M.V.Jose vs. The Regional Transport Officer - Kerala High Court, 05 July 2021

W.P(C).27876/2020 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 5TH DAY OF JULY 2021 / 14TH ASHADHA, 1943 WP(C) NO. 27876 OF 2020 PETITIONERS: 1 M.V.JOSE AGED 34 YEARS S/O.VARGHESE, MALATHURUTHIL HOUSE, KOCHAL, KOONAMMAVU, ERNAKULAM 2 JAMSHEER T.P. S/O.MAJEED, THIRUVALLUR P.O., VATAKARA, KOZHIKODE BY ADV P.DEEPAK RESPONDENT/S: THE REGIONAL TRANSPORT OFFICER VATAKARA, REGIONAL TRANSPORT OFFICE, THRISSUR, VATAKARA, KOZHIKODE 673 1010 BY ADV GOVERNMENT PLEADER OTHER PRESENT: SR.GP BIMAL K NATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.06.2021, THE COURT ON 05.07.2021 DELIVERED THE FOLLOWING:

W.P(C).27876/2020 2 JUDGMENT The first petitioner was the registered owner of a heavy goods vehicle with registration No.KL-42S-7265 which was issued with Ext.P1 certificate of registration. The goods carriage permit was surrendered. Later, the vehicle was transferred to the second petitioner. An application for transfer of ownership of the vehicle from the name of the first petitioner to the name of the second petitioner was submitted to the respondent, RTO of Vatakara, wherein, the second petitioner was residing. Prescribed fee was remitted, evidenced by Ext.P3. The transfer of ownership was not being effected on the ground that a challan is pending against the vehicle. On verification, it was found that, the chalan issued to the vehicle was one alleging offence punishable under section 194(2) of the Motor Vehicle Act for alleged overloading of the vehicle in violation of S.114. Petitioner contends that, the mere pendency of check report may not be a reason to deny transfer of ownership and that, insisting so, would virtually amount to compelling a person to pay the penalty without giving him an option to contest the proceedings, even in genuine cases. It was further contended that, this Court in Ext.P6 judgment in Shahaban V Joint RTO (WPC.No.19498 of 2020) has held that, mere pendency of the chalan cannot be a reason for not registering the transfer. Hence, the petitioner has approached this Court for a direction to the respondent to endorse transfer of ownership bearing registration number KL-42S-7265 from the

W.P(C).27876/2020 3 name of the first petitioner to the name of the second petitioner.

State has filed a detailed statement traversing the various contentions. In the statement, it was contended that, since 2019 November, all the service of motor vehicle department in the State is carried out through vahan-parivahan site, which is owned by the Ministry of Road Transport and Highways and maintained by the NIC. The said website consists of numerous modules and one such module is the blacklist, which includes the vehicle numbers and the license numbers having audit objections, complaints, court cases, check reports etc. Services could not be done without removing it from the blacklist. It was contended that in the instant case, since the vehilce is involved in an offence under section 192 of the Act for overloading of vehicle punishable under S.114, and the same was alerted in the website of RTO, Enforcement, Kozhikode. Alteration of the feature of the website maintained by the Road Transport and Highways, by this authority is not permissible by this authority.

State also relied on Rule 167 of the Central Motor vehicles Rules that was brought by the Ministry of Road Transport and Highways, by Ext.P7 notification dated 25th September 2020, No.GSR 584(E), which came into force with effect from 01.10.2020. Rule 167(7) of the Central Motor Vehicles (11th) Amendment Rules 2020, states that “if a challan is due beyond a time period specified in Sub Rule (5), except in cases of offences instituted for prosecution by a court, then applications with respect to the license of offender or registration of motor vehicles as the case may be,

W.P(C).27876/2020 4 mentioned in the challan shall not be processed by the licensing authority or the registering authority as the case may be, except applications relating to fitness, permit and tax(es) of the motor vehicle”. Relying on the above Rules, it was contended by the learned senior government pleader that, in the case at hand, such an application cannot be processed, being one falling within the non-permissible categories under Rule 167(7).

