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2002 DIGILAW 745 (KER)

M. Kunhani v. The Regional Transport Ofiice

2002-11-15

J.M.JAMES, S.SANKARASUBBAN

body2002
Judgment :- The above Writ Appeal is filed against the judgment in O.P.No. 19880 of 2000 by the petitioner in O.P. No. 19880 of 2000. According to the appellant, he was a dealer under the Motor Vehicles Act and he obtained trade certificate from the Registering Authority, viz., Regional Transport Officer, Malappuram, the first respondent. As per order dated 06.11.1997, the Transport Commissioner, Thiruvananthapuram, allowing the appeal filed by one Kunhu Moidu, granted his request for issuing trade certificate in his favour for the period 1997, having found that he would come within the definition of a dealer. 2. The appellant herein applied for getting transferred to his name the trade certificate, since he is having a well-equipped workshop dealing in goods auto vehicles as well as hire purchase business and with facilities for building bodies for attachment to chassis. The appellant has also got facilities for hire purchase of vehicles of two wheelers as well as three wheelers. When he had approached the first respondent for transfer, the same was allowed. Due endorsement was also made to that effect. The validity of that certificate expired by 17.07.1998. The first respondent renewed trade certificate in the name of the appellant till 16.7.1999. For further renewal when action was taken, the first respondent directed the appellant to appear before him to clarify whether the trade certificate sought for by him is as the dealer of the manufacturer in the restricted sense or only a builder, repairer or hire purchase dealer. The appellant had given a reply on 10.7.2000 as per Ext. P4. Since no certificate was issued, he approached this Court. Originally, the certificate was renewed for a period of six days. Subsequently, it was further extended for a period of one month. The period was valid up to 24.08.2000. 3. In the Original Petition, the fifth respondent got himself Impleaded. The matter was disposed of by the learned single Judge on 24.08.2000. The learned Judge directed the appellant to appear before the Regional Transport Officer and in the penultimate paragraph held that if the appellant has a specific case that he wants trade certificate for the purpose of making first sale in the state after getting new and unregistered Vehicles from the manufacturer, he has necessarily to produce dealership certificate and other necessary documents from the manufacturer. It is against that the present appeal is filed. 4. It is against that the present appeal is filed. 4. According to the appellant, the dealership is defined in Section 2(8) as a person who is engaged in the manufacture of motor vehicles or in building bodies for attachment to chassis or in the repair of motor vehicles or in the business of hypothecation, leasing or hire purchase of motor vehicle. According to the counsel for the appellant, under Section 2(4) of the Motor Vehicles Act 1978, the dealer’s definition was initially included a person who was engaged in the manufacture of motor vehicles. But when the Act was amended in 1988, the definition was completely changed. The old provision, Section 2 (4) was recast as Section 2 (8) . Initially, under sub-section 8 (a), the term was included in the manufacture of motor vehicles and those in the business of hypothecation, leasing or hire purchase of motor vehicles. Sub-section 8(a) has been omitted by the Motor Vehicles (Amendment) Act, 1994 with effect from 14.11.1994. This amendment was brought in, in order to further widen the clause thereof, manufacture of motor vehicles may not figure as a dealer by including those doing the body building for attachment to chassis, carrying out repairs, etc. 5. According to the appellant, as per Section 39, no person shall drive any motor Vehicle shall cause or permit the vehicle to be driven in any public place or in any other place, unless the vehicle is registered in accordance with Chapter IV and the Certificate of Registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. But, the provision therein says that nothing in this Section shall apply to a motor vehicle in possession of a dealer, subject to such conditions as may be prescribed by the Central Government. But, the provision therein says that nothing in this Section shall apply to a motor vehicle in possession of a dealer, subject to such conditions as may be prescribed by the Central Government. The appellant further contended that as per Chapter III of the Central Motor Vehicles Rules, the holder of a trade certificate shall not use any vehicle in a public place under that certificate for any purpose other than for test, by or on behalf of the holder of a trade certificate during the course of or after completion of, construction or repair or for proceeding to or returning from a weigh-bridge for or after weighment or to and from any place for its registration or for a reasonable trial or for proceeding or returning from the premises of a dealer, etc. It is for these purposes, the appellant wanted to get a trade certificate, as he is carrying out repairs and bodybuilding after getting the vehicles purchased from Karnataka. It was submitted that in order to possess a trade certificate under the definition of a dealer, it is not mandatory that one should be a direct dealer of the Company , he cannot use