(2012) 261 KLR 532 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 25TH DAY OF JUNE 2012/4TH ASHADHA 1934 WP(C).No. 13092 of 2012 (J) --------------------------- PETITIONER: ----------- PEETHAMBARAN T.R., S/O.RAVEENDRAN, THALIKOODATHIL HOUSE, KOTTUVALLIKKAD, MOOTHAKUNNAM P.O, N.PARAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.M.S.BREEZ RESPONDENTS: ------------ 1. THE ADDITIONAL LICENSING AUTHORITY, NORTH PARAVOOR, SUB REGIONAL TRANSPORT OFFICE, NORTH PARAVOOR, ERNAKULAM DISTRICT - 683513. 2. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF MOTOR VEHICLES, SECRETARIAT, THIRUVANANTHAPURAM - 695001. BY GOVERNMENT PLEADER SRI G.GOPAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A P P E N D I X PETITIONER'S EXHIBITS
1ST RESPONDENT'S EXHIBITS
/TRUE COPY/ P.A TO JUDGE "C.R" K.SURENDRA MOHAN, J. ----------------------------------------------------- W.P(c) No.13092 of 2012-J ---------------------------------------------------- Dated this the 25th day of June, 2012 Head Note:- Motor Vehicles Act, 1988 - Section 19 - Power of licensing authority to disqualify from holding a driving licence or revoke such licence - the right to earn a livelihood by working as the driver of a transport vehicle does not confer a right to drive vehicle dangerously or carelessly or in such a way as to cause injury, damage or loss of life to another. Held:- The learned counsel for the petitioner contends that the impugned action has deprived the petitioner of his means to earn his livelihood. Since the petitioner's licence has been suspended, it is submitted that he is not able to work as a driver for the purpose of earning a livelihood. It is to be noted that the right to earn a livelihood by working as the driver of a transport vehicle is regulated by the provisions of the Motor Vehicles Act and the Rules therein. The licence granted to the petitioner does not confer on him a right to drive his vehicle dangerously or carelessly or in such a way as to cause injury, damage or loss of life to another. Any such conduct on his part amounts to violation of the terms and conditions subject to which he has been licenced to drive a motor vehicle. Therefore, for violation of the terms of the licence, the licensing authority is within its powers to suspend and if necessary, revoke the licence that has been granted. When such action is initiated, it is not open to the licencee to contend that such action has deprived him of his means of livelihood. The device of licensing itself operates by prohibiting a particular act and then permitting the said act subject to the terms of a licence that is issued only to persons who are considered to be competent to be granted such licence. Therefore, in the case of driving also, there is a general prohibition in force, which is relaxed in the case of persons who are granted a licence, by permitting them to drive provided they abide by the conditions of the licence. Since the licensing authority is satisfied that the petitioner has violated the terms of the licence, it is certainly within the powers of the said authority to suspend the licence. I notice that the suspension is only for a period of one year. Such suspension is only reasonable. It is open to the petitioner to engage himself in any other avocation to earn a livelihood. For the above reasons, I am not satisfied that the petitioner is entitled to any of the reliefs claimed in this Writ Petition. This Writ Petition is therefore dismissed. J U D G M E N T The petitioner, a driver by profession, has filed this Writ Petition challenging Ext.P1 order of the 1st respondent by which, the petitioner has been disqualified from holding the driving licence issued to him, for a period of one year, from 20.03.2012 to19.03.2013. The petitioner while driving a bus was involved in a motor accident. The bus collided with a goods autorickshaw on 16.02.2012 and the driver of the autorickshaw was killed. The bus also rammed into a nearby house destroying the walls thereof. Crime No.174 of 2012 has been registered by the North Paravur Police in respect of the incident, charge sheeting the petitioner for offences under Sections 279, 337 and 304 A of the Indian Penal Code. 2. In view of the criminal proceedings initiated against the petitioner, the 1st respondent also initiated action and by Ext.P1 the petitioner has been disqualified from holding a driving licence as stated above. The order Ext.P1 states that a show cause notice had been issued to the petitioner as per the reference third cited therein and that, his explanation had been considered but, was found to be not satisfactory. 3. According to the learned counsel for the petitioner, Ext.P1 order is dated 16.03.2012, while reference No.3 shows that the petitioner had been personally heard on 20.03.2012. The above glaring discrepancy, according to the petitioner, renders the hearing if any afforded to him, illusory. At any rate, according to the petitioner, it shows that the petitioner was not heard before the order Ext.P1 was passed. Reliance is also placed on Section 19 of the Motor Vehicles Act, 1988 (`the Act' for short) to contend that according to the mandate of the said provision, the petitioner should have been heard before Ext.P1 was passed. It is a mandatory requirement that has not been complied with, it is pointed out. It is further contended that the petitioner is not a habitual criminal or a habitual offender and only in the case of such habitual offenders, Section 19 is attracted. Therefore the learned counsel for the petitioner seeks the issue of appropriate orders setting aside Ext.P1. 