This court had occasion to consider identical issue in Shahaban and Another v. Joint RTO Officer (supra). The petitioner therein placed reliance on the Kerala Bus Transport Association and Another v. Transport Commissioner (2013(1) KLT 440), wherein it was held that, refusal or renewal of permit or declining the certificate of fitness owing to pendency of a check report is only inequitable. The counsel also referred to State of Kerala and Another v. C.P Varghese (2017(3) KLT 744) where it was held that the pendency of check report cannot be used to deny the registered owner his right to transfer the vehicle or in seeking the endorsement of the same in the registration certificate.

The above judgment reveals that a statement was filed in that case by the Director General of NIC, the relevant portion of which was extracted in the judgment, as follows: 3. “As per Vahan software configuration for Kerala, the services of vehicles having pending check reports will be blocked. At present, pending check reports (which are not captured through, the newly introduced e-chalan system), can be released by the RTO through the

W.P(C).27876/2020 5 following facilities provided in the Vahan software. i) By paying the fine amount against the check reports at the RTO counter in which the offence is recorded(or) in the RTO where the vehicle is regsitered. ii) By online payment using the login credentials. The login credentials for online payment can be obtained from the RT office where the offence is recorded or from the office where the vehicle is registered. iii) Else RTO can take decision to release the check report of the vehicle without making payments. 4. …............................................................................................................. ......................................................................................................

By the implementation of e-challan system in the department, the offender can pay the fine against the offences through the following facilities in the e-chalan system. I) spot payment using Debit/Credit card through POS devices installed with the e-challan software. ii) Online Payment through the citizen's web portal of e- chalan system. iii) Cash payment in RTO counter through the web portal of e- challan system for RTO officials. iv) The offences not paying through the above three options can be referred to virtual court and payment can be made through the

W.P(C).27876/2020 6 virtual court system”.

It is clear that the above options are available to the petitioner for releasing the check report. The third option enables the RTO to take a decision to release the check report of the vehicle without making payment. Taking into account of the above facts, if a check report is pending against the registered owner of the vehicle for having violated the provisions of the Motor Vehicles Act, the consequence of him being found guilty is imposition of fine. Admittedly, no proceedings have been initiated before any court of law against the registered owner. No provision was cited before the court also, to show that there is any statutory insistence that the check reports are to be cleared before effecting transfer. Since the registered owner has not been found guilty as he has not chosen to compound the offence, the transfer of ownership sought by him could not have been denied by the respondent.

It seems that the above judgments squarely applies to the facts of this case. Evidently, by insisting that the check reports are liable to be cleared. Virtually, the owner of the vehicle is compelled to compound the offence, without adopting his option to contest the proceeding, if he so chooses.

Having considered this, I am inclined to direct the respondent to transfer the ownership of the goods carriage No.KL- 42S 7265 from the name of the first petitioner to the name of the second petitioner without insisting on clearing any pending check reports. Ideally, the petitioner

W.P(C).27876/2020 7 should have made the NIC to a party to the present proceedings, to give a specific direction to the NIC to make consequential corrections in the vahan site. Hence there will be a direction to the National Informatics Centre to carry out appropriate changes in the light of the above direction given to the sole respondent. Petitioners shall move the NIC with required application along with a copy of the judgment. In the result, Writ Petition is allowed. Respondent is directed to endorse the transfer of vehicle of goods vehicle No.KL 42S 7265 from the name of the first petitioner to the name of the second petitioner in Ext.P1 certificate of registration without insisting on clearing any of the check reports. SUNIL THOMAS JUDGE Sbna

W.P(C).27876/2020 8 APPENDIX OF WP(C) 27876/2020 PETITIONER ANNEXURE EXHIBIT P1 AOF THE CERTIFICATE OF REGISTRATION KL-42-S 7265 EXHIBIT P2 AOF THE PERMIT DEPOSIT SLIP DATED 20.11.2020 EXHIBIT P3OF THE E-RECEIPT FOR TRANSFER OF OWNERSHIP DATED 12.12.2020 EXHIBIT P4 AO CHALLAN PENDING ALERT OBTAINED FROM THE E-VAHAN PORTAL EXHIBIT P5OF THE CHALLAN DATED 9.11.2020 EXHIBIT P6 AOF THE JUDGMENT DATED 30.9.2020 IN WPC NO.19498/2020 EXHIBIT P7 AOF GST 548(E) DATED 25.9.2020 EXHIBIT P8OF THE JUDGEMENT IN WA NO.402 OF 2021 BY THE HON'BLE HIGH COURT OF KERALA.