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Puran Singh Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3432 of 1956
Judge
Reported inAIR1959All489
ActsMotor Vehicles Act, 1939 - Sections 22, 38, 41, 42(1), 59, 59(3), 60, 60(1) and 123
AppellantPuran Singh
RespondentState of Uttar Pradesh and ors.
Appellant AdvocateV.P. Misra and ;K.D. Pandey, Advs.;Standing Counsel
Respondent AdvocateN.D. Pant, Adv.
Excerpt:
.....60 - proper course - to take action under section 123. - - the agrument is that the absence of a fitness certificate is tantamount to a failure to comply with the requirements of chapter v and of the rules made thereunder. in the result, therefore, the non-compliance was of a provision in chapter iii but the petitioner was not held guilty of a breach of any condition specified in sub-section (3) of section 59. in the absence of any allegation or finding that the vehicle failed to comply with any requirement of chapter v--possession of a fitness certificate was not the requirement of that chapter. in other words, if its registration number ceased due to failure to comply with the provisions for a fitness certificate in section 38 it also ceased to be a vehicle bearing the particular..........to him,empty at the moment but it was checked by the enforcement squad and as there was no fitnesscertificate then valid, his case was reported to the regional transport authority which purporting to act under section 60 of the motor vehicles act, 1939, suspended the permit for a period of three months. the fitness certificate originally held in respect of this vehicle had expired on 19-10-1955.on 3-11-1955 when the vehicle was checked by the enforcement squad there admittedly was no fitness certificate in force. petitioner's contention is that he was not plying the vehicle under the per-mit, on the contrary, he was taking it to the regional transport authority in pursuance of its requisition,therefore, a fitness certificate was not required at thetime.2. the fact that the.....
Judgment:
ORDER

J.K. Tandon, J.

1. The petitioner held a stage carriage permit No. 15 on Garh Delhi route. The vehicle covered by this permit was No. USL 2855. It appeared that the vehicle had become old, consequently on 10-9-1955 the petitioner applied to the Regional Transport Authority concerned for replace-ment of the vehicle. His case is that in response to the requisition sent by the Regional Transport Authority he was driving his vehicle No. USL 2855 to the office of the Regional Transport Authority for its inspection on 3-11-1955.

The vehicle was, further according to him,empty at the moment but it was checked by the Enforcement Squad and as there was no fitnesscertificate then valid, his case was reported to the Regional Transport Authority which purporting to act under Section 60 of the Motor Vehicles Act, 1939, suspended the permit for a period of three months. The fitness certificate originally held in respect of this vehicle had expired on 19-10-1955.

On 3-11-1955 when the vehicle was checked by the Enforcement Squad there admittedly was no fitness certificate in force. Petitioner's contention is that he was not plying the vehicle under the per-mit, on the contrary, he was taking it to the Regional Transport Authority in pursuance of its requisition,therefore, a fitness certificate was not required at thetime.

2. The fact that the vehicle was not being used at the time for carrying passengers is not admitted by the respondents. In fact, according to the respondents, the petitioner despite the expiry of the fitness certificate On 19-10-1955 continued to ply vehicle No. USL 2855 on subsequent dates also. The counter-affidavit filed on their behalf has given details in this connection, as also the fact that two original challans, dated 1-11-1955 and dated 2-11-1955 showing the loading of passengers in the vehicle by the petitioners on those dates, were also recovered from the personal custody of the driver at the time of checking.

Their allegation further is that even on 3-11-1955 he carried passengers in the vehicle but on getting scent about the presence of the Enforcement Squad ahead they were asked to get down at Sahadra, a little distance before Delhi. Next it appears that the Regional Transport Authority on receipt of the complaint by the Enforcement Squad called upon the petitioner to show cause why the permit No. 15, which covered this vehicle, be not suspended and, ultimately, after hearing the petitioner, who of course denied the fact that he had carried any passengers, rejected his allegations and suspended the permit for a period of three months by its resolution No. 55(a) dated 27-1-1956.

Against this decision of the Regional Transport Authority the petitioner appealed to the State Transport Authority which, by its order dated 5-10-1956, upheld the order of the Regional Transport Authority. The petitioner then filed the present petition for quashing the said two orders as also the requisition dated 23-10-1956 by which the Regional Transport Authority later asked him to surrender the permit in consequence of the suspension order. A writ of mandamus is also asked asking the Transport Authorities not to interfere with his right to ply the vehicle No. USL 5566 which in the mean time has been substituted under the permit which was suspended.

3. A number of grounds have been urged in the petition but the only one that has been actually canvassed is that the Regional Transport Authority had no jurisdiction under Section 60, under which section it acted, to order suspension of the permit. Section 60 provides that the Transport Authority, which granted a permit, may cancel the permit or may suspend it for such period as it thinks fit on breach of any condition specified in Sub-section (3) of Section 59, or on any condition contained in the permit or if the holder of the permit uses or allows a vehicle to ba used in any manner not authorised by the permit. There are certain other grounds also on which it may cancel or suspend permits under this section but they are not relevant for the present purposes.

