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PETITIONER: M/s. KRISHNA BUS SERVICE PVT. LTD. ETC. ETC.

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT25/07/1985

BENCH: VENKATARAMIAH, E.S. (J) BENCH: 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

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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

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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.

JUDGMENT:      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

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(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

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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

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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

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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. 339