Full Judgment Text
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PETITIONER:
ISHWAR SINGH BAGGA & ORS. ETC.
Vs.
RESPONDENT:
STATE OF RAJASTHAN ETC.
DATE OF JUDGMENT19/11/1986
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
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) Depart-
ment 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 car-
riages 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 ap-
pointment 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
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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 administra-
tive and disciplinary control of the State Government di-
rectly.
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 inten-
tion 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 Corpora-
tion 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 liabili-
ties from which the Corporation is expressly exempted under
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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 super-
vision 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 travel-
ling 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 magni-
tude 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 inter-
preted 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 supervi-
sion, inspection and control in respect of the motor vehi-
cles of the Corporation leads to grave public suffering and
sometimes to disasters. They should not take it for granted
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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 G-
H, 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 compensa-
tion 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 compensa-
tion 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]
JUDGMENT:
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 Notifica-
tion 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 NOTIFICA-
TION
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)
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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 jurisdic-
tions 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 respec-
tive
depot.
3. Traffic Inspectors 3. Within the
jurisdiction
of their respec-
tive
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 detain-
ing the motor vehicles belonging to the petitioners/appel-
lants 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
Krishna Bus Service Pvt. Ltd. Vs. State of’ Haryana and
Others, [1985] 3 S.C.C. 711, it is contended that the ap-
pointment 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 car-
riages 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 out-
side 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 that-
even 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
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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 contra-
vention of any condition of such permit relat-
ing 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 offi-
cer or person has reason to believe that a
motor vehicle has been or is being used with-
out 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 acknowledge-
ment in respect thereof.
Provided further that where a motor
vehicle has been seized and detained under
this section for contravention of the provi-
sions 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 provi-
sions 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 authori-
ties 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 exer-
cise 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 (--)
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(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 immedi-
ate 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 of-
fender 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)
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of section 42 of the Act, or in contravention of any condi-
tions 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 certifi-
cate 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 auto-
309
rickshaw, a tractor, a lorry etc. etc., the expression
’motor vehicle’ having been defined by the Act in sub-
section (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 regis-
tered 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 registra-
tion 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 passen-
ger 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 condi-
tions 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 tempo-
rary safe custody. A report or complaint, as the case maybe,
also may be filed by him before the Magistrate for taking
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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 Govern-
ment 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 sec-
tion 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 there-
in. 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 Corpora-
tions 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 trans-
port 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 manage-
ment 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 Govern-
ment, 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 consulta-
tion 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 Govern-
ment, 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
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311
unable to perform its duties or has persistently made de-
fault 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 Govern-
ment but it is an independent body corporate established
under the statute. Section 14 of the Corporations Act pro-
vides 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 Corpora-
tion may appoint a Secretary and such other officers and
employees as it considers necessary for the efficient per-
formance 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 offi-
cers 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 Ac-
counts 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 Corpo-
ration and all other officers and employees of the Corpora-
tion 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 employ-
ees 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 con-
cessional 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 busi-
ness of the Corporation.
There is no provision in the Corporations Act authoris-
ing the Corporation to permit any of its officers to exer-
cise the powers under section 129-A of
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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 there-
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under shall have effect notwithstanding anything inconsist-
ent 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 Corpo-
ration 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 accord-
ance 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 im-
posed 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 inter-
ests of the travelling public. It is thus clear that the
Corporation is one of the many operators of the motor vehi-
cles 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 empow-
ered to exercise certain powers under the Act should exer-
cise 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 some-
times 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 relat-
ing 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
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VII with which police officers have been
invested cannot be exercised by officers of
other departments of the Provincial Govern-
ment. It is desirable that when special de-
partments are set up for the purpose of admin-
istering the Act, the officers of these de-
partments 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 pre-
scribe 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. Sub-
section (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 produc-
tion of any register or other document maintained in pursu-
ance of the Act, and take on the spot or otherwise state-
ments 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 exercisa-
ble 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 administra-
tive and disciplinary control of the State Government di-
rectly. 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 provi-
sions in that regard. It is a different matter if a private
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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 offi-
cer 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-bail-
able 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 li-
cence, 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 li-
cence 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 inter-
preted 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 Corpo-
ration 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
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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 neces-
sary 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 Notifica-
tion. 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 im-
press 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 there-
under 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 compensa-
tion out of the fine to certain persons. The orders direct-
ing 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.
317