Sadic Mohammed KarikkanakudiYil, V.N. Rajesh Vanchakkal, Joshy John Vadakkekara, Faisal V.A. Velakkott Puthenpura v Regional Transport Officers, Muvattupuzha and Thodupuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** ## **WP(C).No.34830 OF 2010(C)** ## **PETITIONER/S:** - **1 SADIC MOHAMMED KARIKKANAKUDIYIL HOUSE,, VELLOORKUNNAM P.O., MUVATTUPUZHA.** - **2 V.N.RAJESH VANCHAKKAL HOUSE,, EDAVETTY P.O., THODUPUZHA.** - **3 JOSHY JOHN VADAKKEKARA HOUSE, PERUMBALLOOR P.O.,, MUVATTUPUZHA.** - **4 FAISAL V.A. VELAKKOT PUTHENPURA,, ADOOPARAMBU, MUVATTUPUZHA. BY ADV. SRI.M.A.FAYAZ** ## **RESPONDENT/S:** - **1 REGIONAL TRANSPORT OFFICER OFFICE OF THE REGIONAL TRANSPORT OFFICER,, MUVATTUPUZHA-686673.** - **2 REGIONAL TRANSPORT OFFICER THODUPUZHA-685584.** **R1 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** ## **SR. GP. SRI. S. GPINATHAN AND GP. SRI. RON BASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.11.2019, ALONG WITH WP(C).14221/2011(C), WP(C).20773/2012(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).34830/2010, WP(C).14221/2011, WP(C).20773/2012 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** ## **WP(C).No.14221 OF 2011** ## **PETITIONER/S:** - **1 SADIC MOHAMMED VELLORKUNNAM P.O.,MUVATTUPUZHA P.O.** - **2 V.N.RAJESH VARICKAKKAL HOUSE,, EDAVETTY P.O.,THODUPUZHA** - **3 JOSHY JOHNVADAKKEKARA HOUSE PERUMBALLOOR P.O.,MUVATTUPUZHA** - **4 FAISAL V.AVELAKKOT PUTHENPURA ADOOPARAMBU,MUVATTUPUZHA** ## **BY ADV. SRI.M.A.FAYAZ** ## **RESPONDENT/S:** - **1 R.T.O MUVATTUPUZHA O/O.THE REGIONAL TRANSPORT OFFICER,, MUVATTUPUZHA686673** - **2 REGIONAL TRANSPORT OFFICER THODUPUZHA-685584** - **R1 BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.11.2019, ALONG WITH WP(C).34830/2010(C), WP(C).20773/2012(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).34830/2010, WP(C).14221/2011, WP(C).20773/2012 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** ## **WP(C).No.20773 OF 2012** ## **PETITIONER/S:** **M.P.CHERIYAN AGED 80 YEARS MANAGING PARTNER, MARY MATHA CONSTRUCTION, MARY MATHA SQUARE, MUVATTUPUZHA.** **BY ADV. SRI.SAJU J.VALLYARA** ## **RESPONDENT/S:** **REGIONAL TRANSPORT OFFICER, MUVATTUPUZHA REGIONAL TRANSPORT OFFICE, MUVATTUPUZHA 686 669.** **R1 BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.11.2019, ALONG WITH WP(C).34830/2010(C), WP(C).14221/2011(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).34830/2010, WP(C).14221/2011, WP(C).20773/2012 4 ## **JUDGMENT** **[ WP(C).34830/2010, WP(C).14221/2011, WP(C).20773/2012 ] ------------------------------------------------------------------------------------Dated this the 18th day of November 2019** These writ petitions are filed seeking directions to the respondents to renew the certificate of fitness of the vehicles owned by the petitioners without insisting on the payment of penalty. 2. Heard the learned counsel for the petitioners and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioners that the vehicles had been put in auction by the Banking Institution which had seized the vehicles for the non payment of the hire purchase dues on the same. It is stated that the vehicles were garaged by the previous owners and the appropriate applications in Form-G intimating non use had been issued in the year 2008. The vehicles were auctioned and the petitioners participated in the auctions and purchased the vehicles in the year 2010. The vehicles stood transferred in the petitioners' names in 2010. On purchase of the vehicles WP(C).34830/2010, WP(C).14221/2011, WP(C).20773/2012 5 and transfer of registration, the petitioners had produced the vehicles before the competent Authority for renewal of the fitness certificate. However, respondents 1 and 2 took the stand that the certificate of fitness could be renewed only in case the petitioners remit the penalty as provided under Rule 105(5) of the Kerala Motor Vehicles Rules. 4. The learned counsel for the petitioners submits that the petitioners were in no way responsible for the delay in making the application for renewal of the fitness certificate and that as such, the penalty for the delay also cannot be realised from the petitioner. It is stated that Rule 105(5) of the Kerala Motor Vehicles Rules specifically provides for making an application for renewal by the “owner” of the vehicle. It is as a consequence for the owner committing delay in submitting the application for renewal that penalty has been provided. 5. It is submitted by the learned counsel for the petitioners that the petitioners were not the owners of the vehicle till the registration of the vehicle was changed and that as such they could not have made the application for WP(C).34830/2010, WP(C).14221/2011, WP(C).20773/2012 6 renewal of the fitness certificate at the time when the fitness was due to expired. It is stated that the intimation if any as provided in Rule 105(5), ought to have been made by the owner at the relevant point ie. the Bank, and the petitioners cannot mulcted with liability for the non submission of the request in time. 6. A counter affidavit had been placed on record by the respondents. Circular No.5/81 and 23/2004 issued by the Transport Commissioner is referred to. It is stated that the auction purchasers purchased the vehicles in the auction conducted by the Bank with all encumbrances on the vehicles and as such, they are liable to pay the tax arrears as well as the penalty provided under the Act and Rules necessary for proper plying of the vehicle. 7. The learned counsel for the petitioner relied on the decision of this Court in **Nisamudheen v. Joint R.T.O.** **[2009(3) KLT 1058],** in support of the contention that the penalty which is due for the delay in making an application for renewal of the fitness certificate cannot be treated as a charge on the vehicle. It is a penalty imposed on the owner of WP(C).34830/2010, WP(C).14221/2011, WP(C).20773/2012 7 the vehicle at the relevant time. In the counter affidavit filed by the 2[nd] respondent, it is contended that the decision in **Nisamudheen** (supra) has no application in instant case and that purchase in auction would be of the vehicle with all its encumbrances and that the amount of penalty also has to paid by the petitioner. 8. I have considered the contentions advanced on either side. Section 56 of the Motor Vehicles Act provides for a certificate of fitness in respect of motor vehicles. Rule 105 of the Kerala Motor Vehicles Rules provides for renewal of a certificate of fitness. Sub Rule(4) provides that an owner of a vehicle shall not less than one month from the date of expiry of the certificate, apply for its renewal and shall cause the vehicle to be produced for inspection, on such date and as such time and place as the appropriate Authority may, thereafter, on reasonable notice, appoint. 9. It is contended that in these cases, the date of expiry of certificate of fitness was on a day when the vehicle was in the ownership and possession of the Bank. This aspect of the matter is not disputed in the counter affidavit filed by WP(C).34830/2010, WP(C).14221/2011, WP(C).20773/2012 8 the respondents as well. The petitioners became the owners of the vehicle on dates subsequent to the date of expiry of the fitness certificates in all these cases. The question therefore, would only be whether the petitioners are liable to pay the penalty as provided under Sub-Rule (5). Sub Rule (5) of Rule 105 read as follows: “(5) Penalty- If a vehicle is not produced for the renewal of the certificate of fitness on or before the date of expiry, or where a vehicle is produced for reexamination for the issue of certificate of fitness after the date specified therefor under Rule 108 or sub-rule (2) of Rule 109 or Rule 110, a penalty at the rate of [hundred rupees in the case of a two-wheeler or an autorickshaw, at the rate of one hundred and fifty rupees in the case of a motor cab and at the rate of two hundred rupees] in the case of other transport vehicles shall be charged for every calendar month or part thereof . The impositions of the penalty will be without prejudice to any action which might have been or may be taken for plying the vehicle without certificate of fitness. But in the case of a motor vehicle which is not intended to be used or kept for use, the registered owner or the person having possession or control of such vehicle shall give previous intimation in writing to the Regional Transport Officer or the Joint Regional Transport Officer of the Sub-Regional Transport Office concerned so as to reach him before the date of expiry of the certificate of fitness that such vehicle would not be used for such period, and thereupon, the registered owner or such other person shall not be deemed to have used or kept for use such vehicle, for such period and no penalty shall be payable in respect of such vehicle for such period. However the registered owner or such other person shall be liable to pay the penalty, if on verification it is found that the motor vehicle has been used during such period or thereof. **Note.-** The previous intimation referred to in this subrule shall be sent by registered post with acknowledgment Due presented to the office of the Regional Transport Officer or the Joint Regional Transport Officer in person and in the latter case, WP(C).34830/2010, WP(C).14221/2011, WP(C).20773/2012 9 ## acknowledgment for its receipt, shall be obtained.” 10. The reading of Sub-Rules (4) and (5) would therefore show that the penalty is imposed as a consequence of the delay on the part of the owner of the vehicle to make the application and to produce the vehicle for inspection in time. The petitioners were admittedly not the owners of the vehicles at the relevant time and could not have make the application or produced the vehicles for inspection at the relevant time. The penalty therefore, cannot be construed as a charge on the vehicle which the auction purchaser would be liable to remit. The penalty being a consequence of the delay on the part of the owner in making the application for renewal and for producing the vehicle before the appropriate Authority within the time provided, cannot be transferred along with the vehicle. The circulars relied on by the learned Government Pleader are those issued with regard to the amount of tax due on the vehicle which admittedly is a charge on the vehicle. The same cannot be relied upon the content that the petitioners, who are subsequent purchasers in auction are liable to remit the penalty for the delay on the part of the owner at the relevant time to make the application WP(C).34830/2010, WP(C).14221/2011, WP(C).20773/2012 10 for renewal of fitness certificate within time. In the above view of the matter, these writ petitions are liable to be allowed. In the result, the interim orders are made absolute and these writ petitions are closed accordingly. Sd/- Dxy **ANU SIVARAMAN JUDGE**