Ramkumar v. Regional Transport Officer (Taxation Officer)/Secretary, Regional Transport Authority, Kozhikode; Regional Transport Authority, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021/30TH AGRAHAYANA, 1943** ## **WP(C) NO. 27351 OF 2020** **PETITIONER:** **RAMKUMAR V. S/O. SREEMANUNNI NAIR, VYSYAMPURATH HOUSE, MAYANAD, KOZHIKODE.** **BY ADV P.DEEPAK** ## **RESPONDENTS:** |**1**|**THE REGIONAL TRANSPORT OFFICER,**| |---|---| ||**(TAXATION OFFICER) / SECRETARY,**| ||**REGIONAL TRANSPORT AUTHORITY,**| ||**KOZHIKODE REGIONAL TRANSPORT OFFICE,**| ||**ERANHIPALAM, KERALA-673020.**| |**2**|**THE REGIONAL TRANSPORT AUTHORITY,**| ||**KOZHIKODE,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**REGIONAL TRANSPORT OFFICE,**| ||**ERANHIPALAM, KERALA-673020.**| ||**BY SMT.M.M.JASMIN, GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2021, THE COURT ON 21.12.2021 DELIVERED THE FOLLOWING:** W.P.(C) No.27351/20 ## **-:2:-** ## **BECHU KURIAN THOMAS, J. ----------------------------------------W.P.(C) No.27351 of 2020 ----------------------------------------** Dated this the 21[st] day of December, 2021 ## **JUDGMENT** Petitioner is aggrieved by non-consideration of his application for replacement of a stage carriage. He also seeks for the relief of reschedulement of the date for remittance of instalments of motor vehicles tax, granted as per Ext.P7 proceedings. 2. Petitioner has a regular permit for plying a stage carriage through the route Kozhikode-Thengilakadavu-Mavoor, issued on 06.12.2016, for the vehicle bearing registration No.KL-11-R-1824. The validity of the said permit will expire on 31.12.2021. While so, on 03.07.2020, petitioner requested for replacement of the vehicle under section 83 of the Motor Vehicles Act, 1988 (for short, 'the Act') with another stage carriage bearing registration No.KL-58-H-1948. 3. Learned counsel for the petitioner contended that the first respondent, who is the competent authority to consider the application for replacement of the vehicle, refused to consider petitioner's application, on the ground that the motor vehicles tax due ## W.P.(C) No.27351/20 ## **-:3:-** in respect of the vehicle sought to be replaced for the period from 01.01.2019 to 31.03.2020 was in arrears. 4. Subsequently, pursuant to the directions from this Court, the second respondent granted permission to the petitioner to remit the arrears of tax in six instalments as per Ext.P5. In spite of grant of permission to pay the tax arrears in instalments, after payment of the first instalment, petitioner defaulted in repaying the balance. Petitioner attempted to reason that, his application for replacement had not been considered by the authority which prompted him not to pay the arrears. Though petitioner contended that remittances made by him towards motor vehicles tax had also not been duly deducted while calculating arrears, to cut a long story short, petitioner insisted on grant of permission for replacement of the vehicle, to pay the arrears of motor vehicles tax. In the meantime, since this Court had directed the second respondent to consider and pass appropriate orders on the application for replacement of the vehicle, by judgment dated 06.08.2020 in W.P.(C) No.14802 of 2020, the second respondent considered the same and rejected the application for replacement of the vehicle by order dated 09.11.2020, a copy of which is produced as Ext.P8. ## W.P.(C) No.27351/20 ## **-:4:-** 5. A perusal of Ext.P8 reveals that the application for replacement of the vehicle was rejected on three grounds - that the vehicle bearing registration No.KL-11-R-1824 had defaulted service for nearly three years, had failed to pay the arrears of tax for the said years, and that, the whereabouts of the vehicle are not known. It is in such circumstances that this writ petition has been filed, challenging Ext.P8 and also seeking directions for grant of replacement of the vehicle and for remittance of tax. 6. A counter affidavit has been filed by respondents 1 and 2 stating that, the motor vehicles tax for the vehicle bearing registration No.KL-11-R-1824 is in arrears from 01.04.2017 to 30.08.2017 and that revenue recovery steps have been initiated for recovery of the same. Respondents have further pointed out that the tax for the period 01.01.2019 to 31.03.2020 is also in arrears and that even after an instalment facility was granted for repayment of the tax, the same was not paid and hence petitioner lost the benefit of the direction, granting instalment facility. Respondents pleaded that the application for replacement of the vehicle along with the prescribed fee has not been received from the petitioner and that the details of the existing vehicle are not available even after contacting the ## W.P.