Mathur, J.
1. By these two writ petitions, constitutional validity of following portion of Section 207(1) of the Motor Vehicles Act, 1988, hereinafter referred to as the 'Act of 1988', has been challenged :
'207. Power to detain vehicles used without certificate of registration permit, etc., --(1) 'Any police officer or' and words '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 ..........'
2. In short. Section 207 of the Act of 1988 empowers a police officer or an officer authorised by the State Government to seize a motor vehicle, if he has a reason to believe that the vehicle is being driven without registration or without permit or by a person who has no driving licence or plying on unauthorised route and the vehicle may be released only after satisfying that the vehicle complies with a requirement of the provisions.
3. In D.B. Civil Writ Petition No. 2255/1998, it is averred by the petitioner that on 5-6-1998 his five buses moving from Jodhpur to different destinations such as Udaipur. Ahmedabad etc. were seized by the police one after another by invoking the provisions of Section 207 of the Act of 1988. The say of the petitioner is that it was done mala fidely with a view to give a lesson to the petitioner as he had approached to this Court under Section 482, Cr. P.C. against seizure of the vehicle invoking the provisions of Section 34 of the Police Act. A certified copy of the order of this Court being S.B. Cr. Misc. Petition No. 375/1998 'Pep Singh v. State of Rajasthan' has been placed on record. As far as the factual aspect is concerned, it is pointed out by the respondents that the order Annexure 1 has nothing to do with the seizure of the vehicles on 5-6-1998. The said Criminal Miscellaneous petition was filed by one Pep Singh against the action taken by the police under Section 34 of the Police Act. It is submitted that the petitioner with a calculated move to mislead the Court, has referred to the order Annexure 1. It is submitted that the petitioner is carrying on the business of travelling agency in the name of Chandra Travels, he has obtained contract carriage permit from the Transport Officer, Jodhpur. He has been using the contract carriage permit as stage carriage permit by running the Video Coaches buses from Jodhpur to various cities like Udaipur, Ahemadabad etc. It is also averred that like petitioner, there are many other travelling agencies of this nature, which also undertakes, such kind of activities through Video Coaches Buses. They are plying the buses on the routes for which they do not have the stage carriage permit. They lift the passengers from the places which come to the routes. They are running the Video Coaches in contravention of the provisions of Section 98 of the Act of 1988. It is also submitted that this has resulted in heavy revenue loss to the State Roadways Corporation as well as the State Government. In order to curb and stop their illegal action, the authorities of the State Government undertakes a special programme from time to time. Shri Chandan Dan, M.T.I, was attracted with the programme vide order dated 29th July, 1997. On 5-6-1998 at about 5.30 a.m. On surprise checking he found Bus Nos. RJ 20 P-2601, RJ 19 P-3267. RJ 22 P-0492 and RJ 13 P-0635 operating on the permit of contract carriage. The operators were found plying the buses in contravention of the terms and conditions of the contract carriage permit and provisions of the Act of 1988. The operators/owners were asked by Shri Chandan Dan to show the documents like the Registration Certificates, Permits etc. but they refused to do so. Shri Chandan Dan was, therefore, forced to seize the said buses by exercising the powers conferred by Section 207 of the Act of 1988. It is further averred that on the same day, the Bus No. RJ 19 P-3281, RJ 19 P-4537 and RJ 19 P-3631, all having the contract carriage permits, were found plying as a Stage Carriage Permit and there was further violation of certain terms of the permits. The operators/owners were asked to show necessary documents but they refused to do so and, therefore, the Circle Inspector Shri Chandan Dan, exercising the powers under Section 207 of the Act of 1988 seized the vehicles. While Shri Chandan Dan was carrying these buses to the Police Control Room, the owners of the Bus Nos. RJ 19 P-3631 and 19 P-3281 blocked the way by putting vehicles across the road and nearby these Buses the operators/owners of seized vehicles namely; Rajveer Singh (present petitioner) of Chandra Travels, Manish Travels. Onkar Singh of Chadra Travels, Jitendra Singh of Jain Travels, Parveen Ganchi of Laxmi