| SooperKanoon Citation | sooperkanoon.com/131522 |
| Subject | ;Motor Vehicles |
| Court | Patna High Court |
| Decided On | Aug-07-2008 |
| Judge | Navaniti Prasad Singh, J. |
| Appellant | Shashi Ranjan |
| Respondent | State of Bihar and ors. |
Excerpt:
- - having failed to persuade the district transport officer, bhagalpur, for over two years nothing came about it and his vehicles got stranded without proper registration and consequently without proper road permit, he filed this writ petition before this court in december 2004, for a direction to the district transport officer, bhagalpur, for making necessary changes in his address as incorporated in the certificate of registration. any action which visits the citizens with adverse civil consequences may it be administrative has to be a preceded by show cause notice in this regard and failure to issue notice would render all subsequent steps and proceedings void ab initio. i fail to understand that if on 9-5-2002, he had already rejected the application for want of necessary papers, then, where is the question of subsequent communication of the year 2004 not issuing no objection certificate in respect of one of the vehicle of any consequence. ..11. this sub-section clearly provides that unless the registering authority has not refused to grant no objection certificate or does not communicate such refusal to the applicant within 30 days then it shall be deemed that he has granted no objection certificate. this action is clearly abuse of authority by statutory functionary like district transport officer, bhagalpur. he, then, refers to rules 14 and 85 as well as rule 73(5) (iii) of the bihar rules for this purpose i have perused the said rules and have no hesitation in holding that the submission is absolutely misconceived. ..17. this clearly gives discretion to an applicant to file an affidavit in support of the address being sought to be incorporated. 18. in the present case, as noticed above, the petitioner had filed ration card of his landlord clearly stating the said fact and his own affidavit as provided under proviso to rule 4 of the central rules, yet, unmindful of the statutory requirements or deliberately ignoring the same, a wrong plea has been taken to reject petitioner's application and a rejection made which was never communicated to the petitioner. all these clearly show how district transport officer, bhagalpur, abused his authority and his position to cause irreparable loss to the petitioner. navaniti prasad singh, j.1. the petitioner is a registered owner of two commercial vehicles (public carrier bus) bearing registration nos. br-11a-6572 and br-11a-9198. as required under the provisions of the motor vehicles act and the central and bihar rules framed thereunder, he had been issued registration certificates in respect of both the vehicles with address of purnea by the district transport officer, purnea. he shifted the place of business/residence to bhagalpur, and as such applied to the district transport officer, bhagalpur for change of address in the registration book of the two vehicles. this application was made by the petitioner in early 2002. he tried to persuade the district transport officer, bhagalpur to make necessary changes in the registration book, but, the same was not being done, which was causing immense loss to the petitioner, inasmuch as for all subsequent documentation that is permit etc. and deposit all taxes, this address was important without change in which he would have to deposit taxes and ply within the jurisdiction of purnea and permits issued on that basis. having failed to persuade the district transport officer, bhagalpur, for over two years nothing came about it and his vehicles got stranded without proper registration and consequently without proper road permit, he filed this writ petition before this court in december 2004, for a direction to the district transport officer, bhagalpur, for making necessary changes in his address as incorporated in the certificate of registration.2. in the writ petition, it has been categorically stated that while seeking change of address he made an application first to district transport officer, purnea, informing him about change and requesting for no-objection certificate in respect of both vehicles, which was duly received at purnea and then enclosing those documents and other documents including an affidavit sworn by the petitioner himself about his new address at bhagalpur arid ration card of his landlord, the premises were now he was residing. all of which where received by district transport officer, bhagalpur. it is stated that even though several months passed by district transport officer, bhagalpur, only asked for some other papers which were duly filed but then did not do anything, further.3. two counter affidavits have been filed by district transport officer, purnea (respondent no. 4), in both he has categorically stated that in respect of vehicle no. br-11a-9198, he had duly issued no objection certificate to the district transport officer, bhagalpur, in the year 2002, itself. in the first counter affidavit, it is stated that in respect of vehicle no. br-11a-6572 no objection certificate was also sent to the bihar state financial corporation, as the vehicle was under hypothecation, thereof. it is sought to be clarified in the supplementary counter affidavit that no objection certificate in respect of this vehicle could not be issued, because, it was under hypothecation of bihar state financial corporation and this communication was sent late in the year 2004. from the above communications of by district transport officer, purnea, two things are clear, firstly, in respect of vehicle no. br-11a-9198 no objection was issued in 2002 to district transport officer, bhagalpur, and in respect of br-11a-6572 no objection was not rejected until two years later (2004) when