ANNAMMA VARGHESE Vs. REGIONAL TRANSPORT OFFICER ALLEPPEY

JUDGEMENT

(1.) This petition has come up before a Division Bench of this Court on the basis of an order of reference by a learned single Judge doubting the correctness of the decision in Writ Appeal Nos. 421 and 507 of 1973 and 454 of 1974. The question arising for consideration is whether the goods vehicles KLA. 4416 and 4421 are liable to be taxed for the quarter 1-7-1972 to 30-9-1972. The vehicle's had been garaged, according to the petitioner, the registered owner of the vehicles, before the quarter commenced, for repairs and the fact was intimated in writing to the Regional Transport Officer and S.5 of the Kerala Motor Vehicles Taxation Act, 1963 (hereinafter referred to as the Act) complied with. It appears that after the vehicles were so garaged with Swarnam Motors, they were removed from the workshop to the premises of the owner due to lack of space at the workshop of Swarnam Motors. There is some controversy as to when this removal was. An appeal was taken from the order of the Regional Transport Officer (Ext. P1) holding that the exemption from tax claimed by the petitioner for the quarter ended 30-9-1972, for the vehicles, cannot be granted. Evidence appears to have been sought to be produced before the appellate authority regarding the date of removal of the two vehicles. Exts. P3 and P4 were produced before the appellate authority and were relied on for the purpose that the removal was before the quarter commenced. This contention of the petitioner was not accepted by the appellate authority and it appears that the petitioner himself admitted before the appellate authority that the removal was on the 14th July, 1972, i.e. after the quarter commenced on 1-7-1972. In the final paragraph of the appellate order Ext. P5 it is stated as follows:

(2.) There is a presumption arising by virtue of sub-s.(2) of S.3 of the Act which is in these terms:

(3.) As we said earlier it has been admitted that S.5(1) has been complied with by the petitioner. Even so by virtue of sub-s.(2) of S.5 if the vehicle has been actually used the tax would be payable as is evident from that sub-section. So the question whether the removal of the vehicle under its own power would be user of the vehicle within the meaning of that word 'use' occurring in sub-s.(1) of S.3 as well as S.5(2) arises. Before we proceed to deal with the arguments on these aspects it is necessary to notice S.22 as well as the notification issued under that section. S.22 reads thus: