Leelamma Mathai v. Regional Transport Officer, Devikulam and Shriram Transport Finance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940** ## **WP(C).No. 29863 of 2018** ## **PETITIONER:** **LEELAMMA MATHAI, AGED 60 YEARS, W/O MATHAI, MARIYELIL HOUSE, ADIMALI, IDUKKI, PIN-685561.** **BY ADVS.SRI.S.RENJITH SRI.K.R.PRATHISH** ## **RESPONDENTS:** |**1**|**REGIONAL TRANSPORT OFFICER,**| |---|---| ||**REGIONAL TRANSPORT 0FFICE, DEVIKULAM,**| ||**ADIMALI P.O., IDUKKI-685581.**| |**2**|**SHRIRAM TRANSPORT FINANCE CO.LTD.,**| ||**KANAKKALLIL BUILDING,**| ||**NEW BUS STAND ROAD,**| ||**KATTAPPANA, IDUKKI,**| ||**PIN-685508.**| ## **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 29863 of 2018** -2- ## **JUDGMENT** The petitioner is the registered owner of a goods carriage bearing registration No.KL-07/BJ-8502, which is a multi-axle goods vehicle, purchased after entering into a hypothecation agreement with the 2[nd] respondent financier. Ext.P1 is the certificate of registration of that vehicle and Ext.P2 is the goods carriage permit, which was valid till 03.07.2018. The request made by the petitioner for renewal of Ext.P2 goods carriage permit was rejected by the 1[st] respondent by Ext.P6 communication dated 04.09.2018 on the ground that the petitioner failed to produce No Objection Certificate from the 2[nd] respondent financier. Now the petitioner is before this Court in this writ petition seeking a writ of certiorari to quash Ext.P6 communication dated 04.09.2018 issued by the 1[st] respondent and directing the said respondent to reconsider Ext.P5 request made by the petitioner. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent not to insist for No Objection Certificate/consent from the 2[nd] respondent **WP(C).No. 29863 of 2018** -3- financier and to clear the check report for renewing the permit of the petitioner. The petitioner has also sought for an order directing the 1[st] respondent to renew the permit of the vehicle. 2. On 27.11.2018, when this writ petition came up for admission, urgent notice on admission by speed post was ordered to the 2[nd] respondent, returnable within two weeks. The learned Senior Government Pleader took notice on admission for the 1[st] respondent. 3. A counter affidavit has been filed on behalf of the 1[st] respondent, opposing the reliefs sought for in this writ petition. Along with I.A.No.1 of 2019, the petitioner has produced Ext.P7 request dated 22.09.2018 made before the 2[nd] respondent financier for No Objection and also Ext.P8 postal receipt. The document marked as Ext.P9 is an application made by the petitioner before the 1[st] respondent, after sending Ext.P7 request to the 2[nd] respondent financier. Ext.P10 is the receipt for Ext.P9 application. 4. Heard the learned counsel for the petitioner and **WP(C).No. 29863 of 2018** -4- also the learned Senior Government Pleader appearing for the 1[st] respondent. Despite service of notice, none appears for the 2[nd] respondent financier. 5. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P6 communication dated 04.09.2018 issued by the 1[st] respondent, whereby the application made by the petitioner for renewal of permit stands rejected mainly for the reason that she could not produce No Objection Certificate from the financier. Some other reasons have also been stated in Ext.P6 for rejecting the request made by the petitioner. 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 **WP(C).No. 29863 of 2018** -5- 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 (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 **WP(C).No. 29863 of 2018** -6- 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 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 **WP(C).No. 29863 of 2018** -7- 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 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 **WP(C).No. 29863 of 2018** -8- 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.” Having considered the pleadings and materials on record, this Court finds that, though no interference is warranted on Ext.P6 communication since, at the time of consideration of the application dated 29.08.2018, the peittioner could not comply with the statutory mandate of Section 51 (6) to (8) of the Motor Vehicles Act, now, after the filing of this writ petition, the petitioner has complied with the statutory mandate under the said provision, by submitting Ext.P7 request before the 2nd respondent **WP(C).No. 29863 of 2018** -9- financier, which was followed by Ext.P9 application before the 1st respondent. Therefore, it is for the 1st respondent to consider Ext.P9 application for renewal of Ext.P2 goods carriage permit, with notice to the petitioner and also to the 2nd respondent financier, and take an appropriate decision, untrammeled by Ext.P6 communication, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 29863 of 2018** -10- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER VEHICLE BEARING NO.KL-07-BJ-8502** - **EXHIBIT P2 TRUE COPY OF THE PERMIT ISSUED TO THE PETITIONER VEHICLE DATED 4.7.2013.** - **EXHIBIT P3 TRUE COPY OF THE INSURANCE POLICY OF THE PETITIONER VEHICLE.** - **EXHIBIT P4 TRUE COPY OF THE PRINTOUT FROM THE WEBSITE OF THE MOTOR VEHICLE DEPARTMENT SHOWING THE REMITTANCE OF THE TAX.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 4.8.2018 IS SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 4.9.2018.** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 22.09.2018** - **EXHIBIT P8 TRUE COPY OF THE POSTAL RECEIPT AND PROOF OF DELIVERY OBTAINED FROM THE OFFICIAL WEBSITE OF POSTAL DEPARTMENT** - **EXHIBIT P9 TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE 1ST RESPONDENT DATED 09.10.2018** - **EXHIBIT P10 TRUE COPY OF THE RECEIPT DATED 09.10.2018 ISSUED BY THE 1ST RESPONDENT** ## **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE**