Judgment:
S. K. Keshote, J.
1. The petitioners are the registered owner of the seized Omnibuses, details of which are given in the list at Annexure - A to this petition. Three out of nine, vehicles were seized by the Transport Officer on 1st August, 1999, 3rd November, 1999 and 6th November, respectively. The checking memos were given in which, it is alleged that the offence of misuse of the permit that is a contract carriage permit used as a Stage Carriage permit is committed. The Transport Officer recovered Rs. 1000/- for each case from the owners and Rs. 1000/- for each case from the drivers as composition fees. It is stated that recovery of composition fees is against wish and will of the driver with a threat to seize the vehicles if the same is not paid. In the petition, the petitioners pray for writ in the nature of prohibition or any other direction or order not to seize the vehicles of the petitioners under Section 207 of the Motor Vehicles Act, 1988.
2. The learned Counsel for the petitioner raised manifold contentions in the matter, but I do not consider it necessary to go on each and every contention and record the findings thereon.
3. The learned Counsel for the respondents supported action of the respondents.
4. The holder of permit if makes breach of the condition thereof, it may be an offence and where the person committing that offence does not want to compound it nobody can compel him to compound the same. It is for the, person who commits the offence, where it is compoundable may compound it or may pray for the trial. In most of the cases of this category and nature, breach of the conditions of the permit alleged to have been made by the permit holders is that though they hold contract carriage permit used it as stage carriage permit. It is not a stage where we have to go into the details of this aspect in this case, but even if we proceed with this assumption that it is a breach of the condition of the permit and the offence is compoundable the Transport Officer in a given case may be justified in seizing the vehicles where driver thereof does not compound the offence, but he cannot sit tight over the matter. Where the vehicle is seized as a result of non-compounding of the offence by the driver or owner of the vehicle first step which is to be immediately taken by that officer is to file a complaint in the Court and produce the vehicle. I have seen cases after cases of this category where there are hundreds of seizure memos against operators, but the Transport Officer are not filing the challans in those matters in the Court. In this case also, the vehicles are seized. The consequences of non-filing of the complaint in such matters, that is a compoundable offence, where it is not compounded by the driver or owner of the vehicle results in unnecessary litigations before this Court. The Judicial Magistrate has all the powers and jurisdiction to release the vehicles in the criminal complaints and cases pending before him and not otherwise. In such matters, naturally, the permit holders have two options that is either they have to succumb to desire of the Transport Officer or approach to this Court for release of the vehicles. Because of this approach of the Transport Officer in the State, this Court virtually been converted into the Court of Judicial Magistrate, meaning thereby, it has to take care of the matter and pass the orders which are within the power and competence of the Judicial Magistrate in the matters of release of the muddamal in such offences. The muddamal may be vehicle itself. I find sufficient merits and justification in the contention raised by the learned Counsel for the petitioners that the Transport Officers are not filing the complaints in such matters and keep the vehicles under seizure so that the operators may succumb to their commands that is to compound offence. It is unfortunate that this methodology is used a mode of augmenting revenue by the State through its Officers. Under the head of composition fees, heavy amount is collected by this method and strategy. The Transport operators are dealing with public and they have to a public service-oriented approach and where their vehicles are seized, it may adversely affect their service and the business. Travelling in the buses may not be a luxury. It may be a compulsion. It is very very difficult to get instant reservation in the Railways by the public. To travel by Air may not affordable by the class of the persons travel in these luxury buses. Pre-dominant consideration of the Motor Vehicles Act is to provide facilities to the travelling public. It is true that motor operators are earning by doing this business meaning thereby, it is a business for them but they are providing travelling facilities to the people. It is said by the learned Counsel for the petitioners that more than 250 Luxury Buses everyday scheduled to go to different destinations both Inter-State & Intra-State and there is all possibility that the contract carriage permits are used as stage carriage permits. But from what is said by the learned Counsel for the petitioner, one thing is clear that need of large numbers of the vehicles to cater traffic every day is there. The number of the night services vehicle provided by the State Transport Corporation appears to be wholly inadequate. She further submits that in case these vehicles are stopped, the travelling public will suffer a lot. They will be deprived of transport facilities and the whole objects and purpose of enacting of the Motor Vehicles Act, 1988 will be frustrated. In her submission, all the contract carriage permit holders are using their vehicles as stage carriage permit within the knowledge of the Officers of the Transport and the Police Department. They are not taking any other action except to challan to the vehicle for two or three times in a month. It is submitted that this check method and strategy are adopted by the Department deliberately, otherwise if repeatedly, a permit holder breaches the conditions of the permit, one day, the permit is to be cancelled, but it is not done. What she submits that the reasons are very obvious that; (i) the State gets handsome revenue from plying of the vehicles; (ii) it gets handsome amount in the form of composition fees; (iii) the Officers of the Department are also personally benefited, which are well known to the people. These officers are being provided by the operator extra facilities.
5. All these contentions raised by the learned Counsel for the petitioner may have sufficient substance and merits, but in this, I am not examining the same. If any occasion arises, one day this Court will certainly examine all these aspects. The learned Counsel for the petitioner may be correct to certain extent in her submission that total nationalisation of the Highways may not be in larger public interest in present scenario where from one city of the State itself large numbers of private vehicles are plying everyday and every night on nationalised roads. I find sufficient merits in the contention of the learned Counsel for the petitioners that where on commission of offence the Transport and Police Officer though they cannot compel the driver or the owner of the vehicle to compound the offence seized the vehicle and not file complaint in the Court, the owner and driver has no option to succumb to the desire and command of these Officers to compound the offence.
6. Interest of justice will be met in case this matter is disposed of with directions to the State of Gujarat through Secretary to the Transport Department that where a transport vehicle is to be seized for commission of an offence under Motor Vehicles Act, 1988, and more precisely Section 207 thereof, immediately on seizure thereof, the challan is to be filed in the Court of concerned Judicial Magistrate. It is expected of the Officers of the Transport Department to file the challan in such matter on the same day of the seizure of the vehicle or in all the eventualities on the next day of the seizure of the vehicle. In the case, where the driver or owner does not want to compound the offence, he may not be compelled to compound the offence. In such matter, the approach of the permit holder directly to this Court for release of the vehicle is difficult to appreciate. The permit holder of the vehicle has to go to the concerned Judicial Magistrate for release of the vehicle in such matters. The Secretary, Transport Department of Gujarat is directed to issue a circular to all of its officers to make known them of these directions. Similarly, the Home Secretary of the State of Gujarat is directed to issue a Circular to all of its officers who are authorised to check and seize of the transport vehicle to make known them of these directions. Compliance of the directions be reported to the Court.
7. This petition is succeeded to this extent and rule is made absolute accordingly with no order as to costs.