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Salim Asgar v/s State of U.P.

    C.M.W.P. No. 25881 of 2013

    Decided On, 18 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE PANKAJ NAQVI

    For the Appellant: Aashish Srivastava, Advocate. For the Respondent: N.K. Chaturvedi, Advocate.



Judgment Text

Pankaj Naqvi, J.

1. Heard Sri Aashish Srivastava, learned counsel for the petitioner, Sri N.K. Chaturvedi, learned counsel for respondent No. 4 and learned standing counsel for the State.

2. By means of present petition, petitioner challenges the correctness of order dated 17.4.2012 passed by Assistant Regional Transport Officer (Administration) Budaun and order dated 14.9.2012 passed by the appellate authority dismissing the appeal of the petitioner.

3. Brief facts as stated in the petition are real elder brother of petitioner, i.e., Aslam Asgar alias Guddu (deceased) was married to respondent No. 4/Smt. Rehana Khanam. It appears that name of the said deceased was recorded as a registered owner of the vehicles. But after the death of the deceased, i.e., Aslam Asgar alias Guddu on 25.2.2011, a dispute arose as regards the inheritance/succession in respect of the estate including the vehicles held by the deceased between the petitioner and widow/respondent No. 4. This compelled the petitioner to file a suit for declaration and injunction, i.e., O.S. No. 328/2011 against respondent No. 4 and another in the court of Civil Judge (Senior Division), Budaun on 28.5.2011. It further appears that by letter dated 2.6.2011, petitioner apprised the A.R.T.O., Budaun that as respondent No. 4 is contemplating to dispose of the vehicles in question and also in view of the fact that the petitioner has filed a suit for declaration and injunction

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, no sale/transfer of the said vehicles be entertained. It is alleged that in retaliation to the aforesaid request, respondent No. 4 lodged a first information report against the petitioner and his sisters under Sections 147, 323, 379, 406, 504 and 506, I.P.C. on 24.8.2011 in Case Crime No. 3158 of 2011 at police station-Civil Lines, Budaun. It also appears from the record that in view of the dispute with regard to the ownership/possession of the vehicles in question, the said vehicles landed at the police station. Respondent No. 4 filed an application before the Chief Judicial Magistrate, Budaun in the aforesaid criminal case on 8.9.2011 for release of two vehicles, i.e., Vehicles No. U.P.66-C-9785 and H.R.38-H-7485 on the ground that she is the widow of the deceased. It also appears that the petitioner submitted yet another application before the A.R.T.O., Budaun on 19.9.2011 requesting the authority not to pass any order of transfer of vehicle in favour of respondent No. 4 without hearing them and without the decision of the civil court. However, the learned Chief Judicial Magistrate, Budaun on 31.1.2012 disposed of the application for release of vehicles filed by respondent No. 4, on the ground that as the earlier registered owner is dead, the owner of the vehicle may apply for transfer of ownership before the registering authority in accordance with Section 50(2) of the Motor Vehicles Act, 1988, thereafter it would be open for the said owner to apply afresh for release of the said vehicle. Thereafter, respondent No. 4 filed an application in (Form-31) before respondent No. 3/Registering Authority under Rule 56(2) of the Central Motor Vehicles Rules, 1989 for registration of the vehicles in question in her name on 14.2.2012. The registering Authority transferred the said vehicles in favour of respondent No. 4 on 17.4.2012. On a query, made by the petitioner under Right to Information Act, 2005, the petitioner was intimated by letter dated 17.4.2012 that the vehicles have been transferred in compliance to order dated 31.1.2012 passed by the Chief Judicial Magistrate, Budaun in Case Crime No. 3158 of 2011. The petitioner preferred an appeal against the order of transfer of vehicles in favour of respondent No. 4 before the appellate authority on 2.5.2012, which came to be dismissed on 14.9.2012. It is further alleged that a first information report has been lodged by one Dr. Ifat Asgar daughter of Ali Asgar on 11.10.2012 alleging that respondent No. 4 killed her husband Aslam Asgar alias Guddu, the deceased in which a criminal trial is going on.

4. The sheet-anchor of Sri Srivastava, learned counsel for the petitioner is that as the application for transfer of the vehicles was not filed within the stipulated period provided under Rule 56 of the Central Motor Vehicles Rules, 1989, on the contrary the same was filed after almost a year, the application itself was not maintainable. He further submits that in view of the pendency of a civil suit for declaration and injunction filed by the petitioner, the registering authority had no Jurisdiction to entertain an application for transfer on behalf of respondent No. 4. He finally submitted that there is no order of learned Chief Judicial Magistrate dated 31.1.2012 directing the transfer of ownership of the vehicles in favour of respondent No. 4.

5. Section 50 of the Motor Vehicles Act, 1988 provides transfer of ownership. Section 50 is quoted hereinbelow:

"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 u/s 48; or

(B) in a case where no such certificate has been obtained--

(I) the receipt obtained under sub-section (2) of Section 48; or

(II) the postal acknowledgement received by the transferor if he has sent an application in this behalf by registered post acknowledgement 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 be entered in the certificate of registration.

(2) Where--

(a) the person in whose name a motor vehicle stands registered dies, or,

(b) a motor vehicle has been purchased or acquired at a public auction conducted by, or on behalf of, Government, the person succeeding to the possession of the vehicle or, as the case may be. who has purchased or acquired the motor vehicle, shall make an application for the purpose of transferring the ownership of the vehicle in his name, to the registering authority in whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, in such manner, accompanied with such fee, and within such period as may be prescribed by the Central Government.

