THRIDEEP, S/O GOPINATH v. REGIONAL TRANSPORT OFFICER, ATTINGAL; THE TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE, KERALA

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 23RD DAY OF MAY 2014/2ND JYAISHTA, 1936 ## WP(C).No. 12562 of 2010 (U) ---------------------------- PETITIONER : ----------- THRIDEEP, S/O.GOPINATH, THRIPTHI, PALAYAMKUNNU P.O., VARKALA. BY ADV. SRI.P.M.SANEER RESPONDENTS : -------------- 1. THE REGIONAL TRANSPORT OFFICER, ATTINGAL. ## 2. THE TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE, KERALA, TRANS TOWERS, THIRUVANANTHAPURAM. REPRESENTED BY THE STATE OF KERALA. BY GOVERNMENT PLEADER SRI.ABHIJET LESSLY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 12562 of 2010 (U) ## APPENDIX ## PETITIONER'S EXHIBIT:- EXT.P1 : COPY OF THE SALE CERTIFICATE DTD.30/3/2010 ISSUED FROM C.C. KURIAN & COMPANY, ERNAKULAM. - EXT.P2 : COPY OF THE RETAIL INVOICE DTD.30/3/2010 ISSUED FROM C.C.KURIAN & CO. - EXT.P3 : COPY OF THE CERTIFICATE ISSUED BY M/S.JESSOP & COMPANY LTD. CALCUTTA. - EXT.P4 : COPY OF THE TEMPORARY REGISTRATION CERTIFICATE ISSUED BY the ADDL.RA ERNAKULAM. - EXT.P5 : COPY OF THE INSURANCE POLICY OF VEHICLE ISSUED FROM CHOLAMANDALAM GENERAL INSURANCE COMPANY LTD. - EXT.P6 : COPY OF THE RECEIPT NO.5012731. - EXT.P6(a) : COPY OF THE RECEIPT NO.5012732. - EXT.P7 : COPY OF THE EXTRACT OF THE KERALA FINANCE BILL 2010 PERTAINING TO THE AMENDMENTS IN KMVT ACT, 1976 DTD.26.3.2010. RESPONDENTS' EXHIBITS : NIL. True copy P.A to Judge ## **ANIL K.NARENDRAN, J. --------------------------------------W.P.(C).No.12562 of 2010** ## **---------------------------------------Dated this the 23[rd] day of May, 2014** ## **JUDGMENT** The petitioner is a Government Contractor. On 30/3/2010, the petitioner purchased a Jessop Model ‘810’ Diesel Road Roller for doing his contract work, from M/s. C.C. Kurian & Company, a dealer for Jessop Road Rollers at Ernakulam. Exts.P1 and P2 are the sale certificate and retail invoice of the said road roller, both dated 30/3/2010. Ext. P4 is the Certificate of Temporary Registration dated 30/3/2010 issued by the Additional Registering Authority, Ernakulam, certifying temporary registration of the road roller, under Section 43 of the Kerala Motor Vehicles Act, 1988, for the period from 30/3/2010 to 5/4/2010, with a temporary registration mark KL-07-AD-TEMP-8194. Ext. P5 is the cover note issued under Rule 142(1) of the Central Motor Vehicles Rules, 1989, by M/s. Cholamandalam MS General Insurance Company Ltd., for the period 30/3/2010 to 29/3/2011. W.P.(C).No.12562 of 2010 2 According to the petitioner, on 31/3/2010, the said road roller was produced before the Regional Transport Officer, Attingal, the first respondent herein, for permanent registration. In order to substantiate the said fact, the petitioner is relying on Ext.P6 and Ext.P6(a) cash receipts dated 31/3/2010 issued from the office of the first respondent. As per Ext.P6 ₹900/was collected towards Registration Fee and Service Charges and as per Ext.P6(a) a further sum of ₹250/- was collected towards One Time Cess. 2. The allegation in the Writ Petition is that, when the petitioner approached the office of the first respondent for permanent registration, one person, claiming to be an agent of the first respondent, approached him and demanded an amount of ₹5,000/- in order to effect registration of the road roller on 31/3/2010 itself. The said person further informed that, the petitioner will have to pay a higher rate of tax with effect from 01/04/2010 because of the amendment made to the Kerala Motor Vehicles Taxation Act, 1976, by the Kerala Finance Bill, 2010. Ext.P7 is a copy of a communication dated W.P.