Delhi District Court
Shri Ajay Kumar Singh vs (1) Shri Dharam Singh on 27 August, 2013
IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT
JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI
CIVIL SUIT NO. 367/2010
Shri Ajay Kumar Singh,
S/o Late Shri S K Singh,
R/o 4/372, Bhola Nath Nagar,
Shahdara, Delhi - 110 032. ............. PLAINTIFF
VERSUS
(1) Shri Dharam Singh,
ASI/Z.O.
Parliament Street, (T) Circle,
Traffic Circle, Parliament Street,
New Delhi.
(2) Shri Vijay Kumar,
Constable No.3966 (T),
Parliament Street, (T) Circle,
Traffic Circle, Parliament Street,
New Delhi.
(3) Shri Navrattan,
The Then Traffic Inspector,
Parliament Street, (T) Circle,
Now posted at :
P.R.G. P.P. R K Puram,
Sector12, New Delhi.
(4) Shri Chander Mohan,
1/17 Ajay Kumar Singh vs. Dharam Singh
A.C.P. Traffic,
Parliament Street, (T) Circle,
P.S. Tilak Marg,
New Delhi - 110 001.
(5) Shri Qamar Ahmed,
Joint Commissioner of Police (T)
P.H.Q., New Delhi - 110 002.
(6) Shri M. S. Upardhye,
Addl. Commissioner of Police,
Delhi (T), P.H.Q.,
New Delhi - 110 002. ............ DEFENDANTS
Date of Institution : 10.08.2006
Date when the case reserved for order : 27.08.2013
Date of Order : 27.08.2013
J U D G M E N T
1. The plaintiff filed the suit for damages of Rs.5,13,800/ against the defendants.
2. In the plaint, it is stated that the plaintiff is the owner of commercial vehicle i.e. the bus bearing registration no. DL1PB3581 (the vehicle) being plied on the route no. 350 from Shahdara to Karol Bagh Bus Terminal. On 10.05.2006 at 10.40 a.m., when the vehicle was being run without any fault, the defendant no.1 along with defendant no.2 stopped the vehicle at Plaza red light and threatened the driver to book the vehicle in a false challan and to impound the same if, they were not paid Rs.600/ as 2/17 Ajay Kumar Singh vs. Dharam Singh entry i.e. bribe. Once the driver protested, they wrongly challaned and impounded the vehicle for violating Supreme Court direction. The driver was also forced to sign the challan. On 11.05.2006, the concerned Special Metropolitan Magistrate passed the order for release of the vehicle and the same was released on the very same day in the evening. The said act of the defendants no.1 and 2 was in violation of direction given by the Hon'ble Supreme Court on 20.11.1997 vide which it was ordered that to enforce the directions mentioned therein, a flying squad made up of inter departmental team headed by Sub Divisional Magistrate (SDM) be constituted and that would exercise the power under section 207 and section 84 of Motor Vehicle Act (MV Act). The defendants no.1 and 2 were not the member of the said team. As such, the said act of the defendants caused loss of earning and physical exertion and mental agony to the plaintiff. The defendants no. 5 to 7 being the senior officials are also responsible for the act of the defendants no. 1 and 2. The plaintiff got issued the legal notice dated 08.06.2006 u/s 140 of Delhi Police Act. The defendants replied the same and denied their liability. Hence, the present suit.
3. Notice of the suit was issued to the defendants who appeared in response thereto and filed their common written statement (WS). The defendants raised the preliminary objection that the defendants no.1 and 2 have been wrongly impleaded in their individual name, rather, they, being the public servant, should have been impleaded as per their designation. So far as the remaining defendants are concerned, they have been unnecessarily impleaded in the present suit. It is also pleaded that the plaintiff is a habitual offender and has initiated the litigation to harass the defendants. It is admitted that the Hon'ble Supreme Court has directed to form flying squad 3/17 Ajay Kumar Singh vs. Dharam Singh headed by SDM. However, it is neither the responsibility nor within the power of the defendants to form the flying squad. U/s 207 of MV Act it is the responsibility of the defendants to regulate the traffic on the road. In exercise of the said powers, the vehicle was properly challaned and impounded. Hence, it is prayed that the suit be dismissed.
