Mohammed Faizal v. Regional Transport Officer, Malappuram; Joint Regional Transport Officer, Nilambur; Assistant Motor Vehicle Inspector, Nilambur

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943** **WA NO. 842 OF 2017** **AGAINST THE JUDGMENT DATED 24.03.2017 IN WP © NO.6626/2017 OF HIGH COURT OF KERALA, ERNAKULAM** ## **APPELLANT/PETITIONER:** MUHAMMED FAIZAL,AGED 32 YEARS S/O.MOIDHU HAJI,PALEMADU,EDAKKARA, KUNNUMMALPOTTY.P.O,NILAMBUR, MALAPPURAM DISTRICT-679331. BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H. ## **RESPONDENTS/RESPONDENTS:** 1 THE REGIONAL TRANSPORT OFFICER, MALAPPURAM-676505 2 JOINT REGIONAL TRANSPORT OFFICER NILAMBUR, MALAPPURAM DISTRICT, PIN-679331 3 ASSISTANT MOTOR VEHICLE INSPECTOR, NILAMBUR, MALAPPURAM DISTRICT, PIN-679331 BY SENIOR GOVT. PLEADER SHRI V.K. SHAMSUDHEEN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA No.842 of 2017 2 ## **S.V.BHATTI & VIJU ABRAHAM, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No.842 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of September 2021** ## **JUDGMENT** ## **Viju Abraham, J.** The appellant herein is the petitioner in W.P.(C) No.6626 of 2017. The writ petition was filed challenging Ext.P2 demand notice issued by the 1[st] respondent for an amount of `2,15,728/- being the motor vehicle tax arrears for the period from 01.07.2012 to 31.05.2013 and from 01.04.2015 to 30.09.2016 in respect of appellant’s stage carriage bus bearing Registration No.KL-10 M-7847. The appellant contended that his stage carriage bus is not operated from 01.06.2013 onwards and that the vehicle was continuously under Form G intimation from 01.06.2013 to 30.09.2016. The appellant relied on Ext.P1 report dated 18.08.2016 submitted by the Assistant Motor Vehicle Inspector, Nilambur, that the vehicle was seen garaged in the compound of one Sainaba and is in a dilapidated condition and that the vehicle was not put on road from 01.06.2013 to 12.08.2016. 2. The learned single Judge, on an appreciation of the facts and circumstances of the case, found that Ext.P2 demand notice is excluding the period during which Form G was submitted and the demand notice is made only for the period from 01.07.2012 to WA No.842 of 2017 3 31.05.2013 and from 01.04.2015 to 30.09.2016 and held that the appellant ought to have submitted intimation in Form G for the said periods also or if the vehicle is completely damaged, he should have moved for dismantling it. The learned single Judge though declined to interfere with Ext.P2 demand, permitted the appellant to pay the amount with due interest in six (6) monthly installments starting from 30.04.2017. It is aggrieved by the said judgment of the learned single Judge that the present appeal has been filed. 3. The appellant would contend that Ext.P1 report will clearly show that the vehicle was not put on the road from 01.06.2013 to 12.08.2016 and that the vehicle is in a dilapidated condition. The appellant further contends that ignoring Ext.P1 report, the tax was demanded. To substantiate his contention, the appellant relies on the judgment in **Mini Dileep v. Regional Transport Officer, Kottayam (2013 (2) KHC 884)** and also the judgment in **Pareed Pillai v. Oriental Insurance Co.Ltd [2018 (4) KLT 792 (LB)]** . 4. The question to be decided is as to whether the appellant is entitled to exemption from payment of tax based on Ext.P1 inspection report, for the period for which intimation in Form G was not submitted. 5. Ext.R3(a) memo was issued by the 1st respondent to the Assistant Motor Vehicle Inspector, Nilambur to verify the non-user of the vehicle for the period for which Form G intimation was submitted by the appellant. Based on Ext.P1 report, tax for the period during which WA No.842 of 2017 4 Form G intimation was submitted was not demanded by the department, whereas the tax for the period from 01.07.2012 to 31.05.2013 and from 01.04.2015 to 30.09.2016 during which intimation in Form G was not submitted alone was demanded as per Ext.P2. It is pertinent to note that there is no averment in the writ petition that any intimation in Form G has been submitted for the period from 01.07.2012 to 31.05.2013 and the specific case of the appellant was that the vehicle was continuously under Form G intimation from 01.06.2013 to 30.09.2016. 