Andhra HC (Pre-Telangana)
M. Venkateswara Rao And Ors. vs Secretary, R.T.A. And Ors. on 16 December, 1999
Equivalent citations: 2000(1)ALT170
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER B. Sudershan Reddy, J.
1. This batch of writ petitions can be disposed of by a common order, as the question that arises for consideration is one and the same. I have elaborately heard the learned Counsel for the petitioners and the learned Government Pleader for Transport at the admission stage. At their request the matter is taken up for final disposal.
2. Rule Nisi.
3. The petitioners assail the legality and propriety of the action of the respondents in seizing the vehicles on the basis of the check report. To appreciate the controversy, the facts in one writ petition may be noticed.
4. The petitioner in W.P. No. 25348 of 1999 claims to be the registered owner of the vehicle bearing No. KA.01/B-1111. It is stated that the vehicle is covered by an All India Tourist permit granted by the State Transport Authority, Bangalore. The permit is valid up to 12-10-2003. The vehicle is also authorized to operate in the State of Andhra Pradesh. According to the petitioner; the vehicle is covered by valid tax paid to the Home State upto 31-12-1999. It is also covered by valid tax to the State of A.P. upto 31-12-1999. It is the case of the petitioner that the vehicle was engaged by a tourist party of Bangalore to visit Hyderabad. The second respondent herein checked the vehicle at about 8-30 a.m. on 6-12-1999 at the outskirts of Hyderabad and prepared the check report No. 452041 dated 7-12-1999 in which it is alleged that the vehicle was proceeding from Bangalore to Hyderabad with 35 passengers. It was carrying individual passengers from Bangalore to Hyderabad. All of them are individual passengers. The vehicle did not make circular trip and that the driving licence is not valid since the driver does not know national language without minimum educational qualification and that permit conditions 9B-1 to 12 are violated. According to the second respondent the liability of tax might be Rs. 75,500/-. In the check report, it is further stated that there was commercial luggage in the vehicle. On those allegations, the second respondent herein seized the vehicle of the petitioner in purported exercise of power under Section 207 of the Motor Vehicles Act and Section 8 of the A.P. Motor Vehicle Taxation Act.
5. Aggrieved by the seizure of the vehicle, the present writ petition is filed. The petitioner accordingly prays for a writ of Mandamus declaring the seizure and continued detention of the petitioner's vehicle seized under vehicle check report dated 7-12-1999 as arbitrary and illegal. The petitioner also prays for a consequential direction directing the respondents to release the vehicle of the petitioner forthwith.
6. In the counter-affidavit filed by the respondents, it is stated that the vehicle was checked under check report No. 452041 and found coming from Bangalore with 35 passengers and the following irregularities were noticed among other things:
(1) Carrying individual passengers picked-up at different places in Bangalore by paying different fares and coming to Hyderabad. (2) The Driving licence was not produced at the time of check.
(3) Carrying commercial luggage for commercial purpose for hire;
(4) The driver was not having necessary qualification to drive All India Tourist Vehicle. (5) At the time of check there were 35 passengers whereas the passenger list contained 28 names; (6) Permit conditions as prescribed for tourist vehicles were not complied.
7. It is categorically stated that the said vehicle was seized under Section 207(1) of the Motor Vehicles Act, 1988 and Section 8 of the A.P.M.V. Taxation Act, 1963 and prima facie found that the tax liability would be at Rs. 75,500/-. It is also alleged that the owner has misused the permit and violated the conditions and plied the vehicle as express stage carriage. It is submitted that the list of passengers, the statements taken by the checking officer indicates that the passengers were traveling for various purposes like Business, Visit to relations, official duty, return to home etc. and not for tourism purpose. The other averments made in the counter-affidavit may not be necessary. The very allegations made in the check report are once again reiterated in the counter-affidavit.