4. The plaintiff filed the replication and reiterated the averments made in the plaint.
5. On 28.03.2007, the following issues were framed by the Ld. Predecessor of this court :
(1) Whether the defendants who are all public servants cannot be sued in their individual names as claimed for by the defendants in preliminary objection no. 1 of their written statement? OPD (2) Whether the present suit is liable to be dismissed on account of non impleadment of Union of India or Govt. of NCT of Delhi as claimed for by the defendants in preliminary objection no. 1 of their written statement? OPD (3) Whether the present suit is premature as claimed for by the defendants in preliminary objection no. 5 of their written statement? OPD (4) Whether the defendants no. 3 to 6 are not necessary parties as claimed for by the defendants in preliminary objection no. 7 of their written statement? OPD 4/17 Ajay Kumar Singh vs. Dharam Singh (5) Whether the defendant no. 1 did not have the power to impound the vehicle as claimed for by him in the present suit?
OPP (6) Whether the plaintiff is entitled to recover damages and compensation to the tune of Rs. 5,13,800/ as claimed for by him in the present suit from the defendants? If so, from which particular defendant? OPP (7) Relief.
6. The plaintiff tendered his affidavit by way of evidence and the same is Ex. PW1/N. The plaintiff relied upon registration certificate Ex.PW1/A, the permit Ex.PW1/B, certified copy of judgment dated 23.07.2004 passed by Sh. Anil Kumar Sasodia, Ld. M.M. Delhi Ex.PW1/C, challan Ex.P1, order dated 11.05.2006 passed by Special M.M. Ex.PW1/D, complaint dated 28.06.2005 made by the plaintiff to the defendant no.5 Ex.PW1/E, copy of reply dated 13.12.2005 sent by the defendant no.5 Ex.PW1/F, notice dated 08.06.2006 Ex.PW1/G and postal receipt Ex.PW1/H to Ex.PW1/M.
7. The plaintiff also examined HC Sh. Mohan Lal as PW2.
8. Sh. Ramesh Chander, Sub Inspector was examined as PW3. He proved the letter dated 16.12.2004 Ex.PW3/1 (OSR). He also proved the information supplied to the plaintiff Ex.PW3/A. 5/17 Ajay Kumar Singh vs. Dharam Singh
9. HC Sh. Alkesh was examined as PW4. He proved the communication dated 09.12.2005 Ex.PW4/1 and circular dated 06.10.2005 Ex.PW4/2.
10. Sh. Sudesh Sharma, the driver was examined as PW5 and his affidavit in evidence is Ex.PW5/A.
11. Sh. Veer Narain Singh was examined as PW5 (renumbered). He proved the permit of the vehicle Ex.PW5/A.
12. The defendant no.1 is examined as DW1 and his affidavit in evidence is Ex.DW1/1.
13. Sh. Nav Rattan, Asstt. Commissioner of Police is examined as DW2 and his affidavit in evidence is Ex.DW2/A.
14. I have heard the ld. counsels for the parties and have perused the material available on record including the written submissions filed by the respective parties.