(C).No.12562 of 2010 3 26/3/2010 of the Transport Commissioner, the second respondent herein, addressed to all Deputy Transport Commissioners and Regional Transport Officers, enclosing therewith the relevant extract of the Kerala Finance Bill, 2010, amending the Kerala Motor Vehicles Taxation Act, 1976, with effect from 01/4/2010, by which the petitioner will have to pay tax @ 6% of the purchase value of the road roller. The petitioner was not prepared to accept the demand made by the said person, as a result of which the first respondent, instead of registering the vehicle on 31/3/2010, directed him to pay tax at the revised rate prescribed in Ext.P7, which came into force on 01/4/2010. It was in such circumstances, the petitioner has approached this Court in this Writ Petition seeking a writ of mandamus directing the first respondent to issue new registration certificate to his road roller bearing Chassis No.J13588 and Engine No.S433A18684 by accepting the tax amount paid as per Ext. P6 and Ext. P6(a) receipts and for a declaration that the petitioner is not liable to pay tax for registration of the road roller at the rate revised by the Kerala W.P.(C).No.12562 of 2010 4 Finance Bill, 2010. 3. By order dated 9/4/2010 in I.A.No.5244/2010 this Court directed the first respondent to consider the request made by the petitioner for permanent registration of his vehicle on condition that the petitioner satisfies the due amount as per the amended provision which came into existence from 1/4/2010. It was also made clear that, remittance as above will be only provisional and subject to the result of the Writ Petition. 4. The first respondent filed counter affidavit contending that, though the petitioner had remitted Fee for New Registration, Service Charge and One Time Cess vide Ext. P6 and Ext. P6(a) receipts dated 31/3/2010, he did not produce the road roller for inspection on that date. Such an inspection is a pre-requisite for registering the vehicle. If the vehicle was produced on 31/3/2010 itself, the same would have been inspected by the Inspecting Officer of the first respondent and registration certificate would have been issued without insisting payment of tax as amended by the Kerala Finance W.P.(C).No.12562 of 2010 5 Bill, 2010. The tax in respect of road roller up to 31/3/2010 was at the rate of ₹660/- per year. But by the amendment it was increased at the rate of 6% of the purchase value of the road roller. Hence the petitioner is liable to pay a sum of ₹77,780/- towards tax for road roller sought to be registered. Though the petitioner contended that he is not using the road roller since temporary registration, his road roller was checked by the Assistant Motor Vehicle Inspector attached to the office of the first respondent on 13/4/2010, who prepared a check report for the following offences; (1) No valid registration/temporary registration, valid insurance certificate or proof for payment of road tax and (2) The operator/driver is not authorized to operate/drive a road roller. In compliance of the interim order granted by this Court in I.A.No.5244/2010 the petitioner approached the office of the first respondent and remitted the road tax amounting to ₹77,780/- vide Tax Licence No.16/8121/2010. He has also remitted the compounding fee of ₹4,000/- in respect of the check report referred to above. Thereafter, the road roller was inspected and registration W.P.(C).No.12562 of 2010 6 certificate with registration mark KL-16-F-5261 was issued to the petitioner. Ext.P6 and Ext.P6(a) produced by the petitioner are not tax receipts. Ext. P6 is a receipt for Service Charges along with New Registration Fee and Ext.P6(a) is receipt for One Time Cess. Only on 16/4/2010 the petitioner produced the vehicle for registration and the said date being the date of first registration of the vehicle the petitioner is liable to pay tax as per the revised rate in Ext.P7. Therefore, the Writ Petition is liable to be dismissed. 5. I have considered the contentions raised by the petitioner in the Writ Petition and also the arguments of the learned Government Pleader appearing for the respondents. 6. As evident from Ext.P1 sale certificate and Ext.P2 retail invoice the petitioner purchased the road roller on 30/3/2010 from a dealer for Jessop Road Rollers at Ernakulam and the date of delivery of road roller mentioned in Ext.P1 sale certificate is also 30/3/2010. Now, on the strength of Ext.P6 and P6(a) cash receipts the petitioner contends that, he had produced the said road roller for permanent registration W.P.