Baby Kalarickal v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY,THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941** ## **WP(C).No. 8200 of 2019** ## **PETITIONER:** **BABY KALARICKAL, AGED 60 YEARS** **S/O. XAVIER, KALARICKAL HOUSE, PUTHENKURISSU KARA, OONNUKAL P.O, NERIAMANGALAM VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM, KERALA 686 693.** **BY ADV. SRI.P.B.AJOY** ## **RESPONDENT:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF TRANSPORT, GROUND FLOOR, MAIN BLOCK , SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE REGIONAL TRANSPORT AUTHORITY, REPRESENTED BY ITS SECRETARY, MINI CIVIL STATION, VAZHAPILLY, MUDAVOOR P.O, MUVATTUPUZHA, KERALA 686 669.** - **3 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, MINI CIVIL STATION, VAZHAPILLY, MUDAVOOR P.O, MUVATTUPUZHA, KERALA 686 669.** - **4 M/S. MAHINDRA AND MAHINDRA FINANCIAL SERVICES LTD, REPRESENTED BY ITS MANAGER, NOEL HOUSE, THRIKKAKARA P.O, KAKKANAD ERNAKULAM 682 021.** ## **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 8200 of 2019** 2 ## **JUDGMENT** The petitioner who is the registered owner of a Bharat Benz 1214R 4 x 2 BS III medium goods vehicle bearing registration No.KL 44/C-2986, covered by Ext.P1 Certificate of Registration and Ext.P2 National Permit for Goods Carriage, which was valid till 16.01.2019, has filed this writ petition under Article 226 of the Constitution of India seeking a Writ of mandamus commanding the 2[nd] /3[rd] respondent to accept Ext.P10 declaration on file and proceed to dispose Ext.P4 and Ext.P5 applications in accordance with law, within such time frame as fixed by this Court and to allow Ext.P4 and Ext.P5 applications and grant permit to the petitioner. 2. On 19.03.2019, when writ petition came up for admission, the learned Government Pleader sought time to get instructions. 3. Heard the learned Counsel for the Petitioner and also the learned Government Pleader appearing for **WP(C).No. 8200 of 2019** 3 respondents 1 to 3. Considering the nature of relief proposed to be granted, service of notice on the 4[th] respondent is dispensed with. 4. The pleadings and materials on record would show that the petitioner purchased the goods carriage covered by Exts.P1 certificate of registration and P2 National Permit for Goods Carriage, after entering into a hypothication agreement with the 4[th] respondent financier. Now the validity of the Ext.P2 National Permit, expired on 16.01.2019. Seeking renewal of permit, the petitioner moved Ext.P4 application along with Ext.P5 application for authorisation and the above applications were forwarded to the 3[rd] respondent, along with Ext.P6 covering letter. Thereafter, the petitioner was issued with Ext.P7 communication dated 11.10.2019, whereby he has been informed that, for considering the request for renewal of national permit, 'no objection certificate' from the 4[th] respondent financier is necessary. On receipt of Ext.P7, the petitioner submitted Ext.P8 request before the 4[th] **WP(C).No. 8200 of 2019** 4 respondent financier for no objection. As there is no reply from the 4[th] respondent, despite receipt of Ext.P8, as evident from Ext.P9, the petitioner submitted Ext.P10 request before the 3[rd] respondent. 5. The learned Government Pleader would submit that, if Exts.P4 and P5 applications made by the petitioner along with Ext.P6 covering letter is in order and the petitioner has remitted the requisite fee and complied with the statutory mandate of sub-section (8) of the Section 51 of the Motor Vehicles Act, the 3[rd] respondent shall consider and pass appropriate orders on that applications with notice to the petitioner and to the 4[th] respondent financier, within a time limit to be specified. 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 **WP(C).No. 8200 of 2019** 5 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 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 **WP(C).No. 8200 of 2019** 6 (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 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 **WP(C).No. 8200 of 2019** 7 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 **WP(C).No. 8200 of 2019** 8 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 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. In such circumstances, this writ petition is disposed of by directing the 3[rd] respondent to consider **WP(C).No. 8200 of 2019** 9 Exts.P4 and P5 applications made by the petitioner strictly in accordance with law, taking note of the mandate of subsection (8) of Section 51 of the Motor Vehicles Act and the law laid down by this Court in **Shabu Sukumaran's case (supra)** with notice to the petitioner and also to the 4[th] respondent after affording them an opportunity of being heard. Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate within a period of six weeks from the date of receipt of certified copy of this judgment. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** PV **WP(C).No. 8200 of 2019** 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** - **TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE BEARING NO. KL 44/C-2986 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P2 TRUE COPY OF THE NATIONAL PERMIT DATED 18/01/2014 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE AUTHORIZATION CERTIFICATE ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 18/12/2018 SUBMITTED BY PETITIONER TO 2ND RESPONDENT FOR RENEWAL OF PERMIT** - **EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 18/12/2018 SUBMITTED BY PETITIONER TO THE 2ND RESPONDENT FOR GRANT FOR GRANT OF AUTHORIZATION** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 18/12/2018 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT ALONG WITH THE POSTAL RECEIPT** - **EXHIBIT P7** - **TRUE COPY OF THE LETTER BEARING NO. C5/7439/2018/EM AND DATED 11/01/2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 15/01/2019 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT ALONG WITH THE POSTAL RECEIPT.** - **EXHIBIT P9** - **TRUE COPY OF THE ONLINE TRACK CONSIGNMENT DOWNLOADED FROM THE WEBSITE OF INDIAN POSTS.** **WP(C).No. 8200 of 2019** 11 ## **EXHIBIT P10** **TRUE COPY OF THE DECLARATION DATED 31/01/2019 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT ALONG WITH THE POSTAL RECEIPT.** ## **RESPONDENTS' EXHIBITS: NIL** **\\TRUE COPY//** **PA TO JUDGE** **PV**