Karnataka High Court
A.B. Chinagi vs Registering Authority And Regional ... on 9 December, 1987
Equivalent citations: AIR1988KANT232, ILR1988KAR59, 1988(1)KARLJ46, AIR 1988 KARNATAKA 232, (1988) 27 REPORTS 140, (1988) 1 TAC 265, ILR 1988 KANT 59, (1988) 1 KANT LJ 46
JUDGMENT Prem Chand Jain, C.J.
1. This order of ours would dispose of both the appeals (Writ Appeals Nos. 2174 and 2175 of 1984), as the same arise out of a single judgment of the learned single Judge dated 6th of August 1984 by which Writ Petitions Nos. 10399 and 10400 of 1984 were dismissed.
2. The appellant is a tourist operator, operating his services throughout the territory: of India. He has got regular contracts from Madhya Pradesh Office for conducting tours in South India, particularly in the State of Karnataka. For this purpose he is obtaining special permits specifying the, names of the places for conducting tours.
3. It is averred in the petition that vehicle No. MBE 2642 is one of the vehicles under the ownership of the appellant registered as an omni-bus before the R.T.O., Indore. The said vehicle was contin6lously engaged by touring parties for tours of various places and pilgrimage centres in Karnataka. On 10th of December, 1983 and 19th of March, 1984 the vehicle was checked by the Inspector of Motor Vehicles attached to the office of the Registering Authority and Regional Transport Officer, Bijapur. On checking it was found that the vehicle had picked up individual fare-paid passengers and operated as a stage carriage service. On the basis of these allegations the Registering Authority and, Regional Transport Officer, Bijapur, proceeded to pass an order suspending the registration certificate of the vehicle for a period of 4 months vide his orders dated 26th of May, 1984 - copy of the order is attached as Annexure-A.
4. Similarly the Inspector of Motor Vehicles attached to the office of the: Registering Authority and Regional Transport Officer, Dharwar, also checked the vehicle on 16th of February, 1983 and similar allegations were made in the check-report. Based, on the said check-report, the authorities proceeded to pass orders suspending the registration certificate of the vehicle for a period of 4 months - copy of the order is attached as Annexure-B.
5. Feeling aggrieved from the orders of the First and Second Respondents, Registration Appeals Nos. 2/84-85 and 1/84-85 respectively were preferred before the 3rd respondent. Finding no merits in those appeals, the Deputy Commissioner for Transport dismissed both the appeals vide his order dated 12th of June, 1984, copies attached as Annexures C and D respectively.
6. Dissatisfied from the orders of the Respondent, the appellant preferred Writ Petitions Nos. 10399 and 10400 of 1984 in this Court, which as earlier observed, were dismissed by the learned single Judge of this Court. Hence, the present appeals.
7. Before the learned single Judge a contention was raised on behalf of the appellant that the case did not fall under Section 33(l)(b) of the Motor Vehicles Act (hereinafter referred to as the Act), that the case fell under Section 60 of the Act and that as the authority to exercise the power under Section 60 of the Act is different from the one which exercises the power under Section 33(l)(b) of the Act, the orders are without jurisdiction. What was sought to be argued by the learned counsel for the appellant, before the learned single Judge was that the vehicle in question was covered by the special permit authorising to conduct special tours, other that while it was carrying certain passengers, the vehicle was being used as stage carriage vehicle, and that the vehicle did possess a permit and hence the user of the vehicle as a stage carriage would tantamount to using the vehicle contrary to .the conditions of the permit and would not amount to using the vehicle without a permit. In support of the contentions, reliance was placed before the learned single Judge on the decision of the Andhra Pradesh High Court, in Nakkala Nageswara Rao v. Asstt. Transport Commr. & Secy., R. T. A., Eluru, and the decision of this Court in S. R. Rangaiah V. Sr. R. T. 0., Bellary . The learned single Judge on consideration of the entire matter, in the light of the decisions referred to above and the other decision to which reference has been made in the judgment came to the conclusion that the vehicle in the instant case enjoyed only a special permit, that there was no permit to use the vehicle as a stage carriage, that the use of the vehicle as it stage carriage, was not of same or similar nature which was permitted by 'the special permit enjoyed by the vehicle and that the order has been passed ,in accordance with law.
8. Before us, the short question of law that requires determination is whether the case falls under Sec. 33(1)(b)or under Section 60 of the Act.
