Andhra HC (Pre-Telangana)
P. Ravindranath Reddy And Ors. vs Government Of Andhra Pradesh Rep. By Its ... on 30 December, 1991
Equivalent citations: 1993(1)ALT589
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
JUDGMENT M.N. Rao, J.
1. Writ Appeal Nos. 233 and 239 of 1991 are directed against interlocutory orders passed by a learned Single Judge in WVMP Nos. 213 and 229 of 1991 in WPMP Nos. 18648 and 18644 of 1990 in Writ Petition Nos. 14532 and 14530 of 1990 vacating the interim directions granted earlier by another learned single Judge by which the Regional Transport Authorities were directed to release the vehicles seized by them for contravention of the provisions of Section 192 of the Motor Vehicles Act provided in respect of each of the seized vehicles a sum of rupees one thousand was deposited. At the request of the learned counsel for both sides the main writ petitions themselves are taken up for hearing along with the connected writ petitions. In writ petitions - Writ Petition Nos. 14530 and 14811 of 1990 and 4045 and 4196 of 1991 - the petitioners are challenging the constitutionality of sub-section (1) of Section 200 and sub-section (1) of Section 207 of the Motor Vehicles Act; in other writ petitions, the legality of G.O.Ms.No. 108 dated 12-4-1990 and G.O.Rt.No. 947 dated 4-8-1990 are challenged. As common questions arise in all these writ petitions, we deem it appropriate to dispose of the same by this common judgment.
2. All the petitioners herein are transport operators holding contract carriage permits. The petitioners in Writ Petition No. 4045 of 1991 exclusively hold All India Contract Carriage permits. According to the petitioners, the writ petitions came to be filed in the following circumstances. By G.O.Ms.No. 108, Transport, Roads and Buildings, dated 12-4-1990, the Government have notified officers not below the rank of Assistant Motor Vehicles' Inspectors of the Transport Department and officers not below the rank of the Sub-Inspectors of Police (Traffic) of the Police Department in the twin cities, and Inspectors of Police in other places to compound the offences under Sections 177,178,179,180,181, 182, sub-sections (1) and (2) of Section 183, Sections 184,186,189,191,192,194, 196 and 198 and also prescribed the minimum amounts to be collected by the aforesaid officers while compounding the offences. For misuse of contract carriage, having more than 13 seats, as a stage carriage, an offence punishable under Section 192(1) of the Motor Vehicles Act, the minimum amount of compounding fee prescribed is Rs. 500/-. The proviso to paragraph 2 of G.O.Ms.No. 108 dated 12-4-1990 lays down that "for every second and subsequent offence committed by the same person, where some recorded evidence is forthcoming, the compoundable amount shall be multiple of the quantum fixed for the offence multiplied by the number of the offences (i.e., first, second, third and so on)". By G.O.Rt.No. 947, an addendum was issued to the notification covered by G.O.Ms.No. 108 to the effect that after the abovesaid proviso, the following clause shall be added, namely, "And such a compoundable amount shall not exceed the maximum, fine prescribed under the relevant charging sections attracted by the said offences."
Section 200 of the Motor Vehicles Act, 1988, which came into force with effect from 1-7-1989, provides for composition of certain offences. The aforesaid Government order was issued in exercise of the power under Section 200 by the State Government.
3. Section 127-B of the repealed Motor Vehicles Act, 1939, provided for composition of certain offences. The nature of the offences compoundable under the old Act and the new Act are one and the same. The two Government orders were issued under the old Act - G.O.Ms.No. 394 dated 27-8-1983 and G.O.Ms.No. 1173 dated 11-11-1987 - under which the amount prescribed for compounding was Rs. 250/-. Even after the new Act came into force, by G.O.Ms.No. 220 dated 14-8-1989, the amount prescribed for compounding was only Rs. 250/-. By the impugned G.O.Ms.No. 108 dated 12-4-1990, the compoundable amount was enhanced from Rs. 250/- to Rs. 500/- without stating any reasons.
4. The grievance of the petitioners is that the authorised officers of the Transport Department are indiscriminately subjecting the contract carriage operators to untold harassment; whenever a contract carriage is in operation, the authorities choose highly uninhabited and forest areas for subjecting the vehicles to checks and, irrespective of the violation of any of the conditions of the permit, are insisting upon the drivers to append their signatures to the vehicle check reports (VCRs) and also compelling them to compound the offences on behalf of the absentee owners of the vehicles and thus collecting thousand rupees every time a check is made. As it is impossible to make any alternate arrangements in the event of the vehicle being detained by the authorities en route, the driver invariably accepts the contents of the vehicle check report by signing on it and whenever the same vehicle is subjected to further checks, applying the multiplier contained in G.O.Ms.No. 108 read with G.O.Rt.No. 947, the authorities are collecting higher amounts upto Rs. 3,000/- depending upon the alleged number of violations committed in respect of the vehicle. According to the operators, it has become impossible for them to run the transport business because of the harassment of the officials.
