Kerala High Court

Dr. Vipin.C.Gopi vs State Of Kerala on 24 May, 2024

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR. JUSTICE EASWARAN S.

     FRIDAY, THE 24TH DAY OF MAY   2024 / 3RD JYAISHTA, 1946

                    WP(C) NO. 35717 OF 2018


PETITIONER/S:
         DR. VIPIN.C.GOPI
         S/O C.GOPI, CHATTIKKAL HOUSE,
         KOLALAMBA P.O., EDAPPAL,
         MALAPPURAM DISTRICT.
         BY ADVS. P.SAMSUDIN
         SRI.JITHIN LUKOSE


RESPONDENT/S:


 1       STATE OF KERALA
         REPRESENTED BY ITS CHIEF SECRETARY,
         GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM- 695 001
 2       TRANSPORT COMMISSIONER 2ND FLOOR,
         TRANS TOWERS, THAICAUD P.O.,
         VAZHUTHA CAUD, TRIVANDRUM - 695 014.
 3       THE REGIONAL TRANSPORT OFFICER
         MALAPPURAM, CIVIL STATION - 676 505,
         MALAPPURAM DISTRICT.
 4       DEPUTY TAHSILDAR REVENUE RECOVERY,
         PONNANI TALUK, PONNANI P.O. - 679 577,
         MALAPPURAM DISTRICT.


         SRI. K. M. FAISAL, G. P.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.35717 of 2018
                              2




                      EASWARAN S. , J.
                    -------------------------
                 W.P.(C) No.35717 of 2018
               -----------------------------------
            Dated this the 24th day of May 2024

                           JUDGMENT

The petitioner owns a 2008 model Audi AG (Germany)

Saloon Car having registration No. PY-01-BA-0777. The

facts in brief are that the petitioner while studying for MBBS

at the Lakshmi Narayana Institute of Medical Sciences and

Hospital, purchased the vehicle at Puducherry where the

vehicle was normally kept. While he was travelling through

various States including the State of Kerala, the officials of

the 3rd respondent prevented the vehicle on the road and

demanded entry tax for the same. Later, the petitioner

received a demand notice dated 10.8.2018 for an amount of

Rs.16,32,000/- towards the Motor Vehicles Tax. The

petitioner, therefore, contends that, on enquiries, it was

revealed that the said demand was raised by the 3 rd

respondent based on Ext. P4 circular, and therefore he prays

that Ext. P3 demand under the Revenue Recovery Act is set

aside.

2. I have heard the learned counsel appearing for the

petitioner and the learned Government Pleader.

3. The issue raised in the present writ petition is

longer res integra. In Sabu Johny and others v. State of

Kerala [2019 (4) KHC 311] the learned Single Judge of this

Court held that three ingredients will have to be satisfied

before inviting the incidents of tax. Paragraph No.35 and 41

xxxx

35. Under S.40 of Act 1988, two conditions are attracted for

selecting place of registration i.e., (i) registration is effected by a

Registering Authority in whose jurisdiction the owner has

residence or place of business (ii) where the vehicle is normally

kept. Form 20 provides for giving permanent address as well as

short stay address for selecting the office of Registering

Authority. Therefore, the respondents cannot, contrary to the

volition or intention of the petitioner to continue to retain the

present registration made at Puducherry, direct registration or re

registration of vehicle in State of Kerala. The petitioner or any

owner contravenes either S.40, S.47 or 49, the liability is

provided for under S.177 of Act 1988. The penal consequence

for a breach of legal duty or obligation under Act 1988 is

independent and separate from the tax liability arising under

S.3(6) read with Schedule and Annexure III of the Act. The

respondents if have reason to believe that a non-transport

vehicle is kept for more than thirty days in State of Kerala, the

respondents are entitled to collect the tax in terms of S.3(6) read

with Annexure III to Schedule of Act 1976. For the said purpose

of collecting vehicle tax, sine quo non, either to attract the

incidence, rate or period is that a finding of fact on all the three

essential ingredients is recorded by the respondents. The orders

impugned where the petitioners are called upon to pay life time

tax do not conform to the prescription of S.3(6) etc.

xxxx

41. As a result of my above discussion, I summarise

my judgment on the issues noted above as follows:

xxx

(c) The impugned orders calling upon the petitioners to

register the subject vehicles in State of Kerala and pay

life tax are set aside as illegal, arbitrary and violative of

principles of natural justice, the matters are restored to

the file of respective Regional Transport Officer / respondents

for consideration and disposal by keeping in view the principles

stated supra.

xxx

4. The State, aggrieved by the aforesaid judgment,

preferred Writ Appeal No.2242 of 2019. The Division Bench

of this Court, by judgment dated 19.11.2020, allowed the

Writ Appeal and set aside the judgment of the learned

Single Judge to a limited extent. The limited extent under

which the above writ appeal was allowed is as under:

" 19. It is pointed out by the counsel for petitioners

that the original registering authorities were satisfied about

their credentials at the time of registration and therefore

another registering authority cannot overturn the said

finding of fact. Validity of the materials relied upon at the

time of registration are questions of fact, and it is possible

that the original registering authority had placed reliance

upon it and registered the vehicle. As already stated, a

vehicle can be registered at a place where a person has

his/her residence or place of business, where the vehicle is

normally kept. Suppose a person's place of residence and

business was in the State of Kerala and the vehicle is

normally kept in the State, and if it is found that he has no

place of residence or business in the place of original

registering authority, it is a matter which requires enquiry

in terms, with Section 55(5). Such enquiry can be

conducted only by the registering authority, where the

vehicle is normally kept, and the said authority will have

the jurisdiction to cancel the registration. Once such an

order is passed, cancellation of certificate of registration

and entry relating to the motor vehicle from the register

can be made only by the original registering authority.

20. In the light of the aforesaid discussion, we are of

the view that the learned Single Judge was not justified in

arriving at a conclusion that the Transport Authorities of

State of Kerala can only conduct an enquiry and if it is

found that the record of the very registration is vitiated,

report can be forwarded to the original registering

authority under S.55(5) and it is for the said authority to

conduct enquiry and cancel the registration. An apparent

mistake that has arisen in the matter is on the

understanding of the words 'making an order of

cancellation' and cancelling the 'certificate of registration

and the entry relating to the motor vehicle' in its records.

An order of cancellation can be made by any registering

authority if it is satisfied that any of the situations as

described under sub-section (5) of S.55 is brought to the

notice of the registering authority and if he is satisfied on

enquiry that such a condition exists. Once the order of

cancellation is made, it shall be forwarded to the original

registering authority to enable that authority to 'cancel the

certificate of registration' and the 'entry relating to the

motor vehicle' in its records."