V.M. Bijaly v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 1[ST] DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 ``` ## **`WP(C) NO.8541 OF 2023`** ## **`PETITIONER:`** ``` V.M.BIJALY, AGED 70 YEARS S/O.MUSAVANNAN RAWTHER V.P, VALIYAKUNNATHU HOUSE, KANJIRAPPALLY P.O., KOTTAYAM., PIN – 686507 ``` ``` BY ADVS. R.REJI M.V.THAMBAN THARA THAMBAN B.BIPIN ARUN BOSE ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF MOTOR VEHICLES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN – 695001`** - **`2 THE TRANSPORT COMMISSIONER, TRANSPORT DEPARTMENT, THIRUVANANTHAPURAM, PIN – 695012`** - **`3 THE JOINT REGIONAL TRANSPORT OFFICER (JOINT RTO), OFFICE OF THE JOINT REGIONAL TRANSPORT OFFICER (SUB REGIONAL TRANSPORT OFFICE), KANJIRAPPALY, KOTTAYAM DISTRICT, PIN – 686507`** - **`4 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, OFFICE OF THE REGIONAL TRANSPORT AUTHORITY, KANJIRAPPALY, KOTTAYAM DISTRICT, PIN – 686507`** ``` W.P(C) No.8541 of 2023 ``` ``` 2 ``` ``` 5HINDUJA LEYLAND FINANCE LTD., IIND FLOOR, AMBILI BUILDING, WARRIAM ROAD, ERNAKULAM, PIN – 682016 ``` ``` BY ADVS. SMT.PARVATHY, GOVERNMENT PLEADER SRI.SUSANTH SHAJI ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P(C) No.8541 of 2023 ``` ``` 3 ``` ## **`JUDGMENT`** ``` Petitioner is the registered owner of a tipper lorry bearing registration No.KL-34—E-8870. The vehicle is hypothecated to the 5[th] respondent and the same has been endorsed in Ext.P1 Registration Certificate. The permit issued in respect of the aforesaid vehicle was valid up to 23.03.2023. The petitioner made an online application for renewal of the permit as evident from Ext.P4 receipt. The petitioner submits that the 3[rd] respondent is not processing the application and is insisting for a No Objection Certificate [NOC] from the 5[th] respondent- financier. The petitioner refers to Section 51(9) of the Motor Vehicles Act, 1988 [for brevity, ‘the Act’] and submits that even if the financier objects to the renewal of the permit, the Registering Authority has the discretion to renew the permit. ``` ``` W.P(C) No.8541 of 2023 4 ``` ``` 2. The learned counsel for the 5[th] respondent submits that huge amounts are due to the 5[th] respondent in respect of the aforesaid vehicle and though the petitioner had, vide Ext.P3, requested for NOC, the same was not provided with. The learned counsel fairly submits that no communication stating reasons for refusal is issued to the petitioner in terms of Section 51(7) of the Act. However, the learned counsel submits that the application of the petitioner for renewal of permit is not accompanied by a declaration under Section 51(8) of the Act to the effect that he has not received any communication from the financier within the period stipulated therein. ``` ``` 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4 and the learned counsel appearing for the 5[th] respondent. ``` ``` 4. The learned counsel for the petitioner relies ``` ``` W.P(C) No.8541 of 2023 ``` ``` 5 ``` ``` on the judgment inShabu Sukumaran v. RTO, Tvm. & Ors. [2018 (2) KLT 219], wherein this Court, after considering Section 51 of the Act, observed as follows: ``` ``` “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 ``` ``` W.P(C) No.8541 of 2023 ``` ``` 6 ``` ``` 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. The prayer of the petitioner is for a direction to the 3[rd] respondent to consider his application for renewal of permit without insisting for NOC from the 5[th] respondent. ``` ``` 6. Though the petitioner submitted Ext.P3 request before the 5[th] respondent for NOC, the same is not furnished. It is also not in dispute that no reason ``` ``` W.P(C) No.8541 of 2023 ``` ``` 7 ``` ``` has been communicated to the petitioner for the refusal in terms of Section 51(7) of the Act. ``` ``` 7. The petitioner has not submitted a declaration under Section 51(8) of the Act to the effect that he has not received any communication from the financier within the period of 7 days stipulated under Section 51(7). ``` ``` 8. Since it is submitted that the application of the petitioner for renewal of permit is pending consideration before the 3[rd] respondent, there will be a direction to the 3[rd] respondent to consider the said application, after giving an opportunity of hearing to the petitioner and the 5[th] respondent and if the petitioner furnishes a declaration in terms of Section 51(8) of the Act within a period of ten days from the date of receipt of a certified copy of this judgment. The 3[rd] respondent shall process the application and pass appropriate orders within a period of one month ``` ``` W.P(C) No.8541 of 2023 ``` ``` 8 ``` ``` from the date of receipt of the aforesaid declaration. The writ petition is disposed of. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/01/08/2023 ``` ``` W.P(C) No.8541 of 2023 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS :-`** ``` EXHIBIT P1COPY OF THE RC PARTICULARS OF THE PETITIONER'S VEHICLE DATED 22.03.2018. ``` ``` EXHIBIT P2 ``` ``` COPY OF THE GOODS CARRIAGE PERMITS OF VEHICLE BEARING REGISTRATION NO.KL-34-E- 8870 ISSUED BY THE 4TH RESPONDENT DATED 24.03.2018 ``` ``` EXHIBIT P3COPYOFTHEREPRESENTATIONDATED 27.03.2023 FILED BY THE DEPONENT BEFORE THE FINANCIER (HINDUJA LEYLAND FINANCE LTD) EXHIBIT P4COPY OF THE ONLINE APPLICATION DATED 19.06.2023 ```