(C) No.27351/20 ## **-:5:-** registered owner. Respondents further pleaded that, since the whereabouts of the vehicle with the existing permit was not forthcoming, directions were issued for production of the vehicle and since the same was not produced and the registered owner admitted his lack of knowledge regarding the whereabouts of the vehicle, the rejection for grant of permission to replace the vehicle is justified. According to the respondents, if the tax has not been paid within the stipulated period, the validity of the permit will become ineffective and it ceases to be in operation and that replacement of the vehicle cannot be granted, if the permit is not valid. 7. I have heard Sri.P.Deepak, learned counsel for the petitioner as well as Smt.M.M.Jasmin, learned Government Pleader. 8. Learned counsel for the petitioner vehemently argued that, the whereabouts of the vehicle need not be looked into for the purpose of replacement and also that, the non-payment of tax cannot be used as a detriment while granting replacement of the vehicle. The learned counsel relied upon the decision of this Court in **P.P.Vasudevan v. Regional Transport Officer** (W.P.(C) No.15184 of 2010) **M.Abdul Nazer v. The Secretary, Regional Transport Authority** (W.P.(C) No.11953 of 2009), apart from the decision in ## W.P.(C) No.27351/20 ## **-:6:-** **M.A.Scaria v. Secretary, Regional Transport Authority** (W.P.(C) No.21296 of 2008). 9. On the other hand, Smt.M.M.Jasmin, while reiterating the contentions mentioned earlier, relied upon the Full Bench decision in **Nafiza Sultana v. Secretary, R.T.A. Bangalore Rural, B.D.A. Complex and Another** (AIR 2010 Kar. 179) and submitted that nonpayment of arrears of tax ought to result in refusal of replacement. 10. The concept of replacement of a vehicle is dealt with in section 83 of the Act. It states that the holder of a permit may, with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit, by any other vehicle of the same nature. The Kerala Motor Vehicles Rules, 1989 also provide for replacement of the vehicle in Rule 174. A perusal of the statutory provisions and the various unreported judgments relied upon by the petitioner renders it explicit that it is not necessary that the petitioner should produce the old vehicle before the respondent. Thus, the finding in Ext.P8 that the whereabouts of the vehicle is not known cannot be regarded as a sufficient ground to reject an application for replacement of the vehicle. 11. However, the finding in Ext.P8 that there is a default in ## W.P.(C) No.27351/20 ## **-:7:-** payment of motor vehicles tax, which is explained in the affidavit as covering the period from 01.04.2017 to 30.08.2017 and 01.01.2019 to 31.03.2020 has great significance. One of the primary requirements for replacement of a vehicle is the need to be 'the holder of a permit'. Thus, to replace a vehicle, a permit must be in force and valid. The Full Bench of the Karnataka High Court had held in **Nafiza Sultana v. Secretary, R.T.A. Bangalore Rural, B.D.A. Complex and Another** (AIR 2010 Kar. 179) that holder of a permit is not entitled to replace any vehicle covered by the permit by any other vehicle of the same nature, under section 83 of the MV Act, without paying the tax dues. 12. Since petitioner had defaulted in payment of the motor vehicles tax for period mentioned earlier, he cannot demand that his application for replacement must be allowed automatically. It is relevant to mention at this juncture that, petitioner had failed to take the benefit of the instalment facility granted to him by the first respondent as per order dated 25.09.2020 to pay the motor vehicles tax arrears till the period up to 31.03.2020. Thus, petitioner is a defaulter and is a person, who has not performed his statutory obligation under the Act. Only if the motor vehicles tax due on a ## W.P.(C) No.27351/20 ## **-:8:-** vehicle is paid would the certificate of fitness for a vehicle be valid and if a valid certificate of fitness is not in existence, the permit itself will not be valid. 13. Thus without payment of tax due on the motor vehicle, the permit cannot be said to be an effective permit or a valid permit. Without a valid permit, a person cannot be said to be the 'holder of a permit'. 