5. Section 39 of the Motor Vehicles Act mandates that no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place unless the vehicle is registered in accordance with the provisions of Chapter IV. Section 66 obligates the owner of a motor vehicle to obtain a permit for its use as a transport vehicle. Section 74 confers power on the Regional Transport Authority to grant a permit to run the vehicle as a contract carriage. Sub-section (2) lays down the conditions subject to which such a permit has to be granted by the Regional Transport Authority. By Section 192(1) an offence is created; any person who drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 39 or without the required permit under sub-section (1) of Section 66 or in contravention of any of the conditions of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used or the maximum number of passengers or the maximum weight of luggage that may be carried on the vehicle, shall be punishable for the first offence with fine which may extend to Rupees Two thousand and for any second or subsequent offence with imprisonment which may extend to six months or with fine which may extend to three thousand rupees, or with both. Section 200 provides for composition of certain offences specified therein and it comprehends Section 192 also. Section 207 confers power on officials to detain vehicles used without certificate of registration, permit, et cetera. Sections 200 and 207 are in the following terms:
"200. Composition of certain offences.- (1) Any offence whether committed before or after the commencement of this Act punishable under Sections 177,178,179,180,181 and 182, Sub-section (1) or Sub-section (2) of Sections 183,184,186,189,191,192,194,196 and 198 may either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State Government may, by notification in the Official Gazette, specify in this behalf.
(2) Where an offence has been compounded under sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence."
"207. Power to detain vehicles used without certificate of registration- permit, et cetera.- (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 pur pose 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 of 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 acknowledgement 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."
6. It is contended by the learned counsel appearing for the petitioners that: (1) The amounts collected by way of compounding of offences should not be treated as a source of revenue and the power conferred on the State Government in this regard by sub-section (1) of Section 200, being unguided and uncanalised, is liable to be struck down on the ground of excessive delegation of legislative power and violation of Article 14. (2) The increase in compoundable amount from Rs. 250/- to Rs. 500/- is arbitrary, without any justifiable reason. What prompted the State Government to suddenly enhance the compoundable amount from Rs. 250/- to Rs. 500/- has not been stated in the impugned Government order. (3) The collection of compounding fee from the owner, who is not present at the time of the check, is clearly illegal. The absentee owner cannot be subjected to any liability when he is not aware of the alleged violations of the conditions of permit and the signature of the driver on the vehicle check report cannot fasten any liability on the owner. Circular Memo No. 43109/N3/83 dated 25-5-1990 by which "All the unit officers are requested to apply Section 200 of the Motor Vehicles Act, 1988, both against driver and the owner in cases where both are liable for prosecution......" is liable to be struck down. (4) The proviso to G.O.Ms.No. 108 prescribing the multiplier for the purpose of collection of compounding fees is contrary to sub-section (2) of Section 200 which obligates that where an offence has been compounded under sub-section (1), "The offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence". When once an offence is compounded it is extinguished and, therefore, it shall not form basis for taking any subsequent action; it cannot even be taken note of for the purpose of levy of compounding fees on subsequent occasions. (5) Sub-section (1) of Section 207 confers power on authorised officers as notified by the State Government only when Rules are promulgated in that behalf by the State Government. As no Rules have been made under Chapter XIII of the Act, of which Section 207 is a part, no motor vehicle is liable to be seized. The words "in the prescribed manner" occurring in sub-section (1) of Section 207 impose an obligation on the State Government to make rules providing for seizure and detention of any vehicle in violation of any of the statutory provisions specified therein. Rule 448 by which power is conferred on officers not below the rank of Assistant Motor Vehicles Inspectors and Circle Inspectors of Police to exercise powers under Section 207 and Rule 448-A laying down the procedure for seizure and detention of motor vehicles cannot be considered to be rules made "in the prescribed manner" as obligated by sub-section (1) of Section 207 and, therefore, the action of the authorities in seizing and detaining the vehicles under Section 207 is without any legal authority. (6) Section 207 is being misinterpreted by the authorities; they are of the view that the section does not give them any discretion at all in the matter of seizure. Sub-section (1) of the Section covers five categories of infractions which enable the authorities to seize and detain a vehicle in the prescribed manner, and the proviso to sub-section (1) excepts three categories and in respect of those excepted categories the authorities are empowered to seize the certificate of registration instead of seizing the vehicle. The proviso is discriminatory in that for lapses of lesser magnitude the harsher procedural rigour of seizure and detention was incorporated and, therefore, the proviso has to be struck down and if the proviso goes, the enacting clause also, not being separable, must be struck down.
