IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10-11-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.21939 of 2008 ..... R.Teekaraman ... Petitioner vs. The Secretary/Regional Transport Authority/ Regional Transport Officer, Vellore-9. ... Respondent Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus or any other order or direction in the nature of writ, calling for the records relating to the impugned order of the repondent his proceedings in Se.Mu.Aa.No.52076/E1/08 dated 26.08.2008 and quash the same and consequently directing the respondent to accept the surrender of permit appication of the petitioner and issue the clearance certificate forthwith as per Rule 204 of the Tamil Nadu Motor Vehicle Rules, 1989. For petitioner : Mr. K.Premkumar For respondent : Ms.Lita Srinivasan, Government Advocate .. ORDER The writ petition is directed against the order of the respondent dated 26.08.2008, under which the respondent has rejected the claim of the petitioner, seeking permission to surrender the permit on the ground that after transfer of permit in his name, he has to keep the permit within the State for a period of 12 months as per Section 47 of the Motor Vehicles Act, 1988 and also as per the declaration stated to have been given by the petitioner. 2. The short facts leading to passing of the impugned order by the respondent are that the petitioner had purchased the Tipper lorry having been registered in the State of Orissa, bearing registration No.OR-14F-4149 and got it re- registered in Tamil Nadu with registration No.TN-23-AO-4404 in the office of the Regional Transport Officer, Ranipet, Vellore District. It is the case of the petitioner that at the time https://hcservices.ecourts.gov.in/hcservices/ of re-registration and at the instance of the respondent, the petitioner has given an undertaking that he shall not surrender the permit issued by the respondent in Goods Carriage Permit No.TGP.No.934/TN23/G.V./2008 for a period of 12 months, though the permit is valid upto 25.06.2013. Since the petitioner has decided to surrender the said permit, the petitioner gave an application on 08.07.2008, in the prescribed form as per Rule 204 of the Tamil Nadu Motor Vehicle Rules, 1989 for surrendering the permit and also for issuance of clearance certificate. As requested by the respondent in the notice dated 21.07.2008 and also on subsequent communication calling upon him for an enquiry on 26.08.2008, the petitioner appeared before the respondent and produced all the required records including the No Objection Certificate issued by the Motor Vehicles Inspector, Ranipet and also asked permission for surrender of permit and for issuance of clearance certificate. By the impugned order dated 26.08.2008, the respondent has rejected the said request of the petitioner on the ground that the request is in violation of Section 47 of Motor Vehicles Act and also in violation of the undertaking duly notarized and executed on 15.09.2007 that the petitioner would use the vehicle for a period of 12 months in the State from the date of re-registration. 3. The impugned order is challenged by the petitioner on various grounds including that it violates the provisions of the Motor Vehicles Act, 1988 and Rule 204 of the Tamil Nadu Motor Vehicle Rules, 1989; that as per Rule 204(2)(a) of the Tamil Nadu Motor Vehicles Rules, 1989, on receipt of the application in Form 'ACC' and in spite of the No objection Certificate from the concerned officer to the effect that no amount of tax or charges is due in respect of the said vehicle, the respondent has failed to issue clearance certificate; that the impugned order is in violation of Articles 19 and 21 of the Constitution of India and that the order has been passed in violation of the procedure and the provision of Section 47 of the Motor Vehicles Act, which has been quoted in the impugned order is not applicable. 4. The respondent has filed a counter affidavit, wherein it is stated that that when the petitioner has applied for re- registration of the vehicle, on receipt of various documents for the purpose of re-registration, as per the provisions of the Act, the respondent has obtained confirmation of genuineness of the said certificates from the Registering Authority, Rourkela, Orissa State. It is also stated that along with various papers, the petitioner has also given a declaration on Rs.20/- stamp paper as per Rule 54 of the Central Motor Vehicles Rules. It is also stated that as per Section 47 of the Motor Vehicles Act under which the re- registration itself was given, the vehicles should be kept for more than 12 months and to this effect, the petitioner has also given an undertaking. It is also stated that the petitioner is in the habit of buying and selling Goods Carriages of other States and sell after getting re- https://hcservices.ecourts.gov.in/hcservices/ registration and the rejection order was passed only after conducting enquiry. That apart, the various legal grounds raised by the petitioner have been denied. 5. Heard the learned counsel for the petitioner as well as the respondent and also perused entire original records produced by the respondent. 