information was given that because of hypothecation no objection could not be issued.4. counter affidavit has been filed on behalf of district transport officer, bhagalpur, in which, he has stated that the petitioner in which, he has stated that the petitioner having not submitted either his ration card or bank account pass book showing his present residential address of bhagalpur, he rejected the application of the petitioner on 9-5-2002 (annexure-a to the counter affidavit). though, it is to be found that the said letter bears endorsement of having been sent by registered post, the counter affidavit makes no such averments nor any such proof, thereof, is annexed with counter affidavit. it is, further, stated in the said counter affidavit that district transport officer, bhagalpur had received communication in the year 2004 from district transport officer, purnea with regard to the no objection certificate. in the said counter affidavit nothing is said about non-filing of affidavit by the petitioner in support of new address, as such, the affidavit and the statement contained therein remain unrebutted and accepted.5. heard the parties and with their consent the writ petition is being disposed of at the stage of admission itself.6. i regret to observe that this is again one of the illustrative cases where statutory authority are flagrantly violating and disregarding, rather, abusing their statutory authority to the detriment of the rights of the citizen. the action of the respondents and in particular respondent no. 2 the district transport officer, bhagalpur, in not incorporating the change in address has resulted in severe irreparable loss to the petitioner, inasmuch as, for over last five years his commercial vehicle has laid dumped as garbage, his business remain suspended causing irreparable financial loss, only for alleged want of proof of address.7. first, with regard to the right of the district transport officer to reject the application made for change of address. the right to grant or permit change takes within itself the right to refuse the change. thus, the right to reject is accepted, as a matter of law, but, the question is before the authority exercises such drastic power which has severe civil consequences, can he do so, firstly, without notice to the party and having done so without communicating the order to the party? it is too late in the day to contend otherwise. any action which visits the citizens with adverse civil consequences may it be administrative has to be a preceded by show cause notice in this regard and failure to issue notice would render all subsequent steps and proceedings void ab initio. here, if a notice could have been issued to the petitioner with regard to some or any of the deficiencies which ultimately led the rejection of his application the petitioner could have met the deficiencies immediately and got the necessary change made saving him from five years of loss. thus, the district transport officer, bhagalpur abused his authority in not issuing any notice to the petitioner prior to rejection of his application.8. now, coming to communication of the order rejecting the request for change of address. application for change of address was filed in early 2002; writ petition was filed in december 2004. the writ petitioner claimed complete ignorance of any order in the proceedings and his grievance was that no order is being passed in the proceedings. this is countered by district transport officer, bhagalpur by saying that by his communication dated 9-5-2002, he rejected the application. how this order was communicated or disclosed to the petitioner there is not a single whisper, to the contrary, the copy of letter as annexed shows that it was meant to be sent to the petitioner by registered post but no such averment is made in the writ petition, for obvious reason, because, it was never so sent no proof of sending it by registered post to the petitioner is even annexed to the writ petition.9. thus, this court finds that this order, even though, it may have been passed remained in the file of the district transport officer, bhagalpur. it never got to see the light of the day. this is, further, confirmed when district transport officer, bhagalpur refers to communication received from purnea in 2004 and pleads non-grant of no objection certificate as also a ground of rejection. i fail to understand that if on 9-5-2002, he had already rejected the application for want of necessary papers, then, where is the question of subsequent communication of the year 2004 not issuing no objection certificate in respect of one of the vehicle of any consequence.10. in this connection, i may refer to section 48 of the motor vehicles act, 1988. this section deals with issuance of no objection certificate and in sub-section (3), thereof, it provides that granting no objection certificate shall not be refused, except, for reasons recorded to be in writing and communicating the same to the applicant. this was never done by district transport officer, purnea. then, there is all important sub-section (4) of section 48:.where within a period of thirty days referred to in sub-section (3), the registering authority does not refuse to grant the no objection certificate or does not communicate the refusal to the applicant, the registering authority shall be deemed to have granted the no objection certificate....11. this sub-section clearly provides that unless the registering authority has not refused to grant no objection certificate or does not communicate such refusal to the applicant within 30 days then it shall be deemed that he has granted no objection certificate.12. in the present case, admittedly, the district transport officer, bhagalpur, had no adverse information from district transport officer, purnea, for over two years. thus, by operation of section 48(4) of the act, he had no jurisdiction