judgement:
ivil Appeal No. 55A of 1987.
From the Judgment and Order dated 8.10.
1985 of the Allahabad High Court in Civil Misc.
No. 2278 of 1981.
S.N. Kacker, R.N. Sharma, J.K Jain and N.N. Sharma for the Appellant.
Gopal Singh and L.R. Singh for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
The question failing for consideration in this appeal by special leave is whether the High Court has erred in law in quashing the order of eviction passed against the respondent by the Judge, Small Cause Court as confirmed by the Additional District Judge and remitting the suit to the trial court for fresh consideration in the event of the trial court allowing an application by the appellant under Order I Rule 10 Civil Procedure Code for correcting the name of the plaintiff in the plaint.
The background of events to this Appeal may briefly be stated.
The appellant Bal Niketan Nursery School is a recog nised institution under the U.P. Basic Education Act, 1972, and is run and managed by a Society, "Smt.
Chandramukhi Ram Saran Shiksha Samiti", registered under the Societies Regis tration Act.
Dr. Om Prakash is the Manager of the appellant school and also the Secretary of the registered Society mentioned above.
On 10.3.1977 the Society purchased a plot of the land adjoining the school together with four super structures (Khaprails) standing thereon in the name of the appellant school through its Manager Om Prakash Gupta.
The super structures were in 514 the occupation of four tenants.
The entire rental income derived from the tenants is being utilised for the purpose of running the school.
Under the U.P. Urban Building Regula tion of Letting, Rent and Eviction Act, 1972 (for short the Rent Act) the provisions of the Act would not apply to a property owned by a recognised educational institution if the whole of the income from the property is utilised for the purposes of the institution.
Section 2(1)(b) which provides for the exemption is in the following terms: "Nothing in this Act shall apply to any building belonging to or vested in a recognised institution, the whole of the income from which is utilised for the purpose of such institution.
" As the appellant was in dire need of additional area for the growing needs of the school and as the property acquired by the school attracted the 'Exemption Clause ' in the Rent Act, the Manager of the school issued notices of termination of tenancy to the tenants on 30.5.
1977 under Section 106 of the Transfer of Property Act and demanded surrender of possession.
As the tenants failed to surrender possession, the appellant filed separate suits against the four tenants for ejectment and payment of arrears of rent.
The suits were filed in the name of the appellant school through its Manag er Dr. Om Prakash.
The Cause Title of the plaintiff in the plaint was given as under: "BaI Niketan Nursery School, Near Ganj Gurhatti, Moradabad through Dr. Om Prakash, Manager of the School.
" All the four tenants including the respondent herein raised only two defences in the suit, namely, that the appellant school is not a recognised educational institution so as to be entitled to the benefit of Section 2(1)(b) of the Rent Act and secondly, that the notice of termination of tenancy was not a valid notice because it had not been issued by an institution having juristic status.
The Small Cause Court consolidated all the four suits and held a joint trial and rejected both the contentions of the tenants and decreed the suits in favour of the school.
The tenants preferred revisions against the judgment to the District Judge and the learned Judge confirmed the judgment and decree of the Small Cause Court and dismissed all the revisions.
515 Thereafter the tenants filed writ petitions under Arti cles 226/227 of the Constitution before the High Court ,of Allahabad.
Before the High Court it was contended for the first time that the appellant school was not a juristic person and was not, therefore, entitled to file the suits through its Manager and as such the judgments of the Small Cause Court and the District Judge were ineffective and the decrees unenforceable.
The counter argument of the school was that as a recognised institution under the U.P. Basic Education Act, 1972 it has juristic status and furthermore it is the registered owner of the suit property, having obtained the sale deed in its own name and over and above all these the suit had been instituted by Dr. Om Prakash who was not only the Manager of the school but also the Secre tary of the Registered Society and as such, the suits were fully maintainable under law and consequently the judgments and decrees of the Small Cause Court and the District Judge were perfectly valid and enforceable.
Besides putting forth such contentions, the appellant school, by way of abundant caution also filed a petition under Order 1 Rule 10 Civil Procedure Code for amending the plaint by correcting the name of the plaintiff into Smt.
Chandramukhi Ram Saran Shiksha Samiti by Secretary Om Prakash in place of the name of the Bal Niketan Nursery School by Manager Dr. Om Prakash.
The High Court declined to uphold the contentions of the appellant school as in its view Clause (14) of the Constitu tion of the Registered Society contained a specific provi sion to the following effect.
"All the legal proceedings by the Society and against the Society will be done either by the Manager or by the Secretary or by a person authorised by them" and as such, the appellant school was not a juristic person and only the registered society.had the authority and competence to file the suits.
The High Court, therefore, held that the suits filed by the appellant school were not maintainable and consequently the judgments and decrees passed by the Small Cause Court and the District Judge were liable to the set aside and accordingly quashed them in three suits alone since the 4th suit (SCC Case No. 259/1977) had been compromised after the filing of the Writ Petition.
In so far as the application under Order 1 Rule 10 is con cerned, the High Court observed that the proper course for the appellant school was to move the Small Cause Court for getting the description of the plaintiff corrected and then pursue the proceedings for eviction.
The High Court also gave directions to the Small Cause Court as to how the suits were to be dealt with after amendment of the plaint in the following terms: 516 "It is made clear that in case the Judge Small Cause Court exercises the powers under Order 1 Rule 10, C.P.C. by correcting the description of the plaintiff, i.e. by getting the juristic person the Society substituted as plaintiff in the suit the defendant would be entitled to file additional written statement and the parties shall be afforded opportunity to lead fresh evidence in the case.
" Aggrieved by the judgment of the High Court the appel lant school has preferred this appeal by special leave.
Mr. Kacker, learned counsel for the appellant advanced five contentions set out below to impugn the judgment of the High Court.
The contentions are as follows: (1) The appellant school being a recognised institution under the U.P. Basic Education Act, 1972 is a legal entity and is, therefore, entitled to file the suits in its own name.
(2) Besides, the suit property has been purchased in the name of the appellant school and as the owner of the property the appellant is by itself entitled under law to file suits for seeking ejectment of the tenants.
(3) Consequent upon the purchase of the land and super structures and the vesting of possession in it, the appellant became the landlord of the tenants and the entire rental income is being used for running the school.
Therefore, in its capacity as the landlord of the tenants the appellant school is entitled to file the suits for ejectment notwithstanding clause 14 of the Constitution of the Registered Society.
(4) Even if it is viewed that the Registered Society is alone entitled to file the suit Dr. Om Prakash who is competent to file the suit on behalf of the Registered Society has filed the suits on behalf of the school and as such the Society is fully represented by Dr. Om Prakash and thereby Clause (14) of the Constitution of the Soceity stands satisfied.
(5) Even if a hyper technical view is to prevail requiring the suits to be filed only in the name of the Registered Society through its Secretary/Manager, the High Court should have allowed the petition under Order 1 Rule 10 C.P.C. and disposed of the Writ Petitions on merits instead of quashing the concurrent findings of 517 the courts below and remitting the suits to the Small Cause Court for fresh disposal after dealing with the petition under Order 1 Rule 10 C.P.C. Learned counsel for the respondent refuted the conten tions of Mr. Kacker and strenuously argued that the appel lant is not a recognised school but even if it is treated as a recognised institution under the U.P. Basic Education Act and even if the sale deed pertaining to the land and super structures has been obtained in the name of the school, it is only the Registered Society which can lawfully institute suits on behalf of the school or defend actions against it and that Clause (14) of the Constitution of the Society has overriding effect, and hence the suits filed by the appel lant school are not maintainable.
Having given our careful consideration to the arguments of the learned counsel and the view taken by the High Court we are of the opinion that the High Court was in error in sustaining the belated objection taken by the tenants re garding the competence of the appellant to file the suits and quashing the decrees for eviction passed against the tenants and remanding the suits to the Small Cause Court for fresh disposal after first considering whether the suits had been instituted in the name of the wrong plaintiff due to a bona fide mistake and whether the mistake calls for rectifi cation by allowing the petition filed under Order 1 Rule 10 C.P.C.
The reasons which have prompted us to come to this conclusion are manifold and may be enunciated in the follow ing paragraphs.
Under the U.P. Basic Education Act, the appellant school has been granted recognition as a recognised institution and by reason of such recognition the school is conferred cer tain rights and obliged to perform certain duties.
One of the rights flowing from the recognition granted to the school is an exemption from the provisions of the Rent Act.
Consequently, the appellant school has acquired rights by reason of the statutory recognition given to it under the U.P. Basic Education Act and to that extent the appellant school stands clothed with legal status.
It is not, there fore, a non entity in the eye of law.
Viewed from that perspective the appellant is entitled to file the suits through its Manager to seek the eviction of the tenants occupying the superstructures.
Of course, the learned coun sel for the respondent tried to contend that certain pro ceedings have been initiated for impugning the recognition granted to the appellant school under the U.P. Basic Educa tion Act and as such the appellant 's status as a recognised institution cannot be taken for granted.
We cannot counte nance this argument 518 because any proceedings instituted to impugn the recognition of the school subsequent to the filing of the suits cannot affect the status of the school at the time the suits were filed.
Furthermore, the respondent has not produced any material to show that the recognition granted to the school has been subsequently withdrawn.
Secondly, apart from the legal status acquired by the school as a recognised institution, it is admittedly the registered owner of the suit property even though the pur chase price may have been provided by the society.
It is not in dispute that the sale deed pertaining to the land and the super structures has been obtained in the name of the school.
Even as a benami owner of the property, the appel lant is entitled in law to preserve and protect it and to institute actions in that behalf so long as they do not conflict with the rights of the society.
