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Judgment
Linga Raja Rath, J.—All these cases raise common questions of fact and law.
These cases were heard on 4th and 5th of November, 1994 and posted for judgment today. The appeals 1188 and 1189 of 1993 which also appeared in the list on those days along with the other cases, yet have been listed today; due to reconstitution of Bench, before a Bench presided over by one of us, Honourable Justice Lingaraja Rath but of which Honourable Sri Justice P. Ramakrishnam Raju is not a member. But it is submitted by the learned Counsel for the appellants Sri V. Narasimha Reddy and the Government Pleader for Transport that as these cases were also before this Bench on 4th and 5th of November, 1994 and though were heard wrongly, yet were not shown as part heard, they have to be disposed of by this Bench. All the cases are hence disposed of by this common judgment.
The substantial question urged in all the cases is the competence of the respondent No. l to issue the Circular No. 26394/M.1/93 dated 27-5-1993 and its validity vis-a-vis the provisions of the Motor Vehicles Act and the Rules. A brief adumbration of the facts is necessary to introduce the questions raised by the learned Counsel, though the facts appear with elaborate description and clarity in the judgment under appeal. The appellants, who were also the writ petitioners, are all transport operators holding contract carriage permits and/ or tourist permits. An earlier crop of cases, writ petitions 6043 of 1992 and batch, had been filed assailing vesting of powers to seize the vehicle u/s 207 of the Motor Vehicles Act (hereinafter referred to as ''the Act'')- Those cases were dismissed with some observations on 16-2-1993. The communication of the result of the decision from the Office of the Government Pleader was received by the Transport Commissioner on 11-5-1993. Even before that, Writ Petitions Nos. 4565, 4571 and 4767 of 1993 had been filed complaining of the authorised Officers as not following the principles laid down by the Court in the decision. Some more writ petitions i.e., Writ Petition Nos. 5913, 6290, 6562, 6563 and 6564 of 1993 were filed for issue of direction to respondents to implement the orders in Writ Petition No. 6043 of 1992. While admitting the petitions, this Court issued interim directions to the respondents not to take action against the petitioners, if they had not violated any of the conditions laid down in the order dated 16-2-1993 in W.P.No. 6043 of 1992. Because of such interim orders, clarifications were sought for by the authorised Officers in response to which the Transport Commissioner issued Circular Memo Nos. 25261/M.1/93 dt. 18-5-1993. A number of writ petitions were filed questioning the circular issued. Thereafter the respondent No. 1 in consultation with the Government Pleader for Transport issued the impugned circular of 27-5-1993 in supersession of the earlier circular dated 18-5-1993.
Several questions were agitated before the learned Single Judge assailing the impugned circular and inter alia raising the questions that(1) the respondent No. 1 has no power to issue the circular; (2) that the circular was in contravention of the different provisions of the Act and Rules. All of the contentions have been repelled except deciding that a small portion of the circular as being not authorised in law. In the present appeals the conclusions reached in the judgment are challenged.
Before the questions urged are taken up, it is relevant to extract the circular in extenso:
"OFFICE OF THE STATE TRANSPORT AUTHORITY A.P.
HYDERABAD
Circular Memo No. 26394/M.1/93 dt. 27-5-1993. Sub:- Enforcement - Checking of contract carriages being misused as stage carriages - Certain conditions issued - Regarding. Ref:- 1. Judgment of High Court in W.P.No. 6043 of 1992. 2. Circular Memo No. 25261/M-1/93, dated 18-5-1993. All the writ petitions filed in W .P .No. 6043 of 1992 and batch, dt. 16-2-1993 questioning the collection of compounding fee against the driver, and the absentee permit holder, u/s 200 of the Motor Vehicles Act and seizure, detention of vehicles, u/s 207 of the Motor Vehicles Act, for alleged contravention of conditions of the permit, particularly, the alleged claim as stage carriage, were dismissed on 16-2-1993. In supersession of circular Memo No. 25261/M-1/93 dated 18-5-1993, cited in the second reference, and keeping in view of the judgment, cited in the first reference, the following guidelines are issued, in consultation with Government Pleader for Transport. In case of contract carriage, the contract must be prior and must indicate as to who are the passengers to be carried. There should be only single contract, and the engagement under a contract, is for use of vehicle, as a whole. There should be an element of hiring (on lump sumpayment) to use the vehicle, as a whole.
The order also upheld Rule85 of Central Motor Vehicles Rules, and 185(1) (a) of A.P. Motor Vehicles Rules which contemplates a list of passengers included in the contract to be produced before the Checking Officer on demand.
