- (1.) THIS writ petition, under Article 226 of the Constitution, has been filed by Shyam Lal Kabra for the following reliefs; - (a) THIS Hon'ble Court may kindly be pleased to issue a writ of prohibition or any other writ, order or direction which is deemed fit and proper in the circumstances of this case restraining the non-petitioners and their officers and employees from interfering with the playing of the vehicle of the petitioner or seizing the same covered by valid All India Tourist Permits for whole of Rajasthan which stands only renewed; and (b) Any other writ, direction or order which is deemed fit and proper in the circumstances of this case may kindly be passed in favour of the petitioner.
(2.) THE petitioner was granted permits in respect of tourist vehicles valid for the whole of Indian in contiguous States including the home State i. e. Rajasthan. A list of permits given to him is attached to the writ petition as Annex.-1. He was maintaining the tourist vehicles in accordance with the provisions of sub-section (ii) of Section-88 of the Motor Vehicles Act, 1988 (hereinafter to be referred to as 'the Act') and operating the same in accordance with the provisions of Rules 83, 84 and 85 of the Central Motor Vehicles Rules, 1989. In exercise of the power conferred by the Act, the Central Government as well as the State Government have made the Rules. The rules made by the Central Government known as 'the Central Motor Vehicles Rules, 1989', whereas the Rules made by the State Government known as 'the Rajasthan Motor Vehicles Rules, 1990'. Rules 82 to 86 of the Central Motor Vehicles Rules, 1989 deal with the tourist permits. Sub-rules (1) and (2) of Rule 85 which are relevant are being reproduced below: - "85 Additional conditions of tourist permit- (1) The permit holder shall cause to be prepared in respect of each trip a list in triplicate of tourist passengers to be carried in the vehicle, duly attested by the Executive Magistrate or Sub-Inspector of Police or a Gazetted Officer of the State Transport Authority or Regional Transport Authority authorised in this regard of the area from which the tour emanates giving full particulars as under: a) name of the passengers b) address of the passengers c) age of the passengers d) starting point and the point of destination (2) One copy of the list shall be sent by Registered AD Post to the Authority which issued the permit for record, the second copy shall be carried in the tourist vehicle and shall be produced on demand by the officers authorised to demand production of documents by or under the Act and the third copy shall be preserved by the permit holder. " Rule 5. 19 (A) (2) of the Rajasthan Motor Vehicles Rules, 1990 provides for certain conditions in respect of Contract Carriage. Clause (iii) of Sub-rule (2) which is relevant is being reproduced below:- "rule 5. 19 (A) (2) (iii)-that in case of a contract carriage, having seating capacity more than 12 in all, the vehicle shall carry a list of passengers travelling therein in the following form in respect of each trip and such list shall on demand be produced before the officer of the Transport Department not below the rank of Motor Vehicle Sub-Inspector. " From the perusal of the provisions of sub-section (9) of Section 88 of the Act, Rules 82 to 85 of the Central Motor Vehicles Rules, 1989 read with sub-rule (2) of Rule 5. 19 (A) of the Rajasthan Motor Vehicles Rules, 1990, it appears that the tourist vehicle before the commencement of his tour should have a permit in that respect and a certificate of fitness. It is required to carry with it a certificate of insurance and also a list of tourist passengers on its journey.
(3.) THE police and transport authorities used to challan and seize the tourist vehicle on the allegations for want of documents and or playing the vehicles against the conditions of permit. THE petitioner's complaint was that the police and transport authorities used to get the vehicles vacated from the drivers and after leaving them at the spot where the vehicles were seized without any shelter and without caring for the mode of transportation. Consequently, the petitioner had to file the present writ petition in this Court for a writ of prohibition restraining the authorities from either seizing the vehicles or compelling the passengers to vacate the vehicles on the ground that under the Rule applicable they did not have power to do so. The learned counsel for the petitioner urged that neither the authorities had power to seize the vehicles and take the same into their possession nor asked the passengers to vacate them. They could take into their possession only the papers which the driver was required to carry on journey. The submission of the learned counsel for the petitioner was based on Rule 5. 19 (A) (2) (iii) of the Rajasthan Motor Vehicles Rules,1990. Counsel urged that this Court should lay down the guidelines on which the authorities have to work. The petitioner's counsel urged that the Rules should be so interpreted that it harmoniously work. According to him, the liability of having committed the breach if at all is that of the owner and that the person driving the vehicle is entitled to consult him for the future course of action. The Rajasthan Motor Vehicles Rules, 1990 had been framed under the following provisions: "now therefore, in exercise of the powers conferred by Sections 8 (3), 28, 38,65,95,96, 107, 111, 138, 146, 176, 201,211 and 213 of the said Act, the State Government hereby makes the following rules, namely: The RAJASTHAN MOTOR VEHICLES RULES, 1990. " ;