NELSON v. REGIONAL TRANSPORT OFFICER — 1976 DIGILAW 75 (KER)

Judgment :- 1. The writ petitioner purchased a motor-car KLE-97 from one T. K. Surendran, Mattancherry, Cochin on 10-10-1969. While the vehicle was under the ownership of Shri. Surendran it had been stopped and checked by the Assistant Motor Vehicle Inspector, Quilon on 6-6-1969 at 4.35 P. M. at Chavara when it was found that it was conveying for hire without permit one Shri. Kunji Bai and his family consisting of six persons. A charge memo dated 26-9-1970 was issued to the petitioner by the Registering Authority (Regional Transport Officer), Ernakulam 1st respondent calling upon the petitioner to show cause within seven days why the registration certificate of the car should not be suspended under S.33(1)(b) of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) on the ground of unauthorised user of the vehicle for carrying passengers on hire without a permit. The petitioner acknowledged the receipt of the charge memo on 2-11-1970 and he claims to have sent an explanation, of which Ext. BI is alleged to be a copy, but the said paper does not appear to have been received in the office of the Ist respondent. The 1st respondent therefore proceeded to dispose of the matter ex parte and passed the order Ext. P2 dated 15th October, 1971 suspending the registration certificate of the car for a period of four months from 20-11-1971 and the petitioner was directed by the said order to surrender the registration certificate of the vehicle forthwith to the office of the 1st respondent. Against the said order passed by the 1st respondent the petitioner preferred an appeal before the District Collector, Ernakulam (2nd respondent). The main contention put forward by the petitioner in the appeal was that at the time of the purchase of the vehicle from the previous owner the petitioner was not aware of the fact that the vehicle had been involved in the commission of an offence under S.33(1)(b) of the Act and since the registration in respect of the vehicle had been transferred in the petitioner's favour by the Regional Transport Officer without any objection it was not thereafter open to the 1st respondent to pursue any action against the new owner for suspending the registration of the vehicle. The said contention was rejected by the 2nd respondent and the appeal filed by the petitioner was dismissed by him as per the order Ext. The said contention was rejected by the 2nd respondent and the appeal filed by the petitioner was dismissed by him as per the order Ext. P3 dated 21-6-1972. The petitioner has brought this writ petition seeking to quash Exts. P2 and P3. 2. It was contended before us by the counsel appearing for the petitioner that S.33(1)(b) of the Act contemplates action being taken thereunder only against the person who was the registered owner of the vehicle at the time when the vehicle was used for hire or reward without a valid permit and that if the ownership of the vehicle has changed hands subsequent to the commission of the said offence a bona fide transferee who has purchased the vehicle for value without any notice of the fact of commission of such offence is not liable to be proceeded against under the said provision. In support of the said contention counsel for the petitioner relied very strongly on the following observations of Vaidialingam, J. in Haji M. Abdulla v. Regional Transport Officer, Kozhikode,1964 KLT 112: "In my view, in the circumstances of this case, it is absolutely necessary in the interests of justice that persons like the petitioner, who claim to have obtained transfer of the vehicle bona fide and for value, without any knowledge that proceedings have been initiated as against them, must certainly be able to satisfy the authorities at least prima facie that they are persons who have purchased the vehicles bona fide and for value and have no knowledge of any offence having been committed by the transferor or of any proceedings being pending as against him. Therefore if the petitioner is able to prima facie satisfy the authorities on this aspect, in my view, the proceedings, which are sought to be taken for suspending the registration certificate of the vehicle in question which will really be punishment as against the petitioner will have to be dropped." 3. Therefore if the petitioner is able to prima facie satisfy the authorities on this aspect, in my view, the proceedings, which are sought to be taken for suspending the registration certificate of the vehicle in question which will really be punishment as against the petitioner will have to be dropped." 3. It is contended by the Government Pleader appearing on behalf of the respondents that under S.33(1)(b) of the Act the registration certificate of a vehicle is liable to be suspended on its being found by the concerned statutory authority that the vehicle has been used for hire or reward without a valid permit and this liability will not be in any way affected if the ownership of the vehicle is subsequently transferred to another person and that the bona fides of the purchaser or the lack of knowledge on his part about the antecedent wrongful use of the vehicle for hire or reward is therefore not of any relevance in a proceeding under S.33(1)(b). On this basis it is submitted by the Government Pleader that the above observations in Haji M Abdulla v. Regional Transport Officer. Kozhikode,1964 KLT 112, cannot be regarded as laying down correct law. We find that there is force in this contention. 4. S.33 of the Act reads: "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 acknowledgement 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. (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. (2) An authority other than a registering authority shall, when making a suspension order under sub-section (1), intimate in writing the fact of suspension and the reasons therefor to the registering authority within whose jurisdiction the vehicle is at the time of the suspension. (3) Where the registration of a motor vehicle has been suspended under subsection (1) for a continuous period of not less than one month, the registering authority, within whose jurisdiction the vehicle was when the registration was suspended, shall if it is not the original registering authority inform that authority of the suspension; and when the suspension has continued without interruption for a period of not less than six months, the registering authority within whose jurisdiction the vehicle was when the registration was suspended, may, if it is the original registering authority, cancel the registration, and if it is not the original registering authority, shall forward the certificate of registration to that authority which may cancel it forthwith. (4) The owner of a motor vehicle shall, on the demand of a registering authority, or other prescribed authority which has suspended the certificate of registration of the vehicle under this section, surrender the certificate of registration and any token or card issued to authorise the use of the vehicle in a public place. (5) A certificate of registration and any token or card surrendered under subsection (4) shall be returned to the owner when the order suspending registration has been rescinded and not before." The Section invests the registering authority or other prescribed authority with the power to suspend the certificate of registration of any motor vehicle within its jurisdiction if it has reason to believe that the vehicle 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 laid down in Chapter V of the Act and the Rules framed thereunder regarding the construction, equipment and maintenance of motor vehicles or that it has been or is being used for hire or reward without a valid permit authorising such user. If any one of these jurisdictional conditions is satisfied the registration of the vehicle is liable to be suspended. The exercise of the said power is not made dependent upon the existence of any mens rea on the part of the person who is the registered owner of the vehicle at the time when the authority takes the action under the Section. For the purpose of taking action under clause (a) all that is relevant to be considered by the authority is whether the condition of the vehicle is such that it fails to comply with the requirements of Chapter V relating to the equipment and maintenance of motor vehicles or its use in a public place would constitute a danger to the public. Likewise, for taking action under clause (b) of subsection (1) all that the registering authority has to investigate and determine is whether the vehicle has been or is being used for hire or reward without a valid permit. Once the authority finds that there is reason to believe that a vehicle has been used for hire or reward without a valid permit the jurisdictional condition is satisfied and the registration of the vehicle is liable to be suspended. The Section enjoins that a determination of the aforesaid question should, however, be made by the authority only after giving the owner an opportunity of making any representation he may wish to make. Having regard to the limited nature and scope of the enquiry that is envisaged under the Section any representation to be made by the owner of the vehicle can only be in respect of the question whether, as a matter of fact, the vehicle had been used for hire or reward without a valid permit. The liability for suspension of the certificate of registration gets automatically attracted when the factum of such wrongful user of the vehicle for hire or reward is either admitted or proved to the satisfaction of the authority exercising the power under the Section. Once the condition mentioned in clause (b) is found to exist there is an absolute liability for suspension of the certificate of registration of the vehicle, irrespective of any question as to whether the registered owner bad knowledge about the wrongful user of the vehicle for hire or reward without permit. Once the condition mentioned in clause (b) is found to exist there is an absolute liability for suspension of the certificate of registration of the vehicle, irrespective of any question as to whether the registered owner bad knowledge about the wrongful user of the vehicle for hire or reward without permit. Obviously, the intention of Parliament in enacting S.33(1)(b) of the Act is that cases of unauthorised user of motor vehicles for hire or reward without permit should be effectively dealt with by creating an absolute liability for suspension of the certificate of registration of the vehicle and by conferring power upon the registering authority and other prescribed authorities to proceed against the concerned vehicle by suspending its certificate of registration where the authority after giving the owner an opportunity of making a representation finds for reasons to be recorded in writ ing that there is reason to believe that the vehicle has been or is being used for hire or reward without a valid permit. Such being the scheme of the Section it will be no defence at all on the part of the registered owner to say that the ownership of the vehicle has been acquired by him only on a date subsequent to the wrongful user and that he is bona fide transferee for value without notice of the pendency of the proceedings initiated against the prior owner under S.33(1)(b) of the Act. As already observed, the liability for suspension of the certificate of registration of the vehicle accrues under the Section when the condition mentioned in clause (b) is satisfied and it is not dependent on the existence of any mens rea on the part of the registered owner and the said liability will not be affected by any transfer. In case of transfer of ownership of a vehicle the transferee will get it only subject to the liability for its being proceeded against under the Section in respect of any offence that has been already committed prior to the transfer. Hence the question whether the transferee is a bona fide purchaser without notice of the pendency of the proceeding is not of any relevance in determining the liability for suspension of the certificate of registration of the vehicle under S.33(1)(b) of the Act. Hence the question whether the transferee is a bona fide purchaser without notice of the pendency of the proceeding is not of any relevance in determining the liability for suspension of the certificate of registration of the vehicle under S.33(1)(b) of the Act. With respect, we hold that the contrary view expressed in Haji M. Abdulla v. Regional Transport Officer Kozhikode,1964 KLT.112, cannot be regarded as correct. 5. The order Ext. P2 was passed by the 1st respondent only after extending to the petitioner due opportunity of making his representation. Though the petitioner has put forward a plea that he had filed a representation of which Ext. P1 is said to be a copy, we see no reason to doubt the correctness of the statement made by the first respondent in the order Ext. P2 that no such explanation had been received in his office. That apart, the petitioner has no case that, as a matter of fact, the vehicle in question had not been used for carrying passengers for hire without permit on 6-6-1969 as stated in the check report of the Assistant Motor Vehicles Inspector, Quilon. Both the registering authority as well as the District Collector before whom the petitioner was represented by an advocate have, on a consideration of the materials on record, come to the conclusion that the wrongful user of the vehicle for hire without permit was fully proved. There is no scope at all for any interference by this court with the said finding of fact. 6. The original petition therefore fails and is dismissed but in the circumstances we do not make any order as to costs.