Madras High Court

D.Magesh vs Inspector Of Police on 22 November, 2021

                                                                                     W.P. No.24538 of 2021

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 22.11.2021

                                                            CORAM

                                    THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
                                                     W.P. No.24538 of 2021

                     D.Magesh                                                             ... Petitioner
                                                             Vs

                     1.Inspector of Police,
                      Thudiyalur Police Station,
                      Coimbatore District.
                     2.The Licensing Authority - cum -
                       Regional Transport Officer,
                       Coimbatore North, Coimbatore.                                   ... Respondents

                     PRAYER : Petition filed Under Article 226 of the Constitution of India
                     praying for issuance of a Writ of Mandamus directing the 2nd respondent
                     herein to return the original driving license (DL.No.TN43 2004 0002685) to
                     the petitioner forthwith.

                                        For Petitioner            : Mr.K.Hariharan
                                        For Respondents           : Mr.E.Vijay Anand
                                                                    Additional Government Pleader

                                                            ORDER

The prayer sought for herein is a writ of mandamus directing the 2nd

respondent herein to return the original driving license (DL.No.TN43 2004

0002685) to the petitioner forthwith.

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2. The petitioner was working as a Driver in Tamil Nadu State

Transport Corporation at Coimbatore. When he was on duty on 02.10.2021

riding the bus belongs to the Transport Corporation in the route between

Mettupalayam and Coimbatore, at a place called Thudiyalur, the vehicle in

question driven by the petitioner met with an accident, with a result, one

person died.

3. The said fatal accident was reported to the Police and the Police

registered a case by registering an F.I.R. in F.I.R.No.1374 of 2021 dated

02.10.2021 for the alleged offence punishable under Section 279 & 304A of

I.P.C.

4. Pursuant to the said accident, the driving license of the petitioner

was seized by the said Police authorities and has been handed over to the

2nd respondent i.e., the Regional Transport Officer, Coimbatore North, the

said license of the petitioner since has been handed over to the 2nd

respondent, the petitioner without the license is not able to report duty to the

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employer thereby his livelihood is affected. Hence, in order to get back the

said license, the petitioner had given a representation to the 2nd respondent

on 05.10.2021 and the said representation since was not considered and

which has been kept pending by the 2nd respondent, the petitioner has

approached this Court by filing the present writ petition with the aforesaid

prayer.

5. Heard Mr.K.Hariharan, learned counsel appearing for the

petitioner, who would submit that, if at all the license was seized by the

respondent Police, who registered a case against the petitioner for the

alleged accident with the result of that there has been death, the license

handed over to the respondents cannot be kept by the 2nd respondent

authority endlessly without conducting any enquiry and in this regard, if at

all, the alleged offence punishable against the petitioner, for which, the

criminal case was registered is to be proved, it will take a long time before

the concerned Criminal Court to establish the case on behalf of the

prosecution and till such a longer period, it cannot be justified on the part of

the Transport Authorities i.e., the Licensing Authorities to retain the driving

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license of the petitioner thereby the livelihood of the petitioner since is

being affected, the petitioner is entitled to get back the said driving license

pending enquiry to be conducted in this regard under the provisions of the

Motor Vehicles Act as well as the pendency of the criminal case pending on

the file of the respondent Police. Therefore, the learned counsel seeks

indulgence of this Court to issue a direction to the respondents, especially,

the 2nd respondent to return back the driving license of the petitioner

forthwith.

6. Heard Mr.E.Vijay Anand, learned Additional Government Pleader

appearing for respondents, who would submit that, since it is a fatal

accident, pursuant to which, a case has been registered, accordingly, the

driving license of the petitioner was seized and handed over to the 2nd

respondent/Licensing Authority, it is the duty of the 2nd respondent to

conduct an enquiry under Section 19 of the Motor Vehicles Act, 1988 and

in this regard, a show cause notice would be given by the Licensing

Authority to the petitioner. On receipt of the same, if the petitioner comes

forward to give the show cause within a time to be stipulated in this regard,

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on considering the same, an enquiry would be conducted by giving an

opportunity of being heard to the petitioner and thereafter, the Licensing

Authority would decide as to whether the driving license of the petitioner

can be returned back or not.