8. It is however, stated in the counter-affidavit specifically, that the petitioner has not approached the competent authority under Section 207(2) of the M.V. Act for the release of the vehicle on production of relevant documents so as to enable the authorities to pass appropriate orders as to release of vehicle on reasonable conditions pending enquiry.
9. Learned Counsel appearing on behalf of the petitioners submit that Section 8 of the A.P.M.V. Taxation Act has no application at all inasmuch as tax has been paid before obtaining the special permit and if additional tax has to be levied on proof of the allegation that the permit was misused or the conditions have been violated, an enquiry has to be conducted by a competent authority and till then it cannot be said that any tax has become due. May be so. As far as the other allegations are concerned, the petitioners merely denied them.
10. Learned Government Pleader would contend that a writ of Mandamus to declare the seizure itself as illegal and arbitrary does not lie, as the respondents are clothed with jurisdiction to seize the vehicle on the grounds stated in Section 207(1) of the M.V. Act and Section 8 of the A.P.M.V. Taxation Act. Learned Government Pleader submits that the writ petitioners have to necessarily approach the competent authority under Section 207(2) of the M.V. Act before approaching this Court. It is further submitted that the Court at this stage cannot make any enquiry with regard to the truth or otherwise of the allegations contained in the check report, as the same may have to be enquired by the competent authority under Section 207 of the M.V. Act.
11. It may be required to notice that in none of these matters, practically, the petitioners have invoked the jurisdiction of the competent authority under Section 207(2) for releasing the vehicle. They have straightaway approached this Court praying for issuance of a writ of Mandamus declaring the seizure itself as illegal.
12. In Nirmala Jagdishchandra Kabra v. The Transport Commissioner, , the Apex Court observed that "The statutory power given to the authorized officer under Section 207 is to ensure compliance of the provisions of the Act. Therefore, the mandamus sought for cannot be issued when the vehicle is seized in purported exercise of power under Sub-section (1) of Section 207.
13. In A. Raghunandan v. Assistant Secretary, Gudi Malkapur, Hyderabad, this Court while construing the very provisions of Section 207 of the M.V. Act, rejected the contention of the petitioner therein that an aggrieved person need not approach the competent authority under Section 207(2) of the Act before approaching this Court, as it is not obligatory for an aggrieved person to invoke the jurisdiction of the competent authority for release of the vehicle under Section 207 (2) of the Act. Learned Counsel for the petitioners relied upon the orders passed by this Court at the admission stage in support of their contention that the vehicles were directed to be released even though the aggrieved persons have not invoked the jurisdiction of the competent authority under Section 207(2) of the Act. This Court in Raghunandan's case(supra) observed that such orders were passed by the learned single Judge of the Court in the facts and circumstances of the cases and "no principle as such, was............laid down". This Court accordingly disposed of writ petition by holding that unless the alternative remedy is exhausted, it is not proper to entertain the writ petition. Accordingly, liberty was given to the petitioner therein to make an application and the respondents were directed to consider the. said application in accordance with-law.
14. In Deputy Commissioner (Prohibition and Excise), Karimnagar v. Shobalal, (D.B.) while dealing with the seizure of the vehicle under the Excise and Prohibition Act observed that "the Court in exercise of its jurisdiction under Article 226 of the Constitution of India observed that it is necessary in all such cases to ask the petitioners why he has not moved the competent Court or the authority before whom the seized goods or vehicles have been produced and why he has chosen to move this Court directly "and further observed that" it has become almost free for all that the moment there is a seizure, this Court's jurisdiction under Article 226 of the Constitution of India is invoked and on such ex parte statements which petitioners make, orders to release the vehicles/goods are passed." The Division Bench found fault with such orders passed by the learned single Judges. It is observed that "It will also be necessary in all such cases to see that a vehicle used in crime can be recycled and used again and again and unless there is some check created by the appropriate order in this behalf, release may contribute to the repetition of the crime than doing any justice. The Court cannot justify its order unless all these aspects are borne in mind. The power under Article 226 of the Constitution is undoubtedly very wide. But, the Court exercises self-imposed restrictions and applies all relevant considerations which must operate in the mind of the Court while making a judicial order. We are satisfied that the impugned order is not sustainable at all. The same is accordingly set aside. The appeal is allowed. It shall be open to the writ petitioner-respondent to approach the appropriate authority for the appropriate order for the release of the vehicle".