Travels, Bhagirath son of Shri Dheera Ram Vishnol of Chandra Travels and some other persons blocked the way and did not permit the seized vehicles to be taken to the Control Room, which resulted into a traffic Jam causing inconvenience to the people at large. After some time, the senior police officials also reached on the spot. The aforesaid owners of the travelling agencies had reached on the spot in their private cars. In order toclear the traffic on the road, help of Crane and drivers of Police Department had to be taken. The Additional District Magistrate (City) and Additional S.P. also reached on the spot and tried to pacify them. The assembly of these persons was declared as unlawful and they were removed forcefully. Shri Chandan Dan filed a F.I.R. at Police Station, Udai Mandi, which has been registered as FIR Case No. 239/98 for the offences under Sections 143, 145, 147, 149, 183, 186, 332, 353 and 283, IPC. The buses were checked and the memos were prepared. The tickets of the travellers were also annexed with the checking memo. In addition, to the vouchers of tickets, all the incriminating evidence was collected to show that the Video Coaches were plying as Stage Carriage Permit. After investigation, a challan has been filed against 18 accused persons. The buses have been released by the competent Court.
4. In D.B. Civil Writ Petition No. 2615/ 1999, the say of the petitioner is that he is a holder of All India Tourist Permit, which is valid for All Rajasthan, Gujarat, Maharashtra, Delhi, Haryana, U.P, and M.P. Vehicle No. RJ 19/P-3617 is covered under the said permit, which is valid up to 5-12-2001.
5. Not a word has been said about the cause of action, which led him to filing of the present writ petition. Thus, a preliminary objection has been raised by the respondents that the writ petition is not maintainable under Articles. 226 and 227 of the Constitution of India as the writ petition does not disclose any cause of action to the petitioner and the writ petitioner merely seeks to raise an academic and abstract question, which cannot be decided by the Court without factual foundation. The petitioner has filed a copy of the challan dated 15-7-1998 to show that his vehicle was seized exercising the powers under Section 207 of the Act of 1988 on 28-6-1999 when the police party found his bus plying unauthorisedly without the stage carriage permit. It was also found that there were no tourists in the bus. The local passengers were taken from place to place.
6. As far as the legal aspect is concerned, the common ground in both the writ petitions is that Section 207 of the Act of 1988 is ultra vires of Articles. 14, 19(1)(d)(g) and 300A of the Constitution of India.
7. Section 207 of the Motor Vehicles Act, 1988 is substitute of Section 129A of the Motor Vehicles Act, 1939. The constitutional validity and vires of Section 129A of the Act of 1939 has been upheld by the Supreme Court in the Transport Commissioner. Hyderabad v. S. Sardar Ali reported in AIR 1983 SC 1225 : (1983 Cri LJ 1506). It is submitted that the situation in which the said judgment was rendered, has materially changed and, therefore, the said Judgment is no longer a good law.
8. It is pointed out that under the provisions of the Act of 1939, every police officer coulcl not exercise the powers under Section 129A but now under Section 207 of the Act of 1988, such power can be used even by a petty police officer like a constable. Thus, the submission is that there is larger scope of misuse of power by the police. It is also pointed out that the matters covered by Section 130 (2) and (3) of the Act of 1988, the police has been divested of the powers to ask for the production of the licence of the vehicle, certificate of insurance of the vehicle and where the vehicle is a transport vehicle, the certificate of fitness referred in Section 56 and the permit. It is submitted that such a power is now vested with the registering authority or any person authorised in this behalf by the State Government.
9. Mr. M. Mrldul, Senior Advocate, in D.B. Civil Writ Petition No. 2255/1998, also submitted that Section 207 of the Act of 1988 confers blanket, absolute and unfettered discretion on the police officer and authorised person. It is further submitted that even if it is assumed that the petitioners have committed illegality or irregularity sufficient safeguards have been provided in the Act and the Rules and the drastic action of seizure of vehicle is not warranted. Seizure of vehicle on roads creates insurmountable hardship to the passengers travelling in the vehicle including the ladies and children.