7. Opposing the above contentions advanced on behalf of the petitioners, the learned Government Pleader for Transport justifies the levy of compounding fee on the ground that it has the sanction of the statute which is free from any constitutional vice. The application of multiplier by the impugned G.O., for the second and subsequent offences is perfectly legal inasmuch as the compounded offence can be legitimately taken into account. Rules 448 and 448-A, having been made validly, cover the field envisaged by Section 207 and, therefore, the action of the authorities in seizing and detaining the vehicles under Section 207 cannot be faulted. Whenever there is violation of any of the provisions of Section 207(1) no discretion is left with the chekcing officials except to seize the vehicle in respect of the two excepted categories and in respect of the other three categories covered by proviso to sub-section (1) of Section 207, the discretion extends to seizing the certificate of registration instead of seizing the vehicle and, therefore, the statutory power conferred on the officials cannot be considered to be discriminatory in any manner. The learned Additional Standing Counsel for the Central Government in his arguments in support of the constitutionality of Section 207 says that the section does confer discretion on the authorities. It is not compulsory that in respect of the two excepted categories covered by sub-section (1), the checking officials must invariably seize the vehicle. It is also his contention that Section 200 does not suffer from the vice of excessive delegation of legislative power.
8. Re.: 1 & 2: Section 200 concerns itself with composition of offences specified therein. It gives option to the offender to compound the offence instead of facing prosecution by paying "such amount as the State Government may be notification in the Official Gazette specify in this behalf". The provisions regarding composition of offences certainly do not form part of revenue- earning measures. They belong to the domain of penalogy. The rationale behind the composition of offences is instead of going through a protracted trial in respect of the alleged non-serious violations of law, the offender is given option to pay the specified amount to the State as a consequence of which he will be extricated from all the liabilities or the disabilities attached to the offence in respect of which the compounding is made. There is an element of deterrence also in such a measure. The State stands to gain in that its officers are spared of the trouble of prosecuting offenders for non-serious violations. At the same time, if the compoundable amount is specified at a very low rate, the idea of deterrence clearly disappears and the composition of the offence will have no effect on the offender at all. It is true that previous to G.O.Ms.No. 108 dated 12-4-1990, the compounding fee was fixed at Rs. 250/-. Its enhancement to Rs. 500/- by the impugned Government order, in our considered opinion, cannot be faulted. Compoundable amount is not a static concept. It cannot be predicated on a permanent basis that whatever amount was specified at one time shall continue to be the compoundable amount for all times to come. That cannot be the intention of the legislature. The power conferred on the State Government to specify by a notification the compoundable amount under Sub-section (1) of Section 200 takes within its ambit the power to vary and modify the same.
9. It is seriously contended on behalf of the petitioners that there are no guidelines for the exercise of the power by the State Government to prescribe the rates of compoundable amounts. Prescription of maximum is a legislative function and if no such maximum is prescribed by the statute, the delegate, in this case the State Government, is likely to misuse that power by prescribing any amount without there being any guidelines in that behalf. In support of this contention, the learned counsel relied upon M/s. Dwaraka Prasad v. State of Uttar Pradesh, , Corporation of Calcutta v. Liberty Cinema, , and Ram Bachan v. State of Bihar, .
10. In Dwaraka Prasad case1, the constitutionality of the Uttar Pradesh Coal Control Order, 1953, came up for consideration before the Supreme Court. Clause 7 empowered the State Coal Controller to direct, by written order, any person holding stock of coal to sell the whole or any part of the stock to such person or class of persons and on such terms and prices as may be determined in accordance with the provisions of Clause 8. Clause 8(1)provided that no licensee in Form B shall sell or agree to sell coal at a price exceeding the price to be declared by the licensing authority in accordance with the formula given in Schedule III. The contention urged on behalf of the dealers in that case that the formula contained in Schedule III for determination of the price was unreasonable as it was dependent upon the unfettered and uncontrolled discretion of the licensing authority, was negatived by the Supreme Court on the ground that the schedule specified the maximum amount to be determined by the licensing authority according to local conditions. In Corporation of Calcutta Case2, the scale of fees fixed by the Calcutta Corporation on the basis of the annual valuation of cinema houses under Section 548 of the Calcutta Municipal Corporation Act was questioned on several grounds. One of the contentions advanced was that the power to fix the rate of a tax cannot be delegated by the legislature to another authority. Speaking for the majority, Sarkar, J. (as he then was) held that "the fixing of the rate of a tax is not of the essence of a legislative power." Ram Bachan's case (3 supra) relates to the legality of levy of profession tax under the Bihar and Orissa Municipal Act, 1922. The contention that the rate of tax to be levied has to be left to the discretion of the Municipal Commissioner was rejected by the Supreme Court on the ground that the maximum amount of tax that can be levied has been specified in Schedule IV to the Act.
11. None of these rulings is of any assistance to the petitioners. The cases on hand do not pertain to the domain of taxation as already stated by us. What should be the amount of compounding fee to be collected by the authorities while acceding to the request of the offenders for composition, in fact, has not been I ft to the unfettered discretion of the authorities. The statute itself contains the guidelines. Section 192, which creates the offence, lays down the punishment in respect of the first offence as fine which may extend to rupees two thousand and for any second or subsequent offence with imprisonment which may extend to six months or with fine which may extend to three thousand rupees, or with both. The authority empowered to compound the offence, in our view, must be guided by the maximum fine amount indicated in Section 192 of the Act.
