BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/09/2011 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.10251 of 2011 V.Rajendran ... Petitioner Vs. The Regional Transport Officer, Thanjavur. ... Respondent PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the respondent to return back the petitioner's driving licence to the petitioner immediately, within the stipulated time. !For Petitioner ... Mr.T.A.Ebenezer ^For Respondent ... Mr.T.S.Mohammed Mohideen Additional Government Pleader :ORDER
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Mandamus has been sought for directing the Regional Transport
Officer, Thanjavur, to return the petitioner’s driving licence immediately.
2. It is the case of the petitioner that on 30.05.2011, when he was
on duty in a Transport Corporation Bus, an untoward accident occurred within
Thanjavur Traffic Investigation Wing Police Limit, in which, a person injured
had succumbed to death. An F.I.R. was registered against the petitioner under
Section 304(A) of the Indian Penal Code on the file of the Thanjavur Traffic
Investigation Wing Police Station. The petitioner was released on bail and in
the meantime, he was placed under suspension on 31.06.2011. The suspension was
revoked on 25.07.2011 and that he was permitted to join duty vide order of the
General Manager, dated 25.07.2011. When the petitioner was taken to the police
station, his licence was seized by the respondent. Hence, he has filed the
present Writ Petition.
3. It is the further case of the petitioner that he is due to retire
on 15.09.2011. The petitioner has questioned the authority of the Regional
Transport Officer, to withhold the driving licence, on the ground inter alia
that the Regional Transport Officer, Thanjavur has no jurisdiction, till a
finding is recorded by the Court of competent jurisdiction/Tribunal, on the
aspect of rash and negligent driving.
4. The issue as to whether the licensing authority has powers to
withhold the driving licence, until the proceedings under Sections 19 and 21 of
the Motor Vehicles Act are concluded, or when a case for dangerous driving under
Section 304(A) of the Indian Penal Code is pending, has been considered by this
Court in W.P.(MD)No.8067 of 2011, dated 20.07.2011. It is useful to extract
paragraph Nos.4 to 37 of the said order dated 20.07.2011, which are as follows:
“4. In order to adjudicate the contentions, it is necessary to
extract few provisions from the Motor Vehicles Act. Section 19 of Motor Vehicles
Act, 1988 gives power to the licensing authority to disqualify from holding a
driving licence or revoke such licence and the same 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 a 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; 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.”
5. Section 20 of the Motor Vehicles Act, 1988 deals with the
power of Court to disqualify driving licence, which reads as follows:
“20.Power of Court to disqualify.-(1)Where a person is convicted of an offence
under this Act or of an offence in the commission of which a motor vehicle was
used, “the Court” by which such person is convicted may, subject to the
provisions of this Act, in addition to imposing any other punishment authorised
by law, declare the persons so convicted to be disqualified, for such period as
the Court may specify, from holding any driving licence to drive all classes or
description of vehicles, or any particular class or description of such
vehicles, as are specified in such licence:
Provided that in respect of an offence punishable under section 183 no such
order shall be made for the first or second offence.
(2) Where a person is convicted of an offence under clause (c) of sub-
section (1) of section 132, section 134 or section 185, the Court convicting any
person of any such offence shall order the disqualification under sub-section
(1), and if the offence is relatable to clause (c) of sub-section (1) of section
132 or section 134, such disqualification shall be for a period of not less than
one month, and if the offence is relatable to section 185, such disqualification
shall be for a period of not less than six months.
(3) A Court shall, unless for special reasons to be recorded in writing it
thinks fit to order otherwise, order the disqualification of a person-
(a) who having been convicted of an offence punishable under section
184 is again convicted of an offence punishable under that section,
(b) who is convicted of an offence punishable under section 189, or
(c) who is convicted of an offence punishable under section 192:
Provided that the period of disqualification shall not exceed, in the case
referred to in clause (a), five years, or, in the case referred to in clause
(b), two years or, in the case referred to in clause (c), one year.
(4) A Court ordering the disqualification of a person convicted of an
offence punishable under section 184 may direct that such person shall, whether
he has previously passed the test of competence to drive as referred to in sub-
section (3) of section 9 or not, remain disqualified until he has subsequent to
the making of the order of disqualification passed that test to the satisfaction
of the licensing authority.
(5) The Court to which an appeal would ordinarily lie from any conviction
of an offence of the nature specified in sub-section (1) may set aside or vary
any order of disqualification made under that sub-section notwithstanding that
no appeal would lie against the conviction as a result of which such order of
disqualification was made.”
6. Section 21 of the Motor Vehicles Act, 1988 deals with the
suspension of driving licence in certain cases, which reads as follows:
“21. Suspension of driving licence in certain cases.-(1) Where, in relation to a
person who had been previously convicted of an offence punishable under section
184, a case is registered by a police officer on the allegation that such person
has, by such dangerous driving as is referred to in the said section 184, of any
class or description of motor vehicle caused the death of, or grievous hurt to,
one or more persons, the driving licence held by such person shall in relation
to such class or description of motor vehicle become suspended-
(a) for a period of six months from the date on which the case is
registered, or
(b) if such person is discharged or acquitted before the expiry of
the period aforesaid, until such discharge or acquittal, as the case may be.
(2) Where, by virtue of the provisions of sub-section (1), the driving
licence held by a person becomes suspended, the police officer, by whom the case
referred to in sub-section (1) is registered, shall bring such suspension to the
notice of the Court competent to take cognizance of such offence, and thereupon,
such Court shall take possession of the driving licence, endorse the suspension
thereon and intimate the fact of such endorsement to the licensing authority by
which the licence was granted or last renewed.
(3) Where the person referred to in sub-section (1) is acquitted or
discharged, the Court shall cancel the endorsement on such driving licence with
regard to the suspension thereof.
