Kerala High Court
Hilal B vs The State Of Kerala on 26 March, 2012
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
TUESDAY, THE 10TH DAY OF APRIL 2012/21ST CHAITHRA 1934
WP(C).No. 8154 of 2012 (T)
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PETITIONER(S):
-------------------
HILAL B.,
S/O. BADARUDEEN, NEELACHARAZHIKAM, KANNANALOOR POST
KOLLAM - 691 576.
BY ADV. SRI.P.CHANDRASEKHAR
RESPONDENT(S):
--------------------
1. THE STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA,
DEPARTMENT OF TRANSPORT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. REGIONAL TRANSPORT OFFICER, (REGISTERING AUTHORITY)
KOLLAM - 691 001.
3. THE SENIOR DEPUTY TRANSPORT COMMISSIONER
THIRUVANANTHAPURAM - 695 003.
BY SR. GOVT. PLEADER SRI. S. JAMAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04/04/2012, THE COURT ON 10-04-2012 DELIVERED THE
FOLLOWING:
svs
W.P.(C). NO. 8154/2012
APPENDIX
PETITIONER'S EXHIBITS:
P1: COPY OF THE SALE CERTIFICATE DATED 26/03/2012
ISSUED BY PLANTIO CLASSIC MOTORS (INDIA) PRIVATE LIMITED,
TO THE PETITIONER.
P2: COPY OF THE ACKNOWLEDGMENT SLIP DATED 20/03/2012
ISSUED BY HDFC ERGO GENERAL INSURANCE CO. LTD. KOLLAM.
P3: COPY OF THE TEMPORARY REGISTRATION BY ADDITIONAL
REGISTERING AUTHORITY, THRIPUNITHURA ON 26/03/2012
P4: COPY OF THE TAX LICENCE DATED 27/03/2012 ISSUED
BY THE 2ND RESPONWDENT TO THE PETITIONER.
P5: COPY OF THE CHECKLIST OF NEW REGISTRATION SUBMITTED
BY THE PETITIONER TO THE 2ND RESPONDENT.
P6: COPY OF THE KERALA MOTOR VEHICLES (AMENDMENT)
RULES, 2011.
P7: COPY OF THE RECEIPT FOR PAYMENT OF FEE FOR
RESERVATION OF THE REGISTRATION.
P8: COPY OF THE GUIDELINES ISSUED BY THE 2ND RESPONDENT
IN RESPECT OF KL 02/AK 3040.
P9: COPY OF THE ORDER NO.G 132183/2012/O DATED 29/03/2012
OF THE 2ND RESPONDENT.
P10: COPY OF THE LETTER NO. B1-1662-TC/2012 DATED 22/03/2012
OF THE SENIOR TRANSPORT COMMISSIONER,
THIRUVANANTHAPURAM.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A. TO JUDGE.
svs
ANTONY DOMINIC, J.
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W.P.(C) NO.8154 OF 2012(T)
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Dated this the 10th day of April, 2012
J U D G M E N T
The petitioner purchased a new car as per Ext.P1 sale certificate dated 26.03.2012. Ext.P3 Temporary Certificate of Registration shows that on 26.03.2012 itself, the Additional Registering Authority, Tripunithura granted temporary registration to the car. From Ext.P4, copy of the Tax License dated 27.03.2012 issued by the 2nd respondent, it is seen that the petitioner paid `2,56,060/- towards Motor Vehicle Tax for the period from 26.03.2012 to 31.12.2026. In the meanwhile, petitioner applied to the 2nd respondent for reservation of registration mark No.KL 02/AK 3040. Thereafter, on 29.03.2012, petitioner presented the vehicle before the 2nd respondent for inspection and registration. Thereupon, the 2nd respondent passed Ext.P9 order dated 29.03.2012, the relevant portion of which, reads as follows:-
"As per Rule 95(4) of the Kerala Motor Vehicles Rules, 1989, which was amended, vide reference 2nd cited, and published as SRO No.77/2011 and in which Sub-Rule (6) clearly pronounce that all the eligible applications for reservation of registration number in respect of each registration number received on or before the last working day of the week shall first be put to auction, except when there is only one application, on the first working day of the succeeding week in the presence of the applicants or their nominees, if any, in the manner specified by the Transport Commissioner.WPC.No. 8154/2012 :2 :
In this case the registration number KL 02 AK 3040 can be allotted to the applicant only on the first day of the succeeding week, ie. on 2/4/2012 and he can register the vehicle thereafter.