12. Acting on the statutory guidance incorporated in Section 192 and with a view to making the position explicit, the State Government issued addendum in G.O.Rt.947 dated 4-8-1990 laying down that the compoundable amount shall not exceed the maximum fine prescribed under the relevant charging sections attracted by the offences in respect of which composition is permitted by Section 200. After laying down the policy viz., to provide for composition of certain offences and incorporating guidelines in that behalf, although not explicitly, the Legislature in its wisdom thought it fit pragmatically to delegate to the Executive the power to specify the compoundable amounts and the officers empowered to compound the offences. By doing so the Legislature has not abdicated any of its essential legislative functions. What are delegated are not essential legislative functions. The Act is implemented by the State Government through its officers: the experience and expertise gained by them in the working of the Act will enable the Government to understand and assess the situation realistically. In order to see that there is no possible abuse of power by the authorities empowered to compound the offences, the State Government thought it fit to specify the compounding fee in relation to each of the offences for which composition is provided by Section 200. Such a measure cannot be termed as arbitrary or illegal. In Sri Ram Narain v. State of Bombay, , the principle was stated by the Supreme Court thus:
"If the legislature settles the policy and the broad principles of legislation, there is no bar against leaving the matters of detail to be fixed by the executive and such delegation will not amount to excessive delegation of legislative power such as to vitiate the enactment."
13. A learned single judge of this Court in R.S. Sabharwal and Ors. v. Union of India and Ors., W.P.No. 9320 of 1983 and Batch decided on 3-7-1984., upheld the constitutionality of Section 127-B of the repealed 1939 Act which corresponds to Section 200 of the present Act and the notification - G.O.Ms.No. 394 dated 27-8-1983 - prescribing the rates for compounding the offences, issued under that section. The learned single judge has taken the view that the provision for compounding, being beneficial to the offender and it being optional, does not suffer from any constitutional infirmity. Rejecting the contention that the very nature of the power to compound carries with it the possibility of abuse in that the offenders will be compelled to compound the offence, the learned single judge observed:
"If the permit-holders agree to compound the offence to avoid seizure of the vehicles, they do it for their own advantage and to suit their convenience, i.e., to save the consequences of Section 129-A. It cannot be said that any compulsion is imposed by the Section."
We, therefore, reject the contention that the increase in compounding fee is an indirect revenue-earning measure intended to augment the resources of the State or it is in any manner violative of Article 14 of the Constitution.
14. Re. (3). Circular Memo No. 43109/N3/83 dated 25-5-1990 was issued by the Transport Commissioner requesting all the Unit Officers to apply Section 200 of the Motor Vehicles Act which provides for composition of of fences "both against driver and owner in cases where both are liable for prosecution .......". The contention urged is that since the owner is absent at the time when the vehicle is subjected to check, fastening liability on him is clearly illegal and the authorities always are seeking support for making the owner liable on the basis of the signature appended by the driver on the check report.
15. The legality of the circular memo was upheld by a Division Bench of this Court in Hafeezuddin Shaik Imam and Anr. v. Transport Commissioner, Andhra Pradesh, Hyderabad and Anr., W.P. No. 8952 of 1990 decided on 11-9-1990., observing that by the circular memo the Transport Commissioner only "brought home to his officers the purport of Section 200 of the Act and directed them to proceed in accordance with the said section. The circular by itself does not create any liability." It is true that the foundation for compounding is the consent of the offender to pay the compoundable amount. In a case where the absentee owner is subjected to compounding fee on the ground that the driver had agreed for compounding, different considerations undoubtedly arise. It is always open to the owner to dispute the liability to pay the compounding fee. Viewed from a factual point, it appears to us that no owner has raised any objection as to his liability to pay the compounding fee on the basis of the alleged consent given by the driver. If, within a reasonable period after the driver has agreed for compounding based upon which the owner is made to pay the compounding fee, the latter had disputed his liability, we would have definitely gone into that aspect. But no specific instance of the owner disputing his liability to pay the compounding fee has been brought to our notice in this batch of writ petitions. The learned counsel for the petitioners submit that in the very nature of things it is not possible for the owner to raise any objection as to his liability to pay the compounding fee; in the wake of any dispute raised by him, the authorities in future, will undoubtedly seize illegally the vehicle while in operation resulting in the passengers being stranded in uninhabited areas without any alternative transport arrangements. Some times genuine difficulties might arise, but on the basis of such untested assumptions we cannot decide the legality of the collection of compounding fee by the authorities from the absentee owner even though the latter has not disputed his liability. In the absence of a specific plea by the owner of a vehicle mat fastening of liability on him by way of compounding fee is illegal, we cannot decide this question since it assumes the form of a hypothetical and academic issue.
