IN THE HIGH COURT OF JUDICATURE AT PATNA. C.W.J.C. NO.5805 OF 2011 Indrajeet Kumar, aged about 45 years, S/o Alakh Prasad, resident of Nepal Lodge, Langer Toli, R.K.Lane, P.S. Kadamkuan, District-Patna. …… Petitioner. Versus 1. The State of Bihar. 2. The Secretary, Transport Department, Govt. of Bihar, Patna. ….. Respondents. --------- For the petitioner : Mr. Rajendra Prasad Singh, Senior Advocate with M/s.Onkar Kumar, Rama Kant Singh & Rakesh Kr. Sinha, Advocate. For the respondents: Mr. Prashan Pratap, G.P. 6 Mr. General Rajesh, A.C. to G.P.-6. -------- P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN ------ O R D E R 08/ 07.07.2011 Petitioner is a customer intending to purchase Wagon-R LX Car from Karlo Automobiles (P) Ltd. which is an authorised dealer of Maruti Car. 2. Petitioner has filed the instant writ petition challenging order contained in Notification issued vide memo no.997 dated 08.03.2011 (Annexure-1) by which the Secretary, Department of Transport, Govt. of Bihar (respondent no.2) authorised the dealers of motor vehicles (non-transport) to appoint inspecting officers to exercise power enumerated in prescribed Form –20 under Central Motor Vehicle Rules, 1989 (hereinafter referred to as ‘the Rules’ for the sake of brevity) and also for restraining the respondents from exercising power under Section 65(2) (kha) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’ for the sake of brevity) in respect of empowering any one to inspect non transport vehicles and for other ancillary reliefs. - 2 - 3. Learned counsel for the petitioner argued that the aforesaid impugned order of respondent no.2 is unreasonable, bad, illegal, without jurisdiction and in violation of the provisions of the Act and the Rules and in malafide exercise of power which does not exist in the respondents, rather it is colourable exercise of authority. He claimed that petitioner obtained quotation from Karlo Automobiles (P) Ltd., an authorised Maruti dealer, for the purchase of Wagon-R LX and deposited Rs.10,744.00 for insurance and Rs.2,31,455.00 for margin money and registration fee etc. on 16.03.2011 for which Karlo Automobiles (P) Ltd. granted receipts (Annexure-2 series). Thereafter the petitioner applied for loan from a private financer, namely ShriRam Transport Finance Co. Ltd., which agreed to pay Rs.1,25,000.00 loan for remaining amount of quotation money and informed Karlo Automobiles (P) Ltd. on 17.03.2011 (Annexure-3). 4. Learned counsel for the petitioner submitted that thereafter the petitioner learnt in Karlo Automobiles (P) Ltd. that now registration of vehicles will be done by their employees who will certify about the total manufacturing items of the vehicles. The petitioner having knowledge of the provisions of law and finding the said act to be against such provisions, immediately contacted the transport authority and its officers asking them how can a supplier/manufacturer certify a vehicle to be genuine or free from manufacturing defects. He was informed by the authority of the Department that after issuance of Notification dated 08.03.2011 (Annexure-1) by the Secretary, Transport Department (respondent no.2) the Motor Vehicle Inspector appointed by the - 3 - State Government will not be required to give certificate of manufacturing defect, rather the said certificate would be given by the inspecting officers appointed by the dealers of the motor vehicle concerned. He further submitted that Form-20 referred in the impugned notification of the Department dated 08.03.2011 is a printed form in which Motor Vehicle Inspector has to give certificate after satisfying himself regarding the defects in the manufactured vehicle which has been sold to the customer. He also argued that in absence of such certification from an independent government functionary purchase of vehicle has now become very risky for the customers and hence the same has been challenged in the instant writ petition. 5. On the other hand, learned counsel for the respondents vehemently opposed the contentions of learned counsel for the petitioner and submitted that the petitioner has no locus to challenge the impugned Notification of the Department dated 08.03.2011 as it is the prerogative of the Government to either appoint any Government officer as inspecting officer or to authorise anyone to appoint an inspecting officer. In this connection, he relied upon Rules 126, 126A and 127 of the Rules. He further relied upon a decision of the Apex Court in case of Ghulam Qadir Vs. Special Tribunal and others, reported in (2002) 1 S.C.C. 33. 6. Learned counsel for the respondents argued that by the impugned Notification of the Secretary of the Department, the car dealers were authorised only for a limited purpose of certifying that the particulars contained in Form 20, like class of vehicles, - 4 - type of body, type of vehicles, maker’s name, month and year of manufacture are correct and it is only limited to new private vehicles. Learned counsel for the respondents also stated that the said step had been taken by the authority only to mitigate the hardship and rigors of the general public and responsibility of technical inspection of new non-transport vehicle has been delegated to all the dealers/agencies having trade certificate and this was done under the powers conferred to the State Government under Section 65(2) (b) of the Act. In this connection, learned counsel for the respondents has relied upon a decision of the Supreme Court in case of Charles K. Skaria Vs. C. Mathew, reported in (1980) 3 S.C.R.77. 