ORDER
Sabyasachi Mukharji, J.
1. The petitioner in this application challenges the order of confiscation of a motor vehicle seized by the customs. The order was passed on 28th August, 1967. According to the petitioner, the petitioner by an agreement in writing had hired oat to the respondent No. 3 an Ambassador Motor Car bearing No. GED 7173 upon a hire-purchase agreement. The said car was seized near Krishnagar Division on the ground that the car was used as a means of transport of smuggling goods to the then Indo-Pakistan border. A show cause notice was issued and it was alleged that the car was liable to be confiscated under Section 115(2) of the Customs Act. The petitioner showed cause. Thereafter personal hearing was granted and the respondent No. 1, the Collector of Customs on the 28th August, 1967 passed an order and the order was received by the petitioner on the 9th November, 1967. The respondent No. 1 found that the car had been utilised on several occasions for the alleged smuggling of goods and transporting of passengers to the then Indo-Pakistan border. In the aforesaid view the respondent No. 1 directed confiscation of the car absolutely under Section 115(2) of the said Act. The petitioner contends in this application that the petitioner should have been given an option in terms of the proviso to Section 115(2) of the said Act. Section 115(2) of the Act provides as follows :--
'(2). Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the Rules.
Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance of fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be.'
2. The petitioner made an application to this Court which came up for hearing before B. C. Mitra, J. and by a judgment delivered on the 17th July, 1969 his Lordship was pleased to discharge the Rule on the ground that the Union of India in whom the title of the said motor vehicle had vested on confiscation had not been made a party to the said proceeding. The petitioner thereupon made this application under Art. 226 of the Constitution making the Union of India a party respondent to this application.
3. It was urged that inasmuch as it was held in the decision of B. C. Mitra, J. in the case of Vaishali Finance Corporation v. D. R. Kohli, Matter No. 18 of 1968 (Cal.), that under the proviso to Section 115(2) of the said Act an option should have been given to the owner before making the order of confiscation and as in this case no opportunity for exercising any option had been given to the petitioner the order was liable to he set aside. It has been further contended that the defect which was there in the previous application had been remedied.
4. Counsel for the respondent, on the other hand, has contended that this Court should not accept the finding of B. C. Mitra, J. that proviso to Sub-section (sec) of Section 115 of the Act would apply to the instant case. It was contended that the proviso covered only of cars or vehicles in respect of which there were permits, in other words, in cases of legal hirings. It was urged that under the Motor Vehicles Act hiring out of vehicles or conveyances without a permit was illegal. In the premises it was submitted that in the instant case there having been no permit the instant hiring was illegal and did not come as such within the proviso to Section 115(2) of the said Act. B. C. Mitra, J did not specifically deal with this contention. This contention is of some substance. However, in view of the judgment of B. C. Mitra, J. I would not have as at present advised taken a view contrary to that taken by B. C. Mitra J on this point but left the parties to agitate this contention in an appropriate appeal.
5. In this case there are certain other aspects of the matter. In reply to the show cause notice the petitioner stated as follows:--
'After making over possession of the said motor vehicle to the hirer, we had and have no control over the plying of same and if you will please refer to the Registration Book of the said motor vehicle, you will find therein an endorsement in our name as follows:
'The motor vehicle above described is held by the person registered as Registered Owner under a Hire-Purchase Agreement with Messrs. Banwari Lall Pasari, 16, India Exchange Place, Calcutta.
Regarding your allegation that we are the owner of the motor vehicle, we regret, the legal position is in a flux now. The Supreme Court by a majority judgment in a case of Sundaram Finance v. The State of Kerala, : [1966]2SCR828 has decided that the so-called Hire-Purchase Agreements are in fact Financing Agreements only and the Financers are not the owners of the motor vehicle; but they have a charge on the said motor vehicle.'
6. The petitioner appeared before the respondent No. 1 at the personal hearing. There the petitioner repeated the said contention that the petitioner was not the legal owner of the motor vehicle. In any event, the petitioner did not raise any contention that the petitioner was the legal owner and as such was entitled to exercise an option under the proviso to Section 115(2) of the Act. The position the petitioner took before the respondent No. 1 was that the petitioner was not the legal owner because under the provisions of law, as the petitioner wanted those to be interpreted, under the hire-purchase agreement the petitioner was not the owner but only had a charge in respect of the said motor vehicle. In my opinion, the party which asked an adjudicating authority to decide a contention on the plea that he was not the owner is not entitled to reverse that contention and claim a relief under Article 226 of the Constitution on the ground that he was the legal owner and that certain rights as legal owner had been denied to him. In view of the contentions made even though in a case like this where proviso to Sub-section (2) of Section 115 of the Act had applied, if the adjudicating authority was not called upon to give that option to an owner in view of that fact that nobody was claiming to be the owner, then in my opinion, it would not be proper to interfere with the order of the adjudicating authority in an application under Article 226 of the Constitution on the ground that it had not given the right of option to the legal owner enjoined by the section. There is, however, another aspect of the matter which by itself would not have really mattered very much but in conjunction with this factor would affect the Court's discretion in this matter. The order in question was passed as mentioned hereinbefore on 28th August, 1967. The petitioner had moved an application which came up for hearing before B. C. Mitra, J. in June, 1968 when it was adjourned for a fortnight. B. C. Mitra had mentioned that at the first hearing a point was taken that the previous application was incompetent in the absence of the Central Government. The matter could not be taken up by his Lordship until July, 1969. The petitioner in the meantime had taken no steps for making the Central Government a party. B. C. Mitra, J. had mentioned about that fact in his Lordship's judgment. Taking all the aforesaid facts and circumstances of this case, I am, therefore, of the opinion that the petitioner is not entitled to any relief under Article 226 of the Constitution. In that view of the matter this application fails and is dismissed. Rule nisi is discharged. All interim orders are vacated. There will be no order as to costs. There will be a stay of operation of this order for four weeks.