V.N. Velayudhan v. Regional Transport Authority (Ernakulam) and Transport Authorities, Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941** ## **WP(C).No.19480 OF 2014(H)** ## **PETITIONER/S:** **V.N. VELAYUDHAN, S/O.NARAYANA PILLAI, 7/489, VALLAYIL HOUSE, EDATHALA, NAD P.O., ALUVA.** **BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H.** ## **RESPONDENT/S:** |**1**|**REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT**| |---|---| ||**COMMISSIONER (CENTRAL ZONE-II), ERNAKULAM - 682 030.**| |**2**|**TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM - 695 001.**| |**3**|**TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM - 695 001.**| ||**BY GOVERNMENT PLEADER, SRI.C.K.GOVINDAN SPL.GP TAXES**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.02.2020, ALONG WITH WP(C).6355/2018(T), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.19480/2014 & 6355/2018 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941** ## **WP(C).No.6355 OF 2018** ## **PETITIONER/S:** - **1 V.N VELAYUDHAN, AGED 56 YEARS, S/O. NARAYANA PILLAI, 7/489, VALLAYIL HOUSE, EDATHALA, NAD P.O., ALUVA.** - **2 P. J. JUNAID, S/O. JAMAL, PALLURUTHY MUNDEDATH HOUSE, PANDIYELATHARA LANE, DESHABHIMANI ROAD, KALOOR682017.** **BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H.** ## **RESPONDENT/S:** - **1 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY CIVIL STATION, ERNAKULAM, PIN-682030.** - **2 REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, ERNAKULAM, PIN-682030, REPRESENTED BY ITS SECRETARY.** **BY GOVERNMENT PLEADER, SRI.C.K.GOVINDAN SPL.GP TAXES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.02.2020, ALONG WITH WP(C).19480/2014(H), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.19480/2014 & 6355/2018 3** ## **JUDGMENT** ## **[ WP(C).19480/2014, WP(C).6355/2018 ]** ## **Dated this the 3rd day of February 2020** The dispute in these cases is in regard to the claim of motor vehicles tax for the period from 01.04.2011 to 31.12.2012. V.N.Velayudhan is a stage carriage operator, the petitioner in W.P.(C) No.19480/2014 and the first petitioner in W.P.(C) No.6355/2018, He had a regular permit in respect of a bus bearing registration No.KL-41A2419 till 14.01.2010. He submitted an application for renewal of permit after more than 15 months, the renewal was granted only on 31.12.2012. 2. V.N.Velayudhan paid tax upto 31.3.2011. This was for the reason that he had been issued temporary permit to operate the vehicle in the route. 3. V.N.Velayudhan's case is that he did not operate the vehicle from 01.04.2011 till 31.12.2012. 4. The case has a chequered history starting from the year 2012 in W.P.(C) No.24816/2012. The judgment in the above case was delivered on 12.12.2012 and thereafter, a regular permit was issued on 31.12.2012. This Court in **WP(C).Nos.19480/2014 & 6355/2018 4** the above case noting that V.N.Velayudhan and another had the advantage of the temporary permit till 31.3.2011, directed V.N.Velayudhan to remit tax upto that period. This Court directed to consider the claim of the petitioner as a non-transport vehicle with effect from 01.4.2011 on payment of tax upto 31.3.2011. 5. This was considered by the Regional Transport Officer, Ernakulam and ordered that the petitioner is bound to pay tax from 01.04.2011 till 31.12.2012 as applicable for stage carriage vehicle. This was appealed before the Deputy Transport Commissioner. The Deputy Transport Commissioner also affirmed the order. The vehicle could not have operated without any permit issued by the Transport Authority. The question therefore that arises is whether without filing any 'G' form as contemplated under Section 5 of the Kerala Motor Vehicles Taxation Act, 1976, (for short, the Act), the petitioner can claim exemption on payment of tax. 6. Section 3 is a charging Section. It says that tax shall be levied on every motor vehicle used or kept for use in the State. The use would arise when there is a permit issued. When there is no permit issued, the **WP(C).Nos.19480/2014 & 6355/2018 5** question of use does not arise. The exemption of tax as contemplated under Section 5 of the Act would arise when the vehicle is ready for use or kept for use. In both circumstances there must be a permit. This is also clear from Section-6 of the Act, which says that where refund of tax is claimed on the ground that the vehicle has not been used or kept for use during the whole of that quarter or year or a continuous part thereof not being less than one month, the owner of the motor vehicle is entitled for refund. The pre-requisite for tax, therefore, is based on the permit issued to the vehicle. It is only based on such permit that one need to submit an application for exemption under Section 5 of the Act. When there is no permit issued there is no necessity to apply for exemption. 