Andhra HC (Pre-Telangana)
L. Gotham Chand vs The District Judge And Ors. on 13 September, 1991
Equivalent citations: 1992(1)ALT489
ORDER M.N. Rao, J.
1. Section 2(19) of the Motor Vehicles Act; 1939 reads:
"'owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement, the person in possession of the Vehicle under that agreement."
Section 44 of the A.P. Forest Act, 1967, lays down a detailed procedure for seizure of property liable to confiscation. Section 44(2-C) says that if the 'owner' of the vehicle used in the commission of a forest offence proves to the satisfaction of the authorised officer that the vehicle was used "without his knowledge or connivance or the knowledge or connivance of his agent' and that all reasonable and necessary precautions against the use of the vehicle were taken, the authorised officer shall not pass the order of confiscation. Section 44(2-E) enables "any person aggrieved" by the order of confiscation to file an appeal to the District Court having jurisdiction over the area in which the property has been seized.
2. In the present writ petition car bearing registration number T.M.W. 2601 was seized on the intervening night of 11 /12-4-1988 on the allegation that it was involved in illicit transport of 544 K.Gs., of red sanders. It was alleged that the persons in the car bolted away when the vehicle was intercepted by the Forest Officials. The authorised officer issued a publication in the newspapers calling for objections and as no one had filed any objections, passed an order confiscating the vehicle. The writ petitioner claiming himself to be a financier under a hire purchase agreement dt.10-11-1987 in respect of the vehicle, filed an appeal before the District Court, Cuddapah. The learned District Judge dismissed the appeal, inter alia, holding that the petitioner cannot claim himself to be the owner of the vehicle in view of the definition of 'owner' under Section 2(19) of the Motor Vehicles Act. Challenging the same this writ petition was filed.
3. In Lakshmaiah v. State of A.P., 1979 (1) ALT 201 Punnayya, J. held:
"Under Section 2(19) of the Motor Vehicles Act of 1939 owner means that person in possession of the vehicle under the hire purchase agreement. In view of the definition under Section 2(19) the first petitioner is the owner of the vehicle and the 2nd petitioner cannot be deemed to be the owner of the vehicle. If the 2nd petitioner has got any rights under the said agreement, he can proceed against the 1st petitioner."
A different view was taken by Rama Rao, J. in State Bank of India v. State of A.P., Crl. R.C.No. 499/84 dt. 15-10-1985 (APHC) wherein the learned Judge observed:
"The context and set up of the provision for Section 49 in conjunction with Section 44(2-C) indicate that either the full fledged owner or a person having interest in the nature of proprietary interest or ownership are entitled to move under the said provisions as the case may be, and exclude the claim at the instance of the creditors, either secured or unsecured."
The Karnataka High Court in a case arising under the Customs Act reported in Gundu Govind Dumale v. Collector of Customs, 1980 Karnataka Law Journal 308 the full report of which is found in Hire Purchase Cases, Vol. II page 245, held:
"In the case of a vehicle that is subject to hire purchase, the registered owner of the vehicle is only a hirer of the same, and its real owner is only the financier of that vehicle. The hirer does not become the owner till he pays all the instalments and the purchase price, though he is recognised as its registered owner in the record of the authorities functioning under the 1939 Act. While the hirer is under no obligation to purchase a vehicle, he becomes its owner on payment of all the instalments, exercises the option to purchase and pays the purchase price to the real owner of the vehicle. The mere user or the recognition by the authorities under the 1939 Act, does not by themselves make him the owner of that vehicle."
4. As different and apparently conflicting views were expressed by two learned single Judges of this court, I am of the view that the matter requires to be decided by a Division Bench.
JUDGMENT Bhaskar Rao, J.
1. This writ petition, seeking issue of certiorari, came up before this Bench on a reference made by our learned brother, M.N. Rao, J., in view of conflicting decisions of this Court reported in Lakshmaiah v. State of A.P., 1979 (1) ALT 201 and State Bank of India v. State of A.P., Crl. R.C.No. 499/84 dt. 15-10-1985 (APHC) on the question, whether a 'financier' under an agreement of Hire Purchase of a Motor Vehicle comes within the purview of 'owner' of the vehicle to lay a claim under Section 44(2-C) of the A.P. Forest Act, 1967.
2. The brief facts necessary for disposal of this writ petition are: Dueing the night of 11/12-4-1988 an Ambassador Car bearing No.2601, when intercapted by the forest officials was abandoned by the Driver and another inmate of the vehicle and on search the vehicle was found illicitly transporting 544 K.Gs.of red sanders. The forest officials, therefore, issued a notice through publication in Hindu and Andhra Pradesh on 11-5-86 in terms of Section 44(2-B) of the A.P. Forest Act, 1967. In as much as nobody turned up in response to the notice under Section 44(2-A) making a claim to the notice, the Divisional Forest Officer, Proddatu (Authorised Officer) confiscated the Car under Section 44(2-A)of the A.P. Forest Act. On seeing the confiscation order published in the newspapers, the writ petitioner claiming himself to be the owner of the motor vehicle being the financier thereof moved the District Court, Cuddapah, under Section 44(2-E) for release of the vehicle in his favour. The learned District Judge having found the writ petition to be simply a financier and not a 'owner1 under Section 2(19) of the Motor Vehicles Act, 1939 dismissed the appeal. Hence this writ petition.
