Gujarat High Court
Ahmedabad Used Car Dealers' Welfare vs State Of Gujarat & on 2 February, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/11474/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11474 of 2015
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AHMEDABAD USED CAR DEALERS' WELFARE
ASSOCIATION....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR RAMKRISHNA B DAVE, ADVOCATE for the Petitioner(s) No. 1
MR BHARAT VYAS, AGP ON ADVANCE COPY for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 02/02/2016
ORAL ORDER
Heard learned advocate Mr.Ramkrishna B. Dave for the petitioner and learned Assistant Government Pleader Mr.Bharat Vyas for the respondent authorities on the aspect of admission as well as interim relief.
2. The petitioner Association by filing the present petition has called in question the legality of Circular dated 12th June, 2013 issued by Regional Transport Officer, Ahmedabad, providing thereby that in the Form Nos.29 and 30 presented to the authority for the purpose of effecting transfer of a motor vehicle, signatures of transferor as well as transferee shall have to be notarised, without which transfer application will not be acted upon.
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3. Form Nos.29 and 30 are the prescriptions under Rule 55 of the Motor Vehicle Rules, 1989. The Rule 55 provides for transfer of ownership. It reads as under.
"55. Transfer of ownership.--(1) Where the ownership of a motor vehicle is transferred, the transferor 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 places of business.
(2) An application for the transfer of ownership of a motor vehicle under sub-clause (i) of clause (a) of sub-section (1) of section 50 shall be made by the transferee in Form 30, and shall be accompanied by--
(i) the certificate of registration;
(ii) the certificate of insurance; and
(iii) the appropriate fee as specified in rule 81.
(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 referred to in sub-rule (2), be accompanied by one of the following documents, namely:
(a) a no objection certificate granted by the registering 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 received any such communication together with--
(i) the receipt obtained from the registering authority under sub-section (2) of section 48; or
(ii) the postal acknowledgment received from the registering authority where the application for no objection certificate has been sent by post."
3.1 It is Section 50 of the Motor Vehicles Act, Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Feb 06 01:07:01 IST 2016 C/SCA/11474/2015 ORDER 1988 which deals with transfer of ownership. Sub- section (1) of Section 50 which is relevant, is extracted hereunder.
"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 fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may 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;
(II) the postal acknowledgment received by the transferor 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 declaration that he has not received any communication from such authority 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 particulars of the transfer of ownership may Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Feb 06 01:07:01 IST 2016 C/SCA/11474/2015 ORDER be entered in the certificate of registration."
4. The principal contention of the petitioner is that in requiring the transferor and transferee to submit transfer application along with their signatures notarised, the authority has travelled beyond the scope of the Rule and the Section. It was submitted that when Section 50 read with Rule 55 of the Rules prescribes the procedure as well as provides for the particulars to be submitted along with the application, insistence of notarising signature and the Circular in that regard cannot stand vice versa the Rule, and that it amount to adding or removing the statutory requirements by way of administrative Circular.
4.1 By filing affidavit-in-reply the Regional Transport Officer has defended the Circular mainly on the count that in Ahmedabad Region workload is heavy. Learned Assistant Government Pleader also submitted that therefore by prescribing the said requirement, authority wants to check mal-practices in the transfer which is also the reason given in the Circular in question.
5. Section 50 of the Act refer to hereinabove states that application for transfer shall be accompanied by certain documents. Production of the documents mentioned along with transfer application is a mandatory requirement. Therefore it could be prima- facie shown, and therefore successfully contended, that by virtue of the said requirement the verification of the relevant documents would take Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Feb 06 01:07:01 IST 2016 C/SCA/11474/2015 ORDER place and that by itself takes care of the apprehension about mischievous or mal-practiced transfers. As the Circular impugned talks of the same reason, it stands already supplied with by the Rule itself. The Circular prima-facie travels beyond the Section and the Rule. It was accordingly termed as ultra vires by the petitioner.
6. Noticeably, the Circular is issued by the Regional Transport Officer, Ahmedabad and it applies to the Ahmedabad Region only. Learned Assistant Government Pleader could not dispute that in the other region than Ahmedabad, no such requirement or Circular operates, and notarising the signature is not insisted upon. He, however, harped that especially looking to the large number of transfer applications being received in Ahmedabad region, the transport authority has thought it fit to issue the Circular. In order to show that Ahmedabad Region has workload, a statement giving number of transfer cases in Ahmedabad Region as well as other Regions is produced. The measures for tackling workload must be on administrative side only.
6.1 If the authority has issued the Circular only in the guise of workload, the Circular would fail to stand for a moment. However the Circular says that the object is to prevent fraudulent transfer by asking transferor and transferee to submit their application with their signatures notarised. As far as this aspect is concerned, submission of learned advocate for the petitioner could not be brushed aside lightly that it is not the transport authority which effects ownership Page 5 of 6 HC-NIC Page 5 of 6 Created On Sat Feb 06 01:07:01 IST 2016 C/SCA/11474/2015 ORDER but the transfer in law is under the Sale of Goods Act. Decisions in Shri Ratan Vs The State Transport Authority, Jaipur [AIR 1959 Rajasthan 175], Santakumari Vs R.T.O. and Registering Authority, Kozhikode [AIR 1976 Kerala 17] and Nemanna Yellappa Khanaji Vs Syndicate Bank, Ankola [AIR 1979 Karnataka 182] were relied on. The proposition laid down in the aforesaid judgments was fortified by the Apex Court in Industrial Credit and Development Syndicate Limited Vs Commissioner of Income Tax, Mysore [(2013) 3 SCC 541], in particular paragraph 28, to which the attention of Court was invited by learned advocate for the petitioner.
7. In the aforesaid view of the matter, a prima facie case is made out for admission of the petition. Therefore Rule, returnable on 23rd March, 2016. As far as interim relief is concerned, any relief or observation in favour of the petitioner in any nature would amount to allowing the petition at this stage, therefore interim relief cannot be granted. Hence not granted.
(N.V.ANJARIA, J.) Anup Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Feb 06 01:07:01 IST 2016