In these circumstances, I, the Registering Authority, Kollam do hereby reject the request, from Sri.Hilal, for registration of the vehicle with fancy registration number prior to the grant of the fancy registration number".
2. Ext.P9 order was passed relying on Ext.P10, instructions issued by the 3rd respondent, relevant portion of which, reads as under:
"Tax at new rate will be applicable for vehicles registered on or after 01.04.2012. The revised rate of tax shall be levied from vehicles registered on or after 01.04.2012, irrespective of the fact whether the vehicle was purchased before 01.04.2012. Also, balance tax shall be collected in cases in which tax has been paid before 01.04.2012 and the vehicle is registered on or after 01.04.2012.
A notice in this regard shall be exhibited in the notice board in all offices. The inspecting officers shall ensure and certify that tax at revised rate has been remitted in respect of all vehicles which are inspected on or after 01.04.2012."
3. As a result, petitioner is saddled with the liability to pay the motor vehicle tax as revised with effect from 01.04.2012 and it is in these circumstances this writ petition has been filed seeking to quash Exts.P9 and P10 and to direct the respondents to grant permanent registration to the petitioner's vehicle without insisting on payment of WPC.No. 8154/2012 :3 : tax at the revised rate which came into force from 01.04.2012.
4. Counsel for the petitioner contended that, the rate of tax leviable on a vehicle is what is prevailing on the date of it's purchase and not what is prevailing as on the date of inspection or registration and this argument was raised relying on the observations in the Division Bench Judgment of this Court in Anas v. State of Kerala (1999 (3) KLT 147). Therefore, according to him, any later revision of tax, can have no application to his vehicle. It was also argued that the petitioner having paid the motor vehicle tax due on 27.03.2012 and presented the vehicle for inspection and registration on 29.03.2012, in the absence of any other applicant for the registration mark applied for by him, the vehicle should have been registered prior to 01.04.2012. It was argued that registration was denied with the sole motive of levying enhanced tax, and that the same is illegal and violative of the Constitutional provisions.
5. I heard the Counsel for the petitioner and the learned Government Pleader who appeared on behalf of the respondents and considered their submissions.
6. To answer the contentions raised on behalf of the petitioner, reference should be made to Section 3 of the Kerala Motor Vehicles Taxation Act 1976 (hereinafter referred to as the "Taxation Act" for short), which, in so far as it is relevant, reads thus:
"Sec.3(1) - Subject to the provisions of this Act, on and from the date of commencement of this Act, a tax shall WPC.No. 8154/2012 :4 : be levied on every motor vehicle used or kept for use in the State, as the rate specified for such vehicle in the Schedule:
Provided that no such tax shall be levied on a motor vehicle kept by a dealer in, or a manufacturer of, such vehicle, for the purpose of trade and used under the authorisation of a trade certificate granted by the registering authority:
Provided further that in respect of a new motor vehicle of any of the classes specified in item numbers 1,2,6,10(iii) and 11 of the Schedule to this Act, there shall be levied from the date of purchase of the vehicle one-time tax at the rate specified in Annexure I, at the time of first registration of the vehicle and thereafter tax shall be levied at the time of renewal of such vehicle at the rate specified in the Schedule as per fourth proviso to subsection (1) of Section 4:"
7. Thus every motor vehicle used or kept for use in the State is liable to be taxed and the rate of tax is that specified in the schedule to the Taxation Act. The second proviso to section 3 is to the effect that in respect of vehicles such as motor cars, which are included at item No.11 of schedule to the Act, "from the date of purchase of the vehicle"
one time tax at the rate specified in Annexure 1 shall be levied, "at the time of registration of the vehicle". Thereafter tax shall be levied at the time of renewal of registration and the rate of tax payable is laid down in the schedule as per fourth proviso to Section 4(1) of the Taxation Act.
8. Section 4(1) of the Taxation Act provides that the Registered Owner or the person in possession of the vehicle shall pay in advance WPC.No. 8154/2012 :5 : the tax levied under Section 3(1) of the Act, in such manner as may be prescribed. Sections 4(3), (4) and (5), being relevant, are extracted for reference:
"4. Payment of tax and issue of licence.--
(1) ...............................
(2) .......................................................................................... ..........