Sub-section (3) of Section 59 is that it shall be the condition of every permit that the vehicle or vehicles to which the permit relates are at all times so maintained as to comply with the requirements of Chapter V and the rules framed thereunder. (The other provisions of this Sub-section are not material). Chapter V, to which reference has been made in Sub-section (3), relates to the construction, equipment and maintenance of motor vehicles. One of the provisions in it is that every motor vehicle shall be so constructed and so maintained as to be at all times under the effective control of the person driving the vehicle. Another provision, which is in Section 70 of this Chapter, gives authority to State Government to make rules relating to the construction, equipment and maintenance of the motor vehicles. There are then a number of clauses which authorise the making of rules in respect of construction, equipment and maintenance.

4. Reference may be made at this very point to Section 22 also of the Motor Vehicles Act which requiresthat no person shall drive any motor vehicle and no owner of motor vehicle shall cause or permit the vehicle to be driven in any public place or in anyother place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with Chapter III in which Chapter that section exists. Section 38, which again in Chapter III, provides that a transport vehicle to which category the vehicle in the present case belonged shall not bedeemed to be vaiidly registered for the purposes of Section 22, unless it carried a certificate in Form H, as set forth in the First Schedule to the Act, to be issued by the prescribed authority to the effect that the vehicle complied with all the requirements of Chapter V and of the rules made thereunder.

The section further requires the prescribed authority where it refuses to issue such certificate called a certificate of fitness to supply to the owner of the vehicle with the reasons in writing for the refusal. Section 41, which also is in Chapter III, gives power to the State Government to make rules for the grant of fitness certificate, as evidenced by Clauses (c) and (]') of Sub-section (2) of the section.

5. One effect of Section 22 read with Sections 38 and 41 thus is that a motor vehicle shall not be deemed to be duly registered in accordance with that section unless it has a certificate of fitness also granted under Section 38. The absence of fitness certificate, current at the moment, has the result of rendering the vehicle as one not registered in accordance with Section 22.

6. The facts which therefore emerge from these provisions are firstly, that the absence of a fitness certificate has the efiect of nullifying the registration, which might otherwise have been ob'.ained under Section 22, secondly, that the certificate itself is granted under Section 38, which section is in Chapter III, and, thirdly, that in granting the certificate the fulfil-ment of the requirement therefor in Chapter V is the criterion.

I may, however, stress once again just here that though a fitness certificate is to be granted upon the vehicle fulfilling the requirements laid down in orunder Chapter V, the certificate is neverthelessgranted under Section 38 which is in Chapter III. Chapter V has only laid down the requirements to whicha vehicle shall conform so that it may be entitled to a fitness certificate, but as far as the grant of thecertificate is concerned this is done under Section 38. This aspect fs material as shall presently be noticed while examining the provisions of Section 59(3) and of Section 60 under which the Regional Transport Authority purported to act in this case. It may also be stated here that the learned Standing Counsel was unable to point out any provision in Chapter V or in anyrule framed thereunder requiring as such a permit holder for a stage carriage to obtain a fitness certificate which has to be had and obtained under Section 38.

7. I next turn to Section 60 which authorises a Regi-onal Transport Authority to cancel or suspend a permit. Under it, it can do so on the breach of any condition contained in the permit or of any condition specified in Sub-section (3) of Section 59; it can also do so if the holder of the permit uses or allows a vehicle to be used in any manner not authorised by the permit. In order, therefore, that the Regional Transport Authority may act under this section, either there should be a breach of any condition specified in Sub-section (3) of Section 59, or of any other condition contained in the permit itself or the vehicle should have been used in a manner not authorised by the permit.

8. It is no party's allegation that the permit held by the petitioner specified a condition in so many words requiring the possession of a valid and current fitness certificate. The stand of the learned Standing Counsel, on the other hand, is that such acondition became incorporated in it by virtue of Subsection (3) of Section 59 which requires that the vehicle, to which the permit relates, shall at all times be so maintained as to comply with the requirements of Chapter V and the rules framed thereunder. The agrument is that the absence of a fitness certificate is tantamount to a failure to comply with the requirements of Chapter V and of the rules made thereunder.

9. Chapter V and the rules made thereunder, merely lay down the requirements which a vehicle shall fulfil in order that a certificate of fitness may be granted in respect of it. The requirements which will be fulfilled for being entitled to a fitness certificate are alone contained in this Chapter but the certificate itself is nut to be had or possessed under any provision in Chapter V. It has, on the other hand, to be had and obtained under Section 38 which happens to be in Chapter III of the Act. Thus the possession of a valid certificate of fitness cannot be said to be a requirement of Chapiter V which really is required by Section 38. Indeed, there is no allegation in this case that the vehicle in question was lacking in any particular requirement provided under Chapter V when it was checked. The complaint, on the contrary was that a certificate of fitness, current for the time being, was not held in respect of it.

