P.J. Bijoy vs The Regional Transport Officer (Enforcement), Deputy Transport Commissioner's Office

P. Jyothimani, J.—The Petitioner, who is operating a Tourist Mini bus in Kerala, has obtained a special permit temporarily for a period from

22.02.2010 to 28.02.2010, to bring the Tourists from Munnar via Bodi, Theni to Madurai and take them back via Theni, Kumili to Munnar again

during the said period of seven days. When the vehicle was checked by the authorities in Tamilnadu, it was alleged by the Respondent

Enforcement Wing that the special permit obtained by the Petitioner u/s 88(8) of the Motor Vehicle Act to perform one single round trip picking up

the passengers and after 7 days tour in Tamilnadu and drop the same tourists halt at Kerala, as against the special permit by misusing the permit to

carry tourists picked up at Madurai Airport and proceeding to Ponyar (Kerala) for visit and departure to Theni. Based on the finding by the

Enforcement Wing, a show cause notice came to be issued to the Petitioner by the Respondent on 25.03.2010. As per the show cause notice, it is

seen that in cases of misuse of said special permit issued u/s 88(8) of the M.V. Act, any State Transport Authorities have right to adjudicate and

impose tax for violation. The show cause notice shows that for the violation committed in respect of 35 passengers in picking up them from

Madurai Airport to Kerala, which is against the special permit issued u/s 88(8) of the M.V. Act, it is proposed to impose tax of Rs. 1,06,050/-

including the 1% tax of Rs. 1,050/.

It is the case of the Petitioner that he has not violated the terms of special permit issued by the Transport Authorities, Kerala and he has also

given an explanation to the show cause notice to that effect. It is his case that the vehicle has come empty from Kerala and after reaching Madurai

Airport only, the vehicle has picked up the 35 foreign passengers on 23.02.2010 to visit Madurai and they would be taken back to Karala on the

date of expiry of the special permit issued by the Government of Kerala u/s 88(8) of the M.V. Act and therefore, according to the Petitioner, as

vehemently submitted by the learned Counsel appearing for the Petitioner, the Petitioner has not committed any violation of the terms of special

permit. It is his further case that inasmuch as the special permit, which was obtained from Kerala legally as per the Central Act, on payment of

necessary taxes in accordance with law, the adjudication initiated or the seizure of the original documents in respect of the vehicle u/s 88(8) of the

M.V. Act is illegal. Therefore, there is a duty on the part of the Respondent to release the document forthwith and hence the writ petition for

direction to return the original document in respect of vehicle bearing registration No. KL-07 BM 300 is filed.

A reference to Section 88(8) of the M.V. Act 1988 which read as follows:

Not withstanding anything contained in sub-section (1), but subject to any rules that may be made under this Act by the Central Government, the

Regional Transport Authority of any one region or, as the case may be, the State Transport Authority, may, for the convenience of the public, grant

a special permit to any public service vehicle including any vehicle covered by a permit issued u/s 72 (including a reserve stage carriage) or u/s 74

or under Sub-section (9) of this section for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use

of the vehicle as a whole without stopping to pick up or set down along he line of route passengers not included in the contract, and in every case

where such special permit is granted, the Regional Transport Authority shall assign to the vehicle, for display thereon, a special distinguishing mark

in the form and manner specified by the Central Government and such special permit shall be valid in any other region or State without the

contersignature of the Regional Transport Authority of the other region or of the State Transport Authority of the other State, as the case may be.

makes it abundantly clear that when a special permit is granted to a permit holder, who is already having the vehicle, as per the M.V. Act and the

special permit can be used only for a specified purpose and so long as the terms of special permits are implemented, the permit can be used in the

other States without countersignature of the Regional Transport Authorities. Certainly, if there is a violation of the terms of special permit, it is open

to the other State Transport Authorities to set law in motion as per the said Section 88(8) of the M.V. Act. While effecting the adjudication, the

provisions of the Tamil Nadu Motor Vehicles Rules are applicable.

It is no doubt true that during the course of adjudication, it is open to the Transport Authorities to compound the offence as it is seen in Rule 206

of the Tamilnadu Motor Vehicle Rules. That depends upon the subject to the satisfaction of the authority based on the nature of gravity, frequency

of offence committed, the quantum of punishment, the earning capacity of the vehicle and so on to be decided on the factual circumstances.

Therefore, the discretion to be exercised by the adjudicating mechanism as per the established guidelines of the Tamilnadu Motor Vehicle Rules.

Hence, it is not for this Court at this stage, to interfere to say either there is no violation of the terms of special permits or adjudicating authority to

go for compound of offence under 206 of the Tamilnadu Motor Vehicles Rules. While deciding the same, it is certainly open to the authority to

decide as to whether there is any violation at all, that will depend upon the circumstances of the explanation submitted by the Petitioner to die show

cause notice issued by the Respondent authority. Since the writ petition is filed for direction, to return the original records of the contract carriage

permit covered by the vehicle bearing registration No. KL-07 BM 300, in the circumstances that the adjudication process is on, which is evident

from the fact that the show cause notice has been issued by the Respondent authority, for which explanation has also been submitted by the

Petitioner, I am of the considered view that unless and until the Petitioner is directed to furnish proper security in respect of amount of tax, which is

indicated in the show cause notice, such direction cannot be issued.

In such view of the matter, the writ petition stands disposed of directing the Respondent to release the original records of the contract carriage

permit covered by the vehicle bearing registration No. KL 07 BM 300 on condition that the Petitioner shall furnish bank guarantee to the value of

Rs. l lakh to the Respondent authority and the bank guarantee should be kept alive till the adjudication process is completed. It is made clear that

the release of such documents shall be subject to the final decision, which will be arrived by the adjudicating authority as per the M.V. Act. It is

also made clear that after furnishing of such bank guarantee and complying with the condition of furnishing of xerox copies of the documents and on

releasing such original documents, the adjudicating process shall be completed by the Respondent by giving due opportunity to the Petitioner within

a period of four weeks and after the adjudication process is completed, it is for the Petitioner to workout his remedy before the appropriate forum.

No costs.