JUDGMENT
B.S. Chauhan, J.
1. This writ petition has been filed for quashing the Seizure Memo dated 21.3.2006 (Annex. 1) by which in exercise of power under Section 207 of the Motor Vehicles Act, 1988 (hereinafter called the Act), the vehicle has been seized by the Transport Authority, for the reason that colour of the vehicle is as of the vehicle belonging to U.P. State Road Transport Corporation (hereinafter called U.P. S.R.T.C.).
2. The facts and circumstances giving rise to this case are that petitioner is registered owner of Vehicle No. UP-70-AT-2463 (bus) which is being plied by the petitioner on the basis of temporary permits granted in his favour by the Transport Authorities from time to time.
3. On 21st March, 2006, the vehicle was seized by the respondent No. 1 as the vehicle was having the colour as that prescribed for U.P. S.R.T.C.. Buses. The petitioner filed an application for release of the vehicle on 17.4.2006. However, the same is not being considered. Hence this petition.
4. Shri Anant Ram Dube, learned Counsel appearing for the petitioner has submitted that seizure of the vehicle itself is illegal as it has not violated any condition of permit; neither the vehicle was used for the purpose other than it could be used, nor the vehicle was operated outside the route or area for which permit had been granted. Having the colour synonymous to the vehicle of the U.P. S.R.T.C. cannot be violative of conditions of Permit. Therefore, the seizure is illegal, thus, liable to be quashed.
5. On the other hand, Shri C.K. Rai, learned Standing Counsel has submitted that this Court should not exercise its powers or release the vehicle and the Transport Authority itself should be directed to consider the application and pas an appropriate order for release.
6. We have considered the rival submissions made by the learned Counsel for the parties and perused the record.
7. Provisions of Section 207 of the Act reads as under:-
207. Power to detain vehicles used without certificate of registration permit, etc.-
(1) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by Sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle;
Provided that where any such officer or person has reason to be believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by Sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgement in respect thereof.
(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of vehicle and such authority or officer may, after verification of such documents, by order, release the vehicle subject to such conditions as the authority or officer may deem fit to impose.
8. The powers to seize a vehicle have been given only where the Authority has reason to believe that the vehicle is being driven without registration, without a Permit, driven by a person having no Driving Licence or he is a minor or the vehicle is being plied on unauthorised route. However, the application for release must be considered by the Authority after being satisfied that the vehicle complies with the requirement of the Statute.
9. The Hon’ble Apex Court in State of Maharashtra and Ors. v. Nanded Parbhani Z.L.B.M.V. Operator Sangh considered the issue at length and held as under:-
The aforesaid power of seizure has been conferred upon the appropriate authority, which power is in fact a sovereign power of the State and has been delegated to the police officer in discharge of their duties of law enforcement and in the enforcement of an orderly society. The power, therefore, is required to be exercised with care and caution and the power has to be exercised only when the pre-condition for exercise of power is fully satisfied.
10. The Court considered the provisions of Section 207 and held that the power should be exercised with circumspection, only in a case where it is necessary to seize the vehicle as the vehicle is being used for the purpose other than “for which the vehicle could be used” e.g. when the vehicle is found to be carrying passengers though the Permit had been granted only as a “goods vehicle” or vice versa, or where a vehicle having the Permit for Stage Carriage is being found as being plied as a Contract Carriage, or vice versa.
11. In Nirmala Jagdishchandra Kabra v. Transport Commissioner and Ors. , the Apex Court had taken a similar view observing that vehicle can be seized provided it is being operated in violation of the conditions of Permit, e.g., making contract de hors the conditions mentioned in the Permit, i.e., a vehicle having Stage Carriage Permit is being operated as a Contract Carriage or the Contract Carriage takes the passengers from one destination to another without carrying the list of passengers which is required in law, or an owner of the vehicle makes a contract de hors the conditions of the Permit as Contract Carriage and takes the passengers from one destination to another.
12. A Division Bench of this Court in Jugal Kishor v. State 1994 (24) ALR 585 considered the provisions of Section 207 of the Act and held that the officer who seized the vehicle and passed the order for temporary release of the vehicle in favour of the owner subject to furnishing of adequate security by him.
13. The Court held as under:-
By virtue of the aforenoticed provisions the plying of vehicle by any person without a permit or without registration certificate or contrary to the conditions of the permit is an offence and any police officer or person authorised by the State Government is empowered to seize and detain the vehicle if he has reason to believe that the motor vehicle has been or is being used in contravention of the provisions of the Act….
The purpose of seizure of a vehicle interalia is to prevent the repetition of commission of offence, to prohibit the plying the vehicle again, to utilise the seized vehicle as a material evidence when the offence is tried in the court of law and to enable the court to pass appropriate order for its disposal. The seizure and detention of a vehicle under Section 207 of the Act is for a temporary period, that is, till the time the owner of the vehicle satisfies the police officer or authorised person that no offence such as that mentioned in Section 207 of the Act has been or was being committed or the offence is compounded or the matter is decided by a court of law. Since the detention is for a temporary period the police officer or authorised person may himself release the vehicle in favour of the owner subject to furnishing security to his satisfaction. However, this temporary release is to be subject to the final order that may be passed by the police officer or authorised person or by the court of law. Therefore, as noticed, if the owner of the vehicle satisfies the police officer or the authorised person that he has not contravened any provision of the law or if the offence is compounded then nothing further is required except release of the vehicle in favour of the owner. In the situation that the offence is not compounded the police officer or authorised person has to refer the complaint before the Magistrate competent to try the offence.
14. The said judgment was re-considered, approved and affirmed by the Division Bench of this Court in Mazhar Ali Khan v. Chief Judicial Magistrate, Fatehpur and Ors. , observing that Transport Authority cannot be justified in refusing to entertain the application for release. If the Transport Authority who has seized the vehicle has lodged complaint before the appropriate criminal court, in that event, the Transport Authority will not pass any order on the release application but the registered owner has to approach the criminal court for release of the vehicle.
15. Thus, in view of the above, law can be summarised that the vehicle should not be seized unless there is a violation of conditions of Permit or the vehicle is being used for the purpose other than the purpose for which it could be used, and in case it is being driven by a person having no valid licence or Carrying more passengers than permitted or without Permit, the documents, i.e., Registration etc. may be seized, but vehicle should not be seized in such a case. Seizure is permissible only in case, there is a violation of conditions of Permit or the vehicle is being plied outside the route or area for which the Permit had been granted or is being used for the purpose other than it could be used. Conditions can always be attached by the Authority concerned to the Permit as provided under Section 76 of the Act. However, each case has to be examined on the facts involved therein.
16. In view of the above, we dispose of this petition requesting the respondent No. 1 to consider the application of the petitioner for release of the vehicle in view of the observations made herein above most expeditiously, preferably, within a period of one week from the date a certified copy of this order is filed before him. In case he comes to the conclusion that he has no authority to release the vehicle, he must file the complaint with the competent Court forthwith to facilitate the petitioner to approach the competent Court to release the vehicle.