John N.J. v. Joint Regional Transport Officer, Sub Regional Transport Office, Changana­cherry; Regional Transport Officer, Kottayam; Manager, Reliant Credits (India) Ltd.; State of Kerala represented by the Principal Secretary to the Government, Department of Transport

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940 WP(C).No. 15395 of 2018** ## **PETITIONER:** **JOHN N.J., AGED 48 YEARS, NECHIKATTU, CHELAKOMBU P.O., KARUKACHAL, KOTTAYAM DISTRICT** **BY ADV. SRI.NOBLE MATHEW** ## **RESPONDENTS:** - **1 THE JOINT REGIONAL TRANSPORT OFFICER, SUB REGIONAL TRANSPORT OFFICE, CHANGANACHERRY-686501.** - **2 THE REGIONAL TRANSPORT OFFICER, KOTTAYAM, KOTTAYAM DISTRICT-686001.** - **3 THE MANAGER, RELIANT CREDITS (INDIA) LTD., KJK ESTATE, A.M.ROAD, KOTHAMANGALAM-686691.** - **4 STATE OF KEALA REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF TRANSPORT, GOVT. OF KERALA-695001.** - **R3 BY ADVS.SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G** ## **OTHER PRESENT:** **R1,R2 & R4 BY GOVERNMENT PLEADER: SRI N.B.SUNIL NATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 15395 of 2018** -2- ## **JUDGMENT** The petitioner, who is the registered owner of an Eicher lorry bearing registration No.KL-33/9219, which was covered by goods carriage permit, which was valid upto 30.06.2018, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 18.04.2018 of the 1[st] respondent Additional Registering Authority and to direct the 1[st] respondent to renew the goods carriage permit, taking note of the law laid by this Court in **Jayamon v. Regional** ## **Transport Authority, Cherthala and another [2015 (2)** **KHC 685].** The further relief sought for is a writ of mandamus commding the 1[st] respondent to temporarily renew the goods carriage permit of the said vehicle and to accept tax. 2. On 21.05.2018, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1, 2 and 4. Notice was ordered by speed post to the 3[rd] respondent. **WP(C).No. 15395 of 2018** -3- 3. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1, 2 and 4 and also the learned counsel for the 3[rd] respondent financier. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P6 order dated 18.04.2018 of the 1[st] respondent Additional Registering Authority, whereby the request made by the petitioner for renewal of the goods carriage permit in respect of his lorry bearing registration No.KL-33/9219, which was valid upto 30.06.2018, stands rejected on account of the objection raised by the 3[rd] respondent financier. 5. A reading of Ext.P6 order would show that it is one issued without notice to the petitioner. By Ext.P5 judgment in W.P.(C) No.8994 of 2018, this Court directed the 1[st] respondent to consider and pass orders on the application dated 05.03.2018 made by the petitioner for renewal of goods carriage permit, with notice to the 3[rd] respondent and in the light of the judgment of this Court in **Jayamon's case** ( _supra)_ . **WP(C).No. 15395 of 2018** -4- Pursuant to the said judgment, the 1[st] respondent considered the said application and rejected Ext.P6 mainly for the reason that, as there is a strong objection raised by the 3[rd] respondent financier, renewal of permit cannot be granted. 6. In **Shabu Sukumaran v. Regional Transport** **Officer, Tvm and others [2018 (2) KHC 470]** , this Court, in the context of Section 51 of the Motor Vehicles Act, held that, even in a case in which the financier has objected renewal of permit, the registering authority has discretion to renew the permit, after affording the applicant an opportunity of being heard. In the said judgment, this Court held also that 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. Paragraphs 4 to 8 of the said judgment reads thus; 4. Section 51 of the Motor Vehicles Act (hereinafter referred to as 'the Act' for **WP(C).No. 15395 of 2018** -5- 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. Subsection (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 **WP(C).No. 15395 of 2018** -6- 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 subsection. 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. 15395 of 2018** -7- 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. 7. In **Jayamon v. Regional Transport Authority, Cherthala & another [2015 (2) KHC 685]** this Court observed that clause (a) of sub-section (9) of Section 51 of the Act confers discretion **WP(C).No. 15395 of 2018** -8- on the authority to either refuse or renew the permit, even in the event of refusal by the financier to issue a no objection certificate. Paragraph 6 of the said decision reads thus; “6. The petitioner has filed such a declaration and clause (b) of subsection (9) specifically mandates renewal of the permit, on such declaration being made. It is also to - be noticed that sub clause (a) of sub section (9), even in the event of rejection by the financier, confers discretion on the authority to either renew or refuse to renew the permit. In the present case, even that discretion need not be exercised, since there is a declaration on record that a communication has been sent to the financier and no response has been received within seven days which brings into operation the deeming provision.” (underline supplied) 8. In the instant case, a reading of Ext.P6 order would show that the reasons stated by the 1[st] respondent registering authority for rejecting the request for renewal of the contract carriage permit are two fold. In the first paragraph of Ext.P6 order, the registering authority, with reference to subsection (8) of Section 51 of the Act, has **WP(C).No. 15395 of 2018** -9- stated that the petitioner has not produced a declaration in terms of that sub-section. Thereafter, in the last paragraph of Ext.P6 order, the registering authority has stated that, in view of the objections raised by the 2[nd] respondent financier, the application for renewal made by the petitioner cannot be allowed. 8. Having considered the submission made by the learned counsel on both sides, this Court finds that Ext.P6 order of the 1[st] respondent Additionaal Registering Authority is liable to be set aside, thereby directing the said respondent to reconsider the request made by the petitioner for renewal of goods carriage permit in respect of his goods carriage bearing registration No.KL-33/9219, taking note of the law laid down by this Court in **Shabu Sukumaran's case** referred to _supra_ . 9. In such circumstances, this writ petition is disposed of by setting aside Ext.P6 order and directing the 1[st] respondent to reconsider the matter, 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, **WP(C).No. 15395 of 2018** -10- at any rate, within a period of one month from the date of reciept of a certified copy of this judgment, with notice to the petitioner and also to the 3[rd] respondent financier. **Sd/JUDGE** ## **ANIL K.NARENDRAN** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOSTAT COPY OF THE CERTIFICATE OF REGISTRATION OF THE PETITIONER'S VEHICLE EXHIBIT P2 PHOTOSTAT COPY OF THE NOTICE DATED 17/10/2017 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P3 PAYMENT DETAILS EVIDENCING THE FACTUM OF REMITTING THE INSTALMENTS MORE OR LESS ON TIME TO THE THIRD RESPONDENT. EXHIBIT P4 PHOTOSTAT COPY OF THE REMINDER FILED BY THE PETITIONER BEFORE RESPONDENT NO.1 FOR RENEWING THE PERMIT ON 5/3/2018. EXHIBIT P5 PHOTOSTAT COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 16/3/2018. EXHIBIT P6 PHOTOSTAT COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 18/4/2018.** **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **bpr**