Gujarat High Court
Gautamchand Lodha Prop. Of Abhinandan ... vs State Of Gujarat on 8 December, 2020
Author: A.G.Uraizee
Bench: A.G.Uraizee
R/SCR.A/7385/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 7385 of 2020
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GAUTAMCHAND LODHA PROP. OF ABHINANDAN FINANCE AUTH. PERSON OF
MANISHABEN MUKESHBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
ADITYA R GUNDECHA(8869) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 08/12/2020
ORAL ORDER
1. Present petition under Article 226 of 227 of the Constitution of India is preferred for following relief:
"[A] Your Lordships may be pleased to issue a writ, order or direction directing the Respondents to release / handover to the seized Vehicle Auto Rickshaw three wheeler passengers bearing Registration No.GJ-27-Y-3413 Engine No. AZYWJK12279, Chasis No. MD2A27AY6JWK45956 to the petitioner on appropriate conditions as deemed fit by this Hon'ble Court.
[B] Pending the admission and final hearing of this application, Your Lordships may be pleased to issue direction for release / handover of the seized Vehicle Auto Rickshaw three wheeler passenger bearing Registration No.GJ-27-Y-3413 Engine No. AZYWJK12279, Chasis No. MD2A27AY6JWK45956 to the petitioner on appropriate conditions as deemed fit by this Hon'ble Court;
[C] Ad-interim relief in terms of paragraph (B) above may be pleased to be granted.
[D] Any other and further relief/ which may be deemed fit by this Hon'ble Court be granted."Page 1 of 6 Downloaded on : Tue Aug 24 00:54:01 IST 2021
R/SCR.A/7385/2020 ORDER
2. The brief facts of the case are as under:
2.1. The petitioner, who claimed to be authorized persons of one Manishaben Mukeshbhai Parmar, a financier of the motor vehicle being Auto Rickshaw bearing Registration No. GJ-27-Y- 3413. The said Rickshaw was found involved in the prohibition offence under Sections 65(a)(e), 98(2), 116-B and 81 of the Gujarat Prohibition Act registered with Chiloda Police Station, District Gandhinagar and therefore, the Rickshaw is detained in the above-referred offence.
3. Heard learned advocate appearing for the applicant as well as learned APP for the respondent - State.
4. Section 98(2) of the Prohibition Act prohibits handing over interim custody of the vehicle involved in the crime pending the trial. The petitioner, being a financier, has approached this Court for releasing the vehicle involved in the crime directly by filing petition under Articles 226 and 227 of the Constitution of India.
5. At the outset, it needs to be stated that it is not in dispute that the petitioner is not registered owner of the subject vehicle. It is also not in dispute that the subject vehicle is hypothecated with the petitioner for the purpose of obtaining finance to purchase the subject vehicle.
6. The petition is filed on the basis of so-called authorization letter purportedly signed by one Manishaben Mukeshbhai Parmar, whereby, the authority is given to the present petitioner. The said authorization letter reads as under:Page 2 of 6 Downloaded on : Tue Aug 24 00:54:01 IST 2021
R/SCR.A/7385/2020 ORDER "I/We Manishaben Mukeshbhai Parmar, owner / owners of Vehicle No. GJ-27-Y-3413, hereby appoint, ordain and nominate Sri Abhinandan Finance (Prop. Gautamchand S. Lodha) to act as may / our authorized agents to attend to and to appear before the Collectors and the Dy. Commissioner of Police, Traffic and Licensing. Further authorise the above said person to appear Regional and District Transport Office and all the Court like Civil and Revenue and to ratify that all acts and deeds and things done by his vitually and lawfully, will be binding on my / us as I / We have done the same myself / ourselves personally."
7. It is eminently clear from authorization letter that under this authorization letter, the petitioner can approach authorities mentioned therein to ratify all acts, deeds and things done by said Manishaben Mukeshbhai Parmar vitually and lawfully. Hence, it is crystal clear that the authorization letter is given for the purpose of ratification of acts, deeds and things lawfully done by said Manishaben Mukeshbhai Parmar. This authority nowhere authorized the petitioner for any legal proceedings in any Court or any in any other authority on behalf of said Manishaben Mukeshbhai Parmar.
