M/S. Krishna Bus Service Pvt. Ltd. Vs.
State of Haryana & Ors [1985] INSC 162 (25 July 1985)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) MISRA, R.B. (J)
CITATION: 1985 AIR 1651 1985 SCR Supl. (2)
330 1985 SCC (3) 711 1985 SCALE (2)72
CITATOR INFO: F 1987 SC 628 (2,10)
ACT:
The Punjab Motor Vehicles (Haryana First
Amendment) Rules, 1973 adding clause (d) to 1062 whereby the General Manager,
Haryana Roadways is conferred with all powers exercisable by a Deputy
Superintendent of Police under the Motor Vehicles Act, 1939 (Act IV of 1939) -
Whether the conferral of such a power is violative of Article 19(1)(d) of the
Constitution and otherwise contrary to the object and spirit of the Act, in
view of his position as General Manger.
HEADNOTE:
Under section 133-A of the Motor Vehicles
Act, 1939 the State Government may for the purpose of carrying into effect the
provisions of the Act establish a motor vehicles department and appoint as officers
thereof such as it thinks fit. Under Rule 10:2 of the Punjab Motor Vehicles
Rules, 1940 (as in force in the State of Haryana) as it stood prior to March
16, 1973, under class II, the State Government had appointed and empowered (a)
Secretaries, Regional Transport Authorities; (b) Extra Assistant Transport
Controller (Operation); and (c) Extra Assistant Transport Controller (Traffic)
with police powers exercisable by Deputy Superintendent of Police under the
Act. There are several powers, like in sections 129. 129-A of the Act, which a
Police Officer may exercise under the Act and the rules made thereunder against
persons who are carrying on the business of providing motor transport
facilities.
The appellant in the Civil Appeal and the
petitioners in the Writ Petitions carry on their business of motor transport in
the State of Haryana. All the motor vehicles operators are required to comply
with the provisions of the Act and the rules made thereunder. Non-compliance
with many of those provisions would result in prosecution and those who are
found guilty are liable to be punished. The Haryana Roadways is a department of
the State of Haryana. It also carries on the business of providing passenger
transport facilities in competition with the appellant and the petitioners
herein. It owns a fleet of motor vehicles for the purpose of its business. The
Haryana Roadways 331 is also subject to the various provisions of the Act and
the rules made thereunder. The General Manager of Haryana Roadways is principally
responsible for the proper administration of the Haryana Roadways.
By a notification dated March 16, 1973 called
the Punjab Motor Vehicles (Haryana First Amendment) Act Rules, 1973, the
General Manager Haryana Roadways was conferred with the powers exercisable by a
Deputy Superintendent of Police by virtue of the addition of clause (d) in Rule
10:2 of the Punjab Motor Vehicles Rules, 1940.
The appellant in C.A. No. 2890/85 filed a
writ petition No. 1770/78 on the file of the Punjab and Haryana High Court
challenging the said conferral of power upon the General Manager, which was
dismissed in limine and has come in appeal by way of Special Leave. The writ
petitioners under Article 32 also contend: (i) the appointment of the General
Manager, Haryana Roadways, who is himself responsible for the proper management
of the activities of the Haryana Roadways and its prosperity and profitability
and who is carrying on business in competition with other private operators as
an officer who can exercise the powers of the Deputy Superintendent of Police
under the Act is violative under Article 19 (1)(g) of the Constitution and it
is otherwise contrary to the object and spirit of the Act; and (ii) that the
General Manager, Haryana Roadways would not be able to discharge his functions
satisfactorily in the interests of the general public since as being himself
under a duty to comply with the provisions of the Act and the rules made
thereunder in respect of the motor vehicles of the Haryana Roadways cannot be
expected to discharge the functions of checking, inspection, search and seizure
regarding the motor vehicles belonging to the Haryana Roadways and to take
appropriate steps to prosecute the officers of his own department wo are not
complying with the provisions of the Act.
