Ishwar Singh Bagga & Ors Vs. State
of Rajasthan [1986] INSC 243 (19 November 1986)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) DUTT, M.M. (J)
CITATION: 1987 AIR 628 1987 SCR (1) 300 1987
SCC (1) 101 JT 1986 892 1986 SCALE (2)881
ACT:
Motor Vehicles Act, 1939 Section
129A--Validity of the Notification No. 7-1(6) H/unit X-75 Home (Courts x)
Department Government of Rajasthan, empowering Deputy General Manager
(Traffic), Assistant Depot Managers and Traffic Inspectors in addition to the
Police to exercise the powers under section 129A of the Act in respect of all
stage carriages and contract carriages on the Notified routes under section
68-D(3)-Words and phrases, 'other Person', meaning of--Whether includes
officers of the Corporation.
HEADNOTE:
The State of Rajasthan issued a Notification
No. 7.1(6)H/Unit-x-75 Home (Court x) dated 15.7.1975 under section 129A of the Motor
Vehicles Act, 1939 empowering certain officers of the Rajasthan State Road
Transport Corporation to exercise in respect of all stage carriages and
contract carriages on the Notified Routes under section 68-D(3) of the Act, the
powers that can be exercised under section 129A of the Act by the police
officers who are empowered in that behalf.
The writ petitioners and the appellants are
holders of contract carriage permits carrying on business in the State of
Rajasthan and other adjoining States. Under the said permits they are entitled
to run the contract carriages throughout Rajasthan, except on the notified
routes. Some of them also own motor vehicles which are covered by permits
issued under section 63(7) of the Act having the privilege of carrying on
passengers on contract throughout India.
The petitioners/appellants contended (i) that
the appointment of the officers of the Corporation who are their rivals in
motor transport business, as officers entitled to exercise powers conferred under
section 129A of the Act was violative of Article 19(1)(g) of the Constitution;
and (ii) that the said officers who are very much interested in seeing that the
Corporation earns much profit, have been overzealous in exercising their powers
conferred on them and by seizing and detaining the motor vehicles belonging to
the petitioners/appellants have acted contrary to law.
Allowing the petitions and appeals, the
Court, 301
HELD: 1.1 The Deputy General Manager
(Traffic), the Assistant Depot Managers and the Traffic Inspectors of the
Corporation could not have been authorised by the State Government to discharge
the powers under section 129A of the Motor Vehicles Act, 1939. [315 E]
1.2 Ordinarily, whenever a statute empowers
the State Government to appoint persons to administer any of the provisions of
the statute, the persons who may be appointed by the State Government under
such provision can only be persons appointed in connection with the affairs of
the State. In other words they should be employees or officers of the State
Government, who are subject to the administrative and disciplinary control of
the State Government directly.
1.3 The expression 'other person' mentioned
in section 129A of the Act which has to be read ejusdem generis with the words
'any police officer' which precede that expression in section 129A of the Act
can only refer to an officer of the Government and not to any officer or
employee of any statutory corporation or to any other private person. [314 G]
1.4 A reading of section 129A and section
133A of the Motor Vehicles Act, 1939 together shows that the 'other person'
referred to in section 129A of the Act, who may be empowered to discharge the
powers under that section can only mean an officer of the Government, such as
the Motor Vehicles Officer appointed under section 133A of the Act or of any
other department. It could never have been the intention of the Central
Legislature, while enacting section 129A and section 133A of the Act that the
powers exercisable under section 129A of the Act could be conferred on persons
who were not officers of the Government. If the Central Legislature intended
that such powers could be entrusted to private persons or employees of any
statutory Corporation the section would have expressly provided in that regard.
[313 H--314 B]
1.5 Under the Rajasthan State Road
established under section 3 of the Road Transport Corporation Act LXIV of 1950,
the officers and servants of the Corporation are not holders of civil posts
under the State Government, so as to fall within the term 'other persons'.
Further, there is no provision in the Corporations Act, authorising the Corporation
to permit any of its officers to exercise the powers under Section 129A of the Motor
Vehicles Act or to spend money on the safe custody of the vehicles which are
seized and detained under section 129A of the Motor Vehicles Act. [310 C-D, 311
H-312 A] From the reading of the provisions of the Motor Vehicles Act and of
the Corporations Act it is evident that the Corporation is just another
operator of motor vehicles which is entitled to run motor vehicles in accordance
with law 302 after obtaining permits. When the Corporation applies for permits
under Chapter IV of the Act it has to compete with other applicants to obtain
permits in accordance with the provisions of that Chapter. When an approved
scheme is brought into operation under Chapter IV-A of the Act it is no doubt
entitled to get permits to the exclusion, complete or partial of other
operators. It is also true that when the approved scheme provides that other
operators are excluded completely or partially no private operator can operate
his motor vehicles along the notified route or in the notified area in question
except in accordance with the approved scheme. Barring what is stated above and
some other liabilities from which the Corporation is expressly exempted under
the Act, the Corporation is subject to all the obligations and responsibilities
which are imposed on other private operators by the Act. It is subject to the
powers of supervision and control of the transport authorities under the Act
and to the rules governing the proper maintenance of transport vehicles. The
Corporation is also subject to the jurisdiction of the Motor Vehicles
Department which is established under section 133-A of the Act and its vehicles
are liable to be inspected and checked by the officers appointed under that
section in the interests of the travelling public. It is thus clear that the
Corporation is one of the many operators of the motor vehicles in the State
though the fleet of the motor vehicles owned by it and the magnitude of the
operations carried on by it may be very large.
[312 C-F]
1.6 Further every permit issued under Chapter
IV of the Act contains a number of conditions which are specified therein. The
contravention of either section 22 or section 42(1) of the Act or any of the
conditions mentioned in the permit would entitle and officer empowered under
section 129A of the Act to seize and detain the vehicle in question and also to
provide for the temporary safe custody. A report or complaint, as the case may
be, also may be filed by. him before the Magistrate for taking action against
the owner of the vehicle for violation of any of the provisions of the Act
referred to above. It is thus seen that the powers are of a drastic nature and
have the effect of depriving the owner of a motor vehicle of his property,
which sometimes may be of the value of Rs.2 to 3 lakhs. They also have the
effect of depriving the passengers who are travelling in that vehicle of a
transport service right in the middle of a route and may expose them to 'hunger
and thirst'. Since the Corporation is only entitled to a preference in the
grant of permits as respects the Notified routes or in any NOtified area. The
police officers who are empowered to exercise certain powers under the Motor
VehiCles Act should exercise these powers in respect of motor vehicles owned by
the private operators and also in respect of the motor vehicles owned by the
State Road Transport Corporation. Such a power cannot be granted to the
officers of the Corporation by resorting to the term 'other person' in the Motor
Vehicles Act. [309 F-310 A, 312 G, 311 H] 303 Having regard to the nature of
the power, the expression 'other person' in section 129 also will have to be
interpreted as meaning any other person appointed in connection with the
affairs of the State Government and not any private person or officer of a
Corporation. [315 C] Krishna Bus Service Pvt. Ltd. v. State of Haryana &
Ors., [1985] 3 S.C.C. 711, followed.
Transport Commissioner, Andhra Pradesh v.
Sardar Ali Bus Owner, [1983] S.C.R. 729, referred to.
OBSERVATION:
1. The police officers and the officers of
the Motor Vehicles Department are expected to discharge their duties properly
and diligently and if they discharge their duties in accordance with law with
the amount of diligence which is required of them, there should no difficulty
in plugging any kind of unauthorised running of stage carriage or contract
carriages on the notified routes. Negligence on the part of the Transport
Authorities, the Motor Vehicles Department and the police officers in
exercising their powers of supervision, inspection and control in respect of
the motor vehicles of the Corporation leads to grave public suffering and
sometimes to disasters. They should not take it for granted that the motor
vehicles of the Corporation do not need to be checked or inspected only because
it is established by the State Government. Omission on their part in
discharging these duties amounts to dereliction of public duty. [315 GH, 312
G-H]
2. Prima facie, the Corporation is not
entitled to be paid compensation under section 357 of the Code of Criminal
Procedure, 1973. It can be paid such compensation only when it is open to the
Corporation to file a suit and recover damages in law for such unauthorised
operation of stage carriages. Section 357 of the Code of Criminal Procedure,
1973 provides for payment of compensation out of the fine to certain persons.
The orders directing payment of compensation to the Corporation may have been
passed under clause (b) of that section which provides that the fine recovered
may be applied in the payment to any person of compensation for any loss or
injury caused by the offence, when compensation is, in the opinion of the
Court, recoverable by such person in a Civil Court. Magistrates should hereafter
pass such orders only after heating all the parties. [316 D-F]
ORIGINAL/APPELLATE JURISDICTION: Writ Petition No.
237 of 1986 Etc.