(3) When any persons says the amount of tax in respect of a motor vehicle used or kept for use in the State or obtains an endorsement in the certificate of registration of the vehicle by the Regional Transport Officer concerned that no tax is payable in respect of such vehicle, the Taxation Officer shall --
(a) grant to such person a licence in the prescribed
form; and
(b) record that the tax has been paid for the
specified period, or that no tax is payable in
respect of that vehicle, as the case may be, in
the certificate of registration or, in the case of a vehicle not registered under the Motor Vehicles Act 1939 (Central Act 4 of 1939), in a certificate in such form as may be presdribed:
Provided that no licence shall be granted in respect of a motor vehicle which is exempt from payment of tax under sub-section (1) of Section 5.
(4) No motor vehicle liable to tax under Section 3 shall be kept for use in the State unless the registered owner or the person having possession or control of such vehicle has obtained a tax licence under sub-section (3) in respect of that vehicle.
(5) No motor vehicle liable to tax under Section 3 shall be used in the State unless a valid licence obtained under sub-
section (3) is displayed on the vehicle in the prescribed WPC.No. 8154/2012 :6 : manner".
9. A survey of these provisions of the Act show that:
1) that the registered owner or the person in possession or control of every motor vehicle used or kept for use in the State is liable to pay tax at rates specified in the Act.
2) that one time tax shall be levied at the time of first registration of the vehicle and the levy shall be from the date of purchase of the vehicle.
3) that subsequent levy of tax shall be only at the time of renewal of registration and the rate tax is also specified as per the fourth proviso to section 4(1) of the Act.
4) that once tax is paid, the Taxation Officer shall grant to the payee, a license in the prescribed form and shall make endorsement as provided in Section 4(3) of the Act.
5) that unless tax is paid and tax license has been obtained, no motor vehicle liable to pay tax, shall be used in the State.
10. As already noticed in the earlier part of this judgment, it was contended by the Counsel for the petitioner that the tax due was already remitted on 27.03.2012 and the vehicle was presented for inspection and registration on 29.03.2012. According to him, the rate of tax applicable is that prevailing on the date of purchase of the vehicle and WPC.No. 8154/2012 :7 : since it was already paid, the vehicle should have been registered either on 29th itself or at any date before 01.04.2012. It was also his argument that tax is payable at the time of first registration and that the vehicle was first registered when temporary registration was granted by Ext.P3 on 26.03.2012.
11. Chapter IV of the Motor Vehicles Act 1988 contains the provisions relating to registration of motor vehicles. Section 39 of this Act, restrains every person from driving at any place any motor vehicle, unless the motor vehicle is registered as provided in Chapter IV of the Act and unless the vehicle carries a registration mark displayed in the manner prescribed. Section 40 provides that every owner of a motor vehicle shall cause the vehicle to be registered by a registering authority "in whose jurisdiction he has the residence or p lace of business where the vehicle is normally kept". Section 41 of the Motor Vehicles Act 1988 provides that on registration, the Registering Authority shall issue to the owner of the motor vehicle registered a certificate of registration and as per Rule 48 of the Central Motor vehicle Rules 1989, the certificate of registration issued shall be in Form 23 or 23A as may be specified in the notification issued by the State Government. Section 41(6) of the Act provides thus:
"S.41(6) - The Registering authority shall assign to the vehicle, for display thereon, a distinguishing mark (in this Act referred to as the registration mark) consisting of one of the groups of such of those letters and followed by such letters and figures as are allotted to the State by the WPC.No. 8154/2012 :8 : Central Government from time to time by notification in the Official Gazette, and displayed and shown on the motor vehicle in such form and in such manner as may be prescribed by the Central government."
From Section 41(6) of the Act it is evident that allotment of registration mark is a part of the process by which registration of a motor vehicle is completed.
12. Even as pleaded by the petitioner, he had applied to the 2nd respondent, the jurisdictional Registering Authority, for reservation of the registration mark No.KL 02 AK 3040 and it was thereafter that during that week itself, on 29.03.2012, the vehicle was presented for inspection and registration. The manner in which applications made for reservation of fancy numbers or any other numbers are to be dealt with, has been laid down in Rule 95 of the Kerala Motor Vehicles Rules 1989, as amended by the Kerala Motor Vehicles (Amendment) Rules, 2011 (hereinafter referred to as the 'Rules' for short). In so far as this case is concerned, Clauses (1) to (8) of Rule 95 are relevant and thereafter, are extracted for easy reference:
"95. Reservation of fancy registration mark.-- (1) Reservation of fancy registration mark shall be made for the registration of a new motor vehicle under section 39 of the Act, on an application made to the registering authority by the owner of a motor vehicle. (2) The Government may notify any further registration marks as reserved under sub- rule (1) as notified in the annexure appended to the rules save those in KL-15 series.WPC.No. 8154/2012 :9 :
(3) Any registration mark other than those notified under sub-rule (2) may also be reserves under sub-rule (1), if applied for, by any person.