those vehicle and if the trade certificate is issued to the appellant, he will misuse it. 6. After hearing both sides, we are of the view that some modifications in the judgment passed by the learned single Judge is necessary. Ext. Pl order was passed by the Transport Commissioner, Thiruvananthapuram on the appeal filed by K. Kunjumoidu by which it was held that he comes within the definition of a dealer and eligible for a trade certificate. Ext. P2(a) is the trade certificate issued in the name of the appellant. It says that the certificate is issued for goods vehicle, Bajaj. Ext. P2 (b) is the certificate issued to the appellant for 3 wheeler Bajaj. It is thereafter that ext. P3 was issued. In Ext. P3, the Authorities wanted to know that the certificate issued is for sales and services of Bajaj Vehicles or service only. The appellant gave a reply requesting to renew the trade certificate. 7. Ext. P2 (b) is the certificate issued to the appellant for 3 wheeler Bajaj. It is thereafter that ext. P3 was issued. In Ext. P3, the Authorities wanted to know that the certificate issued is for sales and services of Bajaj Vehicles or service only. The appellant gave a reply requesting to renew the trade certificate. 7. The term “dealer” is defined under Section 2(8), which says as follows:- (8) “Dealer” includes a person who is engaged:- (a) XXXX (b) in building bodies for attachment to chassis; or (c) in the repair of motor vehicles; or (d) in the business of hypothecation, leasing or hire-purchase of motor vehicle”. In this context, it is pertinent to note that originally, Section 2(8) (a) was as follows: “In the manufacture of motor vehicles; or” But that was taken away by the Motor Vehicles (Amendment) Act 1994 . So that when Ext. Pl was issued, a person could be a dealer if he is engaged in the building bodies for attachment of the chassis, in the repair of motor vehicles or in the absence of hypothecation or hire purchase of motor vehicles. Section 39 of the Act deals with registration. But the proviso says that nothing in this Section shall apply to a motor vehicle in possession of a dealer subject to such condition as may be prescribed by the Central Government”. Chapter III of the Central Motor Vehicles Rules is headed by registration of motor vehicles. Rule 48 of the Rules deals with trade certificate. Rule 33 says that for the purpose of the proviso to Section 39, a motor vehicle in possession of a dealer shall be exempted from the necessity of registration subject to the condition that he obtains a trade certificate from the registering authority having jurisdiction in the area in which the dealer has his place of business in the accordance with the provisions of this Chapter. Rule 34 of the Rules deals with trade certificate. It says that an application for the grant or renewal of a trade certificate shall be made in Form 16 and shall be accompanied by appropriate fee as specified in Rule 81. Rule 34 of the Rules deals with trade certificate. It says that an application for the grant or renewal of a trade certificate shall be made in Form 16 and shall be accompanied by appropriate fee as specified in Rule 81. Separate application shall be made for each of the following classes of vehicles, namely: (a) motor cycle; (b) invalid carriage; (c) light motor vehicle; (d) medium passenger motor vehicle; (e) medium goods vehicle; (h) any other motor vehicle of a specified description. Rule 35 deals with grant or renewal of trade certificate. It says that on receipt of an application for the grant of renewal of a trade certificate in respect of a vehicle, the registering authority may, if satisfied that the applicant is a bona fide dealer and requires the certificate specified in the application, issue to the applicant one or more certificates as the case may be, in Form 17 and shall assign in respect of each certificate a trade registration mark referred to in the notification under sub-section (6) of Section 41 and followed by two letters and a number containing not more than three digits for each vehicle, for example; AB – Represent State Code. 12 Registration District Code. TC.1 Trade Certificate number for the vehicle. Now, we look into Form 16. Form 16 is issued under Rule 34 (1), application for the grant or renewal of a trade certificate. Serial No. 4 in Form 16 is whether the applicant is a manufacturer or dealer in motor vehicles approved repairer of vehicles, engaged in building bodies of vehicles, engaged in the business of hire purchase/ lease/ hypothecation vehicles. This shows that the trade certificate can be obtained by an approved repairer of vehicles. It is not necessary that he should e a manufacturer. Clause (6) requires the motor vehicle belongs to which owner. This certificate is issued in Form 17. Thus, it cannot be said that a trade certificate can be held only by a person after getting authorization from the manufacturer. According to us, the appellant is entitled to get trade certificate, as he is a dealer in motor vehicles being the repairer of motor vehicles or in the alternate hypothecation or hire purchase of motor vehicles. We set aside the impugned judgment of the leaned single Judge and direct the Authorities to issue trade certificate in accordance with the above directions. We set aside the impugned judgment of the leaned single Judge and direct the Authorities to issue trade certificate in accordance with the above directions. Writ Appeal is allowed.