Harris.H. v Joint Regional Transport Officer, Sub Regional Transport Office, Karunagapally, Kollam District and State Bank of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY,THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940** # **WP(C).No. 6101 of 2019** ## **PETITIONER:** **HARRIS.H., AGED 49 YEARS, S/O HANEEFA, VAINTHARA KIZHAKKATHIL HOSUE, PADA NORTH P.O., VIA KARUNAGAPALLY, KOLLAM DISTRICT-690518.** **BY ADVS. SRI.G.HARIHARAN SMT.K.S.SMITHA SRI.PRAVEEN.H. SRI.V.R.SANJEEV KUMAR** ## **RESPONDENTS:** |**1**|**JOINT REGIONAL TRANSPORT OFFICER,**| |---|---| ||**SUB REGIONAL TRANSPORT OFFICE,**| ||**KARUNAGAPALLY,**| ||**KOLLAM DISTRICT-690 518.**| |**2**|**STATE BANK OF INDIA,**| ||**NELSON COMPLEX, KAYAMKULAM,**| ||**ALAPPUZHA-690 502**| ||**REPRESENTED BY BRANCH MANAGER.**| |**R1**|**SRI K.P. HARISH, SENIOR GOVERNMENT PLEADER**| |**R2**|**BY ADVS.SRI.K.K.CHANDRAN PILLAI (SR.)**| ||**SMT.AMBILY S., SC, SBI**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 6101 of 2019** -2- ## **JUDGMENT** The petitioner, who is the registered owner of a contract carriage bearing registration No.KL-02/Q-55, covered by Ext.P1 certificate of registration and Ext.P2 contract carriage permit, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to consider the application for renewal of Ext.P2 contract carriage permit without insisting for NOC, taking note of Ext.P4 declaration made by the petitioner and following the dictum laid down by this Court in **Shabu Sukumaran v. Regional Transport Officer, TVM and others [2018 (2) KHC 470]** . 2. Going by the averments in the writ petition, the petitioner purchased the vehicle covered by Ext.P1 certificate of registration and Ext.P2 contract carriage permit by entering into a hypothecation agreement with the 2[nd] respondent Bank, which is the financier. For renewal of Ext.P2 contract carriage permit, the petitioner moved Ext.P3 request before the 2[nd] respondent financier for No Objection **WP(C).No. 6101 of 2019** -3- Certificate. As the 2[nd] respondent financier did not issue No Objection Certificate, the petitioner moved Ext.P4 application before the 1[st] respondent, on 03.10.2018, for renewal of Ext.P2 contract carriage permit, and the said application was accompanied by Ext.P5 cash receipt dated 03.10.2018 for a sum of Rs.3,900/-. As there was no response from the 2[nd] respondent financier, on Ext.P3 request for No Objection Certificate, the petitioner submitted Ext.P6 declaration dated 06.12.2018 before the 1[st] respondent, in order to comply with the statutory requirement of Section 51(8) of the Motor Vehicles Act. 3. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the 1[st] respondent and also the learned counsel for the 2[nd] respondent financier. 4. 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- **WP(C).No. 6101 of 2019** -4- 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 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: **WP(C).No. 6101 of 2019** -5- “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 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. 6101 of 2019** -6- 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 **WP(C).No. 6101 of 2019** -7- 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 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.” 5. In the instant case, Ext.P4 application made by the petitioner for renewal of Ext.P2 contract carriage permit is now pending consideration before the 1[st] respondent, along **WP(C).No. 6101 of 2019** -8- with Ext.P6 declaration, as mandated by Section 51(8) of the Motor Vehicles Act. In such circumstances, it is for the 1[st] respondent to take an appropriate decision on Ext.P4 application, along with Ext.P6 declaration, with notice to the petitioner and also to the 2[nd] respondent financier, taking note of the law laid down by this Court in **Shabu Sukumaran's case (supra).** A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 6101 of 2019** -9- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** - **TRUE COPY OF THE REGISRATION DETAILS RELATING TO BUS NO.KL-2Q-055.** - **EXHIBIT P2** - **TRUE COPY OF THE CONTRACT CARRIAGE PERMIT ISSUED BY THE IST RESPONDENT RELATED TO THE VEHICLE IN QUESTION ENDING ON 3.10.2018.** - **EXHIBIT P3 TRUE COPY OF THE REQUEST DATED 3.9.2018 MADE BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR ISSUANCE OF NOC FOR RENEWAL OF NOC.** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR RENEWAL OF CONTRACT CARRIAGE PERMIT OF BUS NO.KL-02 Q-55 FILED ON 3.10.2018 BEFORE THE IST RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE CASH RECEIPT DATED 3.10.2018 EVIDENCING PAYMENT OF FEES OF RS.3,900/- FOR RENEWAL OF PERMIT ON 3.10.2018.** - **EXHIBIT P6 TRUE COPY OF THE DECLARATION DATED 6.12.2018 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT UNDER SECTION 51(8) OF THE M.V.ACT.** - **EXHIBIT P7 TRUE OF THE JUDGMETN MADE IN WPC NO.14032/2008 ON 27.8.2008.** - **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 28.9.2013 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT MADE IN WPC NO.32495/2018 DATED 5.10.2018.** - **RESPONDENTS' EXHIBITS:**