to hold that no objection certificate not having been communicated to him (district transport officer, bhagalpur) by district transport officer, purnea, he could not permit changes. this action is clearly abuse of authority by statutory functionary like district transport officer, bhagalpur.13. now, we come to the statutory provisions with regard to change of address in certificate of registration. learned counsel for the state has referred to form c.ad.a. as appended to the bihar motor vehicle rules, 1992, to submit that this form, which is for change of address requires submission of documents and the petitioner not having submitted those documents, his application was rightly rejected. he, then, refers to rules 14 and 85 as well as rule 73(5) (iii) of the bihar rules for this purpose i have perused the said rules and have no hesitation in holding that the submission is absolutely misconceived. the said rules as referred to above have absolutely no application with regard to change of address in certificate of registration. rule 14 of the bihar rules, though, has the heading change of address, a closer reading, thereof, it shows, it deals only with change of address in driving licence, it does not deal with change of address in certificate of registration, the reason, i will deal with subsequent. coming to rule 85, again the heading here is change of address of permit holder. the reference is that change of address in the permit granted and not certificate of registration. there are valid reasons for this distinction, which i will refer subsequently. again, coming to rule 73 of chapter 5 of the bihar rules, it prescribed forms, which are used for the purposes of chapter 5, chapter 5 of the act deals with control of transport vehicles and it does not deal with any aspect of registration of motor vehicle. registration of motor vehicle is dealt in chapter 4 of the act. thus, rule 73 of the bihar rules again has no application. now, if we refer to the form as shown by the counsel for the respondent i.e. form c.ad.a of the bihar rules, it refers to rule 73(5){3) of the bihar rules, which stated above does not deal with any aspect of certificate of registration. thus, all these provisions as sought to be relied on behalf of the state are redundant for the purpose. reference to them is totally misconceived.14. the reasons, why bihar rules make no provision with regard to certificate of registration is to be found in section 49 of the act, relevant part whereof reads as follows:.if the owner of a motor vehicle ceases to reside or have his place of business at the address recorded in the certificate of registration of the vehicle, he shall within thirty days of any such change of address, intimate in such form accompanied by such documents as may be prescribed by the central government, his new address, to the registering authority by which the certificate of registration was issued or, if the new address is within the jurisdiction of another registering authority, to that other registering authority, and shall at the same time forward the certificate of registration to the registering authority or, as the case may be, to the other registering authority in order that the new address may be entered therein....15. a reference to section 49 would show that for change of residence or place or business as noted in the certificate of registration an application has to be made within 30 days of such change of address in such form and accompanied by such document, as may be prescribed by the central government. the expression prescribed by the central government means in terms of section 2(32), thereof, prescribed by the rules framed by the central government. central government has framed the central motor vehicle rules 1989, and rule 59, thereof, deals with change in residence. it is for this reason that the legislature have authoritize the central government to provide by rules formalities in relation to changes to be made in certificate of registration that the bihar legislature or the bihar government becomes wholly incompetent to legislate or dealt with that matter as it falls within the exclusive authority of the central government. rule 59:.change in residence.- an application for recording a change in the residence in the certificate of registration of a motor vehicle shall be made by the owner of the vehicle in form 33 accompanied by the certificate of registration and proof of address in the manner specified in rule 4 and appropriate fee as specified in rule 81....16. rule 59 of the central rules provide that an application has to be made in terms of form 33, which is a form prescribed under the central rules and accompanied with original certificate of registration and proof of address in the manner specified in rule 4. when we refer to rule 4 of the central rules it provides for evidence as to the correctness of address and age in relation to issue of licence. under chapter 2 of the rules this requirement of document is adopted for the purposes of rule 59 and it listed documents either of which is sufficient to establish the correctness of the address. but, there are all important provisos to rule 4 which reads as follows:.provided that where the applicant is not able to procure any of the above-mentioned documents for sufficient reason, the licensing authority may accept any affidavit sworn by the applicant, before an executive magistrate, or a first class judicial magistrate or a notary public as evidence of age and address....17. this clearly gives discretion to an applicant to file an affidavit in support of the address being sought to be incorporated. this is statutory requirement.18. in the present case, as noticed above, the petitioner had filed ration card of his landlord clearly stating the said fact and his own affidavit as provided under proviso to rule 4 of the central rules, yet, unmindful of the statutory requirements or deliberately ignoring the same, a wrong plea has been taken to reject petitioner's application and a rejection made which was never communicated to the petitioner. all these clearly show how district transport officer, bhagalpur, abused his authority and his position to cause irreparable loss to the petitioner. had the district transport officer any problem or difficulty in granting the required change he could have easily communicated the same to the petitioner and required him to complete the formalities. this was never done.19. i am constrained to hold again and again about abuse of power by the district transport officer concerned, because, there is yet another dimension to the whole episode. when petitioner was given liberty to take back his documents from district transport officer, bhagalpur, the district transport officer, bhagalpur, files an affidavit in this court saying that the original certificate of registration of both the vehicles had never been submitted by the petitioner before him. it is only curious to note that if original certificate of registration was never submitted, then, what district transport officer, bhagalpur was acting on and what he rejected. it is, yet, more curious to note, as to how, he even accepted the application without the original certificate of registration because changes have to be incorported on the certificate of registration and not any copy thereof or not in any other registration book for that purpose. this court by order dated 28-7-2005 gave liberty to the petitioner who mentioned that the originals had been submitted and deliberately misplaced by district transport officer, bhagalpur, to get a duplicate issued from district transport officer, purnea and appear before district transport officer, bhagalpur for recording change of address, which was again not done by district transport officer, bhagalpur.20. thus, i find that in fact and in law, the petitioner had complied with all requirements for getting change of address in the certificate of registration, but, abusing his authority and the statutory responsibility cast on him, the district transport officer, bhagalpur did not grant the change. this was wrong, arbitrary and illegal. i, therefore, set aside the order of district transport officer, bhagalpur dated 9-5-2002 rejecting application of the petitioner for change of address and issue mandamus to the district transport officer, bhagalpur to effect the necessary change as requested by the petitioner.21. as a consequence of the abuse of authority by the district transport officer, bhagalpur, petitioner has suffered irreparable loss by being unable to ply his commercial vehicle for five long years. in my view, petitioner is entitled to be compensated by cost which i quantified at rs. 50,000/-. the same shall be paid within a period of one month from the time the order is communicated to district transport officer, bhagalpur and state would be at liberty to fix the responsibility of the officer concerned and realize the same from the officer, in question.22. as the petitioner has been unable to ply the vehicle, but, yet was required and had deposited the taxes in relation, thereto, he may be entitled to refund, thereof, in accordance with law, provided he makes an application to appropriate authority in this regard within a period of one month from today and on such application being made the authorities would dispose of the same expeditiously in accordance with law.23. with these observations and directions, the writ petition is disposed of.
Judgment: Navaniti Prasad Singh, J.
1. The petitioner is a registered owner of two commercial vehicles (Public carrier bus) bearing Registration Nos. BR-11A-6572 and BR-11A-9198. As required under the provisions of the Motor Vehicles Act and the Central and Bihar Rules framed thereunder, he had been issued registration certificates in respect of both the vehicles with address of Purnea by the District Transport Officer, Purnea. He shifted the place of business/residence to Bhagalpur, and as such applied to the District Transport Officer, Bhagalpur for change of address in the registration book of the two vehicles. This application was made by the petitioner in early 2002. He tried to persuade the District Transport Officer, Bhagalpur to make necessary changes in the registration book, but, the same was not being done, which was causing immense loss to the petitioner, inasmuch as for all subsequent documentation that is permit etc. and deposit all taxes, this address was important without change in which he would have to deposit taxes and ply within the jurisdiction of Purnea and permits issued on that basis. Having failed to persuade the District Transport Officer, Bhagalpur, for over two years nothing came about it and his vehicles got stranded without proper registration and consequently without proper road permit, he filed this writ petition before this Court in December 2004, for a direction to the District Transport Officer, Bhagalpur, for making necessary changes in his address as incorporated in the certificate of registration.
2. In the writ petition, it has been categorically stated that while seeking change of address he made an application first to District Transport Officer, Purnea, informing him about change and requesting for no-objection certificate in respect of both vehicles, which was duly received at Purnea and then enclosing those documents and other documents including an affidavit sworn by the petitioner himself about his new address at Bhagalpur arid ration card of his landlord, the premises were now he was residing. All of which where received by District Transport Officer, Bhagalpur. It is stated that even though several months passed by District Transport Officer, Bhagalpur, only asked for some other papers which were duly filed but then did not do anything, further.
