Arun Kumar vs State Transport Authority & ...
2009 Latest Caselaw 3263 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 20.08.2009

+      WP (C) 6502/2008

ARUN KUMAR                                                 ...    Petitioner

                                   - Versus -

STATE TRANSPORT AUTHORITY & OTHRES                         ...    Respondents

Advocates who appeared in this case:-

For the Petitioner : Mr R.K. Kapoor with Mr Harish Chandra Pant For the Respondents : Mr Rajeev Nanda with Mr Sanjay Dubey and Mr Pankaj Singh

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MS JUSTICE VEENA BIRBAL

1. Whether Reporters of local papers may be allowed to see the judgment ? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in Digest ? YES

BADAR DURREZ AHMED, J (ORAL)

1. This writ petition is directed against the seizure / detention of

vehicles belonging to the petitioner, bearing registrations numbers, RJ-

09-PA-0065, RJ-09-PA-0465, RJ-09-PA-0665, RJ-09-PA-0865, RJ-01-

PA-2265, RJ-01-PA-2465, RJ-01-PA-2665, RJ-01-PA-2865. The

seizure / detention of the said vehicles has been challenged on the

ground that they have been seized / detained under Section 207 (1) of

the Motor Vehicles Act, 1988 (hereinafter referred to as „the said Act‟),

without there being any rules for the same framed by the Central

Government. In the same breath, the petitioner has challenged the

Delhi Motor Vehicles (Second Amendment) Rules, 2004, whereby sub-

rules (7), (8), (9) and (10) have been added after Rule 123(6) of the

Delhi Motor Vehicles Rules, 1993. The said sub-rules (7), (8), (9) and

(10), which have been inserted by virtue of the Delhi Motor Vehicles

(Second Amendment) Rules, 2004, are as under:-

"(7) Any police officer(s) or the person(s) appointed as officer(s) under Section 213 of the Act and specified as such in rule 123, not below the rank of a Sub- Inspector, shall have power, if they have reasons 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) 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, to seize and detain the vehicle, and shall keep the same in safe custody of the nearest police station or police post or traffic police circle office or any other designated place declared by the Delhi Police or in the designated impounding pits of the Transport Department against a proper receipt to be given by him in Form O.S.S. to the owner or in charge of the vehicle from whose custody the vehicle was seized and detained.

(8) The officer in charge of the Police Station or Police Post or Traffic Inspector of the circle or the officer in charge of the impounding pit shall ensure that the vehicle is kept in safe custody along with the goods contained therein, if any, at the time of keeping the same in his custody.

(9) The concerned person may get the vehicle released within a period of ten days from the date of seizure or detention of the vehicle, as the case may be, after complying with the requirements of law and on approval of the competent authority.

(10) In case the vehicle is not released within the period specified in Sub-rule (9), then, rental charges at the rate of one hundred rupees per day, subject to a maximum of one thousand rupees, shall be charged after the expiry of the said period of ten days from the date of seizure or detention of the vehicle."

By virtue of the said amendment, the Government of NCT of Delhi has

prescribed the manner in which the power under Section 207(1) of the

said Act has to be exercised in respect of seizure and detention of the

vehicles.

2. At this juncture, we may point out that in CW 4686/1998, entitled

M/s Sreenath Travel Agency and Another v. Lt. Governor of Delhi

and Others [decided on 07.07.2003], the question of seizure / detention

of motor vehicles under Section 207 of the said Act was in issue. The

point raised in that petition was that as per Section 207, the seizure and

detention was to be done only in a „prescribed manner‟ and, „prescribed

manner‟, as defined under the Act by virtue of Section 2 (32), meant

"prescribed by the rules". Since no rules had been framed, such seizure

and detention would be invalid. One of us (Badar Durrez Ahmed, J)

heard that petition and agreed with the point urged on behalf of the

petitioner and directed that, since no rules had been framed and,

accordingly, no manner of seizure and detention had been prescribed,

the power to seize and detain, itself, could not be exercised. It was also

held that until the rules prescribing the manner of seizure / detention of

vehicles under Section 207(1) of the said Act are made and enforced,

no vehicle could be impounded in exercise of the power conferred

under the said Section. The Lt. Governor of Delhi, being aggrieved by

the said decision, preferred an appeal being LPA No.567/2003. During

the pendency of the appeal, the rules impugned herein, came to be

framed by the Government of NCT of Delhi. In view of the fact that

rules had been framed under Section 207 (1) read with Section 212 of

the said Act, the learned counsel appearing on behalf of the Lt.

Governor of Delhi, did not press the appeal and the appeal was

dismissed as withdrawn by virtue of the order dated 16.07.2004, by the

Division Bench hearing the said LPA No.567/2003.