6. Section 3 of the Kerala Motor Vehicles Taxation Act, 1976 (hereinafter referred to as “the Act”) is the charging Section which mandates that tax shall be levied on every motor vehicle used or kept for use in the State at the rate specified for such vehicle in the Schedule. Going by the said provision, every motor vehicle used or kept for use in the State is bound to pay tax as fixed by the Government from time to time. Exemption from payment of tax could be claimed as per the provisions of Section 5 of the Act in respect of motor vehicles which is not intended to be used or kept for use, if the registered owner or the person who have control of the vehicle gives previous intimation in the form, manner, and fee, as may be prescribed, in this behalf to the Regional Transport Officer or the Joint Regional Transport Officer concerned that such vehicle will not be used for such period and that for the said period no tax shall be payable in respect of the vehicle. As WA No.842 of 2017 5 per Rule 10 of the Motor Vehicle Taxation Rules, previous intimation referred to in Section 5(1) of the Act shall be made to the Regional Transport Officer or the Joint Regional Transport Officer concerned in Form G accompanied with a receipt of remittance of the appropriate fee as specified and that on receipt of such information, Regional Transport Officer or the Joint Regional Transport Officer concerned shall certify, after such verification as may be deemed necessary, the non-use of the vehicle for the period for which tax is not payable, by making a necessary endorsement in the certificate of registration of the vehicle. 7. The appellant relies on Ext.P1 inspection report to contend that the vehicle could not be put to use and therefore there can be no demand for tax. Ext.P1 report was submitted pursuant to Ext.R3(a) memo issued by the 1st respondent requesting to enquire and report regarding the service of the vehicle for the period for which intimation in Form G was submitted by the appellant. As per Ext.P1 report the vehicle is garaged in the compound of one Sainaba and is in a dilapidated condition and that the vehicle was not put on road from 01.06.2013 to 12.08.2016. Even though as per Ext.Ext.R3(a) memo the direction was to enquire about the non-use of the vehicle for the period during which intimation in Form G was submitted, the officer reported about a certain period beyond that. An affidavit was submitted by the concerned officer in the writ petition stating that even though he was asked to verify the non-use of the vehicle for the period during which WA No.842 of 2017 6 Form G intimation was submitted, it is also reported that the vehicle was seen in the garaged place till 12-08-2016 i.e., on the date of inspection. He further clarified that the said aspect was reported in good faith and with an intention to inform the registering authority to take steps to cancel the registration of the vehicle as the vehicle was found not roadworthy. The said inspection report was called for by the 1[st] respondent to ascertain the non-use of the vehicle during the period for which Form G was submitted and only for the said period the report could be relied on for granting exemption from payment of tax. Therefore no reliance can be placed on Ext.P1 report to claim exemption from payment of tax beyond the period for which intimation in Form G was submitted. 8. The appellant relies on the judgment in **Pareed Pillai** (supra) by a Larger Bench of this Court. In that case, the court was examining the right of recovery from the insured, given in favour of the insurer (after satisfying the liability towards the third parties/claimants) for causing the transport vehicle to be driven without a valid permit/fitness certificate/driving license and held that when a transport vehicle is not having a fitness certificate, it will be deemed as having no certificate of registration and when such vehicle is not having a permit or fitness certificate, no person cannot be permitted to use such vehicle. The dictum laid down by the Larger Bench of this Court in the said decision is not at all applicable to the facts of this case. WA No.842 of 2017 7 9. The appellant also relied on the judgment in **Mini Dileep** (supra) in which it was held that an operator of a stage carriage who has defaulted service is not liable to pay tax at the rate applicable to the transport vehicle when substitute temporary permits have been granted to others to operate in the said vacancy. In the said case, the specific contention was that substitute temporary permits have been granted to others, which fact was admitted by the Transport Authorities and therefore not