Pradeep Transport v. Registering Authority — 1995 DIGILAW 250 (KER)

Judgment :- Petitioner is the registered owner of the stage carriage - KBF 2682 - which was hypothecated to the third respondent, The petitioner had committed default in payment of the loan amount. Therefore, notices were sent to the petitioner as well as to the guarantor by the third respondent stating that the vehicle would be seized if they did not make repayment of the loan amount Since they did not turn up, the third respondent seized the vehicle along with the registration certificate. Thereafter, the third respondent applied for issue of a fresh registration certificate in its favour, as required under the Motor Vehicles Rules, in the prescribed form. Pursuant thereto, the second respondent issued a notice to the petitioner asking him to file his representation, if any, against issuing a fresh certificate of registration in the same of the third respondent. The petitioner, therefore, filed Ext. P3 representation before the second respondent stating that lie had already surrendered the vehicle along with the registration certificate to the third respondent and that since he had not absconded himself, there was no justification for the registrating authority to issue proceedings under S.51(5) of the Motor Vehicles Act, 1988 and also under R.61(3) of the Central Motor Vehicles Rules, 1989. Therefore, the petitioner contended that the essential conditions, contemplated under S.51(5) of the Act, were inapplicable in his case and, therefore, there was no justification to proceed with the matter. 2. On receipt of Ext. P3, the second respondent issued another notice to the petitioner asking him to appear before the Joint Regional Transport Officer, Mattancherry on 9-11-1990 at 11.00 a.m. to have a personal hearing in connection with the disposal of the application for transfer of ownership of the vehicle in question in favour of 3rd respondent. The said notice is stated to have been received by the petitioner only on 10-11-1990 at 2.00 p.m. and, therefore, he could not appear before the Joint Regional Transport Officer on 9-11-1990. On 10-11-1990 itself, the petitioner claims to have approached the second respondent and on enquiry, he was informed that on 9-11-1990 itself, the second respondent passed Ext. P9 cancelling the original registration certificate and issued a fresh registration certificate in the name of the third respondent. The petitioner challenges the validity of Ext. P9 order in this proceeding under Art.226 of the Constitution of India. 3. P9 cancelling the original registration certificate and issued a fresh registration certificate in the name of the third respondent. The petitioner challenges the validity of Ext. P9 order in this proceeding under Art.226 of the Constitution of India. 3. Heard counsel on both sides and perused the records produced by the Government Pleader. 4. Admittedly, Ext. P9 order was passed without giving the petitioner an opportunity of being heard. Ext. P6 would show that the petitioner had received Ext. P5 notice only on 10-11-1990, after the date fixed for hearing. This has not been controverted by any of the respondents before this Court by tiling any counter affidavit. Therefore, it is to be held that Ext. P9 was passed in violation of the principles of natural justice. 5. Counsel for the third respondent submitted that no notice need he issued under S.51(5) of the Act to the petitioner since the conditions stipulated therein were not satisfied in the case. Under the said sub-section, a notice to the registered owner for an effective opportunity to make representation is contemplated only if the registered owner refuses to deliver the certificate of registration or has absconded himself In this case, the petitioner has not refused to deliver the certificate of registration and he has not absconded also. The third respondent also has no such case. Therefore, it cannot be said that there is any statutory violation in passing Ext. P9 order. But the second respondent chose to issue a notice to be registered owner of the vehicle viz. the petitioner to ascertain the correctness or otherwise of the statements made by the petitioner that' the registered owner has delivered the certificate of registration voluntarily or not. As a matter of fact, such a notice was issued to the registered owner to appear for a personal hearing, before passing any adverse order against him and against his interest. Such a conduct on the part of the registering authority is strictly in compliance with the principles of natural justice. As stated earlier, the notice issued to the petitioner to appear for the personal hearing on 9-11-1990 was actually served on him only on 1(3-11-1990, even though under S.51(5) of the Act no notice need be issued to the petitioner. Such a conduct on the part of the registering authority is strictly in compliance with the principles of natural justice. As stated earlier, the notice issued to the petitioner to appear for the personal hearing on 9-11-1990 was actually served on him only on 1(3-11-1990, even though under S.51(5) of the Act no notice need be issued to the petitioner. But for complying with the principles of natural justice, the second respondent thought it fair and proper to hear the registered owner also before transferring the ownership of the vehicle and issuing a fresh certificate of registration in favour of the third respondent. Having issued such a notice, it was not proper on the part of the second respondent to pass the impugned order, without hearing the petitioner in the matter. The petitioner had filed Exts. P3 and P7 representations before the registering authority requesting to give him an opportunity to have a personal hearing in the matter. Therefore, it is clear that while passing the impugned order on 9-11-1990 itself, the petitioner's prayer for a personal hearing was not even considered by the second respondent. As stated earlier, having selected to give an opportunity of personal hearing to the registered owner, it was improper on his part to pass Ext. P9 order directing issue of fresh registration certificate in favour of the third respondent after cancelling the certificate of registration given in favour of the petitioner. 