Dismissed

A.Chenthamara v. the Manager, Canara Bank

Kerala HC8 Aug 2019WP(C)/20261/2019

Case brief

AI extract

What is this about?

The petitioner sought a writ of mandamus directing the Regional Transport Authority to renew a goods carriage permit despite objections from the financier. The Court held that mandamus cannot issue where the applicant has not complied with statutory pre-conditions, as the authority has discretion to renew permits even if financiers object, provided the applicant follows the law.

What did the court decide?

The writ petition was dismissed, with directions to the petitioner to comply with the relevant statutory provisions before approaching the Court again.

A.Chenthamara Vs the Manager, Canara Bank — Constitutional and Fundamental Rights | Kerala HC (2019)

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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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THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941

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WP(C).No.20261 OF 2019(G)

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PETITIONER:

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A.CHENTHAMARA, AGED 47 YEARS, S/O.PARVATHY, KALATHIL HOUSE, MARUTHA ROAD, PALAKKAD DISTRICT.

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BY ADV. SRI.C.K.RAMAKRISHNAN

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RESPONDENTS:

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1 THE MANAGER, CANARA BANK,

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SULTANPET BRANCH, PALAKKAD DISTRICT-678 001.

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2 THE CHIEF MANAGER, REGIONAL OFFICE, CANARA BANK,

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PALAKKAD DISTRICT-678 001.

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3 THE REGIONAL TRANSPORT AUTHORITY, PALAKKAD-678 001.

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4 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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BY ADVS.SRI.C.AJITH KUMAR

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SRI.PAULY MATHEW

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R3&R4 SRI. MANURAJ K.J., GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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The petitioner, who is the registered owner of LMV goods carriage bearing registration No.KL-09/AG-4249, which is one purchased after availing hypothecation facility from Canara Bank, Sulthanpet Branch in Palakkad District, which has issued with Ext.P2 goods carriage permit valid for the period from 04.03.2014 to 03.03.2019, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1^st respondent Bank to issue consent letter to renew Ext.P2 permit for further period. The petitioner has also sought for a writ of mandamus commanding the 1^st respondent Bank to make arrangements to renew Ext.P2 permit of the vehicle owned by her with the consent of the 3^rd respondent Regional Transport Authority; a writ of mandamus commanding the respondents [sic: respondents 1 and 2] to dispose of Exts.P3 and P4 representations made by the petitioner; and a writ of mandamus commanding the 3^rd respondent Regional Transport Authority to make arrangements for renewal of Ext.P2 permit.

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On 24.07.2019, when this writ petition came up for

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admission, the learned counsel for the petitioner was required to address arguments taking note of the law laid down by this Court in Shabu Sukumaran v. Regional Transport Officer

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[2018 (2) KLT 219] .

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On 29.07.2019, when this writ petition came up for consideration, the learned counsel for the petitioner sought time to place on record certain additional documents.

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The petitioner has filed I.A.No.1 of 2019 producing therewith an application dated 26.07.2019, which is one addressed to the 3^rd respondent Regional Transport Authority, whereby the said Authority is directed to take action based on the law laid down by this Court in the decision referred to (supra).

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Heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2 and also the learned Government Pleader appearing for respondents 3 and 4.

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During the course of arguments, the learned Government Pleader, on instructions, would point out that the 3^rd respondent is yet to receive any application filed by the petitioner for renewal of Ext.P2 permit.

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In Shabu Sukumaran v. Regional Transport

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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 subsection (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 to apply its mind to the objections, if any, raised by the financier and take an appropriate decision as to

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whether despite such objections of the financier, applicant is entitled for renewal of permit. Paragraphs 4 to 6 of the said decision reads thus:

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“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 sub-section (6), the financier may issue, or refuse, for reason which shall be recorded

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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, 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

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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 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 subsection (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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The petitioner has to make an application for no-objection certificate before the 1^st respondent financier,

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through registered post with acknowledgment due, invoking sub-section (6) of Section 51 of the Motor Vehicles Act. If the financier fails to issue the no-objection certificate and also fails to communicate the reason for refusal to issue the certificate within the said period of seven days, the petitioner has to make an application for renewal of the permit along with a declaration as provided under sub-section (8) that he has not received any communication from the financier within the period of seven days specified in sub-section (7) of Section 51. Without complying with the provisions under sub-sections (6), (7) and (8) of Section 51 of the Act, the petitioner cannot seek a writ of mandamus commanding the 3^rd respondent to consider the request for renewal of Ext.P2 goods carriage permit.

