Karnataka High Court
M/S Jeevi Tours And Travels vs The Regional Transport Officer on 8 November, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:39927
WP No. 23641 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 23641 OF 2023 (MV)
BETWEEN:
M/S JEEVI TOURS AND TRAVELS
BY ITS PROPRIETRIX,
SMT NANDHINI,
AGED ABOUT 43 YEARS,
NO 7, 1ST CROSS,
100 FEET ROAD, SRINIVAGILU,
VIVEKNAGAR, BENGALURU 560047.
...PETITIONER
(BY SRI. B R SUNDARA RAJA GUPTA.,ADVOCATE)
AND:
1. THE REGIONAL TRANSPORT OFFICER
HASSAN 573201.
2. INSPECTOR OF MOTOR VEHICLES
OFFICE OF THE REGIONAL
Digitally TRANSPORT OFFICER, HASSAN 573201.
signed by
NARASIMHA
MURTHY
VANAMALA ...RESPONDENTS
Location:
HIGH
COURT OF
KARNATAKA
(BY SRI.BHOJEGOUDA T KOLLER., AGA FOR R1 AND
R2)
THIS WP IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE THE SEIZURE AND DETENTION OF THE
VEHICLE HAVING TEMPORARY REGISTRATION NO.
TO723KA2481D AS MARKED UNDER ANNEXURE-C AS
ILLEGAL AND WITHOUT AUTHORITY OF LAW.
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NC: 2023:KHC:39927
WP No. 23641 of 2023
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner's vehicle with temporary registration No.TO723KA2481D [vehicle] is seized by the second respondent, and the petitioner seeks declaration that such seizure and detention is illegal and without authority of law. It is undisputed that during the pendency of this petition, the second respondent has issued notice dated 12.10.2023 calling upon the petitioner to furnish documents such as registration certificate, insurance policy, tax paid receipts, permits and driver's driving license, etc., and in response, the petitioner has produced registration certificate, insurance policy, tax paid receipts and such other documents.
2. According to the petitioner, the vehicle with Chassis No.MC2P2HRT0PC525435 and Engine No.E426CDPC429094 was handed over to M/s.Gobind Motors, Barnala Road, Bhadaur, Punjab -3- NC: 2023:KHC:39927 WP No. 23641 of 2023 for construction of a body for a vehicle with sitting capacity of 33 + 1, and with the vehicle being ready for delivery, M/s Gobind Motors/petitioner have filed application for a Certificate of Temporary Registration [as contemplated under Section 43 of the Motor Vehicles Act, 1988] to get the vehicle to Bengaluru. This Certificate is issued on 14.07.2023, and the Certificate is valid for the period up to 13.08.2023. The petitioner also contends that the vehicle is insured, and such coverage is in force until 12.07.2024. This Court must observe that these circumstances seem to be undisputed at this point of time.
3. The petitioner further contends that on 29.07.2023, when the vehicle was in Hassan enroute to Bengaluru, it was checked and found that the driver of the vehicle was carrying 30 passengers. However, the second respondent, opining that the vehicle was being plied to transport the passengers -4- NC: 2023:KHC:39927 WP No. 23641 of 2023 without registration and permit, has detained the vehicle. Sri B.R. Sundara Raja Gupta, the learned counsel for the petitioner, and Sri Bhojegouda T. Koller, the learned Additional Government Advocate, are heard in view of the petitioner's grievance with the seizure and detention of the vehicle in the light of the provisions of Sections 192 and 192A of the Motor Vehicles Act, 1988 [for short, 'the MV Act'].
4. The provisions of Section 39 of the MV Act prohibits the use of a motor vehicle unless it is registered in accordance with the Chapter IV of the MV Act, but if a motor vehicle is in the possession of a dealer1, the provisions of Section 39 will not apply but subject to the prescribed provisions.
"39. Necessity for registration: No person shall drive any motor vehicle and no owner of a 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 1 A 'dealer' is defined under Section 2[8] of the MV Act as a person who is engaged inter alia in 'building bodies for attachment to chassis'.-5-
NC: 2023:KHC:39927 WP No. 23641 of 2023 accordance with this Chapter 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:
Provided 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".
5. If the provisions of Section 40 of the MV Act stipulate where the registration is to be made, provisions of Section 41 of the MV Act stipulate the procedure to be followed for registration [Registration, how to be made] of the vehicle, and the provisions of Section 43 of the MV Act contemplate temporary registration.
"43. Temporary registration.-- Notwithstanding anything contained in section 40, the owner of a motor vehicle may apply to any registering authority or other authority as may be prescribed by the State Government to have the motor vehicle temporarily registered and such authority shall issue a temporary certificate of registration and temporary registration mark in -6- NC: 2023:KHC:39927 WP No. 23641 of 2023 accordance with such rules as may be made by the Central Government:
Provided that the State Government may register a motor vehicle that plies, temporarily, within the State and issue a certificate of registration and registration mark for a period of one month in such manner as may be prescribed by the State Government."
