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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: SYED IBRAHIM

DATE OF JUDGMENT: 21/02/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. MITTER, G.K.

CITATION:  1967 AIR 1424            1967 SCR  (2) 673  CITATOR INFO :  RF         1975 SC  17  (5,16)

ACT: Motor Vehicles Act (4 of 1939), ss. 42(1) and 123-"Owner  of a transport Vehicle", meaning of.

HEADNOTE: Under s. 42(1) of the Motor Vehicles Act, 1939, no owner  of a trans-port vehicle shall use it or permit it to be used in any public place save in accordance with the conditions of a permit  issued by the appropriated authority.  A  "transport vehicle"  means,  under  s..  2(33)  a  "public  ser-,  vice vehiicle"  and a "public service vehicle" means,,  under  s. 2(25), a motor vehicle either used or adapted to be used for the  carriage  of  passengers  for  hire  or  reward.    The respondent was the owner of a motor vehicle registered as  a "motor car" as defined in s. 2(16) of the Act and not, as  a "transport  vehicle".  He was charged with an offence  under s. 42(1) read with s. 123 of the Act, as the car was used on one  occasion, for carrying passengers on payment  of  hire, that  is  for having used the car as a  "transport  vehicle" without the requisite permit.  The trial court, and the High Court  on  appeal, acquitted him on the ground  that  as  s. 42(1) uses the words "owner of a transport vehicle" the sub- section  applies only to cases where the motor  vehicle  was registered as a transport vehicle. In appeal to this Court, HELD  :  It  is the use of the motor  vehicle  for  carrying passengers for hire or reward which determines the  category of the vehicle and the.appli’cation of s. 42(1).  Therefore, even if the motor vehicle was occasionally used for carrying passengers  for hire or reward, it must be regarded when  so used,  as  a  "public  service  vehicle"  and  therefore   a "transport  vehicle’  and,  if it was so  used  without  the necessary  permit the owner who uses it or permits it to  be so  used would be liable under s. 42(1) read with,: s.  123. The  interpretation  of  the High Court would  lead  to  the anomalous  result,  namely  : that whereas the  owner  of  a transport vehicle is required to have the permit, the  owner of a motor vehicle not constructed or adapted as a transport vehicle  could  carry with impunity passengers  without  any permit,  and such an interpretation would defeat the  object

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of  the legislature in making the provision in the  interest of the safety of passengeii. [675 F; 676 A-B; 677 H; 678  A- B] B  S. Usman Saheb v. State of Mysore, (1959) Mys., L.J.  388 and.  Jayaram  v. State of Mysore, [1962]  Mys.   L.J.  382, overruled.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 10  of 1965. Appeal  by special leave from the judgment and  order  dated July lo, 1964 of the Mysore High Court in.  Criminal  Appeal No. 223 of 1963. R. H. Dhebar and S.- P. Nayyar, for the appellant. The respondent did not appear. 674 The Judgment of the Court was delivered by Shelat,  J,  This  appeal,  by  special  leave,  raises  the question  as  to the true meaning of section  42(1)  of  the Motor Vehicles Act (4 of 1939). The  respondent, the owner of a motor car bearing  No.  MYU- 1089,  carried  8 passengers in his said car  on  Nanjangud- Mysore  Road on April 5, 1963 and collected Rs. 5 from  each of  them.   He was charge-sheeted under section  42(1)  read with section 123 of the Act for having used the said car  as "a  transport  vehicle" without the  permit  required  under section  42(1).   The trial Magistrate did not go  into  the merits though the prosecution led evidence and acquitted him relying  on  the  decision of the High Court  of  Mysore  in Jayaram  v.  The  State of Mysore(1).  The  State  took  the matter  in  appeal to the High Court urging  that  the  said decision required reconsideration.  On the view that it  did not,  ,  the High Court dismissed the  appeal.   Hence  this appeal. In  B.S. Usman Saheb v. The State of Mysore(2) the  question arose whether an owner of a motor car who had carried cement bags  and  other goods from one place to another  without  a permit  under  "section 42(1) could be said to have  used  a "goods  vehicle",  and,  therefore, could be  said  to  have contravened  section 42(1).  The trial Magistrate  convicted the  accused  on the ground that once the car  was  used  to transport  goods,  the vehicle was converted into  "a  goods vehicle" and required permit.  The High Court set aside  the conviction holding that the mere fact that the owner of such motor  vehicle used it for transporting goods did  not  mean that the vehicle was converted into a "goods vehicle" so  as to attract section 42(1).  Likewise in Jayaram v. The  State of   Mysore(1)  the  accused  who  had  his  motor   vehicle registered as a motor car used it for ,carrying  passengers, for  reward.   The High Court held that  the  ,said  vehicle having been registered as a motor car as defined by  section 2(16) was not "a transport vehicle" and no prosecution could lie under section 42(1).  The State of Mysore challenges the correctness  of  these decisions contending  that  though  a motor  vehicle is registered as a motor car, if it  is  used for  a  purpose  set out in  section  42(1)  viz.,  carrying passengers  for  hire or reward, the motor vehicle  on  that occasion  must  be said to have been used  as  a  "transport vehicle", and if so used without a permit, there would be  a breach  of  that  provision and the owner  so  using  it  or permitting it to be so used would be liable to be convicted. To  test  the correctness of this contention,  some  of  the relevant  ’provisions  of the Act may first  be  considered.

