ORDER
1. This Writ Petition has come up for preliminary hearing today. Sri C. V. Kumar, Govt. Pleader to take notice for the
respondents.
By consent of the learned counsel on both
sides, this writ petition is treated as having
been posted for hearing and I have heard
them.
2. The petitioner who is a registered owner of the Stage carriage vehicle bearing
registration No. MYN. 4457 has sought quashing of :–
(a) The demand notice dated 29-3-1993 issued by the Regional Transport Officer, Mandya, to the effect of getting the seized vehicle released on payment of tax which was found due for the relevant period commencing from 1-1-1993 to 31-3-1993 when the vehicle was seized;
(b) And also the order dated 24-5-1993 passed by the Deputy Commissioner for Transport Mysore in Appeal No. DCT. MYS.TAX.APL. 4/93-94 wherein the appellate authority confirmed the order of the Regional Transport Officer, Mandya.
Further the petitioner has sought necessary directions to be issued to the Transport
authorities to accept the tax for the period 1-8-1993 onwards and to release the vehicle in question.
3. Few facts to briefly state are that the vehicle belonging to the petitioner was found plying on the road on 26-1-1993 without payment of the tax when the Transport Authorities made a surprise check of the vehicle, and in view of the contravention of the provisions of the Karnataka Motor Vehicles Taxation Act, 1957 and the Rules made thereunder (hereinafter called ‘the Act’), the Vehicle was seized by the Transport authorities. Subsequently on 29-3-1993, the Transport Authorities issued a notice to the petitioner, which inter alia reads :–
(Vernacular matter omitted.)
Aggrieved against the notice dated 29-3-93 issued by the Regional Transport Officer, the petitioner preferred an appeal before the Deputy Commissioner Transport, Mandya, who after hearing the petitioner on 24-5-1993 confirmed the order of the Regional Transport Officer. Petitioner as against the order of the Deputy Commissioner has filed this writ petition.
4. The main grounds urged by the petitioner are :–
1) That seizure of the vehicle as being invalid and the same being excessive of the statutory powers conferred on the authorities under the Act since the vehicle was under major repairs and that the authorities did not take into consideration the allowable grace period for payment of tax.
2) The demand notice issued by the Regional Transport Officer for a period from 1-1-1993 to 31-3-1993 as being bad in law since demand should have been confined only to the month of January 1993 when the vehicle was seized for non-payment of tax.
e) That the Regional Transport Officer and as well as the Deputy Commissioner erred in not taking notice of the ratio of the decision rendered in the matter of Muthaya Moily v. R.T.O. D.K. District, for purposes of quashing the entire demand notice issued for quarterly payment that is for Jan., Feb. and March, 1993.
4. That both the R.T.O. and the appellate authority did not apply the law properly since the registered owner could not ply the vehicle during seizure and as such the period of seizure should have been reckoned for purposes of exemption of tax liability and further did not notice the fact that the registered owner would be entitled for refund of the amount for the period of seizure in case of payment of tax had been paid in advance.
5. Before dealing with the contentions advanced by the petitioner, the relevant provisions of the Taxation Act applicable to the subject matter are as hereunder :–
Sections 3 and 4 of the Act enjoins on the registered owner or person having possession and control of a Motor Vehicle kept in the State absolutely liable to pay tax in advance at the rates specified in the schedule thereto for a quarter, half year or year at his choice. As observed by the Supreme Court in Automobile Transport Ltd. v. State of Rajasthan reported in AIR 1962 SC 1404, the tax on Motor Vehicles is compensatory tax levied for the use of the roads (underline is mine) and it is not a tax on ownership or possession of motor vehicles. The object of the Act is achieved by charging to tax all the motor vehicles suitable for use on roads, the
registered owner or person having possession or control being held liable to pay the tax in advance and then providing for grant of refund for non-user subject to prescribed conditions.
6. The question that calls for a decision in this writ petition is whether the owner or person having the possession or control of a motor vehicle is not bound to pay the tax because the vehicle was either under repair or for the period the vehicle was under detention of the authorities due to seizure effected for contravention of the provisions of the Act and whether tax liability must be confined to only for the month when the vehicle was found plying and not for quarter, half yearly or yearly as circumstances warrant?
7. S. 16 confers powers to the State Government to exempt or recall the tax payable either prospectively or retrospectively in respect of motor vehicles not used on roads. R. 34A envisages intimation to be given to the authorities in form No. 30 regarding non-use of the vehicle. Details of information such as name and address of registered owner, persons in whose custody the vehicle is, registration No. of vehicle, the date of commencement of non-use of motor vehicle, place where motor vehicle is kept during the period of non-use reasons for non-use and date up to which taxes have been paid have to be furnished by registered owners, or by persons having possession and control in Form No. 30 for purposes of entitlement of exemption from payment of tax for the period of non-use of the vehicle.
By virtue of Karnataka Motor Vehicles Taxation (First Amendment) Rules, 1985, the R. 34 of Taxation Rules was amended.
