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2001 DIGILAW 187 (AP)

Ashok Leyland Finance Ltd. v. Government Of A. P.

2001-02-22

S.B.SINHA, S.R.NAYAK

body2001
S. B. SINHA, J. ( 1 ) ALTHOUGH I agree with the judgment proposed to be pronounced by my learned brother, I would only like to add that the hirer being dead, in the proceedings before the authorities under the Act, the question as to what extent the hirer was a defaulter could not have been gone into. In a situation of this nature, the only remedy of the appellant is to file a suit for recovery of the amount against the heirs and legal representatives of the hirer. The heirs and legal representatives of the hirer also were not impleaded as party-respondents in the proceedings and thus the allegations made in the application for release of the vehicle filed by the appellant could not have been contested by them. On that ground also the application is not maintainable. ( 2 ) THE questions that arise for decision in this Writ Appeal are: (i) whether the appellant-financier has discharged the burden of proving that the lorry in question was used for carrying the contraband forest produce without the knowledge or connivance of the owner thereby meaning the hirer of the vehicle, and (ii) whether the appellant-financier has the locus standi to avail appeal remedy under sub-section (2-E) of Section 44 of the Andhra Pradesh Forest Act, 1961 (for short "the Act" ). ( 3 ) THE above questions arise for decision out of the following factual matrix: The appellant is a registered company incorporated under the provisions of the Indian Companies Act and is doing business in hire-purchasing, leasing and other allied spheres. During the course of its business, one C. Venkateswarlu entred into a Hire-Purchase Agreement dated 29-8-1997 for the purchase of one Ashok Leyland Truck bearing registration No. AP 21-T 7101 on hire-purchase basis. Under the agreement, the hirer agreed to discharge the hire-purchase amount of Rs. 7,24,000. 00 in 47 equal monthly instalments. The possession of the vehicle was handed over to the hirer by the petitioner company immediately after the purchase. ( 4 ) THE said vehicle was seized by the Forest Range Officer (FRO), Birsaipeta, the 3rd respondent herein on 4-4-1999 on the ground that the vehicle was used for transporting 36 logs of teak wood admeasuring 3950 Sq. Mtrs in violations of the provisions of the Act and the rules framed thereunder. ( 4 ) THE said vehicle was seized by the Forest Range Officer (FRO), Birsaipeta, the 3rd respondent herein on 4-4-1999 on the ground that the vehicle was used for transporting 36 logs of teak wood admeasuring 3950 Sq. Mtrs in violations of the provisions of the Act and the rules framed thereunder. On 3-7-1999, the Divisional Forest Officer, Wild Life Management, Jannaram, 2nd respondent herein, who is the Authorised Officer under the Act served a notice upon the appellant under Section 44 (2-B) of the Act. In response to the said notice, the appellant appeared before the 2nd respondent and claimed that it is the owner of the vehicle and it did not connive with the persons who were transporting 36 logs of teak wood and that it had no knowledge about the commission of forest offence. The contention of the appellant-company was rejected by the 2nd respondent and he passed Order on 22-4-2000 confiscating the vehicle under Section 44 (2-A) of the Act. While doing so, the 2nd respondent held that the appellant-company had no locus standi to seek release of the motor vehicle under sub-section (2-C) of Section 44 of the Act. It appears that even before the 2nd respondent passed the Order on 22-4-2000, the appellant had filed W. P. No. 3075 of 2000 in this Court praying for release of the vehicle to the interim custody of the appellant and this Court disposed of that writ petition on 29-3-2000 directing the 2nd respondent to dispose of the representation of the petitioner dated 14-7-1999 wherein the appellant had sought for release of the motor vehicle to its interim custody. ( 5 ) THE appellant-company being aggrieved by the order of confiscation preferred an appeal to the learned District Judge, Adilabad, in C. M. A. No. 5 of 2000 under Section 44 (2-E) of the Act. ( 6 ) THE learned District Judge, Adilabad, placing reliance on the judgment of the Division Bench of this Court in L. Goutham Chand v. Dist. Judge, Cuddapah, (1992) 1 ALT 489 held that the appellant-financier is having locus standi to move the District Judge under Section 44 (2-E) of the Act by way of appeal. ( 6 ) THE learned District Judge, Adilabad, placing reliance on the judgment of the Division Bench of this Court in L. Goutham Chand v. Dist. Judge, Cuddapah, (1992) 1 ALT 489 held that the appellant-financier is having locus standi to move the District Judge under Section 44 (2-E) of the Act by way of appeal. However, the learned District Judge on merit found that the burden placed on the owner of the vehicle to prove that the vehicle was used in carrying the contraband property without his knowledge or connivance was not at all discharged and in that view of the matter, he dismissed the appeal by his judgment and Order dated 21-7-2000. The validity of the said judgment was assailed before a learned single Judge of this Court in W. P. No. 16212 of 2000. The learned single Judge also opined that neither the hirer nor the appellant-financier discharged the burden of proof envisaged under Section 44 (2-C) of the Act and in that view of the matter by his Order dated 1-12-2000 dismissed the writ petition and upheld the Order of the learned District Judge. Hence, this Writ Appeal. ( 7 ) BEFORE us, it is contended by the learned counsel for the appellant that as per the terms and conditions of the Hire-Purchase Agreement, the petitioner is the owner of the vehicle until the hirer exercises the option of purchasing the vehicle by paying all the instalments or the hire charges or the agreement is terminated by either party. In the instant case, the learned counsel would point out that the hirer viz. , C. Venkateswarlu committed default in paying the hire charges and, therefore, the appellant-financier company continues to be the owner of the vehicle and, therefore, it has locus standi to question the validity of the confiscation order passed by the 2nd respondent. The learned counsel would also urge that in the instant case, there is absolutely no legal evidence to prove that the subject motor vehicle was used in the commission of forest offence with the knowledge and connivance of the owner of the vehicle and, therefore, there was no legal justification for the 2nd respondent to order confiscation of the lorry having due regard to the provisions of sub-section (2-C) of Section 44 of the Act. ( 8 ) THE question whether the financier company has locus standi to file an appeal under sub-section (2-E) of Section 44 of the Act to the District Court is no longer res integra. A Division Bench of this Court in L. Gotham Chand s case ( 1992 (1) ALT 489 ) (supra) while dealing with the locus standi of the financier to maintain an appeal under Section 44 (2-E) against an order made under sub-section (2-A) thereof handed down the opinion in the following words:"9. In so far as the locus standi of the writ petitioner to move the District Court under Sec. 