10. Mr. B.L. Maheshwari, while adopting the contentions of Mr. M. Mridul, submitted in alternate that even if Section 207 of the Act of 1988 is held to be valid in view of the hardship likely to be caused to the travelling passengers and likely misuse of powers by the police or the transport authorities, an appropriate direction may be given providing aguideline restraining the police officers from abusing and misusing the powers vested in them under Section 207 of the Act, Learned counsel placed reliance on a decision of theM..P. High Court in Nikhata Afros v. Union of India reported in AIR 1997 MP 41, wherein the Court directed the State Government to issue a circular to all concerned authorities to the effect that as and when any permit holder contends that he has not committed a breach, in that case, his vehicle should not be seized but his registration certificate may be seized and an acknowledgement may be given so that he may have a right to approach the proper court for redressal of his grievance. It is submitted that the said directions have been confirmed by the Apex Court in Special Leave to Appeal No. 5259/96 'State of M.P. v. Nikhata Afros decided on 7-10-1996.
11. On the other hand Mr. Vineet Kothari, learned counsel appearing for the respondents, submitted that the validity of the provisions of Section 129A of the Act of 1939, which hasbeen substituted with slight modification under the Act of 1988 with a Section No. 207 has been upheld by the Supreme Court in Transport Commissioner, Hyderabad v. S. Sardar Ali reported in AIR 1983 SC 1225. It is, thus, not open for the petitioner to challenge the validity of the said provision even on certain different or additional grounds. It is also submitted that there can be no presumption that the police officer and the authorities of the department would violate the provisions of law including Section 130 of the Act or other provisions. As far as the decision of the M.P. High Court is concerned, it is submitted by the learned counsel that the said decision rather supports the respondents inasmuch the validity of the provisions of Section 207 has been upheld in the said case. With respect to the directions given, it is submitted that the contention is based on completely misreading of the order of the Apex Court dated 7-10-1996.
12. Before dealing with the contentions advanced at the bar, it would be necessary to refer to some of the relevant provisions of the Act:
'2. Definitions. -- In this Act, unless the context otherwise requires.
(7) 'contract carriage' means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder ofa permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum -
(a) On a time basis, whether or not with reference to any route or distance; or
(b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the Journey, and includes -
(i) a maxi cab; and
(ii) a motor cab notwithstanding that separate fares are charged for its passengers;
(40) 'State carriage' means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire on reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey;
13. Section 3 requires any person to have an effective driving licence to drive a motor vehicle in public place. Section 4 prohibits a person under the age of eighteen years to drive a motor vehicle in public place, Section 39 states 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 or in any other place, unless the vehicle is registered under Chapter IV and certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner.
14. Section 66(1) is enacted in negative words, which reads as under :
'66. Necessity for permits. -- (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with, the conditions of a. permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.
15. Section 207, which empowers police officer or other person authorised by the State Government to detain a motor vehicle in certain circumstances is material for the purpose of deciding the controversy raised in these petitions. It is, therefore, required to be quoted in extenso :
'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) or 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 vehicles, 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.'
16. Before the new Act of 1988 came into force w.e.f. July 1, 1989, a similar provision was found in Section 129A of the old Act, Section 129A, as it then stood, reads as under:
' 129A. Power to detain vehicles used without certificate or registration or permit.
Any police officer authorised in this behalf or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 22 or without the permit required by Sub-section (1) of Section 42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicles and for this purpose take or cause to be taken any steps he may consider proper for thetemporary 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 without 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 acknowledgement in respect thereof:
Provided further that where a motor vehicle has been seized and detained under this section for contravention of the provisions 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,'
17. A comparative reading of Section 207 of the Act of 1988 and l29A of the Act of l939 shows that there is no material change in Section 129-A except in the opening sentence, instead of the sentence 'any police officer authorised in this behalf or other person authorised in this behalf by the State Government' has been substituted as, 'any police officer or other person authorised in this behalf by the State Government'. There are other minor changes with respect to corresponding change of sections. Thus, in substance, Section 207 is analogous to Section 129AoftheoldAct.
