EVM Motors and Vehicles India (P) Ltd v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942 WA.No.1585 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 14212/2020(B) OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER:** **EVM MOTORS AND VEHICLES INDIA (P) LTD 11/4C, NH BYE PASS, VYTTILA P O, KOCHI-19, REPRESENTED BY MANAGING DIRECTOR MR SABU JOHNY, AGED 48 YEARS, S/O E M JOHNY.** **BY ADVS. K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT SRI.M.A.AHAMMAD SAHEER MUHAMMAD AJEESH P.B** ## **RESPONDENTS/RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, MOTOR VEHICLE DEPARTMENT, THIRUVANANTHAPURAM-695001. 2 THE DEPUTY TRANSPORT COMMISSIONER CENTRAL RANGE, KAKKANAD, ERNAKULAM, PIN-682030.** - **3 THE REGIONAL TRANSPORT OFFICER ERNAKULAM, 2ND FLOOR, CIVIL STATION, KAKKAND, ERNAKULAM DISTRICT-682030.** **SENIOR GOVERNMENT PLEADER SRI. V.K.SHAMSUDHEEN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1585/2020 -2- ## **JUDGMENT** ## **T.R.RAVI, J.** The appellant had filed the writ petition praying to quash Ext.P5 order issued by the Deputy Transport Commissioner and for a direction to the 1[st] respondent to refund the road tax paid by the petitioner. The writ petition was dismissed by a learned Single Judge and hence this appeal. 2. Heard Sri Abhilash K.N. on behalf of the petitioner and the Senior Government Pleader on behalf of the State. 3. The appellant purchased a motor car bearing registration No.KL-07/BX-911 which was registered with the Regional Transport Office, Ernakulam on 19.03.2013, as evidenced by Ext.P1 certificate of registration. An amount of Rs.20,20,600/- has been paid as road tax on 11.03.2013. According to the appellant, the vehicle was sold to one Nirmal on 20.10.2014 under the jurisdiction of the RT Office, Thrissur. The vehicle was thereafter transferred to one Ameer Sharma, Hyderabad, Telangana. It is stated that the RTO, Thrissur had issued a no objection certificate to RTO, Hyderabad on 16.9.2017 for the purpose of transfer of ownership. It would W.A.No.1585/2020 -3- appear from Ext.P3 certificate of registration issued by the Telangana State Transport Department, where the registration has been taken in the name of one Bhargav Ram Rajiv Avimeni, and not Ameer Sharma, suggesting a further transfer. Neither the copy of the NOC issued by the Thrissur Regional Transport Office on 16.09.2017, nor any document showing the change of ownership to Sri Nirmal or Sri Ameer Sharma has been produced along with the writ petition. 4. The request for refund was considered by the Regional Transport Officer, Ernakulam and was rejected by Ext.P2 order dated 19.08.2019. It can be seen from Ext.P2 that the reasons for rejection are that the petitioner did not comply with the necessary conditions for refund of tax. Under Rule 15A(2) of the Kerala Motor Vehicle Taxation Rules, 1976 an application for refund of tax has to be made within one year from the date of removal of the vehicle from the State. The tax licence has to be surrendered along with the application and the certificate obtained from the Registering Authority of the State to which the vehicle is removed has also to be produced, showing that tax due to that State has been paid. In the appeal filed by the petitioner against Ext.P2, the Deputy W.A.No.1585/2020 -4- Transport Commissioner issued Ext.P5 order dated 18.5.2020. The Appellate Authority found that the conditions regarding the surrender of tax licence and production of certificate from the Registering Authority of the transferring State has been complied with by the petitioner. However, since the claim for refund has not been made within one year from the date on which the vehicle was removed from the State of Kerala, the request for refund was rejected. 