7. Learned counsel for the respondents further argued that the impugned arrangement by the State Government provides additional forum to the general public to get the non transport vehicle inspected for certificate of particulars in Form 20 at the time of first registration and hence they have got both options as they can get their Form 20 certified either by the Motor Vehicle Inspector or by the authority authorised by the State Government. Hence, he averred that the petitioner has got no genuine ground for this writ petition as he has option. 8. Learned counsel for the respondents averred that under Rule 40 of the Bihar Motor Vehicles Rules, 1992, the District Transport Officer of the concerned district is authorised for registration of the vehicle, whereas the person authorised by the impugned Notification dated 08.03.2011 is only to certify that the particulars contained in Form-20 are correct. - 5 - 9. Learned counsel for the respondents also averred that the impugned Notification is not contrary to any provision of the Act or the Rules, rather it is in consonance with Section 44 of the Act which provides that the registering authority shall before proceeding to register a motor vehicle other than a transport vehicle, require the person applying for registration of the vehicle or, as the case may be, for renewing the certificate of registration to produce the vehicle either before itself or such authority as the State Government may by order appoint in order that the registering authority may satisfy itself that the particulars contained in the application are true and that the vehicle complies with the requirements of the Act and of the Rules made thereunder. Hence, he submitted that there is no merit in this writ petition which is fit to be dismissed. 10. Learned counsel for the respondents had relied upon two decisions of the Supreme Court in case of Ghulam Qadir(supra) and in case of Charles K. Skaria (supra) . So far the first decision in case of Ghulam Qadir (supra) is concerned it is with respect to displaced persons under Jammu and Kashmir State Evacuees’ (Administration of Property) Act, 2006 and Succession Act, 1925 and hence the same is not relevant to the instant case in any manner whatsoever. The second decision cited by learned counsel for the respondents in case of Charles K. Skaria (supra) does not appear to be correct as on page 77 of the said Journal no case law starts, rather a decision of the Supreme Court in which parties are different, starts from page 74 and continues till page 92 and is on a different point also. However in the same Journal i.e. - 6 - (1980) 3 S.C.R. at page 71 a decision is reported in which Charles K. Skaria was petitioner, but that is also not relevant for the instant case as it is with respect to the validity of Reservation Quota of 2% of total number of seats for candidates from entire country minus Kerala for admission to Post Graduate degree and diploma course in medicine. Hence, learned counsel for the respondents has wrongly relied upon those two decisions. 11. From a perusal of the impugned notification of the Transport Department of the State of Bihar dated 08.03.2011 (Annexure-1), it transpires that it was issued in exercise of powers given under Section 65(2) (kha) of the Act authorizing all dealers /agencies having trade certificates in the State of Bihar to appoint an inspecting officer to perform the duties of inspection of non- transport personal vehicle sold by the dealers/agencies along with its first registration under the provision of Section 44 of the Act on the following conditions: (i) The concerned dealers/agencies shall nominate its competent officer/employee after written approval from the District Transport Officer to inspect the vehicle at the time of its first registration and verify the entries of Form-20 under the Rules. (ii) The said authority shall be limited only to those new non transport vehicles which were sold by the same dealer/agency. (iii) For this purpose, the seller of the vehicle will not take any additional fees from the purchaser. (iv) Such agency/dealer shall keep a register for the said purpose in which all the facts relating to the inspection and Form-20 for registration of the vehicle shall be maintained. The Registering Officer or its authorised - 7 - officer shall inspect the said register from time to time and for any mistake or irregularity found in such certificate the concerned dealer/agency shall be fully responsible. 12. Section 44 of the Act provides that the Registering Authority shall before proceeding to register a motor vehicle, other than a transport vehicle, require the person applying for registration of the vehicle or, as the case may be, for renewing the certificate of registration to produce the vehicle either before itself or such authority as the State Government may by order appoint in order that the Registering Authority may satisfy itself that the particulars contained in the application are true and that the vehicle complies with the requirements of the Act and the Rules made thereunder. 13. The provision of Section 65 of the Act further provides that (1) a State Government may make Rule for the purpose of carrying into effect the provisions of Chapter IV of the Act, other than the matters specified in Section 64, (2) without prejudice to the generality of the foregoing power, such rules may provide for (a) the conduct and hearing of appeals that may be preferred under this Chapter (the fees to be paid in respect of such appeals and refund of such fees), (b) the appointment, functions and jurisdiction of registering and other prescribed authorities, ……………………. 