Anil Kumar G. and Biju R.S. v. M/S Shriram Transport Finance Co. Ltd and Sub Regional Transport Officer, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941 WP(C).No. 8990 of 2019** ## **PETITIONERS:** |**1**|**ANIL KUMAR.G.,**| |---|---| ||**AGED 40 YEARS,**| ||**S/O. KRISHNAN KUTTY,**| ||**THADATHARIKATHU PUTHEN VEEDU,**| ||**DALLY P.O., KANDACHIRA,**| ||**KOLLAM DISTRICT-691 310.**| |**2**|**BIJU R.S.,**| ||**AGED 37 YEARS,**| ||**S/O. RAVEENDRAN NAIR,**| ||**THADATHIVILA VEEDU,**| ||**YEROOR P.O., ALANCHERY,**| ||**KOLLAM-691 312.**| ||**BY ADV. SRI.ALEXANDER GEORGE**| ## **RESPONDENTS:** |**1**|**M/S SHRIRAM TRANSPORT FINANCE CO.LTD,**| |---|---| ||**1ST FLOOR, THAMEEM BUILDING,**| ||**RO JUNCTION, NEAR KSFE,**| ||**PUNALUR ROAD, ANCHAL,**| ||**KOLLAM-691 306.**| |**2**|**SUB REGIONAL TRANSPORT OFFICER,**| ||**PUNALUR, KOLLAM-691 305.**| ||**BY ADVS.**| ||**SRI.C.HARIKUMAR**| ||**SRI.HARIKRISHNAN**| ||**SRI.RENJITH RAJAPPAN**| ||**SRI HARISH K.P., SENIOR GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 8990 of 2019** -2- ## **JUDGMENT** The 1[st] petitioner purchased a tipper lorry bearing registration No.KL-25/E-2389, after entering into a hypothecation agreement with the 1[st] respondent financier in which the 2[nd] petitioner stood as guarantor. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to issue No Objection Certificate to the 1[st] petitioner in respect of his vehicle bearing registration No.KL-25/E-2389 for renewal of permit. The 1[st] petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent Sub Regional Transport Officer, Kollam to renew the permit of his vehicle bearing registration No.KL-25/E-2389. 2. On 03.04.2019, when this writ petition came up for consideration, taking note of the pendency of Ext.P3 interlocutory application before the District Court, Kollam in Arbitration O.P. No.208 of 2016 filed by the petitioners, this Court has issued urgent notice on admission by special **WP(C).No. 8990 of 2019** -3- messenger to the 1[st] respondent financier, returnable by 10.04.2019. The learned Government Pleader took notice on admission for the 2[nd] respondent. 3. Heard the learned counsel for the petitioners, the learned counsel for the 1[st] respondent financier and also the learned Government Pleader for the 2[nd] respondent. 4. The submission of the learned counsel for the petitioners is that the 1[st] petitioner has already made an application for renewal of Ext.P2 goods carriage permit in respect of his tipper lorry bearing registration No.KL-25/E2389, which had expired on 05.04.2018. The said application is now pending consideration before the 2[nd] respondent, in the absence of No Objection Certificate issued by the 1[st] respondent financier. 5. The learned counsel for the 1[st] respondent financier would submit that the 1[st] petitioner is yet to make a request for No Objection Certificate and that, the Arbitrator has already passed an award on 09.05.2016, which is now under challenge in Arbitration O.P. No.208 of **WP(C).No. 8990 of 2019** -4- 2016 filed by the petitioners before the District Court, Kollam. 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 subsection (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 authority has discretion to renew the permit, after affording the applicant **WP(C).No. 8990 of 2019** -5- 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 **WP(C).No. 8990 of 2019** -6- 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 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 **WP(C).No. 8990 of 2019** -7- 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 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 **WP(C).No. 8990 of 2019** -8- provisions under sub-section (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. For renewal of Ext.P2 goods carriage permit, the 1[st] petitioner has to comply with the statutory mandate of Section 51 of the Motor Vehicles Act, 1988. If the 1[st] petitioner, despite making a request before the 1[st] respondent, is not getting a No Objection Certificate, he has to comply with the statutory mandate of sub-section (8) of Section 51 of the Act and thereafter, move the application for renewal of Ext.P2 goods carriage permit before the 2[nd] respondent. Admittedly, the 1[st] petitioner has not chosen to make any such request. Moreover, the 1[st] respondent being a private financier, no writ of mandamus can be issued against that respondent for issuance of No Objection Certificate. In such circumstances, this writ petition fails and the **WP(C).No. 8990 of 2019** -9- same is accordingly dismissed; however, without prejudice to the right of the 1[st] petitioner to make a proper application for renewal of Ext.P2 goods carriage permit, after complying with the statutory mandate of sub-section (8) of Section 51 of the Motor Vehicles Act, and pursue that application in accordance with law. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 8990 of 2019** -10- ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONERS' **|**EXHIBITS:**| |**EXHIBIT P1**|**THE TRUE COPY OF THE OP ARBITRATION**| ||**NO. 208/2016 ON THE FILE OF THE**| ||**DISTRICT COURT, KOLLAM.**| |**EXHIBIT P2**|**THE TRUE COPY OF THE GOODS CARRIAGE**| ||**PERMIT ISSUED BY THE 2ND RESPONDENT**| ||**DATED 6/4/2013.**| |**EXHIBIT P3**|**THE TRUE COPY OF THE I.A. NO. 958/2018**| ||**IN OP ARBITRATION NO. 208/2019 BEFORE**| ||**THE DISTRICT COURT, KOLLAM.**| |**RESPONDENTS' **|**EXHIBITS:**<br> **NIL**|