5. The learned Single Judge found that Rule 15A(2) prescribes a period of limitation of one year for making the claim for refund and that since the statutory authority cannot extend the period of limitation, and since Section 5 of the Limitation Act would not be applicable to condone the delay, no relief can be granted in the writ petition. In the case on hand, the application for refund was filed only on 26.06.2019. Admittedly, the petitioner has sold the vehicle as early as on 20.10.2014. Ext.P3 does not bear any date and it is not clear as to the date on which the Telangana State Transport Department granted the certificate of registration. Even going by the materials before the Court, the vehicle has been removed from the State of Kerala some time before 16.09.2017. W.A.No.1585/2020 -5- 6. The counsel for the appellant relied on the judgment of the Hon'ble Supreme Court in **Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and others** reported in **[2019 (5) KHC 735]** and submits that the period prescribed in Rule 15A is not a period of limitation and is only procedural. According to the counsel, there is no mandate that the claim for refund should be made within a period of one year. In the judgment referred to by the counsel, the Hon'ble Supreme Court was considering Order VIII Rule 6A of the Code of Civil Procedure and it was held that the Rule does not put an embargo on filing the counter claim after filing the written statement. The Court however added that it does not give an absolute right to the defendant to file counter claim with substantive delay even if the limitation period prescribed has notelapsed. We are of the opinion that the above decision has no bearing on the case before us. 7. Section 6(2) of The Kerala Motor Vehicles Taxation Act, 1976 (the Act for short), dealing with refund of tax collected reads thus: “Section 6: Refund of Tax.- (1) xxxxx xxxxx xxxxx xxxxx xxxxx - (2) Notwithstanding anything contained in this Act, a W.A.No.1585/2020 -6- registered owner who has paid tax for a year or more shall be entitled to refund of tax at such rates as may be prescribed on cancellation of the registration of the vehicle or removal of the vehicle to any place outside the State on account of transfer of ownership or change of address.” Going by Section 6(2), the claim for refund can be made by a registered owner who has paid tax for a year or more. A registered owner is defined under Section 2(eb) of the Act to mean a person in whose name a motor vehicle is registered or deemed to be registered under the Motor Vehicles Act, 1939 (Central Act, 4 of 1939). The claim for refund can be made only after the vehicle is registered in the State to which it is removed and after payment of the tax payable in the said State. Even though Ext.P1 copy of Certificate of Registration issued from RTO, Ernakulam shows the name of the petitioner as registered owner, after transfer of the vehicle to Mr.Nirmal, the RTO, Thrissur has carried out changes in the registration details of the vehicle and Mr.Nirmal was the last holder of the registration certificate regarding the vehicle, while it remained within the State of Kerala. The appellant specifically states in his writ petition that the ownership change was noted at the RTO Thrissur. Admittedly, when the vehicle was removed from W.A.No.1585/2020 -7- the State of Kerala to the State of Telengana, the petitioner was not the registered owner of the vehicle. Even though Section 6(2) says the claim for refund is to be made by the registered owner “who has paid tax for a year or more”, the same cannot be understood to mean the person who paid the tax at the first instance. If that was the intention of the statute, the words “registered owner” would not have been used in the section. As such, the question whether Rule 15A(2) is to be understood as providing a period of limitation for preference of the claim does not really have any significance, since the petitioner had parted with the vehicle and ceased to be the registered owner, much before the removal of the vehicle to Telengana, and hence was not entitled to lay a claim for refund. The right to claim refund is conferred on the registered owner since even a subsequent transferor would have purchased the vehicle at a price, factoring the tax paid on the vehicle. 8. We hence dismiss the appeal, finding the the petitioner is not entitled to claim refund of the tax paid, since it is a right available under the statute to the registered owner. We are not expressing any opinion on the question whether Rule 15A prescribes a period of limitation for preferring a claim for refund, W.A.No.1585/2020 -8- since according to us, that question does not even arise in the case. The parties are directed to bear their respective costs. Sd/- **K. VINOD CHANDRAN JUDGE** Sd/- **T.R. RAVI JUDGE** dsn