite opinion that would not like to encourage some attempts at the behest of the petitioner, more particularly, when the petitioner is also violator of law, the Court has kept the aforesaid principle in mind while coming to this conclusion. The relevant abstract from the said judgment contended in paragraphs 6 and 7 are reproduced hereinafter:-
6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts Page 11 of 18 C/SCA/4096/2018 ORDER subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or Page 12 of 18 C/SCA/4096/2018 ORDER gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings.
The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or Page 13 of 18 C/SCA/4096/2018 ORDER correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.Page 14 of 18 C/SCA/4096/2018 ORDER
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
Page 15 of 18 C/SCA/4096/2018 ORDER(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative Page 16 of 18 C/SCA/4096/2018 ORDER and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
[12] In view of the aforesaid situation prevailing on record in as it is form, the petition deserves to be not entertained by imposing cost to the extent of Rs.10,000/- payable to the Legal Services Authority within a period of one week from today.
[13] Still, what is emerging from the record is that the seizure memo which has been issued was with respect to two violations, one it appears that no registration papers were available and as such violation of the Act, and secondly, there was an overloading of mineral for which also there was no permission and as such to rely upon Section 207 of the Act alone Page 17 of 18 C/SCA/4096/2018 ORDER and to hold that vehicle in question is to be released for want of authority is not sounding any confidence. In fact, the authorities are required to look into the effect of such violations as well as the relevant rules including Rule 18 of Rules 2005 but then again the seizure has taken place on 22.02.2018 much after the Rules of 2017 which have come into force and the effect of such rules is also to be looked into independently by the authority. As such, the Court deems it proper to leave this issue of taking decision to the concerned authority but within a time bond schedule to be prescribed hereinafter.
[14] However while parting with this decision, the Court is directing respondent authority to take forthwith a decision to consider the request of the petitioner for release of vehicle independently by keeping in mind the relevant provisions of Rules and shall take decision within a period of 7 days from the receipt of writ of this Court.
[15] The aforesaid observations have been made keeping in view the manner of invocation of extraordinary jurisdiction of this Court and as such the decision may be taken independently by the authority without being influenced by the aforesaid observations. If the rules are not permitting or permitting, the authority to impose some condition, and thereby, release the vehicle, it is appropriately to be dealt with on merit in accordance with law by the department within the aforesaid period without any delay.
[16] With the aforesaid observations, the petition stands disposed of.
(A.J.SHASTRI ,J.) dharmendra Page 18 of 18