RASIKLAL DAMJIBHAI v. STATE — 1988 DIGILAW 223 (GUJ)

R. J. SHAH, J. ( 1 ) APPELLANTS herein filed Special Civil Application No. 6747 of 1988 challenging the alleged arbitrary and illegal action of the respondents their agents and servants in detaining and seizing their motor vehicles in the purported exercise of the powers under Sec. 129a of the Motor Vehicles Act 1939 (Act No. 4 of 1939) (hereinafter referred to as the Act for the sake of bravity ). Said petition came to be rejected by a single Judge of this Court by order dated 13-10-1988. Being aggrieved by the said order of rejection the appellants have come by way of this Letters Patent Appeal. ( 2 ) APPELLANT No. 1 who is the registered owner of two luxury buses obtained special permits as contemplated under Sec. 63 (6) of the Act. Appellant No. 2 is the registered owner of five vehicles out of which for one vehicle he holds All India Tourist Permit. So far as the remaining four vehicles are concerned Appellant No. 2 also obtained special permits under Sec. 63 (6) of the Act. For the purpose of the vehicle holding the All India Tourist permit Appellant No. 2 obtained National Permit under the provisions of Sec. 63 (7) of the Act. Appellant No. 3 who is the registered owner of four luxury buses also obtained special permit under Sec. 63 (6) of the Act. All the appellants alleged that they are running their buses without stopping to pike up or set down along the line of route passengers from one destination to another destination. ( 3 ) THE reliefs prayed in the petition insofar as they are relevant for the present purpose of the Letters Patent Appeal are as under: (A) for the issuance of a writ of mandamus or any other appropriate writ order or direction restraining the respondents their agents and servants including the authorised officers both of Motor Vehicles Department and the Police Department under Sec. 129a of the Act not to seize and detain the petitioners omnibuses under Sec 129 of the Act if actually covered under the current Special Permit or the National Permit granted under sub-sec. 16) and/or sub-sec. 16) and/or sub-sec. (7) of Sec. 63 of the Act on the ground that the passengers had paid individually for their travel and/or the names and addresses of the passengers differ from the names and addresses of the passengers list; (B) for the insurance of a writ of mandamus or any other appropriate writ direction or direction directing the respondents their agents and servants not to keep the passengers out of such vehicles and to seize or detain the vehicle. ( 4 ) SECTION 129a of the Act provides for power to detain the vehicles used without certificate of registration or permit and runs as under:"129 Power to detail vehicles used without certificate of registration or permit. Any Police Officer authorised in this behalf by the State Government may if be has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Sec. 22 or without the permit required by sub-sec. (1) of Sec. 42 or in contravention of any condition of such permit relating to the route on which or the areas in which or the purpose for which the vehicle may be used seize and detain the vehicle and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle". ( 5 ) THE learned single Judge on the facts of the present case before him has observed as under in his order:"on the facts of the present case also a similar situation is alleged to have existed. The petitioners who were at the relevant time having special contract carriage permits under Sec. 63 sub-secs. (6) and (7) are said to have allegedly used these vehicles not as contract carriages but as stage carriages. Obviously for such use the petitioners vehicles at the relevant time were not covered by any valid Stage Carriage Permits. Therefore Sec. 42 sub-sec. (1) of the Act got violated so far as such impermissible and illegal user of these concerned vehicles at the relevant time went. Moment that conclusion is reached second condition for application of Sec. 129a of the Act gets attracted namely that these motor vehicles were used as stage carriages without the permit required by Sec. 42 sub-sec. (1) for such use. Section 42 sub-sec. Moment that conclusion is reached second condition for application of Sec. 129a of the Act gets attracted namely that these motor vehicles were used as stage carriages without the permit required by Sec. 42 sub-sec. (1) for such use. Section 42 sub-sec. (1) does require for a vehicle a permit as a stage carriage before it can be plied on the main roads as a stage carriage vehicle. For such a user of the vehicles in question the petitioners were not armed with any permit at all. Special permits for user of the vehicles as contract carriages cannot cover unauthorised user of such vehicles as stage carriages at the relevant time. Therefore for such type of user detected on spot there was no valid permit obtained by the petitioners under Sec. 42 sub-sec. (1) for using the concerned vehicles as stage carriages at the relevant time. Consequently the second condition of Sec. 129a of the Act on demurrer would get squarely attracted". Having reached the aforesaid conclusion the learned single Judge has not found it necessary to examine the wider question canvassed for his consideration that the third condition of Sec. 129a was not satisfied namely that