Research › Search › Judgment

Kerala High Court · body

2009 DIGILAW 447 (KER)

K. Reghunathan v. The State Of Kerala

2009-06-09

S.SIRI JAGAN

body2009
Judgment : The petitioner had a goods carriage permit which was under hire-purchase agreement with the 3rd respondent. When the period of permit expired, the petitioner submitted an application for renewal of the permit. The 2nd respondent refused to consider the same on the ground that 'no objection certificate' from the 3rd respondent was not produced by the petitioner. Petitioner approached this Court. By Ext.P1 judgment in WP(C) No.15747/06, this Court directed the 2nd respondent to consider the application for renewal with notice to the 3rd respondent in accordance with law. It was directed to take a final decision within a period of six weeks from the date of receipt of a copy of that judgment. By Ext.P2 order, the petitioner's application for renewal of permit was rejected on the ground that the 3rd respondent has objected to the renewal of the permit, since the petitioner has not cleared the dues under the hire-purchase agreement. Petitioner challenged the same before the State Transport Appellate Tribunal, Ernakulam, who by Ext.P3 order, directed the disposal of the application on merits after giving the petitioner an opportunity to cure the defects, if any, in the application. Despite that order, the 2nd respondent is not passing orders on the application for renewal is the complaint raised by the petitioner in this writ petition. Petitioner therefore seeks the following reliefs: "i. issue a writ of mandamus or any other appropriate writ, order or direction to the 2nd respondent to renew the permit for the petitioner's vehicle bearing Registration No.KL-01-R-669 by invoking powers under Section 51(9)() of the Motor Vehicles Act; ii. Direct the 2nd respondent to consider and pass orders in Ext.P4 within a time frame that this Hon'ble court deems fit, proper and equitable;" 2. A counter affidavit has been filed by the 2nd respondent taking the stand that insofar as 'no objection certificate' from the financier has not been produced, Ext.P2 order already passed still stands good and it is not necessary to pass fresh orders on the application. There is no question of passing fresh order. 3. The learned counsel for the 3rd respondent would vehemently oppose the petition. According to him, more than rupees two lakhs are still due from the petitioner towards re-payment as per the hire-purchase agreement and therefore the permit cannot be renewed. 4. There is no question of passing fresh order. 3. The learned counsel for the 3rd respondent would vehemently oppose the petition. According to him, more than rupees two lakhs are still due from the petitioner towards re-payment as per the hire-purchase agreement and therefore the permit cannot be renewed. 4. The petitioner would contend that since as per law, the 2nd respondent has a discretion to renew the permit even if the 3rd respondent has not issued the no objection certificate, the 2nd respondent is bound to consider whether in the circumstances of the case despite the refusal of the 3rd respondent to issue no objection certificate the permit can still be renewed. 5. I have considered the rival contentions in detail. The law on the subject is contained in sub sections 6 to 9 of Section 51 of the Motor Vehicles Act. The said sub sections read thus: "51. Special provisions regarding motor vehicle subject to hire-purchase agreement, etc:- xxxxxxx (6) 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 subsection (14) of Section 41, or for the assignment of a new registration mark. (7) within seven days of the receipt of a application under sub-section (6), the financier may issue, or refuse, for reasons which shall be recorded in writing and communicated to the applicant, to issue, the certificate applied for, and where the financier fails 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. (8) 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. (9) 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:- (a) in a case where the financier has refused to issue the certificate applied for, after giving the applicant an opportunity of being heard, either- (i) renew or refuse to renew the permit, or (ii) issue or refuse to issue the duplicate certificate of registration, or (iii) assign or refuse to assign a new registration mark; (b) in any other case:- (i) renew the permit, or (ii) issue duplicate certificate of registration, or (iii) assign a new registration mark." 6. Going by the same, the person, who seeks renewal of a permit, has to first apply to the financier for a no objection certificate and on that application, the financier has to take a decision to issue or refuse to issue, for reasons which shall be recorded in writing and communicated to the applicant within seven days. The applicant for permit has to, thereafter, while applying for renewal of the permit, produce the no objection certificate or the communication from the financier giving reasons for refusal to issue the no objection certificate or a declaration that he has not received any communication from the financier. On receipt of application for renewal of permit along with the said documents under Sub Section 9(a), the 2nd respondent does have a discretion to renew the permit even in case where the financier has refused to issue the no objection certificate, after giving an opportunity of being heard. 7. That being so, I do not think that the stand of the 2nd respondent is correct. Even otherwise when the Tribunal directed consideration of the application for renewal on merits after giving an opportunity to the petitioner to cure the defects, if any, the 2nd respondent was bound to pass orders on the application in accordance with sub-section 9 of Section 51. Therefore, I am of opinion that, the 2nd respondent is bound to consider the application for renewal of permit submitted by the petitioner even without the no objection certificate. Therefore, I am of opinion that, the 2nd respondent is bound to consider the application for renewal of permit submitted by the petitioner even without the no objection certificate. He has to hear both the petitioner and the 3rd respondent and take a decision on the question of renewal of permit giving reasons for that decision either way. Such an order has not yet been passed by the 2nd respondent. Therefore, this writ petition is disposed of directing the 2nd respondent to take a decision even without the no objection certificate from the 3rd respondent as contemplated under sub section 9(a) of Section 51, giving reasons for the decision either way as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Both the petitioner and the 3rd respondent shall be heard before taking a decision.