# Shahrukh Saleem v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 220
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-04
- **Case number:** Writ A No. 10418 of 2023
- **Bench:** Manoj Kumar Gupta, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahrukh-saleem-v-state-of-u-p-ors-50786
- **Pages:** 6

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Section 51(5) - Registration Certificate
- Financier took possession of the
vehicle
due
to
default
in
loan
repayment - Petitioner's claim that R.C.
was not refused to be handed over is
immaterial - Requirement of 'refusal to
deliver R.C.' or 'absconding' not a sine
qua non - Where loan default and
repossession are proved, Registering
Authority has power to issue fresh R.C.
in favour of financier - Proper notice
issued to petitioner - No illegality in
impugned order.

Held - Once it is established that the
vehicle was purchased on finance and
possession taken due to default in
repayment, the Registering Authority is
empowered under Section 51(5) to
issue a fresh R.C. to the financier - The
refusal or absconding by the registered
owner
is
not
mandatory
but
only
illustrative - Issuance of fresh R.C. in
such circumstances does not cause
prejudice.

Petition dismissed.

## Text

220 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority ought to have followed
but has failed, therefore, we are unable to
differ with the observation of the learned
Writ
Court
that
the
ingredients
of
Regulation 351-A were not followed.

(22) For the reasons spelt out in the
impugned judgment as well as what has
been
recorded
above,
the
impugned
judgment on the grounds urged before us in
this appeal do not lead us to a different
view calling for interference and the
Special Appeal arising out of the judgment
impugned
is
hereby
dismissed.
The
direction for payment of arrears along with
interest @ 7% is however set aside in the
peculiar facts of the case.

(23) Before parting, we may observe
that the case at hand clearly shows that the
competent authority as well the Board of
Directors at the relevant point of time acted
dehors the rules which, in fact, has
occasioned the loss to the Nigam simply on
account of their non-obedience to the rules
well known.

(24) It is a deliberate failure of the
competent authority and the Board to
follow the procedure prescribed under law
that the imputations of pecuniary loss
levelled
against
the
employee
were
rendered incapable of being converted into
an
actionable
claim.
The
competent
authority in place at the time of issuing the
notice as well as the Board responsible at
the relevant point of time deserve to be
proceeded against both for civil action for
recovery as well as criminal action
permissible under law.
----------
(2023) 9 ILRA 220
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2023
BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Writ A No. 10418 of 2023

Shahrukh Saleem ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Virendra Jaiswal

Counsel for the Respondents:
C.S.C.

Civil Law - Motor Vehicles Act, 1988 -
Section 51(5) - Registration Certificate
- Financier took possession of the
vehicle
due
to
default
in
loan
repayment - Petitioner's claim that R.C.
was not refused to be handed over is
immaterial - Requirement of 'refusal to
deliver R.C.' or 'absconding' not a sine
qua non - Where loan default and
repossession are proved, Registering
Authority has power to issue fresh R.C.
in favour of financier - Proper notice
issued to petitioner - No illegality in
impugned order.

Held - Once it is established that the
vehicle was purchased on finance and
possession taken due to default in
repayment, the Registering Authority is
empowered under Section 51(5) to
issue a fresh R.C. to the financier - The
refusal or absconding by the registered
owner
is
not
mandatory
but
only
illustrative - Issuance of fresh R.C. in
such circumstances does not cause
prejudice.

Petition dismissed.

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Manish Kumar Nigam, J.)
9 All. Shahrukh Saleem Vs. State of U.P. & Ors.
221

1. The instant petition has been filed
challenging the order dated 14.06.2023
passed by respondent no. 2 i.e. Assistant
Regional
Transport
Officer
(Administration),
Bareilly
and
for
a
mandamus restraining respondent no. 2
from issuing fresh Registration Certificate
in favour of respondent no. 3.

2. The facts in brief are that the
petitioner
had
taken
finance
from
respondent no. 3 for purchasing a truck
bearing Registration No. UP25 CT-6625. In
the writ petition, the petitioner has not
disclosed the amount of finance/assistance
taken by him from the said respondent,
however, it is stated in paragraph no. 5 of
the writ petition that the petitioner had
contributed Rs. 8,00,000/- out of Rs.
42,00,000/-, the total price at which the
truck was purchased. Meaning thereby that
the remaining amount was financed by
respondent no. 3. It was to be returned by
the petitioner in monthly installments.

3. It is also admitted in the writ
petition that the petitioner could not deposit
the monthly installments. It appears that
respondent no. 3 on account of default on
part of the petitioner in paying the
installments, exercised its right to possess
the vehicle. Accordingly, its possession was
taken on 23.05.2021 by respondent no. 3.
Thereafter, respondent no. 3 requested the
Regional Transport Officer, Bareilly by
filing Form-36 to issue fresh Registration
Certificate (for short 'RC') in its name.
When the R.T.O. did not transfer the
vehicle in favour of respondent no. 3 even
after lapse of considerable time, it filed writ
petition No. 7366 of 2023 before this Court
with the aforesaid grievance. The writ
petition was disposed of vide order dated
28.04.2023 directing the R.T.O. to take
final decision in the matter within six
weeks. Thereafter, the R.T.O. has passed
the impugned order dated 14.06.2023,
directing for grant of fresh Registration
Certificate for the remaining period of
validity in favour of respondent no. 3 after
realizing requisite fee in exercise of power
under Section 51(5) of the Motor Vehicle
Act, 1988.

4. The impugned order records that
after receipt of Form-36 from respondent
no. 3, a notice dated 10.11.2022 was issued
in Form-37 to the petitioner. In response to
it, the petitioner filed his objection and
submitted that the vehicle may not be
transferred in favour of respondent no. 3.
The objection of the petitioner was
forwarded by R.T.O. to respondent no. 3
seeking its comments on the same.
Respondent no. 3 submitted its reply
thereto on 05.12.2022. In the said reply,
respondent no. 3 reiterated that the
petitioner had defaulted in payment of the
outstanding amount despite notice to him.
The R.T.O. in the impugned order has
noted that the petitioner in his objection has
not mentioned anything about payment of
the outstanding amount. Thereafter, the
R.T.O. being satisfied that the petitioner
had
taken
financial
assistance
from
respondent no. 3 for purchasing the vehicle;
that respondent no. 3 had taken possession
of the vehicle owing to default on part of
the registered owner in repaying the loan in
terms of the agreement relating to finance,
directed for fresh RC being issued in name
of respondent no. 3.

5. Learned counsel for the petitioner
submits that power under Section 51(5) of
the Motor Vehicle Act, 1988 could only be
exercised in case the registered owner
refuses to deliver the certificate of
registration or has absconded. He submits
that the original Registration Certificate
222 INDIAN LAW REPORTS ALLAHABAD SERIES
was lying in the vehicle at the time its
possession was taken by respondent no. 3
and therefore, it was not a case of refusal to
deliver the Certificate of Registration.

6. Section 51 (5) of the Act reads as
follows:-

"(5) Where the person whose
name has been specified in the certificate of
registration as the person with whom the
registered owner has entered into the said
agreement,
satisfies
the
registering
authority that he has taken possession of
the vehicle from the registered owner
owing to the default of the registered owner
under the provisions of the said agreement
and that the registered owner refuses to
deliver the certificate of registration or has
absconded, such authority may, after giving
the registered owner an opportunity to
make such representation as he may wish to
make (by sending to him a notice by
registered post acknowledgment due at his
address entered in the certificate of
registration) and notwithstanding that the
certificate of registration is not produced
before it, cancel the certificate and issue a
fresh certificate of registration in the name
of the person with whom the registered
owner has entered into the said agreement:

Provided that a fresh certificate of
registration shall not be issued in respect of
a motor vehicle, unless such person pays
the prescribed fee:

Provided further that a fresh
certificate of registration issued in respect
of a motor vehicle, other than a transport
vehicle, shall be valid only for the
remaining period for which the certificate
cancelled under this sub-section would
have been in force."

7. The main ingredient for exercise of
power under sub section (5) of Section 51 is the
establishment of the fact that the registered
owner had purchased vehicle by taking finance
and had defaulted in repayment of the amount
in terms of the said agreement. The other
necessary ingredient is that the financier has
taken possession of the vehicle from the
registered owner. All these ingredients are fully
established in the instant case. The stipulation
regarding refusal on part of registered owner to
hand over certificate of registration or that he
had absconded is not sine qua non for exercise
of
the
power.
It
only
indicates
that
notwithstanding
the
aforesaid
two
contingencies, the registering authority still has
power to cancel the certificate and issue a fresh
certificate of registration in the name of person
with whom the registered owner had entered
into the agreement of finance.