14. It is relevant to note that, due to the Covid-19 pandemic, the Government had issued notifications granting the benefit of payment of arrears of tax in instalments. The Government has also issued notification extending the time for payment of motor vehicles tax for the quarters from 01.06.2021 till 31.12.2021 by 31.12.2021. Instalment facilities have also been granted for repaying the arrears for the earlier periods. Thus, taking into consideration the peculiar circumstances now prevailing, due to Covid-19 pandemic and also taking into reckoning the instalment facility granted by the Government for payment of tax, this Court is of the opinion that the petitioner must be granted one more opportunity to pay the entire tax arrears till 30.06.2021 for considering the grant of replacement of the vehicle. ## W.P.(C) No.27351/20 ## **-:9:-** 15. In this context, the observations of this Court in **P.P.Vasudevan v. Regional Transport Officer** (W.P.(C) No.15184 of 2010) is also relevant. It was observed therein that “ _The respondent is free to quantify the amount of tax, if any, in arrears in respect of the old vehicle of the petitioner. On the petitioner making payment of the said arrears of tax, the renewed permit of the vehicle shall be endorsed. The application of the petitioner for replacement of his vehicle with the new vehicle bearing Registration No.KL-11-Y-9973 shall be considered and disposed of within a period of two weeks thereafter.”_ 16. Having regard to the aforesaid approach taken by this Court as well as the circumstances mentioned earlier, I am of the opinion that the petitioner must be granted an opportunity to pay the entire tax arrears due as on 30.06.2021 of the vehicle bearing registration No.KL-11-R-1824 on or before 24.12.2021. If the entire arrears due on the said vehicle as on 30.06.2021 are cleared by the petitioner, by 24.12.2021, the 2[nd] respondent shall consider and pass appropriate orders on the application for replacement of the existing permit of the vehicle with another stage carriage bearing registration No.KL-58-H-1948 and issue orders of replacement on or before ## W.P.(C) No.27351/20 ## **-:10:-** 31.12.2021. It is clarified that since this Court has been granting instalment facility for paying the motor vehicles tax for the period from 01.07.2021 till 31.12.2021, in five equated monthly instalments, the said benefit shall also be extended to the petitioner in a similar manner. To enable the consideration as directed above, Ext.P8 shall stand set aside. 17. Accordingly, while the petitioner is given the liberty to pay the entire arrears of tax till 30.06.2021 by 24.12.2021, the petitioner shall remit the motor vehicles tax for the period from 01.07.2021 till 31.12.2021 in five equated monthly instalments, the first of which shall commence from 31.12.2021. If the arrears of the tax are paid by 24.12.2021, the second respondent shall pass fresh orders on the application for replacement of the vehicle as sought for. 18. It is clarified that, in the event of failure of the petitioner to remit the entire arrears of tax up to 30.06.2021 by 24.12.2021, the respondents are not under any obligation to consider the application for replacement of the vehicle afresh. The writ petition is allowed as above. Sd/- vps **BECHU KURIAN THOMAS** ## W.P.(C) No.27351/20 ## **-:11:-** ## **APPENDIX OF WP(C) 27351/2020** ## **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE REGULAR PERMIT VALID TILL 31/12/2021 DATED 6.12.2016.** **EXHIBIT P2 A TRUE COPY OF THE APPLICATION FOR REPLACEMENT OF VEHICLE DATED 03/07/2020.** **EXHIBIT P3 A TRUE COPY OF THE DEMAND NOTICE DATED 26/02/2020.** **EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 06/08/2020 IN WPC NO.14802/2020.** **EXHIBIT P5 A TRUE COPY OF THE PROCEEDINGS OF THE RESPONDENT DATED 24/08/2020.** **EXHIBIT P5(a) TRUE COPY OF THE TAX LICENSE ISSUED TO THE PETITIONER.** **EXHIBIT P6 A TRUE COPY OF THE RECEIPT DATED 30/10/2019.** **EXHIBIT P6(a) A TRUE COPY OF THE RECEIPT DATED 26/11/2019. EXHIBIT P6(b) A TRUE COPY OF THE RECEIPT DATED 24/12/2019. EXHIBIT P6(c) A TRUE COPY OF THE RECEIPT DATED 30/01/2020. EXHIBIT P6(d) A TRUE COPY OF THE RECEIPT DATED 11/03/2020. EXHIBIT P7 A TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 25/09/2020. EXHIBIT P7(a) TRUE COPY OF THE POSTAL COVER/ENDORSEMENT DATED 11/11/2020. EXHIBIT P8 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 09/11/2020. EXHIBIT P8(a) TRUE COPY OF THE POSTAL COVER/ENDORSEMENT DATED 11/11/2020. EXHIBIT P9 A TRUE COY OF THE JUDGMENT DATED** W.P.(C) No.27351/20 ## **-:12:-** **22/05/2014 IN WPC NO.11581/2014. EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED 07/04/2016 IN WPC NO.12901/2016.**