Rajesh Kumar vs Regional Transport Authority And Others

Sharad Kumar Sharma, J

Before dealing with the controversy which has been raised in the present writ petition, it becomes inevitable to avoid dealing with the facts as

involved in the writ petition.

The Facts as involved herein are that the petitioner has purchased a Truck No. HR 40 C 0225, bearing Engine No.80G628963788, bearing Chassis

No. 426031GRZ625582 from one Baljeet Singh-respondent No.5. The said sale of the truck has taken place on exchange of consideration of Rs.15.00

Lakhs on 20.12.2010 as consequence thereto a transfer letter was executed in favour of the petitioner. For the purpose of getting it registered and the

registered being transfer to Dehradun, the petitioner applied for transferring the vehicle before the Regional Transport Officer, Dehradun and it is his

case that alongwith the application for transfer of the registration in his name, he has submitted an application in prescribed format alongwith all the

relevant documents i.e. registration certificate, insurance and fitness etc. including the NOC which was issued from R.T.O., Haryana.

After processing the documents thus supplied by the petitioner and after verifying the NOC and other documents submitted by the petitioner for

transferring the Truck in his name, the registration certificate which has not been issued in favour of the petitioner though as per the petitioner’s

case, he had fulfilled all the formalities as contemplated under the Motor Vehicles Act, 1988 for transferring the ownership. The actual controversy

germinated when on a receipt of an unknown call, a first information report was registered against the petitioner and one another co-accused Mobeen

Ali in being Crime No. Nil of 2011 at ROP Premnagar, Police Station Cantt., District Dehradun under Section 41/102 Cr.P.C., later on the transfer of

said criminal case, it was registered as Case Crime No.155 of 2011/50 of 2011 under Section 420, 467 and 471 of IPC. As a consequence to the

registration of the said criminal case, the petitioner as well as co-accused were arrested, however, later on they were released on bail which has been

granted by Incharge Sessions Judge, Dehradun vide its order dated 11.01.2011. However, the investigation in pursuance of the Case Crime No. 155 of

2011/50 of 2011 proceeded with and after conducting the investigation, it is the case of the petitioner that a final report dated 21.03.2013 was

submitted by the Investigating Officer holding thereof that the petitioner happens to be the bonafide purchaser of the vehicle in question though at the

time when the petitioner’s application for transfer of ownership of the vehicle was being processed, the petitioner has also placed reliance upon

the information which was furnished from National Crime Records Bureau which provided and information to the effect that Truck in question is not

shown to have been involved in any criminal case. But still it is the case of the petitioner that the Regional Transport Officer had issued a show cause

notice on 15.12.2011 directing the petitioner to submit a reply within a period of one week assigning the reasons as to why his registration may not be

cancelled on the ground that NOC which has been obtained by him from Mewath, Haryana and placed where the truck was initially registered.

According to Regional Transport Officer’s Office, Dehradun would contended that no objection certificate was issued which constituted to be the

basis of issuance of the show cause notice ultimately the Registration Officer, Transport Department i.e. respondent No.3 by the impugned order

dated 04.01.2012 had cancelled the registration of the said truck on the ground as referred in the impugned order. On the ground that the Registering

Authority, Nooh, Mewath, Haryana has provided an information that no such NOC which has been appended by the petitioner alongwith the

application for transferring the registration was issued and if the impugned order was read in precision, the other reason which has been recorded

therein is that the NOC has been issued by mistake, these two aspects cannot run together either certificate is fraudulent and not issued by authority

or it has been issued by mistake in either of the circumstances, it has got all together different impact because if it has been issued wrongly then the

petitioner cannot be attributed to have been indulged in the commission of any offence in furnishing the NOC at the time of getting the vehicle

registered but in case if it has not been issued from the said office, then this action of cancellation of the registration would be justified.

On going through the impugned order, one fact which has also apparently revealed that it was rather the representative of Registration Office,

Derhadun who had visited the office of Registration Officer at Mewath for the purpose of procuring the relevant document while processing the

application of petitioner for registration of his Truck. Under these circumstances, the respondents ought not to have exercised its power by invoking

sub Section (5) of Section 55 of Motor Vehicles Act,1988 for cancelling the registration. Sub Section (5) of Section 55 of Motor Vehicles Act,1988

which empowers the Registering Authority who cancelled the registration, reads as under :-

55(5)

On a simpliciter reading, if the language used by the legislature is taken into consideration in an event, if the Registering Authority intends to

exercise the powers under sub Section (5) of Section 55 of the Motor Vehicles Act, 1988, he is bound to give the owner of the vehicle and an

opportunity of hearing and to make a such representation, as he may desire against the proposed action. The purpose of giving an opportunity of

hearing is not superficial in its intention. Opportunity and submission of the representation would ultimately, entail the consideration of the reasons

given therein at the time of taking of the action of cancelling the registration though herein show cause notice was issued to the petitioner on

15.12.2011 but in the impugned order dated 04.01.2012 it does not reflect that any of the grounds which has been taken by the petitioner in his reply

submitted to it on 23.12.2011 was ever taken into consideration. Hence the order dated 04.01.2012 suffers from the vices of non existence of the

ground taken for cancellation of the registration and secondly, it suffers from the vices of not considering the reply given by petitioner and recorded

findings on the same, consequently, the petitioner has preferred the present writ petition challenging the said judgment by filing the same on

22.05.2015.

At the time when the writ petition was being argued at admission stage, the respondents herein were noticed and they had put in appearance on the

date of hearing i.e. 25.05.2015. The coordinate Bench of this Court after hearing the counsel for the petitioner as well as respondents had directed the

respondents to file counter affidavit and notices were issued to the private respondents. The petitioner has taken steps for serving respondent No.5

and despite of service, respondent No.5, had not put in appearance and not filed any counter affidavit denying the counter averments.

The arguments as extended by learned counsel for the State is that apart from the facts which are narrated in the impugned order, the writ petition

would not be tenable because as against the order passed under sub Section (5) of Section 55 of the Motor Vehicles Act, 1988, the petitioner has got a

remedy for preferring a statutory appeal contemplated under Section 57 of the Motor Vehicle Act,1988 though apparently this contention raised by

learned Standing Counsel legally seems to be tenable but it was accepted that at the time when the writ petition itself was being considered at the

admission stage, this argument should have been extended which is not reflected to have been taken on the said date when the writ petition was

entertained and counter affidavit was called for.

It is settled proposition of law that the question pertaining to the tenability of the writ petition or any judicial proceedings before the Court which

lacks jurisdiction or there happens to be an alternative remedy available, the objection ought to have been raised at the first instance itself. Herein, in

the instant case after entertainment of the writ petition on 25.05.2015, the respondents have filed counter affidavit and they have supported the

reasoning which has been assigned in the impugned order pertaining the controversy which relates to issuance or non-issuance of NOC as issued by

Registering Authority, Mewath, Haryana. They have also simultaneously in para 18 have pleaded that the writ petition would not lie because there

happens to be a statutory remedy to be read with Rule 36 of the Motor Vehicle Rules, 2011.

This Court has called upon to answer two questions raised by the petitioner to the effect that looking to the circumstances and the reasoning which

has been assigned in the impugned order, it does not fall to be within the ambit of the condition which was a pre condition, which was required to have

been satisfied for the purposes of taking an action under Sub section (5) of Section 55 of the Motor Vehicles Act,1988 and hence, once the ingredients

of sub Section 5 of the Section 55 of the Act was not available in that eventuality the registration of the petitioner’s vehicle could not have been

cancelled by invoking the said provisions.

He has further submitted and pleaded that in view of reasoning which has been assigned in the impugned order, it is the self contradictory because

the stand taken by Registering Authority, Mewath, Haryana is to the effect that this certificate of NOC had been wrongly issued. This Court is of the

view that the aspects pertaining to the wrongful issuance of NOC or fraudulent issuance of the NOC have altogether a different impact, because, if

the authority takes the view that it was wrongly issued, then fraud cannot be attributed to the NOC and in that eventuality, the provisions of sub

section (5) of Section 55 of the Act,1988 will not be attracted.

His arguments to the effect that when the basic ingredients which are required to be satisfied for taking an action under sub section (5) of Section

55 of the Act,1988 itself was not available, then at this highly belated stage after a lapse of about four years from the date of institution of the writ

petition, he ought to be relegated on the ground of alternative remedy of preferring an appeal for the reason that as per finding which has been

recorded in the impugned order under challenge i.e. on 04.01.2015. There was no necessity of any factual appreciation of the controversy. In support

of his contention that an alternative remedy will not create an absolute bar. He has drawn the attention of this Court on the judgment as reported in

2004 (4) SCC 268 in the case of U.P.State Bridge Corporation Ltd and others Vs. U.P. Ray Setu Nigam S.Karamchari Sangh.

