P. N. Ponnappan v. Secretary, Road Transport Authority (RTA), VaiKOM; Road Transport Authority (RTA), VaiKOM; Mahindra & Mahindra Financial Services Ltd

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940** **WP(C).No. 24197 of 2018** ## **PETITIONER(S)** **P.N.PONNAPPAN S/O. NARAYANAN, AGED 55 YEARS, 303 PADINJARE ILAYIDATH, CHEMBU P.O., 4 CHEMBU, VAIKOM, KOTTAYAM DISTRICT.** **BY ADV.SRI.P.M.JOSHI** ## **RESPONDENT(S):** **1. THE SECRETARY ROAD TRANSPORT AUTHORITY (RTA), VAIKOM, PIN - 686 641.** **2. ROAD TRANSPORT AUTHORITY (RTA)** **VAIKOM, KOTTAYAM, PIN - 686 641.** **3. MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD 4TH FLOOR, NOEL HOUSE, THRIKKAKARA P.O., KOCHI - 682 021, REPRESENTED BY ITS MANAGER.** **R BY SRI. K.P HARISH, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 24197 of 2018 (Y)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 THE TRUE COPY CERTIFICATE OF REGISTRATION OF VEHICLE BEARING REGISTRATION NO.KL-36D-1286. EXHIBIT P2 THE TRUE COPY OF THE PERMIT NO. P.CO 36/958/2013 DATED 19.7.2018 ISSUED BY 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P3 THE TRUE COPY OF ROAD TAX RECEIPT ISSUED TO THE PETITIONER FROM THE 2ND RESPONDENT. EXHIBIT P4 THE TRUE COPY OF THE INSURANCE POLICY SCHEDULE CUM CERTIFICATE DATED 2.7.2018 FROM THE NEW INDIA ASSURANCE CO. LTD. EXHIBIT P5 THE TRUE COPY OF CERTIFICATE OF FITNESS ON 19.6.2018 ISSUTD TO THE VEHICLE BEARING KL-36-D-1286. EXHIBIT P6 THE TRUE COPY OF THE POLLUTION UNDER CONTROL CERTIFICATE DATED 19.6.2018 ISSUED TO THE VEHICLE BEARING KL-36-D-1286. EXHIBIT P7 THE TRUE COPY OF THE APPLICATION DATED 3.7.2018 FOR RENEWAL OF PERMIT. EXHIBIT P8 THE TRUE COPY OF REQUEST LETTER DATED 6.7.2018 SENT TO THE 3RD RESPONDENT. EXHIBIT P9 THE TRUE COPY OF THE POSTAL RECEIPT DATED 6.7.18.** **TRUE COPY** **P.S. TO JUDGE.** **acd** ## **ANIL K. NARENDRAN, J.** ------------------------------------------W.P.(C)No.24197 of 2018 ---------------------------------------------Dated this the 23[rd] day of July, 2018 ## **JUDGMENT** The petitioner, who is the registered owner of a Tata Motor Cab (Taxi) bearing registration No.KL-36/D-1286 covered by Ext.P1 Certificate of Registration, which is covered by a hire purchase agreement with the 3[rd] respondent, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 1[st] and 2[nd] respondents to accept Ext.P7 application made by the petitioner for renewal of Ext.P2 contract carriage permit in respect of the said vehicle bearing registration No.KL-36/D-1286, without insisting No Objection Certificate (NOC) from the 3[rd] respondent financier. The petitioner has also sought for other consequential reliefs. 2. On 19.07.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 and 2 and sought time to get instructions. Urgent notice on admission by special messenger was ordered to the 3[rd] respondent. W.P.(C)No.24197/2018 2 3. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents 1 and 2. Despite service of notice, none appears for the 3[rd] respondent financier. 4. The grievance of the petitioner in this writ petition is that Ext.P7 application made by him for renewal of Ext.P2 contract carriage permit in respect of his vehicle bearing registration No. KL-36/D-1286, which is covered by a hire purchase agreement with the 3[rd] respondent financier, is not being considered by the 1[st] respondent on the ground that unless the petitioner obtains an NOC from the 3[rd] respondent financier, such an application cannot be entertained. 5. Relying on Ext.P8 request dated 6.7.2018 and also Ext.P9 postal receipt, the learned counsel for the petitioner would contend that the petitioner has already made a request before the 3[rd] respondent financier for issuance of NOC for renewal of Ext.P2 contract carriage permit. However, the 3[rd] respondent has not chosen to respond to the request made in Ext.P8. W.P.(C)No.24197/2018 3 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 even in a 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. Subsection (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 W.P.(C)No.24197/2018 4 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 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 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 W.P.(C)No.24197/2018 5 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. Having considered the submissions made by the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents 1 and 2, this writ petition is disposed of, by directing the 1[st] respondent to consider Ext.P7 application made by the petitioner for renewal of Ext.P2 contract carriage permit in respect of his vehicle bearing registration No.K L-36/D-1286, strictly in accordance with law, and taking note of the law laid down by this Court in W.P.(C)No.24197/2018 6 _**Shabu Sukumaran's case (supra)**_ , with notice to the petitioner and also to the 3[rd] respondent-financier. Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate, within a period of four weeks from the date of receipt of a certified copy of this judgment. sd/- **ANIL K. NARENDRAN, JUDGE.** acd