Kerala High Court
Rafeek .P vs Regional Transport Officer ... on 22 June, 2023
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 22ND DAY OF JUNE 2023 / 1ST ASHADHA, 1945
WP(C) NO. 20238 OF 2023
PETITIONER/S:
RAFEEK .P, AGED 37 YEARS
S/O MOIDU, RESIDING AT PAROL, KANHIRANGAD P.O.,
TALIPARAMBA, KANNUR DISTRICT, PIN - 670142
BY ADVS.
G.HARIHARAN
PRAVEEN.H.
K.S.SMITHA
V.R.SANJEEV KUMAR
BIJOY SAM GEORGE
RESPONDENT/S:
1 REGIONAL TRANSPORT OFFICER (ENFORCEMENT),
CIVIL STATION, KANNUR - 670002., PIN - 670002
2 JOINT REGIONAL TRANSPORT OFFICER , SUB- REGIONAL
TRANSPORT OFFICE, 6/140 N, KATTI COMPLEX, MANNA,
THALIPARAMBA, KANNUR DISTRICT, PIN - 670141
3 TRANSPORT COMMISSIONER,TRANS TOWERS, VAZHUTHACAUD
THIRUVANANTHAPURAM, PIN - 695014
4 STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY
TO GOVERNMENT, TRANSPORT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
5 UNION OF INDIA, REPRESENTED BY THE PRINCIPAL SECRETARY
TO GOVERNMENT, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS,
SANSAD MARG, NEW DELHI, PIN - 110001
OTHER PRESENT:
GP SRI SREEJITH V S
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 20238 OF 2023
2
JUDGMENT
The writ petition is filed, interalia, to quash Ext.P5 order passed by the 1st respondent suspending the driving license of the petitioner.
2. The petitioner's case is that, he is a driver by profession holding Ext.P1 heavy driving license. The petitioner has been served with Ext.P3 show cause notice on 09.05.2023 asking him as to why his driving license shall not be suspended under Section 19 read with Section 113(3)(b) of the Motor Vehicles Act, 1988 (in short, 'Act'). Although the petitioner submitted Ext.P4 reply to Ext.P3 show cause notice, the 1st respondent has passed Ext.P5 order suspending his license. The 1st respondent does not have the power to invoke the provisions of Sections 113 and 114 of the Act. Perhaps, the 1st respondent acting on Ext.P6 order passed by the Transport Commissioner has carried out the acts. Though the petitioner has a right to file a statutory appeal under Section 57 of the Act WP(C) NO. 20238 OF 2023 3 challenging Ext.P6 order, in view of the interpretation given in Ext.P6, no useful purpose will be served in filing the appeal. Recently, it has become a practice of the Enforcing Officers to assert the powers of the Original Licensing Authority, without territorial jurisdiction, leaving the hapless drivers remediless. In an identical situation, a person similarly situated to the petitioner had filed W.P.(C.) No.18138/2023 before this Court and Ext.P7 judgment has been passed. Ext.P6 order is ex-facie illegal and unsustainable in law. Hence, the writ petition.
3. Heard; Sri.G.Hariharan, the learned Counsel appearing for the petitioner, Sri.Sreejith V.S., the learned Government Pleader appearing for respondents 1 to 4 and the learned Deputy Solicitor General of India appearing for the 5th respondent.
4. Sri.G.Hariharan, argued that there is absolutely nothing on record to substantiate that the petitioner has violated the provisions of the Motor Vehicles Act, by carrying overload in the vehicle that he was driving, WP(C) NO. 20238 OF 2023 4 as alleged by the respondents. Therefore, Ext.P5 order may be quashed.
5. Sri.Sreejith V.S., on the contrary, submitted that the petitioner has deliberately not produced the e- challan that was issued by the respondents at the time of carrying out the inspection of the vehicle. It was the petitioner who handed over the weighment certificate, which clearly establishes that the vehicle was overloaded. It was on the strength of the weighment certificate that the respondents have issued Ext.P3 order. The proceedings have been initiated to revoke licenses of those drivers who violate Section 19 read with Rule 21(8) of the Central Motor Vehicles Rules, 1989, in the light of the direction passed by this Court in Anoop K.A. v. State of Kerala [2019 (5) KHC 414]. Hence, the writ petition is to be rejected at the threshold.
6. Section 19 of the Motor Vehicles Act empowers the Licensing Authority, after giving holder of the license an opportunity of being heard, to revoke the WP(C) NO. 20238 OF 2023 5 license, if the license holder has caused nuisance or danger to public.
7. Rule 21(8) of the Central Motor Vehicles Rules, 1989, unambiguously lays down that nuisance or danger to public includes carrying overload in a goods carriage vehicle.
8. Having considered the pleadings and materials on record and taking note of the fact that Ext.P5 is an appealable order under Section 19(3) of the Act, I am of the definite view that the petitioner has an alternative statutory remedy. Thus, I am not inclined to entertain the writ petition. Nonetheless, it will be upto the petitioner to work out his statutory remedies. But, I permit the petitioner to prefer an appeal, if so advised, before the Appellate Authority within thirty days from the date of receipt of a certified copy of this judgment. It is made clear that this Court has not expressed anything on the merits of Ext.P5 order. Resultantly, I dispose of the writ petition as follows:
WP(C) NO. 20238 OF 2023 6
(i) The petitioner's prayer to quash Ext.P5 order is rejected.
(ii) The petitioner may file an appeal against Ext.P5 before the Appellate Authority as provided under Section 19(3) of the Act, if so advised, within a period of thirty days from the date of receipt of a certified copy of this judgment.
(iii) If such an appeal is filed, the Appellate Authority shall consider the appeal, in accordance with law and as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment after affording the petitioner an opportunity of being heard.
(iv) Until such time orders are passed on the proposed appeal, the respondents shall not revoke the license of the petitioner.
Sd/- C.S.DIAS JUDGE rkc/22.06.23 WP(C) NO. 20238 OF 2023 7 APPENDIX OF WP(C) 20238/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE HEAVY DRIVING LICENSE NO. KL 59 20040001989 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE PETITIONER Exhibit P2 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE NO. KL-59T-0690 Exhibit P3 A TRUE COPY OF SHOW CAUSE NOTICE DATED 09.05.2023 ISSUED BY THE 1ST RESPONDENT PROPOSING TO SUSPEND THE LICENSE OF PETITIONER Exhibit P4 . A TRUE COPY OF THE OBJECTION DATED 22.05.2023 SENT BY THE PETITIONER ADDRESSED TO THE 2ND RESPONDENT AGAINST EXHIBIT.P3 NOTICE Exhibit P5 A TRUE COPY OF THE PROCEEDINGS DATED 01.06.2023 ISSUED BY THE 1ST RESPONDENT AGAINST THE PETITIONER Exhibit P6 A TRUE COPY OF THE ORDER NO.A1/24/2022- TC DATED 09.02.2022 ISSUED BY THE 4TH RESPONDENT Exhibit P7 A TRUE COPY OF THE JUDGMENT MADE IN W.P. (C).NO.18138/2023 BY THIS HON'DLE COURT ON 12.06.2023