IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 WP(C).No. 11731 of 2011(N) ------------------------------------ PETITIONER : - ---------------------- T.SATHEESH KUMAR, MANAGER & SECRETARY, SREE CHITHIRA THIRUNAL RESIDENTIAL CENTRAL SCHOOL, KUNNATHUKAL, KARAKONAM P.O. THIRUVANANTHAPURAM. BY ADV. SRI.K.T.SHYAMKUMAR RESPONDENTS : - -------------------------- 1. THE JOINT REGIONAL TRANSPORT OFFICER, PARASSALA, THIRUVANANTHAPURAM, PIN - 695 001. 2. ADDITIONAL REGISTERING AUTHORITY, PARASSALA, THIRUVANANTHAPURAM, PIN - 695 001. BY GOVERNMENT PLEADER SRI. VINCENT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11731 of 2011(N) APPENDIX PETITIONER'S EXHIBITS: EXT P1 : COPY OF THE APPLICATION FOR TRANSFER OF OWNERSHIP OF REGISTRATION SUBMITTED BY THE PETITIONER ALONG WITH THE REQUIRED DOCUMENTS AND THE RC BOOK. EXT P2 : COPY OF THE TAX AND FEES RECEIPTS ISSUED BY THE 1st RESPONDENT. EXT P3 : COPY OF THE JUDGMENT DATED 17.09.2010 IN W.P. (C) NO: 20116/2010. EXT P4 : COPY OF THE ORDER DATED 12.10.2010 ISSUED BY THE 1st RESPONDENT. EXT P5 : COPY OF THE PRINT OUT OF THE VEHICLE TAX CALCULATOR FROM THE WEBSITE OF THE MOTOR VEHICLES DEPARTMENT, KERALA TAKEN ON 01.12.2011 IN RESPECT OF VEHICLE NO : KL-01-H-565. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE DMR/- P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 11731 OF 2011 -------------------------- Dated this the 13th day of December, 2011 J U D G M E N T The petitioner is the Manager and Secretary of Sree Chithira Thirunal Residential Central School, a school affiliated to the Central Board of Secondary Education. In his capacity as Manager of the school, the petitioner purchased a motor vehicle bearing registration No. KL-01-H-565 from its registered owner Sri.Vinod S. Nair. After the petitioner purchased the vehicle, he submitted Ext.P1 application in the prescribed form accompanied by a letter dated 1.6.2009 for transfer of ownership of the vehicle and to alter the class of the vehicle as educational institution bus. In that letter the petitioner stated that the vehicle is presently classified as a private service vehicle and tax has been paid up to 30.6.2009. When the application was kept pending, he filed W.P.(C) No. 20116 of 2010 in this Court. Ext.P3 judgment delivered on 17.9.2010 this Court directed the first respondent to dispose of the application filed by the petitioner for transfer of ownership of the vehicle expeditiously and in any event within one month from the date of receipt of a certified copy of the judgment. The first respondent thereafter passed Ext.P4 order dated 12.10.2010 by which he directed that the application for transfer of WPC No.11731/2011 2 ownership, alteration of the class of the vehicle and transfer of the permit can be considered only if the balance tax due in respect of the vehicle is paid and the hypothecation is terminated. The first respondent took the stand since the sum of Rs.5,19,585/- and additional tax is due in respect of the motor vehicle for the period from 26.5.1999 to 30.6.2009 and it stands hypothecated to a financier, unless the arrears of tax is paid and the hypothecation is terminated, the application for transfer of ownership, transfer of permit and for alteration of the class of the vehicle cannot be considered. Ext.P4 is under challenge in this writ petition. 2. It is contended that as the vehicle had not been reclassified when it was transferred to the name of Sri.Vinod S.Nair in the year 1999 and there was no demand for motor vehicles tax by treating the motor vehicle as a contract carriage during the time it belonged to Sri.Vinod S.Nair, the respondents cannot demand tax at enhanced rate and therefore, the stipulation that the petitioner should pay the difference in tax cannot be sustained. As regards hypothecation of the vehicle, it is contended that notice of termination in the prescribed form signed by the financier was enclosed along with the application and therefore the statement in the impugned order that the hypothecation should be terminated is not sustainable. WPC No.11731/2011 3 3. The first respondent has filed a counter affidavit dated 29.8.2011 wherein it is stated that the vehicle originally was registered as a light motor vehicle (Omnibus) in the name of Smt.Elizabeth, Pallivilakom, Cheriyamuttom, Poonthura PO, Thiruvananthapuram, at the Regional Transport Office, Thiruvananthapuram on 16.4.1996., that later, the address was changed as Smt.Elizabeth, Managing Director, Viji and Viji Associates (Pvt.) Limited, Viji Bhavan, Poonthura, Thiruvananthapuram with effect from 16.4.1996 and the class of the vehicle was altered as a private service vehicle with effect from 15.5.1996 on application filed by Smt.Elizabeth and that when the vehicle was thereafter transferred to Sri.Vinod S.Nair with effect from 26.5.1999, it was not reclassified as a contract carriage as a result of which tax was remitted only at the rates applicable to a private service vehicle for the period from 1.7.1999 30.6.2009. Relying on section 2 (33) of the Motor Vehicles Act it is contended that as the vehicle was transferred to the name of an individual, it cannot be treated as a private service vehicle and has to be reclassified as a contract carriage and tax applicable to contract carriages has to be paid. It is stated that this was not done when the vehicle was transferred to the name of Sri.Vinod S.Nair, but it was noticed when the petitioner applied for transfer of ownership and on noticing the said fact, a letter was sent to WPC No.11731/2011 4 Sri.Vinod S.Nair to produce the records for verification, but he did not respond and on enquiry it was found that Sri.Vinod S.Nair is not residing in the address mentioned in the certificate of registration. As regards termination of the hire purchase agreement it is stated that a letter was sent to the financier to verify the genuineness of the hire purchase termination letter, but no reply was received. 