IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 WP(C).No. 40152 of 2003(E) --------------------------------------- PETITIONER: ------------------- KARTHIAYANI AMMA, JAYASREE, CALICUT ROAD, MANJERI. BY ADV. SRI.P.RAVINDRAN (SR.). RESPONDENTS: ----------------------- 1. THE DEPUTY TRANSPORT COMMISSIONER, CENTRAL ZONE I, THRISSUR. 2. THE REGIONAL TRANSPORT OFFICER, MALAPPURAM. BY GOVT. PLEADER SRI. TEK CHAND. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.40152/2003-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REQUEST DTD. 24/11/2001. EXT.P.2: COPY OF THE PROCEEDINGS OF THE R.2. CALLING FOR THE REPORT FROM ASSISTANT MOTOR VEHICLE INSPECTOR DTD. 21/06/2002. EXT.P.3: COPY OF THE REPORT SUBMITTED BY THE AMVI. EXT.P.4: COPY OF THE ORDER OF THE R.1. DTD. 09/10/2003. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. K. BALAKRISHNAN NAIR, J. ---------------------------------------- W.P.(C) No.40152 OF 2003 ---------------------------------------- Dated this the 18th day of September, 2008 J U D G M E N T ~~~~~~~~~~~ The petitioner was the registered owner of a contract carriage bearing registration No.KL-10/B-807. The tax due in respect of the vehicle was paid up to the quarter ending on 30.9.2001. The vehicle was not operated from 1.10.2001 and therefore, she submitted G Form for the quarter ending on 31.12.2001. The G Form was verified by the Assistant Motor Vehicle Inspector and exemption from payment of tax was granted. Later, after the repairs of the vehicle were over, she withdrew the G Form and paid Rs.33,320/- as tax on 30.10.2001. Later, she sold the vehicle to an Educational Institution on 15.11.2001. The vehicle was altered as an Educational Institution bus with effect from 21.11.2001. The transferee paid the tax payable at the rate applicable to Educational Institution bus for the quarter ending on 31.12.2001. After 21.11.2001, the vehicle was not operated as a contract carriage. Therefore, the petitioner prayed for refund of the tax by filing Ext.P1 representation. She claimed the tax for the month of December, 2001 paid by her, may be refunded. The Regional Transport Officer W.P.(C) No.40152/2003 2 by Ext.P2 communication authorised the Assistant Motor Vehicle Inspector, Malappuram, to enquire into the claim of the petitioner. The said officer submitted Ext.P3 report stating that for the period from 1.12.2001 to 31.12.2001 the vehicle was not operated as a contract carriage. Based on that report, the Deputy Transport Commissioner considered the claim of the petitioner and rejected Ext.P1 on the ground that the tax for the quarter ending on 31.12.2001 was not paid within the grace period. This writ petition is filed challenging Ext.P4. 2. The petitioner relies on Section 6 of the Kerala Motor Vehicles Taxation Act and also Rule 5 of the Kerala Motor Vehicles Taxation Rules and submit that the reason given in Ext.P4 is unsupportable in law. 3. The respondents have not filed any counter affidavit in the writ petition. The learned Government Pleader submitted that since the petitioner has withdrawn the G Form, she is liable to pay tax for the entire period. Since the tax was not paid in time at the commencement of the quarter, the petitioner is not liable to get refund. 4. Section 6 of the Motor Vehicles Taxation Act reads as follows: W.P.(C) No.40152/2003 3 “6. Reund of Tax: (1) Where the tax for any motor vehicle has been paid for any quarter or year and the vehicle has not been used or kept for use during the whole of that quarter or year or a continuous part thereof not being less than one month, a refund of the tax at such rates as may, from time to time, be notified by Government, shall be payable subject to such conditions as may be specified in such notification. (2) Notwithstanding anything contained in this Act, a registered owner who has paid tax for a year or more shall be entitled to refund of tax at such rates as may be prescribed on cancellation of the registration of the vehicle or removal of the vehicle to any place outside the State on account of transfer of ownership or change of address.” 5. Going by the above provision, if the vehicle is not operated after paying the tax, refund can be claimed. In this case, admittedly, the vehicle was not used as a contract carriage in December, 2001. But, the tax at the rate payable for operating as contract carriage was already remitted. Rules 15 of the Kerala Motor Vehicles Taxation Rules provides that the refund application can be made within one year of the payment. Admittedly, the application of the petitioner is filed within time. Therefore, the State cannot retain the money of the citizen and rejection of her claim will be hit by the Article 300A of the Constitution of India. W.P.(C) No.40152/2003 4 6. The learned Government Pleader pointed out that as per the relevant S.R.O. refund can be claimed, if only, the tax is paid within time. In this case, the tax was not paid in time. 7. The above contention of the learned Government Pleader raised based on the relevant S.R.O is plainly untenable. In this case, tax was paid immediately after the withdrawal of the G. Form. It is impossible for the petitioner to pay tax on a day in the past. So, the provisions of the S.R.O. has to be interpreted in the light of the relevant statutory and constitutional provisions. Further, the said view can not be accepted in view of the decision of the Division Bench of this Court in Kannappan v. R.T.O., Ernakulam [1988(1) KLT 902]. It was a case where the owner of a vehicle tried to resist payment of tax on the ground of admitted non-operation as the vehicle was under Court Custody. This Court held that the petitioner has to pay tax first and claim refund thereafter. In that case the payment of tax can be made only long after the time limit fixed under the Act and Rules. Even then, this Court upheld the right to claim refund, if it is shown that the vehicle was not actually operated during the relevant period. W.P.(C) No.40152/2003 5 8. In the result, Ext.P4 is quashed. The respondents are directed to refund the amount claimed by the petitioner in Ext.P1, within one month from the date of production of a copy of this judgment. The writ petition is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) ps