7. When such an exhaustive procedure is contemplated under Section

19 of the Act as well as the relevant Rules made thereunder, the petitioner

cannot at this juncture seek for any direction or mandamus from this Court

directing the 2nd respondent to forthwith return back the driving license of

the petitioner without even progressing the enquiry which has already been

contemplated. Therefore, the learned Additional Government Pleader would

canvas that, the prayer sought for in this writ petition at this juncture cannot

be considered, unless and until, the enquiry is completed in one way or

other.

8. I have considered the said rival submissions made by the learned

counsel appearing for the parties and have perused the materials placed

before this Court.

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9. The issue presently raised in this writ petition is not a new one for

this Court as number of such writ petitions have already come. I had some

occasions to consider the same plea raised by the persons like the petitioner

herein where also those persons were involved in such a fatal accident,

those driving licenses of the license holders were seized by the authorities

concerned and in those cases also, when they approached the Court of Law,

Courts have taken the consistent view that, either the enquiry should be

conducted at the earliest under Section 19 of the Act, otherwise, if it is

likely to be delayed, as an interim measure, the driving license can be

directed to be returned back to the holder of the license.

10. In this context, I have considered a similar issue in

W.P.(MD).No.13365 of 2021 where an exhaustive procedure, as has been

pointed out by the learned Additional Government Pleader under Section 19

of the Motor Vehicles Act, 1988, has been considered and after considering

the same, I passed an order where direction was given to the Licensing

Authority to issue a show cause notice by initiating proceedings under

Section 19 of the Act to the holder of the license, if not already issued and

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once such notice is issued within a time frame, the license holder should

respond to the said show cause notice and on receipt of reply or show cause

from the license holder, enquiry shall be completed at the earliest possible

time by giving an opportunity to the license holder and accordingly to

decide whether the license holder has violated any of the provisions of the

Motor Vehicles Act as well as the Rules made thereunder and if so, what

kind of penalty is to be imposed against him can also be decided. In case,

the Licensing Authority, after such enquiry, comes to the conclusion that,

there has been no violation on the part of the license holder, the license in

question can be returned back to the license holder as for such action, there

could be no further impediment.

11. In order to appreciate the said view taken by this Court, the

relevant portion of the said order in the aforestated judgment is quoted

herein for easy reference.

"8.In respect of these kind of controversy, a number of orders had been passed by this Court where the law had been held that, without having resorted to a limited enquiry to be conducted in this regard and to come to a conclusion that the

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licence holder has committed any offence or violated any provisions of the Act as well as the rules made thereunder, the licence cannot be retained or revoked or the holder of the licence cannot be disqualified.

9.In this context, Section 19 of the Motor Vehicles Act reads thus:

19. Power of licensing authority to disqualify from holding a driving licence or revoke such licence . - (1) If a licensing authority is satisfied, after giving the holder of a driving licence an opportunity of being heard, that he - (a) is a habitual criminal or a habitual drunkard ;

(b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 ; or

(d) has by his previous conduct as driver of a motor vehicle shown that his driving is likely to be attended with danger to the public ; or

(e) has obtained any driving licence or a licence to drive a particular class or description of motor vehicle by fraud or misrepresentation ; or

(f) has committed any such act which is likely to cause

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nuisance or danger to the public, as may be prescribed by the Central Government, having regard to the objects of this Act; or

(g) has failed to submit to, or has not passed, the tests referred to in the proviso to sub~section (3) of section 22 ; or

(h) being a person under the age of eighteen years who has been granted a learner's licence or a driving licence with the consent in writing of the person having the care of the holder of the licence and has ceased to be in such care, it may, for reasons to be recorded in writing, make an order -

(i) disqualifying that person for a specified period for holding or obtaining any driving licence to drive all or any classes or descriptions of vehicles specified in the licence ; or

(ii) revoke any such licence.

(2) Where an order under sub~section (1) is made, the holder of a driving licence shall forthwith surrender his driving licence to the licensing authority making the order, if the driving licence has not already been surrendered, and the licensing authority shall, -

(a) if the driving licence is a driving licence issued under this Act, keep it until the disqualification has expired or has been removed ; or

(b) if it is not a driving licence issued under this Act, endorse the disqualification upon it and send it to the licensing authority by which it was issued ; or

(c) in the case of revocation of any licence, endorse the revocation upon it and if it is not the authority which issued the

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same, intimate the fact of revocation to the authority which issued that licence:

Provided that where the driving licence of a person authorises him to drive more than one class or description of motor vehicles and the order, made under subsection (1), disqualifies him from driving any specified class or description of motor vehicles, the licensing authority shall endorse the disqualification upon the driving licence and return the same to the holder.

