K.N. Sankunny Pillai vs T. Paul and Others

Subramania Iyer, J.—This is an application by the Swaraj Motors Ltd., Kottayam, against three Respondents viz., (1) Sri T. Paul, District Superintendent of Police, Kottayam, (2) Sri Bahanan Varghese, Traffic Assistant to the District Superintendent of Police, Kottayam, and (3) Sri E. Geevalkumar, Traffic Sub-Inspector of Police, Kottayam asking the Court that

a writ of mandamus or such other direction be issued to the counter-Petitioners for compelling them to release and return the said bus to the Petitioner for the purpose of conducting its permitted service.

The facts are as follows:

The bus in question was purchased by the Petitioner company from Anr. company called the Planters Transports Ltd., along with six Ors. The latter company had a permit for all the seven buses enuring till 19-6-1953. An application was made for permission to transfer the ownership over the 7 buses. An application was also made by the Secretary of the vendor company to transfer the permits in respect of all the buses in the name of the vendee company. The transport authority before whom the applications were made sanctioned the latter on 3-8-1951. See copy of the order marked Ex. A.

As the bus in question and Anr. bus, TCK 1233 were subject to an interim attachment in a suit against a former lessee of the vehicles, be registration in respect of them could not transferred immediately. After the dissolution of the injunction, applications were made by the Petitioner company in November, 1951 for me formal transfer of permits in their name. Those applications do not appear to have been allowed or implemented until now. The bus in question was however being run pursuant to the permit without stop.

On 5-12-1951 Respondent 3 seized the bus while running and arrested its driver on the ground that he neglected to stop the vehicle when requisitioned and on the ground that the vehicle was being run without a permit endorsed in the name of the Petitioner company. Attempts made by the Petitioner company to get back the bus having failed, they have approached this Court for relief.

The driver who was arrested is being prosecuted before the Magistrate''s Court. We are not concerned with those proceedings in connection with this case.

The Transport Authority is not a party to these proceedings. The counter-affidavit presented on behalf of the Respondents admits that the transfer of the ownership of the buses as also their permits was sanctioned by the appropriate authority. The plea taken however is that pursuant to the rules dated 13-4-1950 issued under the Travancore-Cochin Motor Vehicles Act, there has not been a joint application for transfer of permits under Rule 172 nor has there been the surrender of the permit and endorsement of transfer thereon which could be done only on payment of the requisite fee provided therefor. The contention is that in the absence of an endorsement of transfer of the permit it was not competent for the Petitioner company to run the bus pursuant to the permit issued in the name of the Planters Transports Ltd.

The rules that are applicable to this case are the aforesaid rules. The present rules were passed only on 16-9-52 under the Indian Motor Vehicles Act which was made applicable to the State.

Section 42 of the Act provides for the necessity of permits and reads as follows:

(1) 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 Provincial Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used.

Section 129A is the section which authorises the seizure of a vehicle. It reads as follows:

129A. Any police, officer authorised in this behalf or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Sub-section (1) of Section 22 or without the permit required by Sub-section (1) of Section 42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle.

It is clear from this section that it is only it there is a violation of the first clause of Section 42 that seizure can be made. Section 42(1) which has been read does not enjoin the necessity of the person running the bus being the holder of a permit. It would appear to require only that the vehicle that is being run should be covered by a permit and in this case there has been the requisite permit. There has further been the permission granted to hold the permit to its user namely the Petitioner company. In no view of the matter can it be said that there has been in this case a violation of the provisions contained in Clause (1) of Section 42.

If the transfer of the permit had been endorsed on the permit itself, after its surrender and the name of the transferee written thereon, the transferees as holders may make themselves responsible for the violation of the conditions of the permit. The circumstance that the actual endorsement of transfer had not been made on the permit is not one that will render the running of the bus, pursuant to the permit already granted in the name of the vendor company, illegal or unauthorised. Section 123 of the Act imposes a penalty only in cases of violation of the first clause of Section 42. In my judgment, therefore, there has been no violation of the first clause of Section 42 in this case and the seizure of the bus by Respondent 3 was unauthorised and illegal.

Pursuant to the order of this Court made in this Original petition, the bus has been handed over to the Petitioner company and it is in their possession now. The seizure of the bus from the Petitioner being illegal the Respondents are, bound to restore the bus to the Petitioners and now since the Petitioners are in possession, it is enough to declare the illegality of the seizure and permit the Petitioners to continue to be in possession of and to use the bus according to the permit that has been granted in respect of its user. The Petitioner is ordered accordingly.

As regards costs, learned Government Pleader urges that though the seizure has now been found to be bad by this Court, Respondent 3 was acting bona fide in having seized the bus, there not having been a permit according to the terms of Rule 176.

Under the circumstances while I allow this petition in the above manner, I consider it proper that I shall not make the Respondents liable for costs in view of the apparent defect in the Petitioner''s not having obtained the endorsement of transfer made on the permit which is to some extent due to their not being able to produce the permit along with the permits of the 5 other buses. It is admitted that in respect of the 5 buses uncovered by the interim attachment, the permits have been transferred in the name of the Petitioner company. Had the permits of the other two buses also been presented along with other permits, there would have been no difficulty at all. The Transport Authority not being a party in these proceedings, it is not possible to say under what circumstances the applications of November, 1951 happened not to be ordered and the permits not endorsed in favour of the Petitioner company. Under the circumstances, I direct the parties to pay themselves their respective costs in this petition.