liable for payment of tax for stage carriages but only tax due at the rate applicable to a non-transport vehicle kept idle. In the present case, the only contention of the appellant is that the vehicle was continuing under intimation in Form G from 01-6-2013 to 30-9-16 and therefore not liable to pay any tax and therefore the said decision can have no application in the facts of this case. 10. As is seen from Ext.P2, tax is demanded only for the period during which intimation in Form G was not submitted by the appellant. The question now left to be decided is as to whether the appellant is entitled to get exemption from payment of tax without submitting Form G intimation. A similar issue came up for consideration in **Vipin v. Regional Transport Officer, Alappuzha (2015 (1) KHC 340** and **Prasannakumar v. Transport Commissioner (2017 KHC 2702)** and this Court taking note of **Mini Dileep** (supra) held that merely for the reason that the vehicle is not having a permit or that the vehicle is not kept for use, will not be by itself qualify for exemption from WA No.842 of 2017 8 payment of motor vehicle tax and such exemption can be granted only if an intimation is given to the authorities by filing Form G. In the aforesaid decisions, this Court relied on the judgment of the Apex Court in **State of Orissa and others v. Bijaya C. Tripathy (2004 KHC 1482)** . Referring to similar provisions in Orissa Motor Vehicles Taxation Act, 1975, the Apex Court held that in case of failure to give prior intimation and undertaking about the temporary non-use of the vehicle it would be presumed that the vehicle had been used or kept for use in the State, failing which the owner of the vehicle is liable for payment of motor vehicle tax. A similar view was taken by the Apex Court in **Commissioner, Transport -cum-Chairman and others v. Tapan Kumar Biswas [(2004) 7 SCC 135]** holding that in the absence of intimation and undertaking, notwithstanding the absence of a fitness certificate, the vehicle would be presumed to have been used or kept for use and thereby liable to pay motor vehicle tax. 11. A Full Bench of this Court in **Gracy Vincent v. State of Kerala and others (2006 (1) KLT 7)** held that the previous intimation under Section 5 of the Act read with Rule 10 of the Kerala Motor Vehicles Rules is a mandatory requirement for claiming exemption from payment of motor vehicle tax. In **Velayudhan Nadar v State of Kerala (1986 KLT 633)** this Court entered a finding that failure to comply with provisions of Section 5 of the Act will attract liability to pay tax and that it is impermissible to hold an enquiry under Section 5 of the Act into WA No.842 of 2017 9 non-user of a vehicle. A similar view was taken by this Court in **Vairavan v. Joint Regional Transport Officer (2001 (2) KLT 564)** wherein it was held that only if an intimation containing particulars required under Form G is submitted, one could claim exemption from payment of tax on the ground that the vehicle was not operating. 12. Given the discussion as above, the owner of a stage carriage or a motor vehicle can claim exemption from payment of motor vehicle tax only if proper intimation is submitted to the authorities regarding non-use of the vehicle by intimation in Form G. Since the appellant has not submitted Form G intimation during the period for which demand is made, he cannot claim exemption as contended by him. In view of the same, we agree with the reasoning of the learned single Judge and no interference is called for. The writ appeal lack merits and it is accordingly dismissed. However, taking note of the fact that the learned single Judge permitted the appellant/petitioner to pay the motor vehicle tax demanded in six monthly installments and that further proceedings for recovery pursuant to Ext.P2 was stayed in the present appeal on condition of depositing 1/3[rd] of the amount demanded, we deem it appropriate to permit the appellant to remit the amount demanded in Ext.P2, less amount if any deposited by the appellant on the strength of the interim order granted in this appeal dated 28.04.2017, in six (6) equal monthly installments, starting from 20.10.2021. Statutory interest WA No.842 of 2017 10 will run even during the period granted as per this judgment. It is made clear that in case of default of any one of the installments, the authorities are at liberty to resume the recovery proceedings. **Sd/-** **S.V.BHATTI JUDGE** **Sd/-** **VIJU ABRAHAM JUDGE** cks