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1991 DIGILAW 157 (KER)

Sadanandan v. R. T. O. Kollam

1991-04-03

RADHAKRISHNA MENON

body1991
Judgment :- The reliefs prayed for in the O.P. read:- "i. issue a writ of mandamus or any other appropriate writ, direction or order directing the 1st and 2nd respondents to take necessary steps to effect entries on account of the transfer of stage carriage KRQ. 9798 to the petitioner from the 3rd respondent as required under S.50 of the Motor Vehicles Act, 1988 forthwith. ii. issue a writ of mandamus or any other appropriate writ, direction or order directing the 1st respondent to issue a clearance certificate for effecting the transfer in respect of stage carriage KRQ.9798. iii. grant an interim direction to the 1st and 2nd respondents to make necessary entries on account of the transferor stage carriage KRQ. 9798 to the petitioner from the 3rd respondent as required under S.50 of the Motor Vehicles Act, 1988. grant such other reliefs as may deem fit in the circumstances of the case". The grievance of the petitioner is that the second respondent has not so far entered the fact of transfer of the ownership of the vehicle in the registration certificate though the petitioner and the third respondent have reported the same to the Registering Authority well within the time stipulated under S.50 of The Motor Vehicles Act, 1988, for short The 1988 Act. The case of R.T.O. discernible from his communication addressed to Advocate General's Office is this:- "Application has been received from the President Harijan Development Society, Q.520/ 84 Kunnathoor Taluk, Kollam requesting to issue clearance certificate to transfer of ownership to the name of Sri. Sadanandan, Vidavan House, Poovathoor Kulakkada, Kottarakkara since the vehicle has been sold to him. While entertaining this application a D. O. letter has been received from the District Collector, Kollam enquiring whether this stage carriage KRQ 9798 owned by the Society has been sold and if so it is illegal-. In response to this letter, both parties, i.e. transferor and transferee were heard in person and they have confirmed the sale for Rs.2,45,000/-. This fact was brought to the notice of District Collector, Kollam and requested whether clearance certificate for effecting transfer of ownership can be issued. In reply to this letter now the District Collector, Kollam has intimated that clearance certificate for transfer of ownership in respect of stage carriage KRQ.9798 should not be issued as the bus has been purchased with Government money and he is contemplating RR proceedings". In reply to this letter now the District Collector, Kollam has intimated that clearance certificate for transfer of ownership in respect of stage carriage KRQ.9798 should not be issued as the bus has been purchased with Government money and he is contemplating RR proceedings". The question thus arising for consideration is: Is the Registering Authority justified in not recognising the transfer of the ownership of the vehicle by the third respondent to the petitioner. A reference in this connection to the provisions contained in S.50 of The 1988 Act is relevant. Relevant parts of this Section 1 shall now extract: "50. Transfer of ownership. (1) Where the ownership of any motor vehicle registered under this Chapter is transferred,- (a) the transfer or shall,- (i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee; and (b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, 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 order that particulars of the transfer of ownership may be entered in the certificate of registration. (6) On receipt of a report under sub-section (1), or an application under subsection (2), the registering authority may cause the transfer of ownership to be entered in the certificate of registration." Sub-section (1) says that where the ownership of any registered motor vehicle is transferred the transferor is bound to, in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the Registering Authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee. Clause (b) of sub-section (1) says that the transferee shall, within thirty days of the transfer, report the transfer to the Registering Authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, 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 order that particulars of the transfer of ownership can be entered in the certificate of registration. On receipt of the transfer report the Registering Authority may cause the transfer of ownership to be entered in the certificate of registration and the Registering Authority making any such entry shall communicate the transfer of ownership to the transferor and to the Original Registering Authority, if it is not the Original Registering Authority, (sub-section 6. 3. From the discussion above, it is clear that once the transferor and transferee of a vehicle satisfy the requirements prescribed under the above provisions, the Registering Authority is bound to enter the fact of the transfer of ownership in the certificate of registration. It is no doubt true that the word' may' employed in sub-section (6) may suggest that it is not mandatory that the Registering Authority shall cause the transfer of ownership to be entered in the certificate of registration even if the transferor and transferee have, in compliance with the provisions contained in sub-section (1) of S.50, reported the fact of transfer of ownership to him within the period stipulated under the said sub-section. But the word 'may' here, to my mind is mandatory, for, S.50 is dealing with property rights of citizens. To put it differently, unless the word 'may' in sub-section (6) of S.50 is read as 'must' the rights of citizens to own property which ownership takes in its fold the right to transfer such property, would be taken away. This shall not happen because to own property is a constitutional right. 4. The Registering Authority while considering the joint application of the transferor and the transferee to have the fact of ownership recorded in the registration certificate is discharging a quasi judicial function is beyond challenge. If that be so, he shall not discharge that function under directions from higher/ superior authorities. 4. The Registering Authority while considering the joint application of the transferor and the transferee to have the fact of ownership recorded in the registration certificate is discharging a quasi judicial function is beyond challenge. If that be so, he shall not discharge that function under directions from higher/ superior authorities. From the report of the Registering Authority, it is clear that he passed the order refusing to record the fact of transfer of ownership under directions from higher authorities. The power vested in the Registering Authority under S.50 of the 1988 Act has been conferred on him for the public reasons involving the property rights of citizens doing motor transport business. An enabling power of this kind is coupled with a duty which shall not be shirked or shelved nor shall it be evaded; and if such evasion or shirking is noticed, the performance of the same will be compelled under Art.226 of the Constitution. Again the exercise of this authority shall not be based on directions issued by higher authorities. If on enquiry, it is found that this power is fettered by directions of higher authorities, then also the order passed under such directions is liable to be quashed under Art.226 of the Constitution. (See the decision of the Supreme Court in Commr. of Police v. Gordhandas (AIR 1952 S. C.16). 5. The Registering Authority therefore is directed to pass appropriate orders entering the fact of transfer of ownership in the registration certificate as prayed for by the petitioner since the joint application for entering the fact of transfer in the registration certificate satisfies the requirements prescribed by S.50 of The 1988 Act. The O.P. is allowed to the extent indicated above. However, it is made clear that the amounts legally due to the Government from the Society, if the same is a charge on the vehicle, can be recovered by enforcing the said charge.