3. Before adverting to the merits of the writ petition, it is necessary to have a look at Section 44(2-C) of the A.P. Forest Act, 1967, which lays down the criteria for confiscation of a vehicle involved in illicit transport of the Forest produce, It runs thus:
"44. Seizure of property liable to confiscation and procedure thereon:
(2-C) without prejudice to the provisions of Sub-section (2-D), no order of confiscation under Sub-section (2-A) of any tool, rope, chain, boat or vehicle shall be made if the owner thereof proves to the satisfaction of the authorised officer that it was used in carrying the property without his knowledge or connivance Or the knowledge or connivance of his agent, if any, or the person in charge of the tool, rope, chain, boat or vehicle in committing the offence and that each of them had taken all reasonable and necessary precaution against such use."
4. It is partient to notice that the writ petitioner is no basing his claim for release of the vehicle on the ground that the order of confiscation made by the authorised officer under Section 44(2-A) is bad on account of non-compliance of Sub-section (2-B) of Section 44. Even otherwise also the order of the Authorised Officer recites compliance of the mandatory provisions covered by Section 44(2-B). This equally is not a case where the owner of the vehicle invoked the provisions of Section 44(2-C) and moved the Authorised Officer. It is only after an order under Section 44(2-A) is made confiscating the vehicle, the writ petitioner approached the District Court in voking the pro visions of Section 44(2-E) and claiming release of the vehicle on the ground that he being the financier is the 'owner of the vehicle', that he did not have the knowledge or connivance in letting the vehicle carry illicitly the forest produce and that he took all reasonable and necessary precaution against such use. Section 44(2-C) envisages a proof that the vehicle was used in carrying the property without the knowledge or connivance of the owner, or the knowledge or connivance of the agent, if any, or the person-in-charge of the vehicle in committing the offence and that each of them had taken all reasonable and necessary precaution against such use. Out of the three, viz., owner, (ii) agent and (iii) person-in-charge of the vehicle, the writ petitioner based his claim as a owner and endeavoured to prove that the vehicle was used in carrying the red-sanders without his knowledge or connivance in committing the offence in spite of his taking all reasonable and necessary precaution against such use. Thus has given rise to the question. Whether the writ petitioner is the 'owner of the vehicle' so as to prove that the illicit transport was not to his knowledge or with his connivance. This, the writ petitioner has to first establish that he is the 'owner' of the vehicle before entering into the arena of proof that he did not have the knowledge of the offence or the offence was committed with out his connivance, etc.
5. The case of the petitioner is that he has financed for purchase of the vehicle by one Pandian under a Hire Purchase Agreement and that until the said Pandian (Hire-Purchaser) pays the full amount advanced in the fixed number of instalments the financier-writ petitioner continued to be the owner of the vehicle, and that inasmuch as the hire-purchaser hardly paid four instalments and was still to pay eleven instalments, the ownership of the vehicle remained with him (the writ petitioner) and therefore entitled to enter into the arena of proof envisaged by Section 44(2-C), that as owner he did not have the knowledge of or connivance with the commission of offence, it is crucial to notice that Section 2(19) of the Motor Vehicles Act, 1939 has provided the definition of 'owner' thus:
" 'owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement the person in possession of the vehide under that agreement."
It is not disputed by the writ petitioner that it is the said Pandian (Hire-Purchaser) that is in possession of the vehicle as per the terms of the Hire-Purchase agreement entered into by him. Therefore as per the definition of the Motor Vehicles Act it is the said Pandian (Hire-Purchaser) with whom the possession of the vehicle is continuing that is the 'owner' of the vehicle. No doubt, as contended by Mr. Rangaramanujam, the writ petitioner may be entitled to invoke Section 31-A(5) of the Motor Vehicles Act, 1939 and have the registration made in favour of the said Pandian cancelled, of course after satisfying the registering authority that the Hire Purchaser having committed default in payment of instalments has also absconded. But the fact remains that the writ petitioner has not invoked that provision and on the date of the offence, it is the positive case of the writ petitioner, the Hire-Purchaser was inpossession of the vehicle. Consequently, in the light of the 'definition under Section 2(19) of the Motor Vehicles Act, 1939 we have to hold that it is the Hire-Purchaser Pandiyan that is the owner of the vehicle and not the financier writ petitioner. Therefore, the writ petitioner cannot enter into the arena of proof envisaged by Section 44(2-C) as a 'owner of the vehicle. It is not his case that he is either the agent of the owner or the person-in-charge of the vehicle at the time of commission of the offence so as to enter into the arena of proof in that capacity. So much so, he has not brought either the agent or the person-in-charge of the vehicle to prove that the vehicle was used in carrying illicitly the forest produce without the knowledge or connivance of each of them in spite of their taking all reasonable and necessary precaution against such use. Accordingly we hold that the writ petitioner is not the 'owner' of the motor vehicle not only for purpose of moving the Authorised Officer under Section 44{2-C) but also for proving that the vehicle was used in carrying the forest produce without his knowledge or connivance etc.