4. The learned Government Pleader opposes the contention of the learned counsel for the petitioner. The 1st respondent has filed a counter affidavit narrating the circumstances under which Ext.P1 order was issued. According to Ext.P1, the accident caused by the petitioner was a serious one in which the autorickshaw driver was killed and extensive damage was caused to a house. In the wake of the motor accident, the petitioner's licence was seized and the vehicles involved in the accident were subjected to examination by the Motor Vehicles Inspector. The Motor Vehicles Inspector impounded the licence of the petitioner and forwarded the same to the Joint Regional Transport Officer along with his report, Ext.R1(a). A typed copy thereof is Ext.R1(b). The Motor Vehicles Inspector has in his report found that the accident was caused due to the rash and negligent driving of the petitioner and that the vehicles did not suffer from any mechanical defect. Therefore, show cause notice was issued to the petitioner. The petitioner submitted his explanation, Ext.R1(c) on 20.03.2012. After considering the petitioner's explanation, it is contended that the 1st respondent had issued Ext.P1 order and a copy thereof was given to the petitioner also. Ext.R1(d) is produced to show that the petitioner has acknowledged on it that he had received a copy thereof. 5. It is the case of the 1st respondent that, Ext.P1 was not issued on 16.03.2012, but only on 20.03.2012. According to the counter affidavit, the discrepancy in the date was the result of a mistake that occurred while taking the print out. Since the petitioner was heard before Ext.P1 was passed, it is contended that there are no grounds to interfere with the said order. The learned Government Pleader has also placed reliance on a judgment of the Madurai Bench of the Madras High Court dated 09.09.2011 in W.P(M.D) No.10251 of 2011 to contend that the 1st respondent is sufficiently empowered by Section 19 of the Act to issue Ext.P1 order. Therefore, it is contended that there are no grounds to interfere with Ext.P1 order. It is also pointed out that the petitioner has an appellate remedy against Ext.P1 under Section 16 (3) of the Act. Therefore, it is contended that the petitioner may be relegated to the remedy of filing a statutory appeal. 6. I have heard the contentions of the rival parties. I have also considered the contentions anxiously. 7. It is not in dispute that the petitioner was involved in a motor accident with a goods autorickshaw in which, the driver of the autorickshaw was killed and serious damage was caused to a nearby house. The contention of the learned counsel for the petitioner is that an order in the nature of Ext.P1 can be issued only in the case of a habitual criminal or a habitual offender. The petitioner being a person who has not been involved in any accident previously, is not liable to be proceeded with under Section 19. Though various contingencies are enumerated in Section 19 specifying the situations in which the power under the said provision can be invoked, the petitioner's case does not fall into any of the situations envisaged by the provisions. 8. Section 19 of the Act reads as follows: "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 habitual drunkard; or (b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or (c) is using or has used a motor vehicle in the commission of a cognizable offence; 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 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 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 sub-section (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." 9. A reading of the above provision shows that where a licensing authority is satisfied, after giving the holder of a driving licence an opportunity of being heard, of the existence of any of the circumstances made mention of in clauses (a) to (h) or sub section (i) thereof, such person can be disqualified for a specified period from holding or obtaining a driving licence to drive all or any of the classes of vehicles specified in the licence. Clause (a) deals with a situation where he is a habitual criminal or habitual offender. It is no doubt true that the petitioner is neither a habitual criminal nor a habitual offender. However, clause (c) which stipulates that where the licencing authority is satisfied that "he is using or has used a motor vehicle in the commission of a cognizable offence" applies squarely to him. The petitioner is a person who has used his motor vehicle in the commission of a cognizable offence, namely, to cause the death of a human being. Therefore, wherever the licensing authority is satisfied that the petitioner has used a motor vehicle in the commission of a cognizable offence, he is entitled to proceed against the petitioner under Section 19 of the Act. It cannot therefore be said that initiation of action under the said provision is unwarranted or uncalled for. The learned Government Pleader places reliance on a decision of the Madhurai Bench of the Madras High Court [V.Rajendran v. The Regional Transport Officer, Thanjavur] where a similar view has been taken by a single Bench of the said Court. After analysing the various provisions of the Motor Vehicles Act, 1988, the Court has concluded the issue in paragraph 30, which reads as follows: "30. Reading of Section 19 of Motor Vehicles Act, 1988, makes it clear that if a licensing authority is satisfied, after giving the holder of a driving licence an opportunity of being heard, that he, "by using or used a motor vehicle in the commission of cognizable offence" , such authority can disqualify the holder licence, 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 he can even revoke the licence. It is also to be noted that the legislature has also clearly demarcated the powers of the Courts and the licensing authorities., as to when the licence can be suspended or revoked, when there is commission of a cognizable offence or for conviction of an offence. Sections 19 and 21 deal with the powers of the Licensing authority. Sections 20 and 22 deal with the powers of the Court. The circumstances under which the holder of the licence can be disqualified for a specified period in Section 19(1) are different from the one in Section 21. Both operate under different sphere. Section 19(1) speaks of commission of cognizable offence in contra to Section 21, which speaks about previous conviction under Section 184 of the Motor Vehicles Act. The usage of the words, "commission of a cognizable offence" and "conviction", in two different sections in the enactment and the power to suspend or disqualify, as the case may be, for specific and definite reasons set out in the Sections, have to be given their plain and literal meaning. To say that only after conviction or arriving at the conclusion, a licence can be suspended or licence can be temporarily disqualified would render Section 19 of the Motor Vehicle Act, as redundant." 