Abdul Kalam Harif.C.K v. Regional Transport Officer, Kasaragod and Sakthi Finance Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941** ## **WP(C).No. 6700 of 2019** ## **PETITIONER/S:** **ABDUL KALAM HARIF.C.K S/O.LATE MAHMOOD, SHAMEEL HOUSE, MEEPUGURI, POST RAMDAS NAGAR, KASARGOD** **BY ADV. SRI.V.K.SHYAM** ## **RESPONDENT/S:** **1 THE REGIONAL TRANSPORT OFFICER, KASARAGOD - 671 121.** **2 THE MANAGER, SAKTHI FINANCE LIMITED, 2ND FLOOR, BROTHER BUILDING, NEAR LIC OFFICE. MAIN ROAD, KANHANGAD-671315. (IS IMPLEADED AS PER ORDER IN IA 1/2019 DATED 22-032019.** **BY SRI HARISH K.P., SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 6700 of 2019 2 ## **JUDGMENT** The petitioner, who is the registered owner of a contract carriage bearing registration No. KL-14-N-5958 covered by Ext.P1 certificate of registration and Ext.P2 contract carriage permit which was valid upto 29.08.2018, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondent to consider Ext.P3 application for renewal of Ext.P2 contract carriage permit. 2. On 06.03.2019, when this writ petition came up for admission this Court passed the following order:- “As evident from Ext.P1 certificate of registration, the petitioner purchased a contract carriage bearing Registration No.KL-14/N-5958, after availing hypothecation/hire purchase agreement with M/s. Sakthi Finance Ltd. 2. However, the financier, who is a necessary party to this writ petition, in view of the statutory provisions under Section 51 of the Motor Vehicles Act, 1988 is not arrayed as a respondent. 3. In **Prabodh Verma v. State of U.P. [(1984) 4 SCC 251]** a Three-Judge Bench of the Apex Court held that a High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them WP(C).No. 6700 of 2019 3 before it as respondents in a representative capacity, if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for nonjoinder of necessary parties. Learned counsel for the petitioner seeks time.” 3. Thereafter, the petitioner has filed I.A. No.1/2019, which has been allowed by a separate order and the Financier of the vehicle is impleaded as the additional second respondent. 4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the first respondent. Considering the nature of relief proposed to be granted, service of notice on the additional second respondent Financier is dispensed with. 5. The grievance of the petitioner in this writ petition is non-consideration of Ext.P3 application for renewal of Ext.P2 contract carriage permit. The fact that the vehicle covered by Ext.P1 certificate of registration and Ext.P2 contract carriage permit is one purchased by the petitioner after entering into a hypothecation agreement with the additional second respondent Financier is not in dispute. If that be so, for consideration of Ext.P3 application for renewal of Ext.P2 contract carriage permit, the petitioner has to produce the 'No WP(C).No. 6700 of 2019 4 objection Certificate' of the additional second respondent Financier or in the absence of any such certificate, he has to comply with the statutory mandate of sub-section (8) of Section 51 of the Motor Vehicles Act. Relying on Ext.P3, the learned counsel for the petitioner would submit that the petitioner has complied with the statutory mandate of subsection (8) of Section 51 of the Motor Vehicles Act. 6. In **Shabu Sukumaran v. Regional Transport Officer, TVM and others [2018(2) KHC 470]** , after referring to the provisions under Section 51 of the Motor Vehicles Act, 1988, this Court has held that, as per sub-section (8) of Section 51, while applying for renewal of permit or for issuance of duplicate certificate of registration or for assignment of a new registration mark, the registered owner shall submit the certificate, if any, obtained from the financier under sub-section (7) or, where no such certificate has been obtained, the communication received from the financier under that sub-section, or, as the case may be, a declaration that he has not received any communication from the financier within the period of seven days specified in that sub-section. In the said decision, this Court held further that, even in the case, in which financier has objected renewal of permit, registering WP(C).No. 6700 of 2019 5 authority has discretion to renew the permit, after affording the applicant an opportunity of being heard. In the said decision, this Court has also held that registering authority has to apply its mind to the objections, if any, raised by the financier and take an appropriate decision as to whether despite such objections of the financier, applicant is entitled for renewal of permit. Paragraphs 4 to 6 of the said decision reads thus: “4. Section 51 of the Motor Vehicles Act (hereinafter referred to as 'the Act' for short) deals with special provisions regarding motor vehicle subject to hire purchase agreement. Sub-section (6) of Section 51 provides that the registered owner shall, before applying