18. Section 207 of the Act contemplates five situations in which a police officer or an authorised person may seize and detain a motor vehicle, where he has reason to believe that a motor vehicle -- (i) has been or is being used in contravention of Section 3 i.e. driving a motor vehicle in public without valid driving licence; (ii) has been or is being used in contravention of the provisions of Section 4 i.e. age limit of 18 years for driving a motor vehicle; (iii) has been or is being used in contravention of the provisions of Section 39 i.e. no person shall drive a motor vehicle without a certificate of registration; (iv) has beenor is being used without permit required by Sub-section (1) of Section 66 i.e. prohibition on plying of a motor vehicle without permit or in contravention of the conditions of permit; and (v) has been or is being used in contravention of conditions of the permit relating to the route on which or the area in which or the purpose for which the vehicle may be used.
19. A reading of Section 207 clearly showsthat sufficient guidelines and norms have been laid down for exercise of powers by theconcerned authorities under Section 207 of the Act. The power has to be exercised only in certain circumstances and on existence of objective facts. The police officer or authorised person must have reason to believe about the existence of objective facts. Again in the case of abuse of power or misuse of powers in the additional cases, aggrieved party may always approach the higher authorities or the appropriate Court for the appropriate relief. Thus, the Apex Court in Transport Commissioner v. S. Sardar Ali reported in AIR 1983 SC 1225, upholding the validity of Section 129A observed that -
'Thus, if the provisions of the Motor Vehicles Act are read in conjunction with the provisions of the Code of Criminal Procedure -- and there is no getting away from the provisions of both the laws -- it is seen that there is no lacuna whatsoever in regard to the proper custody and disposal of the motor vehicles seized under Section 129A of the Motor Vehicles Act. The custody of the vehicle in the hands of the police officer or the authorised person is but temporary and he is, therefore, obliged to act and take all further steps in the matter with all expedition. If he releases the vehicle on being satisfied that no offence has been committed or if the releases the vehicle on the offence being compounded, no further question arises. If, instead, he lays a complaint before the Court, the Court acquires instant jurisdiction over the vehicle to pass suitable orders. In the remote event of the police officer or the authorised person not taking any further action after seizing and detaining the vehicle, the owner of the vehicle is not without remedy. Article 226 is always available but one does not have to presume that the police officer or the authorised person may not act according to law.'
20. A conjoint reading of Sub-section (1) of Section 207 of the Act and the proviso attached thereto and Sub-section (2) leaves no room of doubt that a police officer or authorised person may seize and detain a vehicle in certain circumstances. If the facts enumerated in Sub-section (1) of Section 207 are present, it is open to such officer to seize and detain a vehicle. The power is discretionary in nature. It is of course true that Section 207(1) enable such person to seize registration of vehicle instead of seizing the vehicle itself. The proviso uses an expression 'may'. Sub-section (1) of Section 207 also uses thesame expression. The legislature in its wisdom has vested such discretion with the police officer or the officer authorised by the State Government to take an appropriate decision on the spot as to whether the detention of the vehicle in the facts of the case is essential or not. For example, if a police officer on the spot is satisfied that a person driving the vehicle is less than eighteen years of age and, as such he cannot drive the vehicle in public place. The officer will, therefore, exercise his power to seize and detain the vehicle. Such a person Js prepared to produce a certificate of registration but the question arises whether the police officer should allow the said person to go with the vehicle i.e. permitting to commit an offence. In our view, the police officer should exercise the discretion in detaining the vehicle and should not permit such a person to drive the vehicle in a public place. Thus, if the police officer or the authorised officer is taken away of his power to detain the vehicle as prayed by the petitioner, it would lead to absurdity and frustrate the object and intention of the legislature.