(4) Reservation of a registration mark may be made from among the unallotted numbers in a unit as may be assigned to each Regional Transport Office or Sub Regional Transport - Office for a period of one week each, by the Transport Commissioner having regard to the quantum of registration in each such office and also for unallotted numbers pending from previous weeks. (5) An application under sub-rule (1) shall be made in Form-RFRMA appended to the rules and it shall be accompanied by the following:--
(i) TR 5 receipt/Computer generated cash receipt for the fee paid as specified in tlie annexure to these rules.
(ii) Valid Temporary Registration Certificate and a true copy thereof.
(iii) Proof of remittance of tax (in the case of non-transport vehicles only).
(iv) Proof of the address of the applicant as laid down in rule 4 of the Central Motor Vehicles Rules.
(v) A sealed cover superscribing thereon the words "TENDER FOR RESERVATI OF FANCY REGISTRATION MARK KL...." containing an offer letter quoting the amount if any, in addition to the reservation fee and a demand draft for an amount not less than half the amount so quoted which shall be drawn in favour of the Regional Transport Office Joint Regional Transport Officer, as the case may be:
Provided that an application for advance reservation of fancy registration marks may also be made 'online' in such manner as may be specified by the Transport WPC.No. 8154/2012 :10 : Commissioner in that behalf:
Provided further that a person may apply for reservation of more than one fancy Registration mark simultaneously by remitting the required fee under clause, (i) and submitting the receipt thereof along with additional tenders as provided in clause (v) of sub-rule (5). (6) All the eligible applications in respect of each registration mark received on or before the last working day of the week shall first be put to auction, except when there is only one application, on the first working day of the succeeding week in the presence of the applicants or their nominees if any, in the manner specified by the Transport Commissioner. Applications with insufficient Demand Draft shall be summarily rejected. (7) All the sealed tenders of eligible applications in respect of each registration mark shall be opened immediately after the auction is over. The Registration marks shall be allotted to the highest bidder taking together the offers in the auction and tender and he shall pay the total amount less the amount already paid by the demand draft, immediately after confirmation of the bid. (8) Where there is only one applicant for a registration mark, it shall be allotted to that applicant on payment of the amount if any quoted by him in full".
13. Undisputedly, the number, the reservation of which was sought by the petitioner, is not a fancy number, but is only "any other number" specified in the Annexure to the rule, which can also be reserved, in view of Rule 95(3) of the Rules. Irrespective of whether it is a fancy number or any other number, eligible applications received WPC.No. 8154/2012 :11 : will have to be dealt with in terms of Rule 95(6) and (7). As per these provisions, except when there is only one application, all eligible applications received on or before the last working day of the concerned week shall first be put to auction, on the first working day of the succeeding week. Once auction is completed, all the eligible sealed tenders shall also be opened. Thereafter, the registration mark shall be allotted to the highest bidder, taking the bids in the auction and tender together. However, in cases where there is only one applicant, Rule 95 (8) provides that on payment of the full amount quoted, the registration mark shall be allotted to him. It is not in dispute that in so far as the registration mark applied for the petitioner is concerned, there was no other applicant. Therefore, his application should have been disposed of in the manner provided in Rule 95(8) of the Rules.
14. In this context, the contention that the Registering Authority should have registered the vehicle on 29.03.2012 or during that week itself, is to be considered. As I have already explained, Rule 95 of the Rules requires the Registering Authority to consider all applications received "on or before the last working day" of the week and auction is to be held "on the first working day of the succeeding week", which shall be followed by opening of the tenders received. This means that the prospective applicants are allowed to make their applications in the prescribed manner, till the close of the working hours of last working day of the concerned week. In other words, the Registering Authority WPC.No. 8154/2012 :12 : would know whether there are more than one applicant for a fancy number or any other number, requiring an auction as provided in Rule 95(6) or to proceed with allotment as provided under Rule 95(7) of the Rules, only on the close of the working hours of the last working day of the week. In either case, the Registering Authority can proceed to auction or allotment of the registration mark, only in the succeeding week. Therefore, the earliest point of time when registration can take place is the first working day of the succeeding week, which in so far as this case is concerned is the 2nd of April, 2012. This is all that is stated in Ext.P9 order passed by the 2nd respondent. Thus there is no substance in the contention that registration was postponed to the first week of April 2012 only to levy the revised tax.
