Biju K K vs. The Transport Commissioner - Kerala High Court, 04 February 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY,THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940 WP(C).No. 2129 of 2019 PETITIONER: BIJU K K AGED 44 YEARS KARTHIKA BHAVAN, KARUKACHAL, KOTTAYAM 686 540. BY ADVS. SRI.M.A.FAYAZ SRI.PRASAD CHANDRAN RESPONDENTS: 1 THE TRANSPORT COMMISSIONER TRANS TOWERS, VAZHUTHACAUD, THYCAUD P.O., PIN-695 014. 2 REGIONAL TRANSPORT OFFICER, KOTTAYAM, CIVIL STATION, KOTTAYAM-686 001. SRI BIMAL K.NATH, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)No.2129 of 2019 :-2-: J U D G M E N T This writ petition is filed by one Biju K.K., who is stated to be the proprietor of M/S.P.S.Honda, a proprietorship firm stated to have been appointed as authorised dealer at Karukachal at Kottayam of two wheelers manufactured by M/s.Honda Motor Cycle and Scooter India Pvt. Ltd., as certified in Ext.P1 certificate dated 18.7.2016. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P10 order dated 26.12.2018 of the 2nd respondent Regional Transport Officer, whereby the said respondent refused to renew Exts.P3 to P7 Trade Certificate granted to the petitioner on the ground that M/S.P.S.Honda, Karukachal, is not a 'bona fide dealer' of M/s.Honda Motor Cycle and Scooter India Pvt.Ltd. and it is only a sub-dealer and the sale conducted

W.P.(C)No.2129 of 2019 :-3-: by a sub-dealer will amount to second sale; hence there is violation of the provisions of Rule 42 of the Central Motor Vehicles Rules, 1989. The petitioner has also sought for a writ of mandamus commanding the respondents to renew Exts.P3 to P7 Trade Certificates of M/S.P.S.Honda, Karukachal, for a further period of one year from 2.12.2018 onwards; an order directing the 1st respondent Transport Commissioner to consider and pass orders on Ext.P12 appeal filed under Rule 45 of the Central Motor Vehicles Rules, challenging Ext.P10 order of the 2nd respondent and also Ext.P13 direction petition filed along with that appeal, within a time frame to be fixed by this Court; and a declaration that the petitioner's firm M/S.P.S.Honda, Karukachal, is entitled for renewal of Exts.P3 to P7 Trade Certificates in accordance with Rule 35 of the Central Motor Vehicles rules.

On 24.1.2019 when this writ petition came

W.P.(C)No.2129 of 2019 :-4-: up for consideration, the learned Senior Government Pleader sought time to get instructions.

On 28.1.2019 when this writ petition came up for further consideration, this Court passed the following order; “The learned Senior Government Pleader, on instructions from the 1st respondent Transport Commissioner, who is the Appellate Authority, would point out that Ext.P12 appeal filed by the petitioner is not supported by payment of the requisite fee of Rs.1,000/-.

The learned counsel for the petitioner would submit that the petitioner shall cure the defects within two days. The said submission is recorded.

The learned Senior Government Pleader, after making a reference to Ext.P10 order dated 26.12.2018 of the respondents would point out that the person who represented the petitioner in the personal hearing held on 26.12.2018 has admitted that the petitioner is not appointed as a dealer directly by the manfacturer, i.e., M/s.Honda Motor Cycles and Scooters India Limited, and one Purackal Motors, Kodimatha,

W.P.(C)No.2129 of 2019 :-5-: Kottayam, is the authorised dealer, which is supplying vehicles to the petitioner for sale.

The petitioner shall place on record the dealership agreement stated to have been executed with M/s.Honda Motor Cycles and Scooters India Limited. List on 01.02.2019.”

On 31.01.2019, the petitioner has filed I.A.No.1 of 2019 for accepting Exts.P14 to P17 as additional documents. The document marked as Ext.P14 is a challan dated 23.01.2019 regarding remettiance of Rs.1000/- towards the requisite fee for Ext.P12 memorandum of appeal, as the fee originally remitted was insufficient. The document marked as Ext.P15 is a communication dated 30.06.2014 of the Vice President (Sales and Marketing) of M/s.Honda Motorcycle India Pvt. Ltd., addressed to one Mr. George Jacob of M/s.Purackal Motors, Nattakom, Kottayam permitting the said dealer to appoint the petitioner as a sub-dealer at Karukachal. Ext.P16 is a letter of intent dated

W.P.(C)No.2129 of 2019 :-6-: 16.07.2014 for opening a sub-dealership at Karukachal and Ext.P17 is a sub-dealership agreement entered into between the petitioner and M/s.Purackal Motors, Nattakom, Kottayam.