14. Rule 47 of the Rules is with respect to application for registration of motor vehicles and under the said Rule Form 20 has been prescribed which is a proforma application of the - 8 - purchaser before the registering authority for registration of a motor vehicle and at the end of the said application in Form-20 a certificate of inspection of motor vehicle has been mentioned, according to which the inspecting authority certifies that the particulars contained in the application were true and the vehicle complies with the requirements of the Act and the Rules and below that there is an office endorsement which has to be signed by the registering authority. 15. In the said circumstances, it is quite apparent that Form 20 has to be certified not by the manufacturer or its agent rather it has to be certified by the inspecting authority, namely Motor Vehicle Inspector or Inspector of Motor Vehicles which is defined under Section 2(h) of the Bihar Motor Vehicles Rules,1992 meaning to be any officer appointed as such by the State Government to perform functions of Motor Vehicle Inspector which included an officer having the requisite qualifications and authorisation by the State Government to perform the functions of Motor Vehicle Inspector which includes Assistant Motor Vehicles Inspector also. 16. The provision regarding appointment of Motor Vehicle Officers is made in Section 213 of the Act which provides that (1) the State Government may, for the purpose of carrying into effect the provisions of the Act, establish a Motor Vehicles Department and appoint its officers thereof such persons as it thinks fit and (2) every such officer shall be deemed to be a public officer within the meaning of Indian Penal Code, (3) the State Government may make rules to regulate the discharge of officers - 9 - of the Motor Vehicles Department and in particular and without prejudice to the generality of the foregoing powers to prescribe the uniform to be worn by them……………., (4) The Central Government may, having regard to the object of the Act by notification in the official Gazette, prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such…………... 17. From the aforesaid provisions of law, especially Rule 47 of the Rules it is quite apparent that Form 20 is a proforma of application of registration of motor vehicle, which has to include several informations and has to be accompanied by several papers etc. as provided in the said Rules which can be properly looked into, certified and endorsed only by such inspecting authority or registering authority appointed in accordance with the aforesaid provisions of law. 18. Chapter-V of the Rules is regarding construction, equipment and maintenance of motor vehicles detailing each part of the vehicles which have to be inspected by the Motor Vehicle Inspector and according to which certificate has to be given by the Inspecting Authority below the application for registration under Form 20. The said provision and Form 20 is the Central Rules and not the State Rules and the authorities concerned cannot circumvent the same in such manner. 19. After considering the provisions of law and the legislative intention as well as the facts and circumstances in their entirety it is quite apparent that the law has given power to the State Government for appointment of its officers as Motor Vehicle - 10 - Inspectors. The power given under Section 213 is a statutory power which can be exercised only by the authority to which the said power has been given, namely the State Government, and in that provision it is specifically mentioned that a Motor Vehicles Department has to be established and competent officers have to be appointed in the said department for the object of the Act which included inspection. Hence, the State Government and its Department alone could have exercised the said power of appointing Motor Vehicle Inspector from among its officers and while exercising that power the State Government or its Department cannot abdicate the said responsibility in favour of any one else, including the agency/dealer. 20. Furthermore, the said power has been conferred upon the State Government for public reasons involving convenience, safety, security and welfare of the public at large. Such powers conferred for public reasons and for benefit coupled with a duty to exercise it cannot be shirked or evaded or abdicated and the authorities of the State Government and its Department are duty bound to comply the same without sharing it with any one else including any agency/dealer. Reference in this regard may be made to the two decisions of the Apex Court in case of Commissioner of Police, Bombay v. Gordhandas Bhanji, reported in AIR 1952 SC 16 as well as in case of the Purtabpur Company Ltd. Vs. Cane Commissioner of Bihar and others, reported in AIR 1970 SC 1896. 21. In view of the aforesaid settled principles of law, any such agent or dealer cannot legally exercise the said - 11 - power/authority given by the Statute to the State Government and its Department and hence neither they are entitled to, nor can they be legally authorised to give such certificate as required in Form 20 of the Rules. Hence, the impugned notification is against the specific provisions of the Act and the Rules. Such irresponsible notification, apart from being illegal and without jurisdiction gives opportunity to unscrupulous persons to cheat the customers and put the State to loss. 22. In the said circumstances, the impugned notification issued vide memo no.997 dated 08.03.2011 by the Secretary, Department of Transport, Bihar, Patna (Annexure-1) being violative of the specific provisions of law cannot be legally allowed to continue and is accordingly quashed. The Motor Vehicle Inspectors of the Department will continue to perform their duties as they had been performing before the issuance of the impugned notification and the respondents are restrained from exercising their powers given by the statute in this manner. 23. With the aforesaid observation, this writ petition is allowed. Sunil (S. N. Hussain, J.)