there is no breach of any condition of special permit for contract carriage relating to the purpose for which vehicle may be used. ( 6 ) IN the aforesaid view of the matter the learned single Judge concluded that the respondents would be entitled to invoke Sec. 129a of the Act and so it could not be said that the respondents action was in any way unauthorised ultra vires or de hors the provisions of Sec. 129a of the Act. ( 7 ) CHAPTER IV of the Motor Vehicles Act 1939 relates to control of transport vehicles and covers Secs. 42 to 68. Section 42 provides for necessity of permits. ( 7 ) CHAPTER IV of the Motor Vehicles Act 1939 relates to control of transport vehicles and covers Secs. 42 to 68. Section 42 provides for necessity of permits. Section 42 (1) reads as under:"42 Necessity for permits (1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place (whether or not such vehicle is actually carrying any passenger or goods) save in accordance with the conditions of 4 permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used:provided that a stage carriage shall subject to any conditions that may be specified in the permit authorise the use of the vehicle as a contract carriage;provided further that a stage carriers permit shall subject to any conditions that may be specified in the permit authorise the use of the vehicle either when carrying passengers or not;provided further that a public carriage permit shall subject to any conditions that may be specified in the permit authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. ( 8 ) THUS Sec. 42 provides that a transport vehicle which is to be used in any public place has to have a permit and has to be used in accordance With the conditions of such a permit. ( 9 ) UNDER Sec. 129a a Police Officer is authorised if he has reason to believe that: the motor vehicle has been or is being used in Contravention of the provisions of Sec. 22; or (ii) without the permit required by sub-sec. (1) of Sec. 42 or (iii) in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used seize and detain the vehicle and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle. ( 10 ) IN the present case we are not concerned with any vehicle which has been or is being used in contravention of the provisions of Sec. 22 of the Act. ( 11 ) SO far as sub-sec. ( 10 ) IN the present case we are not concerned with any vehicle which has been or is being used in contravention of the provisions of Sec. 22 of the Act. ( 11 ) SO far as sub-sec. (1) of Sec. 42 is concerned one has to have a permit as required by the said Section. 12 Section 63 (6) and (7) of the Act provide as under:" (6) Notwithstanding anything contained in sub-sec. (1) but subject to any rules that may be made under this Act the Regional Transport Authority of any one region may for the convenience of the public 8 a special permit in relation to a public service vehicle for currying a passenger or passengers for hire or reward under a contract express or implied for the use of the vehicle as a whole without stopping to pick up or set down along the line of route passengers not included in the contract and in every case where such special permit is granted the Regional Transport authority shall assign to the vehicle for display thereon a special distinguishing milk in the from and manner specified by the Central Government and such special permit shall be valid any other region or State without the countersignature of the Regional Transport Authority of other region or of the State Transport Authority of the ether State as the case may be. (7) Notwithstanding anything contained in sub-sec. (1) but subject to any rules that may be made under this Act any State Transport Authority may for the purpose of promoting tourism grant permit valid for the whole or any part of India in respect of such number of tourist vehicles as the Central Government may in respect or that Sate specify in this behalf and the provisions of Secs. 49 50 51 57 58 59 59 60 61 and 64 shall as far as may be apply in relation to such permits". 49 50 51 57 58 59 59 60 61 and 64 shall as far as may be apply in relation to such permits". Section 2 (3) of the Act defines contract carriage and is as follows :"2 `contract carriage means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum : (I) on a time basis whether or not with reference to any route or distance or (ii) from one point to another and in either case without stopping to pick-up; or set down along the line or route passengers not included in the contract and includes a motor car notwithstanding that the passengers may pay separate fares". ( 12 ) A combined reading of Sec. 63 (6) and Sec. 2 (3) shows that an applicant for the special permit must first enter into a contract for the use of the vehicle as a whole to carry specified passengers before he can apply for a special permit. Section 63 (6) contemplates that the identity of the passengers included in the contract mast be definite and known before the grant of the permit. In order to satisfy itself that the application is a genuine application for the purpose mentioned in Sec. 63 (6) and is not intended to be a camouflage for using the vehicle unauthorisedly it is open to the authorities to require the applicant to furnish the necessary information contemplated by Sec. 63 (6) Section 