16. Re. 4:- The proviso to paragraph 2 of G.O.Ms.No. 108 dated 12-4-1990 by which the multiplier was introduced for the purpose of collection of higher compounding fee is subjected to very severe criticism by the learned counsel for the petitioners. The proviso lays down that for every second and subsequent offence committed by the same person the compounding amount shall be multiple of the quantum fixed for the first offence. In other words, as the quantum fixed for the first offence is Rs. 500/- in respect of matters covered by Section 192, for each subsequent offence the compounding fee is increased by Rs. 500/- and this limit goes up to Rs. 3,000/-, which is the maximum fine prescribed under Section 192. This maximum compoundable amount, as already noticed above, was introduced by way of addendum issued in G.O.Rt.No. 947 dated 4-8-1990. Sub-section (2) of Section 200 lays down that "where an offence has been compounded under sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence". (emphasis is ours). What is the effect of the proviso to paragraph 2 of G.O.Ms.No. 108 vis-a-vis the mandatory provision incorporated in sub-section (2) of Section 200? The proviso by providing for higher rate of compounding in respect of "every subsequent offence" undoubtedly takes notice of the earlier acts of compounding in respect of the same person. The compounding is in lieu of prosecution for the compoundable offences. The expression 'offence' is defined by clause (n) of Section 2 of the Code of Criminal Procedure, 1973, as meaning, "Any act or omission made punishable by any law for the time being in force and includes......". The matters in respect of which compounding is provided in Section 200 are all 'offences' as defined by Section 2(n) of the Code of Criminal Procedure. Section 320 of the Code of Criminal Procedure provides for composition of offences specified in the table appended to that section. Sub-section (8) of Section 320 rays that "the composition of an offence under the section shall have the effect of an acquittal of the accused with whom the offence has been compounded", v. necessarily means that when once an offence is compounded the offender is extricated from all the consequences that flow thereform. The Motor Vehicles Act does not lay down a different principle as to the residual consequences that flow out of the compounding of an offence other than the penal consequences of imprisonment and payment of fine. Sub-section (2), in no unmistakable terms, mandates that in respect of an offender who has compounded an offence, no further proceedings shall be taken against him in respect of such an offence. This provision, in our judgment, clearly imposes an obligation on the part of the authorities not to take notice of any earlier compositions in respect of the same offender for the purpose of levying compounding fee again.
17. The learned Government Pleader has vehemently urged that despite the composition of an offence, the offender is not absolved of the leapses and, therefore, for imposition of compounding fee for the second lapse, the earlier compounding can be taken cognizance of in order to impose higher compoundable amount. We are unable to agree with this contention. Sub-section (3) of Section 60 of the Motor Vehicles Act, 1939, which corresponds to Section 86 of the present Act, provided that where permit was liable to be cancelled or suspended and if the transport authority is of the opinion that, having regard to the circumstances of the case, it would not be necessary or expedient so to cancel or suspend the permit and if the permit-holder agrees to pay a certain sum of money, then, the transport authority, instead of cancelling or suspending the permit, may recover from the permit-holder the sum of money agreed upon. In the event of the permit-holder's failure to remit the agreed amount whether it was open to the Regional Transport Authority to suspend or cancel the permit was the question that fell for consideration before a Division Bench of this Court in Ramakrishna Mudaliar v. Regional Transport Authority , 1967 (2) An.W.R. 353. The Division Bench interpreted the agreement to pay money under Section 60(3) as composition of an offence and observed:
"The effect of composition is to settle or adjust matters by agreement or in the case of a felony to agree for a consideration not to prosecute and the logical result of composition is to extinguish the offence. When the offence is extinguished by composition, namely, by levying a fee under sub-section (3), the offence no longer survives and unless the offence still survives the transport authority has no jurisdiction to invoke the provisions of Section 60(1). The only course open to the transport authority is to enforce the terms of the composition, namely, to recover the amount."
