Soudabijili v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 WP(C) NO. 8698 OF 2023`** ## **`PETITIONER/S:`** ``` SOUDABIJILI AGED57YEARS W/OV.M.BIJILI,VALIYAKUNNATHUHOUSE, THOTTUMUGHAM,KANJIRAPPALLYP.O., - KOTTAYAM,PIN686507 BYADVS. R.REJI M.V.THAMBAN THARATHAMBAN B.BIPIN ARUNBOSE ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA REPRESENTEDBYTHESECRETARYTOGOVERNMENT, DEPARTMENTOFMOTORVEHICLES, GOVERNMENTSECRETARIAT, - THIRUVANANTHAPURAM,PIN695001 2THETRANSPORTCOMMISSIONER TRANSPORTDEPARTMENT, - THIRUVANANTHAPURAM,PIN695012 3THEJOINTREGIONALTRANSPORTOFFICER(JOINTRTO) OFFICEOFTHEJOINTREGIONALTRANSPORTOFFICER (SUBREGIONALTRANSPORTOFFICE), KANJIRAPPALY,KOTTAYAMDISTRICT,PIN-686507. 4THESECRETARY REGIONALTRANSPORTAUTHORITY, ``` W.P.(C) No.8698 of 2023 2 ``` OFFICEOFTHEREGIONALTRANSPORTAUTHORITY, - KANJIRAPPALY,KOTTAYAMDISTRICT,PIN686507 ``` ``` 5HINDUJALEYLANDFINANCELTD IINDFLOOR,AMBILIBUILDING, - WARRIAMROAD,ERNAKULAM,PIN683016 ``` ``` SRIT.R.RENJITH,SR.GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON14.03.2023,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` W.P.(C) No.8698 of 2023 3 ## **JUDGMENT** The petitioner herein is the registered owner of a Tipper Lorry bearing Registration No.KL-34-E-6547. She states that the vehicle was purchased by availing finance from the 5th respondent financier. Default was committed in paying monthly hire charges. The grievance of the petitioner is that while applying for renewal of goods carriage permit through the online portal, the respondents are insisting on the production of a No Objection Certificate from the financier. It is contended that the official respondents are bound to consider the request under Section 51(9) of the Motor Vehicles Act and the principles of law laid down in **Shabu Sukumaran v. RTO, TVM and Ors.** [2018 (2) KLT 219]. It is on these assertions that this writ petition is filed seeking the following reliefs: (i) To issue a writ of mandamus or other writ or order directing the respondents 3 and 4 permitting the petitioner to renew the goods carriage permit of the petitioner’s vehicle bearing registration No.KL-34E-6547 without insisting for no objection certificate from the 5h respondent. 2. I have heard Sri. R. Reji, the learned counsel appearing for the W.P.(C) No.8698 of 2023 4 petitioner and Sri. T.R. Renjith, the learned senior Government Pleader. 3. In view of the nature of the order that I propose to pass, notice to the 5th respondent is dispensed with. 4. The issue raised in this writ petition is squarely covered by the law laid down in **Shabu Sukumaran v. RTO, TVM and Ors.** [2018 (2) KLT 219], wherein this Court, after considering Section 51 of the Act observed as under: 4. S.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 S.51 provides that the registered owner shall, before applying to the appropriate authority, for the renewal of a permit under S.81 or for the issue of duplicate certificate of registration under sub- section (14) of S.41, or for the assignment of a new registration mark under S.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 S.48 or for change of residence or place of business under S.49, or for the alteration of the vehicle under S.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 S.51 provides that W.P.(C) No.8698 of 2023 5 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 S.51 provides that the registered owner shall, while applying to the appropriate authority for the renewal of any permit under S. 81, or for the issue of a duplicate certificate of registration, under sub- section (14) of S.41, or while applying for assignment of a new registration mark under S.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 S.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 W.P.(C) No.8698 of 2023 6 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 S.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 S.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 S.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. 5. In the instant case, the petitioner is seeking a direction to respondents 3 and 4 to renew the goods carriage permit of the petitioner’s vehicle bearing registration No.KL-34E-6547 without insisting for a No Objection Certificate from the financier. The petitioner is required to furnish a declaration under Section 51(8) of the Act that she has not W.P.(C) No.8698 of 2023 7 received any communication within the period of seven days stipulated under Section 51(7) of the Act, and if such a declaration is furnished, the appropriate authority can take a decision in Section 51(9)(a) of the Act. 6. In that view of the matter, this writ petition is disposed of by issuing the following directions. - a) The petitioner shall furnish a declaration in terms of Section 51(8) of the Act before the 3rd respondent who shall consider the same and take a decision in terms of Section 51(9)(a) of the Motor Vehicles Act, 1988. - b) Orders shall be passed within one month from the date of production of the declaration as ordered above with notice to the petitioner and the financier concerned. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** ``` NS ``` W.P.(C) No.8698 of 2023 8 ## **`APPENDIX OF WP(C) 8698/2023`** ``` PETITIONER(S)EXHIBITS ``` ``` ExhibitP1 ``` ``` TRUECOPYOFTHERCPARTICULARSOFTHE PETITIONER'SVEHICLEBEARINGREGISTRATIONNO. KL-34-E-6547 ``` ``` ExhibitP2TRUECOPYOFTHEGOODSCARRIAGEPERMITOF VEHICLEBEARINGREGISTRATIONNO.NO. KL-34-E-6547ISSUEDBYTHE4THRESPONDENT DATED30.11.2017 ``` ``` ExhibitP3 ``` ``` TRUECOPYOFTHEDISCHARGESUMMARYISSUED FROMDEPARTMENTOFNEUROSCIENCE,CARTITAS HOSPITAL,KOTTAYAM. ``` ``` RESPONDENT(S)EXHIBITS:NIL ```