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Judgment
Heard Mr. J. Roy, learned counsel for the petitioner. Also heard Mr. B. Deuri, learned Government Advocate, Assam; Ms. M.D. Bora, learned
Standing Counsel, Transport Department and Mr. B. Sharma, learned Standing Counsel, N.F. Railways.
Issue notice, returnable within two weeks.
Steps, if any, shall be taken by registered post with AD.
These two matters are taken up together as both the matters are inter-connected.
However, in WP(C) No.4204/2021, there is a prayer for suspending certain order issued by the Circle Officer/Executive Magistrate, North
Guwahati for sealing the business premises of the petitioner.
The case of the petitioner is that the petitioner is a Firm engaged in the business of cargo movement of various automobiles/vehicles manufactured
by various companies, by transporting these from Changsari Railway Station to different dealers of the respective companies.
In this connection, the petitioner had appointed respondent No.11 (in WP(C) No.4177/2021) to carry out the work. However, being dissatisfied with
the work of respondent No.11, the petitioner appointed respondent No.12 (in WP(C) No.4177/2021) to carry out the exercise. In the meantime,
according to the petitioner, the State authorities, without any jurisdiction or authority, intervened in this purely private commercial dispute between the
petitioner and its appointed agents, i.e., respondent Nos.11 and 12.
According to the petitioner, initially, the District Authorities issued an order on 11.08.2021 which is challenged in WP(C) No.4177/2021 by which,
purportedly on the ground of breach of law and order which might occur between the two contesting vendors, i.e., respondent Nos.11 and 12 relating
to unloading of one NMG rake loaded with automobile car loaded with automobile car Ex:FN/HLDD (FARAKHNAGAR/HALDIROAD) composing
25 wagon CSG yard at Changsari Railway Station, respondent No.7 in WP(C) No.4177/2021, directed the petitioner Company to conduct unloading
operation by themselves without engaging the respondent Nos.11 or 12 in WP(C) No.4177/2021, till the matter is amicably resolved.
According to the learned counsel for the petitioner, this action is totally unwarranted inasmuch as the State authorities have no business, jurisdiction
or power to intervene in a purely private commercial dispute amongst the petitioner and its agents.
According to learned counsel for the petitioner, taking advantage of this situation, the authorities proceeded to act against the petitioner by issuing a
notice on 13.08.2021 by which the District Transport Officer issued a notice to the petitioner purportedly in exercise of power under Rule 93 of the
Assam Motor Vehicle Rules, 2003 (in short, the 2003 Rules) stating that for the purpose of making arrangement of parking, holding, resting and
cleaning of goods vehicle on the Highways, prior permission has to be obtained from the Government under Rule 93 of the 2003 Rules and,
accordingly, directed the petitioner to furnish all the documents within seven days.
According to the learned counsel for the petitioner, though the DTO has no such authority but assuming that the DTO has such an authority,
having asked for documents to be submitted within a period of 7 days, there could not have been any adverse decision taken without hearing the
petitioner, that too before expiry of the notice period.
It has been submitted by the learned counsel for the petitioner that purportedly taking advantage of the aforesaid notice dated 13.08.2021, the
Circle Officer/Executive Magistrate, North Guwahati issued a sealing notice on 17.08.2021, which reads as follows:-
“As directed and in violation as per rule 93 of Assam Motor Vehicles Rules, 2003, the parking complex including office premises of TCI
Ltd at Dhopatari, Changsari is hereby sealed.
The vehicles parked inside the complex as certified by the manager of TCI Sri Dadan Kumar Pandey numbering as 1. TAFE-65 nos., 2.
EICHER-18 nos., 3. HERO BIKE-100 Nos are not seized and hence are kept under the sole responsibility of the company concern. The rear
gate of the parking complex is completely sealed and the front gate is half sealed allowing the movement of inhabitants of the houses
located in the posterior end of the parking complex.
The sealing process is carried out in the presence of undersigned, Addl. SP (HQ), Kamrup and Sri K.K. Das, Sri A.K. Sen as MVI, DTO
office, O/C Changsari PS and Sri Dadan Pandey, Manager, TCI Logistics, Dhopatari, Changsari and other TCI staff.â€
According to learned counsel for the petitioner, the said notice is absolutely illegal, unwarranted and without jurisdiction inasmuch as the Circle
Officer has no jurisdiction under the 2003 Rules to issue any restraint sealing order. The said order of the Circle Officer does not mention anything of
the decision, which can be taken by the DTO in exercise of power under Rule 93(3) of the 2003 Rules for suspending or cancelling any such permit
for establishment or maintenance of a parking complex.
That apart, it is clear that even if it is assumed that this sealing order was issued pursuant to the notice dated 13.08.2021, the said 7 day’s
period has not lapsed. In other words, the sealing notice issued by the Circle Officer/Executive Magistrate, North Guwahati is, according to learned
counsel for the petitioner, wholly illegal, impermissible and, as such, learned counsel for the petitioner prays for staying the said sealing order until
further order.
Ms. Bora, learned Standing Counsel, Transport Department, on the other hand, has submitted that the DTO has the authority to issue such a notice
dated 13.08.2021 to take necessary action in the event it is found that the petitioner has not obtained necessary permission for erection, establishment
or maintenance of a parking complex. However, learned Standing Counsel fairly submits that the DTO could take any such action only on completion
of 7 days. Learned Standing Counsel is, however, not very clear as to whether the Circle Officer/Executive Magistrate has any specific authority
under the 2003 Rules to issue such sealing notice, which is impugned in WP(C) No.4204/2021 and prays for time to obtain instructions in this regard.
Learned State counsel (for respondent Nos.6 to 10 in WP(C) No.4177/2021) submits that perusal of the notice clearly mentions that it was
because of violation of Rule 93 of the 2003 Rules that the parking complex of the petitioner was sealed and such sealing process was carried out in
the presence of the Additional S.P. (Headquarter), Kamrup, Shri K.K. Das, Shri A.K. Sen, MVI and O/C, Changsari Police Station and Sri Dadan
Pandey, Manager, TCI Logistics and other staff and Kishore Kumar Lahkar, Gaonburah.
However, the role of any such authorities mentioned in the sealing notice is not contemplated under the 2003 Rules. It appears that it is the DTO,
who is authorized to take such action for violation of any terms and conditions for erection, establishment and maintenance of a parking complex as
contemplated under Rule 93(3) of the 2003 Rules and no other authority.
Under the circumstances, this Court is prima facie of the view that the Circle Officer/Executive Magistrate, North Guwahati does not have
jurisdiction or competency to issue any sealing notice, that too, during the subsistence of the 7 day’s notice period issued by the DTO, Kamrup on
17.08.2021.
Accordingly, this Court is inclined to suspend the impugned notice dated 17.08.2021 issued by respondent No.10 in WP(C) No.4204/2021.
However, pendency of this petition will not be a bar for the competent authorities to proceed under Rule 93 and the petitioner will have all the liberty
to furnish necessary documents as required by the authorities in this regard.
The prayer of the learned counsel for the petitioner, for suspending the impugned order dated 11.08.2021 passed in WP(C) No.4177/2021 on the
ground that the authority has no competency or jurisdiction to issue such an order, will be considered tomorrow (26.08.2021) on production of
necessary instructions in this regard.
List the matter on 26.08.2021.