6. Turning to the decisions of this court, in Lakshmaiah v. State of A.P. (1 supra) referred to supra, the 1st petitioner purchased the motor vehicle from the 2nd petitioner under a Hire Purchase Agreement and even before payment of the 2nd instalment, the vehicle was found by the Authorised Officer to be carrying illicitly the forest produce and therefore it was confiscated by him under Section 44(2-A). The appeal preferred by the 1st Petitioner under Section 44(2-E) to the District Court also culminated in dismissal. Therefore, a revision was preferred to this Court. At the instance of the 2nd petitioner, he was also impleaded in the revision. In those set of circumstances, the contention of the 2nd petitioner (financier) is that he being the owner of the motor vehicle could successfully have the vehicle released in his favour under Section 44(2-C) inasmuch as he did not have the knowledge nor was it with his connivance that the offence was committed and so on. In that context the learned Judge, Punnayya, J., of this court held that in view of the definition under Section 2(19) of the Motor Vehicles Act, 1939, it is only the 1st petitioner (Hire purchaser) and not the 2nd petitioner (financier) that is the owner. Thereafter the case had a different diversion in the light of Section 59 of the A.P. Forest Act for compounding the offence. Even before Justice Punnayya the question of 'ownership' was not seriously argued, debated, discussed or decided except simply holding that by virtue of Section 2(19) of the Motor Vehicles Act it was the hire-purchaser, who was in possession of the vehicle, that is the owner. We are in full agreement with this view expressed by the learned Judge.
7. The other decision in State Bank of India v. State of A.P. (2 supra) of this court is one wherein as observed by the learned Judge therein:
"Admittedly there is no hire purchase agreement or any security in the nature of a pledge or otherwise"
That is also not a case where the provisions of Section 44(2-E) were invoked. The appeal filed before the District Court, therein, was under Section 49 of the A.P. Forest Act, 1967, which enables the person 'claiming to be interested' in the property to assail the correctness or validity of the confiscation order. Inasmuch as the State Bank of India, thexe, was simply a creditor looking to the property (motor vehicle) for satisfaction of the debt it advanced to the purchaser of the vehicle and did not have any semblance of interest as such in the vehicle, the learned Judge held that the State Bank of India cannot pursue the remedy of release of the vehicle under Section 44(2-C). Without making any reference to the definition of 'owner' as provided in Section 2(19) of the Motor Vehicles Act, the learned judge observed:
"The context and set up of the provision for Section 49 in conjunction with Section 44(2-C) indicate that either the full fledged owner or a person having interest in the nature of proprietary interest or ownership are entitled to move under the said provisions......."
It is, thus, a case where the locus standi of a person to move the Court under Section 49 of the A.P. Forest Act is decided and not one considering the question of 'owner' of the motor vehicle as rose in the present proceedings. That decision, therefore, in our view cannot be held to be one running contra to the earlier one in Lakshmaiah's case (1 supra).
8. The other decision brought to our notice by the learned counsel for the petitioner is the one rendered by the Karnataka High Court in Gundu Govind Dhumale v. Collector of Customs, 1980 Karnataka Law Journal 308 Puttaswamy, J., deciding the case held:
"In the case of a vehicle that is subject to hire-purchase, the registered owner of the vehicle is only a hirer of the same, and its real owner is only the financier of that vehicle......"
This decision is squarely against the definition of 'owner' given by Section 2(19) of the Motor Vehicles Act and therefore, we are not able to express our concurrence with the same.
9. In so far as the locus-standi of the writ petitioner to move the District Court under Section 44(2-E) is concerned, it is to be noticed that under the said provisions 'Any person aggrieved by an order passed under Sub-section (2-A)" is at liberty to approach the District Court. But, in so far as the release of the vehicle is concerned the aggrieved person has to prove to the satisfaction of the court that the vehicle was used in carrying the forest produce without the knowledge or connivance of the owner thereof, or his agent, if any, or the person-in-charge of the said vehicle in committing the offence inspite of each of them taking all reasonable and necessary precuation against such use. In the present case, inasmuch as the petitioner is the aggrieved person, being financier, as he claims, he has the locus standi to move the District Court under Section 44(2-E) of the A.P. Forest Act. In view of this, the finding of the District Court that he has no locus standi to move that Court under Section 44(2-E) is set aside. However, in view of the fact that except claiming that the writ petitioner is the 'owner' of the vehicle, which we held supra in the negative, no attempt is made by the petitioner to let-in-evidence by examining the owner of the vehicle (hire-purchaser) or his agent, if any, or the person-in-charge of the vehicle to prove that they did not have the knowledge and that it was without their connivance the vehicle was used in committing the offence in spite of each of them taking all reasonable and necessary care against such use. Consequently, he is not entitled to any relief in this writ petition.