6. Counsel for the "third respondent also contended that Form No. 36 prescribed under R.61(2) of the Central Motor Vehicles Rules, takes in three contingence is viz. (1) the certificate of registration of the vehicle is surrendered therewith; (2) the registered owner has refused to deliver the certificate of registration; and (3) the registered owner is absconding. According to counsel for the third respondent, the said form itself would show mat a fresh certificate of registration could be issued if any one of 'the above conditions is satisfied and that the third respondent had put in the application for issue of a fresh registration certificate on the ground that the certificate of registration of the vehicle in question was surrendered. Therefore, counsel for the third respondent contended that no notice need be issued at all to the petitioner since a notice is contemplated under S.51(5) of the Act and R.61 of the Rules only if the registered owner refuses to surrender the certificate of registration or he is absconding. 7. Rule 61 of the Central Rules is extracted below: "Termination of hire purchase agreements, etc: - Application for making an entry of termination of agreement of hire purchase, lease or hypothecation referred to in sub-section (3) of S.51 shall be made in Form 35 duly signed by the registered owner of the vehicle and the financier, and accompanied by the certificate of registration and the appropriate fee as specified in R.81. (2) The application for the issue of a fresh certificate of registration under sub-section (5) of S.51 shall be made in Form 36 and shall be accompanied by a fee as specified in R.81. (3) Where the registered owner has refused to deliver the certificate of registration to the financier, or has absconded then the registering authority shall issue a notice to the registered owner of the vehicle in Form 37". As can be seen from sub-rule (2) of R.61, an application for issue of a fresh certificate of registration should be made in Form 36 and Form 36 is applicable if the certificate of registration of the vehicle is surrendered by the registered owner or if the registered owner refuses to deliver the certificate of registration to the financier or if the registered owner is absconding. I see sufficient force in the contention raised by counsel for the third respondent that an application for issue of a fresh registration certificate is maintainable if the certificate of registration of the vehicle is surrendered to the financier, even though the registered owner is not absconding. Therefore, it has to be held that under R.61(2) of the Central Rules and under the specifications made in Form 36, the financier is entitled to apply for a fresh certificate of registration if he produces the certificate of Registration along with the application and the registered owner is not absconding. Therefore, it has to be held that under R.61(2) of the Central Rules and under the specifications made in Form 36, the financier is entitled to apply for a fresh certificate of registration if he produces the certificate of Registration along with the application and the registered owner is not absconding. Counsel for the third respondent also submitted that a notice to the registered owner of the vehicle directing him to surrender the certificate of registration for cancellation and for issue of afresh certificate of registration in the name of the financier as contemplated under R.61 (3) has to be made in Form No. 37, the application for issue of a fresh certificate of registration in the name of the financier is to be made in Form No. 36 and as a matter of fact such an application is made by the 3rd respondent in Form No. 36 before the 2nd respondent. As stated earlier, if the registration certificate of the vehicle is not surrendered by the registered owner or he refuses to deliver the certificate of registration to the financier or he is absconding, what the registering authority has to do is to issue a notice in Form No. 37 to the registered owner and proceed with the matter. Therefore, T am inclined to accept the contention raised by the counsel for the third respondent that if the registration certificate is surrendered to the financier and the same is produced by the financier before the registering authority, an application for issue of a fresh certificate of registration is maintainable under R.61(2) of the Central Rules, if the registered owner is not absconding. The contention made to the contra by counsel for the petitioner has only to be rejected. Since the petitioner is not absconding and he has surrendered the registration certificate to the financier, the petitioner is not entitled legally to gel a notice under R.61(3) of the Central Rules or under S.51(5) of the Act. The contention made to the contra by counsel for the petitioner has only to be rejected. Since the petitioner is not absconding and he has surrendered the registration certificate to the financier, the petitioner is not entitled legally to gel a notice under R.61(3) of the Central Rules or under S.51(5) of the Act. But, as stated earlier, since the second respondent chose to issue a notice to the registered owner of the vehicle and the same was served on him only after the date fixed for personal hearing and since the impugned order was passed on in 9-11-1990 itself, without hearing the petitioner, it has to he held that the order impugned is passed in violation of the principles of natural justice and on that sole ground, I set aside Ext. P9 order, 8. The second respondent is, therefore, directed to consider and dispose of the application filed by the third respondent for transferring ownership of the vehicle in their favour and for issuing a fresh registration certification respect of the vehicle in question within one month from the date of receipt of a copy of thus judgment. But I make it clear that before taking final decision in the matter, the registered owner of the vehicle shall also be heard in case he is available in the address shown in the certificate of registration. It is also perfectly open for the petitioner to request for a personal hearing before the second respondent and in case such a request is made within ten days from today, no fresh notice be issued to him as directed above. The Original Petition is disposed of with the above direction, without any order as to costs.