6. It is the admitted fact that the petitioner has got re-registration of the Goods Carriage vehicle in the State of Tamil Nadu. The issue to be decided in this case is as to whether, after re-registration has been done in the name of the petitioner, he should keep the permit for a minimum period of 12 months and he cannot surrender the same within the above said period as per Section 47 of the Motor Vehicles Act (in short "the Act") and also the Rules framed under the Act as well as the Tamil Nadu Rules. In respect of the said vehicle, in the State of Tamil Nadu the application for re-registration was made by the petitioner on 07.06.2007 and the same was ordered by the respondent on 07.05.2008 and permit was granted on 26.06.2008 which is valid up to 25.06.2013. Having obtained the re-registration, the petitioner made application for surrender of the permit on 07.07.2008, which was rejected under the impugned order. The reference to the records shows that the request of the petitioner for surrendering the permit was considered by the respondent by conducting an enquiry in which the petitioner participated. The reason given by the petitioner for the purpose of surrender of the permit was that when the application for re-registration was made on 07.06.2007, the re-registration was granted only in May 2008 and therefore, the petitioner was unable to pickup his business and decided to sell the lorry after re-registration and therefore, he wanted to surrender the permit. 7. It is also seen in the impugned order that heavy reliance was placed by the respondent on the declaration given by the petitioner at the time of applying for re-registration, the relevant portion of which reads as follows: ".... 06. I will keep the vehicle OR-14-F-4149 in this state for the period exceeding twelve months". Therefore, as per the declaration, particularly clause No.6, the petitioner should keep the vehicle in the State of Tamil Nadu for a period more than 12 months. As it is seen in the impugned order as well as counter affidavit filed by the respondent, the respondent has obtained the said part of the declaration from the petitioner as per Section 47 of the Act read with 54 of the Central Motor Vehicles Rules, 1989 at the time when the petitioner applied for re-registration. 8. Section 47 deals with the assignment of new registration mark in respect of vehicle taken from another State. For the purpose of this case, it is necessary to extract section 47(1) of the Act. https://hcservices.ecourts.gov.in/hcservices/ " 47. Assignment of new registration mark on removal to another State:-(1) When a motor vehicle registered in one State has been kept in another State, for a period exceeding twelve months, the owner of the vehicle shall, within such period and in such form containing such particulars as may be prescribed by the Central Government, apply to the registering authority, within whose jurisdiction the vehicle then is, for the assignment of a new registration mark and shall present the certificate of registration to that registering authority: Provided that an application under this sub- section shall be accompanied- (i) by the no objection certificate obtained under section 48, or (ii) in a case where no such certificate has been obtained, by- (a) the receipt obtained under sub-section (2) of section 48; or (b) the postal acknowledgement received by the owner of the vehicle 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: Provided further that, in a case where a motor vehicle is held under a hire purchase, lease or hypothecation agreement, an application under this sub-section shall be accompanied by a no objection certificate from the person with whom such agreement has been entered into, and the provisions of section 51, so far as may be, regarding obtaining of such certificate from the person with whom such agreement has been entered into, shall apply". 9. Rule 54 of the Central Motor Vehicles Rules, 1989 relating to the assignment of new registration mark is as follows:- " 54. Assignment of new registration mark:- (1) An application for the assignment of a new registration mark under sub-section (1) of Section 47 shall be made in Form 27 and shall be accompanied by a no objection certificate in Form 28 along with the appropriate fee as specified in Rule 81, within a period of thirty days from the date of expiry of the period specified in the said section: Provided that where a motor vehicle is intended to be kept in a State for a period exceeding twelve months and the owner of such vehicle makes a declaration to that effect, the application may be https://hcservices.ecourts.gov.in/hcservices/ made at any time within the said period of twelve months. (2) On receipt of an application under sub-rule (1) the registering authority shall, subject to the provisions of Section 44, assign to the vehicle the registration mark". 10. The said provisions of the Act and the Central Rules which deal with the assignment of new registration in respect of vehicles registered in another State, apply to cases where motor vehicles registered in one State have been kept in another State for a period of twelve months and in such circumstances, an application should be filed by the purchaser of the vehicle from another State for being re-registered in the State of Tamil Nadu. For the purpose of re-registration in the State of Tamil Nadu, the proviso to Rule 54 also requires the purchaser of vehicle from another State to give a declaration to the effect that he will keep the vehicle in the State of Tamil Nadu for a period of 12 months and if such declaration is given, the application for re-registration in the State of Tamil Nadu can be made even within the period of 12 months. 