As a corollary to this proposition it follows that the appellant constitutes the landlord of the tenants after the property was purchased in its name and rents from the tenants became to be collect ed.
Once a jural relationship of landlord and tenants was formed between the appellant and the tenants by operation of law the appellant 's right to initiate actions against the tenants for recovery of arrears of rent or recovery of possession of the leased property cannot be questioned or disputed.
Even if we are to close our eyes to the right of the appellant to file suits against the tenants in its capacity as a recognised institution or as the ostensible owner of the property or as the landlord of the tenants and are to judge the status of the appellant solely with reference to Clause (14) of the Constitution of the Society it may be noticed that Dr. Om Prakash is not only the Manager of the School but also the Secretary of the Registered Society.
The suits against the tenants have admittedly been filed by Dr. Om Prakash and even as per Clause (14) of the Constitution of the Society he is competent to file suits on behalf of the Society.
The school as well as the Registered Society, being institutions, they can file suits or defend suits only through a competent office bearer managing the affairs of the school or the Registered Society.
Inasmuch as the suits have been instituted by Dr. Om Prakash albeit as Manager of the school he has not ceased to be the Secretary of the Society and it can, therefore, will be taken that the suits have not been instituted by an incompetent person who is not empowered under the Constitution of the Society to file suits on behalf of the Society.
There is, therefore, no merit in the belated objection raised by the tenants that the suits are not maintainable in view of Clause (14) of the Constitution of the Society.
The suits, even if not insti tuted in the name of the Registered Society, are neverthe less competent actions 519 because they have been filed by Dr. Om Prakash who is compe tent to file suits on behalf of the Society also for recov ering possession of the leased property to the school.
The last and final ground which needs setting out in some detail is that even if a rigid view is taken and it is to be held that the suits have not been instituted in the name of the proper person viz. the Society, the High Court should have seen that Order 1 Rule 10 has been expressly provided in the Civil Procedure Code to meet with such situations so that the rendering of justice is not hampered.
The Rule provides that if a suit has been instituted in the name of a wrong person as plaintiff or if there is a doubt as to whether the suit has been instituted in the name of the right plaintiff the court may, at any stage of the suit, if it is satisfied that the suit has been instituted due to a bona fide mistake and that is necessary for the determina tion of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just.
The scope and effect of Order 1 Rule 10 has been considered in numerous cases and there is a plethora of decisions laying down the ratio that if the court is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the court should set right matters in exercise of its powers under Order 1 Rule 10 and promote the cause of justice.
The courts have gone so far as to hold that even if the suit had been instituted in the name of a person who had no competence to file the suit, the courts should set right matters by ordering the addition or substitution of the proper plaintiff for ensuring the due dispensation of jus tice.
We may only refer to a few decisions in this behalf.
In Hughes vs The Pump House Hotel Company Limited (No. 2), [1902] 2 Kings Bench 485) a dispute was raised regarding the competence of the plaintiff to file a suit because doubts were cast as to whether the plaintiff had made an absolute assignment of his claim against the defendants, or only an assignment by way of charge.
Thereupon an applica tion was made under Order XVI Rule 2 (corresponding to Order 1 Rule 10 CPC) for substitution of another person as plain tiff.
The application was allowed and that was upheld by the Court of Appeal and it was pointed out that the fact that the original plaintiff had no cause of action would not take away the jurisdiction of the court to order the substitution of another person as plaintiff.
In Krishna Bai vs The Collector and Government Agent, Tanjore & Others, (ILR 30 Madras 419) when it was found that a suit for ejectment of a defendant had been brought by the Collector and 520 Government Agent due to a bona fide mistake instead of the beneficiaries of the estate, the court allowed an applica tion for substitution of the correct plaintiff and it was further held that the fact that the Collector had no right to institute the suit would not stand in the way of the court ordering the substitution of the correct plaintiff.
In Sitla Bux Singh vs Mahabir Prasad, (AIR 1936 Oudh 275) it was held that where a person prohibited from dealing in actionable claim under Section 136 Transfer of Property Act obtained an assignment of a bond through a bona fide mistake and instituted a suit on the basis of the same, the provisions of Order 1 Rule 10 would apply and the assignor can be substituted in place of the assignee as plaintiff and allowed to continue the suit.
In Dinanath Kumar vs Nishi Kanta Kumar and Others, (A.I.R. 1952 Calcutta 102) the court allowed an application under Order 1 Rule 10 CPC and permitted a person who claimed that he was the real owner of the property and the original plaintiff was only a benamidar to be added as plaintiff in order to avoid multiplicity of proceedings and that he was a necessary party to the proceedings.
In Laxmikumar Srinivas Das vs Krishnaram Baldev Bank, Lashkar and another, (A.I.R. 1954 M.B. 156) it was held that the words "where a suit has been instituted in the name of the wrong person as plaintiff" must be construed to include those suits which the instituted by persons who had no right to do so and that the fact that the person instituting the suit had no cause of action would not take away the court 's jurisdiction to order substitution of another as plaintiff.
In Karri Somalu vs Thimmalapalli Venkataswamy and oth ers, it was held that the expression "wrong person" in Order 1 Rule 10 cannot be confined merely to a person wrongly described but would also extend to include a person whose name ought not to have figures as plaintiff for want of right to file the suit and that the object of the Rule is to save suits instituted honestly although in the name of the wrong person as plaintiff and to ensure that honest plaintiffs do not suffer.
In Udit Narain Singh Malpaharia vs Additional Member Board of Revenue, Bihar and another; , it was held that in proceedings for a writ of certiorari it is not only the Tribunal or Authority whose order is sought to be quashed but also the parties in whose favour the said order is issued who are necessary parties and 521 that it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or on application filed at the instance of such proper party.
In Murari Mohan Deo vs Secretary to Government of India, ; the dismissal of a petition under Article 226 of the Constitution by the Judicial Commissioner was challenged by the appellant therein.
The Judicial Commis sioner found that the appellant who was a forester in the employment of Tripura Government had been wrongly removed from service by an order of compulsory retirement but never theless refused to grant relief to the appellant because he had failed to implead the Government of India which was a necessary party to the proceedings.
This Court disapproved the dismissal of the writ petition on the technical ground and observed as follows: "Respondent 1 is shown to be the Secretary to the Government of India, Ministry of Home Affairs.
If there was technical error in the draftsmanship of the petition by a lawyer, a Forester a Class IV low grade servant should not have been made to suffer.
An oral request to correct the description of the first respondent would have satisfied the procedural requirement.
By raising and accepting such a contention, after a lapse of six years, the law is brought into ridicule.
The court could have conveniently read the cause title as Government of India which means Union of India through the Secretary, Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be competent by any standard.
The contention is all the more objectionable for the additional reason that the appointing authority of the appellant, the Chief Commis sioner of the Government of Tripura as well the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned officers.
Therefore, not only the petition as drawn up was competent but no bone of contention could be taken about its incompetence." Having regard to this settled position of law the High Court ought not to have sustained the objection raised by the tenants regarding the competency of the appellant to file the suits and quashed the orders of eviction concur rently passed by the Small Cause Court and 522 the Appellate Judge and remitted the suits for fresh consid eration with directions to consider the merits of the appli cation under Order 1 Rule 10 CPC but should have itself allowed the petition and added the Registered Society repre sented by its Secretary Dr. Om Prakash who is already on record, also as a party and disposed of the writ petitions on their merits.
We, therefore, allow the appeal and remit the matter to the High Court for disposal on merits after allowing the application filed under Order 1 Rule 10 CPC by the appellant and ordering Smt.
Chandramukhi Ram Saran Shiksha Samiti through its Secretary Dr. Om Prakash to be also added as a plaintiff in the suits so as to make it clear that Dr. Om Prakash is representing not only the appellant 's school but also the Registered Society and dispose of the writ peti tions on merits after the formal amendments have been car ried out in the pleadings.
The parties are directed to bear their respective costs.
N.P.V. Appeal allowed.

summary:
Section 2(1)(b) of the U.P. Urban Building Regulation of Letting, Rent and Eviction Act, 1972 lays down that "nothing in this Act shall apply to any building belonging to or Vested in a recognised institution, the whole of the income from which is utilised for the purpose of such institution.
" The manager of the appellant school, a recognised insti tution under the U.P. Basic Education Act, 1972, run and managed by a Registered Society issued notice of termination of tenancy to the four tenants of the super structures (Khaprails) purchased by it, under Section 106 of the Trans fer of Property Act and demanded surrender of possession.
As the tenants failed to surrender possession, he filed sepa rate suits against the four tenants for ejectment and pay ment of arrears of rent.
The respondent and the other ten ants contended that the school was not a recognised educa tional institution entitled to the benefit of Section 2(1)(b) of the U.P. Urban Building Regulation of Letting, Rent and Eviction Act, 1972 and that the notice of termina tion of tenancy was not valid.
The trial court rejected the contentions of the tenants and decreed the suits in favour of the school.
The revisional court confirmed the judgment and decree of the trial court and dismissed all the revision petitions.
511 In the writ petitions before the High Court, it was contended for the first time that the appellant school was not a juristic person and was not, therefore, entitled to file the suits through its manager.
It was submitted on behalf of the school that as a recognised institution under the U.P. Basic Education Act, 1972, it has juristic status, that the suit had been instituted by a person who was not only the manager of the school but also the secretary of the Registered Society and as such the suits were fully main tainable under law.
The appellant school, also filed a petition under Order 1 Rule 10 of Code of Civil Procedure for amending the plaint by correcting the name of the plain tiff into the name of the Society by its secretary in place of the name of the school by its manager.
The High Court held that in view of the specific provi sion in Clause (14) of the Constitution of the Registered Society to the effect that "all the legal proceedings by the Society and against the Society will be done either by the Manager or by the Secretary or by a person authorised by them", the appellant school was not a juristic person and only the Registered Society had the authority and competence to file the suits and that the suits filed by the appellant school were not maintainable.
It quashed the judgments and decrees passed by the courts below in three suits since the fourth suit had been compromised after the filing of the writ petition.
Insofar as the application under Order 1 Rule 10 was concerned the High Court held that the proper course for the appellant school was to move the trial court for getting the description of the appellant corrected and then pursue the proceedings for eviction.
Allowing the appeal by special leave, this Court, HELD: 1.
It is well settled that if the court is satis fied that a bona fide mistake has occurred in the filing of the suits in the name of the wrong person, then the court should set right matters in exercise of its powers under Order 1 Rule 10 and promote the cause of justice.
The Courts have also held that even if the suit had been instituted in the name of a person who had no competence to file the suit, the courts should set right matters by ordering the addition or substitution of the proper plaintiff for ensuring the due dispensation of justice.
[519D E] 2.1 By reason of recognition granted under U.P. Basic Education Act, 1972, the appellant school stands clothed with legal status, and is not a non entity in the eye of law.
[517G] 512 2.2 Any proceedings instituted to impugn the recognition of the school subsequent to the filing of the suits cannot affect the status of the school at the time the suits were filed.
[518A] 2.3 The appellant constitutes the landlord of the ten ants after the property was purchased in its name and rents from the tenants came to be collected.
Once a jural rela tionship between landlord and tenants was formed between the appellant and the tenants by operation of law, the appel lant 's right to initiate actions against the tenants for recovery of arrears of rent or recovery of possession of the leased property cannot be questioned or disputed.
[518C D] 2.4 Even if the status of the appellant is to be judged solely with reference to clause (14) of the Constitution of the Society, the person who filed the suits is not only the manager of the school but also the Secretary of the Society and even as per this clause he is competent to file suits on behalf of the Society.
The suits, even if not instituted in the name of Registered Society, are nevertheless competent actions because they have been filed by the Manager of the school who is competent to file suits on behalf of the Society also for recovering possession of the leased proper ty.
[518E H; 519A] 2.5 The appellant is, therefore, entitled to file the suits through its Manager to seek the eviction of the ten ants occupying the superstructure.
[517] 3.
The High Court was in error in sustaining the belated objection.
taken by the tenants regarding the competence of the appellant to file the suits and quashing the decrees for eviction passed against the tenants and remanding the suits to the trial court for fresh disposal, after first consider ing whether the suits had been instituted in the name of the wrong plaintiff due to a bona fide mistake and whether the mistake called for rectification by allowing the petition filed under Order 1 Rule 10 Code of Civil Procedure.
[517D E] 4.
Appeal allowed and the matter remitted to the High Court for disposal on merits after allowing the application filed under Order 1 Rule 10 Code of Civil Procedure by the appellant and ordering the Society through its Secretary to be also added as a plaintiff in the suits so as to make it clear that the person who has filed the suits is represent ing not only the appellant school but also the Registered Society.
[522A B] Hughes vs The Pump House Hotel Company Limited (No. 2), 513 [1902] 2 Kings Bench 485; Krishna Bai vs The Collector and Government Agent, Tanjore & Others, ILR 30 Madras 419; Sitla Bux Singh vs Mahabir Prasad, AIR 1936 Oudh 275; Dinanath Kumar vs Nishi Kanta Kumar and Others, A.I.R. 1952 Calcutta 102; Laxmi Kumar Srinivas Das vs Krishnaram Baldev Bank, Lashkar and another, A.I.R. 1954 M.B. 156; Karri Somalu vs Thimmalapalli Venkataswamy and others, ; Udit Narain Singh Malpaharia vs Additional Member Board of Revenue, Bihar and another; , and Murari Mohan Deb vs Secretary to Government of India, ; , referred to.


judgement:
ivil Appeal No. 3178 of 1986.
From the Judgment and Order dated 19.6.1986 of the Punjab and Haryana High Court in C.W.P. No. 3096 of 1986.
Appellant in person.
Dr. Y.S. Chitale, Harbanslal and Ravinder Bana for the Respondents.
The Judgment of the Court was delivered by KHALID, J.
1.
The appellant appeared in person and argued his case with clarity and competence.
At times he was emotionally surcharged.
He perhaps, feels that he had a raw deal at the hands of the authorities.
In the Special Leave Petition he has given in great detail his high qualifica tions and meritorious achievements in the various offices he held.
Shorn of these details the necessary facts, in brief, for the disposal of this appeal are as follows: 2.
The appellant was appointed as Chairman of the Har yana Board of School Education as per order dated 10 12 1985.
At that time he was holding the post of Professor Director of the Punjabi University Regional Centre, Bha tinda.
On his appointment as the Chairman of the said Board he resigned his post as Professor Director and took over as the Chairman of the Board on 11th December, 1985.
His origi nal appointment was for a period of 2 years.
The order of appointment reads as follows: "In exercise of the powers conferred by sub section (4) of section 3 of the Haryana Board of School Education Act, 349 1969 (as amended from time to time), the Governor of Haryana is pleased to appoint Dr. D.C. Sexena, Professor Director, Punjabi University Regional Centre, Bhatinda, as Chairman of the Haryana Board of School Educa tion, in place of Shri Anil Razdan, I.A.S., with.
immediate effect for the period of two years.
The terms and conditions of his appointment will be notified later on.
" While he was holding the office as Chairman of the Board thus, he received a communication dated 24 3 1986, from the Education Department of the Haryana Government informing him that the Government may curtail his tenure of office at any time.
The relevant portion of the order reads as follows: "No. 19/40/83 Edu.
III(5).
In continuation of Haryana Government order No. 19/40/83 Edu.
III(5) dated 10th December, 1985, and in exercise of the powers conferred by sub sec tion (4) of Section 3 of the Haryana Board of School Education Act, 1969 (as amended from time to time), the Governor of Haryana is pleased to prescribe the following terms and conditions of appointment of Dr. D.C. Saxena as Chairman of the Board of School Education, Haryana, from the date he took over charge as such: Tenure of Office His tenure of office shall be for a period of two years from the date of assuming charge.
The Govt.
may, however, curtail the tenure at any time.
xxxxxxx xxxxxxx xxxxxxxxxx xxxxxxx xxxxxxxx xxxxxxxxx xxxxxxx xxxxxxxxxx xxxxxxxxx xxxxxxx xxxxxxxxxx xxxxxxxxx The appellant objected to this by his letter dated 3 4 1986, to the Commissioner cum Secretary, Education Depart ment, Haryana, Chandigarh, marking a copy of the then Chief Minister of Haryana.
On 7th June, 1986, he was served with an order that his term of office had been curtailed with immediate effect and that he would cease to 350 function as Chairman from 8 6 1986.
This order is extracted below: "In exercise of the powers conferred by Sec tion 4 A of the Haryana Board of School Educa tion Act, 1969, and in accordance with the terms of appointment under the heading "Tenure of Office," issued vide order No. 19/40 83 Edu. 111(5) dated the 24th March, 1986, the Governor of Haryana is pleased to curtail the tenure of office of Dr. D.C. Saxena as Chair man, Haryana Board of School Education with immediate effect and orders that he shall cease to function as such with immediate effect from 8 6 1986.
Shri Vivek Mehrotra, I.A.S., Direc tor, School Education, Haryana, will hold the charge of office of the Chairman, Haryana Board of School Education in addition to his own duties till further orders.
" The appellant challenged this order by filing a writ peti tion in Punjab and Haryana High Court on 10th June, 1986.
A Division Bench of the High Court issued notice and directed status quo, as on that day, to continue.
On 19th June, 1986, the matter was listed before another Division Bench and the writ petition was dismissed in limine.
This appeal by spe cial leave arises from the said order.
The appellant 's case is that his original appointment was for two years at a time when he was holding a presti gious post, that he relinquished that post and took charge of the new post, that the curtailment of the original period fixed altered his position to his detriment and that all this was done mala fide.
The appellant took us through the facts in detail to highlight the case of mala fides to persuade us to accept his case that the curtailment and removal was punitive and that it was done in violation of the law as laid down by this Court in various decisions.
The case of the State, as disclosed in the affidavit filed by them, is that the affairs of the Board of School Education, Haryana are governed by the Haryana Board of School Education Act, 1969 (hereinafter referred to as the Act).
Sub section (4) of Section 3 of the Act stipulates that the Chairman and Vice Chairman of the Board shall be appointed by the State Government, upon such terms and conditions as it may think fit and they shall hold office at the pleasure of the State Government.
It was in exercise of the powers conferred under Sub Section (4) of Section 3 of the Act that the appellant was 351 appointed Chairman.
In the appointment letter, it had been specifically provided that the terms and conditions of the appointment would be notified later.
Subsequently, by commu nication dated 24th March, 1986, he was told that his tenure of service could be curtailed at any time by the Government.
The State Government had taken a general decision on 6th June, 1986, dispensing with the services of non official/ non MLAs as Chairman of the Boards and Corporations exclud ing Kurukshetra Development Board and Tourism Corporation, Haryana.
It is stated in the Counter Affidavit that this general order was examined by the Secretary, Education Department, to see whether the consequent termination of the appellant would be legal and in public interest or whether an exception could be made in his case in the interest of the Board.
After the examination of the relevant files in the Education Department, it was decided that the appel lant 's services could also be dispensed with by curtailing his tenure.
Along with him, Chairmen of eleven other Boards and Corporations were also dropped.
It was pursuant to this decision that his tenure of service was curtailed with immediate effect by the communication dated 7th June, 1986.
It is stated that Section 4 A of the Act enabled the Govern ment to do this.
In the absence of any challenge to this rule, the order of curtailment was valid in law since the appellant could be in service only during the pleasure of the Government.
The first respondent in this appeal is the State of Haryana and the second respondent a member of the Legisla tive Assembly and the son of the present Chief Minister of Haryana.
The appellant was appointed Chairman of the Board, when Shri Bhajan Lal was the Chief Minister.
The order informing him that his tenure would be for two years and that the Government could "curtail this tenure at any time" was also issued when Shri Bhajan Lal was the Chief Minister.
In the original order of appointment, it was indicated that the tenure of his office would be for two years.
Only four months later he was alerted by another order that the Gov ernment could curtail his tenure at any time.
He must have been aware of Section 4 A which reads as follows: "4 A. Chairman, Vice Chairman and members to hold office during pleasure of State Govern ment.
Notwithstanding anything contained in Section 3 or Section 4 or any other provision of this Act, the Chairman, Vice Chairman and members of the Board shall hold office during the pleasure of the State Government." 352 An argument was attempted to be advanced before us that the procedure laid down in Section 9 was not followed in his case and that this omission rendered his removal bad.
For a better appreciation of this contention, we quote section 9: "9. Power to remove members: If, in the opin ion of the State Government, the continuance in office of any person as a member is not in the interest of the Board, the State Govern ment may, in consultation with the Board, make an order removing such person from such mem bership; Provided that before making such order, the reasons for his proposed removal shall be communicated to him and he shall be given an opportunity of tendering an explanation in writing which shall be duly considered by the State Government.
" It is clear that the proviso to the Section makes it obliga tory on the State Government to communicate the reasons for the proposed removal of a member and to give him an opportu nity of tendering his explanation in writing and also a duty on the State Government to consider it.
It was argued that the Chairman of the Board is also a member and his removal without complying with the procedure laid down in Section 9 is against law and has to be set aside.
The contention that Section 9 has been violated is wholly without force because, in our opinion, Section 9 does not come into play at all in this case.
It is apparent, on a comparison of the terms of Section 4 A and Section 9, that while the former deals with the general power of the State Government to terminate the tenure of the Chairman, Vice Chairman and members, the latter carves out a special field dealing with a category of cases where the State Government may remove a member whose continuance in office is not in the interest of the Board.
A case falling within Section 9 is a case where removal must be for reasons personal to the Member and flow from his conduct or such other factor which requires that, in the interest of justice and fair play, he should be given an opportunity to tender an explanation.
In the view that Section 9 carves out a special field, Section 4 A is left with an abridged scope.
So abridged, it deals with cases other than those where the continuance of a member calls for termination in the interest of the Board and requires that such member be given an opportunity of tendering an explanation before such removal.
Section 4 A can be said to include cases where the tenure of a Chairman, 353 Vice Chairman or a member is liable to termination on grounds of general policy.
On the facts and circumstances, it is clear that the termination of the appellant 's tenure was the result of the policy decision taken by the Govern ment to bring in a new class of Chairmen in different Boards in the State.
From the material on record we are not satis fied that the termination of the Appellant 's tenure was prompted by mala fides or was punitive in nature.
The Appel lant 's services were dispensed with because of a general decision taken by the Government dispensing with the serv ices of non officials and non MLAS as Chairmen of the Boards and Corporations excluding the Kurukshetra Development Board and the Tourism Corporation, Haryana.
Similarly with the termination of the Appellant 's services the services of Chairmen of several other Boards and Organisations were terminated.
It is clear, therefore, that if Section 4 A is valid the order of removal of the Appellant has to be upheld.
The validity of Section has not been challenged by the Appellant either before the High Court or before us except in a casual manner in the Written Submissions filed before this Court.
The High Court has rightly held that Section 4 is an insur mountable hurdle in the way of the Appellant.
We have, therefore, although with extreme reluctance having regard to the personal merit of the Appellant, to uphold the Judgment of the High Court.
The appellant, in desperation, put forward another plea, that the expression "terms and conditions of service" would not take within its ambit "tenure of service".
In other words, his case was that the word "term" did not indicate the period of service and that therefore, the Government did not have the requisite authority to curtail his tenure.
This plea was met by the respondents ' counsel saying that the word 'term ' included the tenure of service also.
Both sides invited us to Dictionaries in support of their respective cases.
We do not think it necessary to seek support from the Dictionary for this purpose.
The expression "terms of service" clearly includes tenure of service.
We regret, we cannot help the appellant on this plea either.
In view of the peculiar facts of this case, we do not think it necessary to consider the various authorities cited before us regarding the violation of Article 311(2) and violation of natural justice.
We are extremely unhappy that such a situation has come to pass.
Perhaps, the appellant 's grievances are well founded.
He left his prestigious post and joined the Board expecting to be there for two years when he had a raw deal at the hands of the authorities.
However, on an application of the provisions of the Haryana Board of School Education (Amend 354 ment) Act, 1980 we find it difficult to rescue the appellant from his predicament.
We trust and hope that the Punjab University will be generous enough to accommodate him prop erly.
The appeal has to fail and is dismissed without any orders as to costs.
M.L.A. Appeal dis missed.

dataset_name: IN-Abs

summary:
The Haryana Board of School Education Act, 1969 by section 4(A) stipulates that the Chairman, Vice Chairman and Members of the Board shall hold office during the pleasure of the State Government.
Section 9 of the Act provides that the State Government may remove a member whose continuance in office is not in the interest of the Board provided that before making such order, the reasons for removal shall be communicated and he shall be given an opportunity of tender ing an explanation in writing which shall be considered by 'the State Government.
In exercise of powers conferred by the sub section (4) of section 3 of the Act, the appellant was appointed as Chairman of the Haryana Board of School Education for a period of two years.
On his appointment as Chairman, he resigned his post as Professor Director of the Punjabi University Regional Centre, Bhatinda and took over as Chairman on 11th December, 1985.
The appointment letter stated that the terms and conditions of the appointment will be notified later on.
The appellant received a communication dated 24.3.86 from the Education Department that the Government may cur tail his tenure of office at any time.
Subsequently he was served with an order stating that his terms of office hod been curtailed with immediate effect and that he would cease to function as Chairman from 8.6.86.
Similarly, with the termination of the appellant 's services, the services of Chairmen of several other Boards and organisations were terminated.
The appellant challenged the aforesaid order before the High Court in a writ petition which was dismissed in limine.
347 In appeal to this Court, he contended; (i) that the curtailment of the original period fixed, altered his posi tion to his detriment and that this was done mala fide; (ii) that the word 'term ' did not indicate the period of service and therefore, the government did not have the requisite authority to curtail his tenure; and (iii) that the proce dure laid down under section 9 of the Act was not followed and consequently his removal was void.
On the other hand, it was argued by counsel for the respondents: (i) that appellant 's tenure of service could be curtailed at any time by the government; (ii) that appellant 's tenure of service was curtailed alongwith the Chairmen of 11 other Boards and corporations pursuant to a general decision taken by the State Government dispensing with the service of non offi cials; (iii) that in the absence of any challenge to Rule 4A of the Act, the order of curtailment was valid in law since the appellant can be in service only during the pleasure of the government.
Dismissing the appeal, this Court, HELD: 1.
Section 4A is an insurmountable hurdle in the way of the appellant.
If section 4A is valid, the order of remov al of the appellant has to be upheld.
The validity of the section has not been challenged by the appellant either before the High Court or before this Court.
Therefore the judgment of the High Court is upheld.
[353D] 2.
The expression 'terms of service" clearly includes tenure of service.
[353F] 3.
It is apparent on a comparison of the terms of section 4A and section 9 that while the former deals with the general power of the State Government to terminate the tenure of the Chairman, Vice Chairman and Members, the latter carves out a special field dealing with a category of cases where the State Government may remove a member whose continuance in office is not in the interest of the Board.
A case failing within section 9 is a case where removal must be for reasons personal to the member and flow from his conduct or such other factor which requires that, in the interest of justice and fair play, he should be given an opportunity to tender an explanation.
In the view that section 9 carves out a special field, section 4A is left with an abridged scope.
So abridged, it deals with cases other than those where the continuance of a member calls for termination in the interest of the Board and requires that such member be given an opportunity of tendering an explanation before such removal.
Section 4A can be said to include cases where the tenure of a Chairman, Vice Chairman or a member is liable to termination on grounds of general policy.
[352E H; 353A] 348 In the instant case, the termination of the appellant 's tenure was neither prompted by mala fides nor was punitive in nature.
The appellant 's services were dispensed with because of a general decision taken by the government dis pensing with the services of non officials and non MLAs as Chairman of the Boards and Corporations excluding the Kuruk shetra Development Board and the Tourism Corporation, Har yana.
[353B C] [The Court expressed the hope that the Punjabi Universi ty will be generous enough to accommodate the appellant properly.]


judgement:
ivil Appeal No. 3534 of 1986.
From the Judgment and Order dated 17.2.
1986 of the Patna High Court in C.W.J.C. No. 6215 of 1985.
Govind Mukhoty, S.K. Bhattacharya and U.S. Prasad for the Appellant.
Jaya Narain, R.P. Singh, B.P. Singh and Ranjit Kumar for the Respondent.
The Judgment of the Court was delivered by PATHAK, CJ.
This appeal by Special Leave is directed against the Judgment and Order of the High Court of Patna dismissing a Writ Petition filed by the appellant.
The appellant is an Additional Subordinate Judge in the Bihar Judicial Service.
Disciplinary proceedings were taken against him and ended in an order imposing the punishment of censure, the withholding of annual increments for two years, postponement of his case for promotion for a like period and the denial of emoluments in excess of the subsistence allow ance for the period of suspension.
The appellant filed a Writ Petition in the High Court challenging the order of punishment on several grounds but did not succeed.
He urged also that the appeal filed by him to the Governor against the order of punishment should not have been withheld by the High Court but should have been despatched to the State Government for consideration.
The High Court held that no appeal lay to the State Government and therefore rejected the plea.
On 16 September, 1986 this Court granted special leave to the appellant confined to the question whether an appeal lay to the Governor against the order of the High Court.
That is the sole question for consideration before us.
To support his claim to a right of appeal the appellant relies on 525 the Civil Services (Classification, Control and Appeal) Rules 1930.
It is pointed out that these Civil Services Rules of 1930 have been kept in force by the State Govern ment by notification No. III/RI/10 1/63 8051A dated 3 July, 1963 issued under the proviso to Article 309 of the Consti tution.
The submission of the appellant is that the right of appeal is saved by Article 235 of the Constitution.
Article 235 of the Constitution provides that the control over District Courts and Courts subordinate thereto, including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of the State and holding any post inferior to the post of District Judge shall be vested in the High Court but that nothing in that Article may be construed as taking away from any such person any right of appeal which he may have under the law regulat ing the conditions of service.
The question is whether the appellant is governed by the Civil Services Rules of 1930, Rule 14 classifies the Public Services in India into a number of categories, and one such category is constituted of the Provincial Services.
Rule 18 declares that the Provincial Services shall consist of such services under the administrative control of the Local Government of a Governor 's Province as the Local Government may from time to time declare, by notification in the local official Gazette, to be included in the Provincial Services of that Province.
Rule 49 specifies the penalties which could be imposed upon members of the Services specified in Rule 14.
Rule 56 confers a right of appeal on a person belonging to any of the classified Services specified in Rule 14 against an order imposing any of the penalties specified in Rule 49.
Rule 57(5) provides: "A member of a Provincial Service . . may appeal to the Governor from an order passed by the Local Government".
We enquired of learned counsel for the parties whether a Notification had been issued designating the Subordinate Judicial Service, of which the appellant is a member, as one of the Provincial Services specified in Rule 14.
Neither counsel was able to refer to any Notification in that be half.
In the absence of positive material providing that the Subordinate Judicial Service can be regarded as having been brought within the scope of the Civil Services Rules of 1930, it is not open to the appellant to rely on the right of appeal created by those Rules.
Our attention has been drawn to the fact that the Civil Services Rules of 1 '930 were continued with effect from 22 December 1956, by 526 Notification No. III/RI/101/63 8051 A dated 3 July, 1963.
That does not advance the case of the appellant any further because the Notification can take effect in respect of such Service only as has already been brought within the scope of those Rules.
Before leaving this case, we must give expression to our great disappointment that neither party was able to indicate what were the Rules which governed the Judicial Service to which the appellant belonged.
If no Notification was issued applying the Civil Service Rules of 1930 to such Judicial Service, there must surely be some other body of Rules which does apply.
And if there is none, it is time that such body of Rules was framed.
The present regrettable state of confu sion must be ended.
It would certainly be a matter of grati fication for the Judicial officers of the State of Bihar to know where they stand.
In the result, the appeal fails and is dismissed but in the circumstances we make no orders as to costs.
A.P.J. Appeal dis missed.

summary:
Rule 14 of the Civil Services Rules, 1930 classifies Public Services in India into a number of categories and one such category is constituted of the 'Provincial Services '; and.
r. 18 thereof declares that it shall consist of such services under the administrative control of the Local Government of a Governor 's Province as the Local Government may from time to time declare, by notification in the local Official Gazette, to be included in the Provincial Services of that Province.
Rule 49 specifies the penalties which could be imposed upon the members of the Services specified in r. 14.
Rule 56 read with sub r.
(5) of r. 57 confers on a person belonging to any of the classified services specified in r. 14 a right of appeal to the Governor against an order imposing any of the penalties specified in r. 49, which right is saved by article 235 of the Constitution.
The appellant, a member of the Bihar Judicial Service, challenged an order of punishment served on him inter alia on the ground that the appeal filed by him to the Governor against the order of punishment should not have been with held by the High Court but should have been despatched to the State Government for consideration.
The High Court dismissed the writ petition holding that no appeal lay to the State Government.
Dismissing the appeal, HELD: In the absence of positive material providing that the Subordinate Judicial Service can be regarded as having been brought within the scope of the Civil Services Rules of 1930.
it is not open to the appellant to rely on the right of appeal created by those Rules.
[525G] 524 In this case, neither counsel was able to refer to any notification designating the Subordinate Judicial Service, of which the appellant was a member.
as one of the Provin cial Services specified in r. 14.
[525F G]


judgement:
Special Leave Petition (Civil) No. 7213 of 1987.
From the Judgment and Order dated 19.5.
1987 of the Andhra Pradesh High Court in W.A. No. 672 of 1987.
P.P. Rao and P.P. Singh for the Appellant.
567 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This petition arises out of the judgment and order of the High Court of Andhra Pradesh.
Sree P.P. Rao, learned counsel for the petitioner submits that the order of release was bad because the authorised officer had no power to review the previous order nor he had the power to release the property of the landlady without even giving an opportunity to the petitioner.
In the facts of this case as noted by the High Court, we are unable to entertain these contentions.
We are unable to accept the contention that the Government cannot review its own order.
It is well settled law of this Court that in case of bona fide need subsequent events must be taken into account if they are relevant on the question of release or possession of the premises in question.
On a previous occasion the Government had declined to release the premises, later on .the representation made by the landlady the Government changed its decision.
The landlady had filed an application for releasing the premises in her favour, but the same was initially rejected on 25.9.1978.
Again the landlady made a further representation stating certain additional and fresh circumstances, that is to say, that her son was not allowing her to live with him in another house belonging to her.
The Government took into account the subsequent events and passed the order on 19.3.
1980 releasing the premises in favour of the landlady.
We do not see how to take cognizance of such subsequent events releasing the premises can be described an order in nullity in the facts of this case.
The next contention was that the petitioner was an allottee of the premises by virtue of his being in service but the petitioner was really a tenant of the premises in question.
The Government informed the petitioner to make alterna tive arrangements or seek accommodation.
The Government issued several notices on 24.11.1978, 22.5.1979, 12.7.1979, 27.9.1970 and 17.1.1980 to the petitioner and these facts have been stated and have also been taken note of by the High Court in the judgment under challenge.
In spite of the said notices given to the petitioner who was an allottee and who was informed about the requirement of the landlady, the petitioner did not choose to move out from the premises.
In the meantime, the petitioner has retired from service in 1986 and a long time has passed now.
In this case we do not think it can be said that the order was bad because the petitioner was initially not given an opportunity to show cause.
Actually the petitioner had enough opportunity.
In the premises, the special leave petition fails and we do 568 not find any ground to interfere with the order of the High Court.
Having regard to the facts that the petitioner had acquired government accommodation and he has stayed in the premises in question for sometime, we allow him to make alternative arrangement by 31.12.1987.
The order for evic tion will not be executed until 31.12.1987 provided the petitioner files an undertaking in this Court within four weeks from today to vacate and hand over the premises in question.
H.L.C. Petition dismissed.

summary:
The petitioner was an allottee of the premises held by the Government at the relevant time.
The landlady applied for release of the premises but the request was rejected.
However, upon a further representation made by the landlady stating that her son was not allowing her to live with him in another house belonging to her, the Government made an order releasing the premises in her favour and asked the petitioner to vacate the premises.
Several notices were also issued to him in that behalf.
The petitioner challenged the order of release contending that he had not been given an opportunity to show cause, and, that the Government had no power to review its earlier order rejecting the request; but the petition was dismissed by the High Court.
Dismissing the petition for Special Leave to appeal.
HELD: It is well settled law of this Court that in case of bona fide need, subsequent events must be taken into account if they are relevant to the question of release of possession of the premises.
The contention that the Govern ment cannot review its own order cannot be accepted.
When, in spite of the 'notices given to him, the petitioner did not choose to move out of the premises it cannot be said that he was not given an opportunity to show cause.
[567B C]


judgement:
: Criminal Appeal No. 2 of 1977.
From the Judgment and Order dated 26.3.1976 of the Karnataka High Court in Criminal Appeal No. 169 of 1976: R.B. Datar, Swaraj Kaushal and M.A. Khan for the Appellants.
K.R. Nagaraja for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
The objective of the State of Karnataka in filing this Appeal by Special Leave is to seek a pronounce ment of this Court on the scope and effect of Section 3(1) of the Mysore Motor Vehicles Taxation Act, 1957 (now the Karnataka Motor Vehicles Taxation Act 1957) and not to pursue the prosecutorial action against respondents 1 and 2 for their contravention of certain provisions of the said Act.
This position was conceded by the learned counsel for the State even at the commencement of his arguments.
Even so, the facts of the criminal case filed against the re spondents and the reasons for their acquittal require men tion for a proper comprehension of the legal issues involved in the case.
The first respondent sold his goods vehicle, to wit a 12 ton lorry bearing Registration No. MYH 3797, to the second respondent on 2.1.71 but neither of the respondents reported the transfer of the vehicle to the Regional Transport Offi cer in compliance with the terms of Sub Section (1)(a) and Sub Section (1)(b) of Section 31 of the Motor Vehicles Act.
Be that as it may, it came to the notice of the Regional Transport Officer subsequently that the tax payable for the vehicle under Section 3(1) of the Mysore Motor Vehicles Taxation Act, 1957 (hereinafter the Taxation Act) for the period 1.10.72 to 31.3.74 amounting to Rs.6,300 had not been paid.
This led to a demand notice being issued to the first respondent to pay the arrears of tax together with penalty.
The first respondent refuted his liability 485 to pay the arrears of tax on the ground he had transferred the vehicle to the second respondent as early as on 2.1.Tl.
A demand notice was then issued to the second respondent and he too refuted his liability to pay the arrears of tax on the plea that the vehicle was not in a fit condition and it had been lying in a workshop during the relevant period without repairs being affected for want of spare parts.
Since both the respondents failed to pay the arrears of tax the Transport Authorities filed a complaint against them under Section 3(1) read with Section 12(t)(a) of the Taxa tion Act in the Court of the Chief Judicial Magistrate, Mangalore.
In the trial of the case the second respondent sought to prove his defence by examining the owner of a workshop known as Lokmata Garage and filing several defence exhibits.
The Chief Judicial Magistrate accepted the defence of the respondents and held that since the first respondent had sold the vehicle he was not liable to pay the arrears of tax and likewise the second respondent too was not liable to pay the tax because the vehicle did not have a fitness certificate and had been left in a workshop for repairs being carried out.
The Chief Judicial Magistrate further held that the currency of the Registration Certificate during the relevant period will not alter the situation in any manner because the Registration Certificate cannot have currency so as to attract tax liability when the vehicle was not covered by a valid certificate of fitness.
For taking such a view and acquitting the respondents, the learned Magistrate relied on a decision of the Karnataka High Court in State vs Boodi Reddappa.
[1975]1 Karnataka Law Journal p. 206.
The State preferred an appeal against the acquittal to the High Court but the High Court dismissed the appeal in limine and hence the present appeal by special leave by the State.
Before we proceed to consider the relevant provisions of the Taxation Act and the Motor Vehicles Act, we may refer to the decision in Reddappa 's case which has been followed by the Chief Judicial Magistrate.
The case pertained to the owner of a goods vehicle who was prosecuted under Section 12(1)(a) of the Taxation Act for nonpayment of tax for a certain period during which the vehicle was covered by a certificate of fitness and there was also no evidence that the vehicle had been put to use on the roads even without a certificate fitness.
The Trial Magistrate acquitted the owner of the goods vehicle and the State preferred an appeal to the High Court and contended that as per the deeming provision contained in the Explanation Section 3(1) of the Taxation Act, the owner was bound to pay tax as long as the Certificate of Registration was current.
The Division Bench rejected the contention and held that the word 'kept ' occur ring 486 in Section 3(1) must be construed as 'kept for use ' and that in the absence of evidence to show that the vehicle had been made use of or that it had been 'kept for use ', the currency of the Certificate of Registration would not by itself attract tax liability.
,For taking such a view the High Court placed reliance on an earlier decision rendered in Naraina Reddy vs Commr.
of Transport, [1971] 2 Mys.
Law Journal 319).
The Bench also held, following the view taken in yet another earlier case B.G. Bhagwan vs Regional Trans port Officer, (AIR that in the absence of a fitness certificate, Section 38 of the Motor Vehicles Act would be attracted and therefore a Certificate of Registra tion will not have currency without a co extensive certifi cate of fitness for the vehicle.
Even without going into the correctness of the view taken by the High Courts, we would like to point out that the two earlier decisions do not really provide support for the view taken by the High Court.
Bhagwan 's case was decided on the basis of the peculiar facts therein.
What had hap pened in that case was that the Superintendent of Police made a surprise check of a stage carriage and found it to be defective and unsuitable for use on the roads.
He, there fore, held a joint inspection of the vehicle with the Re gional Transport Officer and thereafter the Regional Trans port Officer cancelled the certificate of fitness of the vehicle on 9.2.63.
The permit holder returned to the Region al Transport Officer the Certificate of Registration as well as the token of the vehicle but failed to surrender the permit till 23.11.63.
His failure to surrender the permit was construed as a lapse contravening the notification issued by the Government and hence he was called upon to pay the tax and the penalty for three quarters commencing from 1.4.63 and ending with 31.12.63.
The permit holder sought the issue of a writ to quash the order of demand served on him.
Before the High Court the State took the stand that notwithstanding the cancellation of the Certificate of Fitness, the Certificate of Registration continued to have currency and therefore the permit holder was liable to pay the tax in terms of the Explanation to Section 3(1) of the Taxation Act.
The High Court repelled the contention and held that once the certificate of fitness had actually been cancelled, the Certificate of Registration cannot be said to have currency on a deemed basis as envisaged by the Explana tion to Section 3(1) and hence the demand for tax for the three quarters was not legal and the order should therefore, be quashed.
From the facts stated above it may be seen that it was a case where the certificate of fitness had actually been cancelled by the Transport Authorities but inspite of such cancellation they sought to recover the tax from the permit holder on the sole ground that the Certificate of 487 Registration had deemed currency by reason of the Explana tion to Section 3(1).
The Division Bench did not lay down any general proposition of law that the currency of a Cer tificate of Registration is always linked up with the cur rency of a Certificate of Fitness and in the absence of the same, a Certificate of Registration by itself can never have currency and the deeming provision in the Explanation to Section 3(1) should be construed in that restricted manner.
The Bench made it clear that its decision was confined to the peculiar facts of that case as may be seen from the following sentences at page 40: "In view of the cancellation of the fitness certificate, it follows that the Certificate of Registration issued to the petitioner was no more current.
That being the position, the Explanation to Section 3(1) of the Mysore Motor Vehicles Taxation Act, 1957, is inapplicable to the facts of the present case." (Emphasis supplied) In so far as the decision in Naraina Reddy 's case is con cerned, the permit holder therein had paid the tax for his stage carriage for the quarter ended 30.6.59 but failed to pay the tax for the next two quarters ending with 30.9.59 and 31.12.59.
On 5.2.60 he paid the tax for the months of February and March 60 alone.
The non payment of tax for the period 1.7.59 to 5.2.60 was subsequently noticed and a demand was made on him to pay the arrears of tax for the abovesaid period together with penalty.
The permit holder contended that the demand was illegal because the vehicle was not in Use during the relevent period and he had actual ly kept it in a workshop at Madanapalle in Andhra Pradesh from 30.6.59 and furthermore the certificate of fitness for the vehicle had expired on 30.6.59 itself and it had been renewed only on 5.2.60 and besides he had also surrendered the Certificate of Registration to the Transport Authorities and intimated them that he would not be operating the vehi cle.
The permit holder 's representations were not accepted and he was directed to make the payment.
The permit holder then challenged the validity of the demand before the High Court by means of a petition under Article 226 of the Con stitution.
A two fold argument was advanced to assail the order of demand.
The first one was that the words "kept in the State of Mysore" occurring in Section 3(1) should be read as "kept for use in the State of Mysore" and as such unless the State proved that the vehicle had infact been kept for use, whenever wanted, the physical act of keeping alone would not attract the tax liability under Section 3(1).
The second argument was that the period of currency of a Certificate of Registration was co extensive with the currency of a 488 Certificate of Fitness and as such once the Certificate of Fitness expired and was not renewed, the Certificate of Registration would automatically cease to have currency.
The High Court sustained the first argument and remanded the matter for a finding on the nature of the keeping of the vehicle but rejected the second contention and held that the currency of a Certificate of Registration was not dependent on the concurrent currency of a Certificate of Fitness.
The High Court held as follows: "By the Explanation to Sub Section (1) of Section 3, the legislature, for the purpose of the Act has provided that Motor Vehicles so long as their Certificates of Registration are current shall be deemed suitable for use on roads.
The legal fiction created by Section 38 of the Motor Vehicles Act is only for the purpose of Section 22 of that Act and cannot be extended to the Taxation Act." Inspite of this clear pronouncement in Naraina Reddy 's case about Section 38 not having any impact on Section 3(1) of the Taxation Act, the High Court has held in Reddappa 's case that Sections 38 and 22 of the Motor Vehicles Act have an impact on Section 3(1) of the Taxation Act and, therefore, a Certificate of Registration cannot have currency if the vehicle is not covered by a Certificate of Fitness for the corresponding period.
Thus we find the decisions in Bhag wan 's case and Naraina Reddy 's case do not really constitute authority for the view taken in Reddappa 's case.
We will now examine the scope of Section 3(1) of the Taxation Act and the effect of the Explanation to it.
At the relevant time the Mysore Motor Vehicles Taxation Act 1957 (now the Karnataka Motor Vehicles Taxation Act, 1957) was in force and Section 3(1) and the Explanation read as follows: "(1) A tax at the rates specified in Part A of the Schedule shall be levied on all motor vehicles suitable for use on roads, kept in the State of Mysore; Provided that in the case of motor vehicles kept by a dealer in or manufacturer of, such vehicles for the purposes of trade, the tax shall only be levied and paid by such dealer or manufacturer on vehicles permitted to be used on roads in the manner prescribed by rules made under the .
489 Explanation.
A motor vehicle of which the certificate of registration is current shall, for the purpose of this Act, be deemed to be a vehicle suitable for use on roads.
" It will also be apposite to extract the relevant portion of Section 4 since Sections 3 and 4 go together.
Payment of Tax. (1) The tax levied under Section 3 shall be paid in advance by the registered owner or person having possession or control of the motor vehicle, for a quarter, half year or year, at his choice, (within ten days from the commencement of such quarter, half year, or year as the case may be.) Proviso.
"omitted".
Explanation.
"omitted".
On a reading of Sections 3 and 4 it may be seen that they make the registered owner or person having possession or control of a motor vehicle kept in the State absolutely liable to pay tax in advance at the rates specified in Part A of the Schedule thereto for a quarter, halfyear or year at his choice.
The Motor Vehicle Taxation Acts in all the States of the Indian Union follow a uniform pattern.
Entry 57 of List II of Schedule VII of the Constitution is the Legislative Entry conferring power on the States to levy the tax.
It has been observed by this Court in Automobile Trans port Ltd. vs State of Rajasthan, [1963] 1 S.C.R. 491 that the tax on motor vehicles is a compensatory tax levied for the use of the roads and it is not a tax on ownership or possession of motor vehicles.
The object of the Act is achieved by charging to tax all motor vehicles suitable for use on roads kept in the State, the registered owner or person having possession or control being held liable to pay the tax in advance and then providing for grant of refund for non user subject to prescribed conditions.
What falls for consideration now is whether the owner or person having the possession or control of a motor vehicle is not bound to pay the tax under Section 3(1) of the Act because the vehicle was in a state of repair and was not put to use on the road and furthermore the Certificate of Fit ness of the vehicle had not been kept current even though the Certificate of Registration was kept current.
One factor which has to be borne in mind in interpreting Section 3(1) and its Explanation is the meaning to be given to the words "suitable for use 490 on roads" occurring in them as otherwise a misconception would arise.
These very words occur in Entry 57 in the State List which reads as under: "Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including ram cars subject to the provisions of Entry 35 of List III".
The words "suitable for use on roads" in the said Entry have been construed by Hidayatullah, J. as he then was in Automo bile Transport case as under (vide page 571): "The words 'suitable for use on roads ' describe the kinds of vehicle and not their condition.
They exclude from the Entry, farm machinery aeroplanes, railways etc.
which though mechanically propelled are not suitable for use on roads.
The inclusion of trams using tracks which may be on roads or off them, makes the distinction still more apparent.
" It, therefore, follows that the same meaning should be given to those words occurring in Section 3(1) and the Explanation also.
The resultant position that emerges is that Section 3(1) confers a right upon the State to levy a tax on all motor vehicles which are suitably designed for use on roads at prescribed rates without reference to the road worthy condition of the vehicle or otherwise.
Section 4 enjoins every registered owner or person having possession or con trol of the motor vehicle to pay the tax in advance.
The Explanation to Section 3(1) contains a deeming provision and its effect is that as long as the Certificate of Registra tion of a motor vehicle is current, it must be deemed to be a vehicle suitable for use on the roads.
The inevitable consequence of the Explanation would be that the owner or a person having control or possession of a motor vehicle is statutorily obliged to pay the tax in advance for the motor vehicle as long as the Certificate of Registration is cur rent irrespective of the condition of the vehicle for use on the roads and irrespective of whether the vehicle had a Certificate of Fitness with concurrent validity or not.
The Act, however, takes care to see that the owner of a motor vehicle or a person having possession or control of it is not penalised by payment of tax in advance for a vehicle which had not been actually used during the whole of a period or part of a period for which tax had been paid by him.
The Legislative provision in this behalf is to be found in Section 7 of the Taxation Act.
The relevant portion is contained in Sub Section (1) and it reads as follows: 491 "Refund of Tax. (1) Where a tax on any motor vehicle has been paid for any period and it is proved to the satisfaction of the prescribed authority that the vehicle has not been used during the whole of that period, or a continuous part thereof, not being less than one calendar month, a refund shall be made of such portion of the tax and subject to such conditions as may be prescribed.
" The Rules framed under the Act prescribe the conditions referred to in Section 7.
Rules 20 to 23 are the relevant Rules.
Rule 20 sets out the manner and time in which the application for refund should be made and the Authorities who can sanction refund.
Rule 21 provides for the issue of a Certificate of Refund, and Rule 22 refers to the payment of refund to a person on production of a Certificate of Refund in Form 17.
Rule 23 deals with the scales of refund.
If the vehicle had not been used during the whole of the period for which tax has been paid then the applicant is entitled to get a refund of the entire tax amount.
If the vehicle had been made use of for a portion of the period then different scales of refund have been provided according to the period of user and period of non user of the vehicle.
Section 7 read with the relevant Rules, therefore, makes it clear that an owner or other person paying the tax for a motor vehicle in advance would not suffer in any manner on account of the payment of the tax if the vehicle is not put to use on the roads and he can apply to the authorities concerned and seek appropriate refund as per the scales given in Rule 23.
The scheme of the Taxation Act is such that the tax due on a motor vehicle has got to be paid in terms of Section 3 at the prescribed rate and in advance and the liability to pay tax continues as long as the Certifi cate of Registration is current but if it so happens that in spite of the Certificate of Registration being current, the vehicle had not actually been put to use for the whole of the period or a continuous part thereof, not being less than one calendar month, the person paying the tax should apply to the Prescribed Authority and obtain a refund of the tax for the appropriate period after satisfying the Authorities about the truth and genuineness of his claim.
Sections 3 and 4 are absolute in their terms and the liability to pay the tax in advance is not dependant upon the vehicle being covered by a Certificate of Fitness or not.
Even if the vehicle was not in a road worthy condition and could not be put to use on the roads without the necessary repairs being carried out, the owner or person having possession or con trol of a vehicle is enjoined to pay the tax on the vehicle and then seek a refund.
Perhaps in exceptional cases where the vehicle has 492 met with a major accident or where it is in need of such extensive repairs that it would be impossible to put the vehicle to use or where the Transport Authorities themselves prohibit the use of the vehicle due to its defective condi tion and cancel the Certificate of Fitness or suspend it, the person concerned may surrender the Certificate of Regis tration and other documents like permit etc., and seek the permission of the Transport Authorities to waive the payment of tax on the ground that no proof of non user was necessary and as such payment of tax on the one hand and an automatic application for refund on the ' other would be a needless ritualistic formality and if the permission sought for is granted, he need not pay the tax.
In all other cases the only course left open is for the person_concerned, to pay the tax in advance and thereafter apply to the Authorities and obtain refund of tax after proving that the vehicle was not fit for use on the roads and had infact not been made use of.
The principle underlying the Taxation Act is that every motor vehicle issued a Certificate of Registration is to be deemed a potential user of the roads all through the time the Certificate of Registration is current and there fore liable to pay tax under Section 3(1) read with Section 4.
If however, the vehicle had not made use of the roads because it could not be put on the roads due to repairs, even though the Certificate of Registration was current, the owner or person concerned has to seek for and obtain refund of the tax paid in advance after satisfying the Authorities about the truth of his claim.
It is not for the Transport Authorities to justify the demand for tax by proving that the vehicle is in a fit condition and can be put to use on the roads or that it had plied on the roads without payment of tax.
It would be absolutely impossible for the State to keep monitoring all the vehicles and prove that each and every registered vehicle is in a fit condition and would be making use of the roads and is therefore liable to pay the tax.
For that reason, the State has made the payment of tax compulsory on every registered vehicle and that too in advance and has at the same time provided for the grant of refund of tax whenever the person paying the tax has not made use of the roads by plying the vehicle and substanti ates his claim by proper proof.
Any view to the contrary would defeat the purpose and intent of the Taxation Act and would also afford scope and opportunity for some of the persons liable to pay the tax to ply the vehicle unlawfully without payment of tax and later on justify their non pay ment by setting up a plea that the vehicle was in repair for a continuous period of over a month or the whole of a quar ter, half year or year as they choose to claim.
In view of a legislative change in the Act we do not find any 493 necessity to go into the question whether the words "kept in the State of Mysore" should be construed as "kept for use in the State of Mysore ".
It may be remembered that this con struction found favour with the Karnataka High Court in its decision in Naraina Reddy 's case and Reddappa 's case.
The Words "kept in the State of Mysore" and the proviso to the Section have been omitted by Karnataka Act 38 of 1976 and therefore, the discussion on that point will only be of academic value now.
It is for that reason we do not feel it necessary to go into that aspect of the matter.
The next factor for consideration is whether the impact of Section 38 of the on Section 22 of the said Act will have its ramifications on Section 3(1) and the Explanation of the Taxation Act.
Section 22 deals with the necessity for registration of motor vehicles and mandates that no person shall drive a motor vehicle and no owner shall cause or permit his motor vehicle to be driven in any public place or in any other place for the purpose of carry ing passengers or goods unless the vehicle is registered in accordance with Chapter 3 of the Act and the Certificate of Registration granted has not been suspended or cancelled.
Section 38 on the other hand deals with the Certificate of Fitness for transport vehicles.
This section lays down that a transport vehicles shall not be deemed to be validly registered for the purposes of Section 22, unless it carries a Certificate of Fitness in the prescribed form issued by the Prescribed Authority.
The very terms of Section 38 limit the deeming effect caused by the absence of a Certificate of Fitness to the rights conferred under Section 22 pursuant to the registration of a vehicle.
There is therefore, no scope for extending the deeming provision in Section 38 to Section 3(1) and the Explanation thereto of the Taxation Act.
In fact the Explanation to Section 3(1) clearly sets out that the deeming effect conferred by it will have overriding force on Section 3(1).
This is made clear by the words "for the purposes of this Act" contained in the Explanation.
The operative force of the deeming provision contained in Sec tion 38 being restricted to Section 22 of the has been correctly noticed by the Karnataka High Court in Naraina Reddy 's case and the High Court has held at page 322 as follows: "The legal fiction created by Section 38 of the is only for the purpose of section 22 of that Act and cannot be extended to the Taxation Act." Though the High Court has taken the correct view, it has not gone into the reason underlying the restriction of the operation of 494 Section 38 to Section 22 of the Motor Vehicle Tax Act alone.
The reason is that Section 38 has been provided so as to effectively prevent an owner or person having possession or control of a motor vehicle from carrying passengers or goods in it inspite of the vehicle not being in a fit condition and not carrying a certificate of fitness and thereby endan gering the safety of the public.
The deeming effect on the certificate of registration of a vehicle when it is not carrying a certificate of fitness is to ensure that the safety of the public is not jeopardised by anyone driving or using a vehicle without a certificate of fitness for carry ing passengers or goods and trying to take umbrage for the violation by contending that he was entitled to make such use because of the certificate of registration issued to the vehicle being current.
It has also to be noticed that Sec tion 38 contains a safety measure while Section 3 of the Taxation Act pertains to a compensatory measure.
The former cannot therefore limit the operation of the latter i.e. Section 3(1) of the Taxation Act and the explanation there to.
In the light of our discussion it follows that Section 3(1) of the Taxation Act and its Explanation have to be construed on their own force and not with reference to Section 38 of the .
The combined effect of Sections 3, 4 and 7 of the Act is that the State is empow ered to levy tax on all motor vehicles which are suitably designed and manufactured for use on the roads.
The Explana tion provides that every motor vehicle of which a Certifi cate of Registration is current shall be deemed to be a vehicle suitable for use on roads and liable to pay tax as a potential user of the roads at the rates prescribed by the Government.
Section 4 enjoins the tax levied under Section 3 to be paid in advance.
Section 7 provides that in the event of a vehicle for which tax has been paid in advance under Section 4 had not been made use of for the whole of the period for which tax has been paid or of a continuous part thereof, not being less than one calendar month the person paying the tax may apply to the Prescribed Authority and obtain appropriate refund as prescribed by the Rules after producing proof in support of the claim for refund.
In the light.
of this position the decision rendered in Reddappa 's case is not correct law.
Admittedly the respondents had failed to pay the tax in advance in compliance with Sections 3 and 4.
They had also failed to inform the Transport Authorities that the goods vehicle was not fit for use on the roads and had been left in a workshop during the period 1.10.72 to 31.3.74 and they had also failed to surrender the Certificate of Registration and the Certificate of Fitness which was in force till 28.11.72.
In such circumstances the Trial Court was in error in acquitting them and 495 the High Court too was not justified in dismissing in limine the appeal against acquittal.
Since the transfer of the vehicle had not been reported to the Authorities the first respondent was as much liable as the second respondent to pay the arrears of tax that was demanded.
However, as stated at the outset itself the State is not anxious to pursue the prosecution against the respondents.
Moreover, it is reported that the second respondent has died during the pendency of the appeal.
In the result the appeal succeeds in so far as the contentions of the State regarding the scope and effect of Section 3(1) and the Explanation of the Taxation Act, 1957, are concerned, but the acquittal of respondents 1 and 2 will remain undisturbed.
H.L.C. Appeal allowed.

summary:
The first respondent sold his lorry to the second re spondent but did not report the transfer to the Transport Authority and the latter issued a demand notice for payment of tax due under section 3(1) of the Mysore Motor Vehicles Taxa tion Act, 1957.
The first respondent refuted his liability on the ground of transfer of the vehicle, and the second respondent, on the plea that the vehicle was not in a fit condition and lying in a workshop during the relevant peri od.
A complaint was filed against them under section 3(1) read with section 12(1)(a) of the Act.
The Magistrate held that since the first respondent had sold the vehicle he was not liable to pay the tax and, likewise, the second respondent too was not liable since the vehicle did not have a fitness certifi cate and had been left in a workshop for repairs.
The Magis trate further held that the currency of the Registration Certificate during the relevant period did not alter the situation in any manner because it could not have currency so as to attract tax liability when the vehicle was not covered by a valid Certificate of Fitness.
The appeal filed against the acquittal of the respondents was dismissed in limine by the High Court.
Holding that the Trial Court was in error in acquitting the respondents and the High Court was not justified in dismissing in limine the appeal against acquittal, and, allowing the appeal, this Court, HELD: The expression 'suitable for use on roads ' occur ring in section 3(1) of the Act and its Explanation must have the same meaning as in Entry 57 of the State List and as con strued by this Court in Automobile Transport Ltd. vs State of Rajasthan; [1963] 1 S.C.R. 491.
The resultant position that emerges is that section 3(1) confers a right upon the State to levy 482 a tax on all motor vehicles which are suitably designed for use on roads at prescribed rates without reference to the road worthy condition of the vehicle or otherwise.
Section 4 enjoins every registered owner or person having possession or control of the motor vehicle to pay the tax in advance.
The Explanation to section 3(1) contains a deeming provision and its effect is that as long as the Certificate of Registra tion of a motor vehicle is current, it must be deemed to be a vehicle suitable for use on the roads.
The inevitable consequence of the Explanation would be that the owner or a person having control or possession of a motor vehicle is statutorily obliged to pay the tax in advance for the motor vehicle as long as the Certificate of Registration is cur rent irrespective of the condition of the vehicle for use on the roads and irrespective of whether the vehicle had a Certificate of Fitness with concurrent validity or not.
[490B C; E G] State vs Boodi Reddappa, [1975]1 Karnataka Law Journal 206, overruled.
V. Naraina Reddy vs Commissioner of Transport, , B.G. Bhagwan vs Regional Transport Officer, A.I.R. , discussed and distin guished.
Automobile Transport Ltd. vs State of Rajasthan, [1963] 1 SCR 491 referred to.
(ii) The scheme of the Act is such that the tax due on a motor vehicle has got to be paid in terms of section 3 at the prescribed rate, and in advance, and, the liability to pay tax continues as long as the Certificate of Registration is current; but, if it so happens that inspite of the Certifi cate of Registration being current, the vehicle had not actually been put to use for the whole of the period or a continuous part thereof, not being less than one calendar month, the person paying the tax should apply to the Pre scribed Authority under section 7 and obtain a refund of the tax for the appropriate period after satisfying the Authorities about the truth and genuineness of his claim.
Sections 3 and 4 are absolute in their terms and the liability to pay the tax in advance is not dependent upon the vehicle being covered by a Certificate of Fitness or not.
Even if the vehicle was not in a road worthy condition and could not be put to use on the roads without the necessary repairs being carried out, the owner or person having possession or con trol of a vehicle is enjoined to pay the tax on the vehicle and then seek a refund.
The principle underlying the Act is that every motor vehicle which has been issued a Certificate of Registration is to be deemed a potential user of the roads all through the time the Certificate of Registration is current and therefore liable to pay tax under section 3(1) read with section 4.
[491E H; 492C D] 483 (iii) It is not for the Transport Authorities to justify the demand for tax by .proving that the vehicle is in a fit condition and can be put to use on the roads or that it had plied on the roads without payment of tax.
It would be absolutely impossible for the State to keep monitoring all the vehicles and prove that each and every registered vehi cle is in a fit condition and would be making use of the roads and is therefore liable to pay the tax.
For that reason, the State has made the payment of tax compulsory on every registered vehicle and that too in advance and has at the same time provided for the grant of refund of tax when ever the person paying the tax has not made use of the roads by plying the vehicle and substantiates his claim by proper proof.
Any view to the contrary would defeat the purpose and intent of the Act.
[492E G] (iv) Section 3(1) of the Act and the Explanation thereto have to be construed on their own force and not with refer ence to sections 22 or 38 of the .Motor Vehicles Act.
Section 22 of that Act deals with the necessity for registration of motor vehicles and mandates that no person shall drive a motor vehicle and no owner shall cause or permit his motor vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with Chapter 3 of that Act and the Certificate of Registration granted has not been suspended or cancelled.
Section 38 of that Act on the other hand deals with the Certificate of Fitness for trans port vehicles.
This Section lays down that a transport vehicle shall not be deemed to be validly registered for the purposes of section 22, unless it carries a Certificate of Fit ness in the prescribed form issued by the Prescribed Author ity.
The very terms of section 38 limit the deeming effect caused by the absence of a Certificate of Fitness to the rights conferred under section 22 pursuant to the registration of a vehicle.
There is therefore, no scope for extending the deeming provision in section 38 of the Motor Vehicles Act to s.3(1) and the Explanation thereto of the Act.
In fact the Explanation to s.3(1) clearly sets out that the deeming effect conferred by it will have overriding force on section 3(1).
This is made clear by the words "for the purposes of this Act" contained in the Explanation.
The reason is that section 38 of the Motor Vehicles Act has been provided so as to effectively prevent an owner or person having possession or control of a motor vehicle from carrying passengers or goods in it inspire of the vehicle not being in a fit condition and not carrying a Certificate of Fitness and thereby endan gering the safety of the public.
The deeming effect on the Certificate of Registration of a vehicle when it is not carrying a Certificate of Fitness is to ensure that the safety of the public is not jeopardised , by any one driv ing or using a vehicle without a Certificate of Fitness for 484 carrying passengers or goods and trying to take umbrage for the violation by contending that he was entitled to make such use because of the Certificate of Registration issued to the vehicle being current.
It has also to be noticed that section 38 of the Motor Vehicles Act contains a safety measure while section 3 of the Act pertains to a compensatory measure.
The former cannot therefore limit the operation of the latter.
[493C43; 494A C]