ISSUE NO. 1
15. Onus to prove the issue no.1 was upon the defendants. Case of the plaintiff is that the defendants no.1 and 2 challaned the vehicle in violation of the order 20.11.1997 passed by the Hon'ble Supreme Court. Admittedly, the plaintiff got issued the legal notice u/s 140 of Delhi Police Act read with section 80 of CPC. This implies that according to the plaintiff, the 6/17 Ajay Kumar Singh vs. Dharam Singh defendants no.1 and 2, being the police officials on duty, exercised certain powers in violation of the order passed by the Hon'ble Supreme Court. As such, it can be held that the defendants no.1 and 2, while discharging their officials duty, exercised some powers which according to the plaintiff were not vested in them. Whether the defendants no.1 and 2 exceeded the power or not it is a matter of trial. Therefore, it can be held that the defendants no.1 and 2, being the public servants, cannot be sued in their individual name. Therefore, the defendants no.3 to 7 also cannot be sued in their individual names for the act done by the defendants no.1 and 2 in discharge of their official duty. Even otherwise, while addressing the arguments, counsel for the plaintiff pleaded that the plaintiff is not claiming any relief against the defendants no.3 to 7 and the relief is confined to the defendants no.1 and 2 only. Therefore, the issue no.1 is decided against the plaintiff and in favour of the defendants.
ISSUE NO. 2
16. Onus to prove issue no.2 was on the defendants. Case of the plaintiff is that in terms of the order passed by the Hon'ble Supreme Court on 20.11.1997, a flying squad was to be formed of inter departmental team headed by SDM to enforce the direction passed therein; and also to exercise the power under section 207 as well as section 84 of Motor Vehicle Act (MV Act). Admittedly, after 31.03.2001, the flying squad is not in existence. Therefore, the case of the plaintiff is that the defendants no.1 and 2 had no right to challan and impound the vehicle. It is the specific case of the defendants that they have to control the movement of vehicle on the road and have no role to play in formation of flying squad. Therefore, Union of India and Govt. of NCT of Delhi, being the competent authorities, were the necessary parties to form the flying squad and to explain the effect of its non 7/17 Ajay Kumar Singh vs. Dharam Singh existence. Further, the defendants, being the public servant, are the part of the same. In his evidence, PW1 admitted that he issued a legal notice to the Union of India. This shows that the plaintiff was also aware that the Union of India was a necessary party to the present suit. Despite that, he has not impleaded it in the present suit. Therefore, the suit is bad for nonjoinder of necessary parties. However, this is not sufficient to dismiss the same. Therefore, the issue no.2 is decided accordingly.
ISSUE NO. 3
17. Onus to prove the issue no.3 was upon the defendants. It is stated that the challan case of the present incident is pending before the criminal court, therefore, the present suit is pre mature. The nature of the present proceedings i.e. the civil suit is entirely different from the challan case i.e. the criminal proceedings and the challan case is not a bar to file the present suit. Therefore, the present suit is not pre mature in nature. Therefore, the issue no.3 is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 4
18. Onus to prove the issue no.3 was upon the defendants. While addressing the arguments, counsel for the plaintiff submits that the plaintiff is claiming no relief against the defendants no.3 to 7 and the relief is confined to the defendants no.1 and 2 only. Even otherwise, while deciding the issue no. 1 it is held that the defendants no.3 to 7 cannot be sued in their individual names for the act done by the defendants no.1 and 2 in discharge of their official duty. Therefore, the issue no.4 is decided against the plaintiff and in favour of the defendants.
ISSUES NO. 5 & 6
8/17 Ajay Kumar Singh vs. Dharam Singh
19. The issues no.5 and 6 are taken together as they involve common discussion.
20. Admitted fact are that the plaintiff is the owner of the vehicle; the defendant no.1 challaned and impounded the vehicle on 10.05.2006; and the vehicle was released on 11.05.2006.
21. Case of the plaintiff is that on 10.05.2006 at 10.40 a.m., when the vehicle was being run without any fault, the defendant no.1 along with the defendant no.2 stopped the vehicle at Plaza red light and threatened the driver to book the vehicle in a false challan and to impound the same if, they were not paid Rs.600/ as entry i.e. bribe. Once the driver protested, they challaned the vehicle on the ground of violating Supreme Court direction and impounded the same. The driver was also forced to sign the challan. The said act of the defendants no.1 and 2 was in violation of directions of the Hon'ble Supreme Court vide which it was ordered that to enforce the said directions, a flying squad made up of inter departmental team headed by SDM be constituted and that would exercise the power under section 207 and section 84 of MV Act. The defendants no.1 and 2 were not the member of the flying squad. Therefore, they were not competent to challan and impound the vehicle. As such, the said act of the defendants caused loss of earning and physical exertion and mental agony to the plaintiff. The relevant extract of the order dated 20.11.1997 passed by the Hon'ble Supreme Court in WP (C) no. 13029/1985 in the case titled as "M C Mehta vs. Union of India" is reproduced herein for the sake of convenience:
9/17 Ajay Kumar Singh vs. Dharam Singh "(D) They will ensure that buses halt only at the bus stops designated for the purpose and within the marked area. In this connection also Municipal Corporation of Delhi, NDMC, PWD, Delhi Government, DDA and Union of India and Delhi Cantt. Board would take all steps to appropriate bus stops constructed, appropriate markings made and "bus bays" built as such places as may be indicated by transport/police authorities."
"(G) To enforce these directions, flying squads made up for interdepartmental teams headed by an SDM shall be constituted and they shall exercise powers under Section 207 as well as Section 84 of the Motor Vehicle Act. The Government is directed to notify under Section 86 (4) of the officers of the rank of Assistant Commissioners of Police or above so that these officers are also utilised for constituting the flying squads."
22. The defendants admitted that as per the directions, the flying squad was to be constituted, however, it is pleaded that after 31.03.2001, no flying squad is in existence and it is not their responsibility to form the same. Therefore, under section 207 read with section 84 of MV Act, they have the power to regulate the traffic on road and to take the action including impounding of the vehicle for violation of the order.
23. Before proceedings further, it is necessary to ascertain whether the defendants no. 1 and 2 demanded the bribe from the driver of the vehicle and once the same was not paid, they challaned and impounded the vehicle. In other words, whether the defendants no. 1 and 2 were justified in challaning and impounding the vehicle.
10/17 Ajay Kumar Singh vs. Dharam Singh
24. In his cross examination, PW1 deposed that he was present once the vehicle was challaned. If that was so, he must have intervened in the matter. But this is not the case of the plaintiff in the plaint. Rather the entire plaint is silent to that effect. Further, in that situation, the challan must have been signed by him instead of the driver as he was illiterate as alleged.
25. PW5, in para 3 of the affidavit, deposed that when he showed his inability to pay the bribe, he referred to the owner of the vehicle who was sitting in the vehicle and when the owner refused to pay the vehicle was challaned. No such case is made out in the plaint. On the contrary, in the plaint, it is stated that once the driver protested against the demand of defendant no.1, the vehicle was challaned. In para 4 of the affidavit, PW5 deposed that the vehicle was falsely challaned in violation of the Supreme Court order; that the vehicle was being driven without documents; and that the driver was not in uniform. In the plaint, the plaintiff pleaded grievance only for challaning the vehicle for stopping it at red light and impounding of the same by the defendant no.1 without being the member of flying squad. However, the entire plaint is silent about the challan and impounding on other two grounds i.e. the driver was not in uniform and the original documents were not with him. As such, PW5 made improvement in the evidence. He admitted his signature on the challan Ex.P1. He deposed that the challan was not got signed from the owner. On the contrary, PW1 deposed that he offered to sign but was not permitted. In his cross examination, PW5 deposed that the defendant no.2 demanded Rs.600/ from him and then he told the defendant no.1 that since he was not paying the amount, therefore, the challan be prepared. On the contrary, in para 8 of the 11/17 Ajay Kumar Singh vs. Dharam Singh plaint, the defendant no.1 along with the defendant no.2 stopped the vehicle and threatened to impound the vehicle, if they were not pay Rs.600/ as directed.
