Rafeek .P vs Regional Transport Officer ...
2023 Latest Caselaw 6872 Ker

                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

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

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

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

(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

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