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2009 DIGILAW 15 (CAL)

Upendra Kumar Panday v. STATE OF WEST BENGAL

2009-01-14

JAYANTA KUMAR BISWAS

body2009
ORDER :- The petitioner in this writ petition dated January 30th 2006 is seeking the following orders : (i) a mandamus (directing the respondents to take possession of vehicle No. WB-25/5439 and give it back to him; (ii) a mandamus directing the second and third respondents to restore his name to the certificate of registration of the vehicle. 2. The following are the undisputed facts. In the certificate of registration dated August 14th, 1996, at p. 19, the petitioner was shown as the registered owner of the vehicle, and name of the 'fifth respondent, M/s. Kotak Mahindra Finance Limited, was specified as the person with whom he had entered into a hire purchase agreement. The financier alleged that the petitioner failed and neglected to repay the loan in terms of the hire purchase agreement and it took possession of the vehicle a truck, on June 17th 1999. By a notice dated August 13th, 1999, at p. 25, issued under S. 51 (5) of the Motor Vehicles Act, 1988, the Registering Authority, North 24-Parganas, Barasat called upon the petitioner to show cause why the vehicle should not be registered in the name of the financier. There is nothing to show that in exercise of power under S. 51 (5) the Registering Authority cancelled the certificate dated August 14th, 1996, and issued a fresh certificate of registration in the name of the financier. Alleged that the financier illegally sold the vehicle to one Pradeep Rastogi, the sixth respondent, and that the Registering Authority wrongfully registered the vehicle in Rastogi’s name, the petitioner moved W.P. No. 12446(W) of 2000 that was disposed of by order dated August 22nd, 2000, at p. 35. Registration in Rastogi's name was cancelled by the order. However, name of the petitioner as the registered owner was not restored to the certificate of registration maintained by the Registering Authority. Under the circumstances, seeking the above mentioned reliefs the petitioner took out the writ petition. 3. As to possession of the vehicle, Mr. Bhattacharyya, counsel for the petitioner submits that since the financier forcibly took possession of the vehicle, a mandamus should be issued directing it to return the vehicle to the petitioner. I do not see how the petitioner can seek a mandamus against the financier which is a private person. 3. As to possession of the vehicle, Mr. Bhattacharyya, counsel for the petitioner submits that since the financier forcibly took possession of the vehicle, a mandamus should be issued directing it to return the vehicle to the petitioner. I do not see how the petitioner can seek a mandamus against the financier which is a private person. Whether possession of the vehicle was forcibly taken by the financier is a question that cannot be decided by me sitting in writ Court. The financier has not admitted that it wrongfully took possession of the vehicle. True it is that it has not filed any opposition to the writ petition, But that does not improve the case of the petitioner who is required to prove the existence of the asserted fact by giving oral and documentary evidence. Simply on the basis of his allegation a finding on the question cannot be given by me. Correctness of the allegation can be decided, in my opinion, only by the appropriate civil and criminal Courts after recording oral and documentary evidence. I have not been shown any provision that casts any obligation on any authority or the State to recover possession of the vehicle from the financiar and give it to the petitioner. Hence I do not see how the petitioner can seek a mandamus for the purpose against the authority or the State. 4. In so far as the question of restoration of the name of the petitioner to the certificate of registration as the registered owner is concerned, I am of the view that he has made out a case for getting the relief. After taking possession of the vehicle, it is apparent from the undisputed facts, the financier gave possession thereof to Rastogi in whose name it was registered. The process was carried out in contravention of the provision of S. 51 (5) of the Motor Vehicles Act, 1988. The financier was not the registered owner, and so long, as a fresh certificate of registration was not issued in its name, it was not entitled to transfer the vehicle to Rastogi, because the certificate of registration issued by the Registering Authority in the petitioner's name, as appears from the records, was not cancelled by the authority. It is not the case of the respondents that the petitioner himself transferred the vehicle to Rastogi. It is not the case of the respondents that the petitioner himself transferred the vehicle to Rastogi. Registration effected in Rastogi's name was cancelled by this Court, and Rastogi never questioned the decision. Though he is a party to this case, he has chosen not to contest it. Hence the Registering Authority was under the obligation to restore the petitioner's name to his records once name of Rastogi was cancelled. But that was not done. Mr. Khan has said that the Registering Authority took necessary steps for correcting the records. 5. 'For these reasons, I dispose of the writ petition ordering as follows. As to possession of the vehicle, the petitioner will be at liberty to move the appropriate forum including the civil, and criminal Courts seeking appropriate relief. In so far as restoration of his name to the certificate of registration is concerned, I direct the Registering Authority to correct his records and issue an appropriate certificate to the petitioner showing that he is still the registered owner of the vehicle. These steps the Registering Authority shall take within three weeks from the date of communication of this order to him. Nothing in this order shall prevent the financier and the Registering Authority from initiating necessary proceedings for cancellation of registration in the petitioner's name and issuing a fresh certificate of registration in the name of the financier. Needless to say that if proceedings are initiated, then appropriate decision shall be given by the Registering Authority strictly in accordance with law. There shall be no order for costs. The application (CAN No. 2988 of 2007) taken out by the petitioner seeking interim order shall be deemed to be disposed of. 6. Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned. Order accordingly,