Madras High Court
Perumal vs The Regional Transport Officer on 27 February, 2023
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
Writ Petition No.5718 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27/2/2023
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Writ Petition No.5718 of 2023
and
W.M.P.Nos.5724 and 5725 of 2023
Perumal ... Petitioner
Vs
The Regional Transport Officer
Licensing Authority
Office of the Regional Transport Authority
RTO, Redhills
Tamil Nadu ... Respondent
PRAYER : Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of certiorarified mandamus to call for the
records pertaining to the order dated 15/2/2023 passed by the respondent in
Show cause order No.TN18/2023/26, quash the same and consequently,
direct the respondent to return forthwith the petitioner's original license
bearing No.TNAS01 19950093725 without any endorsement.
For Petitioner ... Mr.S.Sakthivel
For respondent ... Mrs.R.Anitha
Special Government Pleader
------
https://www.mhc.tn.gov.in/judis
Page No:1/17
Writ Petition No.5718 of 2023
ORDER
This writ petition has been filed to quash the order, dated 15/2/2023, passed by the respondent in Show cause order No.TN18/2023/26, and consequently, direct the respondent to return forthwith the petitioner's original license bearing No.TNAS01 19950093725 without any endorsement.
2. The facts of the case in a nutshell are as follows:-
In the year 2010, the petitioner was appointed as a Driver through Employment Exchange by the Tamil Nadu State Transport Corporation (Chennai) Ltd. On 14/1/2023, at 2.15 p.m., when the petitioner was driving a bus, bearing Registration No.TN-01-N-5546, near Girija Nagar Bus stop, a biker loses her control, fell down and died on the spot. The Inspector of Police, Redhills Traffic Investigation Wing, Redhills, Chennai, registered a FIR, vide Crime No.29/RH2/2023 on 14/1/2023, under Sections 279, 304(a) of the Indian Penal Code.
https://www.mhc.tn.gov.in/judis Page No:2/17 Writ Petition No.5718 of 2023
3. On 13/2/2023, respondent had issued a show cause notice for which on 14/2/2023, the petitioner had sent a reply to the show cause notice. Without considering the reply to the show cause notice, the respondent had suspended the licence of the petitioner from 14/1/2023 to 13/7/2023. Hence the petitioner has come forward with the instant writ petition praying for the relief as stated therein.
4. Heard Mr.S.Sakthivel, learned counsel for the petitioner.
5. Mrs.R.Anitha, learned Special Government Pleader takes notice for the respondent.
6. The learned counsel appearing for the petitioner submitted that the Police has no power to seize the licence and forwarded the same to the respondent. The respondent cannot impound the licence until the criminal Court finds him guilty. He further contended that in many cases, this Court has held that retaining licence by the respondent is not permissible under law without any enquiry and the Police also has no power to seize the licence. Mere retaining the licence by the respondent, in fact, will have a serious consequences and will affect the drivers engaged by the Corporation and https://www.mhc.tn.gov.in/judis Page No:3/17 Writ Petition No.5718 of 2023 Government Undertakings. Therefore, seeks direction to release the licence.
7. Mrs.R.Anitha, learned Special Government Pleader appearing for the respondent would submit that in view of sub-clause (4) to Section 206 of the Motor Vehicles (Amendment) Act, 2019, Police can very well seize the licence from the driver, who caused an accident. Similarly, under Section 19 (1-A) of the Motor Vehicles (Amendment) Act, 2019, respondent, viz., Regional Transport Officer have a power to suspend or revoke the licence. Hence, submitted that when the authority has power under the statute to seize the impugned licence, the same cannot be returned at the present. Hence opposed the writ petition.
8. It is not disputed that immediately after the accident, licence was seized by the Police and he appears to have forwarded the same to the respondent. It is useful to refer to the judgment of the Hon'ble Division Bench in Sethuram vs. The Licensing Authority reported in 2010 Writ L.R.100, wherein at para 8, the Hon'ble Division Bench has held that a bare reading of Section 19(1) shows that the Licensing Authority has the power to revoke any licence or disqualify a person for a specified period from holding or obtaining a driving licence, if any of the contingencies prescribed in https://www.mhc.tn.gov.in/judis Page No:4/17 Writ Petition No.5718 of 2023 Clauses (a) to (h) of Sub-section (1) of Section 19 arises. Moreover, the power under Section 19(1) can be invoked only after giving an opportunity of being heard to the holder of the licence and reasons to be recorded in writing.