63 (6) inter alia provides that the Regional Transport Authority of any one region may for the convenience of public grant a special permit in relation to a public service vehicle for carrying a passenger or passengers for hire or reward under a contract express or implied for the use of the vehicle as a while without stopping to pick up or set down along the line of route passengers not included in the contract ( 13 ) IN the case of Achyut Shivram Gokhale v. Regional Transport Officer and Ors. AIR 1988 SC 2047 after examining the definition of a contract carriage and the provisions of Sec. 63 and others the Supreme Court has found that the special permit issued under sub-sec. AIR 1988 SC 2047 after examining the definition of a contract carriage and the provisions of Sec. 63 and others the Supreme Court has found that the special permit issued under sub-sec. (6) of Sec. 63 has some of the features of a contract carriage permit but it is not the same as a contract carriage permit. According to the Supreme Court the distinguishing features of these two types of permits are: (1) a permit for which an application is made under Sec. 49 and which is granted under Sec. 51 is called a contract carriage permit. A permit issued under Sec. 63 (6) of the Act is called a special permit. (2) While a contract carriage permit issued by a Regional Transport Authority of any one region is not valid in any other region unless the permit has been countersigned by the Regional Transport Authority of the other region as provided under Sec. 63 (1) a special permit issued by one Regional Transport Authority under Sec. 63 (6) is valid in any other region or State without the contersignature of the Regional Transport Authority of the other region or the other State as the case may be (3) While the duration of a contract carriage permit is as prescribed under Sec. 58 (1) a special permit can be issued only for a specific period which may be for few days only as is the present case in accordance with the Rules prescribed for that purpose. (4) A contract carriage permit is renewable under Sec. 58 (2) of the Act but there is no corresponding provisions providing for renewal of a special permit. Thus the Supreme Court has concluded that a contract carriage permit and a special permit are not one and the same and further that a special permit is ordinarily taken to meet a need that exists for a few days like carrying a marriage party or persons going on pilgrimage etc. ( 14 ) SO far as Sec. 42 of the Act is concerned the Supreme Court had an occasion to deal with the same in the case of State of Uttar Pradesh v. Bansraj AIR 1959 SC 79 . The Supreme Court has observed that the language of the Sec. 42 (1) employs prohibitive or negative words and therefore its legislative intent is that the statute is mandatory. The Supreme Court has observed that the language of the Sec. 42 (1) employs prohibitive or negative words and therefore its legislative intent is that the statute is mandatory. The negative words convey a forbidding of the doing of the act prohibited and from the use by the legislature of the words no owner of a transport vehicle shall use or permit the use. . . in Sec. 42 (1) a total prohibition against user of the vehicle except in accordance with the conditions of the permit is indicated. The Supreme Court has proceeded further to state that the words authorising the use of the vehicle in that place in the manner in which the vehicle is being used have reference to the transport vehicle itself and not to the owner that is to say Sec. 42 (1) does not only prohibit the owner from using the transport vehicle contrary to the conditions of the permit but there is an express provision in the section that the permit authorises the use of the vehicle in the place and in the manner it is being used and that it is to be used in accordance with the conditions of the permit and thus construed Sec. 42 (1) contemplates not only prohibition against the user by the owner of the vehicle or his permitting its user in a manner contrary to the conditions of the permit but it also contemplates that the vehicle itself shall be used in the manner authorised by the permit. ( 15 ) THE definitions of stage carriage and tourist vehicle found in Secs. 2 (29) and 2 (29a) of the Act may be noticed at this stage. Whereas on the one hand the essential aspects of the definition of contract carriage are that it is a motor vehicle which is for use as a whole on a time basis from one point to another without stopping to pick up passengers or set down along the line of the route passengers not included in the contract on the other hand one of the essential aspects of a stage carriage is that it is a motor vehicle which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey. Section 2 (20) of the Act defines permit as under:"2 Permit means the document issued by the Commission or a State or Regional Transport Authority authorising the use of a transport vehicle as a contract carriage or state carriage or authorising the owner as a private carrier or public carrier to use such vehicle". ( 16 ) RULE 80 of the Bombay Motor Vehicles Rules 1959 provides for applications regarding different kinds of permits. The applications are required to be made in prescribed forms as per the permit required. Rule 81 provides for