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 in spite of each of them taking all reasonable and necessary precaution 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 Sec. 44 (2-E) of the A. P. Forest Act. "learned Government Pleader who appeared for the respondent authorities did not question the correctness of the ratio of the judgment above noticed. Therefore, we hold that the appellant-financier has locus standi to maintain an appeal under sub-section (2-E) of Section 44 of the Act against a confiscation order passed by the Authorised Officer under sub-section (2-A) of Section 44 of the Act, it being an interested person in the confiscated vehicle. ( 9 ) THIS takes us to the next question whether the appellant-company can be considered to be the owner of the vehicle and if so, whether it has discharged the burden envisaged under sub-section (2-C) of Section 44 of the Act. ( 9 ) THIS takes us to the next question whether the appellant-company can be considered to be the owner of the vehicle and if so, whether it has discharged the burden envisaged under sub-section (2-C) of Section 44 of the Act. "sub-SECTION (2-C) of Section 44 reads:" (2-C) Without prejudice to the provisions of sub-section (2-B), 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 authorized 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 precautions against such use. "sub-section (2-C) among other things provides that no order of confiscation under sub-section (2-A) shall be made if the owner of the vehicle proves to the satisfaction of the Authorised Officer that the vehicle was used in carrying the contraband forest produce without his knowledge or connivance. The Forest Act does not define the term "owner". Section 2 (30) of the Motor Vehicles Act, 1988 (Section 219 of the Motor Vehicle Act, 1939), defines the term "owner". It reads:sub-section (30): "owner" means a person in whose name a motor vehicle stands registered, and where such a 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. ";therefore, it is quite clear that if a vehicle is the subject-matter 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 will be the owner within the meaning of the definition. In the instant case, it has come in evidence that the hirer C. Venkateswarlu was in actual possession of the motor vehicle since the beginning of the purchase of the vehicle. In the instant case, it has come in evidence that the hirer C. Venkateswarlu was in actual possession of the motor vehicle since the beginning of the purchase of the vehicle. Since the Forest Act does not define the term "owner" and since Section 44 (2-C) of the Forest Act refers to the owner of the vehicle, it is appropriate that the definition of the "owner" defined under Section 2 (30) of the Motor Vehicles Act, 1988 should be kept in mind in construing the provisions of sub-section (2-C) of Section 44 of the Act. If it is so kept in mind the financier cannot be considered to be the owner of the vehicle for the purpose of Section 44 (2-C) of the Act. Therefore, the financier, solely on the ground that the vehicle was used for transporting the contraband forest produce without his knowledge or connivance, cannot seek the release of the vehicle irrespective of the fact whether the forest offence was committed with the knowledge or connivance of the hirer. Further, the provisions of sub-section (2-C) makes it abundantly clear that the burden to prove to the satisfaction of the Authorised Officer that the vehicle was used in carrying the contraband forest produce without his knowledge or connivance is on the owner of the vehicle and not on the Authorised Officer. Therefore, we do not find any merit in the contention of the learned counsel for the appellant that there is absolutely no legal evidence produced by the Authorised Officer to show that the vehicle was used for carrying the contraband forest produce with the knowledge and connivance of the hirer or the financier. ( 10 ) THIRDLY, it is relevant to note that the hirer C. Venkateswarlu who should be treated as the owner of the vehicle for the purpose of sub-section (2-C) of Section 44 of the Act did not adduce any evidence to the satisfaction of the Authorised Officer that the vehicle was used without his knowledge in the commission of the forest offence. Although the appellant company chose to prefer appeal under sub-section (2-E) of the Act to the learned District Court, quite curiously, the legal representatives of the hirer who died during the pendency of the proceedings before the 2nd respondent were not impleaded as parties to the appeal. Although the appellant company chose to prefer appeal under sub-section (2-E) of the Act to the learned District Court, quite curiously, the legal representatives of the hirer who died during the pendency of the proceedings before the 2nd respondent were not impleaded as parties to the appeal. They are also not impleaded as parties to the writ petition or to this writ appeal. In the absence of total failure to discharge the burden envisaged under sub-section (2-C) of the Act that the contraband forest produce was transported in the vehicle without the knowledge and/or connivance of the hirer, no exception can be taken either to the confiscation order passed by the 2nd respondent or the orders made by the learned District Judge and learned single Judge of this Court. ( 11 ) ALTHOUGH in the course of argument, the learned counsel for the parties referred to the judgment of the Supreme Court in State of Karnataka v. K. Krishnan, AIR 2000 SC 2729 judgment of Kerala High Court in Reshma Finance Corporation v. Divisional Forest Officer, AIR 1996 Kerala 307 and judgment of Karnataka High Court in M/s. Shriram Transport Finance Co. Ltd. v. P. Khaishiulla Khan, 1993 Cri LJ 1069 we do not find any necessity to consider to those judgments inasmuch as they have no bearing on the issues that arise in the instant case. ( 12 ) IN the result and for the foregoing reasons, Writ Appeal is dismissed with no order as to costs. Appeal dismissed.