The above view was followed by another Division Bench of this Court in M.K. Satyanarayana Rao v. Transport Commissioner , 1989 (2) L.S. 89. As all the consequences flowing from an offence are wiped out by virtue of composition, that act of composition cannot be treated as an offence at all and, therefore, it cannot validly constitute the basis for fixation of higher compounding fee on a second occasion in respect of the same permit-holder. When the offence itself is extinguished as held in Ramakrishna Mudaliar's case and when no action for the purpose of cancellation or suspension of the permit can be taken on the basis of the composition of an offence by a permit-holder as held in Satyanarayana Rao's case, we find it difficult to discern any legal basis for the action of the transport authorities in treating the words 'second and subsequent offence' occurring in the proviso to paragraph 2 of G.O.Ms.No. 108 dated 12-4-1990 as implying 'second and subsequent composition'. When an offence is compounded that offence is extinguished. It cannot be taken note of for any other subsequent action which includes any action to levy higher compounding fee on a second occasion. The words 'no further proceedings' occurring in sub-section (2) of Section 200 clearly bar equating the words 'second and subsequent offence' occurring in the proviso to paragraph 2 of the Government order with 'second and subsequent compositions'. We, therefore, hold that the words 'second and subsequent offence' in the proviso to paragraph 2 of the above Government order should be construed as 'second and subsequent offence' as held proved by a criminal court in respect of the same offender, it is only when a permit-holder is found guilty of an offence by a criminal court, in respect of second and subsequent offences committed by the same permit-holder, the enhanced rate of compounding fee specified in the proviso to paragraph 2 of G.O.Ms.No. 108 dated 12-4-1990 comes into operation. The Government order has to be read harmoniously with the mandatory provision contained in sub-section (2) of Section 200 and, so read, the interpretation placed by us is the only reasonable construction. As no specific act of collection of compounding fee by applying the multiplier as contained in the proviso to paragraph 2 of G.O.Ms.No. 108 is challenged in this batch of writ petitions, the interpretation placed by us will be applicable prospectively and it shall not result in refund of any amount already collected by the authorities.
18. Re.5: Section 207 which confers power on the authorities to detain vehicles used without the certificate of registration et cetera occurs in Chapter XIII which deals with offences, penalties and procedures. This chapter contains no specific provision conferring power either on Central Government or State Government to make rules as is the case with regard to rest of the chapters in the Act. In the absence of power not being conferred on either Central Government or State Government to make rules, the contention advanced on behalf of the petitioners by their learned counsel is that no seizure and detention of vehicles can be resorted to. Even if the words 'in the prescribed manner' occurring in Section 207(1) are to be interpreted as conferring rule-making power on either of the Governments, still Rules 448 and 448-A conferring power on officials to detain vehicles and laying down the procedure for seizure and detention are not rules validly made in relation to the exercise of power under Section 207; the rule-making power in that behalf is traceable to Section 138 of Chapter VIII of the Act which concerns itself with control of traffic but not with the method and manner of seizure and detention of vehicles, an integral process comprehended by Chapter XIII which deals with offences, penalties and procedures.
19. It is true Chapter XIII does not contain any separate section conferring rule-making power on either the Central Government or the State Government. This is no lacuna at all in our view disabling the State Government from making rules; nor can it be said that Rules 448 and 448-A have no application in respect of matters comprehended by them. The power of seizure and detention of vehicles under Section 207(1) has to be exercised 'in the prescribed manner'. The expression 'prescribed' is defined by clause 32 of Section 2 as meaning 'prescribed by rules made under this Act'. When sub-section (2) of Section 207 itself confers power to make rules, there is no need for engrafting a separate section conferring rule-making power on either of the Governments in respect of matters covered by Chapter XIII. The Andhra Pradesh Motor Vehicles Rules, 1989, were made in exercise of powers conferred by Sections 28,38,95,96,107, 111, 138 and 176 of the Motor Vehicles Act. Rule 448 which deal with power to detain vehicles empowers Assistant Motor Vehicles Inspectors to exercise powers under Section 207. Although the preamble portion of the rules refers to eight sections, including Section 138, the omission of Section 207 therein does not render Rules 448 and 448-A invalid. When a question arises as to whether or not an authority has power to make rules, the inquiry must necessarily be to find out whether the Act confers any power on the authority to make the impugned rules. If the power can lawfully be traced to any provision of the Act, mere non-mentioning or wrong mentioning of the source of power will not afflict the rule with any manner of invalidity. This is the settled legal position. We, therefore, reject the contention advanced on behalf of the petitioners.
20. A subsidiary contention advanced in this context is that Rule 448-A concerns itself only with the procedure for seizing and detaining a motor vehicle and as it is silent as to the manner of seizure of a motor vehicle, there is no rule at all regulating the manner of seizure of motor vehicles. We do not agree. Rule 448-A, which provides for the procedure of seizure and detention, reads as follows:
"448-A: Procedure of seizing and detaining a Motor Vehicle:- When a motor vehicle is seized and detained by any officer referred to in Rule 448, he shall take the following steps:- (i) Arrangements shall be made for temporary safe custody of the motor vehicle in the nearest police station or at any appropriate place;
(ii) The fact of seizure and detention shall be notified without delay to the Secretary, Regional Transport Authority of the region and the Secretary, Regional Transport Authority of the region to which the motor vehicle belongs;
(iii) The officer who seized and detained the motor vehicle may release the vehicle if the offences for which it is seized and detained are compounded under Section 200 under intimation to the Secretaries of Regional transport Authorities mentioned in clause (ii);
(iv) "Where prosecution of the driver or owner, or both, is necessary, charge-sheets against them shall be filed before the concerned Magistrate within three days from the date of seizure and the motor vehicle shall be released by the officer who detained it after the prosecution is completed under intimation to Secretaries of the Regional Transport Authorities mentioned in clause (ii);
(v) Mahazor of the vehicle is to be carried out notifying its condition specifying the number and condition of each tyre fitted and parts which are easily removable, replaceable and tamperable, (namely, batteries, fuelpump, dynamo; (differential engine) and extra fittings, (i.e., tape recorder, radio, horns, seat, seat covers, extra lights, et cetera), and (loose parts, stephney tyres and tools) and a copy of it is to be delivered to the person from whom it is sized, duly signed."