9. The contention of Mr. Narasimha Murthy, Senior Advocate, was that the case fell under Sec. 60 and not under Sec. 33(l)(b) of the Act, that the provisions of Sec. 33(l)(b) ,are not attracted to a case where there is a valid permit authorising the plying of the vehicle for hire or reward but the Same has been misused, and that Sec. 33(l)(b) is' attracted only when a private carrier uses the vehicles for hire or reward.
On the other hand, while controverting the contentions, Mr. Chandrashekhariah, learned State Counsel, submitted that the words occurring in the section 'for such use' are referable to the particular use of the vehicle, that hiring the vehicle is covered by special permit authorising to conduct special tour, that legally on that permit other passengers could not be carried nor could the vehicle be used as a stage carriage vehicle,and that the case was fully covered by the' 'provisions of Sec. 33(l)(b) of the Act.
10. Before adverting to the merits, it is necessary to notice the relevant provisions of the Act which read as under: -
"33. Suspension of Registration :
(1) If any registering authority or other prescribed authority has reason to believe that any motor vehicle within its jurisdiction-
(a) is in such a condition that its use in a public place would constitute a danger to the public, or that it fails to comply with the requirements of Chapter V or of the rules made thereunder, or
(b) has been or is being, used for hire or reward without a valid permit for being used as such, the authority may, after giving the owner, an opportunity of making any ,representation he may wish to make (by sending to the owner a notice by registered post acknowledgment due at his address entered in the certificate of registration), for reasons to be recorded in writing, suspend the certificate of registration of the vehicle, -
(i) in any case falling under clause (a), until, the defects are remedied, to its satisfaction; and
(ii) in any case falling under clause (b), for a period not exceeding four months."
60. Cancellations and Suspensions of permits :
(1) The Transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit-
(a) on the breach of any condition specified in sub-sec0on (3) of Sec. 59, or of any condition contained in the permit; or
(b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit (3) Where a permit is liable to be cancelled or suspended under Cl. (a) or Cl. (b) or Cl. (e) of sub-section (1) and the transport authority is of opinion that having regard to the circumstances of the case it would not be necessary or expedient so to cancel or suspend the permit if the holder of the permit agrees to pay a certain sum of money, then, notwithstanding anything contained in subsection (1), the transport authority may, instead of cancelling or suspending the permit, as the case may be, recover from the holder of the permit the sum of money agreed upon."
The part of Section 33 which has been reproduced above was amended by Act 100 of 1956. The Statement of Objects shows that the necessity for amendment arose as there was an increasing tendency on the part of the owners of the vehicles (particularly private cars) to use them without a valid permit for the carriage of passengers for hire or reward. In order to check this growing abuse, the registering authority or other prescribed, authority is now also empowered to suspend the registration certificate of a vehicle engaged (without a valid permit) in operation for hire or reward. An analysis of the two relevant provisions of the sections shows that they are mutually exclusive and operate in different situations. This distinction has succinctly been brought out in the judgment of this Court in S. R. Rangaiah v. Sr. Regional Transport Officer, Bellary, , where K. Jagannatha Shetty, J., (as his Lordship then was) on surveying the two sections has observed thus :
"On a close analysis of the substance of these sections, we find at least three main distinctions :
First: S. 133 confers power on, the registering authority of the vehicle or other prescribed authority. Rule 67 of the Motor Vehicles Rules, 1963 sets out those prescribe authorities. Section 60 confers power only' on the transport authority or an authority to whom the power under S. 60 has been delegated. Rule 96 of the Rules provided for delegation of such power for prompt and convenient despatch of business. Under the scheme of the Act, the registering 4,,-'hority is quite; different from -the transport authority., Second: The power conferred by S. 33 is only to susp6nd the certificate of registration of the vehicle whereas no such power is conferred by S.60. Under S. 60. it is the permit of the vehicle that-could be us pended or cancelled and not the certificate of registration of the vehicle.
Third: Sub-sec. (3) of S. 60 provides for compounding the offence. It confers on the R.T.A. or its delegated authority a discretion and power to.a6cept,"the sum of money agreed upon by the~ holder of the permit if it feels that it would not be necessary or expedient to cancel or suspend the permit. No such discretionay power is vested in the registering authority under S. 33.