(Under Article 32 of the Constitution of
India) WITH Civil Appeal Nos. 423536 & 4243/86 304 R.B. Datar, Mrs. Binu Tamta,
Mrs. Rani Chhabra and B.S. Chauhan, for the Petitioners/Appellants.
L.M. Singhvi, T.S. Krishnamurthy lyer, S.K.
Jain, A.M. Singhvi, C. Mukhopadhyay, B.D. Sharma and S. Atreya for the
Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The petitioners in the Writ Petitions and appellants in the
Civil Appeals are holders of contract carriage permits issued under the
provisions of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the
Act) carrying on business in the State of Rajasthan and other adjoining States.
Under the said permits they are entitled to run the contract carriages
throughout Rajasthan except on the notified routes. Some of them also own motor
vehicles which are covered by permits issued under section 63(7) of the Act
having the privilege of carrying passengers on contract throughout India. In
these Writ Petitions and Civil Appeals they have questioned the validity of the
Notification dated 15.7.1975 issued by the State of Rajasthan under section
129-A of the Act empowering certain officers of the Rajasthan State Road
Transport Corporation (hereinafter referred to as 'the Corporation) to exercise
in respect of all stage carriages and contract carriages on the notified routes
under section 68-D(3) of the Act the power that can be exercised under section
129-A of the Act by police of.ricers who are empowered in that behalf. The
Notification reads as follows:
"RAJASTHAN RAJPATRA" Dated 7.8.1975
HOME (Cr. X) DEPARTMENT NOTIFICATION Jaipur, July 15, 1975 O.O.420. In exercise
of the power conferred by section 129-'A of the Motor Vehicles Act, 1939
(Central Act IV of 1939) the State Government hereby further authorises the
following persons to exercise the powers and to take or cause to be taken all
the proper steps within their respective jurisdictions under the said scheme in
respect of all the stage carriages and contract carriages plying on or in any
notified route or in any notified area under-section 68-D(3) of the said Act or
in any portion thereof, namely:
305 S.No. Persons authorised Jurisdiction
1. Deputy General 1. All Rajasthan Manager
(Traffic)
2. Assistant Depot 2. Within the jurisdiction
Managers of their respective depot.
3. Traffic Inspectors 3. Within the
jurisdiction of their respective routes No. F. 1 (6)H / Unit-X-75 by order of
Governor Sd/Raj Singh Commissioner for Home/Secy.
to the Government The petitioners/appellants
contend that the officers of the Corporation named in the Notification who are
very much interested in seeing that the Corporation earns much profit have been
over-zealous in exercising the powers conferred on them under section 129-A Of
the Act and seizing and detaining the motor vehicles belonging to the
petitioners/appellants contrary to law. The principal contention urged by the
petitioners/appellants is that it was not open to the State Government to
appoint persons who are not officers of the Government as persons who could
exercise the powers of seizure and detention of property of citizens under section
129-A of the Act. Relying on the Judgment of this Court in Others, [1985] 3
S.C.C. 711, it is contended that the appointment of the officers of the
Corporation who are their rivals in motor transport business as officers
entitled to exercise powers conferred under section 129-A of the Act was
violative of Article 19(1)(g) of the Constitution of India.
These Writ Petitions/Civil Appeals are
opposed by the State Government and the Corporation. It is contended by the
respondents that the impugned notification is issued only to protect the
interests of the Corporation and in order to prevent the running of motor
vehicles either as stage carriages or contract carriages along the routes over
which the Corporation is exclusively entitled to operate its stage carriages
under permits issued under Chapter IVA of the Act.
They also contend that the appointment of the
officers of the Corporation under section 129-A of the Act is not outside the
scope of that section. In the course of the hearing it was submitted that the
said powers would not be used against motor vehicles covered by permits issued
306 under section 63(7) of the Act although it is alleged thateven such
vehicles had been seized and detained in the past by the officers of the
Corporation. Section 129-A of the Act with which we are concerned in this case
reads as follows:
"129-A. Power to detain vehicles used
without certificate of registration or permit--Any police officer authorized in
this behalf or other person authorized 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 22 or without the permit
required by subsection (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.
Provided that where any such officer or
person has reason to believe that a motor vehicle has been or is being used
without the permit required by sub-section (1) of section 42, he may, instead
of seizing the vehicle, seize the certificate of registration of the vehicle
and shall issue an acknowledgement in respect thereof.
Provided further that where a motor vehicle
has been seized and detained under this section for contravention of the provisions
of section 22, such vehicle shall not be released to the owner unless and until
he produces a valid-certificate of registration under this Act in respect of
that vehicle.
