1. This group of writ petitions raise an important question of law in the field of motor transport namely the scope and ambit of S.33(1) (b) of the Motor Vehicles Act. The petitioners are owners of motor vehicles duly registered under S. 22 of the Motor Vehicles Act. The Vehicles are covered by valid contract carriage permits. Most of the vehicles are motor cabs. The Officers authorised under the Motor Vehicles Act, hereinafter called the Act, checked the vehicles as on various dates and found them carrying passengers in excess of the seating capacity collecting individual fares. They also found that passengers were picked up and set down along the line of route. On the basis of the check reports show cause notices were issued asking the petitioners to explain why the certificate of registration of the vehicles should not be suspended for using the vehicles as stage carriages for which they had no permit. The notices were issued in purported exercise of the power under Section 33(1)(b) of the Motor Vehicles Act. In almost all the cases the difference of tax as a stage carriage was collected. In some cases action S. 60 of the Act was taken for using the vehicles in a manner not authorised by the permit and offences were compounded.
2. In some of the Writ Petitions final orders were passed suspending the registration certificate of the vehicles under S. 33(1) (b) of the Act and in some cases only show cause notices were issued and orders are yet to be passed.
3. The main submission of the learned counsel for the petitioners in all these writ petitions is that the respondents have no jurisdiction to invoke S. 33(1)(b) of the Act in cases where vehicles covered by contract carriage permits are used as stage carriages and the only course open to them is to take under Section 60 of the Act for violation of the permit or for using the vehicle in a manner not authorised by the permit. It is urged that all these years the authorities were taking action only under S. 60 of the Act in all cases of misuse and it is only in the recent past recourse is taken to S. 33(1)(b) of Act pursuant to some instructions issued by the Transport Commissioner and that in discharging statutory functions, the authorities have to apply their independent mind and cannot surrender their discretion.
4. On the other hand, it is submitted by the learned Government Pleader that in cases where contract carriages are used as stage carriages S. 33 (1) (b) is attracted as it amounts to user of the vehicle without a valid permit. The authorities are not precluded from taking action under S. 33(1) (b) of the Act though they are also empowered to take action under S. 60 of the Act. In other words, the learned Government Pleader submitted that in addition to S. 60 of the Act, the authorities can take recourse to S. 33 (1)(b) of the Act also where the contract carriage is used as a stage carriage as the nature of the user itself is changed.
5. In order to appreciate the respective contentions, it is necessary to refer to the relevant provisions of the Motor Vehicles Act.
6. Under Cl. (18) of S. 2 of the Act 'motor vehicle' is defined as a mechanically propelled vehicle adapted for use upon roads and does not include a vehicle running upon, fixed rails. Under sub-sec. (25) of S. 2 a 'public service vehicle' is defined 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. Inder sub-sec. (33) of Section 2 a 'transport vehicle' is defined as a public service vehicle or a goods vehicle and under sub-s. (8) goods vehicle is defined as a motor vehicle constructed or adapted for use for the carriage of goods solely or in addition to passengers Chapter III deals with registration of motor vehicles and S. 22 insists upon the registration of every motor vehicle and says that no motor vehicle can be driven in any public place unless it is registered in accordance with the provisions of the Chapter S. 33 (1) (b) confers power on the registering authority to suspend the certificate of registration. If in its opinion the vehicle is being used for hire or reward without a valid permit. Chapter IV deals with control of transport vehicles. S. 42 prohibits the use of a transport vehicle in any public place except in accordance with the conditions of a permit granted by the appropriate authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used. S. 60 empowers the transport authority which granted a permit to cancel or suspend a permit for breach of the conditions of the permit or for use of the vehicle in a manner not authorised by the permit. S. 60, sub-sec. (3) empowers the transport authority to compound the offences for an agreed sum in view of cancellation or suspension of a permit if having regard to the circumstances of the case it is not necessary or expedient to cancel or suspend the permit.
7. On a reading of the definitions of motor vehicles, 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 Section 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 without a permit, Section 33(1)(b) is enacted empowering the authorities to suspend the registration certificate as a measure to check misuse. In our opinion, S. 33 and Sec. 60 operates in different and distinct spheres. S. 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 vehicles, 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 Section 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 the registration certificate that is suspended. While S. 33 contemplates suspension for a maximum period of 4 months. Section 60 fixes no such maximum period for suspension and permits even cancellation of the permit. Under S. 60 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. The learned Government Pleader laid considerable stress on the expression 'used for hire or reward without a valid permit for being used as such' occurring in S. 33 (1) (b) of the Act and contended that the expression 'permit' refers to user and when a contract carriage is used as a stage carriage it amounts to using the vehicle without a valid permit and therefore S. 33(1)(b) is attracted. Though the argument appears to be plausible on a closer scrutiny of the section we find it difficult to accept. Section 33(1)(b) is as follows:-
'33. Suspension of registration:
(1) If any registering authority has reason to believe that any motor vehicle within its jurisdiction:
(b) has been, or is being used for hire or reward without a valid permit for being used as such the authority may ....................
suspend the certificate of registration of the vehicle.'
The words used 'as such' refer to using the vehicle for hire or reward without a valid permit. 'As such does not refer to user as a stage carriage or a contract carriage. As long as there is a valid permit for using the vehicle for hire or reward, S. 33(1)(b) is not attracted. The nature of the user is not the criterion for applicability of S. 33 (1)(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 a transport vehicle without a permit, S. 33(1)(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.
8. For this conclusion we find support from an unreported decision of this court in Writ Petn. No. 765 of 1968 and a decision of the Mysore High court in S. T. Rangaiah v. Sr. R. L. O. Bellary, AIR 1918 Kant 62. In both these cases it was held that S.33 (1) (b) has no application to be case where the vehicle is covered by a permit and the only course open to the authorities is to take action under S.60 of the Motor Vehicles Act. The learned Government Pleader sought to distinguish these two decisions on the ground that they were cases where the vehicles covered by stage carriage permits plied on an unauthorised route which is admittedly a violation of the condition of the permit. But even in these cases it can be said for the unauthorised portion the vehicle had no permit and therefore S.33 (1) is attracted. 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 Section 33 (1) (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 a case where the vehicle is used without any valid permit whatsoever the 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 the permit. In these writ petitions it is not disputed that all the vehicles are covered by contract carriage permits. The allegation is that they are used as stage carriages. It is clear case where S.33 (1) (b) has no application.
9. We are unable to appreciate the other argument advanced on behalf of the petitioners that the impugned section was the result of some instructions given by the Transport Commissioner and that the registering authority has not exercised his independent mind. The circular alleged to have been issued by the Transport Commissioner is not placed before us. From the argument we gather that some general instruction were issued by the Commissioner as to his own understanding of S.33 (1) (b). No instruction were given in any individual or particular case. We do not therefore find any substance in this contention.
10. In the view we have taken about the applicability of S.33 (1) (b) the impugned proceedings are clearly illegal. In cases where final orders are passed they are quashed. In case where only show cause notices are issued and no orders are yet passed the respondents are restrained from taking any further action pursuant to the said show cause notices.
11. The writ petitions are accordingly allowed No costs. Advocate's fee Rs.150 in each.
12. Petitions allowed.