21. The last three situations i.e. contravention of the provisions of Section 39. Section 66(1) or contravention of any of the conditions of permit relating to the route on which the area in which or the purpose for which the vehicle may be used or the maximum number of passengers and maximum weight of luggage that may be carried on the vehicle, have been made punishable under Section 92.
22. In S. Sardar Ali case (supra), the Supreme Court held that -
'It is, therefore, clear that the power given to seize and detain the vehicle under Section 129A (Section 207 of the New Act) is to be exercised by the police officer or the authorised person when he has reason to believe that an offence punishable under Section 123(1) (Section 192 (1) of the New Act has been or is being committed.'
23. In Ishwar Singh Bagga v. State of Rajasthan reported in AIR 1987 SC 628 referring to S. Sardar Ali's case (supra), the Supreme Court observed that -
'The contravention of either Section 22 (Section 39 of the New Act) or Section 42(1) of the Act (Section 66(1) of the New Act) or any of the conditions mentioned in the permit would entitle an officer empowered under Section 129A of the Act (Section 207 of theNew Act) to seize and detain the vehicle in question.'
24. A Division Bench of the Gujarat High Court in Rasik Lal Dangi v. State of Gujarat reported in (1989) 32 GLR following the decision of the Apex Court in Sardar Ali's case (supra) and considering the various provisions of the Act of 1939 and the rules held that if a person is found to ply his vehicle as 'stage carriage' while holding a permit to ply the vehicle on 'contract carriage. It can safely be said that he was plying the vehicle without the permit since he was not holding any 'stage carriage' permit. The Division Bench observed -
'The case of such person can, therefore, be said to have been covered under the aforesaid Section 129A of the Act as such a person is plying his motor vehicle without the permit required by Sub-section (1) of Section 42.'
25. In Rasik Lal Dangi's case (supra), the Division Bench of the Gujarat High Court even went to the extent of saying that if a person has a permit of one kind then that would not enable the person ply the vehicle requiring the permit of different kind. If a person plies a vehicle in a manner, which requires a permit of different kind from the kind of permit that he has, it will not only be a case of breach of condition but also a case where he has no permit.
26. In Brijendra Kumar Chaturvedi v. State of U. P. reported in 1992(4) SCC 703, it is held by the Supreme Court that if a contract carriage permit is granted in respect of a vehicle, the, holder of such a permit cannot pick up individual passengers. There must be a prior contract indicating the passengers to be carried. The Apex Court referring to Roshan Lal Gautam v. State of U. P. reported in AIR 1965 SC 991 held that the contract shall be prior and the persons who are to be carried shall be known prior to the journey. The vehicle cannot stop to pick up or set down passengers not included in the contract any where during the journey.
27. Thus, the question, whether a motor vehicle in a particular case is used as a contract carriage or stage carriage, cannot be decided in absence of necessary facts and relevant material. The decision will have to be taken in the light of the evidence adduced before the authorities. If in a given case, the say of the authorities is that the vehicle seized was being used as stage carriage, though it was holding permit to ply as contract carriage, the authorities may be justified, in seizing and detaining the vehicles.
28. To appreciate the apprehension of misuse of power by the police causing insurmountable hardship to the passengers in case of detention of vehicle, Sub-section (1) of Section 207 and proviso thereto has to be read together. The legislature has conferred power upon the authorities by enacting Sub-section (1) of Section 207 and also a provo. There is no reason to believe that the authorities will not keep the proviso to Sub-section (1) in view while exercising the powers under Sub-section (1) of Section 207. The Supreme Court in S. Sardar Ali's case (supra) has dealt with this aspect in detail and observed 'one does not have to presume that the police officer or the authorised person may not act according to law.' In our judgment, presumption would be otherwise viz, that the police officer or the authorised person will act according to law. Moreover, if a power has not been properly exercised in a given case, it is always open to the aggrieved party to challenge that action in accordance with law. In fact while upholding the validity of Section 129Aof the Act of 1939 in S. Sardar Ali's case (supra), the Hon'ble Supreme Court ob-served that sufficient safeguards have been provided in the Act as well as in the Code of Criminal Procedure and in that remote event of police officer or the authorised person not taking any further action after seizing and detaining the vehicle, the owner of the vehicle is not without remedy. The Court observed that Article 226 of the Constitution of India is always available in such cases.
