Sasankan K.P v Sub Regional Transport Officer, North Paravur and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** ## **WP(C).No. 15957 of 2018** ## **PETITIONER:** **SASANKAN.K.P AGED 69 YEARS,S/O. PARAMU,KOLLERITHARA HOUSE, EDAVANAKAD, PIN – 682 502** **BY ADV. SRI.INNOCENT FRANCIS PAPALI** ## **RESPONDENTS:** - **1 SUB REGIONAL TRANSPORT OFFICER REGIONAL TRANSPORT OFFICE,NORTH PARAVUR, PIN- 683 513.** - **2 BRANCH MANAGER PUNJAB NATIONAL BANK,NORTH PARAVUR BRANCH, SUVARNA PARK BUILDING,MAIN ROAD, NORTH PARAVUR,ERNAKULAM, PIN – 683 513** - **3 DEPUTY TAHSILDAR (REVENUE RECOVERY), TALUK OFFICE, KOCHI-1** - **4 VILLAGE OFFICER VILLAGE OFFICE, EDAVANAKAD, PIN - 682 502** - **5 DISTRICT COLLECTOR CIVIL STATION,COLLECTORATE, KAKKANAD,KOCHI, PIN- 682 030** - **R2 BY ADV. SRI.DEEPAK JOY.K.** **R1 & R3 TO R5 BY ADV.SRI K.P. HARISH , SENIOR GOVERNMENT PLEADER.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15957 of 2018** **2** ## **JUDGMENT** The petitioner, who is the registered owner of TATA Aria, Multi Utility Vehicle purchased after availing hire purchase facility/loan from the 2[nd] respondent Bank has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P20 order dated 23/03/2018 passed by the 1[st] respondent, who is the registering authority in respect of the said vehicle and seeking a writ of mandamus commanding the 1[st] respondent to renew Ext.P2 contract carriage permit and Ext.P13 certificate of fitness in respect of the said vehicle. 2. A counter affidavit has been filed by the 2[nd] respondent Bank opposing the reliefs sought for. 3. Heard learned Counsel for the petitioner, learned Senior Government Pleader appearing for respondents 1, 3 to 5 and also the learned counsel for the 2[nd] respondent bank. 4. The sole issue that arises for consideration in this writ petition is as to whether Ext.P20 order of the 1[st] respondent, whereby the application made by the petitioner for renewal of permit stands rejected, warrants interference by this Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India. 5. The learned Counsel for the petitioner would contend that, **WP(C).No.15957 of 2018** **3** Ext.P20 order passed by the 1[st] respondent is not supported by any valid reasons and that, the said order is one issued contrary to the law laid down by this court in **Shabu Sukumaran v. Regional Transport Officer, Thiruvananthapuram and others (2018 (2) KHC 470).** The learned counsel for the petitioner would also place reliance on the judgment of this Court in **Rajendran v. State Appellate Tribunal, Ernakulam, (1991 (1) KLT 255),** which stands affirmed by the Division bench in **Krishna Das v. State Transport Appellate Tribunal, Ernakulam (1991(2) KLT 203).** 6. Per contra, the learned Counsel for the 2[nd] respondent would point out that Ext.P20 order of the 1[st] respondent is an order appealable under Section 89 of the Motor Vehicles Act, 1988 before the State Transport Appellate Tribunal and as such, the petitioner is not entitled to seek interference of this Court under Article 226 of the Constitution of India, without availing the statutory remedy. In support of the said contention the learned counsel for the 2nd respondent would place reliance on the judgment of the Apex Court in **Authorised Officer, State Bank of Travancore v. Mathew K.C [(2018) 3 SCC 85].** The learned Counsel for the 2[nd] respondent would also rely on the judgment of a Division Bench of the Rajasthan High Court in **Regional Transport Authority, Jodhpur v. Sitha Ram (AIR 1993 Raj. 76).** 7. The reasoning of the 1[st] respondent in Ext.P20 order reads **WP(C).No.15957 of 2018** **4** thus: “As per direction of Hon'ble High Court of Kerala, hearing notice were issued to both parties and conducting the hearing on 23.03.2018. At the time of hearing the financier has strongly objected for the issuing of permit in respect of the vehicle KL42-F-9869 as the registered owner willfully violated the HP terms and the amount of loan payment is pending. Under the above circumstances, this authority is hereby considered the application submit by the petitioner for renewal of permit in respect of vehicle No.KL-42-F-9869 and rejected the same itself u/s 51(9) of MV Act, 1988.” 