7. This proposition of law is also clear from the judgment of the learned Single Judge of this Court in **Mini Dileep v. Regional Transport Officer, Kottayam and Other** s [2013 (2) KHC 884]. The dictum in the aforesaid judgment was also affirmed by the Division Bench of this Court in W.A.No.335/2014. **WP(C).Nos.19480/2014 & 6355/2018 6** 8. The learned Special Government Pleader, however, made an attempt to defend the impugned order in the light of the Full Bench judgment of this Court in **Jomon M.Arackal v. Tahsildar [2015(1) KLT 163(FB)].** That is a case where the vehicles were in police custody and, this Court, taking note of Section 5 of the Act, ordered that exemption of payment of tax can be made only in terms of Section 5 of the Act. The Full Bench dealt with a case where the vehicle is usable but for custody by police. There cannot be any dispute on the proposition of law. Here is the case where the vehicle is not usable or cannot be kept for any use, there cannot be any demand of tax. 9. The learned Special Government Pleader referred to Section 81(5) of the Motor Vehicles Act, 1988 which stipulates that where a permit is renewed under that Section after the expiry of the period thereof, such renewal shall have effect from the date of expiry. Therefore, it is submitted that the petitioner shall pay tax based on such renewal. The charging section itself is very clear. It is related to use of such vehicle. That means even if the deemed permit is issued retractively, no demand of tax can be raised. The renewal of the permit **WP(C).Nos.19480/2014 & 6355/2018 7** retrospectively is by legal fiction. It cannot itself create a right for demand of tax. Therefore, the impugned order cannot be sustained. The demand made by the petitioners from 01.04.2011 to 31.12.2012 is set aside. The petitioners shall pay idle tax for the aforesaid period as applicable for NTV. The writ petitions are disposed of as above. **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** ln **WP(C).Nos.19480/2014 & 6355/2018 8** ## **APPENDIX OF WP(C)No.19480/2014** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PERMIT RELATING TO BUS NO.KL41 A-2419 ISSUED BY THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM WHICH WAS VALID UPTO 14/01/2010.** - **EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICE DATED 01/12/2011 ISSUED BY THE 1ST RESPONDENT IN THE NAME OF THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT MADE IN WPC NO.24816/2012 DATED 12/12/2012.** - **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 21/12/2012 SENT BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE RECEIPT RELATING TO PAYMENT OF RS.74,700/- BY THE RTO.** - **EXHIBIT P6 TRUE COPY OF THE ORDER NO.C1/8079/2012 DATED 15/01/2013 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.C/922/2013 DATED 17/6/2013 ISSUED BY THE DEPUTY TRANSPORT COMMISSIONER, ERNAKULAM.** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 04/02/2014 MADE IN RP NO.162/2013 BY THE TRANSPORT COMMISSIONER.** - **EXHIBIT P9 TRUE COPY OF THE ONE SUCH INTERIM ORDER DATED 04/06/2014 MADE IN WPC NO.12426/2014 BY THIS HON'BLE COURT.** RESPONDENTS EXHIBITS:NIL. //TRUE COPY// P.A.TO JUDGE **WP(C).Nos.19480/2014 & 6355/2018 9** ## **APPENDIX OF WP(C)No.6355/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PERMIT RELATING TO BUS NO.KL 41A-2419 ISSUED BY THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM WHICH WAS VALID UPTO 14.01.2020.** - **EXHIBIT P2 TRUE COPY OF THE PROCEEDING ERNAKULAM IN ITEM NO.25 OF THE MEETING HELD ON 20.01.2018.** - **EXHIBIT P3 TRUE COPY OF THE DEMAND NOTICE DATED 15.01.2013 ISSUED BY THE 1ST RESPONDENT AGAINST THE 1ST PETITIONER DEMANDING A SUM OF RS.1,74,300/-.** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17.06.2013 OF THE DTC CENTRAL ZONE, ERNAKULAM PASSED AGAINST THE 1ST PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 04.02.2014 IN R.P.NO.16/2013 PASSED BY THE TRANSPORT COMMISSIONER.** - **EXHIBIT P6 TRUE COPY OF THE TAX TOKEN ISSUED BY THE 1ST RESPONDENT EVIDENCING PAYMENT OF TAX FOR VEHICLE NO. KL-41A-2419 UPTO 31.12.2017.** - **EXHIBIT P7 TRUE COPY OF THE BANK GUARANTEE FOR RS.7,17,368/ISSUED FROM STATE BANK OF INDIA, EDATHALA BRANCH ON 13/7/2018** **EXHIBIT P8 TRUE COPY OF THE REGISTRATION PARTICULARS FOR VEHICLE NO.KL-41A-2419 AFTER EFFECTING TRANSFER OF OWNERSHIP IN THE NAME OF THE PETITIONER EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 20/6/2019 ISSUED BY THE 1ST RESPONDENT ADDRESSED TO THE PETITIONER.** RESPONDENTS EXHIBITS:NIL. //TRUE COPY// P.A.TO JUDGE