IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 WP(C).No. 24165 of 2008(B) ----------------------- PETITIONER : -------------------- ARUN KUMAR, S/O.SIVARAJAN, HAVING PERMANENT ADDRESS AT KOCHUMURIYIL KIZHAKKUMBHAGOM VELIVILAKATHU PUTHEN VEEDU, TC 11/519, KULATHOOR THIRUVANANTHAPURAM, NOW WORKING IN SAUDI ARABIA, REPRESENTED BY HIS MOTHER AND POWER OF ATTORNEY HOLDER MRS. SUKUMARI. BY ADV. SMT.K.KUSUMAM RESPONDENT(S): ------------------------- 1. ABDUL SALAM, S/O. SHAHUL HAMEED, JASMIN, VAVARAMBALAM, KUDAVOOR.P.O, THIRUVANANTHAPURAM. 2. THE REGIONAL TRANSPORT OFFICER, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. R2 & R3 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 24165 of 2008(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF POWER OF ATTORNEY EXECUTED BY THE PETITIONER. EXT.P1(a) : COPY OF R.C. BOOK IN RESPECT OF MAHINDRA MINI BUS REGN NO. KL01-B-2404. EXT.P2 : COPY OF SALE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT. EXT.P3 : COPY OF DEMAND NOTICE RECEIVED BY THE PETITIONER FROM THE 2ND RESPONDENT. EXT.P4 : COPY OF REPLY NOTICE ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT AS REPLY TO EXT P-3 DEMAND NOTICE. EXT.P4(a) : POSTAL RECEIPT SHOWING THAT EXT P-4 NOTICE IS ISSUED TO THE 2ND RESPONDENT. EXT.P4(b) : POSTAL ACKNOWLEDGEMENT CARD RECEIVED FROM THE 2ND RESPONDENT. EXT.P4(c) : POSTAL RECEIPT SHOWING THAT NOTICE IS SENT BY POST TO THE 1ST RESPONDENT BY THE PETITIONER. EXT.P4(d) : POSTAL RECEIPT AND ACKNOWLEDGEMENT CARD SHOWING THAT NOTICE IS SENT BY POST TO THE 1ST RESPONDENT BY THE PETITIONER. EXT.P4(e) : ACKNOWLEDGEMENT CARD RECEIVED BY THE 1ST RESPONDENT. EXT.P5 : COPY OF COMPLAINT GIVEN TO THE VARIOUS POLICE OFFICERS BY THE PETITIONER. EXT.P5(a), (a1), (a2), (a3), (a4), (a5), : RECEIPTS 3 IN NO. RECEIVED FROM THE VARIOUS POLICE AUTHORITIES ACKNOWLEDGING THE RECEIPT OF EXT.P-5 COMPLAINT. EXT.P5(b), (b1), (b2), (b3), (b4) POSTAL ACKNOWLEDGEMENT CARDS 5 IN NO. RECEIVED FOR EXT.P5(a) SERIES RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.24165 OF 2008 ---------------------------------------------- Dated this the 13th day of June, 2011 JUDGMENT The petitioner is the registered owner of a Mahindra Mini Bus with registration number KL 01-13/2404. According to the petitioner, he sold the vehicle to the 1st respondent on 29.5.2000. The petitioner and the 1st respondent executed Ext.P2 sale agreement for the said sale. The petitioner's contention is that thereafter the 1st respondent is the absolute owner of the vehicle in possession. But, by Ext.P3 notice dated 19.6.2008, the 2nd respondent directed the petitioner to pay Rs.1,26,150/- towards arrears of vehicle tax. The petitioner submits that he being no longer the owner of the vehicle, he is not liable to pay tax in respect of the vehicle. He, therefore, seeks the following reliefs: “A. To call for the records leading to issuance of Ext P-3 Notice, by the 2nd respondent to the petitioner, and to quash the same. B. To pass a Writ of Mandamus or other mandatory direction or order, directing the 2nd respondent to collect the arrears of tax in respect of Motor Vehicle KL-01-B 2404 from the 1st respondent and to exempt the petitioner from paying the same”. W.P.(C)No.24165/08 2 Despite service of notice on the 1st respondent, the 1st respondent has not chosen to enter appearance and contest the matter. Therefore, the averments of the petitioner against the 1st respondent remain uncontroverted and therefore, I have to assume that the contention of the petitioner that the petitioner sold the vehicle to the 1st respondent on 29.5.2000 is correct. 2. A counter affidavit has been filed by the 2nd respondent taking the stand that as far as the 2nd respondent is concerned, the petitioner is the registered owner of the vehicle and the 2nd respondent is not aware of the sale as claimed by the petitioner. Since the primary liability to pay tax is on the registered owner, there is nothing wrong in the 2nd respondent proceeding against the petitioner for recovery of the motor vehicle tax in respect of the vehicle in question, is the contention of the 2nd respondent. 3. I have considered the rival contentions in detail. It is settled law that under the Kerala Motor Vehicles Taxation Act, 1976, the registered owner as well as the person, who has possession and control of the vehicle, are equally liable for W.P.(C)No.24165/08 3 payment of tax in respect of the vehicle. Therefore, the petitioner cannot contend that since the petitioner has already sold the vehicle to the 1st respondent, the petitioner cannot be made liable for the tax insofar as the petitioner does not dispute the fact that, despite the alleged transfer, the petitioner continues to be the registered owner of the vehicle. 4. But, still since the motor vehicle tax on a vehicle is a first charge on the vehicle itself, I am of opinion that before proceeding against the petitioner and the 1st respondent, the vehicle should have been first proceeded against. But, at the same time, to safeguard the interests of the revenue, I am of opinion that the petitioner being also liable, the petitioner has to pay some more amounts in addition to the amounts paid as per the interim orders of this Court. In the above circumstances, this writ petition is disposed of with the following directions: The petitioner shall pay an amount of Rs.50,000/- within one month from today. On receipt of the said amount, the 2nd respondent shall first proceed against the vehicle. If the vehicle cannot be traced out or if the sale of the vehicle does W.P.(C)No.24165/08 4 not fetch enough amount to cover the amounts due towards tax and interest, if any, in respect of the vehicle, the 2nd respondent shall proceed against both the petitioner and the 1st respondent for recovery of the balance amount of tax due. S. SIRI JAGAN, JUDGE acd W.P.(C)No.24165/08 5