Rule 448, which confers power of detention of vehicles, is in the following terms:-
"448: Power to detain vehicles:- Officer of the Transport Department not below the rank of Assistant Motor Vehicles Inspector and every police officer not below the rank of Circle Inspector of Police are authorised to exercise powers under Section 207".
The categories of officers empowered to detain vehicles are covered by Rule 448 and the procedural aspects are taken care of by Rule 448-A. The words 'seize and detain the vehicle' in sub-section (1) of Section 207 form part of an integral process. From a practical point of view, it is difficult to visualise the point at which seizure ceases and detention commences. They are not two independent processes in so far as exercise of power under Section 207(1) is concerned. From the language of sub-section (1), no intention can be ascribed to Parliament that it contemplated separate rules - one for seizure and another for detention of vehicles - nor from a plain reading of the section such a meaning can be inferred. Viewed from this angle Rule 448-A as framed by the State Government substantially deals with the manner of seizure and detention and, therefore, we reject the contentions advanced by the petitioners in this behalf.
21. One more contention which slides into the main contention in this regard is that when a vehicle is seized it is the bounden duty of the authorities to prepare a panchanama in the presence of independent witnesses. This contention is unacceptable. The validity of Section 129-A of 1939 Act, which corresponds to Section 207(1) of the present Act, was considered by the Supreme Court in Transport Commissioner, Hyderabad v. S. Sardar Ali, . Negativing an identical contention the Supreme Court held:-
"It was suggested that in the absence of a provision similar to that found in the Criminal Procedure Code, Section 129-A should be held to be unreasonable. There is no substance in this contention. Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-sections (4) and (5) of Section 100 of the Criminal Procedure Code. In the case of a seizure under the Motor Vehicles Act, there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself. But it is in the interests of the very officer or person seizing the vehicle, so that he may not be open to any charge being laid against him later, that such officer or person takes care to prepare a list of detachable things which are ordinarily not parts of the vehicle and give a copy of the list to the person-in-charge of the vehicle at the time of the seizure."
The material difference between the old Section 129-A and the present section is that the words 'in the prescribed manner' incorporated in Section 207(1) were absent in Section 129-A. In what manner seizure and detention have to be effected, the section confers power on the State Government to make rules and when rules in that behalf have been made, it is not open to an operator to say that the rules should have provided some more and better safeguards. The inquiry must necessarily be restricted to the question whether the rules as framed are ultra vires the rule-making power or are afflicted with any other legal infirmity? A particular rule could have been framed in a better manner or from the point of view of a transport operator, better safeguards could have been incorporated in the rules can never be the determining factors for testing the validity of the rule.
22. Re.6: Sub-section (1) of Section 207 confers power on an authorised officer to seize and detain a vehicle if he has reason to believe that there has been a contravention of certain provisions of the Act, namely, (1) Violation of Section 3 (relating to driving licence); (2) Violation of Section 4 (relating to the age of the driver); (3) Violation of Section 39 (concerning registration certificate); (4) Violation of Section 66(1) (plying without a permit); and (5) Violation of conditions of the permit in respect of the route or the area or the purpose for which the permit was granted. The section lays down that the authorised officer may seize and detain the vehicle in the prescribed manner in the event of the happening of any of the five contingencies referred to above. Proviso to Sub-section (1) carves out an exception in respect of three contingencies, namely, violations of Sections 3, 4 and 66(1) (plying without permit). In respect of these three excepted categories, the authorised officer "may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof. Compared with the three excepted categories covered by the proviso, it is contended by the learned counsel for the petitioners, the violations of conditions of permit comprehended by the enacting clause, namely, sub-section (1), are less severe and, therefore, seizure and detention of the vehicle for a less serious offence and only seizure of the certificate of registration in respect of graver lapses is plainly discriminatory.
23. According to the learned Government Pleader, the authorities have no discretion at all in so far as the matters excluded by the proviso are concerned, namely, violation of Section 39 and violation of conditions of permit; in such cases, they much necessarily seize and detain the vehicle. On this aspect, the learned Standing Counsel for the Central Government and the learned Government Pleader for the State Government have taken divergent stands. According to the learned Standing Counsel for the Central Government, in respect of the main enacting clause and the proviso, the authorised officer has discretion, and it is not incumbent upon him to necessarily seize and detain the vehicle if the violation is in relation to the categories excepted by the proviso.
