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Allahabad High Court · body

2008 DIGILAW 944 (ALL)

KHATEEB AHMAD v. STATE OF U P

2008-04-25

RAJIV SHARMA

body2008
RAJIV SHARMA, J. Heard Sri Arif Hasan, Counsel for the petitioner and Sri Rakesh Srivastava, Standing Counsel for the State. 2. It is stated by the petitioners Counsel that the petitioner had pur chased a second hand Maruti Van bearing registration No. U. P.-32-A-5958 from its registered owner Mohd. Rizwan after verifying the antecedents from the transport department. The Regional Transport Officer, Lucknow informed that there is no legal impediment in transfer of the vehicle, and as such the same was transferred in the name of the petitioner. 3. Petitioners Counsel submit that all of a sudden, on 14th July, 2003, the police of P. S. Ashiyana, Lucknow came to the petitioners place and demanded the documents of the vehicle, which the petitioner showed to him, but instead of returning the same they took the appears with them and asked the peti tioner to come at the police station alongwith the vehicle. At the police sta tion, he came to know that the vehicle was involved in carrying the illicit liquor for which a case No. 121 of 2001 under section 60 of the Excise Act was registered against the original owner of the vehicle, namely, Vinod Kumar Singh against whom notice was also issued by the District magistrate under section 72 of the Act, but said Vinod Kumar Singh did not furnish any reply and allowed the proceedings to go ex-parte as he had already sold the said vehicle to one S. K. Srivastava. It may be mentioned that S. K. Srivastava sold the vehicle to one Mohd. Rizwan on 22. 2. 2002, who, in turn, sold the same to the petitioner on 15th February, 2003. 4. Aggrieved by the action of the District Magistrate and opposite party No. 4, the petitioner field a statutory appeal under section 72 (7) of the U. P. Excise Act before the District Judge, Lucknow, who directed that before confis cation and auction, the petitioner be afforded an opportunity and disposed of the appeal by the order dated 23. 5. 2003. Thereafter the petitioner submitted a detailed representation to the District Magistrate, Lucknow, and prayed to re call the order of confiscation but the same was declined by the order dated 6. 4. 2004. Against the order dated 6. 8. 2004, the petitioner again preferred an appeal but the same was dismissed by the judgment and order dated 1. 10. 2004. 5. 4. 2004. Against the order dated 6. 8. 2004, the petitioner again preferred an appeal but the same was dismissed by the judgment and order dated 1. 10. 2004. 5. It is contended by the learned Counsel for the petitioner that the District magistrate as well as appellate authority committed manifest error of law and facts in not considering the entire materials on record and had not ap plied their independent mind. The petitioner has purchased the vehicle after verifying the authenticity of the documents from the Transport Department and there was no caution marked or embargo in respect of the said vehicle and the same was duly transferred and recorded in the name of the petitioner on 15th February, 2003. The proper course available to the opposite party No. 2 and the police was to proceed against Vinod Kumar Singh, who was the origi nal owner of the vehicle, if he had committed any offence and not against the petitioner. 6. Learned Counsel for the petitioner next contended that the confiscation order has been passed by the District Magistrate under the impression that Vinod Kumar Singh, who was involved in the trade of illicit liquor, is the owner of the vehicle in question without ascertaining the fact that he has sold the vehicle to S. K. Srivastava, who in turn sold the same to Mohd. Rizwan and from Mohd. Rizwan, the vehicle was purchased by the petitioner. He further submitted that inspite of knowledge to the District Magistrate that Vinod Kumar Singh was involved in the commission of offence, no proceedings were initiated against him. 7. A counter-affidavit has been filed by the State denying the allega tions made in the writ petition. It is argued by the State Counsel that it was the duty of the petitioner to verify the antecedents of the vehicle from the ev ery police station of the city. Neither the petitioner made any verification from the police nor made any publication in the newspapers regarding the pur chase of the vehicle in question. He further submitted that during the course of investigation of Case Crime No. 121 of 2001 it was detected that vehicle in question was involved in commission of the said offence. 8. Neither the petitioner made any verification from the police nor made any publication in the newspapers regarding the pur chase of the vehicle in question. He further submitted that during the course of investigation of Case Crime No. 121 of 2001 it was detected that vehicle in question was involved in commission of the said offence. 8. Section 50 of the Motor Vehicles Act, 1988 and the Rule 55 of the Motor Vehicles Rules, 1989 deals with the transfer of ownership of a vehicle and are being reproduced here in under :- "section 50 : Transfer of ownership.