(3) Any person aggrieved by an order made by a licensing authority under sub-section (1) may, within thirty days of the receipt of the order, appeal to the prescribed authority, and such appellate authority shall give notice to the licensing authority and hear either party if so required by that party and may pass such order as it thinks fit and an order passed by any such appellate authority shall be final."

10.If we look at the provisions of Section 19 of the Act, it makes it clear that, if it is satisfied after giving the holder of the licence, an opportunity of being heard, if he has committed any offence or has made any violation, the licensing authority, for the reasons to be recorded in writing, can make an order disqualifying the person for a specified period for holding or obtaining any driving licence to dirve any class or description of vehicle specified in the licence or revoke any such licence.

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11.That apart, Sub~Section 1 (A) of Section 19 was recently inserted by Motor Vehicles Amendment Act, 2019 (Act 32 of 2019), which came into effect from 19.08.2019 under which, if a licence has been forwarded to the licensing authority under Sub~Section 4 of Section 206, the licensing authority if satisfied after giving holder of the driving licence, an opportunity of being heard may either discharge the holder of the driving licence or it may have detailed reasons recorded in writing make an order disqualifying such persons from holding or obtaining any licence all or any of the class or description of vehicle. For the first offence, such punishment shall be for a period of three months and for second and subsequent offence, the revocation shall be the penalty.

12.These are all the procedures contemplated under Section 19 of the Motor Vehicles Act.

13.Since the statutory duty cast upon the licensing authority that is the respondent herein, he has initiated such proceedings by issuing show cause notice on 19.07.2021 seeking show cause from the petitioner which had been properly responded by the petitioner by giving reply dated 20.07.2021. Now, the ball is in the Court of the respondent so as to immediately conduct an enquiry, of course a limited enquiry, to verify as to whether the petitioner had violated any provisions of the Act as well as the rules made thereunder or

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any other punishable offences have been committed by him.

14.In this context, it is to be reminded that, merely because a fatal accident had been reported where the vehicle driven by the petitioner is involved, it cannot be presumed that the petitioner has committed a punishable offence as that has to be decided only by the competent Court, where a case would be conducted by the concerned police. However, at this juncture, a limited enquiry can be undertaken by the respondent only to verify whether any provisions of the Act as well as the rules made thereunder had been violated by the petitioner. Only for the said purpose, enquiry as contemplated under Section 19 of the Act can go on and after completing such enquiry, if the respondent comes to a conclusion that none of the provisions of the Act as well as the rules has been violated, it is open to the respondent to release the licence to the petitioner. Therefore, after adopting this procedure as has been contemplated under Section 19 of the Act, needful can be done and the final order in this regard shall be passed by the respondent within a timeframe to be fixed by this Court.

15.In that view of the matter, this Writ Petition is disposed of with the following order:-

that there shall be a direction to the respondent to consider the reply given by the petitioner dated 20.07.2021, pursuant to the show cause notice dated 19.07.2021 issued by the respondent and in this regard, after giving a notice conduct a personal enquiry and thereafter final order shall be passed by taking into

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account the aforesaid observations made in this order and such final order shall be passed within a period of thirty days from the date of receipt of a copy of this order.

16.It is needless to mention that, depending upon the outcome of the final order to be passed, as indicated above, by the respondent, the petitioner shall work out his remedy accordingly. It is also needless to mention that once notice is issued, the petitioner shall cooperate and appear before the respondent for completing the enquiry as indicated above."

12. In view of what has been held by this Court in the said judgment,

which has been consistently followed in number of cases, insofar as the

present case is concerned, since the facts are similar, I am of the view that, a

similar orders can be passed in this writ petition also. Accordingly, this writ

petition is disposed of with the following orders:

(i) There shall be a direction to the 2nd respondent to

initiate proceedings / enquiry under Section 19 of the Motor

Vehicles Act, 1988 by issuing a show cause notice to the

petitioner within one week from the date of receipt of a copy of

this order. On receipt of such show cause notice, it is open to

the petitioner to respond by giving show cause within one week

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thereafter and on receipt of the reply from the petitioner, the

2nd respondent shall complete the enquiry by giving an

opportunity of being heard to the petitioner and pass necessary

orders in that regard within a period of four weeks thereafter.

(ii) It is made clear that, depending upon the outcome of

such enquiry, the decision as to whether the license can be

returned back or not can be decided and accordingly, the

decision can be communicated to the petitioner forthwith.