Vijay Kashinath Goradkar vs The State Of Maharashtra
2021 Latest Caselaw 9344 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL WRIT PETITION NO.686 OF 2021

            Vijay Kashinath Goradkar
            Age 39 years, Occupation Business,
            Residing at : 12 Kategaokhadi Par,
            Near Sunder Haveli, Bhiwandi,
            Dist. Thane                                                ...Petitioner
                    Versus
            The State of Maharashtra
            (at the instance of Dy. Regional
            Transport Officer), Vashi, Block T,
            Sector 9/B, APMC Market,
            Navi Mumbai, Mumbai-400 705                                ...Respondent


            Mr. Prashant Jadhav i/b Ms. Vishakha Vijay Pandit for the Petitioner

            Mr. A. D. Kamkhedkar, A.P.P for the Respondent-State

            Mrs. Hemangini B. Patil, Deputy Regional Transport Officer, Navi
            Mumbai, is present in Court

            Mr. Nilesh P. Dhote, Inspector from Deputy Regional Transport Office,
            Navi Mumbai, is present in Court

                                               CORAM : REVATI MOHITE DERE, J.

(THROUGH VIDEO-CONFERENCING) FRIDAY, 16th JULY 2021

ORAL JUDGMENT :

            1                 Heard learned counsel for the parties.


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            2                 Rule. Rule is made returnable forthwith with the consent of

the parties and is taken up for final disposal. Learned APP waives service

on behalf of respondent-State.

3 By this petition, the petitioner seeks release of his vehicle

having registration No. MH43AQ9191, make-Toyota Kirlosar Motor Pvt.

Ltd., Model Fortuner 3.0L 2 WD MT, Colour White, year 2013, Engine No.

IKDU258934, Chassis No. MBJ11JV6104012952, currently lying at RTO

Test Ground, Vashi, Navi Mumbai, to the petitioner, forthwith; as well as a

direction to the respondent to pay compensation of Rs. 50,000/- to the

petitioner.

4 Learned counsel for the petitioner submits that the detention of

the petitioner's vehicle was unwarranted and contrary to the provisions of

law. He submits that the petitioner had purchased the said car from Shri

Siman Kaskar (Auto Pulse Showroom), who was a successful bidder in the

auction conducted by the Kotak Mahindra Bank for the said motor vehicle.

Learned counsel relied on the Sale Agreement entered into between the

petitioner and Mr. Siman Kaskar dated 2 nd July 2018. He submits that after

the petitioner had purchased the said vehicle, the RTO duly transferred the

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vehicle in the name of the petitioner. Learned counsel relied on the release

order for the said vehicle issued by Kotak Mahindra Bank, registration

certificate, fitness certificate and PUC of the said vehicle. He further

submits that the petitioner has also been paying for the insurance of the said

vehicle, since its purchase in 2018. According to the learned counsel for

the petitioner, the incident took place on 4 th December 2020, when the

petitioner's vehicle was standing at BPK Compound, Hirani Road, Near

Lucky Hotel, Saki Naka, Mumbai. He submits that an Officer of the RTO

approached the vehicle in which the petitioner's driver was sitting and

handed over a challan receipt to him. The challan receipt was issued for

two offences i.e. as the registration certificate and the PUC of the vehicle

were not produced. Learned counsel for the petitioner states that despite

the fact, that the petitioner's driver expressed his readiness and willingness

to pay the fine, the respondent-Officer took away the said vehicle and

refused to release the same. The Officer of the RTO informed the driver

that the said vehicle was impounded by them. On 7 th December 2020, the

petitioner gave a written representation to the respondent seeking release

of his vehicle which was allegedly impounded under Section 207(1) of the

Motor Vehicles Act. Learned counsel for the petitioner states that without

hearing the petitioner, the Officer of the RTO informed the petitioner vide

letter dated 15th December 2020 that the said vehicle cannot be released

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though the petitioner had annexed the registration certificate and insurance

papers as one Balasaheb Chattar was also claiming to be the previous

owner of the said vehicle and accordingly, asked the petitioner to obtain an

order from the appropriate Court. Pursuant thereto, the petitioner filed an

application for release of his vehicle under Section 457 Code of Criminal

Procedure. Learned counsel states that as the Court was not inclined to

grant any relief as the Court had no jurisdiction, the petitioner was

constrained to withdraw the said application. Hence, the aforesaid petition.

5 Learned counsel for the petitioner states that there was no

justification whatsoever for the respondent-RTO to seize/impound/detain

the vehicle. He submits that Section 207(1) of the Motor Vehicles Act,

under which the vehicle was allegedly detained, will not apply in the facts

and hence, the detention of the vehicle was clearly illegal, unauthorised and

without jurisdiction. He submits that the RTO, by no stretch of

imagination, could have detained the vehicle on the premise that the

original owner was also claiming ownership of the said vehicle, more

particularly, when the petitioner had shown that he had purchased the said

vehicle from an auction purchaser and had all the requisite documents

showing ownership of the vehicle. He submits that the vehicle is lying in

an open condition in Vashi, far from the safe custody as required under the

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Motor Vehicles Act. He submits that because of the high-handedness of the

officers of the RTO, the vehicle has been subjected to immense

damage/wear and tear for 7 months and that the petitioner has also

suffered, as a result of the seizure/detention/impounding of the vehicle. He

further submits that not only is the seizure/detention/impounding of the

vehicle illegal, but is also malafide and in all probability, in collusion with

the original owner of the vehicle. He submits that due to the illegal acts of

the Officers of the RTO, the petitioner has been deprived of the enjoyment

of the said vehicle, resulting in mental stress, agony and harassment and as

such the respondent be directed to pay compensation/costs of Rs. 50,000/-

to the petitioner. Learned counsel for the petitioner also has an

apprehension that some of the valuable parts of the vehicle may have been

removed, as the vehicle is lying in an open ground, contrary to the

provisions under Section 207 of the Motor Vehicles Act i.e. of maintaining

safe custody of the vehicle.

6 Learned A.P.P was unable to justify the

seizure/detention/impounding of the said vehicle under Section 207(1) of

the Motor Vehicles Act. He submits that the RTO Officer

seized/detained/impounded the said vehicle as there was a dispute between

the original owner of the vehicle and the petitioner. Under which provision

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the same is permissible, the learned A.P.P is not able to spell out. Mrs.

Hemangini B. Patil, Deputy Regional Transport Officer, Navi Mumbai, is

present in Court. When questioned, she states that as there was a dispute

with respect to the ownership of the vehicle, the petitioner was asked to

approach the Court for release of the vehicle. Neither the learned A.P.P nor

the Deputy RTO Ms. Patil is able to state under which provision of law, the

said vehicle was liable to be detained, more particularly, when the petitioner

was ready to pay the fine amounts i.e. Rs.400/- for both the violations.

7 Perused the papers. The facts are gross and hence, will have to

be set out in detail. It appears that the said Toyota vehicle was originally

owned by one Balasaheb Chattar. It appears that as Balasaheb Chattar

failed to pay the loan amount, Kotak Mahindra Bank took over the said

vehicle. Thereafter, Kotak Mahindra Bank conducted an auction of the said

vehicle and in the auction, one Mr. Salim Nachan of Auto Pulse showroom,

who was engaged in the business of car trading, purchased the said vehicle.

Thereafter, the petitioner purchased the said vehicle from Mr. Siman Kaskar

of Auto Pulse showroom by an agreement. The said agreement dated 2 nd

July 2018 is at page 15 of the petition. The said vehicle was purchased by

the petitioner for a sum of Rs. 13,20,000/-. The petitioner has annexed the

bank statement showing payment made to Mr. Kaskar through Bank of

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India i.e. a sum of Rs. 13,20,000/- as well as the release letter (of the

vehicle) dated 28th March 2018 issued by the Kotak Mahindra Bank. The

registration certificate of the vehicle was also transferred in the name of the

petitioner in 2018 and as such the vehicle stood in the name of the

petitioner in the record of the respondent-RTO. The petitioner has annexed

the registration certificate, fitness certificate, PUC and the insurance papers/

policy documents of the said vehicle, to the petition.

8 On 4th October 2020, petitioner's Toyota Fortuner Car was

standing at BPK Compound, Hirani Road, Near Lucky Hotel, Saki Naka,

Mumbai. It appears that an officer of the RTO approached the said vehicle

in which the petitioner's driver was sitting and handed over a challan receipt

to him. The challan receipt which is also annexed to the petition shows that

the said challan was issued for two offences (i) registration certificate not

produced and (ii) PUC not produced. Admittedly, for both the offences, the

fine amount is Rs. 200/- each i.e. a total of Rs. 400/-. It appears that despite

the petitioner's driver expressing his willingness to pay the fine, the Officer

of the respondent RTO took away the vehicle from the petitioner's driver

and refused to release the said vehicle. The concerned Officer informed the

petitioner's driver that the said vehicle has been impounded by them.

