The requirement of production of a no objection certificate from a financier at the time of issuance or renewal of a certificate of fitness is not a statutory requirement and is therefore invalid.

Devinder Gupta, J.:- Petitioners have questioned the legality and validity of Memorandum (Annexure PB) dated 18th April, 1984 issued by the Commissioner Transport, Himachal Pradesh, Shimla.

2. Petitioners, the petty transporters are owning and possessing public carrier trucks having national permits. For purchase of their vehicles they had obtained loan from various financial institutions namely Nationalised or non-Nationalised Banks, Himachal Pradesh Financial Corporation etc. It is their case that respondent No. 2 on 18th April, 1984 issued a Memorandum, purpoting to insist upon the production of no objection certificate from financial institutions at the time of issuance/renewal of certificate of fitness. This requirement, according to petitioners is not in consonance with the provisions of law and the same is under challenge being ultra vires and unconstitutional.

3. Writ petition is contested by respondents. Reply has been filed on the affidavit of Secretary State Transport Authority, wherein it has been stated that requisite instructions have been issued by the Commissioner, insisting upon the production of no objection certificate from the financing institutions, at the time of issuing a fitness certificate, in view of the provisions of Rule 3.12 of the Punjab Motor Vehicles Rules, 1940, which are applicable in the instant case. It has also been stated that Section 38 of the Motor Vehicles Act, 1939 and the Rules framed there under deal with the manner, for issuance of fitness certificate or renewal thereof. Board of Inspection consists of Registering and Licencing Authority of the Area and the Motor Vehicles Inspector (Technical) of the Transport department with its member. Period of validity of this certificate of fitness in Himachal Pradesh is six months where after the same has to be got renewed for further period. Since the Registering and licencing Authorities in Himachal Pradesh are also Assessing Authorities under the Himachal Pradesh Motor Vehicles Taxation Act, 1972, while presiding over the Board of Inspection, they have the right to ensure the clearance of Government dues and taxes. Vehicle is produced before the Board of Inspection for issuance of or renewal of road fitness certificate and since the Licencing Authorities have to ensure payment of Government dues, therefore, at the time of issue or renewal of fitness certificate they are within their right to ensure the payment of Government dues by the owners of the vehicles and for the same reasons they are also within their rights to insist upon the payment of dues of the financing institutions. In order to safeguard the public fund, it is necessary to ensure prompt recovery of the dues.

4. We have heard the learned counsel for the parties and gone through the record.

5. When the writ petition was preferred, Motor Vehicle Act, 1939 (hereinafter referred to as the old Act) was in operation, which has since been repealed and substituted by Motor Vehicles Act, 1988, Act No. 59 of 1988 (hereinafter referred to as the Act).

6. Section 38 of the old Act, corresponding to Section 56 of the Act is the relevant provision for issuance of certificate of fitness for transport vehicles. Section 38 provided the maximum validity period of a certificate of fitness of two years with a minimum of 6 months with periodical renewal thereof.

7. Section 56 of the Act says that transport vehicle shall not be deemed to be validly registered for the purposes of Section 39 unless it carries a certificate of fitness in such form, containing such particulars and information as may be prescribed by the Central Government. Certificate of registration is to remain effective for such period as may be prescribed by the Central Government. Rule 62 of the Motor Vehicle Rules 1989, (hereinafter referred to as the Rules) deal with the validity of certificate of fitness and says that the same shall be in form 38 and when granted or renewed will be valid for periods, as specified therein, n