(3) If the transferor or the transferee fails to report to the registering authority the fact of transfer within the period specified in Clause (a) or Clause (b) of sub-section (1), as the case may be, or if the person who is required to make an application under sub-section (2) (hereafter in this section referred to as the other person) fails to make such application within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the transferor or the transferee, or the other person, as the case may be, to pay, in lieu of any action that may be taken against him u/s 177 such amount not exceeding one hundred rupees as may be prescribed under sub-section (5):

Provided that action u/s 177 shall be taken against the transferor or the transferee or the other person, as the case may be, where he fails to pay the said amount.

(4) Where a person has paid the amount under sub-section (3), no action shall be taken against him u/s 177.

(5) For the purposes of sub-section (3), a State Government may prescribe different amount having regard to the period of delay on the part of the transferor or the transferee in reporting the fact of transfer of ownership of the motor vehicle or of the other person in making the application under sub-section (2).

(6) On receipt of a report under sub-section (1), or an application under sub-section (2), the registering authority may cause the transfer of ownership to be entered in the certificate of registration.

(7) A registering authority making any such entry shall communicate the transfer of ownership to the transferor and to the original registering authority, if it is not the original registering authority."

6. A perusal of sub-section (2) (a) of Section 50 of the Act would indicate that it provides that where a person, in whose name a motor vehicle stands registered, dies, the person succeeding to the possession of the vehicle shall make an application for the purpose of transferring the ownership of the vehicle in his name to the registering authority in whose jurisdiction, he has the residence or place of business, where the vehicle is normally kept, as the case may be, in such manner, accompanied with such fee and within such period, as may be prescribed by Central Government.

7. Sub-section (3) thereof also provides that a person, who is required to make an application under sub-section (2), if fails to make such an application within the prescribed period, the registering authority may having regard to the circumstances of the case, require such person to pay in lieu of any action that may be taken against him u/s 177 such amount not exceeding Rs. 100 as may prescribed under sub-section (5).

8. The Central Government has framed Rule 56 of Central Motor Vehicles Rules, 1989 which is reproduced hereinbelow:

"56. Transfer of ownership on death of owner of the vehicle.--(1) Where the owner of a motor vehicle dies, the person succeeding to the possession of the vehicle may for a period of three months, use the vehicle as if it has been transferred to him where such person has, within thirty days of the death of the owner informs the registering authority of the occurrence of the death of the owner and of his own intention to use the vehicle.

(2) The person referred to in sub-rule (1) shall apply in Form 31 within the period of three months to the said registering authority for the transfer of ownership of the vehicle in his name, accompanied by--

(a) the appropriate fee as specified in Rule 81;

(b) the death certificate in relation to the registered owner;

(c) the certificate of registration; and

(d) the certificate of insurance."

A bare perusal of sub-rule (2) of Rule 56 would reflect that a power is conferred upon a person, who is seeking a transfer on the basis of ownership of the death of the owner of the vehicle to apply in Form-31 within a period of three months before the registering authority for transfer of ownership of the vehicle in his name, which is to accompany an appropriate fee, death certificate of the registered owner, the certificate of registration and the certificate of insurance.

9. Thus, considering the language employed in sub-section (3) of Section 50 of the Act and Rule 56, the court has no hesitation in holding that an application for change of ownership on the basis of the death of the original registered owner may be entertained even after three months of the death of the registered owner. The only restriction is that the registering authority having regard to the circumstances of the case may require such an applicant to pay an amount not exceeding Rs. 100, in lieu of any action, which may be taken against him u/s 177 of the Act. Neither in the Act/rules is there any restriction, which prohibits the Registering Authority to entertain an application for transfer of ownership of vehicle after three months of the death of the registered owner of the vehicle. Whether respondent No. 4 is liable to be punished u/s 177 of the Act or not is not a subject-matter of the present writ petition. If the contention of learned counsel for the petitioner is accepted that an application for transfer of ownership would not be maintainable if the same is not filed within three months from the date of the death of original owner, then the court is of the firm view that the contention is not only bizzare, but would also play a havoc with the applicants, as there could be number of situations, where for reasons beyond one's control, the applicant is not in a position to approach the registering authority for transfer of ownership. Thus, the court is not inclined to accept the interpretation so advanced by learned counsel for the petitioner.

10. Reverting to the facts of the present case, the court finds that admittedly, deceased was the registered owner of the vehicles. It is also not disputed that there is a dispute with regard to ownership of the vehicles in question, which is stated to be pending in a civil court, but it also could not be disputed that the vehicle has to be maintained in a running condition, so that State does not loose its share of revenue. It also could not be disputed that respondent No. 4 is the widow of the deceased.

11. The learned Chief Judicial Magistrate vide his order dated 31.1.2012 only directed the parties to move an appropriate application u/s 50(2) of the Act and thereafter to apply for release. Pursuant thereto, respondent No. 4 filed an application dated 8.12.2012 (Form-31) for transfer of the vehicles, alongwith the requisite documents and fee, before the Registering Authority, where an order of transfer was endorsed in favour of respondent No. 4.

12. Thus, the court is of the considered view that the application filed by respondent No. 4 was perfectly maintainable under law there being no impediment in law and that the same need not have awaited final outcome of the decision of the civil court.

13. No other plea is urged.

14. The writ petition lacks merit and is dismissed.
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