15. However, learned Counsel for the petitioners would rely upon number of orders passed by this Court at the admission stage disposing of the writ petitions directing the release of the vehicle on certain conditions. Almost all the writ petitions were disposed of at the admission stage and the question as to whether a writ of Mandamus would lie declaring the very seizure of the vehicles was not considered in any one of those cases. The question as to whether the aggrieved persons can be permitted to invoke the jurisdiction of this Court under Article 226 of the Constitution of India even before approaching the competent authority was not gone into. However, a Division Bench of this Court in Writ Appeal No. 1740 of 1999 observed that "Having regard to the nature of the allegation made against the petitioner and the defence set up by the petitioner, we are of the view that a direction straightaway ordering release of the vehicle is not in conformity with law. The respondent-writ petitioner shall approach the 1st appellant herein and seek release of the vehicle under Section 207(2) of the Act. The 1st appellant shall consider the representation of the writ petitioner and pass a reasoned order in this regard within three days from the date of submission of the representation by the petitioner, excluding the holidays". Reliance is also placed upon an order passed by this Court in W.P. No. 15071 of 1999 dated 4-8-1999 which was disposed of at the admission stage directing the release of the vehicle by following the decision of this Court in T. Suryanarayana Murthy v. Secretary, R.T.A., Krishna (1982 (2) APLJ 90 (SN), where this Court expressed its opinion that the seizure of the vehicle by the Transport authority on the high way should be held as not justifiable under Section 8 of the A.P. Motor Vehicles Taxation Act and the provisions of Section 8 of the Act are inapplicable as there was no tax due to the authorities at the point of seizure.
16. However, while adverting to the very same arguments as to the applicability of Section 8 of the Taxation Act in such situation, a Division Bench of this Court in W.P. No. 14331 of 1999 dated 13-7-1999 observed that "though there is some force in the contention of the learned Counsel, nevertheless, we arc of the view that the seizure can be justified under Section 207 of the Motor Vehicles Act". It is further observed that "The mere fact that reference is also made to Section 8 does not vitiate the act of seizure of the vehicles". The Court however, further observed that "there would be no justification for the continued detention of the vehicle". Having said so, the vehicle was directed to be released subject to certain conditions. The other orders upon which reliance is placed by the learned Counsel for the petitioner do not lay down any principle or law as such.
17. However, a learned single Judge of this Court in W.P. No. 14762 of 1997 passed an elaborate order after adverting to the Circular dated 11-7-1997 passed by the Transport Commissioner and refused to interfere in the matter. The Circular dated 11-7-1997 passed by the Transport Commissioner is self-explanatory. Necessary directions are issued in the said Circular directing the competent authority to immediately conduct enquiry after the seizure of the vehicle by issuing necessary show-cause notice. The vehicles were directed to be released, if the registered owner of the vehicle agreed to pay the amounts. The competent authorities were directed to dispose of the applications filed by the petitioners whenever the Court directed the petitioners to approach the authorities for the release of the vehicles. In any case, the matters relating to release of the vehicles under seizure should not be delayed. In the light of those circular instructions, this Court refused to interfere in the matter and accordingly directed all the aggrieved persons to approach the competent authority for release of the vehicles. It is conceded at the Bar by the learned Counsel for the petitioners that the respondents have the jurisdiction to seize the vehicle under Section 207(1) of the M.V. Act on the grounds stated therein. However, it is contended that the respondents cannot seize the vehicle under Section 8 of the Taxation Act as in none of the cases, the tax can be said to be due from the petitioners. According to the learned Counsel appearing on behalf of the petitioners, the tax would become due only after it is assessed and demanded. It is not necessary to go into this controversy as observed by a Division Bench of this Court in W.P. No. 14331 of 1999 that the seizure can be justified under Section 207 of the M.V. Act and the mere fact that reference is also made to Section 8 does not vitiate the act of seizure of the vehicle.