Sections 33 and 60 are thus not mutually exclusive, but also widely apart. The difficulty, however, arises when we turn to the basis upon which the respective powers could be exercised. Section 33(l) authorises the registering authority or the prescribed authority to suspend the certificate of registration of the vehicle if it has reason to believe that the vehicle has been or is being used for hire or reward without a valid permit. Section 60 on the other hand, confers power on the transport authority which granted the permit, to cancel or suspend the permit if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit. One refers to the use of a vehicle without a valid permit, while the other refers to the use of a vehicle in a manner rot atithorised by the permit. The difference thus goes to the root. Section 33 covers case or misuse of a vehicle which has no permit for the purpose; while S. 60 covers, covers of misuse of a vehicle in breach of the conditions of the permit granted. The distinction discerned between the two sections Eke the difference in carrying on a business without licence and carrying on a business contrary to the conditions of the licence."
Similarly in Nakkala Nageswara Rao v. Asst. Transport Commr., , Mrs. Amareswari, J. speaking for the Court has brought out the distinction thus:-
"On reading of the definitions, of motor vehicle, public service vehicle and transport vehicle, it is clear that a motor vehicle becomes a transport vehicle when it is used or adapted to be used for carrying passengers or goods for hire or reward. When it becomes a transport vehicle, it has necessarily to be covered by a permit as per S. 42 of the Act. Section 33 prohibits the use of a motor vehicle for hire or reward without a valid permit that is to say a motor vehicle cannot be used as a transport vehicle without a permit. When once the vehicle is covered by a permit under S. 42 the motor vehicle becomes a transport vehicle and thereafter the use of that vehicle is regulated by the conditions of the permit and if the transport vehicle is used contrary .to the conditions of the permit or in a manner not authorised by the permit S. 60 comes into play. But in the case of a motor vehicle which is not covered by a permit no action can be taken under S. 60 as the vehicle is not covered by any permit. It is to cover such contingency namely, where a motor. Vehicle is used as a transport vehicle that is to say for carrying passengers for hire or reward with a permit. S. 33(l) (b) is enacted empowering the authorities to suspend the registration certificate as a measure to check misuse. In our opinion, S. 33 and S. 60 operate in different and distinct spheres. Section 33 applies to a motor vehicle not covered by any permit. Whereas S. 60 applies to vehicles covered by permits. While S. 33 applies to a case where there is no valid permit at all S. 60 applies to a case where there is a valid permit but the use is in violation of the conditions of the permit. In the case of transport vehicle, the Act provides for an exhaustive machinery for controlling misuse and malpractices by the owners. In the case of motor vehicles not covered by any permit S. 33 provides for action to be taken against the registration certificate itself. While in the case of transport vehicles it is the transport authority that has to take action. In the case of motor vehicle which is not a transport vehicle action has to be taken by the registering authority. While under S. 60 it is the permit that is suspended under S. 33 it is registration certificate that is suspended. While S. 33 contemplates suspension for a maximum period of 4 months, S. 60 fixes no such maximum period for suspension and permits even cancellation of tire permit. Under S. 60 of the transport authority has got discretion to compound the offence whereas under S. 33 there is no such discretion. Thus there is a major distinction between the two sections. One refers to the use of the vehicle without a permit and the other refers to the use of vehicle in a manner not authorised by the permit and there is a difference at every point .........."
Keeping in view the aforesaid distinctive features, we have given our thoughtful consideration to the entire matter and find that the view point projected by Shri R. Narasimha Murthy, Senior Advocate, learned counsel for the appellant, is more plausible and would be more in consonance with the object sought to be achieved through the amendment.