- (1) Where the ownership of any motor vehicle registered under this chapter is transferred,- (a) the transferor shall- (i) in the case of a vehicle registered within the same State, within four teen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as my 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 (ii) in the case of a vehicle registered outside the State, within forty-five days of the transfer, forward to the registering authority referred to in sub-clause (i)- (A) the no objection certificate obtained under section 48; or (B) in a case where no such certificate has been obtained,- (I) the receipt obtained under sub-section (2) of section 48; or (ii) the postal acknowledgment received by the transferee if he has sent an application in this behalf by registered post acknowledgment due to the registering authority referred to in section 48, together with a dec laration that he has not received any communication from such author ity refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted; (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 particu lars of the transfer of ownership may be entered in the certificate of registration. (2) Where- (a) the person in whose name a motor vehicle stands registered dies, or (b) a motor vehicle has been purchased or acquired at a public auction con ducted by, or on behalf of, Government, the person succeeding to the pos session of the vehicle or, as the case may be, who has purchased or ac quired the motor vehicle, shall make an application for the purpose of transferring the ownership of the vehicle in his name, to the register ing authority in whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may he, in such manner, accompanied with such fee, and within such period as may be prescribed by the Central Government. (3) If the transferor or the transferee fails to report to the registering authority the fact of transfer within the period specified in Clause (a) or Clause (b) of sub-section (1), as the case may be, or if the person who is re quired to make an application under sub-section (2) (hereafter in this sec tion referred to as the other person) fails to make such application within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the transferor or the transferee, or the other person, as the case may be, to pay, in lieu of any action that may be taken against him under section 177 such amount not exceeding one hundred rupees as may be prescribed under sub- section (5): Provided that action under section 177 shall be taken against the trans feror or the transferee or the other person, as the case may be, where he fails to pay the said amount. (4) Where a person has paid the amount under sub-section (3), no action shall be taken against him under section 177. (5) For the purposes of sub-section (3), a State Government may pre scribe different amounts having regard to the period of delay on the part of the transferor or the transferee in reporting the fact of transfer of ownership of the motor vehicle or of the other person in making the application under sub- section (2 ). (6) On receipt of a report under sub-section (1), or an application under sub-section (2), the registering authority may cause the transfer of owner ship to be entered in the certificate of registration. (6) On receipt of a report under sub-section (1), or an application under sub-section (2), the registering authority may cause the transfer of owner ship to be entered in the certificate of registration. (7) A 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. Rule 55-Transfer of ownership.- (1) Where the ownership of a motor vehicle is transferred, the tranferor shall report the fact of transfer in Form 29 to the registering authorities concerned in whose jurisdiction the transferor and the transferee reside or have their place of business. (2) An application for the transfer of ownership of a motor vehicle un der sub-clause (i) of Clause (a) of sub-section (I) of section 50 shall be made by the transferee in Form 30, and shall be accompanied by- (3) An application for transfer of ownership of a motor vehicle under sub-clause (ii) of Clause (a) of sub- section (1) of section 50 shall be made by the transferee in Form 30 and shall, in addition to the documents and fee re ferred to in sub-rule (2), be accompanied by one of the following documents, namely :- (a) a no-objection certification granted by the registered authority under sub-section (3) of section 48; or (b) an order of the registering authority refusing to grant the no-objection certificate under sub-section (3) of section 48; or (c) where the no objection certificate or the order, as the case may be, has not been received, a declaration by the transferor that he has not re ceived any such communication together with- (i) the receipt obtained from the registering authority under sub-section (2) of the section 48; or (ii) postal acknowledgment received from the registering authority where the application is for no objection certificate has been sent by post. " 9. A perusal of the aforesaid provisions shows that while transfer of ownership the requirement is that the transferor shall report the fact of trans fer in Form 29 to the registering authorities concerned where the transferor and the transferee reside or have their place of business. Another requirement is that the application for transfer of ownership shall be accompanied by the cer tificate of registration, the certificate of insurance and the prescribed fee. Another requirement is that the application for transfer of ownership shall be accompanied by the cer tificate of registration, the certificate of insurance and the prescribed fee. Thus, the there is no requirement in the above provisions that a purchaser of the vehicle is under an obligation to make verification from the each police station of a district or publishing a notice in a newspaper showing intention to purchase the vehicle. The authorities cannot insist or compel to do certain things which are not provided under the relevant Act and Rules. 