IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23304 of 2008(Y)
1. MATHEW V. NINAN,
... Petitioner
Vs
1. THE JOINT REGIONAL TRANSPORT OFFICER,
... Respondent
2. DEPUTY TAHSILDAR (RR),
3. THE VILLAGE OFFICER,
For Petitioner :SRI.BIJU M.JOHN
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
Dated :13/08/2008
O R D E R
K. M. JOSEPH, J.
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W.P.C. NO. 23304 OF 2008 Y
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Dated this the 13th August, 2008
JUDGMENT
Petitioner challenges Ext.P4 and seeks a direction to
consider Ext.P5. Briefly put, the case of the petitioner is as
follows:
Petitioner is the registered owner of vehicle bearing No.
KL-4D-9005. It is a tourist bus conducting tour programme and
the petitioner remitted road tax of Rs.13,34,400/=. It is stated
that the petitioner could not use the vehicle after 5.2.2007, since
the vehicle was entrusted with the workshop of one Shri Ajith
Kumar to do major repairs. Thereafter, it is his case that he was
admitted and treated as inpatient at the Vanchiyoor Ayurvedic
Rheumatic and Cancer Research Centre, Chavara, Kollam.
Since the petitioner was under treatment and the vehicle was
under repair, the petitioner could not file G Form before the first
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respondent. Now the petitioner challenges Ext.P7 notice issued
under the Revenue Recovery Act. Petitioner submitted Ext.P5
representation along with G Form and according to him, it is
settled principle of law that the application of G Form need not
be filed within one week, as it is an impossible condition. It is
also stated that the petitioner has to be exempted from payment
of the road tax from 5.2.2007, even though there was no prior
application made as per the Kerala Motor Vehicles Rules. It is
pointed out that the vehicle has not carried any fitness certificate
and insurance coverage after 5.2.2007.
2. I heard the learned counsel appearing for the petitioner
and the learned Government Pleader. Apparently, the petitioner
does not challenge the order calling upon the petitioner to pay
tax. What is challenged is recovery proceedings under the
Revenue Recovery Act. I do not find how the petitioner can
maintain the Writ Petition without challenging the primary
WPC.23304/08 Y 3
demand which has resulted in the consequential demand under
the Revenue Recovery Act. Admittedly, the petitioner did not
file G Form in time. According to petitioner, he has filed G
Form along with a representation. Counsel for petitioner seeks
to draw support from the decision of this Court in Damodaran v.
RTO & Others (2000 (2) KLJ 98). Therein, the Court was
dealing with a case of refund of tax for the period the vehicle
was not used. In fact, the Court held therein as follows:
” This Court has consistently held that with
regard to the application for exemption under
Section 5, “G” Form should be filed in advance so
that verification can be done by the authorities. But,
with regard to the refund of the tax under Section 6,
position is different. ”
But, it was held as follows:
“SRO cannot say that it should be filed within one
week from the date of commencement of the period
as it is an impossible condition. Of course, since
WPC.23304/08 Y 4
advance intimation is nit there verification
verification may become difficult. But, it is for the
party who claim to convince the authorities that
vehicle was not used during the period in question.
Burden is on him to convinced the authorities that
the vehicle was not used. In the above
circumstances, provisions in SRO No.8847/75 that
refund application should be filed within one week
from the commencement of the period for which the
refund of tax is claimed is set aside as it is contrary
to Section 6, as under Section 6 refund application
can be filed only after the non-use of the vehicle at
least for more than one month.”
3. It is in the context of the application for refund and with
reference to SRO 9947/75 that the Court had occasion to state
that it is impossible as the petitioner can file the application only
after the period of one month as per the provisions of the
Section and the condition in the SRO was found to be
impossible. The Court took the view that the provisions of the
SRO were contrary to Section 6. Here, we are not concerned
with the question of refund. The claim, apparently, is based on
the application for exemption. In regard to the same, I do not
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think that the petitioner can draw any support from that decision.
In such circumstances, I am not inclined to interfere with the
recovery proceedings. Petitioner has not made out a case for
directing consideration of the representation either. It is not
pointed out to me on what provision the representation is based.
In such circumstances, the Writ Petition fails and it is liable to
be dismissed.
4. Learned counsel for petitioner then prayed that the
petitioner may be permitted to pay the amount in instalments. I
feel that the petitioner can be granted the said relief for payment
of the amount due with additional tax in four equal monthly
instalments. Accordingly, while declining to interfere with
Ext.P4, it is ordered that the recovery proceedings against the
petitioner will be kept in abeyance, provided the petitioner pays
the entire amount due under Ext.P4 with additional tax in four
equal monthly instalments. The first instalment shall be payable
on or before 30.8.2008. The further instalments shall be paid on
or before the last working day of every succeeding month. If
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any of the instalments is defaulted, petitioner will lose the
benefit of this Judgment and the respondents will be free to
proceed against the petitioner in accordance with law.
Sd/=
K. M. JOSEPH, JUDGE
kbk.
//True Copy//
PS to Judge