As is evident from the statement of objects the amendment was made in order to check the increasing tendency on the part of the owners of vehicles (particularly private cars), to use them without a valid permit for the carriage of passengers for hire Section 33(l)(b) provides for suspension of a permit if a vehicle is being used for hire or reward without a valid permit for being used as such. Mr. Chandrashekhariah, learned State Counsel, had contended that the expression 'as such' refers to 'valid permit' and not to 'hire or reward' as was contended, by the learned counsel for the appellant. There can be no gainsaying that if this interpretation is accepted, then there can be no room for doubt that S. 33(l)(b) would also cover the case of vehicles which possess valid permit and have been misused. However, on close scrutiny of the section, we find this contention of the learned State Counsel, unacceptable. The words as such go with the words hire or reward'. If these words are used with valid permit it would.make the reading of sub cl. (b) clumsy. The whole emphasis in cl. (b) is on the words 'hire or reward'. The liability under S. 33(1)(b) is attracted only when the vehicle - is used for hire or reward. To emphasise, a vehicle, if used without a permit, without proving that it was used for hire or reward, would not be liable for any action under S. 33(l)(b) of the Act. If the words 'as such are read with the words 'valid permit', then, the words hire or reward would become insignificant. To attract the applicability of this clause what has to be shown is that the vehicle without a permit was being used for hire or reward. Section 33(1)(b) encompasses within its fold vehicles which have no permit, while S. 60 envisages -those vehicles which are possessed of a valid permit; but are being used by contravening the conditions of the permit. To demonstrate, the vehicle in the case in hand has a valid permit and its user is regulated by the conditions mentioned in the permit In case it does not conform to those conditions, then it would be violative of the, conditions, but by no stretch of imagination can it be said that the vehicle is without a' permit. As has been indicated earlier, the amende4 section was enacted to control the menace of the user of vehicles without a permit such as user of private owned cars or other vehicles for hire or reward. Now in such cases the vehicle has no permit at. all,and. it is being used for hire or reward and it is these type of cases which attract the provisions of S. 33(l)(b). As observed by K. Jagannatha Shetty, J. (as his Lordship then was), the distinction between the two sections is like the difference in carrying on a business without licence and carrying on a business, contrary to the conditions of the licence. In the words of Mrs. Amareswari, J. of Andhra Pradesh High Court, S. 33 refers to the use of the vehicle without a permit and S. 60 refers to the use of the vehicle in a manner not authorised by the permit. In this view of the matter we hold that the provisions of S. 33(1)(b) would be attracted only to those cases where a vehicle is without any permit. What so ever and is being used for hire or reward. This view of ours finds full support from the judgment of the Andhra Pradesh High Court wherein on a similar question it is held as under: -
"The nature of the user is not the criterion, for applicability of S. 33(l)(b) as that is determined by the conditions of the permit. Thus we are of the view that where the motor vehicle is used as transport vehicle without a permit, S. 33(l)(b) is attracted and where a transport vehicle is used. in a manner not authorised by the permit or contrary to the conditions of the permit, S.60 applies................................................The test therefore is whether the vehicle is covered by a permit or not. In the cases referred to above it was specifically held that S. 33(l)(b) has no application to the case of a vehicle covered by a permit. Having regard to the scheme, object and setting of the Act we are clearly of the view that S. 33(1)(b) and S. 60 of the Act operate in different spheres; while the former applies to case where the vehicle is used without any valid permit whatsoever that latter applies to a case where the vehicle is covered by a permit but used in contravention of the conditions of the permit or in a manner not authorised by t he permit."
Mr. Chandra shekharaiah, besides emphasing and commdening on the view point of the learned single Judge in the decision under appeal, had brought to our notice unreported judgments of this Court in K. Noorulla v. R.T.O., (W. P. No. 64/1981 disposed of on 169-1982), M.H.A.S. Mulla v. Dy. Cornmr. for Transport (W. P. No. 1162/84 disposed of on 7-6-1984), (since ), and Ganappayya Govind Gowda v. Deputy Supdt. of Police (W.P. No. 27513/81 disposed of on 16-12-1981) (since reported in 1982 (2) Kant LJ 54), which have also taken similar view. With respect for the reasoning, adopted by us, we are unable to subscribe to that view.
Coming to the facts, there is no dispute that the vehicle in question was possessed of a valid permit. In this situation by picking up passengers And using it as a stage carriage the owner has violated the conditions of the permit, and action against him could be taken only under S. 60 of the Act and not under S. 33(l)(b) of the Act, with the result the impugned orders are wholly without Jurisdiction.
Consequently, we allow the appeals, set aside the judgment of the learned single Judge and quash the impugned orders of G) the Registering Authority & R.T.O., Bijapur, in No. DSA/BJP/MBE 2642/84-85 dated 26-5-1984 (Annexure-A), (ii) Registering Authority & R.T.O., Dharwad, in No. DSA-J/MBE2642 DWD/83-84 dated 18-4-1984 (Annexure-B), (iii) the Deputy Commissioner for Transport, Belgaum Division, Belgaum, in Appeal No. DCT.RGN.APL.2/84-85 dated 12-6-84 (Annexure-C), and (iv) the Deputy Commissioner for Transport, Belgaurn Division, Belgaum, in Appeal No. DCT.RGN.APL 1/84-85 dated 12-6-1984 (Annexure-D). It may however be made clear that the appropriate authority under S. 60 of the Act would be entitled to initiate proceedings against the appellant in accordance with law. In the circumstances of the case we make no order as to costs.
11. Appeals allowed.