IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 WP(C).No. 28238 of 2008(J) -------------------------- PETITIONER(S): --------------------- ALEXANDER MARKOSE, S/O.(LATE) MARKOSE, AGED 48 YEARS, ERUTHIKKAL (HOUSE), PALLIKKUNNU, CHOORNIKKARA (P.O), ALUVA. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF MOTOR TRANSPORT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REGIONAL TRANSPORT OFFICER, CIVIL STATION, KAKKANADU, ERNAKULAM. 3. THE SPECIAL TAHSILDAR (REVENUE RECOVERY), ALUVA - 1. 4. N.K.KRISHNA PILLAI, J.M.S. KOTTARAPPATTU (HOUSE), CHEMBAKASSERY KADAVU, ALUVA - 1. 5. JOSHY ITTICHERIYA, CHUNGATHU (HOUSE), THAZHATHANGADY, AALUMUDE (PO), KOTTAYAM DIST. 6. M.JOHNYKUTTY, FAMILY APOSTOLATE CHARITABLE TRUST, NO.2/388, ASHOKA NAGAR, CHOONDY, ERUMATHALA (P.O), ALUVA, PIN - 683 112. BY GOVERNMENT PLEADER SRI. BEJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 28238 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October, 2008 JUDGMENT I heard learned counsel for the petitioner and the learned Government Pleader. 2. Petitioner challenges Ext.P5. Ext.P5 is a notice issued under the Revenue Recovery Act. The notice is issued for recovery of the tax due. It is stated that the notice is issued without hearing the petitioner and without perusing the documents. Petitioner approached this court earlier and Ext.P3 judgment was rendered. This court directed that the petitioner ought to have been heard in opposition to Ext.P3 demand particularly when distress action was proposed. This court directed that a decision to be taken after hearing the petitioner. 3. The question relates to the payment of tax under the Motor Vehicle Taxation Act. According to the petitioner, petitioner was not the registered owner and the liability to remit the tax lies with the registered owner only. According to the petitioner he paid tax for the period for which he was in possession of the vehicle. According to the petitioner, petitioner had sold the vehicle to the fifth respondent on 30.1.1990 vide Ext.P1. The transferee sold it to the sixth respondent by another agreement and it was WPC.28238/2008. 2 after 12 years that Ext.P2 came to be issued, which came to be interfered with, as already noted in Ext.P3 judgment. There was a notice of hearing and petitioner submits that petitioner gave Ext.P4. 4. A statement has been filed, in which it is inter alia stated as follows: Pursuant to the judgment there was a hearing. KRE 5121 is a stage carriage, which stands in the name of one Sri.N.K.Krishna Pillai, the fourth respondent. Petitioner purchased it as per agreement dated 22.2.1989 and he sold it to Sri.Joshy Ittecheria, the fifth respondent by agreement dated 30.1.1990. The arrears is for the period from 1.1.1990 to 31.3.1990. It is stated that the petitioner was heard on 11.12.2007 and he admitted that he was the possessor of the vehicle from 22.2.1989 to 30.1.1990. The fifth respondent was also heard. It was stated that there was an agreement dated 31.1.1990 with the sixth respondent, but the vehicle was never in his possession and the vehicle had been taken possession of by the Secretary, AITUC due to some labour problems. It is stated that the whereabouts of the vehicle is not known. 5. Petitioner has filed a reply affidavit. It is stated that the petitioner was not heard, though he was present on three days and the representation was not perused. He stated that though he made earnest WPC.28238/2008. 3 efforts, he is unable to trace out receipt for the remittance of tax on 1.1.1990. It is stated that proceedings is time barred. 6. I heard learned counsel for the petitioner and the learned Government Pleader. Petitioner reiterates his contentions. 7. As far as the contention that proceedings are barred by limitation, I see no merit in the said contention. No doubt proceedings under the Revenue Recovery Act cannot be pressed into service for recovering a barred debt. But here, the liability of the petitioner, which is sought to be realised is liability to pay tax under the Act. The amount is due to the Government. A civil suit to be filed by the Government can be instituted within thirty years from the date on which cause of action arose. Passage of 12 years is barely insufficient in a case where the period is thirty years. I would think that there is no merit in the said contention. The petitioner was in possession of the vehicle till 30.1.1990. In fact the case itself is that he has paid the amount, but he cannot locate the receipt. Therefore, even assuming that he was not heard as such, not much store be laid by that contention because taking the facts as they stand, it is clear that the petitioner was in possession of the vehicle as on 30.1.1990, when he is alleged to have executed the agreement in favour of the fifth respondent. The liability to pay tax commences on the first day of the month, that is he WPC.28238/2008. 4 cannot extricate himself from the liability to pay tax for the quarter in question. Petitioner is not in a position to produce any evidence also. This means that the recovery is directed for realising the amount, which can be legally said to be due from the petitioner. In such circumstances, there is no merit in the contention. Learned counsel for the petitioner prays that the petitioner may be given instalments. I feel that, that request can be acceded to. Having regard to the distance of time, petitioner is permitted to pay the entire amount due in five equal monthly instalments, first of which shall be payable on or before 20.11.2008 and further instalments on or before the 20th of the succeeding months. If any instalment is not paid, petitioner will lose the benefit of this judgment and it will be open to the respondent to proceed with the recovery. (K.M. JOSEPH, JUDGE) sb