9. Similarly in S. Murugan vs. Licensing Authority [W.A.(MD) No.176 of 2009 dated 22.06.2009, a Hon'ble Division Bench of Madurai Bench of Madras High Court, took the same view. However, directed the Respondent to return the licence, as the licence was retained both without an order in writing and without affording an opportunity of being heard. This is a clear violation of the provisions of the Statute.
10. In S. Krishnan Vs. The Licensing Authority [MANU/TN/1360/2012] the Hon'ble Division Bench of Madurai Bench of Madras High Court, at para 6 held that Section 19 itself gives power to the authority to disqualify a person from holding a driving licence. When the licensing authority is satisfied after giving notice to the licensee and enumerated 10 disqualification clauses, one among them was Section 19 (1) (C) which clearly states that when the vehicle is used and a cognizable offence is made out, all that is required is the authority should satisfy itself https://www.mhc.tn.gov.in/judis Page No:5/17 Writ Petition No.5718 of 2023 whether the petitioner has utilized the vehicle which resulted in a cognizable offence. Admittedly, this appellant used the vehicle and caused the death of a person.
11. Following the above judgments, a Single Judge of this Court has passed an order in K. Perumal vs. The Regional Transport Officer [W.P.(MD) No.9605 of 2022 dated 12.05.2022 – Madurai Bench of Madras High Court].
12. In one of the Writ Petitions filed before me, i.e., in S. Baskaran vs. The Inspector of Police [W.P.No.33204 of 2022 dated 09.12.2022 – Madras High Court], this Court, has directed the authority to return the driving licence. However, in Para No.5 of the Order, this Court had directed the second respondent to await the final orders in the criminal proceedings and if the criteria as provided under Section 19(1) of the Motor Vehicles Act, 1988 is satisfied, second respondent is at liberty to initiate proceedings against the petitioner for suspension/revocation of the driving licence.
13. The observation made by me, in the above Writ Petition https://www.mhc.tn.gov.in/judis Page No:6/17 Writ Petition No.5718 of 2023 (W.P.No.33204 of 2022) is that action under Section 19 (1) of the M.V.Act, could be initiated only after the criminal case is concluded is no longer good law, in view of the Division Bench Judgments referred above. In the Division Bench judgments cited above, the power under Section 19 of the Motor Vehicles Act, to suspend or revoke the licence by the licensing authority have been elaborately dealt with. In such a view of the matter, the contention that till the criminal courts finds the driver guilty of the offence, no action could be initiated under section 19 of the Act to revoke or suspend or impound the licence by the Licensing Authority cannot be accepted.
14. Learned Special Government appearing for the respondent submitted that the police can seize the licence in view of the amendment under Sections 206 and 19 of the Motor Vehicles Act. It is relevant to extract the provisions of the Motor Vehicles Act amended and inserted:
“ 206. Power of police officer to impound document.
(1) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that any identification mark carried on a motor vehicle or any licence, permit, certificate of registration, certificate of insurance or other https://www.mhc.tn.gov.in/judis Page No:7/17 Writ Petition No.5718 of 2023 document produced to him by the driver or person in charge of a motor vehicle is a false document within the meaning of section 464 of the Indian Penal Code, 1860 (45 of 1860) seize the mark or document and call upon the driver or owner of the vehicle to account for his possession of or the presence in the vehicle of such mark or document.
(2) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it into the Court taking cognizance of the offence and the said Court shall on the first appearance of such driver before it, return the licence to him in exchange for the temporary acknowledgment given under sub-section (3).
