IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10557 of 2009 IFTEKHAR AHMAD SON OF LATE ABDUL HASSAN, RESIDENT OF VILLAGE/P.O. CHATWAN, P.S. KEOTI, DISTRICT DARBHANGA ….. PETITIONER Versus THE STATE OF BIHAR & ORS …..RESPONDENTS ----------- For the Petitioner : Mr. Nadim Seraj, Advocate, Mr. Iqbal Asif Niazi, Advocate For the State : Mr. J.P.Karan, Sr.Advocate 4 18.9.2009 In the instant writ petition the petitioner prays for quashing the order dated 16.7.2009 bearing memo no.311 contained in Annexure-8 whereby the District Transport Officer, Darbhanga (hereinafter referred to as „the D.T.O.‟) has suspended the certificate of registration of petitioner‟s vehicle bearing registration no.BR-7-4511 under section 53(1)(a) of the Motor Vehicles Act, 1988 (hereinafter referred to as „the Act‟). The registration of the vehicle has been suspended as the D.T.O. received photographs of commuters traveling on the roof top of the said vehicle. The issues which arise for consideration of this court is as follows: i) Whether the registration of a vehicle can be suspended under section 53(1)(a) of the Motor Vehicles for carrying passengers over board? ii) Whether riding on running board would come under purview of section 123 of the Act and would be subject to penalty contained therein for such offence? Before I deal with the issues involved in this case, the facts of the case is being noticed in short. The petitioner 2 purchased a Tata Maxi Vehicle bearing registration no.BR-7- 4511 from one Subodh Kumar Das and the certificate of registration has been transferred in his name in February 2007 by the D.T.O., Darbhanga. He had also paid the requisites road taxes and necessary Insurance cover as would be evident from Annexures-2 and 3. The petitioner also applied and got a contract carriage permit vide permit no.222/08 in his name for plying the said vehicle in Darbhanga division. The period of validity ranges from 28.8.2008 to 27.8.2013. A copy of the contract carriage permit has been annexed as Anenxure-4. The appropriate authority had issued certificate of fitness also on 13.11.2008 which is valid up to 12.11.2009. The petitioner received a notice dated 4.7.2009 from the D.T.O. Darbhanga wherein he stated that photographs have been made available to his office regarding overloading of the passengers on the roof top on 24.6.2009. On 8.7.2009 the petitioner submitted an explanation that he is a sick person and he is not in know how of the aforesaid allegations. The petitioner submits that if the allegations are correct, it would be either mistake of driver/Khalasi or some commuters may have forcibly climbed on the roof of the vehicle. The D.T.O., Darbhanga not being satisfied with the explanation given by the petitioner, suspended the registration of the vehicle under section 53(a) of the Act vide his memo no.311 dated 16.7.2009 with immediate effect. 3 The petitioner submits that the allegations contained in the notice of the D.T.O., dated 4.7.2009, would at most constitute offence under section 123 of the Act and not under section 53(a) of the Act. He further submits that even the photographs of the vehicles carrying passengers on the roof top annexed in the counter affidavit, do not contain the photograph of the petitioner‟s bus. In the report dated 27.6.2009 of the Superintendent of Police the photographs of 14 vehicles have been annexed in which the petitioner‟s vehicle do not figure. Learned State counsel submits that the registration of a vehicle can be suspended and cancelled under sections 53 and 54 of the Act. He submits that in a meeting held under the President ship of Divisional Commissioner, Darbhanga on 10.6.2009 it was decided to take photograph of vehicles which are carrying passengers on the roof top. After collection of such evidence, the process of cancellation is to be started. The decision of the meeting of the Committee has been annexed as Annexure-A to the counter affidavit. He further submits that photographs of 14 vehicles including the vehicle of the petitioner with passengers sitting on roof top were sent to the office of the D.T.O. by the Superintendent of Police, Darbhanga in his report dated 27.6.2009 and thereafter a show cause notice was issued to the petitioner on 4.7.2009 and the registration of the vehicle was suspended vide memo no.311 dated 16.7.2009, as explanation was not satisfactory. 