6. It follows from these provisions that a State Government can issue a temporary Certificate of Registration for temporary use [plying] of the vehicle within its territory, and such License will be valid for a period of 30 [thirty] days. When an application for Certificate of Registration is filed, a copy of the temporary Certificate of Registration [if there is] must be filed as required under the provisions of Rule 47[1][f] of the Central Motor Vehicles Rules,1989 [for short, the CMV Rules] in the prescribed Form. The provisions of Rule 36 of the Karnataka Motor Vehicles Rules ,1989, which prescribes the procedure for issuance of temporary -7- NC: 2023:KHC:39927 WP No. 23641 of 2023 Certificate of Registration supplement the provisions of Section 41 of MV Act and Rule 47 of the CMV Rules. As such, the significance of the temporary Certificate of Registration cannot be undermined and must be considered.
7. If a motor vehicle is used without registration as prescribed under Section 39 of the MV Act, whoever so drives the motor vehicle, or who allows the vehicle to be so driven, will be liable for punishment as contemplated under the provisions of Section 192 of the MV Act, and for the first offence will be liable to pay a fine, which may extend to Rs.5,000/- but shall not be less than Rs.2,000/-. The provisions of Section 192 of the MV Act read as follows:
192:- Using the Vehicle without registration:-
(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two -8- NC: 2023:KHC:39927 WP No. 23641 of 2023 thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both:
Provided that the court may, for reasons to be recorded, impose a lesser punishment.
(2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injuries or for the transport of food or materials to relieve distress or of medical supplies for a like purpose:
Provided that the persons using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use2.
8. However, if the owner of the vehicle fails to make an application for Registration as contemplated under Section 41(1) of the MV Act, the punishment under the provisions of Section 192B [1] of the MV Act will be five times the annual road tax or one third of the lifetime tax of the motor vehicle whichever is 2 The provisions of Sub Clause (3) of this Section provides for varying or setting aside an order under Sub Clause (1). -9-
NC: 2023:KHC:39927 WP No. 23641 of 2023 higher, but when a dealer fails to make an application Section 41 [1] of the MV Act, the punishment will be fifteen times the annual road tax or one third of the lifetime tax of the motor vehicle whichever is higher. The punishment, when the owner or a dealer obtains a Certificate of Registration on the basis of documents that are false or otherwise dubious, will be either under Sub-clause [3] or Sub- clause [4]. The provisions of Section 192B[1] and [2], which are relevant for the present purposes, read as hereunder:
"192B. Offences relating to registration.--
(1) Whoever, being the owner of a motor vehicle, fails to make an application for registration of such motor vehicle under sub-section (1) of section 41 shall be punishable with fine of five times the annual road tax or one-third of the lifetime tax of the motor vehicle whichever is higher.
(2) Whoever, being a dealer, fails to make an application for the registration of a new motor vehicle under the second proviso to sub-section (1) of section 41 shall be punishable with fine of
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NC: 2023:KHC:39927 WP No. 23641 of 2023 fifteen times the annual road tax or the lifetime tax of the motor vehicle whichever is higher."
9. Sri B.R.Sundaja Raja Gupta submits that because temporary registration is taken as contemplated under Section 43 of the MV Act, the petitioner cannot be made liable under Section 192B of the MV Act which would be when no application for registration is filed, but the petitioner, without seeking to precipitate, will pay any fine that could be imposed under Section 192 of the MV Act. Sri.Bhojegouda T. Koller submits that in the circumstances of the case the second respondent proposes to initiate proceedings and impose punishment as is contemplated under Section 192B of the MV Act. This Court must observe that this presupposes, rather strangely, that the second respondent is persuaded that the petitioner is not guilty of any conduct that could be culpable and penalized under Section 192A of the MV Act, and hence the question is whether the second respondent
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NC: 2023:KHC:39927 WP No. 23641 of 2023 must proceed against the petitioner under Section 192 or 192B of the MV Act.
10. The peculiar circumstances of the case are considered as also the fact that the petitioner's vehicle has been detained for over a period of three months with the notice being issued only in the month of October 2023. The provisions of the MV Act contemplate temporary registration, and when a temporary registration is contemplated under the MV Act and it is also so taken, and if the vehicle so registered is used enroute to the place where the vehicle is to be registered as required under Section 39 read with Section 40 of the MV Act, it cannot reasonably be concluded that an offence is constituted under Section 192B of the MV Act on the ground that no application for registration is filed. In which event, the second respondent will have to examine whether the petitioner would be liable for consequences under Section 192 of the MV Act
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NC: 2023:KHC:39927 WP No. 23641 of 2023 unless it could be reasonably opined that, in the light of the provisions of Rule 47 CMV Rules, an application for Certificate of Registration was belated as of the date of the detention, in which event Section 192B of the MV Act may have to be invoked. The second respondent, an officer who must decide on these aspects, must be called upon to so decide in a time bound manner and when queried, Sri.Bhojegouda T. Koller submits on instruction that the proceedings would be completed within a period of one week from today. In the light of the foregoing, the following:
ORDER [a] The petition is allowed directing the second respondent to consider the petitioner's representation/submission in response to the notice dated 12.10.2023 in the light of the provisions of Section 192 of the MV Act and Section 192B of the MV Act in the
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NC: 2023:KHC:39927 WP No. 23641 of 2023 light of this Court's observation and conclude the proceedings on or before 28.11.2023.
[b] The petitioner shall be at liberty to file a certified copy of this order/temporary registration/insurance policy/driver's license with the second respondent as early as possible. It is needless to observe that if any other action is contemplated in law, this order shall not preclude the same.
Sd/-
JUDGE SA ct:sr