the forms of different permits. Rules 80 and 81 therefore specifically provide prescribed forms of applications for permits and the corresponding prescribed forms of the permits themselves. So far as appellant No. 1 is concerned it has been submitted at the Bar that appellant No. 1 had applied for a special permit in respect of a contract carriage in Form P. Co. Sp. A. as per Rule 80. The corresponding permit in the case of the appellant No. 1 would therefore be in Form P. Co. Sp. As stated above the special permit is as per Sec. 63 (6) of the Act. Section 63 (6) clearly provides that the vehicle in question should be used as a whole without stopping to pick up or set down along the line of route passengers not included in the contract. It is not in dispute that all the appellants were having such special permits as per Sec. 63 (6) of the Act. Appellant No. 2 was also having an additional permit in keeping with Sec. 63 (7) of the Act which is styled as All India Tourist Permit. We shall deal with the aspect of All India Tourist Permit of appellant No. 1 separately hereinafter. From the aforesaid it is clear that all the appellants were having permits in respect of their vehicles which were contract carriages within the meaning of Sec. 2 (3) of the Act. When we consider the aforesaid definition regarding stage carriage and also the aforesaid Rules 80 and 81 we find that persons who want to run their vehicles as stage carriages have to apply in respect of particular stage carriage permit in Form P. Co. Sp. A. and in respect of a service of stage carriage in Form P. St. When we consider the aforesaid definition regarding stage carriage and also the aforesaid Rules 80 and 81 we find that persons who want to run their vehicles as stage carriages have to apply in respect of particular stage carriage permit in Form P. Co. Sp. A. and in respect of a service of stage carriage in Form P. St. S. A. It is not shown to us that any of the appellants had applied for such stage carriage permits to the prescribed authority. It is also not shown to us that any of the appellants was holding any such permits regarding stage carriage or the stage carriages. As Rule 81 shows pursuant to the application for a particular stage carriage the permit would have been in Form P. St. P. and in respect of a service of stage carriage the permit would have been in Form P. St. It is therefore clear that as per the provisions of the Act and the Rules a vehicle cannot be run as a stage carriage as per the aforesaid definition provided in Sec. 2 (29 ) without the requisite stage carriage permit. If therefore a person is found to run his vehicle as a stage carriage within the said definition and only holds a permit in Form P Co Sp. as per Rule 81 (x) it can safely be said that he was plying his vehicle without the permit since he was not holding any stage carriage permit in keeping with Rule 81. A case of such a person can therefore be said to have been covered under the aforesaid Sec. 129 of the Act as such a person is plying his motor vehicle without the permit required by sub-sec. (1) of sec. 42. ( 17 ) THE learned Advocate for the appellants has urged before us that since the appellants were having permits as aforesaid they cannot be said to be persons who are not having any permits and so they would not be covered by the aforesaid Sec. 129a of the Act. It would seem that so far as sub-sec. (1) of Sec. 42 is concerned one has to have a permit as required by the said Section. If a person has a permit of one kind then that would not enable that person to ply a vehicle requiring a permit of a different kind. It would seem that so far as sub-sec. (1) of Sec. 42 is concerned one has to have a permit as required by the said Section. If a person has a permit of one kind then that would not enable that person to ply a vehicle requiring a permit of a different kind. So when a person plies a vehicle in a manner which requires a permit of a different kind from the kind of permit that be has then it does not become a case of a breach of condition of the permit that be has but becomes a case where be has no permit. The aforesaid contention of the learned Advocate is therefore without force. ( 18 ) CORNING to the aspect regarding the aforesaid All India Tourist Permit of appellant No. 2 under Sec. 63 (7) of the Act it has reference to Tourist Vehicles. Tourist Vehicle is defined vide Sec. 29a of the Act as under:"tourist vehicle means a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as the State Government may by notification in the official gazette specify in this behalf". The tourist vehicle is therefore a contract carriage and so the definition of contract carriage provided as per Sec. 2 (3) of the Act applies to a tourist vehicle. Therefore a tourist vehicle also is governed by the same considerations as are applicable in the case of a vehicle in respect of which a special permit has been granted in keeping with Sec. 63 (6) read with Sec. 2 (3 ). In other words a tourist vehicle in respect of which a special permit has been granted under Sec. 63 (7) is also bound by the condition that the tourist vehicle has to be used as s whole without stopping to pick up or set down along the line of route passengers not included in the contract and such a contract could be for hire or reward express