8. The Hon'ble Supreme Court, in the case of Navin Kumar V. Vijay Kumar reported in AIR 2018 SC 983, has observed in Para - 6 is as under:
"6 The expression 'owner' is defined in Section 2(30) of the Act, 1988, thus:
"2(30) "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement." The person in whose name a motor vehicle stands registered is the Page 3 of 6 Downloaded on : Tue Aug 24 00:54:01 IST 2021 R/SCR.A/7385/2020 ORDER owner of the vehicle for the purposes of the Act. The use of the expression 'means' is a clear indication of the position that it is the registered owner who Parliament has regarded as the owner of the vehicle. In the earlier Act of 1939, the expression 'owner' was defined in Section 2(19) as follows:
"11...2. (19) '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." Evidently, Parliament while enacting the Motor Vehicles Act, 1988 made a specific change by recasting the earlier definition. Section 2(19) of the earlier Act stipulated that where a person in possession of a motor vehicle is a minor the guardian of the minor would be the owner and where the motor vehicle was subject to a hire purchase agreement, the person in possession of the vehicle under the agreement would be the owner. The Act of 1988 has provided in the first part of Section 2(30) that the owner would be the person in whose name the motor vehicle stands registered. Where such a person is a minor the guardian of the minor would be the owner. In relation to a motor vehicle which is the subject of an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement would be the owner. The latter part of the definition is in the nature of an exception which applies where the motor vehicle is the subject of a hire purchase agreement or of an agreement of lease or hypothecation.
Otherwise the definition stipulates that for the purposes of the Act, the person in whose name the motor vehicle stands registered is treated as the owner."
9. The Hon'ble Supreme Court, in the case of HDFC Bank Ltd. V. Kumari Reshma reported in AIR 2015 SC 290, has observed in Para - 10 is as under :
"10. On a plain reading of the aforesaid definition, it is demonstrable that a person in whose name a motor vehicle stands registered is the owner of the vehicle and, where motor vehicle is the subject of hire-purchase agreement or an agreement of hypothecation, the person in possession of the vehicle under that agreement is the owner. It also stipulates that in case of a minor, the guardian of such a minor shall be Page 4 of 6 Downloaded on : Tue Aug 24 00:54:01 IST 2021 R/SCR.A/7385/2020 ORDER treated as the owner. Thus, the intention of the legislature in case of a minor is mandated to treat the guardian of such a minor as the 'owner'. This is the first exception to the definition of the term 'owner'. The second exception that has been carved out is that in relation to a motor vehicle, which is the subject of hire-purchase agreement or an agreement of lease or an agreement of hypothecation, the person in possession of vehicle under that agreement is the owner. Be it noted, the legislature has deliberately carved out these exceptions from registered owners thereby making the guardian of a minor liable, and the person in possession of the vehicle under the agreements mentioned in the dictionary clause to be the owners for the purposes of this Act."
10. The Hon'ble Supreme Court, in the case of Sunderbhai Ambalal Desai V. State of Gujarat reported in (2002) 10 SCC 283, while dealing with Section 451 of the Code, has given certain guidelines to the Subordinate Court for giving interim custody pending the trial on certain conditions.
11. It is worthwhile to note that the petitioner is neither the owner nor the person from whose custody the muddamal vehicle is seized. It is eminently clear that owner of a vehicle is a person in whose name the vehicle stands registered in the RTO record and if the vehicle is subject matter of an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under such agreement is considered to be owner of vehicle. In the present petition, there is averments in the petition, on the basis of which, the petitioner is seeking the custody of muddamal vehicle. Since as has been held by the Hon'ble Supreme Court that the endorsement of hyphenation in the RTO record does not make a person an owner of vehicle, therefore, I am of the considered view that the petitioner has no locus standi whatsoever to maintain this petition.
Page 5 of 6 Downloaded on : Tue Aug 24 00:54:01 IST 2021R/SCR.A/7385/2020 ORDER
12. Section 98(2) of the Gujarat Prohibition Act prohibits giving of interim custody under Section 451 of the Code to the person from whom the liquor more than 10 liters is recovered. In other words, the applicability of Section 451 of the Code is ousted, and also, the petitioner has no locus standi to maintain the petition not being the owner of vehicle. In view of the above, the petition lacks merits and and deserves to be dismissed at the threshold and accordingly, is dismissed.
(A.G.URAIZEE, J) JYOTI V. JANI / F.S.KAZI Page 6 of 6 Downloaded on : Tue Aug 24 00:54:01 IST 2021