On the question of seizure and detention of the vehicles, the judgment upheld the power of Checking Officer u/s 207(1) of the Motor Vehicles Act, read with Rule 448 of A.P. Motor Vehicles Rules. u/s 207(1) of the Motor Vehicles Act, the Checking Officer may, if he has reason to believe that a Motor Vehicle, is being used in contravention of the purpose for which the permit is granted, take action to seize the vehicle. The judgment reiterated that the section contemplates existence of reasons on which the belief is founded and not mere belief. The copy of the judgment which is self-explanatory is enclosed. The judgment should be followed scrupulously.
The attention of the Checking Officer is also drawn to the cases where tourist agents are involved, the Checking Officer, may try to establish whether individual fares are collected by the operator, whether the travel agent is a licenced travel agent under Rule 2977A of the A.P. Motor Vehicles Rules. For any contravention of Rule 297-A action can also be taken on the licence of the travel agent. The Checking Officer should see whether the list of passengers is being maintained and also may try to establish the genuineness or otherwise of the list.
In case of tourist permit u/s 88(9) of the Motor Vehicles Act, the Checking Officer should see whether the purpose of taking permit is for tourism. The contract u/s 88(9) should be a tourist contract and not just a mere contract to carry passengers. Interrogation of the passengers may help to find out the genuineness of the purpose.
While seizing the vehicle u/s 207(1) of the Motor Vehicles Act, the Checking Officer should specifically mention in the vehicle check report, the reasons basing on which, he could believe that the contract carriage is being misused as stage carriage.
The Checking Officer shall note that it is his duty to hand over a legible copy of the VCR to the driver /operator who has to make him understand the reason for seizure, fulfilling the requirement under Rule 448-A, of the A.P. Motor Vehicles Rules. The receipt of the circular-memo should be acknolwedged by return of post.
Sd/- For Transport Commissioner".
It is submitted firstly that no circular can be issued by the Transport Commissioner without there having been an authority in that behalf conferred by the Government through a notification published in the Official Gazette and that secondly since the provisions of the Act and the Rules are self-operative, there is no necessity to issue a circular of the nature. So far as the first part of the submission is concerned, reliance is placed on Section 67 of the Act which vests power in the State Government to issue notifications for the purposes stated therein. The exercise of the power is exclusively confined to the purposes as stated in the section and nowhere vests power in the Government to issue notification authorising the Transport Commissioner to issue a circular. On the contrary, the question was discussed by the learned single Judge with reference to Section 213 and Rule 483 of the A.P. Motor Vehicles Rules 1989. Under Rule 483 the Transport Commissioner is designated the head of the department and all other Officers of the Transport Department are, under the rule, directed to carry out instructions and orders issued from time to time by him. We hence agree with the learned single Judge that the Transport Commissioner has the statutory power to issue instructions to the Officers of the Department and that the instructions so issued are to be carried out. Even otherwise, the fact that superior officers of the Government can issue instructions and directions to their subordinates is an accepted procedure of discharge of Governmental functions. Unless such right is conceded for the functioning of the Government, the system itself would be paralysed. Article 154 of the Constitution mandates not only that the executive power of the State is vested in the Governor but also that such power shall be exercised by him either directly or through officers subordinate to him, i.e., consisting the hierarchy of officers which concept, must, as a necessary concomitant, connote that a higher officer will have authority and control over his subordinates to the extent he exercises the authority. There hence cannot be any doubt that the Transport Commissioner had the authority to issue the circular if he thought that a circular was necessary. The necessity of issuing a circular also is not available to be questioned before this Court. As to how best an administrative function is to be discharged, it is for the authorities to decide and is not a function of this Court. If in discharge of his role the respondent No. 1 thought that a clarificatory circular was necessary to be issued, nothing could prevent him from doing that. As it is, the circular was necessitated since the earlier circular of 18-5-1993 issued by him had been questioned and clarifications had also been asked for from him by various authorised Officers and orders had been also passed by this Court on 6-2-1993 with some observations. It was hence only fit and proper that the Transport Commissioner thought it necessary to issue the clarificatory circular after consulting the Government Pleader.
