Majeed s/o Mohammed v. Regional Transport Officer, Tirur, Malappuram District & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940** ## **WP(C).No. 40100 of 2018** ## **PETITIONER:** **MAJEED S/O.MOHAMMED, AGED 47 YEARS, MARAKKARKANDY HOUSE, KANHIRAKUTTY PARAVANNA POST, TIRUR TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.C.M.MOHAMMED IQUABAL** ## **RESPONDENTS:** - **1 THE REGIONAL TRANSPORT OFFICER, TIRUR POST TIRUR, MALAPPURAM DISTRICT, PIN-676 101.** - **2 THE HDB FINANCIAL SERVICES LIMITED, 1ST FLOOR, KURIYANGARA BUILDING, PERUMUGHAM JUNCTION, RAMANATTUKARA, CALICUT-673 633, REPRESENTED BY ITS MANAGER.** - **3 THE MANAGER, HDB FINANCIAL SERVICES LIMITED, 1ST FLOOR, KURIYANGARA BUILDING, PERUMUGHAM JUNCTION, RAMANATTUKARA, CALICUT-673 633.** - **BY ADV. SRI.P.PAULOCHAN ANTONY SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 40100 of 2018** **2** ## **JUDGMENT** The petitioner, who is the owner of Tata 407 Pick Up Van bearing registration No.KL-55/M-19 covered by Ext.P1 certificate of registration, Ext.P2 goods carriage permit and Ext.P3 fitness certificate, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to renew the fitness certificate and permit of the said vehicle on production of the vehicle. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to consider and pass appropriate orders on Ext.P9 representation, within a time frame to be stipulated by this Court. The petitioner has purchased the said vehicle after availing finance from the 2[nd] respondent financer. 2. On 10.12.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice before admission for the 1[st] respondent. Notice before admission **WP(C).No. 40100 of 2018** **3** was ordered to respondents 2 and 3 by speed post returnable within ten days. 3. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the 1[st] respondent. Despite service of notice none appears for respondents 2 and 3. 4. During the course of arguments, the learned counsel for the petitioner would submit that subsequent to the filing of this writ petition, the petitioner has received a notice dated 01.01.2018, whereby he has been directed to file an application in the prescribed format for renewal of permit (Form PRA) and also for renewal of fitness certificate (Form CFRA), after remitting the requisite fee. The learned counsel would also submit that the petitioner shall submit proper applications, after remitting the requisite fee and in compliance with the statutory mandate of sub-sections (6) to (8) of Section 51 of the Motor Vehicles Act, **WP(C).No. 40100 of 2018** **4** 1988 _**.**_ 5. The learned Senior Government Pleader would submit that if any such applications are received, the 1[st] respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner and also to the financier of the said vehicle. ## 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 sub-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 **WP(C).No. 40100 of 2018** **5** declaration that he has not received any communication from the financier within the period of seven days specified in that subsection. 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 **WP(C).No. 40100 of 2018** **6** 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 **WP(C).No. 40100 of 2018** **7** 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 subsection (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 subsection (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 **WP(C).No. 40100 of 2018** **8** 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 **WP(C).No. 40100 of 2018** **9** 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.” Considering the facts and circumstances of the case and also the law laid down in the decision referred to supra, this writ petition is disposed of with the following directions; 1. Within ten days from the date of receipt of a certified copy of this judgment, the petitioner shall file proper applications before the 1[st] respondent, along with the current records of the vehicle, for renewal of Ext.P2 goods carriage permit and Ext.P3 fitness certificate in respect of stage carriage bearing registration No.KL-55/M-19, after complying with the statutory mandate of sub-sections (6) to (8) of Section 51 of the Motor **WP(C).No. 40100 of 2018** **10** Vehicles Act, 1988. 2. On receipt of such applications, the 1[st] respondent shall consider the same and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and also the financier of the said vehicle, taking note of the law laid down by this Court in _**Shabu Sukumaran's case**_ _**(supra)**_ , 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** AV/29/1 **WP(C).No. 40100 of 2018** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE REGISTRATION CERTIFICATE NO.KL 55M-19 DATED 02.02.2O13.** **EXHIBIT P2 THE TRUE COPY OF THE GOODS CARRIAGE PERMIT DATED 15.02.2013.** **EXHIBIT P3 THE TRUE COPY OF THE FITNESS CERTIFICATE DATED 04.07.2017.** **EXHIBIT P4 THE TRUE COPY OF THE DRIVING LICENCE OF THE PETITIONER DATED 18.11.1992.** **EXHIBIT P5 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 01.09.2018.** **EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT IN WP(C)NO.31697/2018 OF THIS HON'BLE COURT DTED 28.09.2018.** **EXHIBIT P7 THE TRUE COPY OF THE REQUEST SENT BY THE PETITIONER TO THE 3RD RESPONDENT DATED 29.10.2018.** **EXHIBIT P8 THE TRUE COPY OF THE POSTAL RECEIPT ISSUED BY INDIA POST DATED 30.10.2018.** **EXHIBIT P9** **THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 26.11.2018.**