to the appropriate authority, for the renewal of a permit under section 81 or for the issue of duplicate certificate of registration under sub-section (14) of Section 41, or for the assignment of a new registration mark under Section 47, or removal of the vehicle to another State, or at the time of conversion of the vehicle from one class to another, or for issue of no objection certificate under Section 48 or for change of residence or place of business under Section 49, or for the alteration of the vehicle under Section 52, make an application to the person with whom the registered owner has entered into the said agreement of hire purchase (such person being referred to as the financier) for the issue of a no objection certificate. Sub-section (7) of Section 51 provides that within seven days of the receipt of an application under WP(C).No. 6700 of 2019 6 sub-section (6), the financier may issue, or refuse, for reason which shall be recorded in writing and communicated to the applicant, to issue, the certificate applied for, and where the financier failed to issue the certificate and also fails to communicate the reasons for refusal to issue the certificate to the applicant within the said period of seven days, the certificate applied for shall be deemed to have been issued by the financier. 5. Sub-section (8) of Section 51 provides that the registered owner shall, while applying to the appropriate authority for the renewal of any permit under Section 81, or for the issue of a duplicate certificate of registration, under sub-section (14) of Section 41, or while applying for assignment of a new registration mark under Section 47, submit with such application the certificate, if any, obtained under sub-section (7) or, where no such certificate has been obtained, the communication received from the financier under that sub-section, or, as the case may be, a declaration that he has not received any communication from the financier within the period of seven days specified in that sub-section. As per Clause (a) of sub-section (9) of Section 51, on receipt of an application for the renewal of any permit or for the issue of duplicate certificate of registration or for assignment of a new registration mark in respect of a vehicle which is held under the said agreement, the appropriate authority may, subject to the other provisions of this Act, in a case where the financier has refused to issue the certificate applied for, after giving the applicant an opportunity of being heard, either renew or refuse to renew the permit or issue or refuse to issue the duplicate certificate of registration or assign or refuse to assign a new WP(C).No. 6700 of 2019 7 registration mark. 6. The provisions under sub-section (9) of Section 51 of the Act would make it explicitly clear that even in a case in which the financier has objected the renewal of permit, the registering authority has the discretion to renew the permit, after affording the applicant an opportunity of being heard. Therefore, merely for the reason that the financier has refused to issue the certificate applied for under sub-section (7) of Section 51, the registering authority cannot reject an application made for renewal of contract carriage permit, in a mechanical exercise of power. Since certain discretion has been vested with the registering authority, in view of the provisions under subsection (9) of Section 51 of the Act, the registering authority has to apply its mind to the objections, if any, raised by the financier and take an appropriate decision as to whether despite such objections of the financier, the applicant is entitled for renewal of permit.” 7. Having considered the submission made by the learned counsel on both sides, this writ petition is disposed of by directing the first respondent to consider and pass appropriate orders on Ext.P3 application made by the petitioner for renewal of Ext.P2 contract carriage permit, if the same is in order, the petitioner has remitted the requisite fee and he has also complied with the statutory mandate of subsection (8) of Section 51 of the Motor Vehicles Act, with notice to the petitioner and also to the additional second respondent Financier, taking note of the law laid down by this Court in the WP(C).No. 6700 of 2019 8 decision referred to above. A decision in this regard shall be taken as expeditiously as possible, at any rate, within a period of six weeks from the date of certified copy of this judgment. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** WP(C).No. 6700 of 2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 20.09.2013 ISSUED BY THE MOTOR VEHICLES DEPARTMENT, KERALA.** **EXHIBIT P2 TRUE COPY OF THE CONTRACT CARRIAGE PERMIT ISSUED BY THE MOTOR VEHICLES DEPARTMENT DATED 28/11/2014.** **EXHIBIT P3 TRUE COPY OF APPLICATION FOR RENEWAL OF CONTRACT CARRIAGE PERMIT ALONG WITH THE DECLARATION DATED 25.09.2018 SUBMITTED BEFORE THE 1ST RESPONDENT.**