CWP No.1032 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.1032 of 2000 Date of decision:27.10.2006 Chandra Shubh Yatra Company Limited and another ....Petitioners versus The State of Haryana and others ....Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Puneet Bali, Advocate, for the petitioners. Ms. Ritu Bahri, DAG, Haryana. JUDGMENT: This writ petition seeks quashing of the Haryana Motor Vehicles (Fifth Amendment) Rules 1999 (for short, 'the 1999 Rules) published vide notification dated 29.12.1999, Annexure P.5, to the extent of inclusion of officers of the Haryana Roadways to exercise powers under Rules 226/226-A/226-B/226-C of the 1999 Rules; quashing of First Proviso to Rule 226-B of the 1999 Rules for not providing grant of opportunity of 15 days before temporary seizure/detention of vehicles as per Section 130(3) of the Motor Vehicles Act, 1988 (for short, the 1988 Act'); direction that the vehicles of the petitioners be detained only after following procedure under Rule 226-B of the 1999 Rules and Section 130(3) of the 1988 Act; direction to lay down procedure for seizure and retention of vehicles under section 207(1) of the 1988 Act and not to impound the vehicles without such procedure; direction that respondent Nos. 5 to 8 may not impound the vehicles of the petitioners in contravention of the provisions of sections 207(1) read with section 2(32) of the 1988 Act. Case of the petitioners is that petitioner No.1 is a company registered under the Companies Act, 1956, while petitioner No.2 is its Managing Director. Petitioner No.1 is engaged in the running of luxury tourist buses. It holds tourist permits/contract carriage of four buses under CWP No.1032 of 2000 2 section 88(a) of the 1988 Act. The buses coming from Rajasthan cross the border of Haryana at Dabwali and Balsamand between 12 O'clock at night and 4 AM but when the said buses arrive at Hisar or Sirsa, the same are impounded and challaned on one pretext or the other. Prior to 29.12.1999, no procedure was laid down for detaining of vehicles under section 207 of the Act but on 29.12.1999, rules have been framed authorising certain officers for detaining/challaning/releasing the vehicles. Relevant provisions of Rules 226, 226-A, 226-B and 226-C of the Haryana Motor Vehicles Rules, 1993 were substituted by the Haryana Motor Vehicles (Fifth Amendment) Rules, 1999. Bus of the petitioners being RJ-13/P/1575 was impounded on 21.1.2000 at 1 AM and in the receipt of challan, it was mentioned that the vehicle was being plied without documents. The vehicle was released by the Court of Additional Chief Judicial Magistrate, Hisar on superdari but inspite of the order for release of the vehicle, the same was not released by the authorities. Notification dated 29.12.1999 was violative of Articles 14, 19(1)(g) and 21 of the Constitution and inaction in regulating method of seizure under section 207(1) of the Act is also arbitrary and violative of the provisions of Section 130(3) of the Act. In the reply filed, it is stated that the vehicles are challaned or impounded in accordance with law; procedure for detention of vehicles is laid down in Annexures R.1 and R.2, which are valid. On 2.6.2000, following interim order was passed:- “After hearing learned counsel for the parties, we direct that the vehicles of the petitioners shall not be impounded except when it is clearly established that the permit granted by the competent authority is being misused by the petitioners. For this purpose, the concerned authority shall give 24 hours' notice to the petitioners and then take action for impounding of the vehicles.” An additional affidavit has been filed by Shri M.K.Mahajan, Additional State Transport Controller on 16.10.2006 to the effect that vide notification dated 29.10.2003, Haryana Motor Vehicles (Fourth Amendment) 2003 (for short, 'the 2003 Rules') were notified. Rules 225 and 226 have been substituted while Rules 226-A, 226-B and 226-C have been omitted. Stand of the respondents is that after amendment of rules, CWP No.1032 of 2000 3 contentions raised in the original writ petition do not survive. The substituted rules are: “225. Officers of Motor Vehicles Department appointed under section 213.-(1) The following officers are appointed as officers of the Motor Vehicles Department under section 213 of the Act, namely:- (i) State Transport Controller; (ii) Additional/Joint State Transport Controller, (iii)Additional / Joint Excise and Taxation Commissioner. (iv)Senior Superintendent of Police, Haryana Highway Patrol and Road Safety; (v) Secretary, State/Regional Transport Authority; (vi) District Transport Officer; (vii)Flying Squad Officer; (viii)Deputy Superintendent of Police, Haryana Highway Patrol and Road Safety; (ix) Assistant District Transport Officer; (x) Assistant Excise and Taxation Officer; (xi)Incharge, Traffic Aid Centres, Haryana Highway Patrol and Road Safety not below the rank of Sub- Inspector. (2) Besides the officers appointed under sub-rule (1), the following officers shall also be deemed to be appointed as officers of the Motor Vehicles Department, namely;- (i) Deputy Commissioners; (ii) Additional Deputy Commissioners; (iii) Sub-Divisional Officers (Civil); (iv) City Magistrates; (v) General Managers, Haryana Roadways; and (vi) Traffic Managers, Haryana Roadways. 226. Powers of officers of Motor Vehicles Department.