15. I have already made reference to Section 3 of the Taxation Act, which inter-alia provides that tax shall be levied from the date of purchase of the motor vehicle at the time of first registration of the vehicle. Therefore, though the liability to pay tax in respect of the vehicle commences from the date of it's purchase, tax is payable only at the time of it's first registration. In such a case, unless the Act otherwise provides, the tax levied shall be that prevailing on the date of registration of the vehicle. In so far as the judgment in Anas's case (Supra) is concerned, while dealing with the levy of one time tax, answering the contention that the law applicable at the time of booking the vehicle should be applied, this court held that the rate of tax is WPC.No. 8154/2012 :13 : applicable only when the vehicle is delivered to the customers. In the light of Section 3 of the Taxation Act providing for levy of tax at the time of first registration of the vehicle, and since taxable event is registration of the vehicle and not its booking or sale, I am unable to understand the aforesaid observation in the Division Bench Judgment, as laying down a principle that tax is always payable at rates as on date of purchasing the vehicle. In the light of Section 3 of the Taxation Act, I do not find anything illegal in Ext.P10 also.
16. Petitioner contended that as per Ext.P3, on 26.03.2012, the vehicle was granted temporary registration from the office of the Additional registering Authority, Tripunithura and that once temporary registration is granted, the vehicle is first registered and that since tax is payable at the time of first registration, even if there is any subsequent revision of tax, that cannot have any impact on his liability. Although I have given my thoughtful consideration to this contention, I must confess my inability to accept the same. A motor vehicle is registered as per the provisions contained in Chapter IV of the Motor Vehicles Act 1988 and Chapter III of the Central Motor Vehicles Rules, 1989 and Chapter IV of the Kerala Motor Vehicles Rules 1989. In Chapter IV of the Act, provision has also been made for temporary registration of motor vehicles vide Section 43 thereof, which reads as follows:
"Sec.43 Temporary Registration - (1) Notwithstanding anything contained in section 40 the owner of a motor WPC.No. 8154/2012 :14 : vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark. (2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable:
Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted [with a body or any unforeseen circumstances beyond the control of the owner], the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow.
(3) In a case where the motor vehicle is held under hire-
purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and address of the person with whom such agreement has been entered into by the owner".
17. In this context, it is also relevant to refer to Rule 94 of the Kerala Motor Vehicles Rules, which is extracted below for reference:
"Rule 94 - Temporary Registration - (1) Delegation of powers - Subject to the provisions of sub-section (1) of Section 43 of the Act and rules (2) to (5) temporary certificate of registration may be issued by persons authorised for the purpose by the Registering Authority.WPC.No. 8154/2012 :15 :
(2) Application - An application for temporary registration shall be in form 20 appended to the Central Motor Vehicles Rules, 1989, and clearly marked "Temporary".
(3) Form - A temporary certificate of registration shall be in Form "CR. TEM".
(4) Intimation to Registering Authority concerned - The Authority grantign a temporary certificate of registration shall in all cases forward a copy in Form "CR. TEM" to the Registering Authority in whose area the vehicle is to be ordinarily kept.
(5) Assignment of mark - The Authority granting a temporary certificate of registration assign a temporary registration mark to the vehicle and the owner shall cause the said mark to be affixed to the front and rear of the motor vehicle in the manner prescribed for registration marks by the Central Government.
(6) Fee - The fees for issue of temporary certificate of registration and for every extension of temporary certificate of registration as provided for in the proviso to sub-section (2) of Section 43 of the Act, shall be fifty rupees."
18. These provisions of the Motor Vehicles Act and the Rules show that registration granted under these provisions is purely temporary and it is valid only for a period not exceeding one month and is not even renewable. Such temporary registration or the allotment of registration mark does not have the attributes of the registration of a motor vehicle, as contemplated under Chapter IV of the Motor Vehicles Act 1988. Therefore it is idle to contend that temporary registration obtained under Section 43 of the Act should be treated as WPC.No. 8154/2012 :16 : first registration as referred to in Section 3 of the Kerala Motor Vehicle Taxation Act, to be immune to revision of tax implemented later.
19. The upshot of the above discussion is that there is nothing illegal in Ext.P9 or Ext.P10 and the petitioner is liable to pay tax at the rate in force from 01.04.2012 to get his vehicle registered under the provisions of the Motor Vehicles Act 1988.
In the result, the writ petition is dismissed without any order as to costs.
(ANTONY DOMINIC) JUDGE vi/