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In Vinod Kumar v. District Geologist and others

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[2019 (3) KHC 79] in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule (2) of Rule 14 for mineral transit pass is not supported by the mandatory documents as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule

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(3) of Rule 14, it cannot be said that there is any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus for considering that application. When the application made by the petitioner is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the District Geologist to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. Paragraphs 9 to 16 of the said decision read thus;

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“9. A reading of the provisions under sub-rules (2) and (3) of Rule 14 of the Kerala Minor Mineral Concession Rules make it explicitly clear that an application for mineral transit passes for transportation of ordinary earth shall be accompanied by a valid building permit for construction of building, obtained from the Local Self Government authority concerned; land development permit obtained from the Local Self Government authority concerned, in cases where the levelling of the land and extraction of earth is involved; and possession and enjoyment certificate of the land

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issued by the Village Officer concerned. As per the second proviso to sub-rule (2), in cases where the levelling of the land and extraction of ordinary earth is involved, the building permit shall be accompanied by an approved building plan obtained from the Local Self Government authority concerned, which shall contain the area of the land to be developed for the construction of the building and quantity of ordinary earth to be extracted for such construction.

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As per sub-rule (3) of Rule 14, a person who applies for mineral transit passes for transportation of ordinary earth under Rule 14 shall also submit along with the application, a sworn affidavit in stamped paper to the effect that he will carry out the proposed construction as per the building plan and building permit and shall complete at least the construction of basement of the building within one year from the date of issuance of mineral transit passes and intimate the same to the competent authority. 11. In the instant case, the fact that Ext.P3 application made by the petitioner before the 1^st respondent for issuance of mineral transit passes is not supported by any of the documents as per the mandate of the provisos to sub-rule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14 of the Kerala Minor Mineral Concession Rules is not in dispute. Though Ext.P3 application is one dated 04.02.2019, the same was sent by speed post to the office of the 1^st respondent only on 20.02.2019, as

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evidenced by Ext.R1(a) envelop, which was received in the office of the said respondent only on 23.02.2019. The said fact is also not in dispute. During the course of arguments, the submission made by the learned counsel for the petitioner is that the petitioner is prepared to produce Ext.P1 building permit, Ext.P2 development permit and also an affidavit as per the mandate of sub-rule (3) of Rule 14 before the 1^st respondent, within a time limit to be fixed by this Court. 12. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145] a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus;

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" 15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel

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performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not

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competent to issue the same."

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(underline supplied)

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In Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280] the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus;

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" 11. The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. :

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Note 187 .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the

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jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed.

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Note 192 .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.

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Note 196 .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been

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established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.

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Note 206 .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.

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12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149] , after referring to the earlier decisions in Lekhraj Satramdas Lalvani v.

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N.M. Shah [AIR 1966 SC 334] , Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964] , this Court observed as follows in paragraph 15 of the reports:

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"15. .......... There is abundant authority

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in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a

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duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same."

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Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31^st March, 2000 and apply RBI guidelines to their case."

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In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having

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the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus;

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" 10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to

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understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......."

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15. In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC

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259] the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. Vide: State of Punjab v. Renuka Singla [(1996) 8 SCC 90], State of U.P. v. Harish Chandra [1996 (9) SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560]. 16. In the instant case, as borne out from the pleadings and materials on record, the petitioner filed this writ petition before this Court on 22.02.2019, even before the receipt of Ext.P3 application for mineral transit passes by the 1^st respondent. Moreover, the said application is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14. In such circumstances, it cannot be said that there is any failure on the part of the 1^st

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respondent in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of mandamus for consideration of Ext.P3 application. When Ext.P3 application made by the petitioner is not one supported by the mandatory documents as per the provisos to sub-rule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the 1^st respondent to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law.”

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It is for the petitioner to submit a proper

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application for renewal of Ext.P2 goods carriage permit, after complying with the statutory mandate of sub-sections (6), (7) and (8) of Section 51 of the Act, taking note of the law laid down by this Court in the decision referred to supra and thereafter move this Court, in case there is any delay on the part of the 3^rd respondent in considering that application.

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Without prejudice to the aforesaid right of the petitioner, this writ petition is dismissed.

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Sd/-

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ANIL K. NARENDRAN JUDGE

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bpr

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	THE EXTRACT PORTION OF THE STATEMENT OF ACCOUNT OF CANARA BANK.
EXHIBIT P2	THE EXTRACT COPY OF OF THE EARLIER PERMIT ISSUED BY THE REGIONAL TRANSPORT AUTHORITY DATED 04.03.2014.
EXHIBIT P3	TRUE COPY OF THE REPRESENTATION DATED 20.06.2019 TO THE CHIEF MANAGER, CANARA BANK, PALAKAKD.
EXHIBIT P4	TRUE COPY OF THE REPRESENTATION DATED 16.07.2019 TO THE MANAGER, SULTANPET BRANCH, PALAKAKD.
EXHIBIT P5	COPY OF THE ACKNOWLEDGEMENT RECEIPT DATED 20.06.2019 AND 22.07.2019
EXHIBIT P6	COPY OF THE APPLICATION DATED 26.07.2019 TO RENEW THE PERMIT ALONG WITH THE COPY OF THE JUDGMENT AND ACKNOWLEDGMENT RECEIPT

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RESPONDENTS' EXHIBITS: NIL

A.Chenthamara v. the Manager, Canara Bank

Case brief

What is this about?

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A.Chenthamara v. the Manager, Canara Bank

Case brief

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