Allowing the appeal and the petitions, the
Court ^
HELD: 1.1. The Notification dated March 16,
1973 called the Punjab Motor Vehicles (Haryana First Amendment) Rules, 1973 by
which the General Manager, Haryana Roadways was conferred the powers exercisable
by a Deputy Superintendent of Police under the Act is invalid. [338 D-E]
1.2 The appointment of the General Manager,
Haryana Roadways who is directly responsible for running its motor vehicles as
one of the officers who can exercise the powers of a 332 Deputy Superintendent
of Police under the Act imposes an unreasonable restriction on the fundamental
right of the private motor vehicles operators and is therefore violative of
Article 19(1)(g) of the Constitution. [337 G-H]
1.3 The powers of stopping the motor vehicles
and the powers of inspection, search, seizure and detention exercised under the
Act are serious restrictions on the fundamental right of the operators of motor
vehicles guaranteed under Article 19(1) (g) of the Constitution.
These powers can be considered as reasonable
restrictions only when they are exercised properly in the interests of the
general public. They should be reasonable both from the substantive as well as
the procedural standpoint. Such powers should, therefore be entrusted to a
person who is expected to exercise them fairly and without bias. [337 A-B] The
General Manager of Haryana Roadways who is a rival in business to the private
operators of motor vehicles in the State and is intimately connected with the
running of motor vehicles cannot be expected to discharge his duties in a fair
and reasonable manner. An unobstructed operation of the motor vehicles by
private owners operating along the same route or routes would naturally affect
the earnings of the Haryana Roadways. Therefore, there is every likelihood of
his being over-zealous in discharging his duties of stopping a vehicle and in
searching, seizing and detaining motor vehicles belonging to others and at the
same time excessively lenient in the case of vehicles belonging to his own
department. If in discharging his duties in the case of vehicles belonging to
others he fails to give due regard to the interests of the owners thereof he
would be violating their fundamental right to carry on business in a reasonable
way. If he is too lenient in inspecting the vehicles belonging to his own
department, the interests of the travelling public at large would be in peril.
In both the cases there is a conflict between his duty on the one hand and his
interest on the other. Moreover administration must be rooted in confidence and
that confidence is destroyed when people begin to think that the officer
concerned is biased. This is not a case which is governed by the rule of
necessity. As It is, there are many other officers who are entrusted with the
powers of the police officers under the Act. And, therefore, there is no
necessity to appoint the General Manager of Haryana Roadways also to exercise
the said powers. Further the appointment is not in the interests of the general
public since large number of motor vehicles owned by the Haryana Roadways would
not be subject to inspection and checking 333 by an independent agency. The
legislature could not have intended while enacting section 133-A of the Act
that a person who was himself directly responsible for the proper running of
the motor vehicles according to law could be appointed as the inspecting and
investigating officer by the State Government for the purpose of enforcing the
Act. [337 B-F, 338 A-C] Junta Motor Transport and Another v. State of Uttar
Pradesh, 1970 Allahabad Law Journal, Page 810, approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2890 of 1985.
From the Judgment and Order dated 1.2.1984 of
the Punjab and Haryana High Court in L.P. A. No. 28 of 1984.
AND Writ Petition Nos. 12895-12896 of 1984.
Under Article 32 of the Constitution of India
S.K. Mehta for the Appellant in C.A. No. 2890 of 1985 and Petitioner in W.P.
Nos. 12895-96/84.
M.K. Dua, P.N. Puri, Aman Vachhar for the
Petitioners in W.P. Nos. 12895-96 of 1984.
M.S. Gujral and R.N. Poddar with him for the
Respondents in W.P. Nos. 12895-96 of 1984.
Anil Dev Singh, N.S. Das Behl and R.N. Poddar
with him for the Respondents in C.A. No. 2890 of 1985.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. In the above cases the short question which arise for
consideration is whether the appointment of the General Manager of Haryana
Roadways as an officer who can exercise the powers exercisable by a Deputy
Superintendent of Police under the Motor Vehicles Act, 1939 (hereinafter
referred to as 'the Act') by the Government of Haryana under the Notification
dated March 16, 1973 issued under section 133-A of the Act is valid or not.
The appellant in the above appeal by special
leave questioned the validity of the appointment of the General Manager of
Haryana Roadways under the Notification, referred to above, as an 334 officer
entitled to exercise the powers of a Deputy Superintendent of Police under the
Act in Writ Petition No.
1770 of 1978 on the file of the High Court of
Punjab and Haryana. The Writ Petition was dismissed by the High Court in
limine. Aggrieved by the decision of the High Court the appellant has preferred
the above appeal. The petitioners in the above mentioned Writ Petitions have questioned
the validity of the above said Notification under Article 32 of the
Constitution. Since the point involved in the Civil Appeal and in the Writ
Petitions is common, we propose to dispose of all these cases by this common
judgment.