18. At any rate, it is not possible for this Court to express any opinion whatsoever on the merits of each of the cases, as the same is required to be enquired into by the competent authority.
19. It is also conceded at the Bar that the competent authority has the jurisdiction to pass an appropriate order directing the release of the vehicle in exercise of jurisdiction under Section 207(2) of the Act. In fact, in the counter-affidavit itself, it is stated that the competent authority is willing to consider the release of the vehicle provided an application is filed under Section 207(2) of the Act. Learned Government Pleader submits that in every case, the competent authority is willing to consider the release of the vehicle provided an application is made under Section 207(2) of the Act.
20. In such view of the matter, I am of the considered opinion that it may not be appropriate to issue Writ of Mandamus compelling the respondents to release the vehicles whenever they are seized subject to such uniform conditions. The aggrieved persons have to necessarily go before the competent authority and ask for release of the vehicle. The application is required to be filed under Section 207(2) of the Act read with the A.P.M.V. Rules, 1989. Rule 448-A prescribes the procedure for seizing and detaining a Motor Vehicle. Rule 448-B says that an application for release of a vehicle seized and detained under sub-section (1) of Section 207 shall be in the form of a memorandum in duplicate with relevant documents duly enclosing a fee of rupees twenty-five. Sub-rule (2) of Rule 448-B says that the Secretary, Regional Transport Authority, of the Region shall entertain application for release of vehicles seized and detailed by his subordinate officers provided that an application shall be made to the Deputy Transport Commissioner in the case of check made by the Secretary, Regional Transport Authority in the cadre of Regional Transport Officer and the Transport Commissioner, if the Secretary, Regional Transport Authority is of the cadre of Deputy Transport Commissioner or Joint Transport Commissioner. Thus it is clear that an application for release of a vehicle seized and detained shall have to be made in accordance with the Rules. In some cases, it is brought to the notice of the Court that oral applications filed by them are not entertained by the authorities. In some other matters, applications are filed but without payment of any fee. Such a course is not permissible.
21. Having regard to all the facts and circumstances of the case and in the light of various orders passed by this Court and the decisions referred to hereinabove, I am of the considered opinion that a Writ of Mandamus would not lie directing the release of the vehicles, nor the seizure itself can be declared as illegal. The aggrieved persons have to necessarily file application for release of the vehicle seized and detained by the competent authority for the release of the vehicle, if they so desire. Such applications filed in the form of Memorandum in duplicate with relevant documents duly enclosing a fee of rupees twenty-five shall be entertained by the competent authority without any objection whatsoever. All such applications filed by the aggrieved persons shall have to be disposed of by the competent authority as expeditiously as possible at any rate, not later than forty eight hours from the time of filing of such applications. The competent authority shall make available copy of the order passed disposing of the applications so filed by the aggrieved persons. In every case, the competent authority shall pass speaking order, so as to enable the aggrieved persons to question the same, if aggrieved. The competent authority has to consider each individual application on its own merits and take an appropriate decision. It shall be open to the competent authority to impose such reasonable and practicable conditions for the release of the seized vehicles. They shall bear in mind that continued detention of the vehicle seized would serve no purpose.
22. For all the aforesaid reasons, these writ petitions are accordingly disposed of. The respondents are accordingly directed to dispose of the applications filed by the petitioners, if any, within forty eight hours from the time of filing of the applications and communicate the decision to the petitioners. In such of the cases where the applications have not been filed, the petitioners shall file the same and the respondents in the like manner shall dispose of all such applications within forty eight hours in accordance with law. No other relief could be granted to the petitioners.
23. The writ petitions are accordingly disposed of. No costs.