IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.6.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.948 of 2003 --- Rishab Investments, rep. by its partner, Rajesh Bettala, 1,Murugappan Street, Sowcarpet, Chennai. .. Petitioner Vs. 1.The Motor Vehicles Inspector, Grade-I, Perambalur. 2.The Regional Transport Officer, Perambalur. 3.Inspector of Police, Perambalur. .. Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the records of the 2nd respondent relating to R.No.28266/A1/2000 dated 2.4.2002 and quash the same and further to direct the respondents to release the vehicle No.TN-02-Z-9199 to the petitioner or their authorised representative forthwith. For petitioner : Mr.N.Gopalakrishnan For respondents : Mr.A.Arumugam The Additional Govt.Pleader ORDER The financier of the vehicle which was subjected to hire purchase agreement, has sought for a Writ of Mandamus directing the respondent to release the vehicle bearing registration No.TN/02/Z/9199 to the petitioner or their representative. 2.Facts leading to the writ petition are as follows: The petitioner is a firm represented by its partner engaged in finance business. One Mr.B.Ramalingam of Pondicherry is the registered owner of the vehicle covered by a Contract Carriage Omni bus permit issued by the State Transport Authority, Pondicherry. The vehicle was issued with a special permit for a period period of 7 days from 4.9.2000 to 10.9.2000 for carrying Tourists from Pondicherry to different places in Tamil Nadu and for return journey to Pondicherry. The said vehicle was subjected to hire purchase agreement and according to the petitioner, they are the real owner of the vehicle till the entire amount under the agreement is paid by the registered owner. The registered owner is only a hirer. The petitioner has further submitted that the vehicle was subjected to check by the Motor Vehicle Inspector Grade-I, Perambalur on 11.9.2000 about 11.30 p.m. 3.Alleging that the vehicle was operated in the State of Tamil Nadu, without permit, as a Stage carriage, against the permit condition and without a driving licence, the first respondent seized the vehicle and handed over the same to the custody of the Regional Transport Officer at Perambalur. A show cause notice dated 23.9.2000 was issued to the petitioner demanding Rs.1,10,000/- being the tax for July, August and September, 2000 for the said vehicle. The registered owner of the vehicle made a representation dated 9.5.2001 stating that even though the vehicle was checked only during September, 2000 i.e. 11.9.2000, there cannot be any demand of tax for the months of July and August, 2000 and that he was prepared to pay tax at the prescribed rate for 1/10 or for 7 days, for the alleged use in Tamil Nadu. The second respondent in his reply has stated that in view of violations of Sections 66, 88(8) and 192(A) of the Motor Vehicles Act, action against the owner and the driver of the vehicle was initiated. 4.The second respondent in his reply has further stated that the owner had taken the vehicle on 4.2.2001, without the knowledge of Regional Transport Officer, Perambalur and therefore a police complaint under Section 379 IPC was also registered. The genuineness of the temporary permit for the said vehicle was also disputed. Subsequently, by letter dated 13.11.2001, the owner of the vehicle was directed to pay a sum of Rs.99,000/-. 5.It is the further case of the petitioner that out of the alleged due of Rs.1,10,000/-, a sum of Rs.10,000/- was already paid by the petitioner. In W.P.No.6230 of 2002 filed by the petitioner for issue of a writ of Mandamus, forbearing the second respondent from collecting the tax for the above said vehicle for July, August, 2000 and for the release of the vehicle, this court by order dated 27.2.2002, directed the petitioner to submit his explanation-cum-representation within 7 days with a direction to the respondent to pass orders in accordance with law, after giving an opportunity of personal hearing to the petitioner. The second respondent once again by an order dated 2.4.2002 directed the petitioner to pay a sum of Rs.99,000/- and also informed him that the question of release of the vehicle would be considered only after payment of difference of tax and after the disposal of the Criminal case No.76/2001, pending on the file of Prembalur Court. 6.Aggrieved by the demand notice and refusal to release the vehicle, the petitioner has preferred this writ petition. 7.The second respondent in his counter affidavit has submitted that on 11.9.2000 about 5.45 hours, the Motor Vehicle Inspector, Grade-I, Perambalur along with the Deputy Superintendent of Police, Perambalur and police officers stopped the Contract Carriage Omni Bus bearing registration No.TN-02/2/9199 and checked the same at Chennai-PerambalurN.H.45 Cross NH 45 Road and they found the following irregularities: 1)The vehicle was found transporting with 56 passengers from Trichy to Chennai by collecting Rs.80/- per head and thus the vehicle was used as regular stage carriage. 