Allowed

Shabu Sukumaran v. Regional Transport Officer

Kerala HC21 Feb 2018WP(C)/4535/2018

Case brief

AI extract

What is this about?

In a writ petition regarding the rejection of a contract carriage permit renewal due to a financier's objection, the Court held that the registering authority has discretion to renew the permit despite such objection and is not bound by a mechanical exercise of power.

What did the court decide?

Writ petition allowed; impugned order set aside; 1st respondent directed to reconsider application with notice to parties within one month.

Shabu Sukumaran Vs Regional Transport Officer — Contract and Commercial Disputes | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939

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WP(C).No. 4535 of 2018

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-----------------------

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PETITIONER

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SHABU SUKUMARAN, S/O. SUKUMARAN, PARAKOTTUKONAM, CHAYKUTTUMONAM P.O., TRIVANDRUM, KERALA - 691571.

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BY ADV.ABHILASH S.FRANCIS

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RESPONDENTS

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1. REGIONAL TRANSPORT OFFICER, THIRUVANANTHAPURAM - 695 001.

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*** 2. THE MANAGER, MALABAR GRAMIN BANK, MANACAUD BRANCH, THIRUVANANTHAPURAM, KERALA-695 009. (CORRECTED)**

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*** 2ND RESPONDENT IS CORRECTED AS THE MANAGER, KERALA GRAMIN BANK, MANACAUD BRANCH, THIRUVANANTHAPURAM, KERALA-695 009.**

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AS PER ORDER DATED 21.02.2018 IN I.A. NO.3435/2018

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R1 BY SENIOR GOVERNMENT PLEADER : SRI.K.P.HARISH R2 BY ADV. SRI.T.R.RAVI, SC, KERALA GRAMIN BANK

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 4535 of 2018 (N)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT P1 THE TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE BEARING NO.KL-01-BE-3075.
EXHIBIT P2 THE TRUE COPY OF THE CONTRACT CARRIAGE PERMIT NO. P.CO.1/434/2012 ISSUED BY THE 1ST RESPONDENT DATED 30.01.2012.
EXHIBIT P3 THE TRUE COPY OF THE APPLICATION AND RECEIPT OF THE REGISTERED LETTER DATED 28.04.17.
EXHIBIT P4 THE TRUE COPY OF THE REJECTED APPLICATION DATED 14.07.2017.
EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT DATED 24.08.17 IN WPC NO.26942/17.
EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED 05.12.17 PASSED BY THE 1ST RESPONDENT.

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

bpr

C.R.

ANIL K. NARENDRAN, J.

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W.P.(C) No.4535 of 2018

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----------------------------------------------Dated this the 21^st day of February, 2018

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JUDGMENT

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The petitioner, who is the registered owner of a contract carriage bearing registration No.KL-01/BE-3075 covered by Ext.P1 certificate of registration, is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking an order to set aside Ext.P6 order dated 05.12.2017 of the 1^st respondent, whereby his application for renewal of Ext.P2 contract carriage permit stands rejected. The vehicle in question is one hypothecated to the 2^nd respondent Bank. The reasons stated in Ext.P6 order for rejecting the application for renewal of contract carriage permit is that there is an objection against the renewal of the permit by the 2^nd respondent Bank, which is the financier of the said vehicle.

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Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the 1^st

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W.P.(C) No.4535 of 2018 :-2-:

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respondent and also the learned counsel for the 2^nd respondent financier.

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The sole issue that arises for consideration in this writ petition is as to the legality or otherwise of Ext.P6 order passed by the 1^st respondent, whereby Ext.P2 application made by the petitioner for renewal of contract carriage permit stands rejected.

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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

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W.P.(C) No.4535 of 2018 :-3-:

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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.

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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,

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W.P.(C) No.4535 of 2018 :-4-:

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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.

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The provisions under sub-section (9) of Section 51 of the Act would make it explicitly clear that even in a

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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.

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In Jayamon v. Regional Transport Authority,

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Cherthala & another [2015 (2) KHC 685] this Court observed that clause (a) of sub-section (9) of Section 51 of the Act confers discretion on the authority to either refuse or renew the permit, even in the event of refusal by the

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W.P.(C) No.4535 of 2018 :-6-:

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financier to issue a no objection certificate. Paragraph 6 of the said decision reads thus;

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“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 subsection (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.” (underline supplied)

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In the instant case, a reading of Ext.P6 order would

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show that the reasons stated by the 1^st respondent registering authority for rejecting the request for renewal of the contract carriage permit are two fold. In the first paragraph of Ext.P6 order, the registering authority, with reference to sub-section (8) of Section 51 of the Act, has stated that the petitioner has not produced a declaration in terms of that sub-section. Thereafter, in the last paragraph of Ext.P6 order, the registering authority has stated that, in view of the objections raised by the 2^nd respondent

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financier, the application for renewal made by the petitioner cannot be allowed.

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As far as the first reason stated in Ext.P6 order is concerned, sub-section (8) of Section 51 of the Act mandates such a declaration by the applicant, in a case in which despite making a request under sub-section (6) of Section 51, no reply is received from the financier within seven days, as provided under sub-section (7) of Section 51. In the instant case, there is non-compliance of the aforesaid provision. However, since an enquiry has already been conducted by the 1^st respondent registering authority, with notice to the 2^nd respondent financier, the objection regarding non-compliance of sub-section (8) of Section 51 has no much relevance, inasmuch as, the object of the said provision is only to give notice to the financier as to an application proposed to be made by the registered owner of the vehicle. Therefore, even in the absence of such a declaration, the matter can be proceeded further, since no prejudice will be caused to the 2^nd respondent financier, who has already entered appearance before the 1^st respondent

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registering authority and also before this Court in this writ petition.

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As far as the second reason stated in Ext.P6 order is concerned, merely for the reason that there is some objection by the 2^nd respondent financier, the 1^st respondent registering authority has rejected Ext.P2 application made by the petitioner for renewal of contract carriage permit. Such a course adopted by the 1^st respondent is not in conformity with the provisions under sub-section (9) of Section 51, which gives discretion to the registering authority to take an appropriate decision on the request made by the registered owner even in a case in which the financier has refused to issue the certificate applied for under sub-section (7) of Section 51 of the Act. In such matters, after considering the rival contentions, the registering authority has to take an appropriate decision, in exercise of its quasi-judicial power under sub-section (9) of Section 51 of the Act. Such an exercise of power by the 1^st respondent registering authority is absent in Ext.P6 order.

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In such circumstances, this writ petition is disposed of,

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by setting aside Ext.P6 order of the 1^st respondent registering authority dated 05.12.2017 and the said respondent is directed to reconsider the matter and pass appropriate orders, strictly in accordance with law, with notice to the petitioner and also to the 2^nd respondent financier, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment.

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bpr

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Sd/- ANIL K. NARENDRAN JUDGE //TRUE COPY// P.A. TO JUDGE

Shabu Sukumaran v. Regional Transport Officer

Case brief

What is this about?

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Shabu Sukumaran v. Regional Transport Officer

Case brief

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