Venkatasubba Rao, J.
1. In Section 98 of the District Municipalities Act (V of 1920) as it stood before the recent amendment, the expression 'let out for hire' was used. The question to be decided is whether the words were intended to include what is known as 'plying for hire'. The Madras Local Boards Act (XIV of 1920) is in pari materia with the Act in question and it is noticeable that the words ' ply for hire occur in Section 166 of that Act - which shows that the legislature was not obvious of the distinction between the two sets of words. Both the Acts were passed in the same year and it is further to be observed that when several sections of each of these two Acts were recently amended, both sets of words, namely, 'let out for hire' and 'ply for hire' were omitted and the legislature may be presumed to have intentionally omitted them. The expression 'ply for hire' is met with in English statute and has been much discussed in English cases and I find it difficult to hold that the legislature in enacting Section 98 ignored the settled English view on the point. In Clarke v. Stanford (1871) L.R. 6 Q.B. 357 the facts were that, by an arrangement between a railway company and a livery stable keeper, certain vehicles were allowed to stand on the premises of the company to await the arrival of passengers by the trains. The servants of the stable keeper, who drove the flies, were instructed not to invite the passengers by speech but to wait until called by a servant of the company or hired by the passenger himself. When so called, the person requiring the fly entered, and was driven according to his own directions and paid the fare. These facts, it was held, satisfied the words 'plying for hire' in the Metropolitan Public Carriage Act, 1869. What is involved in the 'plying for hire' is well brought out in the judgments delivered in that case. Cockburn, C.J., points out that, where a person has a carriage ready for the conveyance of passengers, in a place frequented by the public, he is plying for hire although (this is not material to the present case) the place is private property. The other two learned Judges observe that there was present in the case the essential element, namely, the waiting of the carriage to be hired by any person arriving by the train without there being a restriction as to the persons so hiring it. In Allen v. Turnbridge (1871) L.R. 6 C.P. 481 the brougham was made to present the appearance of a private carriage and stood, as in the case already mentioned, alongside the arrival platform having been allowed by the railway company to do so. Whereas in Clarke v. Stanford (1871) L.R. 6 Q.B. 357 there was no invitation by speech, in this case, there was the actual solicitation. The judgment shows that what distinguishes 'plying for hire' from ordinary hiring is, that in the former case the carriage was placed for this purpose of picking up passengers. The point of distinction is well brought out by Montague Smith, J., who observes:
If the proprietor of a carnage sends it to a place for the purpose of picking up passengers, that is plying for hire within the Act. That is very different from a customer going to a job master to hire a carriage.
2. The tests Laid down in these earliest cases on the point have been repeatedly applied in the later English decisions. In Sales v. Lake (1922) L.R. 1 K.B. 553 the charabanc was available only to such passengers as had previously purchased the tickets and the driver was forbidden to pick up any other persons on route. It was held that the charabanc was not plied for hire: Lord Trevethin, C.J. observes that two conditions must be satisfied before a carriage can accurately be said to ply for hire : (1) there must be a soliciting or waiting to secure passengers; and (2) the person soliciting or waiting must be in possession of the carriage for which he is so soliciting or waiting to obtain passengers. This description excludes cases where by a previous or antecedent contract the carriage is hired, for it is of the essence of the plying for hire, that the person concerned must be able, at the time of making the contract, to appropriate the carriage to the soliciting or waiting. In the case just mentioned, no member of the public could have obtained a seat who had not previously taken a ticket; that is to say, as the learned Chief Justice observes:
The process of soliciting was then over and the driver was merely receiving passengers who had already booked their seats...If there had been any empty seats for which the driver was prepared to take any casual passengers, I think he would have been plying for hire, but the Magistrate's finding negatives this suggestion.
3. In Leonard v. Western Services, Limited (1927) L.R. 1 K.B. 702 no person was taken aboard any of the respondent's omnibuses, except those with whom they had previously made contracts and there was no occasion for soliciting passengers; on those facts, it was held that there was no plying for hire, the hiring having already been effected and the principle Laid down in Sales v. Lake (1922) L.R. 1 K.B. 553 was applied. In the two last-mentioned cases, as I have shown, it was held on the facts that there was no 'plying for hire' and those cases may be usefully contrasted with the decision I shall presently notice. In Armstrong v. Ogle (1926) L.R. 2 K.B. 438 as the omnibus was used for the collection and reception of passengers out of the large unknown and indeterminate class of persons who possessed return tickets, it was held that there was 'plying for hire' and Sales v. Lake (1922) L.R. 1 K.B. 553 was distinguished. Similarly, in Greyhound Motors, Ltd. v. Lambert (1928) L.R. 1 K.B. 322 as it was contemplated that the coach might start on its journey with vacant seats, all or some of which might be filled by persons who had not taken tickets before its departure on its journey, it was held that the coach was 'plying for hire'.
4. The several cases above referred to show that there is a well recognised distinction between ' letting out for hire and 'plying for hire'. Where the persons who are picked up have previously reserved accommodation and the driver or the person in control of the vehicle does not solicit or wait to obtain passengers, there is a 'letting out for hire', whereas, on the other hand, there being no antecedent contract or previous arrangement, passengers are received by some process of soliciting, then there is, what is known as a 'plying for hire'. Having stated where the real distinction exists, I may, in view of certain arguments raised, as well point out, that it is not correct to say that to constitute a 'plying for hire' the carriage must run along a fixed route or that the true test of the letting is that the hirer has the power to control the direction or destination of the vehicle. In Clarke v. Stanford (1871) L.R. 6 Q.B. 357 referred to already, the person requiring the fly entered and was driven according to his own directions and yet it was held that the carriage was plying for hire. The passenger there could control the destination of the vehicle, and secondly, it did not run along a fixed route - but those elements had no bearing on the question whether or not there was a 'plying for hire'.
5. Two cases have been relied on by the respondent The Chingleput Municipal Council v. Ayyakannu Thambiran : AIR1927Mad798 , decided by Coutts Trotter, C.J., and Criminal Revision Case No. 189 of 1930 (unreported) decided by Jackson, J., where a different view has been taken. The discussion in these cases is very brief and there is no reference to the English authorities or to the wording of the Local Boards Act, which, as I have said, is in pari Materia with the Act in question; I am constrained with the greatest respect to dissent from them.
6. In the result, the lower Court's decision is set aside and the suit is dismissed but, in the circumstances, each party will bear his costs both here and in the Court below. The memorandum of objections is dismissed but without costs.