IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 23304 of 2008(Y) -------------------------- PETITIONER: ------------------ MATHEW V. NINAN, S/O. V.I. NINAN, AGED 53, VADAKKETHALAKKAL HOUSE, PERISSERY, CHENGANNOOR, ALAPPUZHA. BY ADV. SRI.BIJU M.JOHN RESPONDENTS: ----------------------- 1. THE JOINT REGIONAL TRANSPORT OFFICER, CHENGANNOOR. 2. DEPUTY TAHSILDAR (RR), CHENGANNOOR. 3. THE VILLAGE OFFICER, PULIYOOR VILLAGE, PULIYOOR. BY GOVERNMENT PLEADER SHRI BEJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 23304 OF 2008 Y -------------------------------------- Dated this the 13th August, 2008 JUDGMENT Petitioner challenges Ext.P4 and seeks a direction to consider Ext.P5. Briefly put, the case of the petitioner is as follows: Petitioner is the registered owner of vehicle bearing No. KL-4D-9005. It is a tourist bus conducting tour programme and the petitioner remitted road tax of Rs.13,34,400/=. It is stated that the petitioner could not use the vehicle after 5.2.2007, since the vehicle was entrusted with the workshop of one Shri Ajith Kumar to do major repairs. Thereafter, it is his case that he was admitted and treated as inpatient at the Vanchiyoor Ayurvedic Rheumatic and Cancer Research Centre, Chavara, Kollam. Since the petitioner was under treatment and the vehicle was under repair, the petitioner could not file G Form before the first WPC.23304/08 Y 2 respondent. Now the petitioner challenges Ext.P7 notice issued under the Revenue Recovery Act. Petitioner submitted Ext.P5 representation along with G Form and according to him, it is settled principle of law that the application of G Form need not be filed within one week, as it is an impossible condition. It is also stated that the petitioner has to be exempted from payment of the road tax from 5.2.2007, even though there was no prior application made as per the Kerala Motor Vehicles Rules. It is pointed out that the vehicle has not carried any fitness certificate and insurance coverage after 5.2.2007. 2. I heard the learned counsel appearing for the petitioner and the learned Government Pleader. Apparently, the petitioner does not challenge the order calling upon the petitioner to pay tax. What is challenged is recovery proceedings under the Revenue Recovery Act. I do not find how the petitioner can maintain the Writ Petition without challenging the primary WPC.23304/08 Y 3 demand which has resulted in the consequential demand under the Revenue Recovery Act. Admittedly, the petitioner did not file G Form in time. According to petitioner, he has filed G Form along with a representation. Counsel for petitioner seeks to draw support from the decision of this Court in Damodaran v. RTO & Others (2000 (2) KLJ 98). Therein, the Court was dealing with a case of refund of tax for the period the vehicle was not used. In fact, the Court held therein as follows: " This Court has consistently held that with regard to the application for exemption under Section 5, "G" Form should be filed in advance so that verification can be done by the authorities. But, with regard to the refund of the tax under Section 6, position is different. " But, it was held as follows: "SRO cannot say that it should be filed within one week from the date of commencement of the period as it is an impossible condition. Of course, since WPC.23304/08 Y 4 advance intimation is nit there verification verification may become difficult. But, it is for the party who claim to convince the authorities that vehicle was not used during the period in question. Burden is on him to convinced the authorities that the vehicle was not used. In the above circumstances, provisions in SRO No.8847/75 that refund application should be filed within one week from the commencement of the period for which the refund of tax is claimed is set aside as it is contrary to Section 6, as under Section 6 refund application can be filed only after the non-use of the vehicle at least for more than one month." 3. It is in the context of the application for refund and with reference to SRO 9947/75 that the Court had occasion to state that it is impossible as the petitioner can file the application only after the period of one month as per the provisions of the Section and the condition in the SRO was found to be impossible. The Court took the view that the provisions of the SRO were contrary to Section 6. Here, we are not concerned with the question of refund. The claim, apparently, is based on the application for exemption. In regard to the same, I do not WPC.23304/08 Y 5 think that the petitioner can draw any support from that decision. In such circumstances, I am not inclined to interfere with the recovery proceedings. Petitioner has not made out a case for directing consideration of the representation either. It is not pointed out to me on what provision the representation is based. In such circumstances, the Writ Petition fails and it is liable to be dismissed. 4. Learned counsel for petitioner then prayed that the petitioner may be permitted to pay the amount in instalments. I feel that the petitioner can be granted the said relief for payment of the amount due with additional tax in four equal monthly instalments. Accordingly, while declining to interfere with Ext.P4, it is ordered that the recovery proceedings against the petitioner will be kept in abeyance, provided the petitioner pays the entire amount due under Ext.P4 with additional tax in four equal monthly instalments. The first instalment shall be payable on or before 30.8.2008. The further instalments shall be paid on or before the last working day of every succeeding month. If WPC.23304/08 Y 6 any of the instalments is defaulted, petitioner will lose the benefit of this Judgment and the respondents will be free to proceed against the petitioner in accordance with law. Sd/= K. M. JOSEPH, JUDGE kbk. //True Copy// PS to Judge