Section 129-A was introduced into the Act by
section 20 of the Motor Vehicles (Amendment) Act, 1942 (Act 20 of 1942).
Section 133-A was introduced by section 21 of the very Amending Act. Originally
section 133-A contained only the first three sub-sections. Sub-sections (4) and
(5) to section 133-A were added later. Now section 133-A reads thus:
"133-A. Appointment of motor vehicles
officer--( 1 ) The State Government may, for the purpose of carrying into
effect the provisions of this Act, establish a Motor Vehicles Department and
appoint as officers thereof such persons as it thinks fit.
(2) Every such officer shall be deemed to be
a public servant within the meaning of the Indian Penal Code (45 of 1860).
307 (3) The State Government may make rules
to regulate the discharge by officers of the Motor Vehicles Department of their
functions and in particular and without prejudice to the generality of the
foregoing power to prescribe the uniform to be worn by them, the authorities to
which they shall be subordinate, the duties to be performed by them, the powers
(including the powers exercisable by police officers under this Act) to be
exercised by them, and the conditions governing the exercise of such powers.
(4) In addition to the powers that may be
conferred on any officer 'of the Motor Vehicles Department under subsection
(3), such officer as may be empowered by the State Government in this behalf
shall also have the power to (--) (a) make such examination and inquiry as he
thinks fit in order to ascertain whether the provisions of this Act and the
rules made thereunder are being observed;
(b) with such assistance, if any, as he
thinks fit, enter, inspect and search any premises which is in the occupation
of a person who, he has reason to believe, has committed an offence under this
Act or in which a motor vehicle in respect of which such offence has been
committed is kept:
Provided that--(i) any such search without a
warrant shall be made only by an officer of the rank of a gazetted officer;
(ii) where the offence is punishable with
fine only the search shall not be made after sunset and before sunrise;
(iii) where the search is made without a
warrant, the gazetted officer concerned shall record in writing the grounds for
not obtaining a warrant and report to his immediate superior that such search
has been made;
(c) examine any person and require the
production of any register or other document maintained in pursuance of this
Act, and take on the. spot or otherwise statements of any person which he may
consider necessary for carrying out the purposes of this Act;
308 (d) seize or take copies of any registers
or documents or portions thereof as he may consider relevant in respect of an
offence under this Act which he has reason to believe has been committed;
(e) launch prosecutions in respect of any
offence under this Act and to take a bond for ensuring the attendance of the offender
before any court;
(f) exercise such other powers as may be
prescribed:
Provided that no person shall be compelled
under this sub-section to answer any question or make any statement tending to
incriminate himself.
(5) The provisions of the Code of Criminal
procedure 1973 (2 of 1974) shall, so far as may be, apply to any search or
seizure under this section as they apply to any search or seizure under the
authority of any warrant issued under section 94 of that Code." In Transport
Commissioner, Andhra Pradesh v. Sardar Ali, Bus Owner, [1983] S.C.R. 729, this
Court has while upholding the constitutionality of section in 129-A of the Act
explained its scope, manner and the different powers which are exercisable by
an officer empowered under that section to exercise the powers mentioned
therein. In that case the appellant was the Transport Commissioner of the State
of Andhra Pradesh and not the Andhra Pradesh State Road Transport Corporation.
Any police officer or other person authorized by the State Government under
section 129A of the Act may seize and detain a motor vehicle if he has reason
to believe that the motor vehicle has been or is being used in contravention of
the provisions of section 22 of the Act, or without the permit required by
subsection (1) of section 42 of the Act, or in contravention of any conditions
of such permit relating to the route on which or the area in which or the
purpose for which the vehicle may be used. He is also to take or cause to be
taken any steps he may consider proper for the temporary safe custody of the
vehicle. In the first proviso to section 129-A of the Act such authorised
officer may instead of seizing the vehicle seize the certificate of
registration of vehicle and issue an acknowledgement in respect thereof. It
further provides that where the motor vehicle has been seized or detained under
the said section for contravention of the provisions of section 22 of the Act,
such vehicle shall not be released to the owner unless and until he produces a
valid certificate of registration under that Act in respect of that vehicle.
The said powers can be exercised in respect of any motor vehicle such as an
omnibus, a car, an auto309 rickshaw, a tractor, a lorry etc. etc., the
expression 'motor vehicle' having been defined by the Act in subsection (18) of
section 2 of the Act thus:
"2(18). 'motor vehicle' means any
mechanically propelled vehicle adapted for use upon roads whether the power of
propulsion is transmitted thereto from an external or internal source and
includes a chassis to which 'a body has not been attached and a trailer, but
does not include a vehicle running upon fixed rails or a vehicle of a special
type adapted for use only in a factory or in any other enclosed premises."