or implied. From this view point there is no difference at all whether a special permit has been granted under Sec. 63 (6) or Sec. 63 (7) of the Act when it has to be considered whether Sec. 129a applies or not. The case of all appellants therefore is similar. From this view point there is no difference at all whether a special permit has been granted under Sec. 63 (6) or Sec. 63 (7) of the Act when it has to be considered whether Sec. 129a applies or not. The case of all appellants therefore is similar. ( 19 ) SO far as All India Tourist Permits are concerned it has been noted by the Supreme Court in the case of B. A. Jayaram and Ors. v. Union of India and Ors. AIR 1983 SC 1005 that some operators of the tourist buses covered by All India Tourist Permits do misuse the tourist buses on running them as regular stage carriages competing with the vehicles which are used as regular stage carriages and other private stage carriages. In the counter-affidavit filed on behalf of the State of Karnataka in some of the writ petitions inter alia it was stated as under:"as a result of indiscriminate misuse of the vehicles as stage carriages even though the permits were obtained under Sec. 63 (7) of the Central Act for tourism the State Government has suffered considerable 1099 in revenue. These buses actually made use of the passengers which would have normally gone to the KSRTC buses and other private carriages. The very object of obtaining permits under Sec. 63 (7) of the Central Act which intended to promote tourism has been misused by these operators of the tourist buses by plying their vehicles regularly as stage marriages. Most of the permits obtained under Sec. 63 (7) of the Central Act in the States other than the State of Karnataka are made use of for the purported use of running the tourist buses but actually the permits were misused to rue the tourist vehicle either as stage carriages or as contract carriages" ( 20 ) IN the said case it has also been noted that a survey made by the Transport Commissioner of Maharashtra revealed a similar state of affairs and in the report it was stated as under:"our estimate is that out of these 1300 permits anything between 300 to 400 buses are operating in Maharashtra with Bombay as the main centre. Most of these buses for all practical purposes operate as stage carriage services masquerading as contract carriages. In Maharashtra the ordinary passenger transport by stage carriages and contract carriges has been completely nationalised. Most of these buses for all practical purposes operate as stage carriage services masquerading as contract carriages. In Maharashtra the ordinary passenger transport by stage carriages and contract carriges has been completely nationalised. The All India Tourist buses on the other band are exploding the loopholes available in the law and operate point to point passenger services on routes where the volume of traffic is heavy viz. routes like Bombay-Kolhapur Bombay-Manglore (Banglore) Bombay Panaji Bombay-Belgaum Bombay-Ahmedabad and Bombay-Indore. ". . ( 21 ) IT has been noted by the Supreme Court that petitioners before them who were transport operators holding All India Permits denied that any of them was guilty of any malpractice or misuse of the permits held by them but notwithstanding the petitioners denial the Supreme Court has held in the said case that they did not have the slightest doubt that the allegations of misuse and malpractice made in the counter affidavit filed on behalf of the Karnataka Government were generally and substantially correct. ( 22 ) AS found by the learned single Judge in the present cases also the aforesaid vehicles holding special permits under the said Secs. 63 (6) and 63 (7) were also for all practical purposes operating as stage carriage services masquerading as contract carriages. To all intents and purposes the case of all the appellants fell within the compass of aforesaid Sec. 129a of the Act on the ground that all of them were plying the vehicles without the permit required by sub-sec. (1) of Sec. 42. ( 23 ) IN the aforesaid view of the matter it is not necessary for us to refer to other decisions cited by the learned Advocates for the parties since in none of the remaining decisions a view contrary to or inconsistent with the one that we are taking as aforesaid in this petition has been laid down. ( 24 ) IN the aforesaid view of the matter the Letters Patent Appeal fails at the admission stage and is hereby dismissed. Interim relief is vacated. ( 25 ) THE request for a certificate for appeal to the Supreme Court is rejected since no substantial question of law of general importance involved in this case which needs to be decided by the Supreme Court. Interim relief is vacated. ( 25 ) THE request for a certificate for appeal to the Supreme Court is rejected since no substantial question of law of general importance involved in this case which needs to be decided by the Supreme Court. ( 26 ) REQUEST for stay of the order passed is also rejected on the ground that the appellants were holding only special permits for temporary periods. Those permits have outlived their utility. If the appellants want stage carriage permits to ply their vehicles it is open to them to apply accordingly in the prescribed form and obtain such permits. Appeal dismissed .