(4) If a driving licence in relation to a particular class or description
of motor vehicles is suspended under sub-section (1), the person holding such
licence shall be debarred from holding or obtaining any licence to drive such
particular class or description of motor vehicles so long as the suspension of
the driving licence remains in force.”
7.Section 184 of of the Motor Vehicles Act is extracted hereunder:
“184. Driving Dangerously. – Whoever drives a motor vehicle at a speed or in a
manner which is dangerous to the public, having regard to all the circumstances
of the case including the nature, condition and use of the place where the
vehicle is driven and the amount of traffic which actually is at the time or
which might reasonably be expected to be in the place, shall be punishable for
the first offence with imprisonment for a term which may extend to six months,
or with fine which may extend to one thousand rupees, and for any second or
subsequent offence, if committed within three years of the commission of a
previous similar offence with imprisonment for a term which may extend to two
years, or with fine which may extend to two thousand rupees or with both.”
8.It is worthwhile to extract the meaning of the word, “suspension” given
in the Dictionaries.
“Suspension, as per Wharton’s Law Lexicon, 14th Edn., is a temporary stop
or hanging up as it were of a right for a time, also a censure on ecclesiastical
persons, during which they are forbidden to exercise their office or take the
profits of their benefices.
‘Suspension’ means, “action of debarring or state of being debarred,
especially, for a time, from a function or privilege; temporary deprivation of
one’s office or position, or again, state of being temporarily kept from doing
or deprived of something.
Suspension as per Black’s Law Dictionary: 7th Edn. Pg.1460 means, (1) to
interrupt; postpone; defer (2) to temporarily keep a person from performing a
function, occupying an office, holding a job or exercising a right or privilege.
As per Stroud’s Judicial Dictionary, “Suspension’ or ‘Suspense’ is a
temporal, ie., temporary, “Stop of Mans’ Right (Cowel). Suspension, as per
Bauvier’s Law Dictionary, Vol.II, means a temporary stop of right, of a law, and
the like. As per the Ramanatha Iyer’s Dictionary, suspension means temporary
intervention or cession of something (as) office, work or labour.
The act of debarring for a time from a function or privilege”. It means a
temporary deprivation of once office or position. [K.J. Aiyar’s Judicial
Dictionary, 14th Edn.]
Suspension, according to Oxford Dictionary, means, “The action of
suspending or condition of being suspended, the action debarring especially for
a time from, a function or privilege, temporary deprivation of one’s office or
position or again, state of being temporarily kept from doing or deprived of
something.
Suspension is, to defer; to debar from any privilege, office employment,
et., for a time being. [Ref. Hemanth Kumar v. S.N.Mukherjee reported in AIR
1954 Cal. 340]
Suspension cannotes temporary cessation of something as right, work or
labour. The basic idea underlying the root word, “suspend” and all its
derivatives is that a person while holding an office and performing its
functions of holding a position or privilege should be interrupted in doing so
and debarred for the time being from further functioning in the office or
holding the position and privilege. He is intercepted in the exercise of his
functions of his employment of the privilege and put aside, as it were, for a
time, excluded during the period from his functions or privileges. Such is the
concept of a suspension order. Reference can be made to the decision in Abid
Mohd. Khan v. State of M.P. reported in AIR 1958 MP 44.
“A conditional withholding, interruption, or delay; as, the suspension of a
payment on the performance of a condition.”
9.In V.Seetharaman Vs. The Regional Transport Officer, Madurai South
reported in (2008-3-L.W 433), the licence of the petitioner therein has been
suspended after issuing show-cause notice. The show-cause notice reads as
follows:-
“Report dated 07.12.2007 of the Motor Vehicle Inspector, Grade-I, Madurai
South.
Whereas, the Motor Vehicle Inspector, Grade-I, had recommended for
revocation of the licence granted to you for causing a fatal accident. You are
hereby called upon to show cause as to why your license should not be revoked or
suspended within 7 days of this nootice. Failing which, it will be considered
that you do not have any cause to show and without further intimation your
license will be revoked or suspended under Section 19(1) of the Motor Vehicles
Act.”
10.The petitioner therein submitted his explanation disputing the manner
in which the accident occurred. After considering the explanation, by an order
dated 08.01.2008, under Section 19(1) of the Motor Vehicles Act, 1988, the
licence was suspended from 01.02.2008 to 31.07.2008, by the licensing authority,
Madurai South. The holder of the licence was directed not to drive any motor
vehicles.
11.The grounds of challenge of the order of suspension were as follows:-
a. The authority has filed to see that mere involvement of the petitioner
in a fatal accident case does not per se attract disqualification, unless the
driver, by his previous conduct as driver of Motor vehicle has shows that his
driving is likely to be attended with danger to the public as per the mandate of
section 19(a)(d) of the Motor Vehicles Act, 1988.
b. The impugned order did not reflects the total non-application of mind
by the authority and does not reflect the subjective satisfaction required to be
made under the said Section.
c. The motor vehicle report was not furnished and that there was violation
of principles of natural justice.
12.Considering the grounds raised, Hon’ble Mr.Justice S.Nagamuthu, passed
an order dated 14.02.2008, in W.P.(MD)No.1266 of 2008, rejecting the contentions
and at para 4, it has been held as follows:-
“4. A perusal of the order would go to show that a show cause notice was
issued on 07.12.2007, for which the petitioner has submitted his explanation on
27.12.2007. He has not asked for copy of any document. There is also no
dispute that the vehicle driven by him met with an accident. Under Section
19(1) Sub Clause (c) of the Motor Vehicles Act, if the motor vehicle driven by a
driver has been involved in the commission of cognizable offence, certainly, the
authorities have got power to disqualify the person, after recording the
reasons. Thus, I do not find any merit in the argument that the order is not a
speaking order and that the principles of natural justice have not been
followed. In any even, the impugned orders appealable to the authority as
prescribed under Section 19(3) of the said Act. When the petitioner has an
alternative efficacious remedy, the writ petition cannot be maintained before
this Court under Article 226 of the Constitution of India. ”
13.When the matter was challenged by way of an appeal in W.A.(MD)No.205 of
2008, it was inter alia contended that even though an offence under Section
304-A IPC is cognizable, the language of the section indicates that the offence
is committed when there is a rash and negligent driving and a person, who is
alleged to have committed an offence under Section 304-A by rash and negligent
driving, cannot be said to have “used the motor vehicle in the commission of a
cognizable offence”.