(C).No.12562 of 2010 7 before the Regional Transport Office, Attingal, on 31/3/2010. The allegation made in the Writ Petition is that, an agent of the first respondent demanded an amount of ₹5,000/- in order to effect registration of the road roller on 31/3/2010 itself and as the petitioner was not prepared to accept the demand made by the said person, instead of registering the vehicle on 31/3/2010, the first respondent directed him to pay tax at the revised rate prescribed in Ext.P7, which came into force on 01/4/2010. Though wild allegations of mala fides are made in the Writ Petition against the first respondent the person concerned has not been impleaded in his personal capacity. It is well settled that, when allegations of mala fides are raised against a person, the person concerned has to be impleaded in his personal capacity. Here the petitioner has not chosen to implead the first respondent in personal capacity to sustain the plea of mala fides and in such circumstances, the allegations of mala fides raised against the first respondent can only be rejected. In the counter affidavit filed by the first respondent it is contended that, though the petitioner had remitted New W.P.(C).No.12562 of 2010 8 Registration Fee, Service Charge and One Time Cess vide Ext. P6 and Ext. P6(a) receipts dated 31/3/2010, he did not produce the road roller for inspection on that date, which is a prerequisite for registering the vehicle. It was further contended that, only on 16/4/2010, the petitioner produced the vehicle for registration and the said date being the date of first registration of the vehicle he is liable to pay tax as per the revised rate in Ext.P7, which came into force with effect from 1/4/2010. Though the counter affidavit of the first respondent was filed on 17/9/2010, the petitioner has not chosen to file any reply affidavit refuting the facts stated in the said counter affidavit. In the above circumstances, the only conclusion that can be drawn is that, the petitioner produced the vehicle for permanent registration before the first respondent only on 16/4/2010. 7. The levy of motor vehicles tax is under Section 3 of the Kerala Motor Vehicles Taxation Act, 1976. Interpreting the 2[nd] proviso to Sub-section (1) of Section 3 of the Said Act, a Division Bench of this Court in **Hilal B. and another v. State** W.P.(C).No.12562 of 2010 9 **of Kerala and others** (2012 (3) KLT 438) has categorically held that, the rate of tax applicable is the rate in force as on the date of granting permanent registration and not on the date of granting temporary registration. In the said judgment the Division Bench has categorically held that, the 2[nd] proviso to Sub-section (1) of Section 3 of the Act, which provides for levy of tax on new vehicles clearly states that levy of tax on new vehicles is to be made at the time of ‘first registration’ of the vehicle. Even though it is stated that, for a new vehicle one-time tax at the rate specified in Annexure-I of the Schedule to the Act is payable from the date of purchase of the vehicle, the rate of tax applicable is as on the date of first registration of the vehicle. There is no provision in the Act to levy tax for the period of temporary registration. So much so, the first registration under 2[nd] proviso to Sub-section (1) of Section 3 cannot be a temporary registration granted under Section 43 of the Act read with Rule 94 of the Kerala Motor Vehicles Rules, but can only be a permanent registration granted under Section 40 of the Act. W.P.(C).No.12562 of 2010 10 In the case on hand, by the time the petitioner produced the vehicle before the first respondent for registration, the revised rate of tax introduced vide the Kerala Finance Bill, 2010 came into force. The rate of tax for road roller @₹660/- per year, which was the rate in force till 31/3/2010, was increased @6% of the purchase value of the road roller. As the petitioner produced the vehicle before the first respondent for permanent registration only on 16/4/2010 he is liable to pay a sum of ₹77,780/- as tax. Hence the demand made by the first respondent is perfectly legal and the petitioner is not legally entitled to get his road roller registered on payment of tax at the pre-revised rate, which was in existence prior to 1/4/2010. In such circumstances, the petitioner is not entitled for any of the reliefs prayed for. Hence the Writ Petition is dismissed. No order as to costs. ## **ANIL K.NARENDRAN, JUDGE** skj