All Haryana Tourist Transport ... vs Union Of India & Others
2009 Latest Caselaw 94 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

       WRIT PETITION (CRIMINAL) No. 1532 of 2007
               & Crl M A No. 13580/2007

                                   Date of decision: January 15, 2009

       ALL HARYANA TOURIST TRANSPORT
       WELFARE ASSOCIATION GURGAON ... PETITIONER
               Through Mr. Nidesh Gupta, Senior Advocate
               with Mr.Atul Kumar and
               Mr. Tarun Gupta, Advocates

                       versus

        UNIONOF INDIA & ORS             ...... RESPONDENTS
                Through : Ms.Mukta Gupta, Senior Standing
                Counsel for State.
                Mr. S.K. Dubey with Mr.Nitin Kumar Sharma
                and Mr. Deepak Sharma, Advocate for UoI.

CORAM
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S. MURALIDHAR

       1. Whether Reporters of local papers may be
       allowed to see the judgment?
       2. To be referred to the Reporter or not?
       3. Whether the judgment should
       be reported in Digest?

                                JUDGEMENT

15.01.2009

S. MURALIDHAR, J.

Crl M Application No. 5944/2008

Having heard learned counsel for the parties and for the reasons

stated in the application, the application for amendment is allowed.

The application is disposed of. The amended writ petition is taken

on record.

Writ Petition (Crl) No. 1532 of 2007 & Crl M A No. 13580/2007

1. This writ petition by All Haryana Tourist Transport Welfare

Association, Gurgaon seeks a writ to quash an order dated 18th

October 1997 passed by the Deputy Commissioner of Police

(Traffic) as illegal, ultra vires and discriminatory. The petition also

seeks a declaration that Rule 9 (1) of the Delhi Control of Vehicular

& other Traffic and Road and Street Regulations, 1980

(„Regulations‟) is bad in law and prays for a writ to quash the same.

2. The Petitioner claims that it has more than 100 members and

"represents the interest of a large number of cab owners." It is

stated that in Writ Petition (Criminal) No.878 of 2007 hereinafter

referred to as the „Blue Line case‟ by an order dated 3rd October

2007 this Court directed the Delhi Police to insert an advertisement

in all leading newspapers informing the call centre vehicle owners,

users and drivers that running of a light commercial vehicles

(„LCV‟) at speeds beyond 40 kms/hour was in violation of the order

passed by the Supreme Court in M.C.Mehta v. Union of India

reported in (1997) 8 SCC 770. It was further directed that the

Administration would make it clear that any violation of the speed

limit fixed by the Supreme Court may result in impounding or

detaining of the vehicles from the first week of November 2007,

subject to further orders of this Court.

3. In compliance with the said order dated 3rd October 2007 the

Delhi Traffic Police issued an advertisement in the newspapers dated

21st and 22nd October 2007. At the subsequent hearing of the Blue

Line Case on 19th November 2007, this Court passed the following

order:

"Ms. Mukta Gupta, Standing Counsel for the State submits that the present application is not maintainable. In support of her contention, Ms. Gupta has placed reliance on Regulation (1) of "The Delhi Control of Vehicular and Other Traffic on Roads and Streets Regulations, 1980", which reads as follows: "9. No vehicle to be so driven as to endanger safety (1) The vehicle shall be driven on ridden in any street or road in which a way as to endanger the safety of, or cause obstruction or inconvenience to the public or at a speed in excess of the maximum speed limit fixed for the street or road by the Deputy Commissioner of Police (Traffic), Delhi by notification."

Pursuant to the above power conferred by Regulation 9, the Delhi Police has issued a notification dated 18th October 1997, which prescribes the speed limit as under: "In supersession of all previous orders issued from time to time by the District Magistrate, Commissioner of Police, Delhi etc. 1, Qamar Ahmed, Dy. Commissioner of Police, Traffic, Delhi in exercise of the powers conferred upon me under Section 29

(1) (B) of Delhi Police Act, 1978 read with Rule 9 (1) of the Delhi Control of Vehicular and Other Traffic on Roads & Streets Regulations 1980, do hereby declare the maximum speed limit (where Road Conditions permit) of all transport vehicles, TSRs, Jeep, Cars, Scooters as mentioned below:

Speed in KMPH

Jeep, cars & two All Transport Wheelers etc. vehicles, TCR

1. Trans Yamuna area, Area

Indira Gandhi Marg i.e. Inside Ring Road.

2. Ring Road, Indira Gandhi Marg

3. National Highways beyond outer

Dhaula Kuan, Mathura Road beyond Ashram Chowk

This order shall come into force with immediate effect. This order shall be published for information of general public in the official gazette and by affixing a copy on the notice boards of the officers of all District, DSSP and Police Stations in Delhi/New Delhi."

It has been submitted by Ms.Mukta Gupta, the learned Standing Counsel for the State that for all transport vehicles including Call Centre Cabs a speed limit of 40 kms, has been prescribed as per the above notification. Counsel for the applicant

seeks time to respond. Response be filed before the next date of hearing. List on 30th November 2007."

4. According to the Petitioner, the order dated 18 th October 1997

(which has been reproduced in the above order dated 19th November

2007 of this Court in the Blue Line Case) has not yet been notified

in the official gazette. It is contended that the said notification is not

in accordance with Section 28 of the Delhi Police Act 1978 („Act‟);

that it has been issued without the previous sanction of the

Administrator and is therefore unsustainable in law. Without

prejudice to these contentions, it is averred that in the roads of Delhi

no such speed limit for call centre cabs has been fixed and that

commercial cars, jeeps etc. have not been treated as transport

vehicles for the purpose of fixing speed limits. The further

contention is that since call centre cabs are not light commercial

vehicles, they are not covered by the said notification. It is stated

that as per notification SO 436 (1) dated 12th June 1989 issued under

Section 41 (4) of the Motor Vehicles Act, 1988 („MV Act‟), the

Central Government has specified the types of motor vehicles and as

per the said notification while every four wheeler goods carriage is a

light motor vehicle („LMV‟), every LCV is not a light goods vehicle.

Further the Central Government had exercised its power under

Section 112 (1) of MV Act and issued a notification stipulating the

maximum speed limit in public places for LMVs at 65 kmph which

was higher than 40 kmph fixed by the Delhi Traffic Police by the

notification dated 18th October 1997. It is stated that while the

members of the Petitioner Association are willing to take all steps

for reduction of accidents, it is not feasible to curtail the maximum

speed of a car to 40 Kmph on a highway. Therefore, the fixing of

the aforementioned speed limit was arbitrary and unreasonable apart

from the inconsistent with the MV Act. The present writ petition

was filed on 27th November 2007 and notice was directed to issue on

29th November 2007. Thereafter on 25th January 2008 the Deputy

Commissioner of Police (Traffic), Delhi issued another notification

under Regulation 9 (1) of the Regulations fixing the maximum speed

limit for all transport vehicles including TSRs at 40 kmph and for

cars, jeep, two wheelers etc. at 60 kmph in, inter alia, on all National

Highways beyond outer ring road, Gurgaon Road beyond Dhaula

Kuan and Mathura Road beyond Ashram Chowk. It was stated

therein that this notification would supercede the previous

notifications.

5. Consequent upon the issuance of the aforementioned notification

the Writ Petitioner filed an application to amend the writ petition to

challenge the said notification dated 25th January 2008 as well. This

application being Crl Miscellaneous Application No. 5944 of 2008

has been heard along with the main writ petition itself.

6. We have heard the submissions of Mr. Nidesh Gupta, learned

Senior counsel appearing for the Petitioner and Ms. Mukta Gupta,

learned Senior standing counsel appearing for the respondent

respectively.

7. In the first place it is necessary to note that Section 112 of MV

Act provides the overall limits of speed to be fixed either by the

Central Government or the State Government. Under sub-section

(2), the State Government can fix speed limits for any specified class

or description of motor vehicles or for any particular area or for

particular road. Section 112 reads as under:

"Section 112. Limits of speed - (1) No person shall drive a motor vehicle or cause or allow a motor vehicle to be driven in any public place at a speed exceeding the maximum speed or below the minimum speed fixed for the vehicle under this Act or by or under any other law for the time being in force.

Provided that such maximum speed shall in no case exceed the maximum fixed for any motor vehicle or class or description of motor vehicles by the Central Government by notification in the Official Gazette. (2) The State Government or any authority authorized in this behalf by the State Government may, if satisfied that it is necessary to restrict the speed of motor vehicles in the interest of public safety or convenience or because of the nature of any road or bridge, by notification in the Official Gazette, and by causing

appropriate traffic signs to be placed or erected under Section 116 at suitable places, fix such maximum speed limits or minimum speed limits as it thinks fit for motor vehicles or any specified class or description of motor vehicles or for motor vehicles to which a trailer is attached, either generally or in a particular area or on a particular road or roads.

(c) Provided that no such notification is necessary if any restriction under this section is to remain in force for not more than one month.

(3) Nothing in this section shall apply to any vehicle registered under Section 60 while it is being used in the execution of military manoeuvres within the area and during the period specified in the notification under sub-section (1) of Section 2 of the Manoeuvres, Field Firing and Artillery Practice Act 1938 (5 of 1938)."

8. Further Section 28 of the Delhi Police Act 1978 vests the

Commissioner of Police with power to notify in the Official Gazette

regulations for regulating the traffic. The said provision reads as

under:

"28. Power to make regulations for regulating traffic and for preservation of order in public places, etc.

1. The Commissioner of Police may, by notification in the Official Gazette, make regulations to provide for all or any of the following matters, namely:-

(a) licensing and controlling persons offering themselves for employment, outside railway stations and other places where passengers arrive, for the carriage of passenger‟s baggages and fixing and providing for the enforcement of a scale of charges for the labour of such person so employed;

(b) regulating traffic of all kinds in streets and other public places, and the use of streets and other public places by persons riding, driving, cycling, walking or leading or accompanying cattle, so as to prevent danger, obstruction or inconveniences to the public."

