RAJ FERNANDEZ Vs. REGIONAL TRANSPORT OFFICER MADRAS SOUTH

JUDGEMENT

(1.) W.P. No. 20476 of 1992: The petitioner is the owner of Tourist Maxi Cab bearing No. TSD 6130, with a permit valid in Tamil Nadu. The petitioner paid tax up to 30-6-1991. The fitness certificate expired on 23-5-1991. It is the claim of the petitioner that the vehicle developed major repairs and in order to carry out the same, the vehicle was entrusted to a garage on 2-5-1991. It is stated that the repairs were completed only on 11-12-1992 and handed over to the petitioner.

(2.) IN the meanwhile, the Secretary to the Regional Transport Authority, Madras, issued a notice dated 16-11-1992 under S. 86 of the Motor Vehicles Act, calling for an explanation of the petitioner for non-compliance with the conditions of permit. The petitioner sent a reply on 12-12-1992 stating that the vehicle was under repair and it was taken delivery only on 11-12-1992. It was stated that the non-plying of the vehicle was neither wilful nor wanton, but beyond circumstances. On the same day, the petitioner filed an application before the respondent for permission to pay the current tax and obtained renewal of fitness certificate for the purpose of resuming service of the vehicle. The respondent issued a demand notice dated 16-12-1992. The petitioner was called upon to pay tax from 1-7-1991 to 30-9-1992 with penalty thereon as prescribed by the Tamil Nadu Motor Vehicles Taxation Act (hereinafter referred to as ?the Taxation Act?) and the Rules thereunder. Aggrieved by the said demand, the petitioner h as filed this writ petition praying for issue of a certiorari.

(3.) BEFORE considering the contentions of the petitioners, it is necessary to refer to certain provisions of the statutes and the Rules made thereunder. S. 3 of the Tamil Nadu Motor Vehicles Taxation Act, 1974 hereinafter referred to as ?Taxation Act? provides for levy of tax on every motor vehicle used or kept for use in the State of Tamil Nadu at the rate specified for such vehicle in the First Schedule or, as the case may be, in the Second Schedule. Sub-S. (2) empowers the Government to increase the tax specified in the Schedules by notifications from time to time. S. 4(2) of the Taxation Act provides that no motor vehicle shall be used or kept for use in the State of Tamil Nadu at any time unless a licence has been obtained. S. 5 thereof is to the effect that licence can be issued only on payment of tax. R. 3 of the Tamil Nadu Motor Vehicles Taxation Rules introduces a statutory fiction, whereby a motor vehicle shall be deemed to be used or kept for use in the State of Tamil Nadu for the purpose of S. 3 of the Taxation Act, in the case of transport vehicles covered by permit or counter signature of permit issued by any transport authority in the State. S. 8 of the Taxation Act provides for the period within which the tax is to be paid. According to the section, the tax due under the Act shall be paid within such period, not being less then seven days or more than 45 days from the commencement of the quarter, half-year or year as may be prescribed and different periods may be prescribed for different classes of motor vehicles. The corresponding rule under the Rules is R. 7, which prescribes different periods for different classes of vehicles. S. 8-A of the Taxation Act provides that no application for the grant or renewal of fitness certificate in respect of a transport vehicle shall be entertained unless the tax due under the Taxation Act in respect of such vehicle has been paid. The Proviso exempts only a new transport vehicle produced for registration. S. 15 of the Taxation Act prescribes that if the tax due in respect of a vehicle has not been paid within the period prescribed under S. 8, the registered owner or the person having possession or control thereof shall pay, in addition to the tax, a penalty of such sum, not exceeding twice the amount of the quarterly tax or as the case may be, half of the amount of annual tax payable, as may be prescribed. The section also makes him liable to punishment of fine which may extend to fifty rupees and the amount of the tax due by him in respect of such vehicle together with penalty referred to above. R. 8 is the corresponding rule, which prescribes different penalties, according to the periods of default. S. 18 of the Taxation Act declares that if the tax due in respect of a transport vehicle is not paid within the prescribed period, the validity of the permit shall be come ineffective from the date of expiry of the said period until such time, the tax is actually paid. R. 9 of the Rules enables any inspecting officer having reason to believe, that a transport vehicle has been or is being used with a permit rendered ineffective under S. 18 of the Taxation Act to impound the certificate of registration, the permit and such other documents as he may consider necessary.