C.A. Vaidialingam, J.
1. Though there is a lot of suspicion as against the petitioner, still unfortunately It so happens that the petitioner is to succeed for the present on a highly technical point.
2. The petitioner claims to be the owner of a motor vehicle bearing Registration No. KLK. 4015 and according to him the said vehicle was checked by the second respondent on 3-11-1961 at Tripunithura. It Is the case of the petitioner that at that time a business partner of his, namely, Shri T. M. Ebrahim Karim, and a relation of his, namely, Shri Alikutty, were travelling in that vehicle as they were expected to use the vehicle in the ordinary manner. But the said vehicle, as I mentioned earlier, was checked by the second respondent and he issued a check report Ex. P-l to the driver of the vehicle to the effect that when the vehicle was stopped and checked the irreguparities noted therein were observed by him and the Irregularity itself is that the car was found conveying Sort T. M. Ebrahim Karim, Hardware Merchant, Moovattuptuhaha and K. M. Alikutty, Merchant, Moovattupuaha, from Moo-yattupuzha to Ernakulam for hire and It is also stated that the vehicle has no permit to ply for hire.
3. It Is the grievance of the petitioner that this check report was given to him by his driver on 8-11-1961 and on the same date he sent a communication to the R.T.A., Ernakulam, about the receipt of the said report through his driver on that date. In the said communication, the petitioner after referring to the information obtained from his driver as well as to the vehicle having been stopped and checked on 3-11-1961 states that be Is not able to understand the charge that the vehicle at the time of the check was carrying persons mentioned therein on hire without a permit. The petitioner further says that the said charge Is absolutely without any foundastion and as his driver was illiterate he was asked to put his signature on the report and the latter signed without any knowledge as to the contents. The petitioner farther avers that he has also been informed by him and by his relatives and driver that they had given their names and address without expecting any charge and that the Motw Vehicles Inspector, namely, the second respondent, did not at the time of the check inform anyone of them regarding the charge.
4. Finally the petitioner winds up his communication dated 8-11-1961 by saying that he wishes to Inform the first respondent, the Registering Authority that he is e planter and businessman of Kanjirappally and Moovattu-puzha and he Is using the car for his own private use and that there is absolutely no necessity for him to give his car on hire to anyone. Ultimately, he makes the request to the R.T.A. to reconsider the charge and Instruct to stop further actions in respect of the matter.
5. It will be seen that the Registering Authority was not satisfied with this statement sent by the petitioner on 8-11-1961 and referred to earlier. Therefore, in the counter-affidavit that has been filed by the Registering. (Authority it has stated that they issued a notice on 1-12-1961 to the petitioner suspending the registration certificate for a period of four months. It is also quite frankly admitted in the counter-affidavit that due to some mistake in the office the said notice was wrongly addressed to the petitioner to Moovattupuiha Instead of Kanjirappally. But it is averred in the counter-affidavit that the petitioner has no basis for the allegation that he had no occasion to know what the charges were or to give an explatation.
6. Later on, Inasmuch as the car was being still found to be used it was checked at Alwaye on 20-12-1961 and the Certificates of Registration and Insurance were seized from the car. It is also further mentioned that the petitioner could have taken up the matter In appeal if he was aggrieved by the order. Ultimately, the result of the proceedings that appear to have been taken as againa the petitioner Is that the registration certificate of the car has been suspended for a period of four months from 1-12-1961.
7. It is also mentioned In the counter-affidavit of the Registering Authority in paragraph 2 that though the registration certificate of the car, Standard 10, bearing No. KLK, 4015 stands in the name of the petitioner, on enquiries the department learns that in violation of section 8 of the Motor Cars (Distribution and Sale) Control Order, 1959, the petitioner has sold his car some sis months back to one Shri Syed Mohamed, Proprietor, Hotel
Everest Moovattupuzha, and the said Sri Syed Mohamed has been illicitly using it as a taxi, and, that there was a representation made by the other owners of taxis at Moovattupuzha to the Government about the illicit operation of certain vehicles in that area and one of the vehicles referred to in the memorial is the car in question in these proceedings.
8. No doubt, Mr. Sivaraman Nair, learned counsel for the petitioner, very strenuously urged that there is absolutely no foundation for the allegation made in the counter-affidavit that his client has parted with his title to the car in favour of Sri Syed Mohamed. It is not really necessary for me to advert to this aspect because this court is not considering any action that has been taken against film for violation of the provisions of the Motor Cars (Distribution and Sale] Control Order, 1959.
9. In this case, Mr. Sivaraman Nair, learned counsel, urged that under Section 33(1)(h) it is mandatory on the 'part of the authority to issue a notice regarding the action that is proposed to be taken and it is only after the owner had an opportunity of making any representation he may wish to make in that regard that any action if at all can be taken as against the petitioner. Secondly, the learned counsel also urged that even according to the statements contained in the counter-affidavit, it is clear that the actual order suspending the registration has not been actually served on the petitioner and therefore he has been denied the right of filing an appeal against the order before tha appellate authority. No doubt, so far as the second aspect is concerned, the learned Government Pleader brought to my notice that there has been a service of notice of the actual order on the petitioner at a later stage. But this aspect also need not be considered in the view that I take regarding the first contention of Mr. Sivaraman Hair.
10. Section 33(1) of the Motor Vehicles Act is as follows:
'33. Suspension of Registration: (1) If any registering authority or other prescribed authority has reason to believe that any motor vehicle within its jurisdiction--
(a) is in such a condition that its use in a public place would constitute a danger to the public, or that it fails to comply with the requirements of Chapter V or of the rules made thereunder, or,
(b) has been, or is being used for hire, or reward without a valid permit for being used as such, the authority may, after giving the owner an opportunity of making any representation he may wish to make (by sending to the owner a notice by registered post acknowledgment due at his address entered in the certificate of registration) for reasons to be recorded in writing, suspend the certificate of registration of the vehicle --
(i) in any case falling under clause (a), until the defects are remedied to its satisfaction; and
(ii) in any case falling under clause (b), for a period not exceeding four months.'
In this case admittedly, accordingly to the Department, the petitioner should be considered to have used for hire his car in question without any valid permit. That will if established, certainly come under Section 33(1)(b) of the Motor Vehicles Act. It is also further provided that in such a case the authority after giving the owner an opportunity of making any representation that he wishes to make for reasons to be recorded in writing suspend the certificate of registration.
11. According to Mr. Sivaraman Nair, excepting giving the check report to the driver which was received by him as mentioned in the affidavit, the petitioner has not been served with any notice by the authority concerned before they decided to take action as against the petitioner by way of suspension of registration. There is an incidental contention raised by Mr. Sivaraman Nair that even the manner in which the said notice is to be served on the owner has been indicated in sub-section 1 of Section 33 Itself.
12. The learned Government Pleader, on behalf of the respondents, urged that in this case whatever defect there may have been by non-service of notice upon the petitioner prior to taking action under the provisions of section 33(1) it is clear from the statements mentioned in the counter-affidavit that the petitioner did have copies of the check report as will be seen from the communication sent by him on 8-11-1961 and every aspect that could have been possibly dealt with by the petitioner when a formal notice has been issued charging him with having used his car for hire without having a necessary permit for that had been adverted to and explained by the petitioner. The Registering Authority, the learned Government Pleader further urged, has considered him and ultimately they have not chosen to accept the same.
13. It is not possible for me to accept this contention of the learned Government Pleader in view of the clear wording of section 33(1) of the Motor Vehicles Act. So far as I could see section 33(1) makes it obligatory, on the part of the Registering Authority to give the owner an opportunity of making any representation he may wish to make when the Registering Authority has reason to believe that a motor vehicle within his jurisdiction has been used for hire withont a valid permit. No doubt, the explanation given by the petitioner in his communication dated 8-11-1961 must only be related to the actual charge memo that has been issued by the Inspecting Officer to the driver on the spot. The Check Report, Ex. P-l, excepting adverting to facts does not at all contemplate taking any action. It may be that the check report forms the basis for conviction but the check report is not an action by itself in respect of which the petitioner could have filed any detailed explanation as he would have done when once the registering authority decided to take action as against persons like the petitioner for violation of the provisions of Section 33(1) of the Act. That is why I mentioned even at the beginning of the judgment that the petitioner in this case has to succeed on a technical point. Admittedly, no such notice under Section 33(1) has been given in this case. There is also the other aspect that admittedly even according to the counter-affidavit filed on behalf of the registering authority the owner has not been actually served with a copy of the final order, because that also is necessary so that the party aggrieved by the order may challenge it before the appropriate authority by way of appeal.
14. In view of all these circumstances, the order dated 1-12-1961 suspending the registration certificate of the petitioner's car and referred to in paragraph 5 of the counter-affidavit filed by the Registering Authority and Regional Transport Officer, Ernakulam, will stand cancelled but the cancellation of that order will not entitle the petitioner to either run the car Immediately or to get back the Registration and Insurance certificates which have already been seized from him because these matters will be subject to the further directions to be given later.
15. The petitioner is entitled to file any representations that he wants in respect of the allegations made as against him in the check report, Ex. P-l and it is also open to the petitioner to examine any witness that he wants in support of his defence. The explanation tiled ty the petitioner and the witnesses produced by the petitioner will all be examined by the registering authority in question on 14-2-1962 and the authority after a consideration of all those materials that may be placed by the petitioner consider the question of imposing any punishment as against the petitioner in the light of the evidence adduced by the petitioner.
16. If the petitioner is ultimately held in these proceedings by the registering authority to be not guilty the certificates of registration and insurance will both be returned to the petitioner. In imposing any punishment, if it is found necessary, the authority would be exercising its discretion properly if it takes into account the period already suffered by the petitioner by way of suspension of his certificate.
17. This order will be very urgently communicated tothe R. T. 0., Ernakulam, for necessary action.
18. There will be no order as to costs.