Vaisakhhan S.G. v. Regional Transport Authority, Thiruvananthapuram & Shriram Transport Finance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY,THE 22ND DAY OF OCTOBER 2018 / 30TH ASWINA, 1940** ## **WP(C).No. 24008 of 2018** ## **PETITIONER:** **VAISAKHAN S.G S/O. SASIKUMAR, AGED 33 YEARS,MORIA MOUNT, EDAKODE, NEMOM P.O.,THIRUVANANTHAPURAM - 695 020.** **BY ADVS. SRI.R.V.SREEJITH SMT.G.MAHESWARY** ## **RESPONDENTS:** |**1**|**THE REGIONAL TRANSPORT OFFICER**| |---|---| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**SHRIRAM TRANSPORT FINANCE COMPANY LTD**| ||**4TH FLOOR, CAPITAL CENTRE, STATUE,M.G.ROAD,**| ||**THIRUVANANTHAPURAM - 695 001,**| ||**REPRESENTED BY ITS MANAGER.**| **SMT. SHEEJA C.S., SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.24008 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is the owner of an Ashok Leyland lorry bearing registration No.KL-01/AL-504, covered by Ext.P1 certificate of registration and Ext.P2 national permit, which was valid till 16.12.2015, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Regional Transport Authority to issue a duplicate certificate of registration in respect of the said vehicle. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to alter the permit of the said vehicle as goods carriage permit, as sought for in Ext.P8 application, and to cancel the national permit. 2. On 25.7.2018, when this writ petition came up for admission, the learned Government Pleader took notice on admission for the 1[st] respondent and ## **W.P.(C)No.24008 of 2018** ## **:-3-:** urgent notice on admission by speed post was ordered to the 2[nd] respondent, returnable within ten days. 3. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the 1[st] respondent. Despite service of notice, none appears for the 2[nd] respondent financier. 4. The pleadings and materials on record would show that the petitioner purchased the lorry bearing registration No.KL-01/AL-504, covered by Ext.P1 certificate of registration, after availing hire purchase from the 2[nd] respondent financier. 5. The learned Senior Government Pleader would point out that Ext.P7 application made by the petitioner is not supported by the No Objection Certificate issued by the 2[nd] respondent financier under sub-section (6) of Section 51 of the Motor Vehicles Act or a declaration under sub-section (7) ## **W.P.(C)No.24008 of 2018** ## **:-4-:** of Section 51 of the Act, accompanied by the certificate from the police station, a newspaper advertisement and also an affidavit executed in the presence of a notary. The learned Senior Government Pleader would submit that if the petitioner makes a fresh application, after complying the statutory requirements as above, the 1[st] respondent shall entertain the same and once the petitioner remits the requisite fee, the said application shall be considered, in accordance with law. 6. 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 ## **W.P.(C)No.24008 of 2018** ## **:-5-:** 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 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 read thus; ## **W.P.(C)No.24008 of 2018** ## **:-6-:** “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. Subsection (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 ## **W.P.(C)No.24008 of 2018** ## **:-7-:** 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 subsection. 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 ## **W.P.(C)No.24008 of 2018** ## **:-8-:** 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 ## **W.P.(C)No.24008 of 2018** ## **:-9-:** 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.” Having considered the submissions made by the learned counsel on both sides this writ petition is disposed of with the following directions; - (i) Within two weeks from the date of receipt of a certificate copy of this judgment, the petitioner shall submit a proper application before the 1[st] respondent for issuance of duplicate certificate of registration of his lorry bearing registration No.KL-01/AL-504 and another application to alter the permit as a goods carriage permit by cancelling the national permit, after complying with the statutory mandate of sub-sections (6) to (8) of Section 51 of the Motor Vehicles Act. ## **W.P.(C)No.24008 of 2018** **:-10-:** (ii) If any such applications are received within the aforesaid time limit, after remitting the requisite fee, the 1[st] respondent shall consider the same and pass appropriate orders thereon, taking note of the law laid down by this Court in **Shabu Sukumaran's case (supra)** , with notice to the petitioner and also to the 2[nd] respondent financier and after affording them an opportunity of being heard. (iii) Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate within a period of one month from the date of receipt of such applications. Sd/- **ANIL K.NARENDRAN JUDGE** ami/24.10.18 ## **W.P.(C)No.24008 of 2018** ## **:-11-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE LORRY. EXHIBIT P2 TRUE COPY OF THE PERMIT OF THE LORRY. EXHIBIT P3 TRUE COPY OF THE REPORT OF THE AMIN ATTACHING THE PROPERTY OF THE PETITIONER. EXHIBIT P4 TRUE COPY OF JUDGMENT IN WPC NO. 36895/2016. EXHIBIT P5 THE TRUE COPY OF THAT JUDGMENT IN WPC NO. 7740/2017 DATED 08.03.2017. EXHIBIT P6 THE TRUE COPY OF ORDER NO. G7/8726/T/2016 DATED 03.05.2017. EXHIBIT P7 TRUE COPY OF THE APPLICATION ALONG WITH THE AFFIDAVIT. EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 14.06.2018. //TRUE COPY// ami/ P.A.TO JUDGE**