26. In view of the foregoing discussions, there exists material contradiction in the statements of PW1 and PW5. Statements of PW1 and PW5 are contradictory on material particulars as to the presence of plaintiff in the vehicle at the time of its challan; and as to the averments made in the plaint as to demand of the bribe and by whom. As such, an adverse inference can be drawn against the plaintiff. Hence, it can be held that the plaintiff was not present in the vehicle at the time of challaning the same. It can also be held that the plaintiff has failed to prove the defendants no. 1 and 2 demanded the bribe and for nonfulfillment of the same, they challaned and impounded the vehicle. In view of the foregoing discussions, it can also be held that the driver of the vehicle violated the three conditions for which the defendants no. 1 and 2 rightly challaned the vehicle.
27. Now the question arises whether the defendants no.1 and 2 had power to challan and impound the vehicle.
28. Admittedly, the vehicle was challaned on three grounds i.e. (1) stopping the same at red light and boarding/deboarding the passengers; (2) the driver was not in uniform; and (3) the driver was not having the documents of vehicle. In the present suit, the grievance of the plaintiff is the challan and impounding of the vehicle on ground no.1 that too that it was challaned and impounded by a person who was not the member of flying 12/17 Ajay Kumar Singh vs. Dharam Singh squad. So far as the grounds no.2 and 3 are concerned, the plaint is silent. In evidence, PW5 tried to implead the grievance on those two grounds also, but the same is beyond pleadings. Hence, it can be held that the vehicle was rightly challaned and impounded on the ground no. 2 and 3.
29. Admittedly, no flying squad is in existence after 31.03.2001. Now the question arises whether, in absence of any such team, an action can be taken under section 207 of M V Act for violating the directions of the Hon'ble Supreme Court and by whom. In other words, whether no action can be taken against a violator of directions issued by the Hon'ble Supreme Court merely because no such team existed at that particular time. It is not disputed by the plaintiff that under the M V Act, the defendant no.1 otherwise had the power to challan and impound the vehicle. His case is that in terms of the order passed by the Hon'ble Supreme Court, the power to challan and impound the vehicle on the ground no. 1 was exclusively vested in the flying squad made up of inter departmental team headed by SDM.
30. Counsel for the defendants relied upon judgment passed by the Hon'ble Delhi High Court in CWP no.4936/2001 in the case titled as "V K Kapoor vs. State Transport Authority & anr." wherein it was held:
"In my considered view, there can be no manner of doubt that purport of the order of the Supreme Court is not that only the SDM would exercise such powers in respect of the violations set out in the order, but that as a measure of streamlining the procedure, such powers should be conferred on these SDMs. The observations made aforesaid of the Supreme Court show that the Supreme Court recognizes the existence of the powers under the 13/17 Ajay Kumar Singh vs. Dharam Singh said Act, the Police Act and the Code of Criminal Procedure. The order referred to by the learned counsel for the petitioners states as under:
" A The police and all other authorities entrusted with the administration and enforcement of the Motor Vehicles Act and generally with the control of the traffic shall ensure the following:
Thereafter, the offences have been mentioned. This itself shows that the direction means that police and all other authorities entrusted with the administration and enforcement of the Motor Vehicles Act are to ensure the directions, which should be read as a part of the condition of permit. After enlisting these conditions for purposes of enforcement of these directions, the SDMs are directed to be appointed in terms as under:
"(g) to enforce these directions, flying squad made up of interdepartmental teams headed by an SDM shall be constituted and they shall exercise powers under section 207 as well as section 84 of the Motor Vehicles Act.
The Government is directed to notify under section 86 (4) the officers of the rank of Assistant Commissioners of Police or above so that these officers are also utilised for constituting the flying squads." In view of the aforesaid, I find no force in the plea of learned counsel for the petitioners on this account.
"The obvious intent was to ensure that in cases of violations mentioned in the Order of the Supreme Court, not only suspension of cancellation of permit can take place, but power can be exercised under section 207 of the said Act. It appears that though the reference has been made to section 84 of the said Act, the Order purports to refer to section 86 of the said Act."
31. In view of the abovementioned judgment, it can be held that SDM heading the flying squad was not the only authority to implement the 14/17 Ajay Kumar Singh vs. Dharam Singh direction of the Hon'ble Supreme Court and the same can be exercised by other authorities also like the Delhi Police and they can exercise the power under section 207 of MV Act also.
