State of Mysore Vs. Syed Ibrahim
 INSC 37 (21 February 1967)
21/02/1967 SHELAT, J.M.
CITATION: 1967 AIR 1424 1967 SCR (2) 673
CITATOR INFO :
RF 1975 SC 17 (5,16)
Motor Vehicles Act (4 of 1939), ss. 42(1) and
123-"Owner of a transport Vehicle", meaning of.
Under s. 42(1) of the Motor Vehicles Act,
1939, no owner of a trans-port vehicle shall use it or permit it to be used in
any public place save in accordance with the conditions of a permit issued by
the appropriated authority. A "transport vehicle" means, under s..
2(33) a "public ser-, vice vehiicle" and a "public service
vehicle" means,, under s. 2(25), a motor vehicle either used or adapted to
be used for the carriage of passengers for hire or reward. The respondent was
the owner of a motor vehicle registered as a "motor car" as defined
in s. 2(16) of the Act and not, as a "transport vehicle". He was
charged with an offence under s. 42(1) read with s. 123 of the Act, as the car
was used on one occasion, for carrying passengers on payment of hire, that is
for having used the car as a "transport vehicle" without the
requisite permit. The trial court, and the High Court on appeal, acquitted him
on the ground that as s. 42(1) uses the words "owner of a transport
vehicle" the sub- section applies only to cases where the motor vehicle
was registered as a transport vehicle.
In appeal to this Court,
HELD : It is the use of the motor vehicle for
carrying passengers for hire or reward which determines the category of the
vehicle and the application of s. 42(1). Therefore, even if the motor vehicle
was occasionally used for carrying passengers for hire or reward, it must be
regarded when so used, as a "public service vehicle" and therefore a
"transport vehicle' and, if it was so used without the necessary permit
the owner who uses it or permits it to be so used would be liable under s.
42(1) read with,: s. 123.
The interpretation of the High Court would
lead to the anomalous result, namely : that whereas the owner of a transport
vehicle is required to have the permit, the owner of a motor vehicle not
constructed or adapted as a transport vehicle could carry with impunity
passengers without any permit, and such an interpretation would defeat the
object of the legislature in making the provision in the interest of the safety
of passengeii. [675 F; 676 A-B; 677 H; 678 A- B] B S. Usman Saheb v. State of
Mysore, (1959) Mys., L.J. 388 and. Jayaram v. State of Mysore,  Mys. L.J.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 10 of 1965.
Appeal by special leave from the judgment and
order dated July lo, 1964 of the Mysore High Court in. Criminal Appeal No. 223
R. H. Dhebar and S.- P. Nayyar, for the
The respondent did not appear.
674 The Judgment of the Court was delivered
by Shelat, J, This appeal, by special leave, raises the question as to the true
meaning of section 42(1) of the Motor Vehicles Act (4 of 1939).
The respondent, the owner of a motor car
bearing No. MYU- 1089, carried 8 passengers in his said car on Nanjangud-
Mysore Road on April 5, 1963 and collected Rs. 5 from each of them. He was
charge-sheeted under section 42(1) read with section 123 of the Act for having
used the said car as "a transport vehicle" without the permit
required under section 42(1). The trial Magistrate did not go into the merits
though the prosecution led evidence and acquitted him relying on the decision
of the High Court of Mysore in Jayaram v. The State of Mysore(1). The State
took the matter in appeal to the High Court urging that the said decision
required reconsideration. On the view that it did not, , the High Court
dismissed the appeal. Hence this appeal.
In B.S. Usman Saheb v. The State of Mysore(2)
the question arose whether an owner of a motor car who had carried cement bags
and other goods from one place to another without a permit under "section
42(1) could be said to have used a "goods vehicle", and, therefore,
could be said to have contravened section 42(1). The trial Magistrate convicted
the accused on the ground that once the car was used to transport goods, the
vehicle was converted into "a goods vehicle" and required permit. The
High Court set aside the conviction holding that the mere fact that the owner
of such motor vehicle used it for transporting goods did not mean that the
vehicle was converted into a "goods vehicle" so as to attract section
42(1). Likewise in Jayaram v. The State of Mysore(1) the accused who had his
motor vehicle registered as a motor car used it for ,carrying passengers, for
reward. The High Court held that the ,said vehicle having been registered as a
motor car as defined by section 2(16) was not "a transport vehicle"
and no prosecution could lie under section 42(1). The State of Mysore
challenges the correctness of these decisions contending that though a motor
vehicle is registered as a motor car, if it is used for a purpose set out in
section 42(1) viz., carrying passengers for hire or reward, the motor vehicle
on that occasion must be said to have been used as a "transport
vehicle", and if so used without a permit, there would be a breach of that
provision and the owner so using it or permitting it to be so used would be liable
to be convicted.
