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Usman Gani vs Registering Authority (District … on 29 April, 1986

Rajasthan High Court
Usman Gani vs Registering Authority (District … on 29 April, 1986
Equivalent citations: 1986 WLN UC 176
Author: S C Agrawal
Bench: S C Agrawal


JUDGMENT

Suresh Chand Agrawal, J.

1. This Special Appeal has been filed by the appellant Usman Gani against the order dated January 4, 1985, passed by the learned Single Judge whereby the writ petition filed by the appellant challenging the validity of the order dated July 30, 1983/August 1, 1983, passed by the Registering Authority (District Transport Officer) Udaipur respondent No. 1 (here in after referred to as the Registering Authority; has been dismissed.

2. The appellant is the owner of the Motor Vehicle (bus) bearing No. R.J.Y. 6095. In the registration certificate of (he said motor vehicle, it is recorded that the seating capacity of the said vehicle is 52 excluding driver and conductor. The appellant gave a notification dated February 28, 1983, under Section 32 of the Motor Vehicles Act, 1939 (Act No. V of 1939) (here in after referred to as the Act to the Registering Authority whereby he intimated that he was a registered owner of the vehicle No. R.J.Y. 6095 with the seating capacity of 54 in all and that too for the convenience of the passengers and the travelling public, he wanted to reduce the seating capacity of 40 in all and he, therefore, requested the Registering Authority to sanction alteration in the motor vehicle to this effect as its seating capacity is reduced from 54 to 40. The said notice was delivered by the appellant to the respondent on March 1, 1983. No reply was received by the appellant from the respondent to the said notice within 7 days. Thereafter the appellant made the proposed alterations in the motor vehicle and reduced the total number of seats from 54 to 40. The said alteration was completed by him on July 31, 1983. Thereafter the appellant sent a letter dated July 14/16, 1883 to the Registering Authority intimating about the alteration that was made by him in the seating capacity of the motor vehicle and requested the respondent to make the necessary changes in the registration certificate of the said motor vehicle. By letter dated July 20, 1983 respondent questioned the right of the appellant to make alteration in the motor vehicle in the absence of specific permission in that regard and at the same time the appellant was asked to produce the vehicle for inspection by the Motor Vehicles Inspector within 7 days. Thereupon the appellant produced the motor vehicle for inspection on July 25,1983 and it was inspected by the Motor Vehicles Inspector who prepared the inspection report (Anx. R. 2). Thereafter the respondent passed the impugned order dated July 30, 1983/August 1, 1983 whereby the alteration made by the appellant in the vehicle for reducing the seating capacity from 54 to 40 was rejected on the ground that the said alteration was made without obtaining the approval under Section 32 of the Act and on inspection it was found that no change has been made in the body of the vehicle and, therefore, there was no justification for reducing the seating capactiy. Being aggrieved by the said order, the appellant filed the writ petition in the Court where in he prayed for a writ of certiorari or any other writ order, or direction to quash the impugned order dated July 30, 1983/ August 1,1983 passed by the respondent and also prayed for quashing of the order by a writ of mandamus or” any other appropriate writ, order or direction, directing the respondent to make the necessary changes in the bus pertaining to the seating capacity of the petitioner’s vehicle No. RJY. 6095 from 54 to 40 in the registration certificate issued or by the said vehicle.

3. In the said writ petition notice was issued to the respondent requiring it to show cause as to why the writ petition be not admitted and in response to the said notice a reply to the writ petition was filed on behalf of the respondent. The appellant filed a rejoinder. At the request of the learned Counsel for both the parties, arguments on the writ petition were heard for the purposes of final disposal at the stage of admission, and arguments were heard on that basis. The learned Single Judge by his order dated January 4, 1985 dismissed the writ petition on the view that the respondent was not unjustified in reducing to accord permission for approval for reducing the seating capacity from 54 to 40 and that the impugned order cannot be said to be passed on irrelevant considerations and that on the contrary it was passed after taking into consideration the relevant factors for arriving at the decision and it would not be sound exercise of discretion to interfere with it under Article 226 of the Constitution.

4. Feeling aggrieved by the aforesaid order of the learned Single Judge the appellant has filed this Special Appeal.

5. Before we deal with the submissions of Shri R.N. Munshi, learned Counsel for the appellant and the learned Deputy Government Advocate, we may refer to the provisions contained in Section 32 of the Act, which reads as uhder:

32. Alteration in motor vehicle.–(1) No owner of a motor vehicle shall so after the vehicle that the particulars contained in the certificate of registration are no longer accurate, unless–

(a) he has given notice to the registering authority within whose jurisdiction he resides of the alteration he proposes to make; and

(b) he has obtained the approval of the registering authority to make such alteration:

Provided that where the owner of the motor vehicle has not received any such communication within the said period of seven days, the approval of such authority to the proposed alteration shall be deemed to have been given.

(3) Not with standing anything contained in Sub-section (1), the State Government may by notification in the Official Gazette, authorise, subject to such conditions as may be specified in the notification, the owners of not less than ten transport vehicles to alter any vehicle owned by them so as to change its engine number by replacing the engine thereof without the approval of the registering authority;

(4) Where any alteration has been made in motor vehicle either with the approval of registering authority given or deemed to have given under Sub-section (2) or by reason of any change in its engine number without such approval under Sub-section (3) the owner of the vehicle shall, within fourteen days of the making of the alteration, report the alteration to the registering authority within whose jurisdiction, he resides and shall forward the certificate of registration to that authority together with the prescribed fee in order that particulars of the alteration may be entered therein;

(5) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority.

6. The case of the petitioner is that in view of the proviso to Sub-section (2). of Section 32 the approval of the respondent to the proposed alteration must be deemed to have been given because the respondent did not send any communication refusing his approval to the proposed alteration within the period of 7 days from March 1, 1983 the date of the receipt of the notice dated February 28, 1983 given by the appellant under Sub-section (1) of Section 32 of the Act. The learned Single Judge appears to have rejected the said contention of the appellant on the view that after the service of the notice under Section 32(2) of the Act, the seating capacity was not reduced from 54 to 40 within a reasonable time, and the case of the appellant is that he completed this work by July 13. 1.983 and he reported about the alteration on July 16, 1983. The learned Single Judge has also referred the submissions urged on behalf of the respondent that there was no alteration in the motor vehicle within the meaning of Section 32 of the Act. Since there was no change in the body and the original chasis was the same as was existing at the time of the registration of the vehicle and further that the seating capacity as per the alteration was not in accordance with Rule 182(2) of the Rajasthan Motor Vehicles Rules, 1951.

7. Shri Munshi has submitted that the alteration in the seating capacity was covered by Section 32 of the Act and since no communication was sent by the respondent within a period of 7 days from the date of the receipt of the notice given by the appellant, the appellant was entitled to take the benefit of the proviso to Sub-section (2) of Section 32 of the Act and that the learned Single Judge was not right in holding that the appellant cannot take advantage of the said proviso because he had not made proposed alteration within a reasonable time from the date of the service of the notice. In this connection Shri Munshi has also submitted that there is no requirement in the Act or in the Rules where under the appellant was required to complete the alteration within a particular period after giving of the notice under Section 32(2) of the Act and the learned Single Judge has erred in reading such a requirement and in holding that the appellant cannot taken any advantage of the proviso to Section 32(2) of the Act because he did not make the proposed alteration within reasonable time. Shri Munshi has also submitted that no such plea about the time of appellant having failed to carry out the propose alteration within reasonable time and for (hat reason he is not entitled to take the benefit of the proviso to Section 32(2) of the Act, was raised by the respondent in the reply and the appellant had thus no opportunity to meet this objection. The learned Deputy Government Advocate has on other hand, supported the view of the learned Single Judge and has submitted that in view of the fact that 7 days’ time has been prescribed in Sub-section (2) of Section 32 forgiving reply to the notice given under Section 32(1) of the Act. It is implicit that the owner of the motor vehicle must carry out the necessary alteration within reasonable time from the expiry of the said period of 7 days. According to the learned Deputy Government Advocate the owner of the motor vehicle should carry out the proposed alteration within a period of one month thereafter and the said period of one month may be considered a reasonable time for carrying out the alterations and if the alteration is not carried out within that period, the benefit of the proviso cannot be taken by the owner of the motor vehicle.

8. With regard to the applicability of Section 32 of the Act to the present case, it may be mentioned that Section 32 speaks of alteration in the motor vehicle. In Sub-section (1) of Section 32 it is laid down that no owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate registration are no longer accurate unless he fulfils the conditions laid down in Clause (a) and (b) of the said sub-section. In other words Sub-section (1) of Section 32 postulates that any change which has the effect of rendering the particulars contained in the certificate of registration as no longer accurate would constitute alteration for the purposes of Section 32 of the Act. The certificate of registration of the Motor Vehicle RJY 6096 has been placed on record as Anx. 2 to the writ petition. In the detailed description of the vehicle the particulars at serial No. 10 relate to the seating capacity (including driver). In the registration certificate of the vehicle in question the words “52 Ex. D and C” are written at serial No. 10. Any increase or reduction of the seating capacity of the vehicle would have the effect of reducing the particulars about seating capacity contained in the certificate of registration. This would show that the alteration in the seating capacity of the vehicle would constitute an alteration falling within the ambit of Section 32 of the Act. In over view, therefore, the provision of Section 32 of the Act were applicable to the alteration in the seating capacity of the vehicle from 54 to 40 which was proposed by the appellant.