8. The above conclusion is also borne out
from perusal of Rule 61 (2) and (3) of the
Central Motor Vehicles Rules, 1989 and Form
36 in which application is made by the
Financier for issue of a fresh certificate of
registration in its name and Form 37 in which
notice is issued to the registered owner calling
for his explanation. Rules 61 (2) and (3) are
reproduced below:-

"Rule 61 (2) The application for
the
issue
of
a
fresh
certificate
of
registration under sub-section (5) of section
51 shall be made in Form 36 and shall be
accompanied by a fee as specified in rule
81.

(3) Where the registered owner
has refused to deliver the certificate of
registration
to
the
financier
or
has
absconded then the registering authority
shall issue a notice to the registered owner
of the vehicle in Form 37."

9. Form 36 and Form 37 which are also
relevant are reproduced below for ready
reference:-
9 All. Shahrukh Saleem Vs. State of U.P. & Ors.
223
FORM 36
[(see rule 61 (2)]
APPLICATION FOR ISSUE OF A
FRESH CERTIFICATE OF
REGISTRATION IN THE NAME OF
THE FINANCIER

To,

The Registering Authority,

............................................

.........................................

I/We
.....................................................................
...............................
(financier)

have taken possession of motor
vehicle no. ................make.............model

.......................owing to the default of
the registered owner.......................
(name)

.............................................................
...........................................
(full address)

under the provisions of the agreement
of hire-purchaser/lease/ hypothecation:

(1) The certificate of Registration of
the said vehicle is surrendered herewith.

(2) The registered owner has refused
to deliver the certificate of Registration to
me/us.

(3)
The
registered
owner
is
absconding.

I/We request you to cancel the
certificate and issue a fresh certificate of
registration in my/our name.

I/We
enclose
a
fee
of
Rs.......................... ............................

Date.........................

 Signature of the Financier

Specimen signature of the Financier

1. ..............................................

2. ............................................

[My/Our
mobile
number
is
...................................................
......]

Copy to the original Registering
Authority.

*Strike out whichever is inapplicable.

FORM 37
[See rule 61 (3)]
NOTICE TO THE REGISTERED
OWNER OF THE MOTOR VEHICLE
TO SURRENDER THE CERTIFICATE
OF REGISTRATION FOR
CANCELLATION AND ISSUE OF
FRESH REGISTRATION
CERTIFICATE IN THE NAME OF
THE FINANCIER
(To be made in duplicate and duplicate
copy to be sent to the Financier
simultaneously on issue of notice)

OFFICE OF THE REGISTERING
AUTHORITY.

..........................................

Ref.
Number..
...............................
Dated..................................

Shri/Smt./Kumari........................
....................................(Regd.
Owner) is/

are
hereby
informed
that.................................(financier)
has/have reported that he/they have taken
possession of the motor vehicle bearing
registration
number.....................................cover
ed
by
an
agreement
of
hire-
purchase/lease/hypothecation,
owing
to
your default under the provisions of the
said agreement and that-

*(1) You have refused to deliver the
Certificate of Registration to him/her/
them.

*(2) You have absconded.

He/She/They have requested to cancel
the Certificate of Registration and issue a
fresh
certificate
of
Registration
in
his/her/their name.
224 INDIAN LAW REPORTS ALLAHABAD SERIES

You
are,
therefore,
directed
to
surrender the Certificate of Registration of
the said motor vehicle which has been
retained by you in spite of your having lost
the possession and thereby the ownership
of the motor vehicle under section 2(30)
and to send your representation in this
regard, if any, to this office within seven
days from the date of receipt of this notice
by you, failing which a fresh Certificate of
Registration will be issued in the name of
the Financier, cancelling the Certificate of
Registration held by you, in accordance
with section 51(5).

Date.......................................
... ...............................................

*Strike out whichever is inapplicable.
(Signature of the Registering Authority

To

The
Financier.......................................
...............................................
...................................................
....................................................
(To be sent by Registered Post
Acknowledgment Due)].

10. Form 36 in which application is
made by the Financier for issue of a fresh
certificate of registration requires the
Financier to mention as to whether
certificate of registration of the said
vehicle is surrendered therewith or the
registered owner has refused to deliver
the certificate of registration or is
absconding. Notice in Form 37 is issued
to the registered owner only in the event
he refuses to deliver the certificate of
registration or had absconded. In such an
event, he is called upon to surrender the
certificate of registration, failing which, a
fresh certificate of registration would be
issued
in
the
name
of
Financier,
cancelling the certificate of registration
held by the registered owner.

11. The aforesaid provisions clearly
reveal the scheme of the Act and the Rules
to the effect that when there is default on
part of the registered owner in repaying the
loan to the financier in terms of the
agreement and on account of which the
financier takes possession of the vehicle,
the finance becomes entitled to a fresh
certificate of registration in his name. The
registered owner is, therefore, required to
surrender the certificate of registration so
that it is cancelled and a fresh certificate of
registration is issued in the name of the
financier. Where the registered owner does
not surrender the certificate of registration
or absconds, he is put to notice and when
even thereafter the certificate of registration
is not produced, the Registering Authority
has been conferred with power to issue new
registration certificate to the financier
notwithstanding the fact that the original
registration certificate had been withheld
by the registered owner or had absconded.
Therefore, we find no force in the
submission of learned counsel for the
petitioner that the power under Section 51
(5) of the Act could not be exercised unless
the registered owner refuses to surrender
the registration certificate or absconds.

12. Moreover, in case, the certificate
was lying in the vehicle at the time it was
repossessed, the impugned order directing
for the vehicle being registered in the name
of the financier would not cause any
prejudice nor could be said to be contrary
to any provision of law.

13. It also appears from the record
that the petitioner had filed some complaint
before the Consumer Forum and which is
stated to be pending. In the written
statement filed by respondent no. 3 in the
said proceedings, it had taken the stand that
the petitioner had taken loan of Rs.
9 All. Kuvendra Pal Singh Vs. State of U.P. & Ors.
225
39,00,000/- and apart from it he had also taken
personal loan of Rs. 49,000/-. There is another
amount of Rs. 1,01074/- which was advanced
to the petitioner for taking insurance of the
vehicle and the said amount was also to be
repaid by the petitioner in monthly installments
in which also he committed default.

14. As already noted, the petitioner
has not clarified any fact relating to the
amount taken as loan and the amount
repaid by him.

15. Consequently, we find no merit in the
present petition. The impugned order does not
call for any interference in exercise of writ
jurisdiction.

16. The petition is dismissed.
----------
(2023) 9 ILRA 225
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2023

BEFORE

THE HON'BLE VIKAS BUDHWAR, J

Writ A No. 50745 of 2017

Kuvendra Pal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bidhan Chandra Rai, Sri Ashok Khare,
Sri Bhaiya Lal Yadav, Sri V.K. Upadhyay
(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Dinesh Kumar Mishra, Sri G.C.
Saxena S.C., Sri Shashi Nandan (Sr.
Advocate).

A. Service Law - UP Pravidhik Shiksha
Adhiniyam, 1962 - Section 22-A - Post of
Lecturer (Economics) - Selection - Award
of the marks - Scope of interference -
Director of Technical Education found
irregularity
in
selection
process
and
therefore disapproved the appointment -
Validity challenged - Held, a close look of
the minutes of the Selection Committee
dated 22.01.1994 r/w the letter of the
Director dated 17.05.1989 clearly goes to
show that the marks have been awarded
in such a manner so as to oust the
deserving candidates - The Courts of law
cannot be a mute spectator and in case it
is
found
from
the
perusal
of
the
documents
available
on
record
that
illegality has been committed in awarding
marks then obviously, the Courts would
not interfere with the decision taken by
the appropriate authorities under the
relevant statute who are enjoined to take
decision while annulling the selections.
(Para 40)

B. Service Law - Constitution of India -
Article 226 - Writ - Expert's view -
Scope of interference - Director, being
expert of the matter found irregularity
in the decision of Selection Committee in
awarding
the
marks
-
Validity
of
Director's decision challenged - Held,
the Courts of law are not experts in
academic matters relating to the award
of marks by the selection committee and
they cannot travel into the mind of the
academicians who awarded marks under
various parameters - The impugned
order
passed
by
the
Director
of
Technical
Education
records
valid
reasons
for
disapproving
the
appointments
which
this
Court
in
exercise of the jurisdiction under Article
226 of the Constitution of India cannot
hold to be illegal, particularly when the
Director of Technical Education is an
expert of the said subject. (Para 40 and
42)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Asha Saxena Vs S.K. Chaudhari & ors.; 1991
(17) ALR 267 (FB)