11. However, under Section 47 of the Act, there is no requirement for any such declaration to that effect, except in cases of obtaining a No objection certificate under Section 48 of the Act where such no objection certificates were not obtained or no postal acknowledgement was received by the owner of the vehicle or no communication was received to that effect declaration should be made under the said provision. There is absolutely no contradiction between Section 47 and Rule 54. Section 47 makes it clear that any person, who keeps another State vehicle in the State of Tamil Nadu, as in the present case, within the period of 12 months of his keeping possession of such vehicle in this State, can make application for re-registration. 12. On the other hand, Rule 54 contemplates that where the owner intends to keep the vehicle in the State for a period of exceeding twelve months, he should make a declaration to that effect and he can make an application for re-registration in the State, even before that period. It is to be understood that Section 47 and Rule 54 are applicable for the purpose of obtaining re-registration of a vehicle which was registered in another State and kept in the re- registering State ( Tamil Nadu in this case) for a period of exceeding 12 months. The undertaking given by the petitioner under Rule 54 to keep the vehicle in the State of Tamil Nadu for the period of exceeding 12 months is applicable only for the purpose of re-registration in the State of Tamil Nadu and it has no relevance once the re-registration is completed. Such an undertaking given for re-registration of the vehicle from another State in Tamil Nadu cannot be taken as a bar for the purchaser, who has got re-registration of the vehicle in https://hcservices.ecourts.gov.in/hcservices/ this State, to surrender the vehicle at any time, after the re-registration was completed. There is absolutely no restriction under the Act particularly Section 47 and under the Rules stated above, for the owner, who got his vehicle of another State re-registered in the State of Tamil Nadu, to remain as owner compulsorily for 12 months. In the absence of such restriction, it is not for this Court to consider as if the petitioner is restrained from surrendering the vehicle for the period of 12 months from the date of re-registration. That apart, such restriction would amount to be a restraint on the rights of person to carry on his trade and such restraint cannot be termed as a reasonable restriction. 13. It is unknown that a person who owns a property should compulsorily keep the same without having the right of sale. In this case, it is not even the case of the respondent that the petitioner attempts to sell the vehicle by surrendering the permit with fraudulent intention. 14. However, the contention of the respondent is that under Rule 204 of the Tamil Nadu Motor Vehicles Rules, the petitioner is not entitled to apply for surrender or cancellation of permit since his surrender application is within three years from the date of purchase. Rule 204 of the Tamil Nadu Motor Vehicle Rules deals with the surrender and cancellation of permits. Rule 204(1)(c) which is relied upon by the respondent relates to the contract carriage namely, Maxi Cab and Motor cab allotted under Taxi Trade Quota and it imposes a restriction for transfer or surrender for a period of three years. Rule 204(1)(c) reads as follows: " 204. Permit – Surrender and cancellation: (1)(a)... (b)... (c) No application for the surrender of permit in respect of contract carriage (maxi cab and motor cab allotted under Taxi Trade Quota) shall be considered if such application is made within a period of three years from the date of first registration as maxi cab and motor cab: Provided that such an application may be considered if the permit holder pays the difference of excise duty as applicable to private cars and produce the evidence for such payment obtained from the competent Central Excise Authorities along with the application". 15. In the present case, what is sought to be surrendered is the permit in respect of a Goods Carriage viz., Tipper lorry and it is not a Maxi Cab or motor cab allotted under Taxi Trade Quota and therefore, even under Rule 204(1)(c) of the Tamil Nadu Motor Vehicles Rules,1989, the petitioner's request for surrender cannot be denied. On the other hand, the petitioner is certainly entitled for the surrender and cancellation of permit as per Rule 204(1)(a) and (b) of the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Motor Vehicles Rules,1989. It is also not in dispute that the petitioner has made necessary application under the provisions of the Act and in the prescribed form. In this view of the matter, the writ petition stands allowed and the impugned order of the respondent dated 26.08.2008 stands set aside with direction to the respondent to reconsider the claim of the petitioner for surrender and cancellation of permit and pass appropriate orders in accordance with law and in the light of the findings given above, within a period of four weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kh To The Secretary/Regional Transport Authority/ Regional Transport Officer, Vellore-9. +1cc to M/s.K.Premkumar, Advocate Sr 62536 RSI(CO) km/11.11. W.P.No.21939 of 2008 https://hcservices.ecourts.gov.in/hcservices/