2)The Motor Vehicle Inspector has stated that the vehicle was checked on 4.7.2000 and it was released on 13.7.2000. It is the evident that the owner of the vehicle is an habitual offender. And 3) the temporary permit issued by the Transport Authority, Pondicherry was expired on 10.9.2000 (by 12 midnight). Since the vehicle was plied without permit in Tamil Nadu on 11.9.2000 the impugned order was passed. 8.It is further submitted that there is a clear violation of Section 88(8) of M.V.Act 1988 read with G.O.Ms.No.894 (Home) Dt.29.5.91 and the permit holder had operated the vehicle in Tamilnadu without valid permit. Since the registered owner of the vehicle had violated Sec.88(8) of M.V.Act 1988 read with G.O.894 Home dated 29.5.91, he is liable to pay full tax due to Tamil Nadu. Therefore the vehicle was detained by the checking Officer in RTO's Office Complex, Perambalur. 9.The respondent has further stated that though the demand notice dated 23.9.2000 was acknowledged by the owner of the vehicle, he has failed to pay the tax. However, he filed W.P.No.570 of 2001 challenging the demand notice. On 31.1.2001, the registered owner of the vehicle requested the respondent to release the vehicle on receipt of Rs.11,000/-. He was asked to produce the temporary permit dated 3.9.2000 said to have been issued by the Secretary to the State Transport Authority, Pondicherry for the period from 11.9.2000 to 17.9.2000. On scrutiny,genuineness of the temporary permit was suspected and therefore the State Transport Authority, Pondicherry was requested to confirm the same. 10.In the meanwhile, on 4.2.2000, about 4 A.M., the vehicle was taken away by the owner of the vehicle by his crew members from the office premises, without the knowledge of the watchman and without getting any order of release from the Regional Transport Officer, Perambalur and therefore a police complaint was lodged in Perambalur Police Station on 4.2.2001 and a case under Section 379 IPC, was registered. Subsequently, the vehicle was traced and on 9.2.2001 it was recovered. The Secretary to the State Transport Authority, pondicherry had informed the second respondent that temporary permit produced by the petitioner for the period from 11.9.2000 to 17.9.2000 was not authenticated by any of the officers of the Motor Vehicles department attached to the State Transport Authority, Pondicherry. Hence, it was construed that the temporary permit produced by the owner of the vehicle was not genuine but forged one. 11.The respondent has further submitted that the writ petition filed by the owner challenging the demand notice dated 20.9.2000 was subsequently withdrawn and dismissed on 15.4.2001. The criminal case registered against him is pending before the Judicial Magistrate, Perambalur. Subsequently this court by an order dated 21.3.2003 in W.P.M.P.No.1179 of 2003, directed the petitioner to pay one month tax and also give an undertaking by way of an affidavit to pay the balance amount later on and on such payment of one month tax, the vehicle was directed to be released. Pursuant to the said order, the petitioner (Financier) submitted a demand draft for a sum of Rs.25,667/- being one month tax, in addition to one tenth tax already paid and accounted for in the office of the respondent. On receipt of the payment, the Regional Transport Officer, Perambalur, the second respondent filed an application in R.P.No.162 of 2001 before the learned Judicial Magistrate, Perambalur for release of the vehicle. By order dated 29.4.2003, the learned Judicial Magistrate, Perambalur directed the Sub Inspector of Police, Perambalur to hand over the vehicle to the Transport Department. Accordingly the vehicle was released to the petitioner (Financier) on 9.5.2003. 12.It is further submitted that on 11.9.2000 when the vehicle was intercepted the owner of the vehicle did not possess a valid permit to operate the vehicle within the State of Tamil Nadu and that the temporary permit produced by him was lateron found to be bogus. That apart, the driver of the vehicle was not in possession of licence at the time of check. For violation of Section 66, 88(8) and 192(A) of the Motor Vehicle Act, necessary action was taken. However, as per the direction of this court personal hearing was given to the petitioner and on consideration of his explanation with reference to the records, the petitioner has been directed to pay the difference of tax of Rs.99,000/-. The respondents have submitted that there is no illegality in the impugned order and prayed for dismissal of the writ petition. 13.Mr.N.Gopalakrishnan, learned counsel for the petitioner submitted that there cannot be the demand of tax for July, August, September,2000, when the vehicle was alleged to have committed certain irregularities only during the month of September, 2000 alone. According to him, even assuming if there was any violation, there is no liability to pay quarterly tax as demanded by the respondent. He further submitted that as per hire purchase agreement, the holder of the permit was only a hirer and till the amounts due under the hire purchase agreement was paid by the holder of the permit, the petitioner continues to be the real owner of the vehicle as financier and therefore for violation of the permit conditions and involvement of the holder of the permit in a criminal case, the respondent cannot deny the release of the vehicle to the petitioner. 