The issue pertaining to availability of remedy and maintainability of writ petition has been argued by the petitioner from the view point that the

exercise of jurisdiction under Article 226 of Constitution of India, despite of availability of an alternative remedy is based upon an absolute discretion

and as it was discretion of the Court itself. The same would be creating a bar in entertainment of the writ petition when only it entails an appreciation

of evidence.

In support of his contention he has placed reliance upon para 16 and 17 of the said judgment which read as under :

He submits that the said judgment was based altogether under a different set of circumstances wherein the controversy as involved therein, the

other parties were already relegated back to avail an alternative remedy, hence a distinct view in relation to the petitioner before the Hon’ble

Apex Court could not be taken and hence this judgment was based on alogether on a different premise. Another judgment on which he has placed

reliance as a judgment rendered by Allahabad High Court in Special Appeal No.1301 of 2012 in the case of Dhani Ram Vs. Chief Engineer Rajghat

Project and others wherein the Division Bench of Allahabad High Court while dealing with the issues where the writ petition was dismissed on the

ground of alternative remedy had also held that the concept of an alternative remedy ought not to be attracted as it does not absolutely create a bar in

entertaining the writ petition in view of the ratio as laid down in 1996 (2) UPLBC 56 wherein in para 10 of the said judgment following observation

was made by the Court :

10.

The Division Bench of Allahabad High Court has also placed reliance upon numbers of other judgment including the ratio propounded by UP Raj

Khanij Vikas Nigam and others reported in 2008 (12) SCC 675 wherein it was held that once the writ petition has been entertained and the

respondents were called upon to file a response, it had not prohibited the Court to address the writ petition on merits and it ought to be dismissed on

the ground of an alternative remedy. It has been held that an alternative remedy is not an absolute bar but it depends upon the facts and circumstances

as prevailing in each cases.

In the instant case and it would be apparent from the records also, the counter affidavit and rejoinder affidavit have been exchanged and writ

petition remained pending before this Court for almost now four years as such now relegating the petition to seek statutory alternative remedy would

be too harsh an action as in accordance with the judgment as reported in …………………………….

Once the Counter affidavit and rejoinder affidavit have been exchanged, the writ petition ought not to be dismissed on the ground of an alternative

remedy as it has been held out that the provisions of Article 226 of the Constitution of India is not intended to circumvent the statutory procedure

contemplated under the Act but simultaneously it has to be apparent in mind that such a restriction is not an absolute bar and particularly in those

circumstances where it does not entail an appreciation of evidence for adjudicating the lis.

An identical view has been expressed by yet another judgment of Allahabad High Court reported in 1998(2) UPLBEC 1154 in the case of

Diwakar Dutt Bhatt Vs Life Insurance Corporation of India wherein the High Court has held that an alternative remedy is nothing but has imposed the

restriction and it varies depending upon the circumstances of each cases and since the imposition of a bar on an alternative remedy is self imposed,

disciplined and restriction which the Court exercises, it ought to be pragmatic in nature, particularly, when it is being considered at a belated stage.

19, Considering the reasoning which has been assigned in the impugned order and also considering the ratio laid down by Allahabad High Court, when

the writ petition was entertained and the pleadings were exchanged, the writ petition ought not to be dismissed on the ground of an alternative remedy,

this Court proceeds to consider the impugned order on its merit as it has already been observed as above in accordance with the particulars which

have been provided by the petitioner for the purpose of registering the vehicle before Registering Authority alongwith the details and the information

which was supplied by the petitioner of non involvement of the vehicle in commission of any criminal offences and also the fact with regards that there

happens to be certain controversy pertaining to issuance of NOC by Registering Authority, Mewath, Haryana. The order cannot be sustained and

furthermore when the legislature under sub Section (5) of the Section 55 of the Act,1988 makes it mandatory for taking an action under said Section,

an opportunity of hearing is to be provided that would mean that opportunity of hearing will not be a superficial exercise but it should bea exercised

which should be based upon an application of mind by the authority concerned by considering the reply extended by the person to whom the show

cause notice has been issued. Once, the reply was submitted and covalence of the reply was not considered nor any finding has been recorded in that

regard, it would render the impugned order to be arbitrarily and without application of mind. Thus, writ petition succeeds and impugned order dated

04.01.2012 is quashed.

The Division Bench of Allahabad High Court in judgment reported in 1999 (2) JCLR 460 (All) Dr. Jan Kalyan Socieity U.P. in para 5 & 6 of the said

judgment has laid down that the existence of an alternative remedy will not come into play when the counter affidavit and rejoinder affidavit have been

exchanged.