9. Pursuant to the aforementioned power, the 1980 Regulations

have been made. Regulation 9 reads as under:

"9. No vehicle to be so driven as to endanger safety - (1) The vehicle shall be driven or ridden in any street or road in which a way as to endanger the safety of, or cause obstruction or inconvenience to the public or at a speed in excess of the maximum speed limit fixed for the street

or road by the Deputy Commissioner of Police (Traffic), Delhi by notification. (2) No person shall in any manner prevent any other person or liicle from passing him or any vehicle or animal of his care on any or road or prevent, interrupt or hinder the free passage (including overtaking and passing) of any person, vehicle or animal on any street, or 11 (d) and shall, for the purpose of allowing such passage, keep his vehicle or animal as near the left hand side of the street as is possible, having regard to the condition of the street or road, or the traffic condition thereon."

10. It may be mentioned at this stage that 1980 Regulations were

published in the Official Gazette on 26th April 1980. A copy of the

gazetted Regulations has been placed before this Court. With the

Regulations specifically empowering the Deputy Commissioner of

Police to fix the maximum speed limit, it cannot be said that the

notification issued in exercise of the delegated legislative power is

ultra vires the Act. We reject the argument of the petitioner that the

impugned notification dated 18th October 1997 and the subsequent

notification dated 25th January 2008 suffer from vice of arbitrariness

or being ultra vires the Act. We hold that the Deputy Commissioner

of Police acted within the scope of the power conferred on him by

the Act and the Regulations in fixing the speed limits.

11. We are also not impressed with the submission of the petitioner

that call centre cabs cannot be treated as light commercial vehicles.

It is seen that under the MV Act and Rules two kinds of permits are

issued by the State where the vehicle is registered which do not

require the counter signature or approval of the other State i.e. (1)

National permits for goods vehicle and (2) Tourists permits for

tourists vehicles for passengers. The permits granted in all other

cases in any one State are not valid in the other State unless

countersigned by the State Transport Authority of the other State. It

has been stated in the affidavit dated 4th February 2008 filed by Shri

D.M. Spolia, Principal Secretary-cum-Commissioner (Transport),

Government of National Capital Territory of Delhi that as far as the

call centre cabs are concerned, the State Transport Authority, Delhi

has not counter signed any permit issued by his counterpart in

Haryana. It is further clarified that the tourist vehicles for which

permit have been issued under Rule 85 of the Central Motor

Vehicles Rules, 1989 can only carry tourists to visit places of

interest. However, such tourist vehicles "cannot ferry call centre or

BPO employees. These tourist vehicles cannot operate as stage

carriages." It is stated that the name of the petitioner suggests that it

is an association of tourist transport vehicle operators and as such its

members cannot use such vehicles to ferry employees of a call

centre or of a BPO.

12. Without going into the aforementioned controversy raised by the

Transport Department, it appears to this Court that call centre cabs

do not stand on the same footing as private cars for the purpose of

the MV Act. It is, therefore, not possible to accept the contention of

the petitioner that by treating the call centre cabs as vehicles

different from private cars for the purpose of fixing maximum speed

limits, the call centre cabs are being subject to hostile

discrimination. To this Court it appears that classifying the call

centre cabs, which have been ferrying the employees of the BPO or

call centres, different from private vehicles for the purpose of

maximum speed limits does not suffer from the vice of arbitrariness

or discrimination.

13. It was urged by the petitioner in its rejoinder affidavit dated 12th

May 2008 that when compared to private vehicles, call centre cabs

were hardly involved in fatal or non-fatal accidents. This does not

appear to be correct. Ms. Mukta Gupta, learned Senior standing

counsel has placed before us the details of prosecution against call

centre cabs between 1st January 2008 to 31st July 2008. The number

of instances of such vehicles being challaned in the aforementioned

8 months period for dangerous driving is 1198. For driving without

a speed governer it is 1658. The total number of challans for all

violations by call centre cabs the period of the above eight months in

2008 alone is 7033. This is a deterioration of the situation in the

previous year 2007. The total challans issued to the call centre cabs

in 2007 were 4726. Notwithstanding the number of challans issued

to private cars, it is seen that the call centre cabs are indeed involved

in a large number of traffic violations. A substantial number of

these challans are for dangerous driving and driving without the use

of a speed governor.

14. Therefore, even on a factual basis, there appears to be a

reasonable nexus between the speed limit stipulated by the

impugned notifications and the legitimate aim of ensuring safe

driving of call centre cabs. In the circumstances, it cannot be said

that the fixing of maximum speed limits for call centre cabs by the

impugned notifications is unreasonable or arbitrary.

15. We therefore, find no merit in this writ petition, and it is

dismissed as such with no order as to costs. The pending application

also stands dismissed.

S. MURALIDHAR, J.

CHIEF JUSTICE January 15, 2009 rk