Vinod Kumar K. vs The Secretary, Regional Transport Authority, Civil Station Ayyanthole, Thrissur District; Joint Regional Transport Officer, Sub Regional Transport Office, Triprayar; M/S HDFC Bank

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, ``` ## **`1944`** ## **`WP(C) NO. 40197 OF 2022`** ## **`PETITIONER/S:`** ``` VINOD KUMAR K.,AGED 45 YEARS S/O. GOPALAN, KARIPPURU HOUSE, PAZHUVIL.P.O., KURUMPILAVU, THRISSUR DISTRICT - 680564. ``` ``` BY ADVS. G.HARIHARAN PRAVEEN.H. K.S.SMITHA V.R.SANJEEV KUMAR GENTLE C.D. ``` ## **`RESPONDENT/S:`** ``` 1THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, CIVIL STATION AYYANTHOLE, THRISSUR DISTRICT - 680003. 2JOINT REGIONAL TRANSPORT OFFICER, SUB REGIONAL TRANSPORT OFFICE, TRIPRAYAR, THRISSUR DISTRICT - 680 576. 3M/S. HDFC BANK, SUHARSHA TOWERS, GROUND, SHORANUR ROAD, THRISSUR - 680001 REPRESENTED BY ITS SENIOR BRANCH MANAGER. ``` ``` BY ADV PRADEESH CHACKO ``` ## **`OTHER PRESENT:`** ``` SRI.JIMMY GEORGE, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- W.P.(C). No. 40197 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 40197 of 2022 ============================================================= Dated this the 16[th] day of December, 2022 ## **JUDGMENT** The above writ petition is filed with following prayers: _(i) Issue a writ of certiorari or any other appropriate writ or order quashing Exhibit.P9 order issued by the 2[nd] respondent without complying with the directions contained in Exhibit.P6 and P7 judgments._ _(ii) Issue a writ of mandamus or any other appropriate writ, order or commanding the 2[nd] respondent to renew the permit of the vehicle mentioned in Exhibit.P1 taking note of Exhibit.P4 declaration submitted by the petitioner and following the dictum laid down in the matter of Shabu sukumaran Vs. RTO, Thiruvananthapuram and others reported in 2018(2) KHC 470. And_ _(iii) To pass such orders or reliefs as this Hon'ble Court deems fit in the interest of justice.” (sic)_ 2. The petitioner is the registered owner of a Bus bearing Registration No.KL-08BN-1617 which is covered with a contract carriage permit issued by the 1[st] respondent which was valid upto 28.08.2022. It is the case of the petitioner that the vehicle in -3- W.P.(C). No. 40197 of 2022 question was purchased after availing finance from the 3[rd] respondent and the hypothecation of the vehicle with the 3[rd] respondent was duly noted in the registration certificate. As per the provisions of Section 51 (6) of the Motor Vehicles Act, the permit holder of the vehicle, which is subject to hypothecation, has to get NOC from the financier for renewal of permit and the application for renewal of permit is to be filed at least one month before the expiry period. It is the case of the petitioner that the petitioner had made a request before the 3[rd] respondent on 22.07.2022 seeking issuance of NOC for renewal of permit as provided under section 51(6) of the Motor Vehicles Act. However, it is the case of the petitioner that the 3[rd] respondent has neither issued nor refused to issue NOC to the petitioner as sought for by him and therefore, it is submitted that there is a deeming provision under Section 51 (7) of the Motor Vehicles Act 1989, which says that if the financier does not act upon the request made by the borrower u/s 51(6) of the MV Act within -4- W.P.(C). No. 40197 of 2022 seven days from the date of receipt of the request, the No objection is deemed to have been issued by the financier. Thereafter, the petitioner preferred a writ petition before this Court and this Court directed to consider the same. Now as per Ext.P9, the 2[nd] respondent stated that the financier appeared and submitted that there is arrears from the petitioner. Hence the application is rejected. Hence this writ petition 3. Heard the counsel for the petitioner and the Government Pleader. I also heard the counsel appearing for the 3[rd] respondent. 4. This Court considered the contentions of the petitioner and the respondents. I also perused Ext.P9. It is true that the financier submitted before the 2[nd] respondent that there is arrears in the loan and they initiated arbitration proceedings and therefore, they are not in a position to issue NOC for renewal of the permit. This Court in Shabu Sukumaran v. Regional -5- W.P.(C). No. 40197 of 2022 Transport Offier, Trivandrum and others [2018 (2) KHC 417] considered this point. It will be better to extract paragraphs 6 and 7 here: _“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._ _7. In Jayamon v. Regional Transport Authority, Cherthala and Another, 2015 (2) KHC 685 ILR 2016 (1) Ker. 70 this Court observed that clause (a) of sub-section (9) of S.51 of the Act confers discretion on the authority to either refuse or renew the permit, even in the event of refusal by the financier to issue a no objection certificate. Paragraph 6 of the said decision reads thus:_ -6- W.P.(C). No. 40197 of 2022 _"6. The petitioner has filed such a declaration and clause (b) of sub-section (9) specifically mandates renewal of the permit, on such declaration being made. It is also to be noticed that sub clause (a) of sub-section (9), even in the event of rejection by the financier, confers discretion on the authority to either renew or refuse to renew the permit. In the present case, even that discretion need not be exercised, since there is a declaration on record that a communication has been sent to the financier and no response has been received within seven days which brings into operation the deeming provision.”_ 5. In the light of the same, it is clear that the registering authority has to take an independent decision after hearing the petitioner and the financier. There is no such independent consideration in Ext.P9. In such circumstances, according to me, Ext.P9 can be set aside, without expressing any opinion and the 2[nd] respondent can be directed to reconsider the matter, after giving an opportunity of hearing to the petitioner and the 3[rd] respondent. Therefore, this writ petition is disposed of in the following manner: -7- W.P.(C). No. 40197 of 2022 ## 1. Ext.P9 is set aside. 2. The 2[nd] respondent is directed to reconsider the matter, after giving an opportunity of hearing to the petitioner and the 3[rd] respondent, as expeditiously as possible, at any rate, within ten days from the date of receipt of a copy of this judgment. 3. The petitioner and the 3[rd] respondent will appear before the 2[nd] respondent on 27.12.2022. No fresh notice is necessary either to the petitioner or to the financier. **sd/-** **P.V.KUNHIKRISHNAN JUDGE** das -8- W.P.(C). No. 40197 of 2022 ## **`APPENDIX OF WP(C) 40197/2022`** ## `PETITIONER EXHIBITS` - `Exhibit P1 TRUE COPY OF THE CONTRACT CARRIAGE PERMIT DATED 29.08.2017 ISSUED BY THE 1ST RESPONDENT.` - `Exhibit P2 TRUE COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE NO.KL08BN-1617.` - `Exhibit P3 TRUE COPY OF THE REQUEST DATED 22.07.2022 MADE BY THE PETITIONER BEFORE THE 3RD RESPONDENT .` - `Exhibit P4 TRUE COPY OF THE DECLARATION DATED 27.01.2022 SENT BY THE PETITIONER ADDRESSED TO THE 1ST RESPONDENT.` - `Exhibit P5 TRUE COPY OF THE RC DETAILS OF VEHICLE NO.KL-08BN-1617.` ``` Exhibit P6TRUE COPY OF THE REPORTED JUDGMENT IN THE MATTER OF SHABU SUKUMARAN VS. RTO, THIRUVANANTHAPURAM AND OTHERS REPORTED IN 2018(2) KHC 470. ``` ``` Exhibit P7TRUE COPY OF THE JUDGMENT MADE IN W.P. (C).NO.29133/2022 DATED 16.09.2022. Exhibit P8TRUE COPY OF THE COMMUNICATION DATED 10.10.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST AND 2ND RESPONDENTS. ``` ``` Exhibit P9TRUE COPY OF THE ORDER DATED 30.11.2022 ISSUED BY THE 2ND RESPONDENT. ```