NIRMALA JAGDISHCHANDRA KABRAversusTHE TRANSPORT COMMISSIONER AND ORS.

A                  NIRMALA JAGDISHCHANDRA KABRA
                                         v.
               THE TRANSPORT COMMISSIONER AND ORS.

                               FEBRUARY 14, 1997

B             (K..RAMASWAMY ANDS. SAGHIR AHMAD, JJ.)

          Motor Vehicles Act, 1988:

           S.207-Contract carriage-Being used as stage carriage-Motor Vehicle
C Inspector imposed penalty-Writ petitio11 seeking a declaration that the
    authorities had no power to seize or deta.in the vehicle dismissed by High
    Court-Held, the authority had rightly detained the vehicle for contraventio11
    of the conditions of the pennit-High Court rightly refused the relief-The very
    pennit which grants the contract for carriage of passengers should contain the
    names of the passengers to cany from one destination to another without
D picking up or setting down en route for hire or reward but when the holder of
    pennit is another and pennits them to cany the passengers and makes the
    contract de hors those mentioned i11 the list of passengers enclosed to the
    pennit as contract carriage and takes the passengers from one destination to
    another, even without picking up or setting down e11 route, the necessary
E · consequence would be that the vehicle has been used or is being used as a
    stage carriage and not a contract carriage.

         N. Krishnasami Chetty & Ors. v. The Licensing Officer, AIR (1988)
    Mad. 274, overruled.

p         CIVIL APPELLATE JURISDICTION: Special Leave Petition (c)
     No. 2622 of 1997.

          From the Judgment and Order dated 4.12.96 of the Gujarat High
     Court in L.P.A. No. 1430/96 in S.C.A. No. 7565 of 1996.

G          Arun Jaitley and S.C. Patel for the Petitioner.

           The following Order of the Court was delivered :

           This special leave petition arises from the order of the Division
     Bench of the Gujarat High Court, made on December 4, 1996 in LPA No.
H    1430/96. The Motor Vehicle Inspector had imposed penalty of Rs. 1,000
                                          78
                      NJ. KABRAv. TPT. COMMNR.                            79

etc. for violation of the conditions of the contract carriage permit. It was A
found that the vehicle was being used as stage carriage in violation of the
breach of the conditions of the permit inasmuch as petitioner was collecting
individual fares @ Rs. 1.60 per passenger and was not using the vehicle as
a tourist; vehicle hired to one group party. The petitioner filed writ petition
in the High Court seeking the relief as under :
                                                                                B
       - "To allow this petition and to issue appropriate writ, direction and
         order holding and declaring that the respondent authorities have
         no legal right or power or authority to either seize or. detain the
         petitioner's vehicles shown at Annexure A to this petition in
         purported exercise of power under Section W7 of the Motor              C
       _Vehicles Act, 1988 solely on the allegation of collection. of in-
         dividual fare from the passengers."

      The learned single Judge and the Division Bench refused to grant
the relief in the face of Section 207(1) read with proviso thereto, of the
Motor Vehicle Act, 1988 (for short, the 'Act'). Section W7 of the Act D
postulates the power to detain vehicle used without certificate of registra·
tion permit, etc. Sub-section (1) provides thus :

       "Any police officer or other person authorised in this behalf by the
       State Government may, if he has reason to believe that a motor E
       vehicle has been or is being used in contravention of the provisions
       to Section 3 or Section 4 or Section 39 or 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 f;
       purpose take or cause to be taken any steps he may consider
       proper for the temporary safe custody of the vehicle."

     The proviso postulates thus :

        "provided that where any such officer or person has reason to G.
        believe that a motor vehicle has been or is being used in contraven·
        tion 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."
                                                                                H
    80                    SUPREME COURT REPORTS                  [1997) 2S.C.R.

A         There is a power for compounding the offence provided in Section
    206 of the Act. In the light of the sub-section (1) of Section 207, if the
    officer authorised in that behalf is of the opinion that the vehicle has been
    or is being used in contravention of any of the aforesaid provisions of the
    Act or conditions of the permit relating to the route on which or the area
                                                                                    •
    in which or the purpose for which the vehicle is used, he may seize and
B
    detain the vehicle or compound the offence. The statutory power given to
    the authorised officer under Section 207 is to ensure compliance of the
    provisions of the Act. Therefore, the mandamus sought for cannot be
    issued, as referred to earlier.

C        It is coil.tended by Shri Arun Jaitley, learned senior counsel for the
  petitioner that the petitioner has taken the vehicle on hire basis .(rom the
  owner of the vehicle who had the permit for contract carriage of the
  passengers from one destination to another. They are not collecting any
  individual fare. en route by picking up or setting down the passengers. They
D are picking up passengers from one place and taking them for tour to the
  other destination and, therefore, it is a "contract carriage" within the
  meaning of Section 2(7) of the Act. It is not a stage carriage permit but
  one of contract carriage and, therefore, the view taken by the High Court
  is not correct in law. It is true that if the holder of the vehicle obtains a
  contract carriage, the owner may carry a passenger or passengers for hire
E or reward on contract, whether expressed or implied, for the use of such
  vehicle as a whole for the carriage of passengers mentioned therein and
  entered into by a person with a holder of a permit in relation to such
  vehicle or any person authorised by him in this behalf on a fixed or an
  agreed rate or sum. In other words, the very permit which grants the
F contract for carriage of the passengers should contain the names of the
  passengers to carry from one destination to another destination without
  picking up or setting down en route for hire or reward but when the holder
  of a permit is another and permits them to carry the passengers and makes
  the contract de hors those mentioned in the list of passengers enclosed to
G the permit as contract carriage and takes the passengers from one destina-
   tion to another, even without picking up or setting down en route, the
   necessary consequence would be that the vehicle has been or is being used
  as a stage carriage but not a contract carriage. Under those circumstances,
   obviously, the authority had rightly detained the vehicle for the contraven-
   tion of the conditions of the permit. Therefore, the mandamus, as sought
H for, was rightly refused by the High Court. The learned counsel sought
                       NJ.KABRAv. TPT.COMMNR.                             81

reliance on a judgment of the Madras High Court in N. Krislmasami Chetty A
& Ors. v. The Licensing Officer AIR (1988) Madras 274. The learned Judges
have not correctly appreciated the legal position. Therefore, it is not
correct in view of the above law. It is accordingly over-ruled.

       'fhe special leave petition is accordingly dismissed.
                                                                                B
R.P.                                                      Petition dismissed.