Whether the vehicle actually complied or not with the requirements of Chapter V was not the basis cf condemnation before the Regional Transport Authority. The same, on the contrary, was that a certificate of fitness granted under Section 38 was not available. In the result, therefore, the non-compliance was of a provision in Chapter III but the petitioner was not held guilty of a breach of any condition specified in Sub-section (3) of Section 59. In the absence of any allegation or finding that the vehicle failed to comply with any requirement of Chapter V--possession of a fitness certificate was not the requirement of that Chapter. It was not a case of breach of any condition deemed to be incorporated by virtue of Sub-section (3) cf Section 59.

10. With regard to the contention of the learned Standing Counsel based on Clause (b) of Sub-section (1) of Section 60 of the Act, it once again appeared that the order of the Regional Transport Authority was not fortified by it. According to this provision a Regional Transport Authority can suspend a permit if the holder of a permit uses or allows a vehicle to be used in any manner not authorised by the permit. The particular permit in this case admittedly authorised the petitioner on the relevant dates to use vehicle bearing No. USL 2855 as a stage carriage.

It was again this very vehicle which was detected on the road. The learned Standing Counsel has contended that since the permission in the permit was to use the vehicle bearing the above registration number it necessarily was one of its conditions that the vehicle to be used shall be the vehicle which vaiidly held the registration number in question. In other words, if its registration number ceased due to failure to comply with the provisions for a fitness certificate in Section 38 it also ceased to be a vehicle bearing the particular registration number. Its use thereafter was not authorised by the permit.

11. Section 38 has, in providing that a certificate of fitness for a transport vehicle shall be necessary, no doubt, laid down that the vehicle shall not be deemed to have been validly registered for the purposes of Section 22 unless it has such a certificate. The absence of a fitness certificate thus affects the validity of registration under Section 22 which in those circumstances is rendered invalid. It becomes nonexistent and in view of the provision in Section 22 the vehicle cannot be driven or caused to be driven in any public place or in any other place for the pur-pose of carrying of passengers or the goods. This prohibition against driving the vehicle in a public place including a highway, however, follows not from anything not authorised by the permit For a stage carriage granted under Chapter IV, it, on the other hand, results under Section 22.

12. A stage carriage permit or a permit for any other class of transport vehicle authorises the holder of the permit to use the vehicle in the manner contemplated by the permit. This is clear from Subsection (1) of Section 42 of the Act which requires a owner of a vehicle not to use it save in the manner it is authorised by the permit. To illustrate the point further a stage carriage may be used for purposes of carrying of passengers for hire or reward. Likewise a public carrier may be used for transport of goods. It is these different manners in which a transport vehicle may be used which are controlled | by permits granted under Chapter IV.

The reference in Clause (b) of Sub-section (1) of Section 60 to the use of a vehicle in any manner not authorised by the permit is to this aspect of the use of the vehicle as is abundantly borne out by the repetition, also in it of the words 'used in any manner not authorised by the permit'. This provision is not with respect to the use as such of a vehicle which is governed by Section 22 but to the manner in which it may be used in pursuance of the permit held in respect of it. In order, therefore, that the provisions of Clause (b) aforesaid are attracted what is material is not the use of the vehicle in contravention of Section 22 but its use in the manner not authorised by it, namely, the use of a stage carriage as a public carrier etc. etc.

13. In the present case there is no allegation that the vehicle in question was being used in any other manner. The specific charge, on the other hand, is that it was being used as a stage carriage for which it undoubtedly was authorised.

14. It may be worthwhile to point out here that the law does not require that the vehicle which may ultimately be covered by the permit should be available at the time the permit is granted. In point of time it can be acquired even subsequently and the necessary particulars entered in the permit later. The existence therefore, of a valid registration under Section 22 cannot be said to be a part of the authorisation given by the permit.

15. It would thus appear that the case of the vehicle in question failed to be covered by the provisions in Clause (b) of Sub-section (1) of Section 60. On the other hand, as will appear from the provisions of Section 123 of the Act, its case fell under that section. A contravention of Section 22 is punishable under Section 123 which makes punishable the driving of a motor vehicle in contravention of Section 22. The proper course in this case would, therefore, have been to proceed against the petitioner under Section 123. In any case Section 60 failed to confer the jurisdiction on the Transport Authority to suspend the permit.

16. In view of the above discussion the order of the Regional Transport Authority suspending the permit and of the State Transport Authority confirming that order must be held to be without jurisdiction. They are accordingly quashed. As the suspension order itself has been quashed the order of the Regional Transport Authority asking the permit to be deposited is also quashed. The prayer for mandamus asked in Clause (d) thereof has not been pressed by the petitioner which, therefore, is disallowed. Having regard to all the facts no order is made as to costs.

17. This order will not affect the authority ofthe respondents to prosecute the petitioner for contravention of Section 22 of the Act if they are so advised.


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