29. An attempt has been made to come out of the judgment of the Apex Court in S, Sardar Ali's case by making reference to Section 130 of the Act of 1988. It is contended that the legislature has chosen to limit the power of the police officer in the matters relating to motor vehicles drastically inasmuch as so far as matters covered by Section 130(2) and (3) of the Act of 1988 are concerned as against the provisions of the Act of 1939, the police officer has been divested of the power to ask for production of licence of the vehicles, certificate of the insurance of the vehicle etc. In order to appreciate the contention, it would be appropriate to read Section 130 of the Act of 1988 and Section 86 of the Act of 1939, which are as follows :
'130. Duty to produce licence and certificate of registration. -- (1) The driver of amotor vehicle in any public place shall, on demand by any police officer in uniform, produce his licence for examination :
Provided that the driver may, if his licence has been submitted to, or has been seized by, any officer or authority under this or any other Act, produce in lieu of the licence a receipt or other acknowledgement issued by such officer or authority in respect thereof and thereafter produce the licence within such period, in such manner as the Central Government may prescribe to the police officer making the demand.
(2) The conductor, if any, of a motor vehicle in any public place shall, on demand by any police officer in uniform, produce his licence for examination.
(3) The owner of a motor vehicle (other than a vehicle registered under Section 60), or in his absence the driver or other person in charge of the vehicle, shall on demand by a registering authority or any person authorised, in this behalf by the State Government produce the certificate of registration and the certificate of insurance of the vehicle and, where the vehicle is a transport vehicle, also the certificate of fitness referred to in Section 56 and the permit.
(4) If the licence referred to in Sub-section (2) or the certificate or permit referred to in Sub-section (3), as the case may be, are not at the time in the possession of the person to whom demand is made, it shall be a sufficient compliance with this section if such person produces the licence or certificates or permit within such period in such manner as the Central Government may prescribe, to the police officer or authority making the demand :
Provided that, except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to any person required to produce the certificate of registration or the certificate of fitness of a transport vehicle.
86. Duty to produce licence and certificate of registration.
(1) The driver (and the conductor, if any) of a motor vehicle in any public place shall, on demand by any police officer in uniform, produce his licence for examination.
(2) The owner of a motor vehicle (other than a vehicle registered under Section 39), or in his absence the driver or other person in charge of the vehicle, shall on demand by aregistering authority or any person authorised in this behalf by the State Government produce the certificate of registration of the vehicle, and, where the vehicle is a transport vehicle the certificate of fitness referred to in Section 38.
(3) If the licence or certificates, as the case may be, are not at the time in the possession of the person to whom demand is made, it shall be a sufficient compliance with this section if such person produces the licence or certificates within ten days at any police station in (India) which he specifies to the police officer or authority making the demand :
Provided that, except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to a driver driving as a paid employee, or to the drive of a transport vehicle or to any person required to produce the certificate of registration or the certificate of fitness of a transport vehicle.'
30. It is contended that the police officers have been divested of the powers to ask for production of the documents enumerated in Sub-section (3) of Section 130. Under Sub-section (3) of Section 130 of the New Act, such a power is vested with the registering authority or any person authorised in this behalf by the State Government. The provision is exactly the same, which was there under Section 86(2) of the Old Act. Under the old Act also, a duty was cast on the owner of a motor vehicle or in his absence, the driver of other person in charge of the vehicle to produce the said documents on demand by the registering authority or any person authorised in this behalf by the State Government. Thus, on the basis of Sub-section (3) of Section 130, it cannot be said that the police has been divested now under the new Act from demanding the documents enumerated under Sub-section (3) of Section 130.