14.According to the appellant therein, the provisions contained in Section
19(1)(c) would be applicable only, where, the person concerned deliberately used
the Motor Vehicle in the commission of offence and not where the cause of rash
and negligent driving of motor vehicle, under Section 304-A is committed.
Rejecting the contention, a Division Bench, cited supra, at paragraph 10, has
held as follows:-
“The power to revoke the licence is granted to the authority with a view
to prevent a person unworthy of driving a vehicle from driving temporarily or
even permanently. If the interpretation suggested by the learned counsel for
the appellant is accepted, even a person, who drives a vehicle negligently and
recklessly and causes death, will continue to drive the vehicle in future with
impunity with the existing licence. Such interpretation would give rise to
starting consequences and defeat the very purpose of incorporating Section 19 of
the Motor Vehicles Act. Therefore, the interpretation suggested by the learned
counsel for the appellant, is not acceptable.”
15.The dictum laid down in the above said judgment is that when there is
rash and negligent driving and when the petitioner alleged to have committed an
offence under Section 304-A, the competent authority, with a view to prevent a
person from continuing to drive the vehicle in favour of the existing licence,
can resort the suspension.
16.In P.Sethuram V. The Licensing Authority, The Regional Transport
Officer, Dindigul reported in (2010 Writ L.R.100) In the above reported
judgment, the Division Bench was pleased to quash the order of suspension on the
ground that there was no allegation either in the notice or in the impugned
order made in the above writ petition that the appellant therein was a habitual
criminal or habitual drunkard so as to attract Clause (a) of Section 19 of the
Act.
17.The Division Bench has further observed that the Licensing Authority
has pre-concluded the issue that the appellant therein was guilty of rash and
negligent, even before the criminal court or the Motor vehicles claims Tribunal
went into the case. There is absolutely no quarrel over the judgment that the
licencing authority cannot hold the licence as guilty of rash and negligent
driving, when it is the function of the Court of competent jurisdiction or the
claims Tribunal to adjudicate the aspect of rash and negligent driving. Also,
when the show-cause notice or the impugned order, does not impute the appellant
with any of the ingredients, necessary under clause (b) to (h) of Sub-Section
(1) of Section 19 of the Act., the Division Bench has set aside the order of
suspension.
18.Though the Division Bench, tested the correctness of the order of
suspension, with due respect, this Court is of the view that the issue as to
whether, the licence can be directed to surrender the licence, under Section
19(2) of the Act, pending proceedings under 19(1) was not raised and answered.
Section 19(2) reads as follows:-
“19(2). Where an order under sub-Sectiion(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 was 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 authorities 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 or motor vehicles, the licensing authority shall endorse the
disqualification upon the driving licence and return the same to the holder.”
19.Section 19 empowers the competent authority to pass an order under Sub-
section 19 and when an order sub-section 1 is made, the holder of the driving
lincence shall forthwith surrender his driving licence to the licensing
authority making the order, if the driving licence has not already been
surrendered. Thus, reading of the Section makes it clear that surrendering of
the licence is done at two stages, when he is called upon to do so, before an
order under Sub-section (1) of Section 19 is passed on immediately thereafter.
Thus impliedly the Section also makes it clear that there is a power conferred
on the licencing authority to insist for surrendering the licence, till the
adjudication is completed under Section 19(1) of the Act. Therefore, it cannot
be contended that the competent authority has no power or authority to retain
the driving licence, till the adjudication is completed and final orders are
passed, under Section 19(1) of the Act.
20.In W.P.Nos.18042 and 18490 of 2010, the orders of the licensing
authority, suspending the licences to the petitioners therein were challenged.
Reliance was also placed on the Division Bench Judgment of this Court in A.Sekar
Vs. The Regional Transport Officer reported in (2010 WLR 100). The orders of
suspension came to be passed, after issuance of show-cause notices. While
considering the plea of the petitioners therein, that licences have been
suspended, even before the conviction was recorded by a Court of competent
jurisdiction and taking note of the large number of accident cases, registered
in the State, for the years 1993 to 2009, Hon’ble Justice Mr.Paul Vasanthakumar,
at paragraph 12 to 16 held as follows:-
“12. The Division Bench of this Court in the decision reported in 2010 WLR
100 (cited supra), while deciding the issue of suspension of the driving licence
held that suspending a licence has got civil consequences. Therefore only after
issuing show cause notice an order could be passed. In the said case no show
cause notice was issued and without mentioning the commission of a cognisable
offence, the suspension order was passed. Therefore this Court held that the
said order was passed without due application of mind.
13. In the cases on hand, as already stated, show cause notices were
issued to the petitioners and the petitioners’ representations and objections
were also considered, apart from giving opportunity to the petitioners to appear
in person in respect of the petitioner in W.P.No.18042 of 2010. The offence
alleged against the petitioners are also taken note of by the respondent and
death of one person each in these writ petitions and thereafter it was thought
fit to suspend the driving licence of the petitioners for a period of six
months. The said orders are passed based on public interest and to prevent
danger to public, bearing in mind the prevention such accident by the
petitioners for certain period viz., six months. Therefore the provisions
contained in section 19(1)(f) empowers the respondent in these cases to pass the
impugned orders, i.e, to prevent danger to the public.
