Kerala High Court
Abeesh Rahman M.L vs State Of Kerala on 9 April, 2021
Author: Sunil Thomas
Bench: Sunil Thomas
W.P.(C) No.4119/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 09th DAY OF APRIL 2021/19TH CHAITHRA, 1943
WP(C).No.4119 OF 2021(L)
PETITIONER:
ABEESH RAHMAN M.L,
AGED 32 YEARS
S/O.M.M.LATHEEF, RESIDING AT MOOLAMKANNI HOUSE,
KADUKKACHUVADU, METHALA P.O., THRISSUR DISTRICT.
BY ADV. SRI.ASHIK K.MOHAMMED ALI
RESPONDENT:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY, TRANSPORT
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE TRANSPORT COMMISSIONER
TRANSPORT COMMISSIONERATE, 2ND FLOOR, TRANS TOWERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014.
3 THE REGIONAL TRANSPORT OFFICER
MOTOR VEHICLES DEPARTMENT, CIVIL STATION,
AYYANTHOLE P.O., THRISSUR - 680 003.
4 THE JOINT REGIONAL TRANSPORT OFFICER
OFFICE OF THE SUB REGIONAL TRANSPORT OFFICE,
KODUNGALLUR, THRISSUR - 680 664.
R4 BY GOVERNMENT PLEADER K.P.HARISH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26-03-2021, THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:
W.P.(C) No.4119/2021 2
JUDGMENT
Dated this the 9th day of April 2021 The writ petitioner is the registered owner of a tipper lorry bearing registration No. KL 47/ H 7457 evidenced by Ext.P1 registration certificate. The goods carriage permit issued to the above vehicle is Ext.P2. It seems that on 19/12/2020, the above vehicle met with an accident and crime No.773/2020 of Walayar Police station was registered. The vehicle sustained extensive damages. On inspection of the vehicle, the authorised service centre of the vehicle had informed that the chasis of the vehicle was not repairable and it needs replacement with a new one. Accordingly, petitioner gave a declaration to be produced before the 4th respondent for necessary sanction along with a letter issued by the service provider. This was produced before the 4th respondent along with an application by the petitioner on 28/1/2021. The grievance of the petitioner is that 4th respondent refused to consider the application on the ground that two check reports are pending against the vehicle and he has to remit the fine in respect of both the check reports. The application was hence kept pending. The reply given by the 4th respondent it is produced as Ext.P6.
2. The grievance of the petitioner is that, the stand of the 4 th respondent is illegal and there is a colourable exercise of the jurisdiction by the 4 th respondent. The respondents 1 to 4 have failed to perform their respective W.P.(C) No.4119/2021 3 statutory duties. Hence, the writ petition was filed for a direction to the 4 th respondent to consider his application and to grant permission as required under law.
3. Vehemently opposing the application, the learned Government Pleader relied on a statement filed by the 4th respondent. According to the 4 th respondent vehicle was detected with overload on 10/2/2020 and 17/3/2020 and for that due steps have been initiated to compound the offence under section 194 of the Motor Vehicles Act and prosecution process is ongoing. At that time, the vehicle met with the accident. The 4th respondent relied on the notification GSR No.584E dated 25/9/2020 which provided that if a chalan is due beyond the time period specified in the sub rule(5), except in the case of offences instituted for prosecution by a court, then the application with respect to the license of offender or registration of motor vehicle mentioned in the chalan shall not be processed by the licensing authority or registering authority, except applications relating to permit, fitness and taxe(s) of the motor vehicle.
4. According to the respondent, it is found that hypothication is imposed under section 51 (6) of the Act and alteration of the vehicle is governed by section 52 of the Act. NOC has to be obtained from the person with whom he has entered into hypothication agreement. The chasis replacement is an integral change of the vehicle and hence it comes within the meaning of alteration as per section 52 of the Act. It was also contended that the petitioner has an alternative remedy under 57 of the Act to prefer an appeal against Ext.P6 notice.