Section 22 of the Act requires every person to get his motor vehicle registered
under the Act. It provides that no person shall drive any motor vehicle and
that no owner of a motor vehicle shall cause or permit the vehicle to be driven
in any public place or in any other place for the purpose of carrying
passengers or goods unless the vehicle is registered in accordance with Chapter
III of the Act and the certificate of registration of the vehicle has not been
suspended or cancelled and the vehicle carries a registration mark displayed in
the prescribed manner. Section 42 of the Act provides that no owner of a
'transport vehicle' as defined in sub-section (33) of section 2 of the Act
shall use or permit the use of the vehicle in any public place whether or not
such vehicle is actually carrying any passenger or goods save in accordance
with the conditions of a permit granted or countersigned by a Regional or State
Transport Authority or the Commission authorising the use of the vehicle in
that place in the manner in which the vehicle is being used. A 'transport
vehicle' means a public service vehicle or a goods vehicle. The different kinds
of permits that may be issued in respect of motor vehicles are set out in
Chapter IV of the Act. They may be stage carriages, contract carriages, or
public carriers. The other kind of transport vehicle is that in respect of
which a permit is issued under section 63(7) of the Act which confers the
privilege on the holder of the permit to use the vehicle throughout the territories
of India. Every permit issued under Chapter IV of the Act contains a number of
conditions which are specified therein. The contravention of either section 22
or section 42(1) of the Act or any of the conditions mentioned in the permit
would entitle an officer empowered under section 129-A of the Act to seize and
detain the vehicle in question and also-to provide for its temporary safe
custody. A report or complaint, as the case maybe, also may be filed by him
before the Magistrate for taking action against the owner of the vehicle for
violation of any of the provisions of the Act referred to above. It is thus
seen that the powers are of a drastic nature and have the effect of depriving
the owner of a motor vehicle of his property, which sometimes may be of the
value of Rs.2 to 3 lakhs. They also have the effect of depriving the passengers
who are travelling in that vehicle of a transport service right in the 310
middle of a route and may expose them to 'hunger and thirst' as it was widely
advertised in a Pamphlet issued by the Corporation itself. It is against the
above background that we have to consider whether it was open to the State
Government in this case to authorise some of the officers of the Corporation to
exercise the powers under section 129-A of the Act.
Section 129-A of the Act enables the State
Government to appoint "any police officer... or other person" under
section 129-A of the Act to exercise the powers mentioned therein. In so far as
the appointment of a police officer for the said purpose, there is no room for
any doubt because the section expressly mentions that a police officer can be
authorised under it to exercise the powers mentioned therein. The short
question which arises for consideration is whether the expression "other
person" mentioned in section 129-A of the Act can include persons other
than Government officers, such as the officers of the Corporation. The
Corporation is established under the Road Transport Corporations Act, 1950 (Act
64 of 1950) hereinafter referred to as 'the Corporations Act'). The
Corporations Act was enacted to provide for the incorporation and regulation of
road transport corporations. Under section 3 of the Corporations Act, every
State Government is authorised to establish a Road Transport Corporation. The
corporation, in question, is one established under that section. It is a body
corporate having perpetual succession and a common seal. The management of the
Corporation vests in a Board of Directors who are appointed for a prescribed
period. It consists of a Chairman and other Directors, being not less than 5
and not more than 17, who may be officials of the State Government or private
persons as the State Government may think fit to appoint. The capital of the
Corporation consists of any amount contributed by the Central Government or the
State Government. The Corporation may, whether or not any capital is provided
by the State Government or the Central Government, be authorised to raise by
the issue of shares such capital as may be authorised in this behalf by the
State Government. The authorised share capital of the Corporation may be
divided into such number of shares as the State Government may determine and
the number of shares which shall be subscribed by the State Government or the
Central Government and other persons (including persons whose undertakings have
been acquired by the Corporation) is liable to be determined by the State
Government in consultation with the Central Government. The allotment of shares
to other parties mentioned in subsection (3) of section 23 of the Corporations
Act shall be made by the Corporation in such manner as may be prescribed.
