Warangal Commercial and Chits v. Authorized Officer and Dist.Forest Officer, Warangal North Division

Third respondent is owner of motor transport vehicle – DCM van No.MH15B-339. She hypothecated the same to petitioner, which is engaged in finance business under licence issued by Mandal Revenue Officer, Hanamkonda. DCM van was seized on 09.09.2002 by forest officials as it was found loaded with 12 sheeshan logs of 1.2687 cmt valued at Rs.24,763/-. At the time of seizure, husband of third respondent was driver. After receiving a report, first respondent initiated action under Section 44(2-A) of Andhra Pradesh Forest Act, 1967 (the Act, for brevity) for confiscation of vehicle and the produce. A show cause notice was issued to third respondent. She along with her husband submitted explanation denying any knowledge of involvement of the vehicle in the alleged offence. After conducting enquiry, first respondent passed orders on 05.11.2002 confiscating the vehicle and also passed orders for compounding of offence for Rs.75,000/-. The forest produce was confiscated. Third respondent approached the High Court and filed W.P.No.22204 of 2002. The same was dismissed on

07.11.2002. As third respondent did not pay compounding fee, a notification was issued in ‘Eenadu’ daily before passing final orders. In this writ petition, order passed by first respondent is challenged on the ground that the same is violative of Section 44(2-B) of the Act. A counter affidavit is filed opposing the writ petition. Learned counsel for petitioner placed reliance on Section 44(2-B) of the Act and submits that in the absence of any notice to finance company, confiscation is not sustainable. The submission is devoid of any merit. Admittedly, the vehicle is owned by third respondent and at the time of seizure of the vehicle, her husband was driver. Therefore, notice issued to third respondent is sufficient compliance with Section 44(2-B) of the Act. A reference may be made to Ashok L eyland Finance L imit ed v Government of [1] A.P. under. , wherein a Division Bench of this Court laid down as Since the Forest Act does not define the term “owner” and since Section 44(2-C) of the forest Act refers to the owner of the vehicle, it is appropriate that the definition of the “owner” defined under Section 2(30) of the Motor Vehicles Act, 1988 should be kept in mind in construing the provisions of sub- section (2-C) of Section 44 of the Act.

If it is so kept in mind, the financier cannot be considered to be the owner of the vehicle for the purpose of Section 44(2- C) of the Act. T herefore, the financier, solely on the ground that the vehicle was used for transporting forest produce without his knowledge or connivance, cannot seek the release of the vehicle irrespective of the fact whether the forest offence was committed with the knowledge or connivance of the hirer. Further, the provisions of sub-section (2-C) makes it abundantly clear that the burden to prove to the satisfaction of the Authorised Officer that the vehicle was used in carrying the contraband forest produce without his knowledge or connivance is on the owner of the vehicle and not on the Authorised Officer. T herefore, we do not find contraband any merit in the contention of the learned counsel for the appellant that there is absolutely no legal evidence produced by the Authorised Officer to show contraband forest produce with the knowledge and connivance of the hirer or the financier. the vehicle was used for carrying A reference may also be made to a decision of this Court i n Mirza Ramza Ali v Commissioner, Prohibit ion & Excise, Hyderabad validity of confiscation order passed under Section 13(2) of , wherein this Court considered the [2] the Andhra Pradesh Prohibition Act, 1995 without notice to financier, who was owner as per Hire Purchase Agreement.

After referring to relevant provisions of Motor Vehicles Act, 1988, this Court laid down as under. registered owner, A reading of sub-section (5) of Section 51 further makes it clear that the name of the financier cannot be shown as owner of the vehicle unless and until such person satisfies the registering authority that he has taken possession of the vehicle owing to default of registering authority after issuing notice to the registered owner to cancel the certificate and issue a fresh certificate of registration in the name of the financier. T hus, for all purposes, a person who is in possession of the vehicle or hirer whose name is shown as registered owner can alone be treated as owner. T he limited protection given to the owner is as contained in sub-sections (2) to (5) of Section 51 of the Motor Vehicles Act. T he position is not different even in the Hire Purchase Act, 1972. In view of the above two precedents, the point taken is without any merit. The writ petition is therefore dismissed. No costs.

10.11.2008. [1] 2001 (3) AL T 463 (DB) [2] 2003 (3) AL D 700 = 2003 (3) AL T 562 ______________

(V.V.S.RAO,J)