Once the power to issue the circular is conceded the maintainability of the writ petitions questioning the circular becomes wholly vulnerable as the circular was issued, as it itself stated, as a guideline. It was hence an instruction issued to the subordinates and was an inter-departmental communication for the conduct and guidance of the Officers. It did not purport to affect any right of the petitioners. It was not a published notification affecting third party rights. The circular hence did not create any justiciable rights or liabilities to be questioned in petitions under Article 226 of the Constitution of India. The question was considered by the Supreme Court in G.J. Fernandez Vs. State of Mysore and Others, relating to instructions contained in Mysore Public Works Department Code. The Court observed that the instructions in the Code are mere administrative instructions and not statutory rules and that, therefore, even if there has been any breach of such executive instructions, that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Article 226. It is a matter between the State Government and its servant. Again, J.R. Raghupathy and Others Vs. State of A.P. and Others, , the Court made the observation, in connection with the administrative instructions of the Government for location of mandal headquarters at particular places and the scope of interference by the High Court on ground of breach of the guidelines, that those are merely in the nature of instructions issued by the State Government to the Collectors for regulating the manner in which they should formulate their proposals for formation of a revenue mandal or for location of its headquarters keeping in view the broad guidelines. The guidelines had no statutory force and they had also not been published in the Official Gazette. They were mere departmental instructions meant for Collectors. The Court said, "Even assuming that the Government while accepting the recommendations of the Cabinet Sub-Committee directed that the mandal head quarters should be at place ''X'' rather than place ''Y'' as recommended by the Collector concerned in a particular case, the High Court would not have issued a writ in the nature of mandamus to enforce the guidelines which were nothing more than administrative instructions not having any statutory force which did not give rise to any legal right in favour of the writ petitioners". In making the observations, the Apex Court was overruling the decision of this Court in 1986 (1) An.W.R. p. 362.
Hence unless the guidelines or instructions issued by an administrative authority for the guidance of the subordinate officers infringe upon any statutory or fundamental rights of the applicants, relief in the nature of a Writ of mandamus is unavailable. On this simple ground, the writ petitions and consequently the writ appeals are bound to fail.
Direction in the circular is that in the case of a contract carriage the contract must not only be prior but must also indicate as to who are the passengers to be carried. It is the submission that while a list of the passengers may be required to be given yet a detail list of the passengers is not a thing which can be demanded. The submission was repelled by the learned Single Judge referring to the decision of the Supreme Court in Brinjendra Kumar Choudhari v. State of Uttar Pradesh, 1993(1) ALt 589 wherein the very question was answered in the following words:
"The definition makes it clear that in order that a vehicle could be used to transport a passenger or passengers there must be a prior contract express or implied; that the contract must indicate as to who are the passengers to be carried; that the contract shall have been entered into by a person with the holder of the permit or any person authorised by him; and that the engagement under "a contract" is for use of the vehicle as a whole. It is not possible to read the words "under a contract" in the context as referring to both a single contract and more than one contract. If the construction placed by the learned Counsel is accepted there would be no distinction between stage carriage and contract carriage permits. Both these classes of permits are intended to meet different requirements. A stage carriage is intended to meet different requirements of the general travelling public. But the contract carriages are for those who want to hire the vehicle collectively or individually for a group of party for their transport from place to place and the whole vehicle is at their disposal".
The submission hence no longer subsists and has to be overruled.
It is next contended that Section 207 does not itself contemplate issue of a circular and that the power of seizure can be exercised only in accordance with the prescribed manner as provided in the Section itself, but that under Chapter XIII of the Act there is no section empowering the Government to make rules regarding seizure and detention of vehicles. The submission has no substance, as has been pointed out in the impugned Judgment, since an earlier Division Bench of this Court, in P. Ravindranath Reddy and Others Vs. Government of Andhra Pradesh and Others, , have considered the question and repelled. The issue is no longer alive.
A submission was advanced by Mr. Noushad Ali that in case of contract carriages the contractor who takes the caiage on contract must himself be a passenger but that such provision is absent in the impugned circular. The submission is misconceived because the provisions relating to contract carriages do not contemplate the contractor himself to be a compulsory passenger and that, at any rate, the absence of such a requirement in the circular confers no enforceable or justiciable right on the petitioners.
The further submission which is consequential to the submission is that even in the absence of the contractor as a passenger, the authorised officers, because of the circular, are inter alia taking action to seize and detain the vehicle even behind the contractors who take the carriages on contract. The submission has no force as the powers of seizure and detention are to be exercised by the Officers in accordance with the provisions of the Act and the Rules. The mere absence of the contractor would not bar the Officers to exercise their statutory powers of seizure and detention and the consequential actions thereafter are only to be carried out in accordance with the provisions of the Act. There is also provision for release of the vehicle at the instance of the owner or the person in-charge. The provisions themselves are not under challenge before us. There is hence no case of violation of the principles of natural justice.
All the contentions raised by the learned counsel fail. We are otherwise in complete agreement with the judgment of the learned Single Judge for which a detailed reiteration of the questions dealt with by him is not necessary as was decided in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury,
In the result, the appeals fail with costs. Hearing fee Rs. 500/- in each case.