14. It is the fact that number of accidents and death due to the accidents
are increasing year after year due to several factors, including careless and
indisciplined driving; drunken driving; using cell phone while driving; sleepy
driving; etc. The statistics available regarding road accidents from 1993 to
2009 in the State of Tamil Nadu are as follows:
“GOVERNMENT OF TAMIL NADU
State Transport Authority
ROAD ACCIDENT DATA FROM 1993 TO 2009
TAMIL NADU
————————————————————————- YEAR
Fatal Grevious Injury Minor Injury Non-Injury Total
N.A N.P.K N.A N.P.I N.A N.P.I N.A Accidents
1993 6528 7349 3562 5100 17957 27226 6878 34925
1994 7027 7798 4199 6091 18950 28789 6861 37037
1995 7974 8773 4440 6380 21661 31922 7610 41685
1996 8079 9028 4474 7383 22151 31198 7493 42197
1997 7947 8755 4542 6567 23362 34010 8352 44203
1998 8510 9801 6562 8525 23862 33970 7789 46723
1999 8734 9653 5276 7287 27231 34157 6845 48086
2000 8269 9300 5278 8496 29137 44910 6239 48923
2001 8579 9571 5442 8354 30963 45928 6994 51978
2002 9012 9939 5830 8697 32183 46433 6478 53503
2003 8393 9275 5163 8557 31600 46685 5869 51025
2004 8733 9507 4875 7642 33222 49641 5678 52508
2005 8844 9760 5214 7815 34669 54152 5151 53878
2006 10055 110 09 4630 6833 36262 57508 4198 55145
2007 11034 12036 4498 6873 39494 64226 4114 59140
2008 11813 12784 4426 6696 39193 63555 4977 60409
2009 12727 13746 4448 6721 39676 63783 3943 60794
————————————————————————-
N A : No of Accidents
N P K : No of persons killed
N P I : No of persons Injured
Source: DGP, Chennai”
The number of road accidents and the causes for such accidents during the year
2009 in the state of Tamil Nadu are as follows: “Government of Tamil Nadu
State Transport Authority
NUMBER OF ROAD ACCIDENTS ACCORDING TO CAUSES
DURING THE YEAR 2009 (FROM JANUARY ‘2009 TO DECEMBER ‘2009)
State : TAMIL NADU
————————————————————————-NUMBER
OF ROAD ACCIDENTS ACCORDING TO CAUSES
————————————————————————- Types
of Causes Fatal Grevious Minor Non Total
Injury Injury Injury Accidents
N.A N.P.K N.A N.P.I N.A N.P.I N.A
————————————————————————- Fault
of Driver 11494 12438 4091 6216 35636 57593 3731 54952
Fault of
Passenger
Other than
Driver 261 287 73 94 857 1202 64 1255
Fault of
Pedestrian 464 479 150 187 1695 2561 20 2329
Fault of
Mechanical
Defect 103 108 38 56 446 697 34 621
Bad Road 117 121 46 86 404 647 47 614
Bad Weather 9 13 6 6 65 109 8 88
Others 279 300 44 76 573 974 39 935
Total 12727 13746 4448 6721 39676 63783 3943 60794
———————————————————————— N A-NO.
OF ACCIDENTS.
N P K – NO. OF PERSONS KILLED.
N P I – NO. OF PERSONS INJURED
Source: DGP, Chennai”
The above data indicate gradual increase of fatal and grievous injury accidents.
The percentage of accidents caused by the drivers’ negligence is 90.31%. Thus,
strict implementation of the provisions of the Motor Vehicles Act, 1988 is the
present day requirement not only at the time of issuing driving licence, but
also even after the licence is issued.
15. The Division Bench judgment cited supra nowhere states that unless a person
is convicted by a criminal court no suspension of licence be ordered. The said
judgment only states that prior to the order of suspension notice shall be given
to the licensee and his objection shall be considered. The said procedure is
stated in Section 19(1) of the Act. Strict implementation of the provisions of
the Motor Vehicles Act, 1988, by the authorities concerned will have deterrent
effect on the drivers in future and definitely they will be careful in future,
which will in turn minimise the number of accidents. Therefore it should be
treated as a right decision by the authorities concerned.
16. Since the petitioners are involved in criminal case for the commission of
accident, due to which one person each died, the order passed by the respondent
in these writ petitions suspending the licence of the petitioners for a period
of six months after issuing notice and considering their explanation are
declared valid and there is no illegality in the said orders. There are no
merits in the writ petitions and the same are dismissed. No costs. Connected
miscellaneous petitions are also dismissed.
21.Motor Vehicles Act is a comprehensive Code, containing all features
which covers, grant of permits, usage of the vehicles, description of the
vehicles, different kinds of licences required for different clauses of licence,
transfer of ownership etc., and it empowers the licensing authorities, to
disqualify, suspend or revoke the licences, depending upon the factors
enumerated in the Sections. Restricting to operate the vehicles, are measures
to temporarily or permanently to curtail the rights of the licencees,
considering the safety of the road users, including general public. Public
interest is the predominant consideration while taking appropriate action by the
licensing authority or the Court, as the case may be. In this context, it is
worthwhile to extract few decisions, as to how a statute has to be interpreted.
“(i) It is impossible to separate law from morality because public law is,
and always has been, a reflection of the morality of those who make the
laws.(How Does Law Relate to Morals by Rav.B.Horovitz)
(ii)There are two units of enquiry, while interpreting the statutory
provisions. Statutory context and the intention of the Parliament – and the
Judge must seek to harmonise the two [Cross’s “Statutory Interpretation” (Second
Edn.), at Page 21]
(iii)The universe of meanings is neither a sound-proof system nor a nisy
babel. We have guidelines, not rituals. The rule is not, always literality, for
that sounds like bigotry. Nor is it whatever the interpreter chooses, like
historicity, sociology, contextuality and a host of fancy-dress fashions, for
that will create unwarranted variances and supersede the law-maker by a side-
wind. Words used designedly by trained draftsmen and authenticated by purposeful
legislators, must possess a mandate, a meaning and a mission. That is Its sense.
