Vipin v. Regional Transport Officer cum Motor Vehicles, Taxation Officer, Alappuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936** ## **WP(C).No. 26916 of 2014 (L)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **VIPIN, THEKKEVELIYIL, THIRUMALA BHAGOM, THURAVOOR, CHERTHALA, ALAPPUZHA.** ## **BY ADV. SRI.G.PRABHAKARAN.** ## **RESPONDENT(S):** **----------------------------** **THE REGIONAL TRANSPORT OFFICER CUM MOTOR VEHICLES, TAXATION OFFICER, ALAPPUZHA -688 001.** **BY SR. GOVT. PLEADER SMT.SHOBA ANNAMMA EAPEN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 26916 of 2014 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1 TRUE COPY OF THE R.C. BOOK WITH ITS VEHICLE NO.KL 6/A 9273.** - **EXHIBIT P2 TRUE COPY OF THE PERMIT FOR THE PERIOD 10-06-2009 TO 29-06-2009.** - **EXHIBIT P3 TRUE COPY OF THE INTIMATION ISSUED BY THE RESPONDENT WITH ITS NO. C3/KL 6-A 9273/2014/A DATED 18-07-2014.** - **EXHIBIT P4 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT DATED 11-08-2014.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 04-04-2013 IN WP(C).NO. 9386/2013.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 14-06-2013 IN WP(C).NO. 15010/2013.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 18-07-2013 IN WP(C).NO. 17870/2013.** ## **RESPONDENT'S EXHIBITS:-** **NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** **'CR'** ## **P.R.RAMACHANDRA MENON, J.** **= = = = = = = = = = = = = = = = W.P.(C) No.26916 of 2014** ## **= = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of October, 2014** ## **JUDGMENT** The petitioner was the registered owner of the vehicle, a stage carriage, bearing No.KL6/A 9273 w.e.f. 02.01.2007. Admittedly there occurred a default on the part of the petitioner to satisfy the tax under the Kerala Motor Vehicles Taxation Act on time. Various reasons have been stated, pointing out that the vehicle was not in a position to be operated on road and that the petitioner had never used the vehicle, nor had the vehicle been kept ready for use on road, so as to impose the tax liability under Section 3 of the Kerala Motor Vehicles Taxation Act. When the respondents proceeded with steps for realisation of the amount allegedly due in respect of the vehicle for the relevant period, the petitioner has approached this Court with the following prayers:- 1) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to endorse the exemption of vehicle tax at stage carriage rate in respect of the vehicle KL 6/A 9273 for the period 1.7.2012 to 30.6.2014 mentioned in Exhibit P4 **2** ## **W.P.(C) No.26916 of 2014** request with immediate effect by taking a final decision as it is admitted that 'G' form is received for the period and also as per the different judgment 2002(2) KLT 578. 2) to grant such other relief as this Hon'ble Court may deem fit and proper.” (sic) 2. Heard the learned counsel for the petitioner as well as the learned Government Pleader appearing for the respondent. 3. It is the case of the petitioner that the vehicle was not having regular permit. The last temporary permit expired on 26.02.2009, as evident from Ext.P2. Alleging tax arrears for 2009-2010, the vehicle was seized and it was released only much later, after compulsory satisfaction of the alleged dues. It is stated that the vehicle was subsequently dismantled. But now, the petitioner has been required to pay tax for 2012-2014 as per Ext.P3 notice; to which, detailed objections have been preferred vide Ext.P4, which is still to be considered and finalised. It is contended that the petitioner is entitled to get exemption. The learned counsel for the petitioner points out with reference to the pleading in the writ petition, particularly in Ground D, that the issue is squarely covered by the judgment rendered by this Court in **Mini Dileep v. Regional Transport Officer** (2013 (3) **W.P.(C) No.26916 of 2014** **3** KLT 97) (wrongly typed as 2013'(2)' KLT 97 in the Synopsis, in paragraph 4 and elsewhere in the writ petition). 4. In the decision **Mini Dileep** there was an observation in paragraph 7, to the effect that, when the vehicle could not have been used for transport of passengers, in circumstances like the expiry of validity of fitness certificate or expiry of the route permit, tax only at the rate applicable to a non-transport vehicle kept idle need be paid, as per the residual clause in Sl.No.12 of the Schedule to the Act. The petitioner in the said case contended that the route permit granted to the vehicle was valid only up to 09/08/2010 and that it could not have been used as a transport vehicle beyond the month of December 2010. The authorities proceeded with steps to impose tax liability for the whole period, for the reason that intimation 'Form G' was not given. 5. Whether the petitioner had actually operated the vehicle or not, even after the expiry of Permit or Fitness Certificate is a matter which is to be established on the basis of evidence to be let in and the burden is very heavy on the persons like the petitioner. This is for the obvious reason that, mere expiry of the **4** ## **W.P.(C) No.26916 of 2014** 'Fitness Certificate' or the 'Permit' will not be and cannot be a tool to infer that the party has not used the vehicle for operation. The mandate of Section 3 is something different, which is discernible from the provision extracted below:- “3. **Levy of tax.