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Section  2(18)  Redefines a "motor vehicle" as  meaning  any mechanically-propelled  vehicle adapted for use  upon  roads whether the power of propulsion (1) [1962] Mys  L.J. 392. (2) [1959] Mys.  L.J. 388. 675 is transmitted thereto from an external or internal source.’ Section  2(16)  defines a "motor cat" as meaning  any  motor vehicle  other  than  a  transport-vehicle,  omnibus,  road- roller, motor cycle or in.valid carriage. :Clause 25 of s. 2 defines "public service- vehicle" as any motor vehicle  used or  adapted to be used for the carriage of  passengers  for, hire or reward, and includes a motor cab, contract  carriage and  stage  carriage.   Section  2(33)  defines   "transport vehicle"  as,  meaning a public service vehicle or  a  goods vehicle.   Section  3  requires a  person  driving  a  motor vehicle  in  any public place to have an  effective  driving licence  issued  to  himself authorising him  to  drive  the vehicle  and  provides that no person shall  drive  a  motor vehicle  as a paid employee or, shall so drive a.  transport vehicle unless his driving licence specifically entitles him so  to do.  Section 42 in,Chapter IV deals with  control  of transport vehicles.  Sub-section (1)provides: "No owner of a transport vehicle shall use or permit the use of the vehicle in  any public place save in accordance with the  conditions of a permit granted or countersigned by a Regional or  State Transport Authority or,the Commission authorising the use of the  vehicle in that place in a manner in which the  vehicle is being used." Section 42(1) no doubt uses the words "owner of a  transport vehicle"  and provides that he shall not use or  permit  its use  in  any  public  place  save  in  accordance  with  the conditions  of  a  permit granted or  countersigned  by  the prescribed  authority.   These words, however,  cannot  mean that the ’sub-section applies only to cases where the  motor vehicle  in question is registered as a  transport  vehicle. If that were so, a person can use his motor vehicle,provided it is not "a transport vehicle", for carrying passengers for hire  or reward without having to take out a permit for  its use  as"a transport vehicle".  Since the section is  enacted for  control of transport ,vehicles, it could never  be  the intention  of  the Legislature to allow such-  an  anomalous result.   The sub-section, therefore, must be  construed  in such  a manner as to effectuate the object for which it  was enacted.  So construed, it must mean that if a person  owns. a  motor  vehicle  and  uses it or  permits  its  use  as  a transport  vehicle  he can do so provided he takes  out  the requisite permit therefor If he does not take out the permit and uses it or permits its use ;Ls  "a transport vehicle" he commits  an infringement of the- subsection.  What the  sub- section  emphasises  is  the use of a motor  vehicle    as  a transport  vehicle  and the necessity of a Permit  which  is reqred for purposes of exercising control over vehicles used ’as transport vehicles.  This is clear from the  definitions of  "transport vehicle" and a "public service  vehicle".   A "transport vehicle" means a "public service vehicle" and  "a public service vehicle" means any motor vehicle either  used or  adapted to be used for carriage of passengers  for  hire or’ reward.  Therefore, any motor vehicle used for  carriage of passengers for hire or reward is regarded when so  M2Sup. Cl/67-14 676 used  as a public service vehicle and therefore a  transport vehicle.  it  is the use of the motor vehicle  for  carrying passengers for hire or reward which determines the  category