Dividends may be paid on the shares issued by it as per law. The Corporation
may at any time, with the previous approval of the State Government, redeem the
shares issued to the other parties in such manner as may be prescribed. The
Corporation is under an obligation to obey the directions which may be issued
by the State Government. If the State Government is of the opinion that the
Corporation is 311 unable to perform its duties or has persistently made default
in the performance of the duties imposed on it by or under the provisions of
the Corporations Act or has exceeded or abused its powers, the State Government
may, with the previous approval of the Central Government, by notification in
the Official Gazette, supersede the Corporation for such period as may be
specified in the notification. Thus, it is seen that the Corporation is not a
department of the Government but it is an independent body corporate
established under the statute. Section 14 of the Corporations Act provides that
every Corporation shall have a Managing Director, a Chief Accounts Officer and
a Financial Adviser, appointed by the State Government. It further provides
that a Corporation may appoint a Secretary and such other officers and
employees as it considers necessary for the efficient performance of its
functions. The conditions of appointment and service and scales of pay of the
officers and employees of a Corporation are dealt with by sub-section (3) of
section 14 of the Corporations Act. It provides that the conditions of
appointment and service and the scales of pay of the officers and employees of
the Corporation shall (a) as respects the Managing Director, the Chief Accounts
Officer and the Financial Adviser, or, as the case may be, the Chief Accounts
Officer-cum-Financial Adviser, be such, as may be prescribed and as respects
the other officers and employees be such as may be subject to the provisions of
section 34, be determined by regulations made under the Corporations Act.
Section 15 of the Corporations Act provides that the Managing Director shall be
the executive head of the Corporation and all other officers and employees of
the Corporation shall be subordinate to him. It is, thus, seen that the
officers and servants of the Corporation are not holders of civil posts under
the State Government, but they are employees of the Corporation. The functions
of the Corporation are set out in section 19 of the Corporations Act. Subject
to the other provisions of the Corporations Act, A Corporation shall have power
to operate road transport services in the State and in any extended area, to
provide any ancillary service, to provide for its employees suitable conditions
of service including fair wages,. establishment of provident fund, living
accommodation, places for rest and recreation and other amenities, to authorise
the issue of passes to its employees and other persons either free of cost or
at concessional rates and on such conditions as it may deem fit to impose, to
acquire and held such property, both movable and immovable as the Corporation
may deem necessary for the purpose of any of the said activities, and to lease,
sell or otherwise transfer any property held by it etc. etc. It may also with
the prior approval of the State Government do all other things to facilitate
the proper carrying of the business of the Corporation.
There is no provision in the Corporations Act
authorising the Corporation to permit any of its officers to exercise the
powers under section 129-A of 312 the Act or to spend money on the safe custody
of vehicles which are seized and detained under section 129-A of the Act. The
Corporation no doubt is entitled to draw up schemes under section 68-C of the
Act and to run motor vehicles in accordance with the said scheme after it is
approved by the State Government to the exclusion complete or partial of other
operators on any notified route or in notified area.
Section 68-B of the Act provides that the
provisions of Chapter IVA of the Act and the rules and orders made thereunder
shall have effect notwithstanding anything inconsistent therewith contained in
Chapter IV of the Act or any other law for the time being in force or in any
instrument having effect by virtue of any such law. From the reading of the
provisions of the Act and of the Corporation Act it is evident that the
Corporation is just another operator of motor vehicles which is entitled to run
motor vehicles in accordance with law after obtaining permits. When the Corporation
applies for permits under Chapter IV of the Act it has to compete with other
applicants to obtain permits in accordance with the provisions of that Chapter.
When an approved scheme is brought into operation under Chapter IV-A of the Act
it is no doubt entitled to get permits to the exclusion, complete or partial,
of other operators. It is also true that when the approved scheme provides that
other operators are excluded completely or partially no private operator can
operate his motor vehicles along the notified route or in the notified area in
question except in accordance with the approved scheme. Barring what is stated
above and some other liabilities from which the Corporation is expressly
exempted under the Act, the Corporation is subject to all the obligations and
responsibilities which are imposed on other private operators by the Act. It is
subject to the powers of supervision and control of the transport authorities
under the Act and to the rules governing the proper maintenance of transport
vehicles. The Corporation is also subject to the jurisdiction of the Motor
Vehicles Department which is established under section 133-A of the Act and its
vehicles are liable to be inspected and checked by the officers appointed under
that section in the interests of the travelling public. It is thus clear that
the Corporation is one of the many operators of the motor vehicles in the State
though the fleet of the motor vehicles owned by it and the magnitude of the
operations carried on by it may be very large. The police officers who are
empowered to exercise certain powers under the Act should exercise those powers
in respect of motor vehicles owned by the private operators and also in respect
of the motor vehicles owned by the COrporation. Negligence on the part of the
Transport Authorities, the Motor Vehicles Department and the police officers in
exercising their powers of supervision, inspection and control in respect of
the motor vehicles of the Corporation leads to grave public suffering and sometimes
to disasters. They should not take it for granted that the motor vehicles of
the Corporation do not need to be checked or inspected only because it is
established by the State Government. Omission on their part in discharging
these duties amounts to dereliction of public duty.