31. In fact, the provisions of the Motor Vehicles Act contemplate a comprehensive scheme to legalise and control the traffic in the interest of the public safety. Sub-section (1) of Section 130 of the Act of 1988, which envisages the driver to produce the driving licence immediately on demand by a police officer in uniform, is incorporated in the Act to ensure that a person driving the vehicle possesses a valid driving licence. It is common that theft of motor vehicle is committed and the same is taken away. Unless there is a provision ensuring the person, who drivesthe vehicle, to produce a licence, it is not possible to find out whether actually he has got a valid licence or not. In the interest of the society to avoid accidents on roads and to legalise the traffic control and safety of the public, these provisions are incorporated. The legislature has made a distinction between the driver as a class and conductors and owners of the vehicle or representative of the owner of the vehicle as another class. In case of drivers, they have to produce such driving licence immediately on demand whereas in case of conductors and owners or representatives of the owners, if any, they can produce the same immediately or within the period of two weeks as envisaged under Rule 139 of the Central Motor Vehicle Rules, 1989. The said rule only provides manner for production of licence and certificate of registration. On the basis of Rule 139, it cannot be said that the production of the driving licence immediately on demand is mandatory. On a conjoint reading of Section 130(1) of the Act with Rule 130 of the Central Motor Vehicle Rules, it is manifest that where the demand is made by a competent officer for production of the driving licence, the driver has to produce the same immediately. It is, thus, evident that the driver is under obligation to carry the licence with him, whenever he is driving the vehicle, whereas in cases of conductor and owner of the vehicle, they are given time for production of the licence because they stand on a different footing than that of a driver for so many reasons. Even in case of driver if the licence is seized by some other competent authority other than the police officer, he can produce the acknowledgement for having seized the licence. In any case, the provisions of Section 130 of the Act does not curtail the power of the police officer or other authority vested by Section 207 of the Act. Thus because of some procedural change, it cannot be said that there is material change in Section 129A, substituted by Section 207, the validity of which has been upheld in S. Sardar Ali's case (supra). Thus, for the reasons stated above, we uphold the constitutional validity of Section 207 of the Act of 1988.
32. It is vigorously argued by both the learned counsel for the petitioners that a direction should be given to the State Government to issue a circular that as and when breach of the provisions of the Motor Vehicles Act and the Rules comes to the notice of the appropriate authorities and any of the busoperators contests the matter, then in that case, instead of seizing the vehicle, they may seize the registration certificate etc. following the binding decision dated 7-10-1996 of the Apex Court, rendered in the Special Leave to Appeal No. 5259/96 whereby the directions given by the M.P. High Court have been confirmed. The M.P. High Court in Nikhata Afros v. Union of India reported in AIR 1997 MP 41 while upholding the constitutional validity of Section 207 of the Act of 1988, in order to put check on the arbitrary and unquestioned exercise of powers by the subordinate authority, directed the State Government to issue a general circular to the following effect:
'When any permit holder contends that he has not committed a breach, in that case, his vehicle should not be seized but his registration certificate must be seized and an acknowledgement to this effect may be given so that he may have a right to approach for redressal of his grievance.'
33. It is well settled that this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India cannot direct the statutory authorities to exercise their discretion in a particular manner. It would not only amount to transgressing the Judicial limits but also to interfere with the legislative provisions and render them nugatory. The discretion has to be exercised reasonably considering the facts and circumstances of the case on hand and no rule of universal application can be laid down. Again if the power is abused, an appropriate action can be taken in accordance with law by the aggrieved party but in the light of the specific provisions of Sub-section (1) of Section 207 read with Sub-section (2) thereof, it cannot be contended that the police officer or the authorised person has no power to seize and detain a vehicle or that after the vehicle is seized and detained, such officer or the person will have no option but to release the vehicle on the proviso to Sub-section (1) of Section 207, if a certificate of registration is produced. In any case. In absence of necessary facts, relevant evidence and sufficient material, no blanket direction can be given to the respondent authorities not to seize or detain a vehicle or to release a vehicle in case of application of proviso to Section 207(1) of the Act of 1988.