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of the motor vehicle whether it is adapted for that  purpose or  not.   It must follow that even if a  motor  vehicle  is occasionally used for carrying passengers for hire or reward it must be regarded when so used as a public service vehicle and  therefore  a  transport vehicle and if it  is  so  used without the necessary permit such use would be in breach  of s.  42(1) and the owner who uses it or permits it to  be  so used would be liable to be punished under S. 42(1) read with S. 123. A similar construction wag given to para 5(d) of Sch. 11  of the  Finance  Act, 1920 and section 14 of the  Finance  Act, 1922 in Payne v. Allcock.(1) Section 14 of the Finance  Act, 1922  provided  that  where a licence was taken  out  for  a mechanically-propelled vehicle at any rate under the  Second Schedule of the Finance Act, 1920 and the vehicle was at any time, while such a licence was in force, used in an  altered condition  or in a manner or for a purpose which  brings  it within, or which if it was used solely in that condition  or in that inianner or for that purpose would bring it within a class  or description of vehicle to which a higher  rate  of duty  was applicable under the said Schedule, duty  at  such higher  rate would be chargeable in respect of  the  licence for  the vehicle.  The appellant in that ,case, who  carried on. business as a green grocer held a licence for a  private motor  car, duty having been paid thereon at the  horsepower rate  under para 6, Scb.  II of the Finance Act,  1920...... The car was neither "constructed" nor "adapted" for use  for conveyance  of goods, but the appellant, while  the  licence was in force, used the said car occasionally for  conveyance of goods in the course of his trade.  It was contended  that this user was "for a purpose" which brought the car within a class  to which higher rate of duty under para 5 of Sch.  11 of Finance Act, 1920 became chargeable.  The court  accepted the  contention  and held that the user was  for  a  purpose which brought the car Within para 5 Sch.  II of the said Act and  the  appellant was rightly convicted.  It  was  not  in dispute  that  the  car  was  used  by  the  appellant  only occasionally for conveyance of goods in connection with  his trade.   Negativing  the  contention that the  car  was  not chargeable to higher duty as it was not adapted. forcarriage of goods, Avory, J., observed that "the section referred  to cases where the vehicle, while the licence is in force,  had been  used in an altered condition or in a manner or  for  a purpose  which  brings it within, or which if  it  was  used solely  in  that  condition or in that manner  or  for  that purpose  would  bring it within, a class or  description  of vehicle  to which a higher rate of ,duty is applicable."  He added  that  to construe that section, one has only  to  see what was the purpose for which the car was being used  which would bring it within the class to which a higher rate of (1)  [1932]2 K.B. 413.                             677 duty  was applicable.  The purpose which brought  it  within para  5,  as distinguished from para 6 of Sch. 11,  was  the purpose of conveyance of goods.  At palge 421 of the  Report it  was further observed, "twhere a licence had  been  taken out and the vehicle was at any time, while that licence  was in  force,  used,  (a) in an altered  condition,  (b)  in  a manner,  or  (c) for a purpose, which brings  it  within  or which  if  it was used solely in that condition or  in  that manner or for that purpose could bring it within a class  or description  of  vehicle to which a higher rate of  duty  is applicable,   then   duty  at  the   higher   rate   becomes chargeable."  It is thus clear that what brought  the  motor vehicle under para 5, Sch.  II was the purpose for which  it

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was used. Similarly in Public Prosecutor v. Captain R.  Rajagopalan(1) the High Court of Madras held that though rule 30(a) of  the Madras  Motor Vehicles Rules was intended to apply to  motor vehicles  used for the express purpose of letting for  hire, if  a motor vehicle was used even once for such  a  purpose, then, on that one occasion it was nonetheless let for  hire. Hence  if a person undertakes to convey goods for reward  in his  private vehicle on one occasion without  the  necessary licence  he would be regarded as having let his vehicle  for hire  and would commit an offence under that rule.   It  was contended  in that case that the Legislature did not  intend to compel an owner of a private vehicle, who ordinarily uses his  vehicle  for his own purposes, to take  out  a  licence merely because on one occasion he conveyed goods for hire in his  private  lorry.  That contention was negatived  on  the ground that a motor vehicle even if used once for  conveying goods  for  reward  would nonetheless be  regarded  on  that occasion  as one let out for hire.  In Re.  Manager,  Indian Express(2)  a  motor car owned by the petitioner  was  twice used for taking bundles of newspapers from the office of the Indian  Express  to the Railway Station.  It was  held  that when  the car was used for taking the said bundles, it  came within the definition of a "goods vehicle" as defined by  S. 2 (8) and, therefore, permit under s.   42 (1) was necessary and as the owner had no permit thereunder, he     was guilty of an offence punishable under s. 123. The  combined  effect of S. 42(1) and the definitions  of  a "motor vehicle", a "public service vehicle" and a ’transport vehicle"  is that if a motor vehicle is used as a  transport vehicle,  the  owner who so uses it or permits it to  be  so used is required to obtain the necessary permit.  It is  the use of the motor vehicle for carrying passengers for hire or reward  which  determines  the  application  of  s.   42(1). Therefore, whenever it is so used without the permit,  there is  an infringement of the subsection.  If the  construction of that subsection adapted by the High Court of Mysore  were correct, it would mean that whereas an owner of a  transport vehicle is required to have the permit, the owner of a motor vehicle not constructed or (1) A.LR. 1938 Mad. 233. (2) A.I.R. 1945 Mad. 440. 678 adapted  as  a  transport vehicle can  carry  with  impunity passengers  for hire or reward without any permit  therefor. Section   42(1)  has  been  enacted  for  the   purpose   of controlling vehicles carrying passengers, the object of such control being obviously to ensure safety of passengers.  The construction accepted by the Mysore High Court would  defeat the  object for which the Legislature provided such  control in  the interest of and for the safety of  passengers.   The view  taken  by the Mysore High Court with  respect  is  not correct  and the view taken by the High Court of  Madras  is not  only correct but is in consonance with the purpose  and object of s. 42(i). The  appeal is, therefore, allowed.  The order of  acquittal passed  by  the trial Magistrate and confirmed by  the  High Court is set aside and the Magistrate is directed to proceed with  the case on merits in accordance with law and  in  the light of the observations made in this judgment. V.P.S. Appeal allowed. 679

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