Case: State Of Mysore Vs. Syed Ibrahim

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 greengrocer held a licence for a private motor car, duty having been paid thereon at the horse-power rate under para 6, Sch II of the Finance Act. 1920. The car was neither constructed not adapted for use for conveyance of goods but the appellant, while the licence was in force used the said car of "occasionally for conveyance of goods in the course of his trade. It was contended that his user was for a purpose which brought the car within a class to which higher rate of duty under para 5of Sch. II 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 can was used by the appellant only of 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 for carriage 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 vie 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 duty was applicable. The purpose which brought it within para 5, as distinguished from para 6 of Sch II. was the purpose of conveyance of: goods. At page 421 of the Report it was further observed,"where 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 would bring it within a class or description of vehicle to which a higher rate of duty is app1icable, 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. 7. Similarly in Public Prosecutor v. R. Rajagopalan AIR 1938 Mad 233 , the High Court of Madras held that though Rules .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, AIR 1945 Mad 440 . 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 thereunder, he was guilty of an offence punishable under S. 123. 8. 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 42 (1) Therefore, whenever it is so used without the permit, there is an infringement of the sub-section. If the constriction of that sub-section 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 adapted as a transport vehicle can carry with impunity passengers for hire or reward without any permit therefor. 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 contorl 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 Section 42 (1).

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. 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 vehicle8. 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 42 (1) Therefore, whenever it is so used without the permit, there is an infringement of the sub-section. If the constriction of that sub-section 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 adapted as a transport vehicle can carry with impunity passengers for hire or reward without any permit therefor. 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 contorl 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 Section 42 (1)It is thus clear that what brought the motor vehicle under para 5, Sch. II was the purpose for which it was used.