10. Therefore, the assertion of the Standing Counsel that the petitioner has not made any verification from the police nor made any publication in the newspapers regarding the purchase of the vehicle in question is misconceived as there is no such requirement under law. 11. Having considered the submissions of the learned Counsel for the par ties, I am of the opinion that the competent authority from whom, a purchaser should make verification before purchase of vehicle, is the Regional Transport Officer or Additional Regional Transport Officer, as the case may be. The Regional Transport Officer or Additional Regional Transport Officer issues the registration certificate wherein the name of owner is mentioned. He is the com petent authority to transfer the vehicle from one person to another after com pletion of necessary formalities in a requisite format. In the instant case, it is the definite case of the petitioner that he has purchased the vehicle after ascertaining the antecedents from the transport department, who informed that there is no legal impediment in transfer of vehicle and infact has also transferred the vehicle in the name of the petitioner on 15th February, 2003. 12. It is important to mention that the petitioner believing the fact that the vehicle was free from all encumbrances and there is no legal impediment in transfer of the vehicle, had purchased the vehicle which would be evident from the fact that at the time of recording the name of the petitioner as regis tered owner by the competent authority, no endorsement was made by the con cerned authority that the vehicle is mortgage or any loan has been taken against the same or the same is required in any criminal case. The finding recorded by the appellate authority that petitioner cannot be said to be the owner of the vehicle is wholly erroneous is the petitioners name has been recorded by the competent authority as registered owner. It is not the case of the respondents that the transfer certificate is fictitious or forged one or the pe titioner concealed the material facts while getting the vehicle transferred in his name. 13. The petitioner had no reason at all to suspect that the vehicle which he has purchased was being used in transportation of illicit liquor by the ear lier owner, it would be, I think, very hard on the petitioner to have his car con fiscated. A conveyance or vehicle ought not to be confiscated unless the owner know or had reason to believe that his vehicle was being used for such a pur pose. This is the fair test for the Magistrate to apply when he has to consider whether or not he should order the confiscation of the vehicle. As the District Magistrate has not considered this, I think his order should be set-aside. 14. In view of the above, the writ petition is allowed in part. The order dated 6th August, 2004 passed by the District Magistrate and the judgment and order dated 1. 10. 2004 passed in Civil Appeal No. 112 of 2004 is hereby set-aside. However, it will be open for the District Magistrate, Lucknow, to pro ceed against Vinod Kumar Singh, who was the original owner of the vehicle and recover the amount from him. The petitioner shall not be harassed in any manner in connection with the said vehicle. 15. Before parting with, I would like to mention that every day vehicles are purchased and transferred from one person to another by the registering au thority. It appears that the registering authority has no information that ve hicle which he is going to transfer is required in connection with any offence or some proceedings are pending against the said vehicle. Therefore, it would be appropriate that the Director General of Police, U. P. , Lucknow, issues a circu lar to all the police chiefs of the district and other concerned authorities that whenever any vehicle is required in connection with any offence, they should immediately inform the registering authority concerned. Therefore, it would be appropriate that the Director General of Police, U. P. , Lucknow, issues a circu lar to all the police chiefs of the district and other concerned authorities that whenever any vehicle is required in connection with any offence, they should immediately inform the registering authority concerned. In the circular letter it should also be mentioned that the Station Officer/station House Officer shall report the involvement of vehicle to the Circle Officer or any authority not below the rank of Deputy Superintendent of Police, who shall after being satisfied about the involvement of such a vehicle in any crime shall intimate the registering authority concerned. The registering authority, in turn, shall make an entry in his record and shall also make a caution/endorsement while transferring the vehicle that the vehicle is required in connection with an of fence or proceedings. I think that this will avoid not only unnecessary compli cations to a bona fide purchaser but litigations too. Information to this effect should also be made available on the official website of the department con cerned. 16. The Registrar of the Court shall send a copy of this order to the Director General of Police, U. P. Lucknow and the Transport Commissioner, U. P. Lucknow for necessary action. Petition Partly Allowed. .