RIJU K.S v. Regional Transport Officer, Pathanamthitta and Mahindra and Mahindra Financial Services Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941** ## **WP(C).No. 10285 of 2019** ## **PETITIONER:** **RIJU K.S, AGED 35 YEARS, S/O.K.J.SAMUEL, KAVINAL THEKKETHIL, VELLAPPRA, VALLICODE, KAIPATTOOR P.O., PATHANAMTHITTA.** **BY ADV. SRI.PRASAD CHANDRAN** ## **RESPONDENTS:** - **1 THE REGIONAL TRANSPORT OFFICER, OFFICE OF THE REGIONAL TRANSPORT OFFICE, PATHANAMTHITTA, PIN- 689645.** - **2 THE MANAGER, MAHINDRA AND MAHINDRA FINANCIAL SERVICES LTD., 4TH FLOOR NOEL HOUSE, THRIKKAKKARA P.O., KAKKANAD, KOCHI, PIN- 682021. SRI.MANURAJ.K.J., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 10285 of 2019** -2- ## **JUDGMENT** The petitioner, who is the registered owner of a goods carriage bearing registration No.KL-03/W-9037 covered by Ext.P1 certificate of registration and Ext.P2 goods carriage permit, which was valid upto 12.06.2018, 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 said goods carriage permit, by considering Ext.P3 application forthwith. 2. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the 1[st] respondent. Considering the nature of relief proposed to be granted, service of notice on the 2[nd] respondent financier is dispensed with. 3. The petitioner has made Ext.P3 application for renewal of Ext.P2 goods carriage permit in respect of his vehicle bearing registration No.KL-03/W-9037, which is one purchased after entering into a hypothecation agreement **WP(C).No. 10285 of 2019** -3- with the 2[nd] respondent financier. The 1[st] respondent by an endorsement dated 30.03.2019 made on Ext.P3 application, directed the petitioner to produce No Objection Certificate from the 2[nd] respondent financier. Thereafter, the petitioner sent Ext.P4 request dated 06.03.2019 before the 2[nd] respondent financier for No Objection Certificate for renewal of Ext.P2 goods carriage permit. As can be seen from the acknowledgment card, which is placed on record along with Ext.P4, the 2[nd] respondent financier has already acknowledged the receipt of that request. 4. The learned counsel for the petitioner would submit that, in view of the acknowledgment of Ext.P4 request by the 2[nd] respondent financier, the petitioner shall file a proper declaration before the 1[st] respondent, as per the mandate of sub-section (8) of Section 51 of the Motor Vehicles Act. 5. In **Shabu Sukumaran v. Regional Transport Officer, TVM and others [2018 (2) KHC 470]** , after **WP(C).No. 10285 of 2019** -4- 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 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 **WP(C).No. 10285 of 2019** -5- 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 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 **WP(C).No. 10285 of 2019** -6- 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 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 **WP(C).No. 10285 of 2019** -7- 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 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 subsection (9) of Section 51 of the Act, the registering **WP(C).No. 10285 of 2019** -8- 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.” 6. The learned Government Pleader would submit that, if the petitioner re-submits Ext.P3 application, along with a proper declaration under sub-section (8) of section 51 of the Motor Vehicles Act, the 1[st] respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner and also the 2[nd] respondent financier, after affording them an opportunity of being heard. In such circumstances, this writ petition is disposed of with the following directions; i) If not already re-submitted, the petitioner shall re-submit Ext.P3 application for renewal of Ext.P2 goods carriage permit, along with a proper declaration as per mandate of sub-section (8) of Section 51 of the Motor Vehicles Act. This shall be done within one week from the date of receipt of a certified copy of this judgment. **WP(C).No. 10285 of 2019** -9- ii) Thereafter, the 1[st] respondent shall consider Ext.P3 application made by the petitioner for renewal of Ext.P2 goods carriage permit and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and also to the 2[nd] respondent financier, and after affording them an opportunity of being heard, taking note of the law laid down by this Court in the decision referred to _supra_ . iii) A decision in this regard shall be taken, as expeditiously as possible, at any rate within a period of six weeks from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 10285 of 2019** -10- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE REGISTRATION**| |---|---| ||**CERTIFICATE OF THE PETITIONER VEHICLE**| ||**KL-03/W 9037.**| |**EXHIBIT P2**|**TRUE COPY OF THE REGULAR PERMIT ISSUED**| ||**TO THE PETITIONER VALID TILL**| ||**12.06.2018.**| |**EXHIBIT P3**|**TRUE COPY OF THE APPLICATION FOR**| ||**RENEWAL OF THE REGULAR PERMIT**| ||**SUBMITTED BY THE PETITIONER DATED**| ||**30.03.2019 ALONG WITH COVERING LETTER.**| |**EXHIBIT P4**|**TRUE COPY OF THE LETTER SUBMITTED BY**| ||**THE PETITIONER FOR NO OBJECTION**| ||**CERTIFICATE TO THE 2ND RESPONDENT**| ||**DATED 06.03.2019 ALONG WITH**| ||**ACKNOWLEDGMENT CARD.**| **RESPONDENTS' EXHIBITS: NIL**