(3) A police officer or other person seizing a licence under sub-section (2) shall give to the person surrendering the licence a temporary acknowledgment therefor and such acknowledgment shall authorise the holder to drive until the licence has been returned to https://www.mhc.tn.gov.in/judis Page No:8/17 Writ Petition No.5718 of 2023 him or until such date as may be specified by the police officer or other person in the acknowledgment whichever is earlier:
Provided that if any Magistrate, police officer or other person authorised by the State Government in this behalf is, on an application made to him, satisfied that the licence cannot be, or has not been, returned to the holder thereof before the date specified in the acknowledgment for any reason for which the holder is not responsible, the Magistrate, police officer or other person, as the case may be, may extend the period of authorization to drive to such date as may be specified in the acknowledgment.
(4) A police officer or other person authorised in this behalf by the State Government shall, if he has reason to believe that the driver of a motor vehicle has committed an offence under any of sections 183, 184, 185, 189, 190, 194C, 194D, or 194E, seize the driving licence held by such driver and forward it to the licensing authority for disqualification or revocation proceedings under section 19:
https://www.mhc.tn.gov.in/judis Page No:9/17 Writ Petition No.5718 of 2023 Provided that the person seizing the licence shall give to the person surrendering the licence a temporary acknowledgement therefor, but such acknowledgement shall not authorise the holder to drive until the licence has been returned to him.”
15.a. On perusal of the above provisions sub-clause (1) gives power to the police to seize the licence if the police has reason to believe that there is any mark or document relate to the vehicle is false.
b. Similarly sub-clause (2) empowers the police, authorised by the State Government, if the police has reason to believe that the driver of motor vehicle who is charged with any offence under the Motor Vehicles Act, may abscond or otherwise, avoid the service of summons, seize any licence held by such driver and forward it to the Court concerned. The court concerned can return the licence to the concerned parties.
c. Sub-clause (3) deals with the temporary acknowledgment by the police officer authorising the holder of driving licence to drive the vehicle until the licence returned to him.
https://www.mhc.tn.gov.in/judis Page No:10/17 Writ Petition No.5718 of 2023 d. Sub-Clause (4) empowers the police officer to seize the licence if he has reason to believe that the driver of the motor vehicle committed an offence under any of Sections 183, 184, 185, 189, 190, 194C, 194D, or 194E of the M.V. Act,
16. A careful perusal of the Sub-Clause (4) of Section 206 makes it clear that when the police officer has reason to believe that the offence committed in any of the Sections, particularly in the Motor Vehicles Act, such officer can seize the licence. On such seizure, acknowledgment to be given by the police authorising the holder to drive the vehicle until the licence is returned to him.
17. Section 19 (1) (A) of the Motor Vehicles (Amendment) Act, 2019 makes it clear that where a licence has been forwarded to the licensing authority under sub-section (4) of Section 206 of the Motor Vehicles Act, the licensing authority, if satisfied after giving the holder of the driving licence, an opportunity of being heard, may either discharge the holder of a driving licence or, it may for detailed reasons recorded in writing, make an order disqualifying such person from holding or obtaining any licence to drive all https://www.mhc.tn.gov.in/judis Page No:11/17 Writ Petition No.5718 of 2023 or any class or description of vehicles specified in the licence—
(a) for a first offence, for a period of three months;
(b) for a second or subsequent offence, with revocation of the driving licence of such person.
18. Therefore, before any action taken under Section 19 of the Act, an opportunity has to be given by the Licensing Authority. Therefore, the seizure power of the police introduced under Section 206 of the Act is only in certain circumstances. Only if the police officer has reason to believe that offence has committed in any of the following Sections 183, 184, 185, 189, 190, 194C, 194D, or 194E under sub-clause (4) of Section 206 of the M.V. Act, he can seize the licence and forward to the Licensing Authority. The combined reading of Clauses 1, 2, 3, and 4 of Section 206 of M.V.Act, makes it clear that only under three contingencies, the Police officer can seize the licence, particularly, when the identification mark or licence or the documents relating to the vehicle are false, those documents can be seized under sub-clause (1).
19. The second contingency on which Police officer can seize the https://www.mhc.tn.gov.in/judis Page No:12/17 Writ Petition No.5718 of 2023 licence is if any person charged under the M.V. Act, try to abscond or avoid service of summons, licence may be seized and temporary acknowledgement can be given. Another circumstances under Sub-clause 4 of Section 206 of the Act is when the Police officer has reason to believe that the driver of a motor vehicle has committed an offence under any of the Sections 183, 184, 185, 189, 190, 194 C, 194 D, or 194 E, of the M.V.Act, the licence can be seized by the Police Officer. The power vested under Section 206 for seizure of the licence is not automatic. Only when the Police Officer records the reasons to believe that any of the circumstances as narrated in Section 206 is attracted, he can exercise such a power. The word “reason to believe” as defined under Section 26 of the Indian Penal Code reads as follows:
“Section 26 of The Indian Penal Code
26. “Reason to believe”.—A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise.
20. The word “reason to believe” excludes mere suspicion or doubt. The word believe is very much stronger word than suspect and involves the necessity of showing the circumstances that a reasonable man must have felt https://www.mhc.tn.gov.in/judis Page No:13/17 Writ Petition No.5718 of 2023 convinced his mind, that circumstances exists to proceed under section 206 of the M.V. Act. “Reason to believe” means belief which a reasonable man will entertain on the facts before him and it contemplates an objective based on the independent care and deliberation and the same must be based on the good faith. In substance, the reason to believe means that a person must have a reason to believe if the circumstances are such that reasonable man would, by probable reasoning conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference but it sufficient such circumstances are creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing.
21. In such a view of the matter, even to exercise power under Section 206 of the Act, the Officer exercising the power has to record reasons in writing considering the facts and circumstances of the particular case. The seizure of the licence is not automatic. Without recording reasons obtaining to the facts and circumstances of the particular case such power cannot be exercised mechanically. With regard to exercise the power under section 19 of the Act by the RTA, it is relevant to note that before exercising such an action, notice of opportunity to be given to the holder of licence. Sub-clause https://www.mhc.tn.gov.in/judis Page No:14/17 Writ Petition No.5718 of 2023 2 of Section 19 makes it very clear that only the order under sub-clause 1 or Sub-clause 1-A is made, the holder of driving licence shall forthwith surrender his licence to the Licensing Authority making the order, if the driving licence is not already ordinarily surrendered.
22. In such a view of the matter, this court is of the view that seizure of the licence to take action under Section 19 of the Act, is not mandatory. Irrespective of licence being surrendered or produced before the authorities, the action can be initiated by the authorities, under Section 19 of the Act, on the report submitted by the police. Therefore, this Court is of the view that merely on the basis of the FIR is registered particularly in the other IPC offences, the Police Officer cannot have power to seize the licence. If at all any action is contemplated under Section 19 of the Act, they may forward a report to the concerned RTA to take action, under Section 19 of the Act. On such report, if the licensing authority is satisfied with any of the contingencies in clauses 1(a) to (h) of Section 19 and sub-clause 1A of the Act and after giving an opportunity to the holder of the licence, may pass an order, as contemplated in Section 19 of the Act.
23. Accordingly this Court hold that the seizure of the licence in the https://www.mhc.tn.gov.in/judis Page No:15/17 Writ Petition No.5718 of 2023 given case is not valid in the eye of law and the respondent is directed to return the licence, within one week, from the date of receipt of copy of this order. It is well open to the respondent to send a report to the RTA for taking appropriate action. The RTA may after providing an opportunity to the petitioner may proceed under Section 19 of the M.V. Act and to pass an order on merits.
24. In such a view of the matter, the Writ Petition is allowed. No costs. Consequently, the connected Miscellaneous Petitions are closed.
27/2/2023 Index : Yes / No Internet: Yes Speaking/non speaking order Neutral Citation: Yes/No mvs.
To The Regional Transport Officer Licensing Authority Office of the Regional Transport Authority RTO, Redhills Tamil Nadu https://www.mhc.tn.gov.in/judis Page No:16/17 Writ Petition No.5718 of 2023 N. SATHISH KUMAR, J mvs.
W.P.No.5718 of 2023 27/2/2023 https://www.mhc.tn.gov.in/judis Page No:17/17