JUDGMENT
S.S. Parkar, J.
1. Rule by consent.
2. Rule is returnable forthwith. Learned Additional Public Prosecutor waives service on behalf of respondents. Heard both sides finally.
3. By this writ petition, the order detaining motor vehicle belonging to the petitioner and suspending the registration of the vehicle bearing No. MH 23 H 5927 for a period of 60 days is under challenge.
4. The petitioner’s private vehicle a minidoor rickshaw bearing No. MH 23-H-5927 was detained on 25-12-2001 for illegally carrying passengers without permit. It is contended that under section 53(1)(b) of the Motor Vehicles Act, 1988, registration of the vehicle in question cannot be suspended without serving notice to the owner of the vehicle. Vehicle in question was detained on 25-12-2001 and on the next day order of suspension was passed without serving requisite notice under section 53(1)(b) of the Motor Vehicles Act, 1988. On behalf of the respondents, reply has been filed dated 30-1-2002 by respondent No. 2 in which it is stated that the driver was issued show cause notice on 25-12-2001 and the order was passed on the following day i.e. on 26-12-2001 suspending registration of the vehicle for a period of 60 days from that date.
5. It is rightly contended on behalf of the petitioner that the notice is required to be given under section 53(1)(b) of the Motor Vehicles Act, 1988 to the vehicle owner which is not given. There is no reference in the reply affidavit to the service of show-cause notice to the petitioner who is owner of the vehicle in question. The provision is mandatory and in the absence of notice, impugned order of suspension of the vehicle for a period of 60 days is illegal and is liable to be quashed.
5-A. As it is, about more than one and a half month has already passed since the vehicle in question has been detained under the impugned order which is illegal. Pursuant to the affidavit filed by the respondent No. 2, we had directed the petitioner to report to respondent No. 2 on 5-2-2002 at 12 in the noon alongwith the driver to enable respondent No. 2 to produce the driver and the petitioner-owner of the vehicle before the Magistrate for filing complaint in the Court of Magistrate where the petitioner could apply for release of the vehicle on bond.
6. Today, we are told by the learned Counsel for the petitioner that the petitioner and his driver had reported on 5-2-2002 as well as on 6-2-2002 to respondent No. 2. However, respondent No. 2 did not file complaint before the Magistrate under section 207 of the Motor Vehicles Act, as stated in his reply affidavit but asked the petitioner to compromise the matter and pay the fine. In view of the aforesaid attitude adopted by the respondent No. 2, we have no option but to allow the petition.
7. We, therefore, allow the petition and set aside the impugned order detaining the motor vehicle bearing No. MH 23 H 5927 and suspending the registration of the vehicle for a period of 60 days. It is open for the respondent No. 2 authority to take action as per law under section 207 of the Motor Vehicles Act, 1988 as stated in para 7 of the reply affidavit filed by him. The motor vehicle i.e. three wheeler minidoor of Bajaj Tempo Ltd., bearing No. MH 23 H 5927 shall be released to the petitioner on his executing a bond in the sum of Rs. 1,60,000/- on condition that the petitioner shall produce it if and when required in the complaint that may be filed by the respondent No. 2 authority before the Court of Magistrate. Rule is made absolute accordingly.
The respondent No. 2 authority to act on the copy of the operative part of this order certified by Personal Secretary.