Sruthy Das v. Regional Transport Officer, Thripunithura and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941** ## **WP(C).No. 7048 of 2019** ## **PETITIONER:** **SRUTHY DAS, AGED 26 YEARS, W/O. BINOOP NANDAKUMAR, THOPPIL HOUSE, EROOR P.O., PIN-682 306, ERNAKULAM.** **BY ADV. SRI.RILGIN V.GEORGE** ## **RESPONDENTS:** |**1**|**THE REGIONAL TRANSPORT OFFICER,**| |---|---| ||**THE REGIONAL TRANSPORT OFFICE,**| ||**2ND FLOOR, CIVIL STATION,**| ||**KAKKANAD.**| |**2**|**JOINT RTO,**| ||**SUB REGIONAL TRANSPORT OFFICE,**| ||**1ST FLOOR, MINI CIVIL STATION,**| ||**NEAR OLD BUS STAND,**| ||**THRIPPUNITHURA, PIN-682 301.**| |**3**|**TRANSPORT COMMISSIONER,**| ||**MOTOR VEHICLES DEPARTMENT,**| ||**TRANS TOWERS, VAZHUATHAKKAD,**| ||**THIRUVANANTHAPURAM, PIN-695 014.**| |**4**|**THE MANAGER,**| ||**CHOLAMANDALAM FINANCE CO. LTD.,**| ||**2ND FLOOR, THEKKEKKARA COMMERCIAL CENTRE,**| ||**PADIVATTOM, ERNAKULAM-682 024.**| ||**SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 7048 of 2019** -2- ## **JUDGMENT** The petitioner, who is the registered owner of a vehicle bearing registration No.KL-68/6321 covered by Ext.P1 certificate of registration, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash the order of rejection of Ext.P2 application for renewal of fitness certificate and a writ of mandamus commanding respondents 1 and 2 to issue the fitness certificate to the petitioner forthwith. 2. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents 1 to 3. Considering the nature of relief proposed to be granted, service of notice on the 4[th] respondent financier is dispensed with. 3. The grievance of the petitioner is that Ext.P2 application for renewal of fitness certificate in respect of her vehicle covered by Ext.P1 certificate of registration stands rejected, without assigning any valid licence and as such, the said application is liable to be reconsidered and **WP(C).No. 7048 of 2019** -3- appropriate orders to be passed by the 2[nd] respondent. 4. The learned Government Pleader, on instructions, would submit that Ext.P2 application for renewal of fitness certificate, which is a belated application, is still pending consideration and that, the 2[nd] respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner and also to the 4[th] respondent financier, subject to the condition that the petitioner obtains No Objection Certificate from the 4[th] respondent financier or produces a declaration as per the mandate of sub-section (8) of Section 51 of the Motor Vehicles Act, 1988. 5. 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 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 **WP(C).No. 7048 of 2019** -4- 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 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 **WP(C).No. 7048 of 2019** -5- 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 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 **WP(C).No. 7048 of 2019** -6- 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 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. **WP(C).No. 7048 of 2019** -7- 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.” 6. During the course of arguments, the learned counsel for the petitioner would submit that, if not already produced, either a No Objection Certificate from the financier or a declaration as per the mandate of sub-section (8) of Section 51 of the Motor Vehicles Act, she shall be **WP(C).No. 7048 of 2019** -8- produced before the 2[nd] respondent Joint Regional Transport Officer, within a time limit to be specified by this Court and thereafter, the said respondent may be directed to consider and pass appropriate orders on Ext.P2 application, with notice to the petitioner and also to the 4[th] respondent financier. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; i) If not already produced, the petitioner shall produce either a No Objection Certificate from the 4[th] respondent financier or a declaration under sub-section (8) of Section 51 of the Motor Vehicles Act, 1988 before the 2[nd] respondent Joint Regional Transport Officer, for consideration of Ext.P2 application for renewal of fitness certificate in respect of the petitioner's vehicle bearing registration No.KL68/6321, covered by Ext.P1 certificate of registration, within a period of three weeks from the date of receipt of a certified copy of this judgment. ii) On production of the aforesaid document, the 2[nd] respondent shall consider and pass appropriate orders on Ext.P2 application made by the petitioner **WP(C).No. 7048 of 2019** -9- for renewal of fitness certificate, with notice to the petitioner and also to the 4[th] respondent financier, taking note of the law laid down by this Court in **Shabu Sukumaran's case (supra)** . iii) A decision in this regard shall be taken as expeditiously as possible, at any rate, within a period of one month thereafter. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 7048 of 2019** -10- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF VEHICLE BEARING NUMBER KL-68-6321 EXHIBIT P2 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR RENEWAL OF CERTIFICATE OF FITNESS EXHIBIT P3 THE TRUE COPY OF THE RECEIPT ISSUED BY THE MOTOR VEHICLES DEPARTMENT DATED 29.11.2018** ## **RESPONDENTS' EXHIBITS: NIL**