34. In the instant case, it is stated in the reply that petitioner is doing business of travelling agency in the name of Chandra Travels. They use to send their video Coaches Buses from Jodhpur to other big cities of the Country. He has obtained contract carriage permit from the Transport Officer, Jodhpur. It is further stated that likewise the petitioner, there are many other travelling agencies of this nature, which also undertake such kind of work through video Coaches Buses. Although they have contract carriage permits but they lift the passengers from places, which come in their way. This is being done by them in contravention of the terms and conditions of the permit as well as the provisions contained in the Act of 1988. This results in heavy revenue loss to the State Roadways Department as well as the State Government. It is also stated that in order to curb and stop the illegal action, the authorities of the State Govemment are undertaking special programmes from time to time. A team is prepared consisting of police officers and officers of the Motor Vehicle Department etc. to check such video Coaches. Thus, the allegation of the respondents is that the petitioners and similarly situated operators holding the All India Permits to ply the vehicles as 'contract carriage' permit are misusing them and they are plying the vehicles as 'stage carriage' permit.
35. Recently, the Supreme Court in Nirmala Jagdishchandra Kabra v. Transport Commissioner reported in AIR 1997 SC 1405, held the detention of a vehicle under Section 207(1) of the Act of 1988 as valid where the contract carriage permit was being mis-used by taking passenger other than those mentioned in list enclosed to permit, from one destination to another. The Court held that it amounts to use of vehicle as stage carriage permit. In the said case, it was found that the vehicle holding contract carriage permit was being used as a stage carriage in violation of breach of conditions of permit inasmuch as the petitioner was collecting individual fares at the rate of Rs. 1.60 per passenger and was not using the vehicle as a tourist; vehicle hired to one group party. The Motor Vehicle Inspector imposed a penalty of Rs. 1000/-for violation of conditions of the contract carriage permit. The owner of the vehicle filed a writ petition before the High Court seeking direction not to seize his vehicles in purported exercise of power under Section 207 of the Act solely on the allegation of collection of individual fares from the passengers. The learned single Judge refused to grant the relief in face of Section 207 read with proviso thereto of the Act of 1988. The Apex Court analysing the provisions of Section 207 of the Act held that the statutory powers given to the authorised officer under the said provision is to ensure compliance of the provisions of the Act, therefore, mandamus sought for i.e. not to seize the vehicle, cannot be issued.
36. It is submitted that Madhya Pradesh case was taken to the Supreme Court by the State of Madhya Pradesh by way of Special Leave to Appeal. The Special Leave to Appeal was disposed of by order dated 7-10-1996 as follows :
'We do not understand the direction in such absolute terms. The instructions that may be issued by the State may provide for such exceptional cases in which it may be necessary to seize the vehicle but as a normal rule, the seizure shall be of registration certificate only.With this clarification , the special leave petition is disposed of.'
37. It is contended by the learned counsel for the petitioners that the aforesaid order of the Apex Court is a precedent and is a binding decision under Article 141 of the Constitution of India.
38. We are unable to agree with the submission of the learned counsel for the petitioners. In our humble view, the above quoted direction has been given by the Apex Court in exercise of power under Article 142 of the Constitution of India and this Court does not possess powers analogous to Article 142 of the Constitution of India.
39. In State of Punjab v. Surinder Kumar, AIR 1992 SC 1593, the Supreme Court observed as under at page 1594 -1595 :
'The Constitution has, by Article 142 empowered the Supreme Court to make such order as may be necessary for doing complete justice in any case or matter pending before it, which authority the High Court does not enjoy. The Jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge.'
40. In view of the aforesaid, we do not find any merit in both the writ petitions and, accordingly, both the petitions are dismissed. The interim relief stands vacated. There shall be no order as to costs.