32. Counsel for the plaintiff further pleaded that PW4 proved the communication dated 09.12.2005 Ex.PW4/1 and circular dated 06.10.2005 Ex.PW4/2 whereby it was brought to the notice of the senior officials that for the buses which halt at red signal and passengers board /deboard from those buses, all TIs should be briefed not to prosecute U/s 66/192 A for violation of Supreme Court guidelines. Therefore, the act of the defendants was not justified. In the said circular, no reason was given to issue such advisory. The plaintiff has failed to prove that the said circular was binding in nature notwithstanding the judgment passed by the Hon'ble Delhi High Court in CWP no.4936/2001 in the case titled as "V K Kapoor vs. State Transport Authority & anr." Therefore, the said circular is of no consequence.
33. Counsel for the plaintiff also relied upon the order dated 27.09.2010 passed by the Hon'ble Delhi High Court in WP (C) no. 6540/2010 in case titled as "Simender Kaur vs. ACP Traffic (West District) New Delhi and pleaded that the act of the defendants no. 1 and 2 was not justified. In the said order, the Hon'ble Delhi High Court directed the concerned ACP to observe the guidelines of the Hon'ble supreme Court as enshrined in the order dated 20.11.1997 strictu sensu and to observe the same in letter and spirit. The said order nowhere directed the ACPs and SDMs to personally book the offender or remain present while the offender be booked for the violation of the guidelines of the Hon'ble Supreme Court. Even in the order of the Hon'ble Supreme Court it is not mentioned that only SDM shall have the 15/17 Ajay Kumar Singh vs. Dharam Singh right to exercise the power. Therefore, there is not substance in the plea raised by counsel for the plaintiff.
34. It is evident from the record that the defendant also violated the direction 'D' of the Hon'ble Supreme Court i.e the ground no. 1. It is not disputed by the plaintiff that it is the duty of the defendants to regulate the traffic on the roads. Formation of the flying squad was a procedure to supervise the action to be taken for the said violation. Presume for the sake of arguments only that there was procedural lapse on the part of the defendants to challan and impound the vehicle. But the same will not legalize the act of the plaintiff violating the rules/directions for the present purpose. If the suit is decreed in favour of the plaintiff, it will amount to giving a reward to the plaintiff for violating the rules/directions. In other words, it shall amount to allowing the plaintiff to take the advantage of his own wrongs. Further, the plaintiff has not challenged the challan on other two grounds.
35. In the present case, the plaintiff claimed the amount under ten heads as mentioned in para 22 of the affidavit. However, the plaintiff has failed to prove the amount claimed under the said heads. In fact no evidence is led to prove the same. Therefore, even otherwise, the plaintiff has failed to prove the claim made in the present suit.
36. Counsel for the plaintiff pleaded that the defendants no. 1 and 2 had not filled the form OSS. That was a procedural requirement. The lapse of the same, if any, shall not justify the violation of the rules/directions by the 16/17 Ajay Kumar Singh vs. Dharam Singh plaintiff. Counsel for the plaintiff also pleaded that the driver of the vehicle has been discharged in the criminal case, therefore, the present suit may be allowed. The judgment of the criminal court is not binding upon the civil court i.e. the present court. Therefore, there is no substance in the said plea of counsel for the plaintiff.
37. In view of the foregoing discussions, it can be held that the plaintiff is not entitled to the relief as prayed for. Therefore, the issues no. 5 and 6 are decided against the plaintiff and in favour of the defendants. ISSUE NO.7 (RELIEF)
38. In view of the foregoing discussions, the plaintiff is held not entitled to the decree as prayed for. Therefore, the suit is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT,
ON 27th OF August, 2013. (PANKAJ GUPTA)
ADJ(CENTRAL07)/DELHI
27.08.2013
17/17 Ajay Kumar Singh vs. Dharam Singh