The appellant in the Civil Appeal is a
company carrying on the business of motor transport. Its motor vehicles operate
within the State of Haryana also. The petitioners in the Writ Petitions are
also carrying on the same kind of business in the State of Haryana. All the motor
vehicles operators are required to comply with the provisions of the Act and
the rules made thereunder. Non-compliance with many of those who are found
guilty are liable to be punished. The Haryana Roadways is a department of the
State of Haryana. It also carries on the business of providing passenger
transport facilities in competition with the appellant and the petitioners
herein. It owns a fleet of motor vehicles for the purpose of its business. The
Haryana Roadways is also subject to the various provisions of the Act and the
rules made thereunder. The General Manger of Haryana Roadways is principally
responsible for the proper administration of the Haryana Roadways.
Under section 133-A of the Act the State
Government may for the purpose of carrying into effect the provisions of the
Act establish a motor vehicles department and appoint officers thereof such
persons as it thinks fit. Section 129 of the Act provides that any police
officer authorised in this behalf or other person authorised in this behalf by
the State Government may, if he has reason to believe that any identification
mark carried on a motor vehicle or any licence, permit, certificate of
registration, certificate of insurance or other document produced to him by the
driver or person in charge of a motor vehicle is a false document within the
meaning of section 464 of the Indian Penal Code, seize the mark of document and
call upon the driver or owner of the vehicle to account for his possession of
or the presence in the vehicle of such mark or document. Under section 129-A of
the Act any police officer authorised in this behalf or other person authorised
in this behalf by the State Government 335 may, if he has reason to believe
that a motor vehicle has been or being used in contravention of the provisions
of section 22 or without the permit required by sub-section (1) of section 42
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, and for this purpose take or cause to be taken
any steps he may consider proper for the temporary safe custody of the vehicle.
On such seizure it is open to the officer concerned to lodge a prosecution
before the magistrate competent to try it. There are several other powers which
a police officer may exercise under the Act and the rules made thereunder
against persons who are carrying on the business of providing motor transport
facilities.
Rule 10.2 of the Punjab Motor Vehicles Rules,
1940 (as in force in the State of Haryana) as it stood prior to March 16, 1973
read as follows:
"10.2. Classification of Officers - (1)
There shall be four classes of the staff, namely, Class I, Class II, Class III
and Class IV.
(2) The officers included in each class and
the police powers exercisable by them under the Act, shall be as noted below
against each. The police powers exercisable by the officers of the Transport
Department are in respect of Motor Vehicles Offences under the Motor Vehicles
Act, 1939 only:
Class I xx xx xx Class II (a) Secretaries,
Regional Powers exercisable Transport Authorities by Dy. Supdt. of Police.
(b) Extra Assistant Transport - do -
Controller (O) (c) Extra Assistant Transport - do - Controller (T) xx xx xx xx
336 But by Notification dated March 16, 1973, referred to above, the Haryana
Government for the Transport Department in exercise of its powers under section
133-A of the Act amended Rule 10.2 by adding clause (d) in the category of
Class II Officers referred to in Rule 10.2 of the Punjab Motor Vehicles Rules,
1940, the relevant portion of which reads as follows :- "2. In the Punjab
Motor Vehicles Rules, 1940 after clause (c) under class II in sub-rule 2 of
rule
10.2 the following clause (d) shall be added
namely:- (d) General Manager, Power exercisable by a Haryana Roadways. Deputy
Superintendent of Police.
After the issue of the above Notification,
the General Manager, Haryana Roadways commenced to exercise the powers
exercisable by a Deputy Superintendent of Police under the Act.
We are concerned in these cases with the
validity of the above Notification dated March 16, 1973 by which the General
Manager, Haryana Roadways is empowered to exercise the powers of a Deputy
Superintendent of Police under the Act only.
The contention urged by the appellant and the
petitioners in these cases is that the appointment of the General Manager,
Haryana Roadways, who is himself responsible for the proper management of the
activities of the Haryana Roadways and its prosperity and profitability and who
is carrying on business in competition with other private operators as an
officer who can exercise the powers of the Deputy Superintendent of Police
under the Act is violative under Article 19(1)(g) of the Constitution and it is
otherwise contrary to the object and spirit of the Act.