[Union of India v. Sankalchand Himatlal Sheth and another (AIR 1977 SC 2328 =
1977 (4) SCC 193)]
(iv)The current and correct view of the interpretative process is that
words must be given their literal’ or ‘ordinary’ meaning unless there are
compelling reasons, recognised by canons of construction, to the contrary.
[Authorised Officer, Thanjavur and another v. S.Naganatha Ayyar, etc., (AIR 1979
SC 1487 = 1979 (3) SCC 466)]
(v)Where a statute confers particular powers without prejudice to the
generality of a general power already conferred, the particular powers are only
illustrative of the general power and do not in any way restrict the general
power. [D.K.Trivedi v. State of Gujarat (AIR 1986 SC 1323 = 1986 SCC Suppl. 20)]
(vi)The Courts strongly lean against any construction which tends to
reduce a statute to a futility. The provision of a statute must be so construed
as to make it effective and operative on the principle ut res magis valeat quam
pereat. [Tinsukhia Electric Supply Co. Ltd., v. State of Assam (AIR 1990 SC
123)]
(vii) In construing a statute, the Court has to ascertain the intention of
the law making authority in the backdrop of the dominant purpose and the
underlying intendment of the said statute and that every statute has to be
interpreted without any violence to its language and applied as far as its
explicit language admits consistent with the established rule of interpretation.
[Mohan Kumar Singhania and others v. Union of India and others (AIR 1992 SC 1 =
1991 AIR SCW 2646 = 1991 Lab IC 2334 Para 67)].
(viii). The Courts have a duty to construe the provisions of a statute to
advance the cause of justice and facilitate the day to day working of the
statute to serve the public interest and achieve the objective of social
betterment. [Gauri Shankar Gaur and others, etc., v. State of U.P., and others
(AIR 1994 SC 169 = 1994 (1)SCC 92)]
(ix)The words of a statute are to be first understood in their natural,
ordinary or popular sense and phrases and sentences are construed according to
their grammatical meaning unless that leads to some absurdity or unless there is
something in the context or in the object of the statute to suggest the
contrary. [Shri.Mohd.Ali Khan and others v. The C.W., Tax, New Delhi, 1997 (3)
JT (SC) 250 = (1997) 3 SCC 511 = AIR 1997 SC 1165 = 1997 AIR SCW 1175 = 1997 Tax
LR 371)]
(x)Law Courts exist for the society and in the event law Courts feel the
requirement in accordance with principles of justice, equity and good
conscience, the law Courts ought rise up to the occasion to meet and redress the
expectation of the people. [Secretary, Haryana State Electricity Board v. Suresh
and other etc., (AIR 1999 SC 1160 = 1999 (3) SCC 601)]
(xi).The provision in the statute has to be understood in its ordinary
natural sense, unless the Court finds that the provision sought to be
interpreted is vague or obscurely worded. [Steel Authority of India Ltd., and
others v. National Union Water Front Workers and Others, etc. (AIR 2001 SC 3527
= 2001 (7) SCC 1)
(xii).The Court’s jurisdiction to interpret a statute can be invoked when
the same is ambiguous. It cannot enlarge the scope of legislation or intention
when the language of provision is plain and unambiguous. It cannot add or
subtract words to a statute or read something into it which is not there. It
cannot re-write or recast legislation. [Nasiruddin v. Sita Ram Agarwal (AIR 2003
SCW 908)]
(xiii)”A statute must be construed as a workable instrument. Ut res magis
valeat quam pereat is a well-known principle of law. [Balram Kumawat v. Union of
India (AIR 2003 SC 3268 = 2003 (7) SCC 628)]”
22.Section 19 of the Act empowers the licensing authority to disqualify
the holder of a licence, after providing an opportunity of personal hearing. To
address the argument that only after final determination of the offence the
licence can be suspended, it is necessary to examine the Provision 19(1)(c),
which is extracted hereunder:-
“19(1)(c). is using or has used a motor vehicle in the commission of a
cognizable offence.”
23.Section 19(1)(c) clearly states that “is using or used a motor vehicle
in the Commission of a cognizable offence”, the legislature has used both past
and present tenses, while considering the usage of the vehicle, in commission of
a cognizable offence. The word “commission” is now sought to be interpreted,
as one of final determination by the Court, after trial.
The word, ‘Commission’, as explained in ‘CHAMBERS DICTIONARY’ is, “the act
of committing; the state of being commissioned or committed; that which is
committed.”
As per ‘OXFOR ENGLISH DICTIONARY’, ‘commission’ means, an action of
committing a crime or offence.
In ‘JUDICIAL DICTIONARY’, the word, ‘commit’ is defined as to perpetrate,
as a crime; to perform as an act.
As per the ‘ADVANCED LAW LEXICON’ by P.Ramanatha Aiyar, III Edition, the
word, ‘commission in criminal law’ is defined as ‘doing or perpetration; the
performance of an act.
“Commit’ as per ‘STROUD’S JUDICIAL DICTIONARY’, this word, sometimes
include an act or omission.
‘COLLINS COBUILD ARAVANCED LEARNERS ENGLISH DICTIONARY’ the word, ‘commit’
is defined as,
“If someone commits a crime or a sin, they do something illegal or bad”.
(v) As per BLACK’s LAW DICTIONARY’, ‘commission’ means, an act of doing or
perpetrating acts as a crime.