- (1) State Transport Controller and subject to his regulatory control all other officers of the Motor Vehicles Department specified in the foregoing rule shall within the area of their respective jurisdiction, have the power to challan any person for contravention of any provisions of the Act or of any rule, regulation or notification issued thereunder; Provided that the General Managers and Traffic Managers of Haryana Roadways shall have no powers to check/challan goods vehicles and buses of Private Operators both of contract and Stage Carriage Permits; Provided further that Incharge, Traffic Aid Centres, Haryana Highway Patrol and Road Safety shall CWP No.1032 of 2000 4 exercise such powers only in respect of offences punishable under sections 183, 184, 185, 190 and 197 of the Act. (2) An officer of the Motor Vehicles Department shall have the power, - (a) in order to ascertain whether the provisions of the Act are being observed to,- (i) to make such examination and enquiry as he thinks fit; (ii) to signal any motor vehicle being driven in any public place to stop (whereupon such vehicle shall be stopped by the person driving or having control of the vehicle) and demand of search for, if not produced, driving licence, certificate of registration, certificate of issuance, and in case of a transport vehicle, in addition certificate of fitness and permit, examine them and seize one or more of them, as may be necessary, for the purpose of verification or where the holder is charged with an offence under the Act for forcing his attendance in the court taking cognizance of the offence, after giving receipt therefor; (b) with such assistance, if any, as he thinks fit, to 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 the Act or in which a motor vehicle in respect of which such offence has been committed is kept: Provided that,- (i) any search without a warrant shall be made only by 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 CWP No.1032 of 2000 5 immediate superior that such search has been made; (c) 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 he may consider necessary for carrying out the purposes of the Act; (d) to seize or take copies of any registers or documents or portions thereof as he may consider relevant in respect of an offence under the Act which he has reason to believe has been committed. (e) to launch prosecution in respect of any offence under the Act and to take a bond for ensuring the attendance of the offender before any court: Provided that no person shall be compelled under this sub-rule to answer any question or make any statement tending to incriminate himself. Note – For the purpose of this sub-rule, any reference to 'Act' includes reference to any rule, regulation, notification or order made under the Act. (3) The provisions of the Code of Criminal Procedure, 1973 (Act 2 of 1974) shall, so far as may be, apply to any search or seizure under this rule as they apply to any search or seizure under the authority of any warrant issued under section 94 of the said Code. (4) subject to the restrictions imposed under the first proviso to sub-rule (1), the officers mentioned in sub-rule (1), are authorised to exercise powers given under sub-section (1) of sub-section (2) of section 206 of the Act. (5) Subject to the restrictions imposed under the first proviso to sub-rule (1), the officers mentioned in sub-rule (1), are authorised to exercise powers given under sub-section (1) of section 207 of the Act to seize and detain a motor vehicle for the reasons and in the circumstances mentioned therein: Provided that - (i) the detaining officer, shall direct the incharge of the vehicle to take or cause to take the said vehicle to the nearest police station, workshop of the Haryana Roadways or any other place which is considered to be safe for the temporary custody of the vehicle; CWP No.1032 of 2000 6 (ii) the detaining officer will further ensure proper receipt of the vehicle from the incharge of the premises in Form HR No.49 where the vehicle has been ordered to be impounded. A copy of the receipt shall be handed over by the person incharge of the premises to the owner or representative of the vehicle and one copy will be given to the detaining officer; (iii) the incharge of the premises will be fully responsible for the safe custody of the vehicle, till it is released on the orders of the competent authority or is disposed of otherwise in terms of these rules; (iv) in case the vehicle remains impounded for more than one month in the premises other than the police station, the vehicle may be sent by the Incharge of the premises to the nearest police station under intimation to the owner of the vehicle. The Officer Incharge of police station may take further action for the disposal of the vehicle according to law. (6) Subject to the restrictions imposed under the first proviso to sub-rule (1), all class I officers mentioned in sub-rule (1) are authorised to exercise powers given under sub-section (2) of the section 207 of the Act. Any officer below the rank of a District Transport Officer seizing or detaining any motor vehicle under sub section (1) of section 207 shall send immediately and not later than 24 hours of detaining the vehicle, report of the case together with copy of the relevant documents to the District Transport Officer concerned who may on application of the owner or person incharge of the vehicle, order release of the vehicle in accordance with the provisions of sub-section (2) of section 207 of the Act.” It has been further stated in the affidavit that in accordance with the interim direction of the court, instructions were issued to all the District Transport Officers vide letter dated 25.10.2001, Annexures R.2 and R.3 requiring 24 hours notice to be given to the unauthorised operators violating conditions of permit before a bus was impouned; in a separate register details of offences, particulars of vehicles and name and address of the owner should be entered; reasons on which the DTOs were satisfied for the alleged violation should also be mentioned and weekly information report be sent by DTOs to the Headquarter of the vehicles which were CWP No.1032 of 2000 7 challaned. It is further stated that on account