4. I heard Sri.K.T.Shyam Kumar, learned counsel appearing for the petitioner and Sri.Vincent, learned Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. The motor vehicle in question was registered initially in the name of Smt.Elizabeth as a light motor vehicle (Omnibus). The term light motor vehicle is defined in section 2(21) of the Motor Vehicles Act and it includes an omnibus. The term Omnibus is defined in section 2(29) of the Motor Vehicles Act as follows: “Omnibus” means any motor vehicle constructed or adapted to carry more than six persons excluding the driver.” 5. When the vehicle was initially registered it stood in the name of Smt.Elizabeth and she had furnished her residential address in the application for registration of the motor vehicle. Later she applied for change of the address and the address was thereafter altered as Smt.Elizabeth, Managing Director, Viji and Viji Associates (Pvt.) Limited, Viji Bhavan, Poonthura, Thiruvananthapuram with effect WPC No.11731/2011 5 from 16.4.1996. A month later on application filed by Smt.Elizabeth, the class of the vehicle was altered as a private service vehicle with seating capacity of 24 in all, with effect from 15.5.1996. The term private service vehicle is defined in section 2(33) of the Motor Vehicles Act as follows: “Private Service Vehicle” means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes. 6. While the vehicle was being used as a private service vehicle, Smt.Elizabeth sold it to Sri.Vinod S.Nair and on his application the ownership of the vehicle was transferred to his name with effect from 26.5.1999. The class of the vehicle was not however altered. It continued to be treated as a private service vehicle. The petitioner purchased the vehicle from Sri.Vinod S.Nair on 1.5.2009. He thereafter applied for transfer of ownership of the motor vehicle to his name along with all the required documents. At that stage it was noticed that when the ownership was transferred to Sri.Vinod S.Nair, the vehicle was not reclassified as a contract carriage and tax realised at the rate applicable to contract carriages. The petitioner's application for transfer of ownership was not granted for that reason. WPC No.11731/2011 6 Yet another reason was also raised namely that the hypothecation should be terminated. That issue is no longer alive in view of the stand taken by the respondents themselves in paragraph 4 of the counter affidavit that though a letter was sent to the financier to ascertain the genuineness of the hire purchase termination letter, no reply has been received. All that the registering authority has to do after terminating the entry regarding the hypothecation is to communicate to the financier the fact that such an entry regarding the cancellation of the hypothecation has been made in the certificate of registration. I am therefore of the opinion that the non receipt of a letter from the financier confirming the genuineness and authenticity of the application in form No.35 for termination of the hire purchase agreement, cannot be held out as a reason to reject the petitioner's application for transfer of ownership of the vehicle. 7. That takes me to the question whether for the other reasons stated in Ext.P4 the stand taken by the respondents is justified. The vehicle in question was admittedly classified as a private service vehicle on 15.5.1996. Smt.Elizabeth, was admittedly using the vehicle for the purpose of her business. The contention put forward in the counter affidavit and in Ext.P4 is that as Sri.Vinod S.Nair has not proved that he was running the business, the vehicle should be treated WPC No.11731/2011 7 as contract carriage and the difference in tax should be remitted. The learned Government Pleader appearing for respondents contended relying on the definition of the term private service vehicle in section 2 (33) of the Motor Vehicles Act that only a vehicle which is used in connection with a trade or business and stands in the name of the business concern can be treated as a private service vehicle. I am afraid the said contention is without any merit. The same question was considered by a learned single Judge of this Court in Fr.Pious v. Sub Regional Transport Officer (2002 (3) KLT 965) wherein it was held that the vehicle used by a person for trade or business will also come under the category of a private service vehicle. Therefore the mere fact that the vehicle stood in the name of an individual is not a reason to hold that it was not used by or behalf of the owner for his trade or business or in connection with his trade or business. Even assuming that Sri.Vinod S.Nair was not running a business and was using it as contract carriage vehicle, appropriate steps should have been taken when the vehicle was transferred to the name of Sri.Vinod S.Nair way back in the year 1999, to change the classification of the vehicle and to realise the tax from him. Such being the situation as no demand was made after reclassifying the vehicle as a contract carriage with effect from 26.5.1999 with notice to Sri.Vinod S.Nair, the WPC No.11731/2011 8 respondents cannot rely on section 9 of the Motor Vehicles Taxation Act, 1976 to contend for the position that the petitioner, the transferee of vehicle, is liable to pay the tax. I therefore find no merit in the stand taken by the respondents in Ext.P4 that the petitioner is liable to make good the difference in tax payable by Sri.Vinod S.Nair. I accordingly allow the writ petition, quash Ext.P4 and direct the respondents to forthwith transfer the ownership of the motor vehicle described in Ext.P1 to the name of the petitioner and to reclassify the vehicle as prayed for and make the necessary endorsements in the certificate of registration. It is however clarified that this will not stand in the way of the respondents from proceeding against Sri.Vinod S.Nair for realising the arrears of motor vehicles tax if any due from him. P.N.RAVINDRAN, (JUDGE) vps WPC No.11731/2011 9