To test the correctness of this contention,
some of the relevant 'provisions of the Act may first be considered.
Section 2(18) Redefines a "motor
vehicle" as meaning any mechanically-propelled vehicle adapted for use
upon roads whether the power of propulsion (1)  Mys L.J. 392.
(2)  Mys. L.J. 388.
675 is transmitted thereto from an external
or internal source.' Section 2(16) defines a "motor cat" as meaning
any motor vehicle other than a transport-vehicle, omnibus, road- roller, motor
cycle or in.valid carriage. :Clause 25 of s. 2 defines "public service-
vehicle" 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. Section 2(33) defines "transport vehicle" as,
meaning a public service vehicle or a goods vehicle. Section 3 requires a
person driving a motor vehicle in any public place to have an effective driving
licence issued to himself authorising him to drive the vehicle and provides
that no person shall drive a motor vehicle as a paid employee or, shall so
drive a. transport vehicle unless his driving licence specifically entitles him
so to do. Section 42 in,Chapter IV deals with control of transport vehicles.
Sub-section (1)provides: "No owner of a transport vehicle shall use or
permit the use of the vehicle in any public place save in accordance with the
conditions of a permit granted or countersigned by a Regional or State
Transport Authority or,the Commission authorising the use of the vehicle in
that place in a manner in which the vehicle is being used." Section 42(1)
no doubt uses the words "owner of a transport vehicle" and provides
that he shall not use or permit its use in any public place save in accordance
with the conditions of a permit granted or countersigned by the prescribed
authority. These words, however, cannot mean that the 'sub-section applies only
to cases where the motor vehicle in question is registered as a transport
If that were so, a person can use his motor
vehicle provided it is not "a transport vehicle", for carrying
passengers for hire or reward without having to take out a permit for its use
as"a transport vehicle". Since the section is enacted for control of
transport ,vehicles, it could never be the intention of the Legislature to
allow such- an anomalous result. The sub-section, therefore, must be construed
in such a manner as to effectuate the object for which it was enacted. So
construed, it must mean that if a person owns.
a motor vehicle and uses it or permits its
use as a transport vehicle he can do so provided he takes out the requisite
permit therefore If he does not take out the permit and uses it or permits its
use ;Ls "a transport vehicle" he commits an infringement of the-
subsection. What the sub- section emphasises is the use of a motor vehicle as a
transport vehicle and the necessity of a Permit which is regarded for purposes
of exercising control over vehicles used 'as transport vehicles. This is clear
from the definitions of "transport vehicle" and a "public
service vehicle". A "transport vehicle" means a "public
service vehicle" and "a public service vehicle" means any motor
vehicle either used or adapted to be used for carriage of passengers for hire
or' reward. Therefore, any motor vehicle used for carriage of passengers for
hire or reward is regarded when so M2Sup.
Cl/67-14 676 used as a public service vehicle
and therefore a transport vehicle. it is the use of the motor vehicle for
carrying passengers for hire or reward which determines the category of the
motor vehicle whether it is adapted for that purpose or not. It must follow
that even if a motor vehicle is occasionally used for carrying passengers for
hire or reward it must be regarded when so used as a public service vehicle and
therefore a transport vehicle and if it is so used without the necessary permit
such use would be in breach of s. 42(1) and the owner who uses it or permits it
to be so used would be liable to be punished under S. 42(1) read with S. 123.
A similar construction wag given to para 5(d)
of Sch. 11 of the Finance Act, 1920 and section 14 of the Finance Act, 1922 in
Payne v. Allcock.(1) Section 14 of the Finance Act, 1922 provided that where a
licence was taken out for a mechanically-propelled vehicle at any rate under
the Second Schedule of the Finance Act, 1920 and the vehicle was at any time,
while such a licence was in force, used in an altered condition or in a manner
or for a purpose which brings it within, or which if it was used solely in that
condition or in that inianner or for that purpose would bring it within a class
or description of vehicle to which a higher rate of duty was applicable under
the said Schedule, duty at such higher rate would be chargeable in respect of
the licence for the vehicle. The appellant in that ,case, who carried on.
business as a green grocer held a licence for a private motor car, duty having
been paid thereon at the horsepower rate under para 6, Scb. II of the Finance
The car was neither "constructed"
nor "adapted" for use for conveyance of goods, but the appellant,
while the licence was in force, used the said car occasionally for conveyance
of goods in the course of his trade. It was contended that this user was
"for a purpose" which brought the car within a class to which higher
rate of duty under para 5 of Sch. 11 of Finance Act, 1920 became chargeable.