According to the Officer of the RTO, the said action was taken under

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Section 207(1) of the Motor Vehicles Act. On 7th December 2020, the

petitioner immediately made a representation to the respondent for release

of the vehicle. On 14th December 2020, the petitioner was informed by an

officer of the RTO, Navi Mumbai, that the said vehicle was in their custody

and that they would not be responsible if any part of the vehicle got

misplaced. How such a letter could be issued is again appalling, considering

that a duty is cast on the Officer to maintain the vehicle which is

seized/detained in safe custody under Section 207(1) of the Motor Vehicles

Act.

9 Be that as it may, the respondent again vide letter dated 15 th

December 2020 informed the petitioner that the said vehicle could not be

released although the registration certificate and insurance policy were

produced, as one Balasaheb Chattar was claiming to be the previous owner

of the Toyota Fortuner vehicle and that he too, was seeking release of the

said vehicle. Accordingly, the petitioner was asked to obtain an order from

the Court. At this stage, it is pertinent to note that at that time, there was no

FIR lodged by Mr. Balasaheb Chattar with respect of any theft of his

vehicle either against the petitioner or against Kotak Mahindra Bank, the

finance company or any other person.

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            10             Pursuant to the said letter dated 15th December 2020, sent by

the RTO, Navi Mumbai, the petitioner was constrained to file an application

under Section 457 Cr.P.C seeking release of his vehicle before the learned

JMFC, Vashi, Navi Mumbai. It appears that since the Magistrate was not

inclined to grant any relief, as he had no jurisdiction, the petitioner

withdrew the application.

11 The conduct of the respondent RTO Officers smacks of high-

handedness and arbitrariness. Section 207(1) under which the said vehicle

was allegedly seized/detained reads as under :

"207. Power to detain vehicles used without certificate of registration permit, etc.--

(1) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of section 3 or section 4 or section 39 or without the permit required by sub-section (1) of section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle:

Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used

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in contravention of section 3 or section 4 or without the permit required by sub-section (1) of section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.

..............................."

12 There is a reference to Sections 3, 4, 39, 66(i) of the Motor

Vehicles Act in Section 207(1), under which vehicle can be seized/detained.

Section 3 is with respect to the necessity for driving license i.e.

no person shall drive a motor vehicle in any public place unless he holds an

effective driving licence issued to him authorising him to drive the vehicle;

and no person shall so drive a transport vehicle, other than a motor cab or

motor cycle hired for his own use or rented under any scheme made under

sub-section (2) of Section 75 unless his driving licence specifically entitles

him so to do.

Admittedly, said Section will not apply in the facts of the

present case.

Section 4 is with respect to age limit in connection with

driving of motor vehicles i.e. it states that no person under the age of

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eighteen years shall drive a motor vehicle in any public place, provided that

(1) A motor cycle with engine capacity not exceeding 50cc may be driven

in a public place by a person after attaining the age of sixteen years; (2)

Subject to the provisions of Section 18, no person under the age of twenty

years shall drive a transport vehicle in any public place and (3) No learner's

licence or driving licence shall be issued to any person to drive a vehicle of

the class to which he has made an application unless he is eligible to drive

that class of vehicle under this Section.

Admittedly, the said Section will also not apply in the facts of

the present case.

Section 39 speaks about the necessity for registration i.e. no

person shall drive any motor vehicle and no owner of a motor vehicle shall

cause or permit the vehicle to be driven in any public place or in any other

place unless the vehicle is registered in accordance with this Chapter and

the certificate of registration of the vehicle has not been suspended or

cancelled and the vehicle carries a registration mark displayed in the

prescribed manner, provided that nothing in this Section shall apply to a

motor vehicle in possession of a dealer subject to such conditions as may be

prescribed by the Central Government.

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Admittedly, the vehicle was registered and the petitioner's

name was there on the registration certificate of the vehicle. Hence, even

this Section will not apply.