of interim order, whenever there is any violation and no document is shown, the power of impounding could not be exercised and requirement of giving 24 hours prior notice before impounding a vehicle will seriously impair checking of violations of provisions of the Act. From the various contentions raised by the parties during the course of arguments, following questions arise for consideration:- (i) Whether inclusion of officers of Haryana Roadways to exercise powers of challaning and detaining vehicles was permissible? (ii) Whether temporary seizure/detention of vehicles as per provisions of Section 207 of the 1988 Act was permissible? (iii) Whether exercise of power under section 207 of the 1988 Act was required to be regulated by judicial order? Before considering the above questions, it may be worth-while to reproduce the relevant statutory provisions:- “130. Duty to produce licence and certificate of registration.—(1) The driver of a motor vehicle in any public place shall, on demand by any police officer in uniform, produce his licence for examination: Provided that the driver may, if his licence has been submitted to, or has been seized by, any officer or authority under this or any other Act, produce in lieu of the licence a receipt or other acknowledgement issued by such officer or authority in respect thereof and thereafter produce the licence within such period, in such manner as the Central Government may prescribe to the police officer making the demand. (2) The conductor, if any, of a motor vehicle in any public place shall on demand by any officer of the Motor Vehicles Department authorised in this behalf, produce the licence for examination.] CWP No.1032 of 2000 8 (3) The owner of a motor vehicle (other than a vehicle registered under Section 60), or in his absence the driver or other person in charge of the vehicle, shall, on demand by a registering authority or any other officer of the Motor Vehicles Department duly authorised in this behalf, produce the certificate of insurance of the vehicle and, where the vehicle is a transport vehicle, also the certificate of fitness referred to in Section 56 and the permit; and if any or all of the certificates or the permit are not in his possession, he shall, within fifteen days from the date of demand, submit photo copies of the same, duly attested in person or send the same by registered post to the officer who demanded it. Explanation.—For the purposes of this sub-section, “certificate of insurance” means the certificate issued under sub-section (3) of Section 147.] (4) If the licence referred to in sub-section (2) or the certificates or permit referred to in sub-section (3), as the case may be, are not at the time in the possession of the person to whom demand is made, it shall be a sufficient compliance with this section if such person produces the licence or certificates or permit within such period in such manner as the Central Government may prescribe, to the police officer or authority making the demand: Provided that, except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to any person required to produce the certificate of registration or the certificate of fitness of a transport vehicle.” “207. Power to detain vehicles used without certificate of registration permit, etc. - (1) Any police officer or other person authorised 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 3 or Section 4 or Section 39 or without the permit required by sub-section (1) of Section 66 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, in the prescribed manner 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 CWP No.1032 of 2000 9 being used in contravention of section 3 or Section 4 or without the permit required by sub-section (1) of section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof. (2) Where a motor vehicle has been seized and detained under sub-section (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authori8ty or officer may deem fit to impose.” “213(1) Appointment of motor vehicles officers.—(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.” “Rule139.Production of licence and certificate of registration.—The driver or conductor of a motor vehicle shall produce certificate of registration, insurance, fitness and permit, the driving licence and any other relevant documents on demand by any police officer in uniform or any other officer authorized by the State Government in this behalf, and if any or all of the documents are not in his possession, he shall produce in person an extract or extracts of the documents duly attested by any police officer or by any other officer or send it to the officer who demanded the documents by registered post within 15 days from the date of demand.” Re:Q.No.(i) In M/s. Krishna Bus Service Private Limited v. The State of Haryana and others, AIR 1985 SC 1651, the Hon'ble Supreme Court observed:- “10. 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 CWP No.1032 of 2000 10 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 with 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 Govt. is not bad even though the Government is the owner of the vehicles as their connection with the running of the 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 CWP No.1032 of 2000 11 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.” The above observations were reiterated by the Hon'ble Supreme Court in Ishwar Singh Bagga and others v. State of Rajasthan, AIR 1987 SC 628, . It was observed:- “8......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 employees or 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 sovereign 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 a 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, CWP No.1032 of 2000 12 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