14.Referring to the impugned order and the averments in the counter affidavit, Mr.Arumgam, Additional Government Pleader appearing for the respondents submitted that when the vehicle was checked on 11.9.2000, it was found carrying passengers and operated within the State of Tamil Nadu without a valid permit. The driver of the vehicle did not possess a licence. The temporary permit said to have been produced by the holder of the permit was bogus. The vehicle was illegally taken away by him without the permission of the Regional Transport Officer, Perambalur and that a criminal case was also registered against the permit holder. The Writ petition filed challenging the demand notice by the holder was dismissed on 15.4.2001. In the above back ground, imposition of the tax for the entire quarter and retention of the vehicle for violations noticed are in accordance with the provisions of the Motor Vehicles Act, 1988. The petitioner, being the financier is not entitled to the relief prayed for in the writ petition. 15.Heard the learned counsel appearing for the parties and I perused the materials available on record. 16.The impugned order reads that on 11.9.2000 the vehicle was checked by the Motor Vehicle Inspector along with Deputy Superintendent of Police, Perambalur and the irregularities stated supra were noticed. Pleadings disclose that the vehicle was removed stealthily by the owner of the vehicle without the knowledge of the watchman and appropriate orders from the Regional Transport Officer. Registration of a criminal complaint cannot be disputed by the petitioner. Verification from the Secretary, Regional Transport Authority Pondicherry revealed that the temporary permit produced by the petitioner/owner was forge. The vehicle was also subsequently recovered and produced before the leaned Judicial Magistrate Perambalur. The holder of the permit is not expected to pick up passengers from Trichy to set down at Chennai, which is an interstate operation. To operate the vehicle within the State of Tamil Nadu, temporary permit under Section 88(8) is required. The registered owner of the vehicle would be entitled to enjoy tax benefits as per G.O.Ms.No.894 dated 29.5.1991, provided it has a valid temporary permit issued under the above said Section. As per Section 3 of the Tamil Nadu Motor Vehicles Taxation Act, tax shall be levied on every Motor vehicle used or kept for used in the State of Tamil Nadu at the rate specified for such a vehicle in the first schedule or in the second schedule or in the third schedule as the case may be. In respect of Contract Carriage Omni bus, tax has to be paid for quarter. If the vehicle is granted a temporary permit for the period not exceeding 7 days or 30 days or 90 days, as the case may be, at a time, in respect of any class of Motor Vehicles Act specified in the first schedule tax is levied under Section 6 of the Taxation Act which reads as follows: (a) in respect of a temporary license exceeding 30 days, at the rate of quarterly tax; (b) in respect of a temporary licence exceeding 7 days but not exceeding 30 days at the rate of 1/3 of the quarterly tax; (c) in respect of temporary license not exceeding 7 days at the rate of one tenth of the quarterly tax. It has been found by the authorities that there was no permit during the period of check. 17.The writ petition No.570 of 1991 filed by the holder of the permit has already been dismissed as withdrawn and therefore, it is not open to the petitioner in the capacity of financier of the vehicle, to step into the shoes of the holder of the permit to dispute the irregularities noticed by the officer of the Transport Authority and the police department. The holder of the permit is entitled to the benefits of the G.O.Ms.No. 894 dated 29.5.91 only if there was a temporary permit during the period of operation of the vehicle. Further on the registration of a criminal complaint, the vehicle has been recovered and produced before the criminal court. While admitting the writ petition in W.P.M.P.No.1179 of 2003, this court has directed the petitioner to pay one month tax and give an affidavit of undertaking to pay the balance amount lateron for release of the vehicle. Records shows that the vehicle has been released on complying with the above conditions. 18.As the holder of the permit is not protected by G.O.Ms.No.894 dated 29.5.1991 or Section 6 of the Tamil Nadu Motor Vehicle Taxation Act 1974, payment of tax, for the entire quarter is mandatory. Courts have consistently held that taxing provisions have to be enforced by the authorities, without adding or substituting or deleting any words from the provisions and therefore there cannot not be any deviation. 19.For all these reasons I am not inclined to accept the contention made by the petitioner and I do not find any illegality in the impugned order. Hence this writ petition is dismissed. 17.6.2008 Index : Yes/No Internet:Yes/No vk Index: Yes To 1.The Motor Vehicles Inspector, Grade-I, Perambalur. 2.The Regional Transport Officer, Perambalur. 3.Inspector of Police, Perambalur. S.MANIKUMAR, J. vk W.P.No.948 of 2003 17.6.2008