Section 66(i) deals with necessity for permits i.e. no owner of a

motor vehicle shall use or permit the use of the vehicle as a transport

vehicle in any public place whether or not such vehicle is actually carrying

any passengers or goods save in accordance with the conditions of a permit

granted or countersigned by a Regional or State Transport Authority or any

prescribed authority authorising him the use of the vehicle in that place in

the manner in which the vehicle is being used. Provided that a stage

carriage permit shall, subject to any conditions that may be specified in the

permit, authorise the use of the vehicle as a contract carriage. Provided

further that a stage carriage permit may, subject to any conditions that may

be specified in the permit, authorise the use of the vehicle as a goods

carriage either when carrying passengers or not. Provided also that a goods

carriage permit shall, subject to any conditions that may be specified in the

permit, authorise the holder to use the vehicle for the carriage of goods for

or in connection with a trade or business carried on by him.

The said Section admittedly will also not apply.

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Learned A.P.P does not dispute the fact that none of the

aforesaid Sections will apply.

13 It is pertinent to note, that Section 207 empowers a police

officer/or other person authorised in this behalf by State Government, to

impound a motor vehicle, if he has reason to believe that the vehicle is

being driven without registration, without a permit, driven by a person who

has no driving licence or plying on unauthorised route and the vehicle may

be released only after satisfying that the vehicle complies with the

requirement of this Section.

14 None of the above apply to the facts of the present case. The

detention of the vehicle was thus, clearly unauthorised, illegal and without

any authority. The only offence allegedly committed by the petitioner was

that he did not produce the registration certificate and PUC for which the

petitioner's driver/petitioner were ready to pay the fine and infact later

even produced the said documents. The officers of the RTO ought to have

released the vehicle on production of the said documents and on payment of

fine. The reason for not releasing the petitioner's vehicle is spelt out in the

letter dated 15th December 2020, issued by the RTO, Navi Mumbai, that

there was another person by name Balasaheb Chattar, who was claiming

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ownership of the vehicle and had produced an old registration certificate.

The vehicle at the relevant time, admittedly, stood in the petitioner's name.

It is a matter of record. Infact, even in the RTO record, the vehicle stood in

the petitioner's name. The learned A.P.P has not raised any doubt on the

genuineness of the documents so produced.

15 The RTO Officers were not concerned with the ownership of

the vehicle and could not have detained the vehicle on the said premise,

more particularly, when the petitioner had produced all necessary

documents to show his ownership. The RTO Officers are not adjudicating

authorities. The respondent could not have detained the car merely

because the original owner of the vehicle had laid his claim to the

vehicle, when, the documents produced by the petitioner showed

his ownership, even in the RTO records. The genuineness of the documents

produced by the petitioner is not disputed. The action of the respondent-

RTO smacks of high handedness and probable collusion with the original

owner of the vehicle. Admittedly, no FIR was lodged in the present case

by the original owner of the vehicle-Balasaheb Chattar, till the vehicle was

impounded or immediately thereafter, when the letters dated 14th December

2020 and 15th December 2020 were issued by the respondent. In the facts,

the question of detaining the vehicle under Section 207(1) of the Motor

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Vehicles Act, did not arise, by any stretch of imagination. The detention of

the vehicle was completely unauthorised and illegal. The petitioner who

had purchased the vehicle in 2018 was unable to use the car since

December 2020 till date, for almost 7 months. The detention of the vehicle

has obviously led to further deterioration in the condition of the vehicle i.e.

tyres and other parts of the vehicle, as it is lying in an idle condition for

about 7 months. The petitioner has been put to tremendous hardships

because of the arbitary actions of the respondent-RTO Officers, who, in the

facts, had no authority in law, to detain the vehicle. Even the letter dated

14th December 2020 sent to the petitioner stating therein that they will not

be responsible if any part of the vehicle got misplaced, is contrary to

Section 207 of the Motor Vehicles Act, inasmuch as, Section 207 (1) talks

about temporary safe custody of the vehicle.

16 Having regard to the aforesaid, the petition deserves to be

allowed. The respondent-RTO to release the vehicle forthwith. The

petitioner to pay fine of Rs.400/-, to the respondent-RTO, if not paid.

17 Considering the brazen conduct of the Officers of the RTO,

Navi Mumbai, it would be appropriate to direct the State of Maharashtra to

pay costs of Rs. 50,000/- to the petitioner. The said costs to be paid to the

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petitioner within eight weeks from the date of receipt of this order. It is

open for the State to recover the said amount from the erring officials, who

were responsible for the unauthorised detention of the vehicle.

18 Rule is made absolute in the above terms. Petition is disposed

of accordingly.

19 Matter to be listed under caption `for compliance' on 20th

September 2021.

REVATI MOHITE DERE, J.

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