3. The present petition challenges the said rules on the ground that

the Government of NCT of Delhi did not have the power to frame such

rules, which means that there are no rules which exist even today and,

therefore, the petitioner‟s vehicles could not be seized / detained. The

learned counsel for the petitioner drew our attention to the scheme of

the Act. He submitted that the Act has been divided into several

Chapters and at the end of most of the Chapters, there are provisions

which empower either the State Government or the Central

Government to make rules in respect of the contents of the respective

Chapters. For example, Chapter II, which deals with „licencing of

drivers of motor vehicles‟, contains Sections 27 and 28, which

empower the Central Government and the State Government,

respectively, to make rules. Chapter III, which deals with „licencing of

Conductors or Stage Carriages‟, has only empowered, by virtue of

Section 38, the State Government to make rules in respect of the

provisions of that Chapter. Similarly, Chapter IV, which deals with

„registration of motor vehicles‟, has once again empowered, by virtue

of Sections 64 and 65, the Central Government and the State

Government, respectively, to make rules in respect of the subject matter

of the said Chapter IV. There are other Chapters which indicate that

either the Central Government or the State Government or both have

been given powers to make rules in respect of the provisions contained

in those Chapters.

4. The learned counsel for the petitioner then drew our attention to

Chapter XIII, which deals with „offences, penalties and procedure‟ and

is comprised of Sections 177 to 210. There is no express provision in

this Chapter with regard to the power of making rules. Section 207 of

the said Act falls within this Chapter. It is, therefore, the contention of

the learned counsel for the petitioner that since the Motor Vehicles Act,

1988, is a Central Act, the only rule making power would be that of the

Central Government, when no specific rule making power has been

given to the State Governments in respect of the matters contained in

Chapter XIII.

5. The learned counsel for the petitioner placed reliance on the

decision of a Division Bench of this court in the case of Pioneer Silk

Mills Pvt. Ltd. v. Union of India: 1995 (80) ELT 507 (Del.). He made

particular reference to paragraphs 37, 38, 39 and 40 of the said decision

to submit that insofar as penalty provisions are concerned, specific

power has to be indicated and the same cannot be inferred by necessary

implication.

6. The learned counsel appearing on behalf of the respondent

submitted that the power to make rules is discernible from Section 207

(1) itself and that the power has been clearly given to the State

Government. He referred to section 207 of the said Act which reads as

under:-

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 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 authority or officer may deem fit to impose."

7. Referring to sub-Section (1) of Section 207, the learned counsel

submitted that at the commencement of the said provision itself, it is

indicated that "any police officer or other person authorized in this

behalf by the State Government may... ." This, according to him,

clearly indicates that the police officer or person has to be authorized

by the State Government and, therefore, it is the State Government

which has to prescribe the manner in which the vehicles should be

seized and detained. He submits that the power of seizure and

detention, which has been given to the State Government, is an implied

power to make rules for such seizure and detention. According to him,

the rule making power is embedded in Section 207(1) itself and,

therefore, the State Government had the power to prescribe the manner

in which the vehicles are to be seized and detained for contravention of

the provisions of Sections 3 or 4 or Section 39 or where the vehicle is

without permit as required under sub-Section (1) of Section 66 of the

said Act or where the vehicle has contravened any condition of such

permit etc. The learned counsel for the respondent placed reliance on

the following decisions:-

i) Jamal Uddin Ahmad v. Abu Saleh Najmuddin and Another: AIR 2003 SC 1917;

ii) Reserve Bank of India and Others v. Peerless General Finance and Investment Company Ltd and Another: 1996 (1) SCC 642.

8. We have heard the counsel for the parties and, at the outset, we

may state that we are inclined to agree with the counsel for the

respondent. As mentioned above, in the case of M/s Sreenath Travel

Agency and Another v. Lt. Governor of Delhi and Others (supra), the

seizure and detention of vehicles under Section 207 (1) of the said Act

was found to be illegal on the ground that there were no rules

prescribing the manner of such seizure and detention. A direction had

also been given that unless and until the rules are framed prescribing

the manner for seizure and detention, any further seizure and detention

would be illegal under Section 207 (1) of the said Act. Subsequent

thereto, the State Government has come out with the rules and

prescribed the manner in which the vehicles are to be seized and

detained. It has even authorized personnel equivalent to and above the

rank of Sub-Inspectors to seize and detain such vehicles. While it is

true that there is no express provision in Chapter XIII or anywhere in

the Act empowering the State Government or the Central Government,

for that matter, to make rules with regard to prescribing the manner of

seizure and detention of vehicles under Section 207 (1), we are of the

view that the power is traceable to the provisions of Section 207 (1)

itself, when the State Government has been empowered to authorize

personnel to seize and detain vehicles which contravene the provisions

of the said Act. The State Government, thus, impliedly has the power

to prescribe the manner for seizing and detaining such vehicles. Now

that the State Government has indicated such prescribed manner by

formulating rules by virtue of the 2004 amendment to the 1993 rules,

the prescribed manner which was absent earlier, is now in place.

Therefore, the petitioner can have no grievance with regard to the fact

that the seizure and detention of the vehicles was not in accordance

with the prescribed manner. There is, therefore, no question of there

being any challenge to the said rules as, according to us, the same are

intra vires the Motor Vehicles Act, 1988 and, in particular, Section

207(1) of the said Act itself. The writ petition is accordingly

dismissed.

9. We make it clear that the learned counsel for the petitioner had

only pressed for prayers „a‟, „b‟ and „c‟ before us and had not pressed

for prayer „d‟, seeking liberty to raise that challenge in an appropriate

matter. We grant that liberty. This writ petition stands dismissed. No

costs.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J August 20, 2009 dutt