8. 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 subsection, 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, **WP(C).No.15957 of 2018** **5** 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 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 **WP(C).No.15957 of 2018** **6** 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 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 **WP(C).No.15957 of 2018** **7** 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 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.” 9. In view of the law laid down by this court in _**Shabu**_ _**Sukumaran's**_ **case (supra)** , when an application is made for renewal of permit or renewal of fitness certificate in respect of a vehicle covered by a hypothecation/hire purchase agreement with the financier, the Registering Authority has to apply its mind to **WP(C).No.15957 of 2018** **8** the objections raised by the financier and take an appropriate decision as to whether despite such objections of the financier, the appellant is entitled for renewal. A Reading of Ext.P20 order of the 1[st] respondent would show that the same is vitiated by total nonapplication of mind and the said respondent has not applied his mind to the objections raised by the 2[nd] respondent financier, keeping in mind the law laid down by this court in _**Shabu Sukumaran's**_ **case (supra).** 10. The 1[st] respondent while exercising his powers under sub-section (9) of Section 51 of the Act, acts as a quasi-judicial authority. 11. In **Breen v. Amalgamated Engineering Union [1971 (1) All. E.R. 1148]** Lord Denning, M.R. observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v.** **Crabtree [1974 ICR 120]** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing Director, United** **WP(C).No.15957 of 2018** **9** ## **Commercial Bank and others Vs. P.C.Kakkar [(2003) 4 SCC** **364]** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. 12. Viewed in the light of the law laid down in the decisions referred to supra conclusion is irresistible that Ext.P20 Order of the 1[st] respondent registering authority, is vitiated by total non application of mind and as such, the said order is one issued in violation of the principles of natural justice. In such circumstances, the availability of statutory remedy under Section 89 of the Motor Vehicles Act will not bar the petitioner in challenging Ext.P20 order before this Court, by invoking the writ **WP(C).No.15957 of 2018** **10** ## jurisdiction under Article 226 of the Constitution of India. 13. The petitioner as well as the 2[nd] respondent have raised various contentions as to the applicability of sub-section (4) of Section 81 of the Motor Vehicles Act, while considering the request made by the petitioner for renewal of permit, as sought for in his application. Those issues are left open to be raised before the 1[st] respondent at appropriate stage. Similarly, if the certificate of fitness of the vehicle in question has already expired, it is for the petitioner to move a proper application before the 1[st] respondent after complying with the statutory mandate of subsections (6) to (8) of Section 51 of the Motor Vehicles Act. The right of the petitioner to move such application is left open. 14. In such circumstances, this writ petition is disposed of by setting aside Ext.P20 order dated 23/03/2018 of the 1[st] respondent and the said respondent is directed to reconsider Ext.P17 application dated 22/02/2018 made by the petitioner for renewal of Ext.P2 