IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 WA.No. 1688 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.457/2005 Dated 15/02/2008 .................... APPELLANT(S): 4TH RESPONDENT --------------------------------------------------- MOHANDAS, KOYIKKALETH HOUSE, RAMAPURAM MURI, KEERIKKAD VILLAGE. BY ADV. SRI.K.HARILAL RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 3 ---------------------------------------------------------------------------------- 1. MATHEW VARGHESE, VADAKKEDATH HOUSE, PERINGALA MURI, KAYAMKULAM VILLAGE. 2. THE JOINT REGIONAL TRANSPORT OFFICER, SUB REGIONAL TRANSPORT OFFICE, KAYAMKULAM. 3. THE DISTRICT COLLECTOR, ALAPPUZHA. 4. THE TAHSILDAR (RR), HARIPPAD. ALAPPUZHA DISTRICT. ADV. SRI.G.PRABHAKARAN FOR R1 SR.GOVERNMENT PLEADER SMT.K.MEERA FOR R2-4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 1688 OF 2008 =================== Dated this the 2nd day of June, 2011 J U D G M E N T J.Chelameswar, C.J. Aggrieved by the judgment dated 15th February, 2008 in WP (C) No.457/05, the 4th respondent therein preferred the instant appeal. The facts leading to the writ petition are as follows: 2. The writ petition itself was filed with the prayers as follows:- (i) issue a writ of certiorari or such other writ, order or direction quashing Ext.P4. (ii) issue a writ of mandamus or any other writ, order or direction directing the 1st respondent that the tax if at all any due in respect of the Goods Carriage Vehicle KL-A 6902 that is liable to be paid by the 4th respondent. (iii) issue another writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to consider Ext.P3 objection filed by the petitioner and take action on it and to realize the tax due if any in respect of the Goods Carriage vehicle KL-A 6902 from the 4th respondent and to refrain from taking any coercive steps from the petitioner till then. 3. Ext.P4 referred to in the prayer is a notice issued under Section 7 of the Kerala Revenue Recovery Act demanding arrears of motor vehicles tax for the period commencing from 01/04/99 WA No.1688/08 : 2 : and ending with 30th June, 2004 with respect to Heavy Goods Carriage vehicle bearing Regn.No.KL-A 6902. The 1st respondent herein who was the addressee of the notice filed the above mentioned writ petition. Admittedly, the 1st respondent was the registered owner of the said vehicle. However, the 1st respondent alleged that he sold the vehicle to the appellant herein on 7/6/95 and therefore the 1st respondent in substance sought a declaration in the writ petition that the liability to pay tax is on the appellant herein. 4. The appellant herein though served and represented by counsel in the writ petition did not choose to file any counter affidavit in the writ petition and dispute the averments made in the writ petition that he purchased the above mentioned vehicle from the writ petitioner. Therefore, the learned Judge of this Court held that the appellant is liable to be proceeded against towards recovery of the tax dues. Aggrieved by the same, the instant appeal is filed by the appellant. Even in the appeal, the appellant does not dispute the fact that he purchased the vehicle from the 1st respondent/writ petitioner. On the other hand, the appellant WA No.1688/08 : 3 : admits that he secured possession of the vehicle from the 1st respondent/writ petitioner on 7/6/95. He then goes on to state that he “sold” the vehicle on 10/4/98 to somebody else and states in the memorandum of facts that a series of sales of the same vehicle took place thereafter. The relevant portion of the memorandum of appeal reads as follows:- It is submitted that the appellant got possession of the vehicle from the 1st respondent on 7/6/1995. On 10/4/98 the appellant sold the vehicle to Mr.S.K.Muraleedharan Nair, Koyikkaleth House, Ramapuram Muri, Keerikkad Village. The photo copy of the sale agreement dated 10.4.98 executed by the appellant to Mr.S.K.Muraleedharan Nair is produced herewith and marked as Annexure A. On 11.6.1998 the above said Muraleedharan Nair sold the vehicle to Mr.S.Venu, Paruthivila Kizhakkathil, Kilikolloor Village, Kollam Taluk. The photocopy of the sale agreement executed by Mr.Muraleedharan Nair to Mr.S.Venu is produced herewith and marked as Annexure B. On 28/6/1998 the above said Mr.S.Venu sold the vehicle to Mr.P.M.Moithu, Chandrika Building, Kalamassery, Ernakulam. The photocopy of the agreement dated 28.6.1998 by Mr.S.Venu to P.M.Moithu is produced herewith and marked as Annexure C. The vehicle in question was not in the possession of the appellant during the relevant period from 1.4.1999 to 30.6.2004. 5. The learned counsel for the appellant Sri.K.Harilal submitted that since he was not the registered owner of the vehicle for the relevant period covered by the impugned revenue WA No.1688/08 : 4 : recovery notice, and therefore, he cannot be made liable for payment of tax. 6. The liability to pay tax on the motor vehicle arises under the Kerala Motor Vehicles Taxation Act, 1976. Section 3 of the Act creates a charge on every motor vehicle used or kept for use in the State. Section 3 Sub Section 3 declares as follows:- The registered owner of, or any person having possession or control of a motor vehicle shall, for the purpose of this Act, be deemed to use or kept such vehicle for use in the State, except during any period for which no tax is payable on such motor vehicle under sub section (1) of Section 5. 7. By necessary implication by virtue of the provision created under Sub Section 3, the registered owner of a vehicle or any other person having possession or control of a motor vehicle is liable for payment of tax. In fact an earlier judgment of this court reported in Basheer v. State of Kerala (1997(2) KLT 155) held that the liability to pay tax is joint and several between the registered owner as well as the person having possession and control. 8. Having regard to such a legal position, by the judgment under appeal, the learned Judge of this Court came to a WA No.1688/08 : 5 : conclusion that on the face of the undisputed fact that at the point of time relevant for the purpose of the impugned order, the 1st respondent/writ petitioner ceased to be the owner and also lost possession and control of the vehicle, and therefore thought it fit to allow the writ petition directing the State to recover the arrears of tax from the appellant herein. We do not see any error of jurisdiction or illegality in such a conclusion warranting interference in appeal. 9. However, learned counsel for the appellant Sri.K.Harilal submitted that the appellant was neither the owner or had possession and control over the vehicle for the entire period covered by the impugned notice except that he had possession and control of the vehicle for a limited period between 7/6/95 to 10/4/98 and sold the vehicle thereafter. These are assertions which are required to be verified as none of the subsequent alleged purchasers of the vehicle are before this Court. It is not possible to enquire into such facts in exercise of the writ jurisdiction. In view of the admitted fact that the appellant did purchase the vehicle from the 1st respondent/writ petitioner, we WA No.1688/08 : 6 : do not see any reason to interfere with the judgment under appeal. Writ appeal is dismissed. However, we preserve the right of the appellant, if any, to recover the amount from such persons as the appellant believes legally liable to pay the tax for any period covered by the notice. We make it clear that the appellant must first pay tax and proceed to recover the same if so advised. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp