Skip to content


Raghubir Singh Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Motor Vehicles
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 970 of 1981
Judge
ActsMotor Vehicles Act, 1939 - Sections 24, 27, 31, 31(1), 31(1A), 34 and 34(4A); Motor Vehicles (Amendment) Act, 1978; Assam Motor Vehicle Rules, 1940 - Rule 52
AppellantRaghubir Singh
RespondentState of Assam and ors.
Appellant AdvocateN.M. Lahiri, P.C. Kataki, C. Gogoi and H.K. Deka, Advs.
Respondent AdvocateJ. Singh, Government Adv., J.P. Bhattacharjee, A.K. Phukan and R. Gogoi, Advs.
DispositionApplication allowed
Excerpt:
.....according to us, therefore, in the exercise of its power under section 31 (i) to record transfer of ownership, it is obligated to exercise its independent judgment, acting with due care and caution, to come to the conclusion as to whether or not the conditions and the formalities prescribed therefor have been duly satisfied. if the authority finds in the course of inquiry made in accordance therewith that he transfer was recorded without conditions or the procedure prescribed therefor being satisfied (discussed in para 6.1. above) which would obviously include cases contemplated under section 34 (4a) of 'fabricated documents' and misrepresentation of facts',it would be (pen to the authority to cancel the entry nade in favour of the 'transferee' recording his name as the..........by the registering authority on an erroneous view of a local--law which probated, according to the authority transfers being recorded in cases in which the transferor was in arrear in respect of taxes due for any moter vehicle owned by him. however, following rajasthan decision the court also observed that the registering authority had no option but to record the transfer if the certificate of registration of the vehicle was produced by the transferee. a close reading of the judgment makes it clear that the change in law after 1956 was not brought to the notice of the court. 5.5 the rajasthan decision was also considered by a division bench of and-hra pradesh high court in nanda-kishore v. transport commissioner (air -1974 andh pra 292) wherein their lordships dissented from the view.....
Judgment:

Dr. T.N. Singh, J.

1. Environmental compulsions of the modern age are increasingly motivating governmental activities adding an edge to State's regulatory functions. Necessarily, matching measures have to be, and are. evolved to promote public good. Rapid strides in technological and scientific advancement with the growth of commerce and industry following in its wake carry inevitably their impress on regulatory laws. Measures conferring powers on public officials enabling them to discharge public duties under such laws pose jural problem of great variety and complexity. Balancing of conflicting individual interests apart, the dominant social and/or economic purposes underlying such measures obligate Courts in a constitutionally mandated welfare State like ours to extend their forensic insight beyond the pale of fact-situation of the lis. The interpretation of Section 31 of the Motor Vehicles Act 1939 (shortly, the Act) lies at the heart of the lis in the instant case raising an important question on which, unfortunately, little guidance from reported decisions is available. We pose and propose to answer the question--Can the registering authority discharging its statutory duty thereunder be allowed to act like a robot or automaton?

2. FACTUAL MATRIX

2.1 Before dealing with the precise legal issues we may first narrate briefly the facts leading to this writ application It is the case of the petitioner that on. 3-7-1980 he purchased one Tata Truck of 1979 Model bearing Registration No. ARK-754 from M/s. Calcutta Roadways Corporation of Tezpur at a cost of Rs. 88,000/- (vide Annexure-1). On 29-10-1980, the transfer of ownership was duly recorded by respondent No. 3 (District Transport Officer, Kamrup, Gauhati) who issued to the petitioner necessary documents in this connection, such as registration certificate, fitness certificate etc. The vehicle was subsequently hired by respondent No. 6 in connection with his business. On 4-4-1981 the petitioner left for his native place in Haryana in connection with his son's marriage from where he returned on 11-6-1981 to hear from respondent No. 6 that during his absence the registration certificate of the vehicle was lost. On making inquiries he could learn that on 23-5-1981 the registration of his vehicle was transferred to respondent No. 5.

2.2 The petitioner discovered that the transfer was effected on the basis of two letters both dated 23-5-1981 one of which was allegedly signed by him informing respondent No. 3 of the sale of the vehicle to respondent No. 5 and the other by the latter as the purchaser of the vehicle requesting transfer of ownership to be recorded in his name. On petitioner's representation made on 13-7-1981 (vide Annexure 4) respondent No. 3 informed him that he should approach the competent Court if he considered the letter dated 23-5-1981 submitted in his name in the office of the said respondent to be false. The petitioner demanded back his vehicle from respondent No. 6 but. the latter refused to return the same On 20-7-1981, the petitioner thereafter filed a complaint under Section 471/406/ 34 IPC against respondents Nos. 5 to 7 in the Court of Chief Judicial Magistrate, Gauhati, wherein the petitioner prayed for interim custody ('Zimma') of the vehicle. On 10-9-1981 the learned Magistrate passed an order giving the vehicle in the custody cf respondent No. 5 but the operation of the order was stayed by this Court in Criminal Revision No. 247/81, which was heard finally on 13-9-1983 along with writ petition and as agreed to by the learned counsel for both sides we directed that the impugned order shall remain suspended and that the trial shall be expedited. We also directed that if there be any change in law or fact in the meantime the learned Magistrate may take that into consideration and may accordingly make appropriate crder as regards custody of the vehicle which, as per order passed on 8-12-1981 in this Civil Rule, has since been in the custody of respondent No. 3.

2.3 On behalf of respondents Nos. 5 to 7 a common counter has been filed by respondent No. 7 who is alleged in the petition to be an accomplice of the other two respondents. He asserts that the vehicle was transferred by the petitioner for valuable consideration and the said transfer was duly approved and recorded by respondent No. 3 in accordance with the provisions of the Motor Vehicles Act 1939'. He. submits that the writ application is not maintainable as the validity of the sale letter dated 23-5-81 being contested disputed and complicated questions of facts were involved in the case which were the subject matter of the proceedings in the criminal case in respect of which. Criminal Revision No. 247/81 is pending in this Court. The stand taken by respondent No. 3 in his affidavit is that transfer of ownership was recorded after realisation of the requisite transfer fee from respondent No. 5 'on the basis of request from both the purchasers and the seller of the said vehicle (vide Annexures II & III)'. He states that respondent No. 5 applied on 23-5-1931 for transfer of ownership of Truck No. ARK 754 and produced the letter dated 23-5-1981 from the petitioner 'in support of the transfer'. He asserts that there is no provision either in the Act or in the Rules framed thereunder 'for giving an opportunity of hearing to the transferor of the vehicle for recording transfer of ownership'. According to him 'the question of restoration of vehicle and the registration certificate of the petitioner' did not arise at this stage in view of the pendency of the criminal case.

2.4. Learned counsel for the respondents supported the stand taken in their respective counter affidavits and also cited decisions in support of the contention that recording by respondent No. 3 of the alleged transfer was not violative of any Segal prevision. Learned counsel for the petitioner, on the other hand, wants us to read the relevant provisions in a manner which will effectuate the public policy embedded therein to underscore and protect public interest that lies in compelling public officials to discharge public duties in such matters in a reasonable and respectable manner. Because, recording of transfer of a vehicle entailed serious civil consequences involving ownership and ether concomintant rights concerning a valuable property. To deal parties fairly and evenly p in the context . of the liss we therefore gave the counsel for respondents 5-7 an opportunity to produce document, if there was any, evidencing passing of consideration in respect of the alleged transfer but he failed to produce any document.

3. A GENERAL VIEW

3.1. When the present Act of 1939 replaced the old Act of 1914 it was stated in the Statement of Objects and Reasons of the Bill that the old Act which was framed to suit conditions at an early stage of development of motor transport was not adequate to deal with rapid growth of the system and therefore 'in the interest alike of the safety and convenience of the public and of the development of a coordinated system of transport much closer control was required'. This was the beginning of the procese carried on through frequent amendments of which those made in 1956, 1969, 1976, 1977 and 1978 are noteworthy.

3.2. The post Independence Amending Act No. 100 of 1956 sought to unify the law relating to nationalisation of road transport and measures 'necessary in public interest' to regulate inter-State operation of transport vehicles besides setting up tribunals to determine and award damages in case of accidents involving death or bodily injury to person arising out of the use of motor vehicles. Provisions made by the 1978 Amending Act included among others notably the requirement of ''no objection certificate' to be obtained in the case of inter-State transfer for assignment a a fresh number and also prescribing the period of validity of certificates of registration. The Amending Acts enacted between 1956 and 1978 have progressively increased in all directions the element of 'control' in the law as will be evident from the following analysis cf seme of the provisions relevant to the present lis.

4. A CLOSE PERSPECTIVE

4.1. Chapter III of the Act spanning across Sections 22 to 41 embrace provisions relating to 'registration of motor vehicles'. Unless a vehicle is 'registered in accordance with this Chapter', by virtue of Section 22, driving of & motor vehicle by any person and causing or permitting the same to be driven by the 'owner' in any public place is prohibited. This ovision and also Section 24 which prescribes the procedure for 'registration' were amended in 1956; the latter also in 1978. On the application of the 'owner' made in Form E (of the First Schedule of the Act) accompanied by the prescribed fee, the registering authority has to issue a 'certificate of registration' in the prescribed form which shall be valid (after 1978) for a period of 15 years. In csse of a transport vehicle the validity of registration being linked by Section 38 to 'certificate of fitness', its life is limited thereby to two years. Grant, as well as renewal, of such certificates, have been expressly made conditional upon furnishing the information required by the relevant forms. By Section 26 it is provided that registering authority 'shall' (earlier 'may') require production of the vehicle before issuing or renewing the certificate.

4.2 The registering authority invested with the power to 'refuse', 'suspend' and 'cancel'' registration under Sections 27, 33 and 34 respectively is obligated thereunder to record reasons for the action taken and provision for appeal is made under Section 35 against its decision. In 1978 Section 27 was recast and a new Sub-section (4A) was inserted in Section 34, As a result, now there can be 'refusal' in cases in which particulars of previous registration were not furnished or particulars furnished in the application were inaccurate and cancellation in cases in which registration had been obtained on the basis of false documents or misrepresentation of facts. Evidently, these provisions were meant to buttress the emphasis on fulfilment of procedural requirement which was earlier conveyed mainly by the expression 'in accordance with this Chapter'' used in Section 22 and other previsions invading Section 2 (2) discussed of para 5.6 below.

4.3. These previsions (as also those made in Form E, referred in Section 22) positively indicate that legislature gradually recognised, responding to societal changes, the need to make provisions relating to registration' both reasonable and rational to match the increasing responsibilities of the registering authority obligating it to act with care, caution and circumspection so that valuable rights (including that of ownership) in respect of a valuable property were not treated in a casual and cavalier manner The quasi-judicial character of the powers and functions of the authority is amply reflected in the provision of Sections 27 and 34. Whether this scheme of the emerging Chapter III took a different form in Section 31 may now be examined.

5. COMPLEXION AND CONTOUR OF SECTION 31 (1)

5.1A. We may first quote Section 31 (1) as it originally stood prior to its first amendment in 1956.

'Within thirty days of the transfer of ownership of any motor vehicle registered under this Chapter the transferee shall report the transfer to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that authority together with the prescribed fee in order that particulars of the transfer of the ownership may be entered therein'

5.1B. By the amending Act of 1956, for the above provision, the following was substituted :

(1) Where the ownership of any motor vehicle registered under this Chapter is transferred :--

(a) the transferor shall, within four-been days of the transfer, report the transfer to the registering authority within whose jurisdiction the transfer is effected and shall simultaneously send a copy of the said report to the transferee;

(b) the transferee shall, within thirty days of the transfer, report the transfer, to the registering authority within whose jurisdiction he resides, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in unrder that particulars of the transfer of ownership may be entered in the certificate of registration.

5.1C. The Amending Act of 1978 has introduced new provisions mainly as to the requirement of 'no objection certificate'' in the new Sub-clause (ii) and has retained intact the provision of old Sub-clauses (a) and (b) with minor structural change as a result of which old Clause (a) has appeared in the para of new Sub-clause (i) in the new Clause (a) of Sub-section (1) of Section 31. However, the (sic) Sub-section (1A) and (IB) deserve (sic) inasmuch as both transferor and the transferee are mack liable there under to pay a penalty in the event of their failure to repect the 'fact of transfer within the period specified in Clause (a) or Clause (b) of Sub-section (1)'.

5.2. The moot question for our consideration as it appears to us centres around the aforesaid underlined expression ('in order that..... etc'). Whether the public duty to be discharged by the registering authority under Section 31 is a mere ministerial function or something else? Indeed, decision have been cited at the Bar to suggest that the expression indicated a ministerial function. It is true that in Shriratan v. State Transport Authority (AIR 1959 Raj 175) a Division Bench of the Court has observed :

'If the registration certificate of the vehicle is produced by person who alleges to be the transferee the registering authority has no option but to record the transfer.'

5.3 But it must be noted that the observations were made on the interpretation of unamended Section 31 (1) extracted above (at para 5.1A). In that case the petitioner had disputed the transfer which the respondent alleged to have obtained from him. There was however a written document of title and the registering authority therefore had material for its prima facie satisfaction about transfer of title. Nonetheless, the application of the respondent was turned down by the registering authority as time barred as he had to prefer an appeal which was allowed. The Court was not seized with the question as to the nature and character of the duties and functions of the authority acting under Section 31 as the contention of the petitioner was that no appeal lay refuting which the Court held that the impugned order of the registering authority should be deemed to be an order passed under Section 27 which was appealable under Section 35.

5.4. This decision was followed by a single Judge of the Kerala High Court in Santakumari v. R. T. O. (AIR 1978 Ker 17) in which there was no dispute between the parties but the transfer was not recorded by the registering authority on an erroneous view of a local--law which probated, according to the authority transfers being recorded in cases in which the transferor was in arrear in respect of taxes due for any moter vehicle owned by him. However, following Rajasthan decision the Court also observed that the registering authority had no option but to record the transfer if the certificate of registration of the vehicle was produced by the transferee. A close reading of the judgment makes it clear that the change in law after 1956 was not brought to the notice of the Court.

5.5 The Rajasthan decision was also considered by a Division Bench of And-hra Pradesh High Court in Nanda-kishore v. Transport Commissioner (AIR -1974 Andh Pra 292) wherein their Lordships dissented from the view taken by the Rajasthan High Court that an order passed under Section 31 was appealable under Section 35. It was however, observed by their Lordships that unless ownership of a vehicle is recognised under Section 31 the question of registration or its refusal does not arise at all. This observation, in our opinion, certainly has an important. bearing on the construction of Section 31, which we shall discuss later but it has to be noted that like other two decisions this case also does not deal with the question which we have posed to answer.

5.6. That all the relevant provisions not only of Chapter III but of the other parts of the Act as well as the Rules framed under the Act have to be read together for placing a proper construction on Section 31 cannot be disputed. Indeed, these have to be read in a manner which will fulfil legislative intent and purpose projected in the successive Amending Acts. Accordingly, we may first read some of the definition clauses embodied in Section 2. In Sub-section (2) thereof the term 'certificate of registration' is defined to mean the certificate issued by a competent authority in respect of a motor vehicle that it has been 'duly registered in accordance with the provisions of Chapter III'. In Sub-section (19) the term 'owner' has unfortunately but obviously, been defined rather inartistically and indeed inexhaustively. For, it deals merely with cases and contingencies concerning doubt about ownership which is sought to be resolved apparently with reference to the fact of 'possession'. As the Act does not state as to who is a 'registered owner' the person in possession, in virtue of the definition can lay claim to be registered as such and after registration is effected he can as well claim legal title thereto on the strength of registration. Indeed,

the requirement of Section 26 as to 'production' of vehicle by the applicant at the time of registration may be indicative of his 'possession' and consequently his ownership thereof so as to entitle him to obtain registration under Sectioin 24 in respect of the vehicle.

We may consider also Rule 52 of the Assam Motor Vehicle Rules 1940 (made

under Section 41 of the Act which require that 'every transfer of ownership

of a motor vehicle under Section 31 of the Act shall' be reported by both trans

feror and the transferee to the registering authority concerned in Form T.O.

The said form, it is noteworthy, among others, provides for not only the certi

ficate of insurance but also 'the certificate of fitness' indeed applicable in

case of transport vehicle only, to be furnished along with the application evi

dently to meet the requirement of Section 38.

5.7. Thus, we find difficult to accept the position that the expression 'in order that .....etc. 'deserves paramount importance of an overriding character so as to make the function of the registering authority acting under Section 33 ministerial. The process of recording a transfer cannot, in our opinion, be divorced from, and considered separately, as a distinct process, apart from 'registration'. Indeed, it is a part of the same process as in both cases the right is linked to the ownership of the vehicle which is made a pre-condition in express terms in Sections 24 and 31 to invoke the power thereunder. Further as a result of 'registration' being effected (under Section 24) or 'transfer of ownership being entered in the certificate of registration' (under Section 31) a valuable right to possess the vehicle ensues therefrom entailing similar civil consequences. Cases may be visualised when a person may even be deprived of his livelihood if a vehicle is wrongly registered or transfer of ownership thereof is wrongly recorded in view of the emerging norms of the growing motor transport industry with the gradual increase in the number of 'owners drivers' as a result financial assistance coming to the weaker section of the society from the State. In both cases therefore the need for case. caution and circumstances a in the exercise of the power by insteting on scrupulous observance of formalities prescribed is an evident necessity which has been statutorily recognised. Because, by securing possession of a vehicle even by illegal means and producing the same along with fabricated documents it is possible to obtain registration and therefore provision for 'cancellation' in such circumstances has been made. Similarly, it is possible for an imposter to get transfer of ownership recorded by producing, the certificate of registration due to which the legislature has advisedly and deliberately introduced the important check against abuse of the privilege of registration by providing for a countercheck in the requirement of a 'double intimation' of the transfer, by transferor, to the authority, one directly and other through the transferree. However, what is more important is that non-communication (within specified period) of transfer is visited with penalty, by Sub-section (IA) populating e right of hearing for the parties in the process of recording transfer. The scheme and object of the Act, particularly of its Chapter III has made the requirement mentioned to Section 31 singularly mandatory and positively self-directory by which the power and jurisdiction of the registering authority acting under Section 34 is (sic) circumscribed. Indeed the quasi-judicial character of the power and functions of the registering authority which is explicitly reflected in Sections 27 and 24 is retained evidently in Section 31 by the positive mandate not only of the requirement of 'double intimation' but also by the implied requirement of hearing contemplated by Sub-section (IA). If the expression in accordance with (sic) in Section 2 (2) and 22 have to be made (sic) this conclusion appears (sic) and (sic)

6. CRUX AND CONCLUSION

6.1. We have construed Section 31 (1) in a manner (sic) in our opinion will (sic) social which lis not only in the efficient working of legal (sic) but also in the economic properity of the society and therefore, according to (sic) legal to be (sic) (SIC) (sic) (sic) (sic) (sic) auhorjty by Chapter III. According to us, therefore, in the exercise of its power under Section 31 (i) to record transfer of ownership, it is obligated to exercise its independent judgment, acting with due care and caution, to come to the conclusion as to whether or not the conditions and the formalities prescribed therefor have been duly satisfied. These are indicated below:

(a) The applicant ('transferee') has to obtain legal title to the vehicle before making the application, as 'owner' thereof, for recording the transfer.

(b) The 'transferor' has to 'report' the transfer to the authority and has to simultaneously send a copy thereof to the transferee.

(c) There has to be before the authority an application in the prescribed four with full and accurate particulars duly filled in accompanied by (1) in the case of a transport vehicle, its certificate of fitness, (2) the copy of the 'report' received by the applicant from the transferor and (3) the prescribed fee, & 'no objection certificate' or the document prescribed by Sub-clause ' (ii) of Section 31 (1) (a) has also to accompany the application.

6.2. The question which need now be examined is whether the authority can at the behest of the aggrieved 'owner', namely, the alleged 'transferee', review its own order? Because it is mandated to act quasi-judicially, the authority cannot, in our opinion, deny hearing to the party whose legal sight of ownership and other rights are affected by a decision taken behind his back. Indeed, principles of natural justice would invest the authority with power to review its own decision in such cases. It would apparently be a post-derisional hearing and suck a course it may be remembered is sactioned by the apex Court in Maneka Gandhi (AIR 1978 SC 597) which was indeed a case under Article 21 But, as held in Dilip Kumar's case (AIR 1933 SC 109) the right to (sic) heed is embraced by Article 21 and as observed earlier, wrong recording of transfer may in many cases, result in deprinting an 'owner' of his Evelihood. That apart, such a hearing would not set to anybody's prejudice as an inter-parte hearing would only be permissible and the the decision arrived therein would, in turn, be subject to judicial review. It is true that even administrative bodies acting quasi judicially under (sic) statute cannot exercise power of review sinless conferred specifically by the statute (see Patel Narshi Thakersi, AIR 1970 SC 1273; D. N. Roy, AIR 1971 SC 1045. J.N. Roy Biswas, AIR 1975 SC 2277). However, in R. R. Vcrma (1980 Lab IC 749) (AIR 1980 SC 1461) the apex Court held that this principle is not applicable to 'decisions purely of an administrative nature'' and this was held after considering the decisions parenthesised above.

6.3. It appears to us that the bar (against review) operates in a case where the impugned order, sought to be reviewed, is passed by a body acting judicially or quasi-judicially and not when the order is passed in a purely administrative manner without hearing the parties. What is relevant in this context is the nature of the decision and the manner in which it is taken and not the nature of the power possessed by such body. The power of review is generally denied, and when granted is circumscribed, mainly for the reason that it is a salutory principle of lav that finalily must attach to judicial decisions and if a matter is heard on merits after recording evidence and hearing parties the process need not be rehearsed at the same forum. Indeed, this very principle is projected in Order 47 Rule 1 CPC. For review of a decision, there Has to be a change in circumstances either evidenced by 'discovery of new and important matter or evidence' or by a grievance arising out of 'some mistake or error. apparent on the face of the record'. In Black's Law Dictionary. 5th edn. the 'review' is said to mean: 'to re-examine judicially or administratively! a reconsideration; second view or examination; consideration for the purpose of correction'. We are inclined, accordingly, to hold that the registering authority must and does have power to reconsider its decision takers in a purely administrative manner on an application made under Section 31 (1). But, as we have held that recording of transfer under Section 31 (1) is a part of the process of 'registration', a decision taken on an application for review by the ''transferor'' may result in cancellation of 'registration' obtained in his name by the 'transferee' and therefore the procedures prescribed by Sub-section (4A) of Section 34 ought to be followed in such a case. If the authority finds in the : course of inquiry made in accordance therewith that he transfer was recorded without conditions or the procedure prescribed therefor being satisfied (discussed in para 6.1. above) which would obviously include cases contemplated under Section 34 (4A) of 'fabricated documents' and misrepresentation of facts', it would be (pen to the authority to cancel the entry nade in favour of the ''transferee' recording his name as the 'registered 'owner' of the vehicle.

6.4. In the instant case we find that petitioner's representation made on 13-7-1981 to the registering authority (respondent No. 3) against recording on 13-5-1981 the transfer of ownership of Tata Truck bearing registration No. ARK 754 in favour of respondent No. 6 was disposed of on 17-7-1931 (vide Annexure IV) by respondent No. 3 without enteraining petitioner's application for review and instead directing him to approach 'competent Court' to establish that the sale letter submitted to the said respondent's office was false. In doing so respondent No. 3 failed to perform his public duty which has resuited in petitioner's legal arid constitutional rights being indented and impaired. He did so without taking into consideration the relevant factors alluded in paragraph 6.1 above which he had admittedly ignored, while recording the transfer on 23-5-81, acting like a rebot. His decision, which was conveyed to the petitioner, vide Annexure IV, is therefore vitiated in law and it is liable to be set aside which we hereby do. We further direct that respondent No. 3 shall make inquiry into the matter in the light of the observations herein made and render a reasoned decision within a month after hearing the parties.

6.5 In the result the application is allowed as aforesaid and the rule is made aboslute but there shall be no order as to costs in the facts and circumstances of the case.

K. Lahlri, J.

I agree.

.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //