MUHAMMED SAFEER P. Vs. REGIONAL TRANSPORT OFFICER

JUDGEMENT

(1.) The writ petitioner is the registered owner of a contract carriage bearing Registration No.KL-10-AC-979. The vehicle originally belonged to the District Tourism Promotion Council, Malappuram, (DTPC), of which the District Collector Malappuram was the Chairman. The petitioner purchased the vehicle at an auction conducted by the DTPC. When the petitioner approached the 1st respondent to effect the change of registration and to obtain a permit for the vehicle, the same was denied on the ground that there were arrears of road tax for the period from 1/7/2016 to 30/6/2018. Ext.P2 notice was issued to the petitioner demanding the payment of a sum of Rs.1,89,540.00 as the motor vehicle tax for the period from 1/10/2016 to 31/3/2018. The petitioner submitted Ext.P3 representation to the 2nd respondent (District Collector, Malappuram) in his capacity as Chairman of the DTPC. The 2nd respondent issued Ext.P4 letter to the 1st respondent seeking orders exempting the tax payment for the period in question, indicating that the vehicle was not being used for the period in question. However, no action was taken by the 1st respondent. Faced with a situation where the petitioner could not use the vehicle, the petitioner remitted the tax for the period from 1/7/2016 to 30/6/2018 and thereafter, applied for a refund of the tax from 1/7/2016 till the date of registration of the vehicle in the name of the petitioner. The petitioner is thereafter before this Court seeking the following reliefs:-

(2.) Ms. Amrutha Vidyadharan, the learned counsel for the petitioner, refers to the provisions of Sec. 6 of the Kerala Motor Vehicle Taxation Act, 1976 (hereinafter referred to as the '1976 Act') to contend that when the vehicle in question was admittedly in the custody of the DTPC headed by the District Collector, the petitioner is entitled to claim a refund of the taxes paid for the period from 1/7/2016 till the date of registration of the vehicle in the name of the petitioner. The learned counsel placed reliance on the judgment of this Court in Nisamudheen v. The Joint Regional Transport Officer; 2009 (3) KLT 1058, on the judgment of a Five Bench Judge of this Court in Jomon M. Arackal v. Tahsildar; 2015 (1) KLT 163 and also on the judgment of this Court in Damodaran v. RTO, Malappuram; 2000 (2) KLT 578 in support of the contention that in the circumstances noticed above, the petitioner was entitled to seek refund of the tax paid under Sec. 6 of the 1976 Act.

(3.) Smt.Thushara James, the learned senior Government Pleader, vehemently submits that the petitioner is not entitled to a refund of motor vehicle tax in the facts and circumstances of this case. She refers to the provisions of Sec. 6 of the 1976 Act to contend that it is clear from a reading of the provisions that a claim for a refund of tax can be made only if the tax for the period in question has been paid within time and after that when the vehicle is not intended to be put to use for a period not less than one month within the period for which the tax has been paid in advance in terms of Sec. 4 of the 1976 Act. It is submitted that it is clear from the provisions of Sec. 6 that a claim for a refund of tax can be made only subject to the conditions as may be specified in a notification to be issued by the Government. It is submitted that the Government has issued G.O. (P)No.18/2004/Tran dtd. 20/4/2004 (a copy of which has been placed before this Court for consideration) concerning applications for refund of motor vehicle tax under Sec. 6 of the 1976 Act and one of the conditions in that G.O is that the tax for the period in question had been paid within the time prescribed. It is submitted that the decision of this Court in Jomon M. Arackal (supra) is not authority for the proposition and even when the tax is not paid within the due date, an application for refund can be maintained under Sec. 6 of the 1976 Act. It is submitted that the decision in Nisamudheen(supra) also does not come to the aid of the petitioner as that decision proceeds on an interpretation of Sec. 11 (2) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the EPF Act) and on the creation of a statutory first charge in terms of the said provision. It is submitted that the decision of this Court in Damodaran(supra) proceeds on the terms of SRO 874/75 which has been replaced by G.O.(P)NO.18/2004/Tran after taking note of the law laid down by this Court in Damodaran (supra).