contract carriage permit in respect of his TATA Aria vehicle bearing registration No. KL-42-F-9869, with notice to the petitioner and also to the 2[nd] respondent financier and after affording them an opportunity of being heard. Necessary orders in this regard shall be passed taking note **WP(C).No.15957 of 2018** **11** of the legal and factual contentions raised by both sides and also the law laid down in the decisions referred to 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** DK/31.10.2018 **WP(C).No.15957 of 2018** **12** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE REGISTRATION OF MOTOR CAB WITH REGISTRATION NO KL-42-F-9869, ISSUED BY THE FIRST RESPONDENT, SUB REGIONAL TRANSPORT OFFICER, NORTH PARAVUR** - **EXHIBIT P2 TRUE COPY OF THE CONTRACT CARRIAGE PERMIT DATED 14.9.2012, NO.P.CO.42/1659/2012, ISSUED BY THE FIRST RESPONDENT, SUB REGIONAL TRANSPORT OFFICER, NORTH PARAVUR** - **EXHIBIT P3 TRUE COPY OF THE TAX LICENSE NO.C.3815055 DATED 18.7.2017 ISSUED BY THE FIRST RESPONDENT, SUB REGIONAL TRANSPORT OFFICER, NORTH PARAVUR** **EXHIBIT P4 TRUE COPY OF THE INSURANCE POLICY ISSUED BY UNITED NATIONAL INSURANCE COMPANY LTD FOR THE VEHICLE WITH REGISTRATION NO. KL-42-F-9869, FOR THE PERIOD 10.5.2018 TO 09.05.2019** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 05.01.2016 SENT BY THE SECOND RESPONDENT BANK TO THE PETITIONER** - **EXHIBIT P6 TRUE COPY OF THE REPLY LETTER DATED 15.1.2016 SENT BY THE PETITIONER TO THE SECOND RESPONDENT BANK** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 25.1.2016 SENT BY THE SECOND RESPONDENT BANK TO THE PETITIONER** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 15.02.2016 SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT BANK** - **EXHIBIT P9 TRUE COPY OF THE NOTICE OF REVENUE RECOVERY DATED 22.2.2016 ISSUED BY THE FIRST RESPONDENT** **WP(C).No.15957 of 2018** **13** - **EXHIBIT P10 THE TRUE COPY OF THE JUDGMENT DATED 08.07.2016 OF THE HON'BLE HIGH COURT OF KERALA IN WPC NO 22823/2016** - **EXHIBIT P11 TRUE COPY OF THE PETITIONER'S STATEMENT OF ACCOUNT RELEVANT PAGES MAINTAINED WITH THE FEDERAL BANK, EDAVANAKAD BRANCH** - **EXHIBIT P12 THE TRUE COPY OF THE CASH RECEIPT, BY WHICH THE PETITIONER REMITTED AN AMOUNT OF RS.3850/- FOR RENEWAL OF THE CONTRACT CARRIAGE PERMIT, WITH THE FIRST RESPONDENT** - **EXHIBIT P13 THE TRUE COPY OF THE CERTIFICATE OF FITNESS ISSUED BY THE FIRST RESPONDENT TO THE MOTOR CAB OF THE PETITIONER** - **EXHIBIT P14 THE TRUE COPY OF THE JUDGMENT DATED 01.02.2018 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN WPC NO 42122/2018** - **EXHIBIT P15 THE TRUE COPY OF THE APPLICATION DATED 12.02.2018 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT (WITHOUT ENCLOSURE)** - **EXHIBIT P16 THE TRUE COPY OF THE LETTER DATED 17.02.2018 SENT BY THE SECOND RESPONDENT TO THE PETITIONER** - **EXHIBIT P17 THE TRUE COPY OF THE APPLICATION DATED 22.2.2018 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT (WITHOUT ENCLOSURES)** - **EXHIBIT P18 THE TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD SHOWING THE RECEIPT OF EXHIBIT P17 BY THE FIRST RESPONDENT ON 24.2.2018** - **EXHIBIT P19 THE TRUE COPY OF THE NOTICE NO. C4/70300/2017, N.PARAVOOR, DATED 16.3.2018 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER** - **EXHIBIT P20 THE TRUE COPY OF THE ORDER NO. C4/1711/2018 DATED 23.03.2018 PASSED BY THE FIRST RESPONDENT** **WP(C).No.15957 of 2018** ## **14** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R4(A) STATEMENT OF ACCOUNT DULY CERTIFIED EXHIBIT R4(B) COPY OF THE JUDGMENT IN OS 371/2016 EXHIBIT R4(C) COPY OF THE DECREE IN OS 371/2016 EXHIBIT R2(A) STATEMENT OF ACCOUNT DULY CERTIFIED EXHIBIT R2(B) COPY OF THE JUDGMENT IN OS 371/2016 EXHIBIT R2(C) COPY OF THE DECREE IN OS 371/2016 EXHIBIT R2(D) COPY OF THE COUNTER AFFIDAVIT FILED IN WPC 42122/2017** **//TRUE COPY//** **PA TO JUDGE** **DK/31.10.2018**