Disposed

Gafoor, v. Joint Regional Transport Officer

Kerala HC20 Mar 2019WP(C)/6066/2019

Case brief

AI extract

What is this about?

The High Court directed the petitioner to fulfill statutory requirements, including obtaining a no objection certificate or a declaration under Section 51 of the Motor Vehicles Act, and to re-submit the duplicate registration application within a specified time limit for disposal by the registering authority.

What did the court decide?

Petitioner directed to obtain no objection certificate or declaration under Section 51, submit police report and publication, and re-submit application for duplicate certificate within one month for d

Gafoor, Vs Joint Regional Transport Officer — Writ and Judicial Review | 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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WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940

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WP(C).No. 6066 of 2019

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PETITIONER/S:

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GAFOOR, AGED 48 YEARS S/O.ABDUL KHADER, PUTHIYAVEETTIL HOUSE, KATTIPARUTHI AMSOM, VAIKKATHUR DESOM, VALANCHERI P.O., TIRUR TALUK, MALAPPURAM DISTRICT-676552.

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BY ADV. SRI.U.K.DEVIDAS

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RESPONDENT/S:

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1 JOINT REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT OFFICE, TIRUR, MALAPPURAM DISTRICT-676101.

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2 ADDL.R2. CHOLAMANDALAM INVESTMENTS AND FINANCE CO.LTD., DARE HOUSE, EXTENSION, IST FLOOR, N.S.C BOSS ROAD, PARRYS, CHENNAI, TAMIL NADU-600 001 REPRESENTED BY ITS MANAGER.

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IS IMPLEADED AS PER ORDER DATED 08-03-2019 IN IA 1/2019.

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SMT. MABLE C.KURIEN, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2019, 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 a Mahindra Xylo bearing registration No.KL-55/P-8001 covered by Ext.P1 certificate of registration, which is one covered by a hypothecation agreement with the additional second respondent Financier has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the first respondent to dispose of Ext.P4 application dated 15.01.2019 for issuance of duplicate certificate, within a reasonable time, and issue the duplicate certificate of registration of the said vehicle.

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On 28.02.2019, when this writ petition came up for

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admission this Court passed the following order:

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“Ext.P1 certificate of registration would show that the petitioner purchased the vehicle bearing registration No.KL-55/P-8001, after availing hire purchase from M/s.Cholamandalam Investment and Finance Company Limited. The financier of the said vehicle is a necessary party to this writ petition, in view of the provisions under Section 51 of the Motor Vehicles Act. However, the petitioner has chosen to file this writ petition without the financier in the party array.

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In Prabodh Verma v. State of U.P. [(1984) 4 SCC 251] a Three-Judge Bench of the Apex Court held that a High Court ought not to hear and dispose of a writ

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petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative capacity, if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for nonjoinder of necessary parties.”

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The learned counsel for the petitioner seeks adjournment.

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List on 06.03.2019”

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Thereafter, the petitioner has filed I.A. No. 1/2019

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to implead the Financier of the vehicle as the additional second respondent, which was allowed by the order dated 08.03.2019. The learned Government Pleader sought time to file statement on behalf of the first respondent and accordingly, the matter was adjourned.

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Heard learned counsel for the petitioner and also learned Government Pleader appearing for the first respondent. Considering the nature of relief proposed to be granted, service of notice on the additional second respondent is dispensed with.

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The sole issue that arises for consideration in this

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writ petition is as to whether the petitioner is entitled for a writ of mandamus commanding the first respondent to dispose

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of Ext.P4 application filed for issuance of duplicate registration

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certificate, within a time limit to be fixed by this Court.

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In Shabu Sukumaran v. Regional Transport

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Officer, Thiruvananthauram 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 subsection. 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

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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 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

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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 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

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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 fact that Ext.P4 application made by the petitioner is one for issuance of duplicate registration certificate in respect of a vehicle, which is covered by a

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hypothecation agreement with the additional second respondent Financier, is not in dispute. If that be so, Ext. P4 application made by the petitioner can only be considered either on the basis of a 'no objection certificate' issued by the additional second respondent Financier or after the petitioner complying with the statutory mandate of sub-section (8) of Section 51 of the Kerala Motor Vehicles Act.

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The learned Government Pleader on instructions would submit that Ext.P4 application made by the petitioner has already been returned, whereby the petitioner has already been directed to produce either a 'no objection certificate'

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from the additional second respondent Financier or a declaration as per the mandate of sub-section (8) of Section

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51 of the Kerala Motor Vehicles Act; police report, regarding lose of original certificate of registration; paper publication to that effect; and also an affidavit sworn to by the petitioner that the original certificate of registration of the vehicle is irrecoverably lost.

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The learned counsel for the petitioner would submit that the petitioner shall comply with the aforesaid mandatory requirements and thereafter re-submit Ext.P4 application before the first respondent for consideration.

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Having considered the submissions made by the learned counsel on both sides, the writ petition is disposed of with the following directions:-

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(i) Within one month from the date of receipt of a certified copy of this judgment, petitioner shall obtain either a 'no objection certificate' from the additional second respondent Financier or the declaration as per the mandate of sub-section (8) of Section 51 of the Kerala Motor Vehicles Act; police report, regarding lose of original certificate of registration; paper publication to that effect; and also an affidavit sworn to by the petitioner that the original certificate of registration of the vehicle is irrecoverably lost and thereafter, resubmit Ext.P4 application before the first respondent Joint Regional Transport Officer with a request to issue duplicate certificate of registration for his vehicle bearing registration No.KL-55/P-8001.

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(ii) If the said application is in order, the petitioner has remitted the requisite fee and produced necessary documents, the first respondent shall consider and pass appropriate orders on that application with notice to the petitioner and also to the additional second respondent Financier, strictly in accordance with law, taking note of the law laid down by this Court in the decision referred to supra, as expeditiously as possible, at any rate, within a period of two months thereafter.

Sd/-

ANIL K.NARENDRAN

JUDGE

DCS

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APPENDIX