3. Two counter affidavits have been filed by District Transport Officer, Purnea (Respondent No. 4), in both he has categorically stated that in respect of Vehicle No. BR-11A-9198, he had duly issued no objection certificate to the District Transport Officer, Bhagalpur, in the year 2002, itself. In the first counter affidavit, it is stated that in respect of Vehicle No. BR-11A-6572 no objection certificate was also sent to the Bihar State Financial Corporation, as the vehicle was under hypothecation, thereof. It is sought to be clarified in the supplementary counter affidavit that no objection certificate in respect of this vehicle could not be issued, because, it was under hypothecation of Bihar State Financial Corporation and this communication was sent late in the year 2004. From the above communications of by District Transport Officer, Purnea, two things are clear, firstly, in respect of Vehicle No. BR-11A-9198 no objection was issued in 2002 to District Transport Officer, Bhagalpur, and in respect of BR-11A-6572 no objection was not rejected until two years later (2004) when information was given that because of hypothecation no objection could not be issued.
4. Counter affidavit has been filed on behalf of District Transport Officer, Bhagalpur, in which, he has stated that the petitioner in which, he has stated that the petitioner having not submitted either his ration card or bank account pass book showing his present residential address of Bhagalpur, he rejected the application of the petitioner on 9-5-2002 (Annexure-A to the counter affidavit). Though, it is to be found that the said letter bears endorsement of having been sent by registered post, the counter affidavit makes no such averments nor any such proof, thereof, is annexed with counter affidavit. It is, further, stated in the said counter affidavit that District Transport Officer, Bhagalpur had received communication in the year 2004 from District Transport Officer, Purnea with regard to the no objection certificate. In the said counter affidavit nothing is said about non-filing of affidavit by the petitioner in support of new address, as such, the affidavit and the statement contained therein remain unrebutted and accepted.
5. Heard the parties and with their consent the writ petition is being disposed of at the stage of admission itself.
6. I regret to observe that this is again one of the illustrative cases where statutory authority are flagrantly violating and disregarding, rather, abusing their statutory authority to the detriment of the rights of the citizen. The action of the respondents and in particular Respondent No. 2 the District Transport Officer, Bhagalpur, in not incorporating the change in address has resulted in severe irreparable loss to the petitioner, inasmuch as, for over last five years his commercial vehicle has laid dumped as garbage, his business remain suspended causing irreparable financial loss, only for alleged want of proof of address.
7. First, with regard to the right of the District Transport Officer to reject the application made for change of address. The right to grant or permit change takes within itself the right to refuse the change. Thus, the right to reject is accepted, as a matter of law, but, the question is before the authority exercises such drastic power which has severe civil consequences, can he do so, firstly, without notice to the party and having done so without communicating the order to the party? It is too late in the day to contend otherwise. Any action which visits the citizens with adverse civil consequences may it be administrative has to be a preceded by show cause notice in this regard and failure to issue notice would render all subsequent steps and proceedings void ab initio. Here, if a notice could have been issued to the petitioner with regard to some or any of the deficiencies which ultimately led the rejection of his application the petitioner could have met the deficiencies immediately and got the necessary change made saving him from five years of loss. Thus, the District Transport Officer, Bhagalpur abused his authority in not issuing any notice to the petitioner prior to rejection of his application.
8. Now, coming to communication of the order rejecting the request for change of address. Application for change of address was filed in early 2002; writ petition was filed in December 2004. The writ petitioner claimed complete ignorance of any order in the proceedings and his grievance was that no order is being passed in the proceedings. This is countered by District Transport Officer, Bhagalpur by saying that by his communication dated 9-5-2002, he rejected the application. How this order was communicated or disclosed to the petitioner there is not a single whisper, to the contrary, the copy of letter as annexed shows that it was meant to be sent to the petitioner by registered post but no such averment is made in the writ petition, for obvious reason, because, it was never so sent no proof of sending it by registered post to the petitioner is even annexed to the writ petition.