** -(1) Subject to the provisions of this Act, on and from the date of commencement of this Act, a tax shall be levied on very motor vehicle used or kept for use in the State, at the rate specified for such vehicle in the Schedule. Provided that no such tax shall be levied on a motor vehicle kept by a dealer in, or a manufacturer of, such vehicle, for the purpose of trade and used under the authorisation of a trade certificate granted by the registering authority. [Provided further that in respect of a new motor vehicle of any of the classes specified in item numbers 1,2,6,10(iii) and II of the Schedule to this Act, there shall be levied from the date of purchase of the vehicle one-time tax at the rate specified in Annexure I, at the time of first registration of the vehicle and thereafter tax shall be levied at the time of renewal of such vehicle at the rate specified in the Schedule as per fourth proviso to subsection(1) of Section 4:] [Provided further that in respect of new motor vehicle of any of the descriptions specified in item No.1(a) of the Schedule to this Act, there shall be levied from the date of purchase of the vehicle a tax in advance for a period of five years at the rate specified in the Schedule, at the time of first registration of the vehicle, and thereafter tax shall be levied at the rate specified in the Schedule in **5** ## **W.P.(C) No.26916 of 2014** accordance with the fourth proviso to sub-section (1) of Section 4:] [Provided also that in respect of new autorickshaws specified in item number 7(i)(b) of the Schedule to this Act, there shall be levied from the date of purchase of the new vehicle, a tax in advance for a period of five years at the rate specified in Annexure II, at the time of first registration of the vehicle and thereafter tax shall be levied for 5 years or for one year at the rate specified in the seventh proviso to sub-section (1) of Section 4.] (2) The Government may from time to time by notification in the Gazette, increase the rate of tax specified in the Schedule: Provided that such increase shall not in the aggregate exceed fifty percent of such rate. (3) The registered owner of, or any person having possession or control of a motor vehicle shall, for the purpose of this Act, be deemed to use or keep such vehicle for use in the State, except during any period for which no tax is payable on such motor vehicle under sub-section(1) of Section 5. (4,5.6 are not relevant in this context) 6. The question whether expiry of the 'Fitness Certificate' or 'Permit' will automatically enable the party concerned to evade the tax liability, had come up for consideration before the Apex court in **State of Orissa and others v. Bijaya C.Tripathy** (2004(7) SCC 139 = AIR 2005 SC 1431= 2004 KHC 1482). After considering the relevant provisions of law, the Apex Court **6** ## **W.P.(C) No.26916 of 2014** observed that, even in the absence of a permit, the vehicle remains a 'transport vehicle' which is capable of being used on a road. Paragraph 10 of the said verdict is very relevant; which hence is extracted below:- “The High Court also appears to have misread S.66 of the Motor Vehicles Act. All that S.66 of the Motor Vehicles Act provides is that the owner of a motor vehicle cannot use the vehicle as a transport vehicle in any public place without a permit. S.66, therefore, merely prevents use of the vehicle as a transport vehicle without a permit. It does not prohibit driving of such a vehicle on a public road. The vehicle can be driven on a public road so long as it is not used as a transport vehicle. To take an extreme example, the owner of such a vehicle may use that vehicle for taking his family out for a picnic. S.66 will not bar such a use. It is thus clear that even in the absence of a permit the vehicle remains a transport vehicle which is capable of being used on a road so long as the vehicle has a valid certificate of fitness and a valid registration certificate. In such cases it has to be presumed that such a vehicle has been “kept for use” irrespective of whether or not it was actually used on the road.” **7** ## **W.P.(C) No.26916 of 2014** The said decision was not brought to the notice of the learned Single Judge when the decision in **Mini Dileep v. Regional Transport Officer** (2013(3) KLT 97) was rendered. 7. There is another plea for the petitioner with reference to the law declared by this Court in “2002(2) KLT 578”. Despite the extensive search, this Court could not find out any such decision, which cannot but be a mistake of the petitioner. This Court does not intend to express any opinion with regard to the same. 8. The learned counsel for the petitioner submits that the petitioner's relief will stand confined to consideration of Ext.P4 by the respondent and that the petitioner is ready to establish the factual position. In the said circumstances, this Court finds that no other relief as sought for in the writ petition is liable to be granted. The respondent is directed to consider Ext.P4 and pass appropriate orders in accordance with law, giving a chance to the petitioner to establish the facts and figures. This exercise shall be done at the earliest, at any rate, within six weeks from the date of receipt of a copy of this judgment. **8** ## **W.P.(C) No.26916 of 2014** The petitioner shall produce a copy of the judgment, along with a copy of the writ petition, before the respondent for further steps. # **P.R.RAMACHANDRA MENON, JUDGE** sj