4 Learned counsel for the petitioner submits that in any view of the matter the respondents have not established in absence of any supporting photograph that passengers were sitting on the roof top of his bus. The issue as it stands is whether registration of a vehicle could be suspended under section 53(1)(a) of the Act on the complaint of carrying passengers on the roof top or whether the allegations would come under section 123 of the Act and would be dealt with accordingly. In order to appreciate the rival contentions, it would be expedient to quote section 53(1)(a) & (b) as well as section 123 of the Act which reads as follows: “53. Suspension of registration –(1) If any registering authority or other prescribed authority has reason to believe that any motor vehicle within its jurisdiction- (a) is in such a condition that its use in a public place would constitute a danger to the public, or that it fails to comply with the requirements of this Act, or of the rules made thereunder, or (b) has been, or is being, used for hire or reward without a valid permit for being used as such. the authority may, after giving the owner an opportunity of making any representation he may wish to make (by sending to the owner a notice by registered post acknowledgement due at his address entered in the certificate of registration, for reasons 5 to be recorded in writing, suspend the certificate of registration of the vehicle- (i) xx xx xx (ii) xx xx xx” “123.Riding on running board, etc.- (1) No person driving or in charge of motor vehicle shall carry any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle (2) xx xx xx” A bare perusal of sections 53 and 123 of the Act would reveal that the respective provisions operate in different field. Section 53 empowers the registering authority or other prescribed authority with the power to suspend the certificate of registration of any motor vehicle within its jurisdiction if it has reason to believe that (i) the vehicle is in such a condition that its use, in a public place, would constitute a danger to the public (ii) or that it fails to comply with the requirements of this Act or the rules made there under, which essentially would be in respect of its construction, equipment and maintenance of motor vehicles (iii) or that it has been or is being used for hire or reward without a valid permit in that behalf. If any one of the said jurisdictional factors is satisfied, the registration of the vehicle is liable to be suspended. Thus, for taking action clause (a), all that is relevant to be considered by the authority is whether the condition of the vehicle is such that it fails to 6 comply with the requirements of Chapter V relating to the construction, equipment and maintenance of motor vehicles or that its use in a public place would constitute a danger to the public e.g. if a vehicle has a registration for mono deck it cannot be used as a double-decker. Similarly, for taking action under clause (b) of sub-section(1) of section 53, all that the registering authority has to investigate and determine is whether the vehicle has been or is being used for hire or reward without a valid permit. Section 123(1) of the Act specifically states that no person driving or in charge of a motor vehicle shall carry any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle. Section 123(2) of the Act states that no person shall travel on the running board or on the top or on the bonnet of a motor vehicle. Section 123 imposes a prohibition upon the user of the motor vehicle for carrying passengers on the running board or beyond the limit within the body of the vehicle. Thus, whereas section 53(1)(a) is in reference to the condition of the vehicle, section 123 of the Act relates to prohibition on users of the bus. The specific case of the respondent authorities herein is that passengers of 14 buses including the bus of the petitioner were found on the roof top of the bus. Even assuming the allegations to be true, section 7 KHAN 53(1)(a) of the Act cannot be invoked for suspending the registration as the offence does not relate to construction, equipment, maintenance or condition of the motor vehicle. There is no allegation either that the condition of the vehicle is so bad that its use in a public place would constitute danger to public. The allegations if established would come under purview of section 123 of the Act, for which different penalty is prescribed under the Act/Rules. Section 53(1)(a) and (b) do not cover a case of carrying passengers on roof top of a vehicle. The registration of a motor vehicle can be suspended only if the conditions mentioned in section 53(1)(a) or (b) is satisfied as dealt in earlier paragraphs. Further more, in any case special provision will prevail over the general provision. Thus, the impugned order dated 16.7.2009 of the District Transport Officer suspending the registration of the petitioner‟s vehicle under section 53(1) (a) of the Act on the ground of carrying passengers over board is misconceived and is accordingly set aside. In the result, this writ petition is allowed but with no order as to costs. (S.P.Singh,J)