5. Learned counsel for the petitioner relied on the Division Bench W.P.(C) No.4119/2021 4 decision of this court reported State of Kerala v. Varghese 2017 (3) KLT 744), the decision of the single judge of this Court in Kerala Bus Transport Association v Transport Commissioner 2013 (1) KLT 440) and also an unreported decision of this court in W.P.(C) 22749/2020. It is the contention of the learned counsel for the petitioner that the Division Bench took the view that the pendency of the check report cannot be used to deny the registered owner his right to transfer the vehicle or in seeking endorsement of the same in the registration certificate. The learned single Judge in Kerala Bus Transport Association case (supra) has held that clauses 20 and 30 of Circular No.17/2011 issued by the Transport Commissioner dated 26/8/2011 enabling the refusal of renewal of permit on declining the certificate of fitness because of the mere pendency of a check report is wholly inequitable. Owners/permit holders cannot be kept on tenderhooks awaiting the culmination of the proceedings pursuant to a check report for him to continue the service being operated. The learned Single Judge in W.P.(C) No. 22749/2020 had referred to both the decisions and directed the RTO that the respondent will not be justified in insisting upon the petitioner to clear the check report as a condition precedent for considering his request for issuance of inter state permit or fitness certificate.
6. Contention of the learned senior Government pleader is that by virtue of GSR No.584 E dated 25/9/2020 , only three services are permitted , which are applications relating permit, fitness and taxes of motor vehicle. Hence, the present request cannot be considered, is the case of the 4th respondent.
7. It seems that the authority has taken the stand without assimilating the W.P.(C) No.4119/2021 5 legal principles involved in the above three cases cited. It is also pertinent to note that though the 4th respondent has a specific case that the consent of the financier has not been obtained and also the chasis is an integral part of an identification mark and being parental product, a replacement requires prior sanction under section 51 (10)(d) and the entry has to be done with prior consent from the financier, it does not appear to be sustainable. The petitioner in the writ petition has specifically asserted that no alteration will be made from that available in proto type test certificate and it is evident that since the chasis is replaced with that of one provided by the manufacturer, as evidenced by Ext.P5 issued by the authorized service centre of the manufacturer of the vehicle of the petitioner, there would be no alteration or variance to the specification. It was concluded that there will not be any tampering with the proto type approved by ARAI. The specifications of the manufacturer are available in the CMVR certificate which is approved by the competent authority.
8. Evidently, the above averments seems to be the answer to the anxiety expressed by the 4th respondent. Further if the application is allowed there is no impediment in the registering authority directing the petitioner to produce the no objection certificate by the financier. The petitioner shall clear all tax arrears due. It is incumbent on the 4th respondent to consider the petitioner's application strictly on merits and pass appropriate orders having due regard to the observations made above. The writ petition is accordingly disposed of. Final decision shall be taken by the authority within a period four weeks from the date of receipt of a copy of this judgment,after giving a reasonable opportunity to the W.P.(C) No.4119/2021 6 petitioner to raise his contentions. The order shall be communicated to the petitioner.
Sd/-
SUNIL THOMAS
dpk JUDGE
W.P.(C) No.4119/2021 7
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE
OF THE TIPPER LORRY BEARING REGISTRATION
NO.KL-47/H-7457 OF THE PETITIONER.
EXHIBIT P2 TRUE COPY OF GOODS CARRIAGE PERMIT ISSUED
TO THE VEHICLE BEARING REGISTRATION NO.KL-
47/H-7457 OF THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 18/11/2020
IN WP(C) NO.22749 0F 2020.
EXHIBIT P4 TRUE COPY OF THE FIR IN CRIME NO.773 OF
2020 OF THE WALAYAR POLICE STATION.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 27/1/2021
ISSUED BY M/S.AUTOBAHN TRUCKING.
EXHIBIT P6 TRUE COPY OF THE UNDATED REPLY GIVEN BY THE
4TH RESPONDENT.