9. Thus, this Court finds that this order, even though, it may have been passed remained in the file of the District Transport Officer, Bhagalpur. It never got to see the light of the day. This is, further, confirmed when District Transport Officer, Bhagalpur refers to communication received from Purnea in 2004 and pleads non-grant of no objection certificate as also a ground of rejection. I fail to understand that if on 9-5-2002, he had already rejected the application for want of necessary papers, then, where is the question of subsequent communication of the year 2004 not issuing no objection certificate in respect of one of the vehicle of any consequence.
10. In this connection, I may refer to Section 48 of the Motor Vehicles Act, 1988. This Section deals with issuance of no objection certificate and in Sub-section (3), thereof, it provides that granting no objection certificate shall not be refused, except, for reasons recorded to be in writing and communicating the same to the applicant. This was never done by District Transport Officer, Purnea. Then, there is all important Sub-section (4) of Section 48:.Where within a period of thirty days referred to in Sub-section (3), the registering authority does not refuse to grant the no objection certificate or does not communicate the refusal to the applicant, the registering authority shall be deemed to have granted the no objection certificate....
11. This sub-section clearly provides that unless the registering authority has not refused to grant no objection certificate or does not communicate such refusal to the applicant within 30 days then it shall be deemed that he has granted no objection certificate.
12. In the present case, admittedly, the District Transport Officer, Bhagalpur, had no adverse information from District Transport Officer, Purnea, for over two years. Thus, by operation of Section 48(4) of the Act, he had no jurisdiction to hold that no objection certificate not having been communicated to him (District Transport Officer, Bhagalpur) by District Transport Officer, Purnea, he could not permit changes. This action is clearly abuse of authority by statutory functionary like District Transport Officer, Bhagalpur.
13. Now, we come to the statutory provisions with regard to change of address in certificate of registration. Learned Counsel for the State has referred to Form C.Ad.A. as appended to the Bihar Motor Vehicle Rules, 1992, to submit that this Form, which is for change of address requires submission of documents and the petitioner not having submitted those documents, his application was rightly rejected. He, then, refers to Rules 14 and 85 as well as Rule 73(5) (iii) of the Bihar rules for this purpose I have perused the said rules and have no hesitation in holding that the submission is absolutely misconceived. The said rules as referred to above have absolutely no application with regard to change of address in certificate of registration. Rule 14 of the Bihar Rules, though, has the heading change of address, a closer reading, thereof, it shows, it deals only with change of address in driving licence, it does not deal with change of address in certificate of registration, the reason, I will deal with subsequent. Coming to Rule 85, again the heading here is change of address of permit holder. The reference is that change of address in the permit granted and not certificate of registration. There are valid reasons for this distinction, which I will refer subsequently. Again, coming to Rule 73 of Chapter 5 of the Bihar Rules, it prescribed Forms, which are used for the purposes of Chapter 5, Chapter 5 of the Act deals with control of transport vehicles and it does not deal with any aspect of registration of motor vehicle. Registration of motor vehicle is dealt in Chapter 4 of the Act. Thus, Rule 73 of the Bihar Rules again has no application. Now, if we refer to the Form as shown by the counsel for the respondent i.e. Form C.Ad.A of the Bihar Rules, it refers to Rule 73(5){3) of the Bihar Rules, which stated above does not deal with any aspect of certificate of registration. Thus, all these provisions as sought to be relied on behalf of the State are redundant for the purpose. Reference to them is totally misconceived.
14. The reasons, why Bihar Rules make no provision with regard to certificate of registration is to be found in Section 49 of the Act, relevant part whereof reads as follows:.if the owner of a motor vehicle ceases to reside or have his place of business at the address recorded in the certificate of registration of the vehicle, he shall within thirty days of any such change of address, intimate in such form accompanied by such documents as may be prescribed by the Central Government, his new address, to the registering authority by which the certificate of registration was issued or, if the new address is within the jurisdiction of another registering authority, to that other registering authority, and shall at the same time forward the certificate of registration to the registering authority or, as the case may be, to the other registering authority in order that the new address may be entered therein....