313 Section 129-A and section 133-A of the
Act, as mentioned earlier, were introduced into the Act by Act 20 of 1942.
Clauses 20 and 21 of the Notes on Clauses
found in the Statement of Objects and Reasons attached to the Bill relating to
the Amending Act of 1942 read thus:
"Clause 20--Although the plying of
vehicles without registration or of transport vehicles without a permit is
punishable, there is no provision for stopping them from plying and thus
continuing their offence. The clause provides for the grant of power for
authorised officers to detain vehicles so as to prevent their being used
without being registered or without a permit or in violation of certain
conditions of the permit.
Clause 21 --The powers under Chapters VI and
VII with which police officers have been invested cannot be exercised by
officers of other departments of the Provincial Government. It is desirable
that when special departments are set up for the purpose of administering the
Act, the officers of these departments should have the powers entrusted to
police officers by the Act." Clause 20 relates to section 129-A of the Act
and clause 21 relates to section 133-A of the Act. It is clear from clause 20
that by enacting section 129A of the Act the Central Legislature intended to
authorise certain officers to detain vehicles so as to prevent being used
without being registered or without a permit or for violation of certain
conditions of the permit. Clause 21 of the Notes on Clauses explains the reason
for establishing the Motor Vehicles Department in a State. Sub-section (3) of
section 133-A of the Act provides that the State Government may make rules to
regulate the discharge by the officers of the Motor Vehicles Department of
their functions and in particular and without prejudice to the generality of
the foregoing power to prescribe the uniforms to be worn by them, the
authorities to which they shall be subordinate, the duties to be performed by
them, the powers (including the powers exercisable by police officers under the
Act) to be exercised by them and the conditions governing the exercise of such
powers. Subsection (4) of section 133-A authorises inter alia the State
Government to empower the officers of the Motor Vehicles Department to exercise
powers of search without a warrant in certain cases, to examine any person and
require the production of any register or other document maintained in pursuance
of the Act, and take on the spot or otherwise statements of any person which
they may consider necessary for carrying out the purposes of the Act, to launch
prosecutions in respect of any offence under the Act and to take a bond for
ensuring the attendance of the offender before any court. A reading of section
314 129-A and section 133-A of the Act together shows that the "other
person" referred to in section 129-A of the Act, who may be empowered to
discharge the powers under that section can only mean an officer of the
Government, such as the Motor Vehicles Officer appointed under section 133-A of
the Act or of any other department. It could never have been the intention of
the Central Legislature, while enacting section 129-A and section 133-A of the
Act that the powers exercisable under section 129-A of the Act could be
conferred on persons who were not officers of the Government. If the Central
Legislature intended that such powers could be entrusted to private persons or
employees of any statutory Corporation the section would have expressly
provided in that regard. Ordinarily, whenever a statute empowers the State
Government to appoint persons to administer any of the provisions of the
statute, the persons who may be appointed by the State Government under such
provision can only be persons appointed in connection with the affairs of the
State. In other words they should be or employees officers of the State
Government, who are subject to the administrative and disciplinary control of
the State Government directly. The powers of search, seizure and detention of
vehicles belonging to private parties and of launching prosecutions are
incidental to the soveriegn powers of the State and they cannot ordinarily be
entrusted to private persons unless the statute concerned makes express provisions
in that regard. It is a different matter if a private person on his own files a
complaint before magistrate and wishes to establish a criminal charge. In such
a case the private person would not be investigating into the crime with the
aid of the powers of search, seizure or detention.
The Magistrate may, if he so desires, direct
a police officer to investigate into the allegations and report to him.