A statement dated 04.02.2019 has been filed by the 2nd respondent, opposing the reliefs sought for in this writ petition.

Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 and 2. 7. During the course of arguments, the learned counsel for the petitioner would confine the reliefs sought for in this writ petition, as one directing the 1st respondent Appellate Authority to consider and pass orders on Ext.P12 appeal filed under Rule 45 of the Central Motor Vehicles Rules, challenging Ext.P10 order of the 2nd respondent and also Ext.P13 direction petition filed along with that appeal, within a time frame to be fixed by

W.P.(C)No.2129 of 2019 :-7-: this Court.

The learned Senior Government Pleader would submit that the 1st respondent shall pass final orders on Ext.P12 appeal filed by the petitioner, within two months from the date of receipt of a certified copy of this judgment and that the said respondent shall pass appropriate orders on Ext.P13 direction petition, within a period of two weeks.

Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 1st respondent to consider and pass final orders on Ext.P12 appeal filed by the petitioner against Ext.P10 order of the 2nd respondent, within two months from the date of receipt of a certified copy of this judgment and orders on Ext.P13 direction petition, shall be passed within a period of two weeks from the date of receipt of a certified copy of this judgment, after affording the petitioner an

W.P.(C)No.2129 of 2019 :-8-: opportunity of being heard. It is made clear that this Court has not expressed anything on the merits of the legal and factual contentions raised by the petitioner and also the entitlement of the petitioner to have the Trade Certificates renewed on the strength of sub- dealership agreement entered into with an authorised dealer of the manufacturer and it is for the 1st respondent to take appropriate decision, strictly in accordance with law. ANIL K.NARENDRAN

JUDGE ami/ APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 CERTIFICATE ISSUED BY M/S. HONDA MOTOR CYCLE AND SCOOTERS INDIA PVT.LTD., DTD. 18.7.2016, CERTIFYING THAT M/S. P.S. HONDA AT KARUKACHAL AS THERE DEALER.

W.P.(C)No.2129 of 2019 :-9-: EXHIBIT P2 WEBSITE OF THE MANUFACTURER SHOWING THAT M/S. P.S. HONDA KARUKACHAL AS THEIR AUTHORIZED DEALER AT KARUKACHAL KOTTAYAM. EXHIBIT P3 PHOTOCOPY OF THE TRADE CERTIFICATE BEARING NO. KL-05-TC-136-2016. EXHIBIT P4 PHOTOCOPY OF THE TRADE CERTIFICATE BEARING NO. KL-05-TC-137-2016. EXHIBIT P5 PHOTOCOPY OF THE TRADE CERTIFICATE BEARING NO. KL-05-TC-138-2016. EXHIBIT P6 PHOTOCOPY OF THE TRADE CERTIFICATE BEARING NO. KL-05-TC-139-2016. EXHIBIT P7 PHOTOCOPY OF THE TRADE CERTIFICATE BEARING NO. KL-05-TC-140-2016. EXHIBIT P8 PHOTOCOPY[Y OF THE GST REGISTRATION CERTIFICATE ISSUED TO THE APPELLANT. EXHIBIT P9 PHOTOGRAPHS OF THE SHOWROOM AND SERVICE STATION AT M/S. P.S. HONDA KARUKACHAL. EXHIBIT P10 PHOTOCOPY OF THE ORDER NO. R8/17738/2018/K DATED 26.12.2018. EXHIBIT P11 PHOTOCOPY OF THE ADVERTISEMENT APPEARED IN THE HINDU DAILY DATED 18.1.2019. EXHIBIT P12 PHOTOCOPY OF THE APPEAL (WITHOUT EXHIBITS) FILED UNDER RULE 45 OF THE CMV RULES, BEFORE THE 1ST RESPONDENT.

W.P.(C)No.2129 of 2019 :-10-: EXHIBIT P13 EXHIBIT P14 EXHIBIT P15 EXHIBIT P16 EXHIBIT P17 PHOTOCOPY OF THE DIRECTION PETITION. PHOTOCOPY OF THE CHALAN SUBMITTED IN RESPECT OF EXT.P12 APPEAL DTD 23.1.2019 PHOTOCOPY OF THE AUTHORIZATION ISSUED BY THE MANUFACTURE M/S.HONDA MOTOR CYCLES AND SCOOTERS INDIA PVT.LTD DTD.30.06.2014. PHOTOCOPY OF THE LETTER OF INTENT FOR OPENING THE DEALERSHIP P.S.HONDA KARUKACHAL DTD.16.07.2014 PHOTOCOPY OF THE AGREEMENT EXECUTED BY PETITIONERS FIRM WITH THE MAIN DEALER ON THE BASIS OF AUTHORIZATION ISSUED BY THE MANUFACTURER DTD.22.11.2017.