The court accepted the contention and held that the user was for a purpose
which brought the car Within para 5 Sch. II of the said Act and the appellant
was rightly convicted. It was not in dispute that the car was used by the
appellant only occasionally for conveyance of goods in connection with his
trade. Negativing the contention that the car was not chargeable to higher duty
as it was not adapted. forcarriage of goods, Avory, J., observed that "the
section referred to cases where the vehicle, while the licence is in force, had
been used in an altered condition or in a manner or for a purpose which brings
it within, or which if it was used solely in that condition or in that manner
or for that purpose would bring it within, a class or description of vehicle to
which a higher rate of ,duty is applicable." He added that to construe
that section, one has only to see what was the purpose for which the car was
being used which would bring it within the class to which a higher rate of (1)
2 K.B. 413.
677 duty was applicable. The purpose which
brought it within para 5, as distinguished from para 6 of Sch. 11, was the
purpose of conveyance of goods. At palge 421 of the Report it was further
observed, "twhere a licence had been taken out and the vehicle was at any
time, while that licence was in force, used, (a) in an altered condition, (b)
in a manner, or (c) for a purpose, which brings it within or which if it was
used solely in that condition or in that manner or for that purpose could bring
it within a class or description of vehicle to which a higher rate of duty is
applicable, then duty at the higher rate becomes chargeable." It is thus
clear that what brought the motor vehicle under para 5, Sch. II was the purpose
for which it was used.
Similarly in Public Prosecutor v. Captain R.
Rajagopalan(1) the High Court of Madras held that though rule 30(a) of the
Madras Motor Vehicles Rules was intended to apply to motor vehicles used for
the express purpose of letting for hire, if a motor vehicle was used even once
for such a purpose, then, on that one occasion it was nonetheless let for hire.
Hence if a person undertakes to convey goods
for reward in his private vehicle on one occasion without the necessary licence
he would be regarded as having let his vehicle for hire and would commit an
offence under that rule. It was contended in that case that the Legislature did
not intend to compel an owner of a private vehicle, who ordinarily uses his
vehicle for his own purposes, to take out a licence merely because on one
occasion he conveyed goods for hire in his private lorry. That contention was
negatived on the ground that a motor vehicle even if used once for conveying
goods for reward would nonetheless be regarded on that occasion as one let out
for hire. In Re. Manager, Indian Express(2) a motor car owned by the petitioner
was twice used for taking bundles of newspapers from the office of the Indian
Express to the Railway Station. It was held that when the car was used for
taking the said bundles, it came within the definition of a "goods
vehicle" as defined by S.
2 (8) and, therefore, permit under s. 42 (1)
was necessary and as the owner had no permit there under, he was guilty of an
offence punishable under s. 123.
The combined effect of S. 42(1) and the
definitions of a "motor vehicle", a "public service
vehicle" and a 'transport vehicle" is that if a motor vehicle is used
as a transport vehicle, the owner who so uses it or permits it to be so used is
required to obtain the necessary permit. It is the use of the motor vehicle for
carrying passengers for hire or reward which determines the application of s.
Therefore, whenever it is so used without the
permit, there is an infringement of the subsection. If the construction of that
subsection adapted by the High Court of Mysore were correct, it would mean that
whereas an owner of a transport vehicle is required to have the permit, the
owner of a motor vehicle not constructed or (1) A.LR. 1938 Mad. 233.
(2) A.I.R. 1945 Mad. 440.
678 adapted as a transport vehicle can carry
with impunity passengers for hire or reward without any permit there for.
Section 42(1) has been enacted for the
purpose of controlling vehicles carrying passengers, the object of such control
being obviously to ensure safety of passengers. The construction accepted by
the Mysore High Court would defeat the object for which the Legislature
provided such control in the interest of and for the safety of passengers. The
view taken by the Mysore High Court with respect is not correct and the view
taken by the High Court of Madras is not only correct but is in consonance with
the purpose and object of s. 42(i).
The appeal is, therefore, allowed. The order
of acquittal passed by the trial Magistrate and confirmed by the High Court is
set aside and the Magistrate is directed to proceed with the case on merits in
accordance with law and in the light of the observations made in this judgment.