The amended rule reads :–
“When a vehicle exempted from payment of tax under S. 16 is used for any purpose or operation in contravention of rule 36, the tax as the case may be for the quarter, half year or the year in which such contravention took place shall be paid within a period not exceeding fifteen days from the date of such contravention.”
8. The petitioner in the instant case need not have waited for any intimation by way of demand notice from the authorities concerned regarding payment of tax as the rule itself provide 15 days time to make the pament as the case may be for the quarter, half year or the year in which such contravention took place. Petitioner’s contention regarding his non-liability to pay tax for the quarter in which contravention took place that is for the period from 1-1-1993 to 31-3-1993 cannot be legally sustained since his vehicle was seized after the expiry of the grace period.
9. The petitioner should have paid the tax in advance for the quarter commencing from 1-1-1993 to 31-3-93. The period of grace for payment was only 15 days, which means that the owner should have paid the tax for that quarter on or before 16-1-1993. Admittedly, the vehicle was seized on 26-1-1993 and it was noticed that the tax having not been paid either in advance or within the grace period. It is an admitted fact that the petitioner has not paid any tax even as on this date from 1-1-1993 onwards. No directions are necessary for payment of the tax amount as sought for by the petitioner. The purpose of such directions that has been sought for is to avoid payment of tax from 1-1-1993 onwards, since the petitioner has sought directions for payment of tax for the period 1-8-1993.
10. S. 3(1) confers a right upon the State to levy a tax on all motor vehicles which are suitably designed for use on roads at prescribed rates without reference to the road worthy condition of the vehicle or otherwise. S. 4 enjoins every registered owner or person having in possession or control of the motor vehicle to pay the tax in advance and he is statutorily obliged to pay the tax in advance having in view of ambit of S. 3 and explanations thereon.
In State of Karnataka v. K. Gopalakrishna Shenoy , the Supreme. Court has observed at para 8 as follows :–
“S.7 read with the relevant Rules, therefore, makes it clear that an owner or other person paying the tax for a motor vehicle in
advance would not suffer in any manner on account of the payment of the tax if the vehicle is not put to use on the roads and he can apply to the authorities concerned and seek appropriate refund as per the scales given in R. 23. The scheme of the Taxation Act is such that the tax due on a motor vehicle has got to be paid in terms of S. 3 at the prescribed rate and in advance and the liability to pay tax continues as long as the Certificate of Registration is current but if it is so happens that in spite of the Certificate of Registration being current, the vehicle had not actually been put to use for the whole of the period or a continuous part thereof, not being less than one calendar month, the person paying the tax should apply to the Prescribed Authority and obtain a refund of the tax for the appropriate period after satisfying the Authorities about the truth and genuineness of his claim. Ss. 3 and 4 are absolute in their terms and the liability to pay the tax in advance is not dependant upon the vehicle being covered by a Certificate of Fitness or not. Even if the vehicle was not in a road worthy condition and could not be put to use on the roads without the necessary repairs being carried out, the owner or person having possession or control of a vehicle is enjoined to pay the tax, on the vehicle and then seek a refund. Perhaps in exceptional cases where the vehicle has met with a major accident or where it is in need of such extensive repairs that it would be impossible to put the vehicle to use or where the Transport Authorities themselves prohibit the use of the vehicle due to its defective condition and cancel the Certificate of Fitness or suspend it, the person concerned may surrender the Certificate of Registration and other documents like permit etc., and seek the permission of the Transport Authorities to waive the payment of tax on the one hand and an automatic application for refund on the other would be a needless ritualistic formality and if the permission sought for is granted he need not pay the tax. In all other cases the only course left open is for the person concerned, to pay the tax in advance and thereafter apply to the Authorities and obtain refund of tax after proving that the vehicle was not fit for use on the roads and had in fact not been made use of. The principle underlying the Taxation Act is that every motor vehicle issued a Certificate of Registration is to be deemed a potential user of the roads all through the time the Certificate of Registration is current and therefore liable to pay tax under S. 3(1) read with S. 4, if, however, the vehicle had not made use of the roads due to repairs, even though the Certificate of Registration was current, the owner or person concerned has to seek for and obtain refund of the tax paid in advance after satisfying the Authorities about the truth of his claim. It is not for the Transport Authorities to justify the demand for tax by proving that the vehicle is in a fit condition and can be put to use on the roads or that it had plied on the roads without payment of tax. It would be absolutely impossible for the State to keep monitoring all the vehicles and prove that each and every registered vehicle is in a fit condition and would be making use of the roads and is therefore liable to pay the tax. For that reason, the State has made the payment of tax compulsory on every registered vehicle and that too in advance and has at the same time provided for the grant of refund of tax whenever the person paying the tax has not made use of the roads by plying the vehicle and substantiates his claim by proper proof. Any view to the contrary would defeat the purpose and intent of the Taxation Act and would also afford scope and opportunity for some of the persons liable to pay the tax to ply the vehicle unlawfully without payment of tax and later on justify their non-payment by setting up a plea that the vehicle was in repair for a continuous period of over a month or the whole of a quarter, half-year or year as they choose to claim.”
In Gurunathsa Madusa Khode v. Transport Commissioner , the Division Bench of this Court observed at para 12 thus :–
“S. 4 regulates the payment of taxes chargeable under S. 3 of the Act, S. 4(1) of the Act that is material reads thus :
“4. Payment of tax — (1) The tax levied under S. 3 shall be paid in advance by the registered owner or person having possession
or control of the motor vehicle, for a quarter, half-year and year, at his choice, within fifteen days from the commencement of such quarter, half-year or year, as the case may be.”
“This section specified the units of taxation or payment of taxes on motor vehicles. The units of taxation on motor vehicles under the Act is a quarter, half year or year as may be chosen by the owner. As ruled by the Supreme Court in Mathra Prasad & Sons’ case as unit of taxation is chosen for easy accounting and collection of taxes and the tax-payer is bound to conform to the same. In other words, a tax-payer cannot choose his own unit of taxation and he must make payments only in conformity with the units of taxation stipulated in the Act. From this, it follows that the demand made by the RTO which is in conformity with S. 4 of the Act is legal. We see no merit in this contention of Sri Rangaswamy either.”
As such the relief sought for by the petitioner seeking directions for payment of tax for the period 1-8-1993 and for confining payment for one month when contravention took, cannot be granted and the same cannot be legally countenanced.
11. Regarding the contention that during the period the vehicle was in custody of police and that it couid not have been made use of by the owner and thereby owner should not be held liable to pay the tax for that period during seizure of vehicle, it is to be stated that the vehicle was seized due to contravention of mandatory provisions of the Act. Non-payment of tax in advance and vehicle being used on the road without payment of tax constituted contravention of the Act. The power of seizure is in accordance with the statutory powers conferred on the authorities concerned. S. 11-A deals with power to seize, detain and sell. It reads :–
“Power to seize and detain vehicles.-
1) Without prejudice to the provisions of Ss. 13 and 14, where any tax due in respect of any motor vehicle has not been paid within the period specified, in S. 4, such officer –
(i) of the Motor Vehicles Department not below the rank of an Inspector of Motor Vehicles; or
(ii) of the Police Department not below the rank of an Inspector of Police, as the State Government may empower in this behalf, may, subject to such rules as may be prescribed, seize and detain such vehicle and for this purpose, take or cause to be taken all steps for the safe custody of the vehicle, until the tax due in respect of the vehicle is paid.
2) If the tax due in respect of the vehicle seized and detained under sub-sec. (1), is not paid within thirty days from the date of such seizure and detention, the officer empowered by the State Government may, after giving a notice in writing to the registered owner and the person who had the possession or control of the vehicle immediately before such seizure and detention, and considering their objections, if any, recover the tax due by the sale of such vehicle in the manner prescribed;”
Rule 27A(1) reads :–
Procedure for seizure and detention of Motor Vehicles in case of non-payment of tax.– (1) Where an Officer empowered by the State Government under S. 11A (hereinafter referred to as the Authorised Officer) has reason to believe that the tax payable in respect of any motor vehicle has remained unpaid, such Officer may by an order in Form 27 seize the motor vehicle and serve a copy of the order on the registered owner or the person in possession or control of such vehicle or his driver. After such order is made, the Authorised Officer shall direct that the vehicle be taken to the nearest Police Station mentioned in such order for detention. In case of any goods or articles in such vehicle the authorised officer shall make an inventory of goods or articles found in the vehicle and direct the person from whom the motor vehicle is seized, to remove the same. If such person fails or refuses to drive the vehicle to the nearest Police Station mentioned in the order, the Authorised Officer may arrange to have the vehicle driven to the Police Station. No officer seizing or detaining a motor vehicle shall be responsible for the safe custody of any
goods or articles therein and the registered
owner or his representative duly authorised
by him in writing shall make such ar
rangement for the safe custody as he deems
fit.
(2) the tax due in respect of the vehicle
seized and detained is to be paid within thirty
days from the date of such seizure and
detention. The authorised officer shall forth
with intimate the same to the officer empowered under sub-section (2) of S. 11A and
shall cause the vehicle to be further detained
till the tax due is paid or proof of payment of
tax due is furnished.”
12. It is to he stated that the ratio of the decision in Muthaya Moily v. R.T.O. D. K. District is based qn different context, as such the same is not applicable to the facts of this case. Further in view of the pronouncement of the Supreme Court regarding the scope of Section 3 and Section 7 of the Act, the contentions raised by the petitioner cannot be legally sustained. It is further to be stated that seizure being legal, it is not open for the petitioner to claim may exemption from payment of tax for the period the vehicle is under detention. The petitioner cannot take advantage of his own wrong. Further, the petitioner is not entitled for delivery of the vehicle until and unless he makes payment of the entire tax due from 1-1-1993 onwards. It is made clear that it is open for the Transport Authorities to take further action in accordance with law for the recovery of the tax amount due. Circumstances do not” warrant any interference with the impugned orders.
13. Accordingly, this writ petition is
dismissed. The petitioner to pay costs of
Rs. 500/-.
Shri C. V. Kumar, Govt. Pleader, is permitted to file his memo of appearance within 4 weeks from today.
14. Petition dismissed.