9. As regards the applicability of the proviso to Sub-section (2) of Section 32 of the Act may be stated that under the said proviso, it has been prescribed that where the owner of the motor vehicle has not received any communication as mentioned in Sub-section (2) of Section 32 within the period of 7 days of the receipt of the notice given by the owner of the motor vehicle under Sub-section (1) the approval of the registering authority to the proposed alteration shall be deemed to have been given. The object under lying Sub-section (2) and the proviso there to is to fix a maximum period of 7 days within which the registering authority should make-up its mind on the proposed alteration and if the registering authority fails to pass an order refusing the proposed alteration and communicate the same to the owner of the vehicle, the approval of the registering authority to the proposed alteration shall be assumed to have been granted. We are, however, unable to read in the provisions contained in Section 32(2) of the Act any obligation being imposed on the owner of the motor vehicle to carry out the proposed alteration within a particular time or within reasonable time. In the circumstances we are unable to agree with the view of the learned Single Judge that the appellant cannot take the advantage of the proviso to Sub-section (2) of Section 32 of the Act because he failed to carry out the proposed alteration with in a reasonable time after giving of the notice dated February 28, 1983 to him. In this connection we may also mention that in the present case the appellant had completed the alteration in the motor vehicle by July 13, 1983, i.e., in about 4 months after giving the notice dated February 28, 1983 and the said period of 4 months cannot be said to be an unreasonable period for carrying out the proposed alteration.

10. As regards the argument that the alteration in the seating capacity was not made in accordance with Rule 182(ii) of the Rajasthan Motor Vehicles Rules, it may be stated that the Inspection Report of the Motor Vehicles Inspector and the impugned order do not indicate as to way the alteration made by the petitioner in the seating capacity is not in accordance with the Rule 182(ii) of the Rajasthan Motor Vehicles Rules. The reply to the writ petition also does not throw any light on this matter. Under Rule 182(ii) it is prescribed that when the seats are placed across the vehicle and are facing in the same direction there shall be every where a clear space of not less than 27″ between the backs of the seats. It may be mentioned that the aforesaid requirement about the space between the backs of the seats is the minimum requirement and there is nothing to preclude the owner of the motor vehicle to provide for more space between the seats than that prescribed in Rule 182(ii) we are unable to appreciate as to how alteration in the seating capacity can be said to have been made in disregard of the provisions of Rule 182(ii) of the Motor Vehicles Rules.

11. In the order the learned Sessions Judge has also taken a note of the submission made by the learned Counsel on behalf of the respondent that the vehicle of the appellant was checked on July 7, 1983 and at that time 85 passengers were in the bus and out of them 25 were sitting on the roof. In this connection, Shri Munshi has invited our attention to the copy of the challan which is filed as Anx B 1 to the reply filed on behalf of the respondent in the writ petition to show that the inspection was not made on July 7, 1983 but was made on August 7, 1983 after the passing of the impugned order. Shri Munshi has also submitted that nothing has happened in the said challan and that the appellant has not been prosecuted on the basis of the said challan. In our opinion, the substance of the aforesaid contention of Shri Munshi that the inspection which forms the basis of the challan was made on August 7, 1983, i.e., after the passing of the impugned order of the registering authority and that so far the said challan has not led to the conviction of the appellant. In the circumstances the facts referred to in the said challan could not be of any relevance for the purpose of deciding the validity of the impugned order passed by the respondent.

12. For the reasons aforesaid, we are of the opinion that the order dated July 30, 1983/August 1, 1983 passed by the respondent rejecting the application of the appellant for making the necessary corrections about the seating capacity in the registration certificate cannot be upheld and must be set aside and the writ petition filed by the appellant must be allowed.

13. In the result the special Appeal succeed and the order passed by the learned Single Judge is set aside. The writ petition filed by the appellant is allowed and the order Anx. 8 dated July 30, 1983/August 1, 1983 passed by the respondent is quashed and the said respondent is directed to make the necessary changes in the particulars pertaining to the seating capacity of the petitioner’s vehicle No. RJ Y 6095 from 54 to 30 in the registration certificate in respect of the said vehicle issued in the name of the appellant. There is no order as to costs.

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