Delhi Autorikshaw Sangh & Ors. vs Government Of Nct Of Delhi & Ors.
2013 Latest Caselaw 3588 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on   : 07.08.2013
                                Judgment pronounced on : 14.08.2013


+      W.P.(C) 5026/2013


       DELHI AUTORIKSHAW SANGH & ORS.                      ..... Petitioner

                          Through: Ms Rani Chhabra, Adv.

                          versus

       GOVERNMENT OF NCT OF DELHI & ORS. ..... Respondents

                          Through: Ms Zubeda Begum and Ms Sana
                          Ansari, Advs for GNCTD

CORAM:
HON'BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.

1. The issue involved in this writ petition is as to whether a vehicle

found being driven without a permit or in contravention of the terms of a

permit, can be subjected to impounding under Section 207 and

cancellation or suspension of permit under Section 86 of M.V. Act, even

where the owner and/or driver of the vehicle have been prosecuted under

Section 66 read with Section 192A of the said Act.

2. The petitioners before this Court are some auto-rickshaw drivers

and two associations of auto-rickshaw drivers in Delhi. Section 66 of

Motor Vehicles Act, 1988, to the extent it is relevant for the purpose of

this writ petition, provides that 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

except 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. Thus, holding a permit

and complying with its conditions is mandatory for an auto-rickshaw

driver. The contravention of Section 66 is punishable under Section 192A

of the Act, which provides that the driver of a motor vehicle, using the

said vehicle in contravention of the provisions of sub-section (1) of

Section 66 or in contravention of any condition of a permit, relating to the

purpose for which the vehicle may be used, as well as the owner, causing

or allowing a motor vehicle to be used in the aforesaid manner, shall be

liable to punishment, which for the first offence is a fine not exceeding Rs

5000/-, but not less than Rs 2,000/- and for any subsequent with

imprisonment, which may extend to one year, but shall not be less than

three months or with fine which may extend to Rs 10,000/-, but shall not

be less than Rs 5,000/- or with both. The Court, however, for the reasons

to be recorded, may impose a lesser punishment.

3. Section 86 of Motor Vehicles Act, 1988, to the extent it is relevant,

provides that the Transport Authority, which granted the permit, may

cancel the same or suspend it for such period as it thinks fit, in the event

of breach of any condition specified in Section 84 or of any condition

contained in the permit or if the holder of a permit uses or causes or

allows a vehicle to be used in any manner not authorized by the permit, or

the holder of the permit ceases to own the vehicle covered by the permit.

Section 84 prescribes the conditions which are necessarily attached to

every permit and inter alia include (a) that the vehicle to which the permit

relates carries valid certificate of fitness issued under section 56 and is at

all times so maintained as to comply with the requirements of the Act and

the rules made there under; (b) that the vehicle to which the permit

relates is not driven at a speed exceeding the speed permitted under this

Act; (c) that any prohibition or restriction imposed any fares or freight

fixed by notification made under section 67 are observed in connection

with the vehicle to which the permit relates; (g) that the name and

address of the operator are painted or otherwise firmly affixed to every

vehicle to which the permit relates, on the exterior of the body of that

vehicle on both sides thereof in a colour or colours vividly contrasting to

the colour of the vehicle centered as high as practicable below the

window line in bold letters.

However, no order for cancellation of suspension of permit can be

passed, without giving opportunity, to its holder, to furnish his

explanation. Where a Transport Authority cancels or suspends a permit,

it is required to give to the holder, reasons in writing for the action taken

by it. Any person aggrieved by revocation or suspension of the permit

can prefer an appeal to the State Transport Appellate Tribunal in terms of

Section 89(1) of the Act.

4. Section 207 (1) of the Act, to the extent it is relevant, provides that

Any police officer or other person authorized in this behalf by the State

Government may, if he has reason to believe that a motor vehicle has

been or is being used, without the permit required by sub- section (1) of

section 66 or in contravention of 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. The

proviso to this sub-section 207(1) permits the officer, who finds a vehicle

being used without permit required under sub-section (1) of Section 66 to

seize the certificate of registration of the vehicle instead of seizing the

vehicle itself. Sub-section (2) of Section 207 enables the owner or person

in charge of the seized vehicle to apply to the Transport Authority or any

officer authorized by the State Government in this behalf, for the release

of the vehicle and such authority or officer may, after verification of

relevant documents which the application is required to submit, order

release of the vehicle and while releasing the vehicle, he may impose

such conditions as are deemed appropriate in this regard.

5. The grievance of the petitioners before this Court, who are some

auto-rickshaw drivers in Delhi and two Associations of Auto-Rickshaw

Drivers is that when an auto-rickshaw is found being driven, without a

permit or in violation of the conditions subject to which the permit has

been granted, besides prosecuting the auto-rickshaw and/or its owner, the

respondents are also taking actions under Section 86 of the Act for

cancelling and/or suspending the permit and under Section 207 for

impounding the vehicle. Their contention is that once an auto-rickshaw

driver or its owner is prosecuted under Section 66 of the Act and either he

compounds the offence or suffers the sentence prescribed in Section

192A of the Act, it is not open to the respondents to take action under

Section 86 and/or 207 of the Act.