24. We are inclined to accept the submissions of the learned Additional Standing Counsel for the Central Government. Both in respect of the main enacting clause and the proviso, discretion is conferred on the authorised officers; the expression used is 'may', not 'shall'. We do not find any compelling reasons to read the expression 'may' in both the enacting clause and the proviso as 'shall'. In respect of matters covered by the proviso, it is not obligatory for the authorised officer not to seize the vehicle but only seize the certificate of registration; if the violation noticed by him is of the nature that the vehicle should not be allowed to proceed further, it is open to the authorised officer to detain the same instead of allowing it to proceed by seizing the certificate of registration. So also, in the cases covered by the main enacting clause, if the situation warrants, it is open to the authorised officer to allow the vehicle to proceed after seizing the certificate of registration. It is not compulsory that every time the authorised officer notices an infraction of the conditions covered by the proviso, he must invariably seize and detain the vehicle under Sub-section (1). It is not difficult to visualise situations involving technical lapses in respect of violation of conditions of permit and it cannot be predicated that Section 207(1) does not leave any discretion to the authorised officer to release the vehicle after seizing the certificate of registration. Sometimes, hardships the passengers are likely to face in the event of the vehicle being seized even in respect of a minor technical lapse may legitimately be taken into account by the authorised officer to exercise his discretion for releasing the vehicle after seizing the certificate of registration. Considered from this perspective the contention based on discrimination loses its force. The construction placed by us on Section 207(1) and the proviso makes it unnecessary for us to consider the further question whether the sub-section is unconstitutional on the ground of discrimination introduced by the proviso.
25. Before closing these cases, we are constrained to point out a distressing aspect that surfaced in the implementation of the provisions as to compounding of offences. From the operators who are holding All India Contract Carriage permits (petitioners in Writ Petition No. 4045 of 1991), the authorised officers, it appears, are collecting compounding fee at the rate of rupees three thousand almost every day on the ground that the vehicles are being used as stage carriages. The quarterly tax paid by each of the operators holding an All India Tourist Permit is equal to the tax payable by a stage carriage permit-holder. Collection of tax at a higher rate from a contract carriage operator holding an All India Tourist Permit for violation of any of the conditions of the permit, therefore, does not arise. Even on the allegation of violation of the conditions of permit, namely, that the vehicle is being plied as a stage carriage, as there is no possibility of collecting higher rate of tax, the contention that the authorities are resorting to the practice of collecting compounding fee daily, appears to be not unfounded. The vehicle check reports placed before us in a substantial measure lend credence to the contention of the learned counsel for the petitioners in Writ Petition No. 4045 of 1990. The object behind providing for composition of offences will be totally defeated if composition is resorted to as a matter of course every day for violation of the provisions of the Act. If the authorities real feel that in respect of a particular vehicle there has been regular violation of the provisions of the Act, they must initiate other measures, like suspension or cancellation of the permit or prosecution with or without seizure, to curb the routine breaches of law. Instead of doing so, if, as a matter of course, every day they collect compounding fee, it amounts to abuse of the power of composition of offences under Section 200 of the Act. As we have already observed, the object of composition is not to augment the public revenues of the State; if is intended to be a sort of deterrence while at the same time relieving the State of the unnecessary burden of launching prosecution in respect of non-serious offences committed occasionally. Resorting to successive compositions without setting in motion the other provisions of law relating to prosecution, cancellation or suspension of the permits, et cetera, impairs effective implementation of the provisions of the Act and thereby places premium on lawlessness. This situation deserves to be deprecated.
26. For the above reasons, we uphold the validity of the impugned Sections 200(1) and 207(1) and G.O.Ms.No. 108 dated 12-4-1990. We declare that the words 'second and subsequent offence' occurring in the proviso to paragraph 2 of G.O.Ms.No. 108, T.R. & B., dated 12-4-1990, shall be construed as 'second and subsequent offences held proved in a criminal court of competent jurisdiction' but they are not referrable to second and subsequent compositions. We also hold that the authorised officer under Section 207(1) is not denuded of the power of discretion in the matter of seizure and detention of vehicles.
27. At the interlocutory stage, in most of these writ petitions, directions were issued that if the vehicle is seized it should be released on the permit-holder depositing rupees one thousand with the concerned authority. As we have held that unless there was previous conviction by a criminal court, the compounding fee should not be at the rates specified in the proviso to paragraph 2 of G.O.Ms.No. 108, if in respect of any of the vehicles covered by this batch of writ petitions a sum of rupees one thousand was paid by the operator for obtaining release of the vehicle pursuant to the interim orders of this court, no further demands shall be raised for the purpose of collection of compounding fee from the operator in respect of the particular violation giving rise to composition. This judgment will not preclude the authorities from collecting tax and penalty under the provisions of the Motor Vehicles Taxation Act.
28. The writ petitions are accordingly disposed of. The two writ appeals are dismissed as unnecessary since we have decided the main writ petitions themselves. No costs. Advocate's fee Rs. 200/- in each.