Smt. Priyasha Bhattacharyya vs The State Of West Bengal And Others
2022 Latest Caselaw 4383 Cal

19th July,
  2022
  (AK)
   05


                               W.P.A 14318 of 2022

                           Smt. Priyasha Bhattacharyya
                                          Vs.
                        The State of West Bengal and others


                         Mr. Phiroze Edulji
                         Ms. Amrita Panja Moulick
                                                ...for the petitioner.

                         Mr. Amal Kumar Sen
                         Mr. Jaladhi Das
                                                       ...for the State.



                   The petitioner prays for quashing of an order dated

             20.5.2022 passed by the Assistant Commissioner of

             Police, Traffic Department, Kolkata. By the impugned

             order, the Driving Licence of the petitioner was suspended

             for 90 days from the date of interception. The petitioner

             prayed for release of the Driving Licence by a mail of

             21.5.2022 by which the petitioner also attached copies of

             proof of payment of the penalty.

                   The documents on record show that the petitioner's

             car was intercepted on 19.5.2022 while the petitioner was

             driving from South City Mall to her residence in New

             Alipore. The petitioner's car was intercepted by the Traffic

             Sergeant (respondent no. 6) at the Southern Avenue-Lake

Gardens interception. The photograph of the car with the

registration number gives the particulars of violation and

shows that the petitioner was driving at a speed of 62.1

km/hr whereas the speed limit on the particular road was

30 km/hr.

Learned counsel appearing for the petitioner and

the State have made their arguments on the legality of the

action of the police to suspend the Driving Licence of the

petitioner based on the relevant provisions of The Motor

Vehicles Act, 1988 and the Notification issued by the

Transport Department of the Government of West Bengal.

Counsel appearing for the petitioner also places an order

of a Coordinate Bench dated 4.7.2019 in WP No.11780(W)

of 2019 where, on similar facts, the Court gave interim

relief to the petitioner. Counsel also relies on a judgment

of the Delhi High Court reported in AIR 2016 Delhi 162 in

support of the contention that the police does not have

the authority to suspend a driving licence.

Section 2(20) of the Motor Vehicles Act, 1988

defines a "licensing authority" to mean an authority

empowered to issue licences under Chapter II or Chapter

III, as the case may be. Chapter II deals with licensing of

drivers of motor vehicles and Chapter III deals with

licensing of conductors of stage carriages. Chapter II is

relevant for the present proceeding. Section 3 of the Act

debars a person from driving a motor vehicle in any

public place unless the person holds an effective driving

licence issued for the purpose of authorising the person

to drive the vehicle. Section 19 entitles the licensing

authority to disqualify from holding a driving licence or

revoking a driving licence. Section 19 lists 8 conditions (a-

h) for disqualification or revocation of licence upon

satisfaction of the licensing authority and after giving the

holder of the driving licence an opportunity of being

heard. The order passed by the licensing authority must

also contain reasons and be given in writing. Section

19(1A) which was brought into effect from 2019 provides

for a situation where a licence has been forwarded to the

licensing authority under section 206(4) whereupon the

licensing authority may either discharge the holder of a

driving licence or disqualify such person from holding or

obtaining any licence after giving him an opportunity of

being heard.

Chapter VIII provides for limits of speed in relation to

control of traffic. Section 112 empowers the State

Government to issue appropriate notifications for

restricting the speed of motor vehicles in the interest of

public safety and for fixing maximum or minimum speed

limits as it may think fit. Section 206 empowers a police

officer to impound document. Sub-section (4) of section

206 empowers the police officer to seize the driving

licence held by the driver if the officer has reason to

believe that the driver of a motor vehicle has committed

an offence under section 183, 184 and other sections

mentioned in 206(4). Sections 183 and 184 relate to

driving at excessive speed and driving dangerously

respectively. The police officer shall then forward the

seized licence to the licensing authority for

disqualification or revocation under section 19.

The above provisions of the Motor Vehicles Act,

1988 show that only a licensing authority can disqualify a

person from holding or obtaining a driving licence or

revoke such licence [19(1)(i) and (ii)]. The order of

disqualification may also be given by the licensing

authority under 19(1A) of the Act. Licensing authority has

been defined in section 2(20) and does not include any

authority other than an authority empowered to issue

licences. Section 206 refers to the power of the licensing

authority to disqualify or revoke under section 19 and

limits the power of a police officer to impound a

document; this is by restricting the power of the police

only to seize the driving licence and forward it to the

licensing authority for disqualification or revocation

under section 19. The Notification dated 23.11.2016

relied upon by the State empowers the Deputy

Commissioner of Police (Traffic) and Superintendent of

Police of the Districts to act in terms of section 19 for

disqualifying offending drivers or revoking their licences if

it is found necessary for the purpose of ensuring effective

control of traffic under Chapter VIII of the Act. This

Notification also finds mention in the order of the Deputy

Commissioner of Police, Traffic dated 15.12.2016.

Although, this Notification refers to section 19 of the Act,

there is no evidence whether the relevant provisions of the

West Bengal Motor Vehicles Rules, 1989 have been

amended to reflect the authorization given to the Police.

The Notification in fact mentions that the Rules will be

suitably amended in due course.

Since the Motor Vehicles Act gives the power, in no

uncertain terms, to the licensing authority and limits the

power of the police to disqualify a person or revoke his

licence under the Act, this Court is of the view that a later

Notification issued by the State Transport Department

cannot override the provisions of the parent Act. This is

particularly so where the effect of the subsequent

Notification alters and modifies the power of the licensing

authority under the Act, particularly under sections 19

and 206 thereof. The directions given to the State / U.Ts

by the Supreme Court Committee on Road Safety dated

18.08.2015 is by way of a recommendation and for the

object of road safety. The communication does not seek to

alter the provisions of the Motor Vehicles Act. Notification

under a provision of any statute must be in aid of and in

sync with the statutory scheme. The Notification in the

present case results in confusion as to the licence-

impounding powers of the authority mentioned in the Act.

The resulting uncertainty must hence be resolved in

favour of the petitioner.

As the Court is of the view that the Assistant

Commissioner of Police, Traffic Department did not have

the power to suspend the licence of the petitioner, the

impugned order of 20.05.2022 is quashed. The concerned

respondents shall release the Driving Licence of the

petitioner within a period of 2 weeks from the date of

communication of this order.

Although relief has been given to the petitioner in

the present case strictly on the basis of the relevant

statutory provisions, this Court is however of the view

that the reason given in paragraph 3 of the writ petition

for violating the speed-limit of the road trivializes the

issue of road safety. The petitioner has admitted to over-

speeding and has also come before this Court almost after

2 months from the date of the impugned order. The

excuse for over speeding is no ground at all since the

petitioner should have a sufficient eco-system in place

and not become a risk to other travelers on the road.

WPA No. 14318 of 2022 is disposed of with the

above directions and observations.

Urgent Photostat certified copy of this order, if applied for,

be supplied to the parties after fulfillment of the requisite

formalities.

(Moushumi Bhattacharya, J.)