In order to illustrate the above point
reference may be made to section 43 of the Code of Criminal Procedure, 1973. It
provides that any private person may arrest or cause to be arrested any person
who in his presence commits a non-bailable and cognizable offence, or any
proclaimed offender, and, without unnecessary delay, shall make over or cause
to be made over any person so arrested to a police officer, or, in the absence
of a police officer, take such person or cause him to be taken in custody to
the nearest police station. We are of the view that the expression "other
person" mentioned in section 129-A of the Act which has to be read ejusdem
generis with the words 'any police officer' which precede that expression in
section 129-A of the Act can only refer to an officer of the Government and not
to any officer or employee of any statutory Corporation or to any other private
person. We have a similar provision in section 129 of the Act. That section
authorises the-State Government to empower any police officer or other person
to exercise the powers under that section. Such police officer or other person
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 315 is a false document within the meaning of section
464 of the Indian Penal Code (45 of 1860), seize the mark or 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. That section also
provides that any police officer authorised in that behalf or other person
authorised in that behalf by the State Government may, if he has reason to
believe that the driver of a motor vehicle who is charged with any offence
under the Act may abscond or otherwise avoid the service of a summons, seize
any licence held by such driver and forward it to the Court taking cognizance
of the offence and the said Court shall, on the first appearance of such driver
before it, return the licence to him in exchange for the temporary
acknowledgment given under sub-section (3) of section 129 of the Act.
Having regard to the nature of the power, the
expression "other person" in section 129 ,also will have to be interpreted
as meaning any other person appointed in connection with the affairs of the
State Government and not any private person or officer of a Corporation.
It may be that the Corporation is established
by the Government with the capital contributed by the Central Government or the
State Government and it may also be that for the purposes of Part III of the
Constitution the Corporation is treated as 'a State'. Nevertheless the officers
of the Corporation cannot be treated as persons falling within the meaning of
the expression "other persons" in section 129 or section 129-A of the
Act, even though some of them may be officers deputed by the State Government
to work as the officers and servants of the Corporation. In view of the
foregoing we hold that the Deputy General Manager (Traffic), the Assistant
Depot Managers and the Traffic Inspectors of the Corporation could not have
been authorised by the State Government to discharge the powers under section
129-A of the Act. The impugned Notification has to fail on this account only.
We also hold that the reasons given in support of the decision in Krishna Bus
Service case (supra) are equally applicable to this case also.
It was argued that on account of unauthorised
use of motor vehicles as stage carriages or contract carriages on the notified
routes over which the Corporation has got exclusive right to operate its
vehicles, the Corporation is losing a large amount of revenue and therefore it
was necessary to empower the officers of the Corporation to exercise the powers
under section 129-A of the Act. We do not find it as a satisfactory ground to
uphold the impugned Notification. The police officers and the officers of the
Motor Vehicles Department are expected to discharge their duties properly and
diligently and if they discharge their duties in accordance with law with the
amount of diligence which is required of them, there should be no difficulty in
plugging any kind of unauthorised running of stage carriages or contract
carriages on the notified routes. We have to impress upon the police officers
316 of the Motor Vehicles Department of the State of Rajasthan not to allow the
confidence vested in them to be eroded. We hope and trust that they would
discharge the duties to be performed by them strictly and ensure that the
provisions of the Act are obeyed by the motor vehicle operators.
In view of the foregoing, the impugned
Notification is liable to be set aside and we accordingly quash it.
Before leaving this case we have to observe
that in some of the orders passed by certain magistrates in respect of persons
accused of running motor vehicles unauthorisedly on the notified routes it is
seen that the fines levied thereunder have been ordered to be paid over to the
Corporation.
We are told that the Corporation has realised
several lakhs of rupees under such orders. Section 357 of the Code of Criminal
Procedure, 1973 provides for payment of compensation out of the fine to certain
persons. The orders directing payment of compensation to the Corporation may
have been passed under clause (b) of that section which provides that the fine
recovered may be applied in the payment to any person of compensation for any
loss or injury caused by the offence, when compensation is, in the opinion of
the Court, recoverable by such person in a Civil Court, Prima facie, we feel
that the Corporation is not entitled to be paid any compensation under section
357 of the Code of Criminal Procedure, 1973. It can be paid such compensation
only when it is open to the Corporation to file a suit and recover damages in
law for such unauthorised operation of stage carriages. The question whether
such unauthorised running will give rise to a claim for damages in a civil
court is not free from doubt. We do not, however, express our opinion on the
above question. This is a matter in which the State is also interested. We hope
that the magistrates before whom such cases are filed hereafter will, before
passing an order under section 357 of the Code of Criminal Procedure, 1973 in
favour of the Corporation, examine and decide the question in accordance with
law.
In the. result these writ Petitions/Civil
Appeals are allowed. There will, however, be no order as to costs.
S.R. Petitions & Appeals allowed.
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