15. A reference to Section 49 would show that for change of residence or place or business as noted in the certificate of registration an application has to be made within 30 days of such change of address in such Form and accompanied by such document, as may be prescribed by the Central Government. The expression prescribed by the Central Government means in terms of Section 2(32), thereof, prescribed by the rules framed by the Central Government. Central Government has framed the Central Motor Vehicle Rules 1989, and Rule 59, thereof, deals with change in residence. It is for this reason that the legislature have authoritize the Central Government to provide by rules formalities in relation to changes to be made in certificate of registration that the Bihar Legislature or the Bihar Government becomes wholly incompetent to legislate or dealt with that matter as it falls within the exclusive authority of the Central Government. Rule 59:.Change in residence.- an application for recording a change in the residence in the certificate of registration of a motor vehicle shall be made by the owner of the vehicle in Form 33 accompanied by the certificate of registration and proof of address in the manner specified in Rule 4 and appropriate fee as specified in Rule 81....
16. Rule 59 of the Central Rules provide that an application has to be made in terms of Form 33, which is a Form prescribed under the Central Rules and accompanied with original certificate of registration and proof of address in the manner specified in Rule 4. When we refer to Rule 4 of the Central Rules it provides for evidence as to the correctness of address and age in relation to issue of licence. Under Chapter 2 of the rules this requirement of document is adopted for the purposes of Rule 59 and it listed documents either of which is sufficient to establish the correctness of the address. But, there are all important provisos to Rule 4 which reads as follows:.Provided that where the applicant is not able to procure any of the above-mentioned documents for sufficient reason, the licensing authority may accept any affidavit sworn by the applicant, before an Executive Magistrate, or a first class Judicial Magistrate or a notary public as evidence of age and address....
17. This clearly gives discretion to an applicant to file an affidavit in support of the address being sought to be incorporated. This is statutory requirement.
18. In the present case, as noticed above, the petitioner had filed ration card of his landlord clearly stating the said fact and his own affidavit as provided under proviso to Rule 4 of the Central Rules, yet, unmindful of the statutory requirements or deliberately ignoring the same, a wrong plea has been taken to reject petitioner's application and a rejection made which was never communicated to the petitioner. All these clearly show how District Transport Officer, Bhagalpur, abused his authority and his position to cause irreparable loss to the petitioner. Had the District Transport Officer any problem or difficulty in granting the required change he could have easily communicated the same to the petitioner and required him to complete the formalities. This was never done.
19. I am constrained to hold again and again about abuse of power by the District Transport Officer concerned, because, there is yet another dimension to the whole episode. When petitioner was given liberty to take back his documents from District Transport Officer, Bhagalpur, the District Transport Officer, Bhagalpur, files an affidavit in this Court saying that the original certificate of registration of both the vehicles had never been submitted by the petitioner before him. It is only curious to note that if original certificate of registration was never submitted, then, what District Transport Officer, Bhagalpur was acting on and what he rejected. It is, yet, more curious to note, as to how, he even accepted the application without the original certificate of registration because changes have to be incorported on the certificate of registration and not any copy thereof or not in any other registration book for that purpose. This Court by order dated 28-7-2005 gave liberty to the petitioner who mentioned that the originals had been submitted and deliberately misplaced by District Transport Officer, Bhagalpur, to get a duplicate issued from District Transport Officer, Purnea and appear before District Transport Officer, Bhagalpur for recording change of address, which was again not done by District Transport Officer, Bhagalpur.
20. Thus, I find that in fact and in law, the petitioner had complied with all requirements for getting change of address in the certificate of registration, but, abusing his authority and the statutory responsibility cast on him, the District Transport Officer, Bhagalpur did not grant the change. This was wrong, arbitrary and illegal. I, therefore, set aside the order of District Transport Officer, Bhagalpur dated 9-5-2002 rejecting application of the petitioner for change of address and issue mandamus to the District Transport Officer, Bhagalpur to effect the necessary change as requested by the petitioner.
21. As a consequence of the abuse of authority by the District Transport Officer, Bhagalpur, petitioner has suffered irreparable loss by being unable to ply his commercial vehicle for five long years. In my view, petitioner is entitled to be compensated by cost which I quantified at Rs. 50,000/-. The same shall be paid within a period of one month from the time the order is communicated to District Transport Officer, Bhagalpur and State would be at liberty to fix the responsibility of the Officer concerned and realize the same from the Officer, in question.
22. As the petitioner has been unable to ply the vehicle, but, yet was required and had deposited the taxes in relation, thereto, he may be entitled to refund, thereof, in accordance with law, provided he makes an application to appropriate authority in this regard within a period of one month from today and on such application being made the authorities would dispose of the same expeditiously in accordance with law.
23. With these observations and directions, the writ petition is disposed of.