The petitioners are accordingly seeking the following directions in

this writ petition:-

"a) Pass an order, direction and/or any other appropriate writ declaring the action of the respondents in challaning the vehicles of the Petitioners under section 66/192A and further initiating proceedings under section 86 of the Motor Vehicles Act as illegal, unjustified, contrary to the provisions of the Act and also in violation of the fundamental rights guaranteed to the Petitioners under Articles 14 and 19 of the Constitution;

b) Pass an order, direction and/or any other appropriate writ directing the respondents, their officials, representatives, nominees, assignees not to take action against the Petitioners contrary to the provisions of the Motor vehicles Act"

6. The learned counsel for the respondents, who appears on advance

notice, opposes the petition and submits that the Act permits them not

only to prosecute the auto-rickshaw driver and/or its owner under Section

66 read with Section 192A, but also to revoke and/or suspend the permit

under Section 86 and impound the vehicle under Section 207 of the Act.

7. I have carefully perused the provisions of Section 86 of the Act and

I find nothing in the said provision which would preclude the respondents

from permitting or suspending the vehicle in case the driver and/or owner

of the vehicle is prosecuted under Section 66 read with Section 192A of

the Act. Section 66 treats the driving of a vehicle or allowing it to be

driven, without permit or in contravention of the terms of a permit as a

criminal offence, which is punishable under Section 192A of the Act.

Section 86 of the Act, on the other hand, is a civil consequence which

follows when a vehicle is found being driven in contravention of the

conditions of the permit granted to the owner of the vehicle. As noted

earlier, one of the conditions necessarily attached to a permit is that the

vehicle shall not be driven at a speed prescribed for such a vehicle. If the

driver of a vehicle is prosecuted for driving at a higher than the permitted

speed and the matter rests at prosecuting him and/or the owner of the

vehicle under Section 66 read with 192A of the Act, nothing prevents him

from continuing to drive the vehicle at more than the prescribed limit,

thereby continuing to violate an important condition attached to the

permit. If, however, the permit is cancelled, it will not be possible for the

vehicle to be driven at higher than the prescribed limit. If the permit is

suspended, that would work as a deterrence for the future since it will not

be possible to drive the vehicle for the period during which the permit is

suspended. Another necessary condition attached to every vehicle is that

there will be no violation of the restrictions imposed with respect to fare

and freight fixed by way of notification under Section 67 of the Act. If

the driver of a auto-rickshaw charges higher than the prescribed fare or

freight and no action other than prosecution under Section 66 read with

Section 192A is taken, that may not deter him from continuing to charge

higher fare and/or freight, considering that it is only rarely that such

complaints are made by the passengers, who are made to pay more than

the prescribed fare and/or freight. On the other hand, if the auto-rickshaw

driver and its owner in case the owner is different from the driver, know

that driving at more than the prescribed speed and/or charging more than

the prescribed fare and/or freight entail serious consequences such as

cancellation and suspension of permit and impounding of the vehicle, the

rickshaw driver would think more than once before exceeding the

prescribed speed and/or demanding more than the prescribed fare and/or

freight. The provisions for cancellation and suspension of permit and

impounding of the vehicle therefore serve a salutary purpose of ensuring

strict compliance with the terms of the permit besides ensuring that no

vehicle is driven, without a permit in this regard. There are various other

conditions attached to a permit, some of them for the benefit of auto-

rickshaw drivers such as limiting the hours of work for them. If the

provisions of Section 86 of the Act are not invoked, the owners of the

auto-rickshaw, who hire auto-rickshaw drivers on monthly wages, may

compel them to ply the auto-rickshaw for more than the prescribed hours.

Such treatment of the auto-rickshaw drivers besides being risky to their

own health and safety may also jeopardize the safety of the passengers

since a tired driver who has already plied the auto-rickshaw for

prescribed hours, may not be in a position to drive it safely and that may

result in the vehicle getting involved in some accident, causing injuries

not only to the passengers, but also to the auto-rickshaw driver. In any

case, as noted earlier, the provisions of Section 86 being independent of

the provisions of Section 86, there is nothing in the Act to suggest that

prosecution under Section 66 read with Section 192A precludes the

respondent from initiating action for cancellation and suspension of

permit under Section 86 of the Act.

8. As regards impounding of vehicles under Section 207 of the Act,

again, there is nothing in the provision to suggest that the power to detain

vehicle cannot be exercised if the driver and/or owner has been

prosecuted under Section 66/192A of the Act. The purpose of detaining

the vehicle being driven, without permit or in contravention of the permit,

is to ensure that it does not continue to be plied, without permit or in case

there is a permit already issued, the driver of the vehicle does not

continue to ply the vehicle in contravention of the terms subject to which

the permit has been granted. Though the provisions contained in Section

86 for cancellation and suspension of permit and the provisions contained

in Section 207 of the Act for detaining the vehicle are aimed at achieving

the same objective, i.e., a vehicle should not be driven, without permit or

in contravention of the conditions of a permit, action under Section 86 of

the Act would not be sufficient because such an action cannot be taken

immediately, if the vehicle is found being driven in violation of the

conditions of a permit. Unless the vehicle is detained under Section 207

of the Act, it would be possible for the driver of the vehicle to continue to

ply it till the time the permit is suspended taking recourse of the

provisions of Section 86 of the Act. Moreover, the power under Section

207 of the Act can be exercised not only where a vehicle is driven in

contravention of the terms of the permit, but also in a case where it is

being driven without any permit at all, whereas, Section 86 of the Act

applies only to the case where permit has been issued, but the vehicle is

being driven in contravention of the conditions attached to the permit. In

any case, the powers under Section 207 of the Act are independent of the

power to prosecute under Section 66 read with Section 192A of the Act.

9. For the reasons stated hereinabove, I find no merit in the writ

petition and the same is hereby dismissed. There shall be no order as to

costs.

V.K.JAIN, J

AUGUST 14, 2013 bg