IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 WP(C).No. 15195 of 2006(H) -------------------------- PETITIONER: --------------- SUNDARAN, S/O. BALAKRISHNAN, KANNAN NIVAS, MEENAMBALAM, PUTHENKULAM P.O.,KOLLAM BY ADV. SRI.M.TRIPTEN RESPONDENTS: --------------- 1. PRADEEP, S/O. DHAMODARAN PILLAI, PRADHEEBHA NIVAS, KIZHAKKEPURAM CHERI, VARKALA. 2. ANIL KUMAR, S/O. RAMACHAN PILLAI, VISHNU NIVAS, ERAMCHERIYIL MEENADU, KOLLAM DISTRICT. 3. JOINT REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT OFFICE, KOLLAM. 4. REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT OFFICE, KOLLAM. 5. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, KOLLAM. 6. DEPUTY COMMISSIONER, THIRUVANANTHAPURAM. ** ADDITIONAL R7, 8 & 9 ARE IMPLEADED: R7. THE VILLAGE OFFICER, ALUVA VILLAGE OFFICE, ALUVA. R8. THE DEPUTY TAHSILDAR, ALUVA. R9. THE JOINT REGIONAL TRANSPORT OFFICER, ALUVA. ** (ADDITIONAL R7 TO 9 ARE IMPLEADED AS PER ORDER DATED 17.10.2006 IN I.A. NO.14597/2006) R3 TO R9 BY GOVERNMENT PLEADER SRI. MATHEW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ WP(C).No. 15195 of 2006(H) APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE INTIMATION LETTER DATED 06.07.2002. P2. COPY OF THE AGREEMENT DATED 05.09.2002. P3. COPY OF THE REPRESENTATION DATED 03.05.2006 ISSUED BY THE PETITIONER BEFORE 1ST RESPONDENT. P4. COPY OF THE DEMAND NOTICE DATED 22.05.2006. P5. COPY OF THE MEMORANDUM OF APPEAL DATED 28.05.2006 BEFORE THE DEPUTY COMMISSIONER OF TRANSPORT, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: R3 (a). COPY OF THE REQUEST DATED 11.07.2003. R3 (b). COPY OF THE RELEASING ORDER. //TRUE COPY// P.A. TO JUDGE shg/ C.K. ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.15195 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2009 J U D G M E N T 1. Petitioner is challenging the demand of Motor Vehicle Tax raised and also the steps initiated for recovery of the tax, through proceedings under the provisions of the Kerala Revenue Recovery Act. According to the petitioner he was the owner of the vehicle bearing Regn: No:KL-10/F- 2181, a Benz 407 Mini Bus, which was covered under a school carriage permit. Contention of the petitioner is that he had sold the vehicle to the 1st respondent by virtue of Ext.P1 agreement on 1.7.2002 and the 1st respondent had changed the permit of the vehicle as a contract carriage. It is further submitted that the 1st respondent again sold the vehicle to the 2nd respondent on 5.9.2002 by virtue of Ext.P2, and thereafter the 2nd respondent is in control and possession of the vehicle. It is further stated that Motor Vehicle Tax due with respect to the vehicle, upto 30.9.2002 W.P.(C)No.15195 of 2006 -2- was already paid by the 1st respondent. But demand notice as evidenced by Ext.P4 is issued against the petitioner for realising an amount of Rs.1,64,220/- along with 5% collection charges towards arrears of vehicle tax. The petitioner had filed appeal under Section 23 of the Motor Vehicle Taxation Act before the 6th respondent. But coercive steps are being pursued without consideration of pendency of the appeal. 2. According to the petitioner possession of the vehicle was with the 1st respondent from 1.7.2002 onwards, till 5.9.2002. On that date possession was transferred to the 2nd respondent. Eventhough the petitioner is alleging that he had intimated the registering authority about the transfer, nothing was produced to show that any proper application for transferring ownership was submitted in order to effect change of ownership. As such it is admitted that the petitioner continued as the registered owner of the vehicle. W.P.(C)No.15195 of 2006 -3- 3. In the counter affidavit filed on behalf of respondents 3 and 4, it is submitted that registration of the vehicle stands in the name of the petitioner and the vehicle was covered by a regular permit upto 15.10.2007. It is further stated that tax with respect to the vehicle had fallen in arrears from 1.1.2004 onwards. It is further stated that, on 5.8.2004 the petitioner had approached the Government and obtained an order permitting payment of the amounts in installments. It is further stated that inspite of the contentions that the petitioner had sold the vehicle as early as on 1.7.2002, it is evident that the petitioner got the vehicle released when it was seized by the departmental officials, by producing R.C. Book of the vehicle and on payment of compounding fee, on 11.7.2003, as evidenced from Ext.R3(a) and R3(b). 4. The facts enumerated in the counter affidavit clearly reveals that contention of the petitioner that he was not in possession of the vehicle from 1.7.2002 seems to be incorrect. Those facts leads to the inference that the W.P.(C)No.15195 of 2006 -4- petitioner was in possession of the vehicle at least upto August 2004. The tax now demanded pertains to the period from 1.1.2004 to 30.9.2005. 5. Apart from the above factual aspects it is an admitted case that, the petitioner continues as registered owner of the vehicle. As per the provisions contained in the Motor Vehicle Taxation Act, the registered owner of the vehicle as well as the person having possession and control over the vehicle are jointly and severally liable for payment of the Motor Vehicle Tax. Therefore the petitioner could not seek exoneration from the liability for payment of the tax demanded. 6. There is absolutely no evidence produced to show that the petitioner had filed Ext.P5 appeal before the 6th respondent, after complying with the required procedure and formalities, nor there is any evidence to the effect that he had ever moved such an appeal before that authority. 7. The learned counsel for the petitioner pointed out that by virtue of an interim order dated 12.06.2006, this W.P.(C)No.15195 of 2006 -5- court had issued directions to take distress action against the vehicle, which is alleged to have been detained in the custody of the Joint Regional Transport Officer, Aluva. The respondents were directed to report action taken against the vehicle as well as about the fund generated by sale of the vehicle. It was further observed that all distress actions against the petitioner or his assets will stand stayed for a period of five weeks in order to facilitate the distress actions directed against the vehicle. 8. Inspite of specific directions of this court as above, no report regarding compliance of the directions has been filed so far. It is contended by the petitioner that there is a charge created on the vehicle with respect to amount of Motor Vehicle Tax dues, and therefore the petitioner can be proceeded only if the tax amount could not be recovered by sale of the vehicle. Having considered the fact that the petitioner had already sold the vehicle and he was not having control or possession of the same during the disputed period, I am of the opinion that the vehicle need be W.P.(C)No.15195 of 2006 -6- proceeded against first, before taking steps for realisation of the amounts from the petitioner. 9. Therefore the writ petition is disposed of directing the respondents 3 to 6 to take effective steps to conduct sale of the vehicle, which is alleged to have been kept in the custody of the Regional Transport Officer, Aluva, by resorting to public auction and to adjust the sale proceeds against the amount of Motor Vehicle Tax dues. The petitioner and his assets shall be proceeded against only if the amount is not fully realised by way of sale of the vehicle. 10. It is made clear that the above directions will not stand in the way of the authorities taking recovery steps against respondents 1 & 2, if it is found that either of them was having control and possession of the vehicle during the relevant time. The writ petition is disposed of as above. C.K. ABDUL REHIM JUDGE shg/