TINTU BIGILY v. STATE OF KERALA, JOINT REGIONAL TRANSPORT OFFICER AND M/S RELIANT CREDIT (INDIA) LTD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940** ## **WP(C).No. 2428 of 2019** ## **PETITIONER:** **TINTU BIGILY, AGED 38 YEARS, S/O BIGILY, VALIYAKUNNATH, KANJAIRAPPALLY-686 507.** **BY ADV. SRI.T.M.ABDUL LATIFF** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**MOTOR VEHICLES DEPARTMENT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE JOINT REGIONAL TRANSPORT OFFICER,**| ||**SUB REGIONAL TRANSPORT OFFICE,**| ||**KANAJIRAPPALLY- 686 507**| |**3**|**M/S RELIANT CREDIT (INDIA )LTD,**| ||**HEAD OFFICE, A.M.ROAD, KOTHAMANGALAM-686 666**| ||**(FORMERLY KNOWN AS RELIANT HIRE PURCHASE**| ||**CO.LTD).**| ||**SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)2428 OF 2019 ## **JUDGMENT** The petitioner, who purchased a tipper lorry bearing registration No.KL-34/B-6228, covered by Ext.P1 certificate of registration and Ext.P2 contract carriage permit, which was valid till 29.07.2017, which is a vehicle purchased after entering into a hire purchase agreement with the 3[rd] respondent financier, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent to issue no objection certificate to the petitioner, for the purpose of obtaining renewal of Ext.P2 goods carriage permit in respect of his tipper lorry bearing registration No.KL-34/B-6228, and in case the 3[rd] respondent refuse to give the same, an order directing the 2[nd] respondent Joint Regional Transport Officer to renew the permit of the vehicle, without insisting for no objection certificate from the 3[rd] respondent financier. The petitioner has also sought for appropriate writ or order commanding the 3[rd] respondent financier to settle the loan liability of the petitioner amicably by permitting him to pay off the liability in 12 instalments and also to direct them not to initiate any steps 3 WP(C)2428 OF 2019 preventing the plying of the said vehicle bearing registration No.KL-34/B-6228. 2. On 28.01.2019, when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions as to whether the petitioner has complied with the statutory mandate of sub-section (6) to (8) of Section 51 of the Motor Vehicles Act, 1988. 3. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents 1 and 2. Considering the nature of reliefs proposed to be granted, service of notice on the 3[rd] respondent financier is dispensed with. 4. The 3[rd] respondent financier, with whom the petitioner had entered into a hire purchase agreement for purchasing the tipper lorry bearing registration No.KL-34/B6228, covered by Ext.P1 certification of registration and Ext.P2 contract carriage permit, is a private financier. The writ jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked against the 3[rd] respondent, who is a private financier, in respect of any dispute arising in connection 4 WP(C)2428 OF 2019 with that hire purchase agreement. 5. As far as the renewal of Ext.P2 contract carriage permit is concerned, since the vehicle is covered by a hire purchase agreement, the petitioner has to comply with the statutory mandate of Section 51 of the Motor Vehicles Act. 6. According to the petitioner, for renewal of Ext.P2 contract carriage permit, he has already made an application before the 2[nd] respondent. In order to comply with the statutory requirements of Section 51 of the Motor Vehicles Act, the petitioner has submitted Ext.P6 request dated 26.12.2018 before the 3[rd] respondent financier, through speed post, as evidenced by Ext.P7 receipt. However, no reply is received from the financier. 7. The learned Senior Government Pleader, on instructions from the 2[nd] respondent, would submit that though the application made by the petitioner for renewal of Ext.P2 contract carriage permit is pending consideration, the petitioner has to submit a declaration, as per the mandate of sub-section (8) of Section 51 of the Motor Vehicles Act, and based on that declaration, the 2[nd] respondent shall consider 5 WP(C)2428 OF 2019 that request, with notice to the petitioner and also to the 3[rd] respondent financier. 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 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 WP(C)2428 OF 2019 6 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 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 subsection (6), the financier may issue, or refuse, for 7 WP(C)2428 OF 2019 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 subsection (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 8 WP(C)2428 OF 2019 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 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.” 9. 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 with the following directions; 9 WP(C)2428 OF 2019 (i) Within 10 days from the date of receipt of a certified copy of this judgment, the petitioner shall submit a declaration, as per the mandate of subsection (8) of Section 51 of the Motor Vehicles Act, before the 2[nd] respondent Joint Regional Transport Officer, in connection with the application made for renewal of Ext.P2 contract carriage permit. (ii) On receipt of such declaration, within the time limit specified as above, the 2[nd] respondent shall consider the application for renewal of Ext.P2 contract carriage permit, with notice to the petitioner and also to the 3[rd] respondent financier and pass appropriate orders thereon, strictly in accordance with the law, as expeditiously as possible, at any rate, within a further period of six weeks, taking note of the law laid down by this ## Court in **Shabu Sukumaran's case (supra)** . Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 10 WP(C)2428 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE IN RESPECT OF PETITIONER'S VEHICLE BEARING NO KL-34-B-6228 EXHIBIT P2 TRUE COPY OF GOODS CARRIAGE PERMIT DATED 3.8.2012** **EXHIBIT P3 TRUE COPY OF NOTICE NO 063/18-19 DATED 22.11.2018 EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 10.12.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE ENDORSEMENT OF THE 2ND RESPONDENT ON THE REVERSE SIDE OF EXT P5 APPLICATION EXHIBIT P6 TRUE COPY OF THE PETITION DATED 26.12.2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF THE POSTAL REGISTRATION SLIP** ## **RESPONDENTS' EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**