(vi) As per MERRIAM WEBSTER’s COLLEGIATE ENGLISH DICTIONARY – 11th
Edition, ‘commission’ means, an act of something of a crime.
24. Section 184 provides for punishment of imprisonment to a maximum
period of six months, or with fine which may extend to one thousand rupees for
the first offence and for any second or subsequent offence, if committed within
three years of the commission of a previous similar offence with imprisonment
for a term which may extend to two years, or with fine which may extend to two
thousand rupees or with both. Thus it could be seen in the event of any
repetition of the commission of offence under Section 184 of Motor Vehicles Act,
1988, an enhanced punishment is provided. Section 304-A IPC reads as follows:-
“304-A. Causing death by negligence- Whoever causes death of any
person by doing any rash or negligent act not amounting to culpable homicide,
shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.”
It should be borne in mind that Section 304-A I.P.C., entails a severe
punishment than Section 184 of the Motor Vehicles Act.
25. An important aspect to be noted is that, the expression used in Sub-
Section (c) of Section 19 of Motor Vehicles Act is, “in using or used in the
commission of a cognizable offence”. The Section does not state that the
licensee should be convicted or any finding has to be recorded as to his guilt,
in the commission of any cognizable offence. Therefore, this Court is of the
view that the interpretation sought to be made by the petitioner to the
provisions of Motor Vehicles Act that, only after arriving at a finding, the
licensing authority can suspend or disqualify, to drive the vehicle or revokes
the licence, for a specified would be an infringement to the statutory
provision, which in my view that even during the pendency of a criminal case
registered, when the holder “of the licence” is using or has used the vehicle in
the commission of a cognizable offence.
26. If the interpretation of the petitioner has to be accepted, then the
licensing authority has to remain as a mute spectator to all the illegal acts of
the licensee, even if the vehicle is continuously used in the commission of any
offences, till the criminal Court records a finding. That would run contrary to
Section 19 of Motor Vehicles Act, which specifically uses the expression, “used
or using the vehicle”, in commission of a cognizable offence. The Section does
not state, “conclusion”, it only states “commission”. The purpose in giving a
separate caption, “dangerous driving”, would mean that such dangerous driving in
causing death or grievous hurt to one or more persons can be taken note of the
licencing authority to exercise his power to disqualify or suspend or revoke,
depending upon the facts and circumstances of the case.
27.While interpreting the provisions of the Act, this Court is of
the view that, the principle of harmonious construction has to be applied to
give effect to both the provisions under Sections 19 and 21 of the Motor
Vehicles Act. Where under Section 19(1)(c), the words, “using or has used in
the commission of a cognizable offence is used” whereas, in Section 21 of the
Act, the word, “convicted” is used. Useful reference can be made to the
following decisions:
(i) In Anwar Hasan Khan v. Mohd. Shafi reported in 2001(8) SCC 540, the
Supreme Court, at Paragraph 8, held as follows:
“For interpreting a particular provision of an Act, the import and effect
of the meaning of the words and phrases used in the statute have to be gathered
from the text, the nature of the subject-matter and the purpose and intention of
the statute. It is a cardinal principle of construction of a statute that
effort should be made in construing its provisions by avoiding a conflict and
adopting a harmonious construction. The statute or rules made thereunder should
be read as a whole and one provision should be construed with reference to the
other provision to make the provision consistent with the object sought to be
achieved. The well-known principle of harmonious construction is that effect
should be given to all the provisions and a construction that reduces one of the
provisions to a “dead letter” is not harmonious construction.”
(ii) In R.S. Pillai v. M.L. Peratchi, reported in (2000) 4 CTC 543, a
Division Bench of this Court, at Paragraphs 23 held as follows:
“23. Before we take up such an exercise, the settled legal position
in interpreting the statutes has to be borne in mind. It is settled law that the
statute must be read as a whole and this principle equally applies to different
parts of the same Section The Balasinor Nagrik Co-op. Bank Ltd., v. Babubhai,
AIR 1987 SC 849.
No provision in the statute and no word in the Section may be
construed in isolation Syed Hasan Rasul Numa v. Union of India , AIR 1991 SC
711.
Where the language of the provision is plain, clear and unambiguous,
only the plain meaning of the provision is to be adopted so as to avoid any
hardship or absurdity resulting therefrom R.S.Raghunath v. State of Karnataka,
1992 (1) SCC 335 and Mohammed All Khan v. W.T. Coinmr., AIR 1997 SC 1165.”
(iii) Again in M. Sathyanathan v. The District Collector, reported in
(2006) 1 CTC 328 , this Court held that,
“8. It is well-settled principle of interpretation that a statute is
to be interpreted on its plain reading; in the absence of any doubt or
difficulty arising out of such reading of a statute defeating or frustrating the
object and purpose of an enactment, it must be read and understood by its plain
reading. However, in case of any difficulty or doubt arising in interpreting a
provision of an enactment, courts will interpret such a provision keeping in
mind the objects sought to be achieved and the purpose intended to be served by
such a provision so as to advance the cause for which the enactment was brought
into force. If two interpretations are possible, the one which promotes or
favours the object of the Act and purpose it serves, is to be preferred. At any
rate, in the guise of purposive interpretation, the courts cannot rewrite a
statute. A purposive interpretation may permit a reading of the provision
consistent with the purpose and object of the Act, but the Courts cannot
legislate and enact the provision either creating or taking away substantial
rights by stretching or straining a piece of legislation. Vide Sri Ram Saha v.
State of W.B. , 2004 (11) SCC 497.”
(iv) In R.Sridharan v. Presiding Officer reported in 2008 (6) MLJ 1181,
at Paragraph 41, this Court has held that,
“41. Interpretation of a Statutory provision should be to find out the
intention of the legislature and that has to be understood with due regard that
the object of the legislation also. The word employed in the Statute will
acquire meaning and content depending upon the context in which they are used.
The word should not be torn out by the context and by interpretation, it would
make another provision Otiose/redundant and such interpretation should not be
adopted.”
28. Section 22 of the Motor Vehicles Act, 1988 deals with suspension or
cancellation of driving licence can be made on conviction, which reads as
follows:
“22. Suspension or cancellation of driving licence on conviction.-(1) Without
prejudice to the provisions of sub-section (3) of section 20 where a person,
referred to in sub-section (1) of section 21 is convicted of an offence of
causing, by dangerous driving as is referred to in section 184 of any class or
description of motor vehicle the death of, or grievous hurt to, one or more
persons, the Court by which such person is convicted may cancel, or suspend for
such period as it may think fit, the driving licence held by such person insofar
as it relates to that class or description of motor vehicle.
(2) Without prejudice to the provisions of sub-section (2) of section 20,
if a person, having been previously convicted of an offence punishable under
section 185 is again convicted of an offence punishable under that section, the
Court, making such subsequent conviction, shall, by order, cancel the driving
licence held by such person.
(3) If a driving licence is cancelled or suspended under this section, the
Court shall take the driving licence in its custody, endorse the cancellation
or, as the case may be, suspension, thereon and send the driving licence so
endorsed to the authority by which the licence was issued or last renewed and
such authority shall, on receipt of the licence, keep the licence in its safe
custody, and in the case of a suspended licence, return the licence to the
holder thereof after the expiry of the period of suspension on an application
made by him for such return:
Provided that no such licence shall be returned unless the holder thereof has,
after the expiry of the period of suspension, undergone and passed, to the
satisfaction of the licensing authority by which the licence was issued or last
renewed, a fresh test of competence to drive referred to in sub-section (3) of
section 9 and produced a medical certificate in the same form and in the same
manner as is referred to in sub-section (3) of section 8.
(4) If a licence to drive a particular class or description of motor
vehicles is cancelled or suspended under this section, the person holding such a
licence shall be debarred from holding, or obtaining, any licence to drive such
particular class or description of motor vehicles so long as the cancellation or
suspension of the driving licence remains in force.”
29. A bare reading of Sections 19 to 22 of the Motor Vehicles Act, makes
it clear that both the Licensing Authorities as well as a Court of competent
jurisdiction, which try a person for an offence under the penal laws and or
under the Motor Vehicles Act, 1988, are empowered to disqualify a person from
holding a driving licence or suspend or revoke the same, as the case may be. The
power to disqualify a holder of a licence after arriving at the conclusion of
guilty of the offence is entirely different than the power conferred on the
Licensing authority, when the holder of licence, is using or has used the
vehicle in the commission of a cognizable offence.
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
license 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 of 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 licensee can be temporarily disqualified would
render Section 19 of the Motor Vehicle Act, as redundant.
31. The words “used” or “using” the motor vehicle in the commission of a
cognizable offence, in the opinion of this Court, is not unambiguous and that
the licensing authority is empowered to disqualify the holder of driving licence
or revoke the driving license, after providing an opportunity of being heard,
and it is not necessary that only after recording a finding that the holder of
licence is guilty of an offence, under the provisions of Motor Vehicles Act,
suspension or disqualification can be made.
32.Section 19(c) does not refer to an offence under Section 184 of Motor
Vehicles Act, it states all offences which are cognizable in nature. In a given
case, where the licensee is alleged to have involved in a heinous crime of
murder or alleged in trafficking contraband, such as Narcotics and Psychotropic
Drugs, or smuggling, or any other serious offence by using or used the motor
vehicle, the offences being illustrative, then it cannot be contended that till
the completion of trial, the licensee cannot be disqualified or the licence
cannot be suspended or revoked.
33.In the instant case, where the petitioner has caused death of a person,
by using a motor vehicle, it cannot be said that, until the Court of Criminal
jurisdiction, finds him guilty and convicts him, or records acquittal for the
offences, he was tried, he should be allowed to drive the motor vehicle.
34.Under the provisions of the Motor vehicles Act, the licensing authority
is empowered to issue appropriate licences and to disqualify/suspend the licence
for any period. The argument of the learned counsel for the petitioner that even
if a person is alleged to have committed a serious crime under Sections 279, 337
and 304-A I.P.C. like the instant case, for causing the death of a person, he
should be allowed to drive the vehicle, ignoring the fact, that he has allegedly
caused a death of a person is legally and morally not acceptable to this Court.
What is contemplated under the provisions of the Motor Vehicles Act, 1988 is
only an opportunity of being heard. For disqualifying or suspending the licence,
no regular enquiry is contemplated. Statutory provisions do not
contemplate a regular enquiry, as that of a departmental enquiry to arrive at a
conclusion as to whether the holder of licence, has committed a cognizable
offence or not. It only states “using or used in the commission of an offence”.
A finding of guilt or acquittal for reason to be recorded, can be made only by a
Court of competent jurisdiction, if the holder of licence is tried for any
offence under Motor Vehicles Act, 1988 or for any other cognizable offence,
under the penal provisions, when the motor vehicle is used or is being used.
When similar argument was advanced in the case of suspension of a Motor Vehicle
Permit, this Court after considering the rival submissions, in Dhanmull v.
R.T.Authority reported in AIR 1959 Mad. 531, has held as follows:
“12. What is contemplated under Sub-Section (1) of Section 86 is that
before cancellation of suspension, the holder of the permit should be given an
opportunity to submit his explanation. This Court in Dhanmull v. R.T.Authority
reported in AIR 1959 Mad. 531, dealt with a question, as to whether Section 86
of the Motor Vehicles Act, 1939, contemplates examination of any witness before
suspending the permit and at Paragraphs 7 to 10, held as follows:
“7. The authorities proceeded against the petitioner for contravention of
clause (b) of Section 60(1) of the Motor Vehicles Act. Sub-section (1) of
section 60 enumerates six categories of matters and provides that, should a
contravention occur in respect of any of these, the permit may be cancelled on
suspended for such period as the appropriate authority deems fit. There is a
proviso to this which runs :
“Provided that no permit shall be cancelled, unless an opportunity has
been given to the holder of the permit to furnish his explanation.”
It will be noticed that this section does not require that the authorities
concerned should record any evidence. Therefore, it is not possible to say that,
when the Secretary of the Regional Transport Authority declined to record the
evidence of the constable whom the petitioner referred to, he contravened any
provision of the statute. The next thing to remember is that the authorities
referred to in this sub-section have not been given power to summon witnesses or
to enforce their attendance. The omission in the statute in this respect
suggests that it was not the intention of the legislature that the authorities
in question should examine any witnesses. It may also be mentioned that the
petitioner did not offer to produce the constable before the Secretary, Regional
Transport Authority, for his examination.
8. Another circumstance may be mentioned here. All that the proviso to
sub-s. (1) of Section 60 requires is that, before a permit is cancelled’, the
holder of the permit should be given an opportunity to furnish his explanation.
The suspension of a permit is a less serious penalty than its cancellation. Even
as regards cancellation, all that the statute requires is that the operator
should be given an opportunity to furnish his explanation. It seems to stand to
reason that in respect of the lesser penalty the statute could not have required
that a more elaborate procedure should be followed.
9. When we examine the scheme of the Act, it will be found that
contraventions of its provisions and of the rules made thereunder are placed in
two categories. In one category is placed those contraventions, for which the
offender may be prosecuted and punished in the ordinary criminal courts. Such
matters are provided for in Chapter 9 of the Act. In respect of other
contraventions what I may call departmental action is provided for. This is a
very summary method, and all that the authorities concerned are required to do
is to give the person proceeded against an opportunity to furnish his
explanation. It follows that all that he required is that the person proceeded
against should be notified what the allegations against him are and that he
should be given an opportunity to explain them.
10. The further comment I would make is that the right of the petitioner
to ply a stage carriage vehicle is derived under the Act. The extent of that
right and the circumstances under which that right is liable to be curtailed,
abridged or withdrawn are all provided for in the Act and the rules framed
thereunder. And so long as these have been complied with the petitioner cannot
properly complain. Rut this does not mean that the proper authorities are
precluded from examining the witnesses and in a proper case they would be
exercising a wise discretion if they do examine witnesses produced by a party.
All that I would say at this stage is that, under the statute, a person placed
in the position of the petitioner has no right to insist that his witnesses
should be examined when he is being proceeded against for a transgression of any
of tile matters enumerated in Sub-section (1) of Section 60.”
35.In the above reported judgment, this Court held that in matters
relating to suspension of permit, being a less serious penalty, for
contravention of permit conditions and for violation of the Motor Vehicles Act,
the procedure to be followed by the authorities is purely summary in nature and
it is suffice that the holder of the permit is given an opportunity to explain
the irregularities noticed at the time of check.
36.When the legislature has prescribed a procedure for revocation or
suspension or disqualification of a holder of licence, Courts cannot add or
import, a regular enquiry into the provision to arrive at any specific finding,
regarding the guilt of the offence for which the licensee is charged. Yet
another reason for rejecting the submission of the petitioner is that, when the
Court of competent jurisdiction is empowered to record a finding of dangerous
driving or any other offence to which, the licensee is charged and tried, there
is a possibility that the Licensing authority could arrive at a contrary finding
of fact. The jurisdiction of the Court to arrive at a finding of guilt of an
offence or the claims Tribunal to record a finding of negligence, cannot be
transgressed by the licensing authority. The licensing judicial authority cannot
usurp the powers of the Court, to record any finding of guilt of the offence. No
doubt F.I.R. is a document, which sets the criminal law in motion for proceeding
against the offender under the penal laws or under the penal provision of the
Motor Vehicles Act, yet the same can be taken note of by the licensing
authority, for exercising the powers under the Motor Vehicles Act, for placing
restriction on driving, when the holder of licence has caused the death or
grievous hurt, by his dangerous driving. When a crime has been registered
against the holder of licence, for dangerous driving, the authorities under
Motor Vehicles Act should be permitted to take appropriate action.
37. In the light of the discussion, this Court is not inclined to issue
the Mandamus prayed. Hence, this Writ Petition is dismissed.”
5. It is also brought to the notice of this Court that the order
made in W.P.(MD)No.8067 of 2011 has been challenged by the writ petitioner
therein and that a Division Bench of this Court in W.A.(MD)No.856 of 2011, dated
08.09.2011, has dismissed the appeal of the driver as follows:
“This Writ Appeal is directed against the order of the learned Single
Judge dated 20.07.2011 made in W.P.(MD).No.8067 of 2011, by which the learned
Single Judge, after considering the entire issue elaborately, has dismissed the
said Writ Petition, which was filed by the appellant herein challenging the
order of the respondent herein and for a direction to the respondent to return
the driving license, which was denied on the ground that a complaint has been
lodged against the appellant.
2. Inasmuch as the said complaint is still pending as-on-date and the
power of suspension of license is available to the respondent, which is not in
dispute, we do not see any reason to interfere with the order of the learned
Single Judge.
3. In the result, the Writ Appeal fails and the same stands dismissed.
However, it is always open to the appellant to have the relief claimed, either
after the criminal case has ended in his favour or after the investigation is
over and final report is filed to the effect that no case is made out for the
purpose of the Court to take cognizance.”
6. In view of a judgment of the Division Bench of this Court, cited
supra, Mandamus sought for by the petitioner cannot be granted. Hence, the Writ
Petition stands dismissed. No costs.
SML
To
The Regional Transport Officer,
Thanjavur.