10. The second contention of the learned counsel for the petitioner that the petitioner was not heard before the order Ext.P1 was passed is stoutly denied by the learned Government Pleader. The counter affidavit of the 1st respondent shows that the petitioner had been served with a show cause notice. Ext.R1 (c) is a copy of the statement submitted by the petitioner on 20.03.2012. Ext.R1(d), which is a copy of Ext.P1 order, bears a signature of the petitioner showing that he had received a copy thereof on 20.03.2012. However, the order Ext.P1 shows that the date thereof is 16.03.2012. The above discrepancy has been explained by the 1st respondent in the following words in paragraph 2 of his counter affidavit. "In the report of the Motor Vehicle Inspector, it is specifically found that the accident was caused due to the rash and negligent driving of the petitioner and vehicle had no mechanical defect. Thereupon show-cause notice was issued to the petitioner to appear and show-cause why his licence shall not be suspended. Accordingly, the petitioner appeared before me on 20.03.2012. On the same day petitioner was heard and his statement was taken and after due enquiry and hearing the petitioner his licence was suspended for one year. A true copy of the statement taken from the petitioner is produced herewith and marked as Exhibit-R1(c). The copy of the order was issued to the petitioner on the same day and the petitioner signed on the original of the order showing receipt of the same. True photocopy of the original of the order is produced herewith and marked as Exhibit-R1(d). Unfortunately the date in Ext.R1(d) is shown as 16.03.2012, which happened due to the mistake while taking the printout. The order in fact was passed on 20.03.2012 after hearing the petitioner and the same is evident from Ext.R1(c) and Ext.R1 (d)." The explanation that the date, 16.03.2012 seen on Ext.P1 is a mistake is certainly an acceptable explanation. It is worth noticing that as per the endorsement in Ext.R1(d), the petitioner had received a copy of Ext.P1 on 20.03.2012. Section 16(3) of the Act confers a right of appeal on the petitioner. The right of appeal was to be exercised within a period of 30 days of receipt of the order. It is significant to note that, though the petitioner had received a copy of the order on 20.03.2012, he had not chosen to file a statutory appeal within the time stipulated in Section 16. If the petitioner's case that he had not been heard before the issue of Ext.P1 were bona fide, he would certainly have challenged Ext.P1 in appeal within the statutory period of 30 days prescribed by Section 16(3). This Writ Petition is filed long after the said period had expired, on 05.06.2012. The above conduct of the petitioner also does not inspire confidence. 11. The next contention of the learned counsel for the petitioner is that the petitioner is already facing a criminal prosecution for the various offences alleged against him by the Police. The criminal Court is also empowered to suspend or cancel the petitioner's driving licence under Sections 21 and 22 of the Act. The said power is to be exercised in appropriate cases by the Court, upon conviction of a person. Therefore, as held by the Madras High Court in V.Rajendran v. The Regional Transport Officer, Thanjavur (supra), the power of the licensing authority and that of the Court, operates in different spheres. The suspension of a licence under Section 19 is not dependent upon a conviction of the offender. The same can be invoked immediately upon commission of the offence where the licensing authority is satisfied of the existence of the other conditions stipulated by the provision. For the above reasons, the impugned action would not constitute double jeopardy as contended. 12. The learned counsel for the petitioner contends that the impugned action has deprived the petitioner of his means to earn his livelihood. Since the petitioner's licence has been suspended, it is submitted that he is not able to work as a driver for the purpose of earning a livelihood. It is to be noted that the right to earn a livelihood by working as the driver of a transport vehicle is regulated by the provisions of the Motor Vehicles Act and the Rules therein. The licence granted to the petitioner does not confer on him a right to drive his vehicle dangerously or carelessly or in such a way as to cause injury, damage or loss of life to another. Any such conduct on his part amounts to violation of the terms and conditions subject to which he has been licenced to drive a motor vehicle. Therefore, for violation of the terms of the licence, the licensing authority is within its powers to suspend and if necessary, revoke the licence that has been granted. When such action is initiated, it is not open to the licencee to contend that such action has deprived him of his means of livelihood. The device of licensing itself operates by prohibiting a particular act and then permitting the said act subject to the terms of a licence that is issued only to persons who are considered to be competent to be granted such licence. Therefore, in the case of driving also, there is a general prohibition in force, which is relaxed in the case of persons who are granted a licence, by permitting them to drive provided they abide by the conditions of the licence. Since the licensing authority is satisfied that the petitioner has violated the terms of the licence, it is certainly within the powers of the said authority to suspend the licence. I notice that the suspension is only for a period of one year. Such suspension is only reasonable. It is open to the petitioner to engage himself in any other avocation to earn a livelihood. For the above reasons, I am not satisfied that the petitioner is entitled to any of the reliefs claimed in this Writ Petition. This Writ Petition is therefore dismissed. (K.SURENDRA MOHAN, JUDGE) rtr/ |