It is further urged that the General Manager,
Haryana Roadways would not be able to discharge his functions satisfactorily in
the interests of the general public since he being himself under a duty to
comply with the provisions of the Act and the rules made thereunder in respect
of the motor vehicles of the Haryana Roadways cannot be expected to discharge
the functions of checking, inspection, search and seizure regarding the motor
vehicles belonging to the Haryana Roadways and to take appropriate steps to
prosecute the officers of his own department who are not complying with the
provisions of the Act. In a given case it is likely that the General Manger
himself may have to be prosecuted for not complying with law.
337 The powers of stopping the motor vehicles
and the powers of inspection, search, seizure and detention exercised under the
Act are serious restrictions on the fundamental right of the operators of motor
vehicles guaranteed under Article 19(1)(g) of the Constitution. These powers
can be considered as reasonable restrictions only when they are exercised
properly in the interests of the general public. They should be reasonable both
from the substantive as well as the procedural standpoint. Such powers should,
therefore, be entrusted to a person who is expected to exercise them fairly and
without bias. The General Manager of Haryana Roadways who is a rival in
business to the private operators of motor vehicles in the State and is
intimately connected with the running of motor vehicles cannot be expected to
discharge his duties in a fair and reasonable manner. An unobstructed operation
of the motor vehicles by private owners operating along the same route or
routes would naturally affect the earnings of the Haryana Roadways. There is,
therefore, every likelihood of his being over-zealous in discharging his duties
of stopping a vehicle and in searching, seizing and detaining motor vehicles
belonging to others and at the same time excessively lenient in the case of
vehicles belonging to his own department. If in discharging his duties in the
case of vehicles belonging to others he fails to give due regard to the
interests of the owners thereof he would be violating their fundamental right
to carry on business in a reasonable way. If he is too lenient in inspecting
the vehicles belonging to his own department, the interests of the travelling
public at large would be in peril. In both the cases there is a conflict
between his duty on the one hand and his interest on the other. Moreover
administration must be rooted in confidence and that confidence is destroyed when
people begin to think that the officer concerned is biased. This is not a case
which is governed by the rule of necessity. As it is, there are many other
officers who are entrusted within the powers of the police officers under the
Act. There was, therefore, no necessity to appoint the General Manager of
Haryana Roadways also to exercise the said powers. We are, therefore, of the
opinion that the appointment of the General Manager, Haryana Roadways who is
directly responsible for running its motor vehicles as one of the officers who
can exercise the powers of a Deputy Superintendent of Police under the Act
imposes an unreasonable restriction on the fundamental right of the private
motor vehicles operators and is therefore violative of Article 19(1)(g) of the
Constitution. We however make it clear that the appointment of other officers
of the State Government is not bad even though the Government is the owner of
the vehicles as their connection with the running of the 338 vehicles is too
remote. The appointment of the General Manager as an officer who can exercise
the powers of the Deputy Superintendent of Police under the Act is also not in
the interests of the general public since the large number of motor vehicles
owned by the Haryana Roadways would not be subject to inspection and checking
by an independent agency.
Can we expect a fair investigation by a
police officer into a criminal case in which his own kith and kin are involved
as the accused? The position is not different in this case.
The Legislature could not have intended while
enacting section 133-A of the Act that a person who was himself directly
responsible for the proper running of the motor vehicles according to law could
be appointed as the inspecting and investigating officer by the State
Government for the purpose of enforcing the Act.
Our view receives support from a decision of
the High Court of Allahabad in Junta Motor Transport and Another v.
State of Uttar Pradesh [1970] Allahabad Law
Journal, Page 810, by which the appointment of Gazetted Officers, Station
Superintendents, Traffic Superintendents and Assistant Traffic Inspectors of
Uttar Pradesh Roadways as the prescribed authorites to enforce the Uttar
Pradesh Motor Gadi (Yatra-kar) Adhiniyam, 1962 and the rules made thereunder was
held to be void.
The appeal and the writ petitions are
accordingly allowed. The impugned Notification dated March 16, 1973 called the
Punjab Motor Vehicles (Haryana First Amendment) Rules, 1973 by which the
General Manager, Haryana Roadways was conferred the powers exercisable by a
Deputy Superintendent of Police under the Act is held to be invalid and is,
therefore, quashed. There will, however, be no order as to costs.
S.R. Appeal & Petitions allowed.
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