Remanded

Sulaiman C.P. v. State of Kerala

Kerala HC6 Mar 2012WP(C)/2123/2007

Case brief

AI extract

What is this about?

The court set aside recovery proceedings against the petitioner regarding vehicle tax arrears, remitting the matter to the transport officer to reconsider liability based on evidence that possession had transferred, while also directing the authority to implicate the vehicle's registered owner.

What did the court decide?

Impugned proceedings set aside and remitted to the second respondent to reconsider liability for the petitioner, fourth respondent, and registered owner after issuing proper notices.

Sulaiman C.P. Vs State of Kerala — Banking and Recovery | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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TUESDAY, THE 6TH DAY OF MARCH 2012/16TH PHALGUNA 1933

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WP(C).No. 2123 of 2007 (C)

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PETITIONER:

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SULAIMAN C.P., S/O. PAREED, AGED 49 YEARS, CHIRAKKAKUDY HOUSE, ALLAPPRA (P.O), PERUMBAVOOR, ERNAKULAM DISTRICT.

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BY ADVS.SRI.K.A.SHAMSUDEEN

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SRI.K.I.ABDUL RASHEED

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RESPONDENTS:

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1. STATE OF KERALA,

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REP. BY THE SECRETARY, GOVERNMENT SECRETARIAT,

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THIRUVANANTHAPURAM.

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2. JOINT REGIONAL TRANSPORT OFFICER, PERUMBAVOOR.

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3. THE DEPUTY TAHSILDAR (REVENUE RECOVERY),

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KUNNATHUNADU TALUK, PERUMBAVOOR P.O.

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4. SHRI K.K. PAILY, S/O. KURIAN, KOLURUTHIL HOUSE, THIRUVANIYOOR P.O., MULAMTHURUTHY,

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ERNAKULAM DISTRICT.

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R4 BY ADV. SRI.R.K.MURALEEDHARAN R3 BY GOVERNMENT PLEADER, SMT. LILLY K.T.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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WP(C).No. 2123 of 2007 (C)

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APPENDIX

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PETITIONER'S EXHIBITS :-

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EXT.-P1.	COPY OF THE AGREEMENT OF SALE EXECUTED BETWEEN THE PETITIONER AND THE 4TH RESPONDENT.
EXT.-P2.	COPY OF THE JUDGMENT IN OP NO. 10718/99 DATED 29.7.1999.
EXT.-P3.	COPY OF THE JUDGMENT DATED 14.3.2000 IN OP NO. 23734/99
EXT.-P4.	COPY OF THE ORDER DATED 29.10.2005 ISSUED BY THE 2ND RESPONDENT.
EXT.-P5.	COPY OF THE REPRESENTATION DATED 17.11.2005.
EXT.-P6.	COPY OF THE LETTER DATED 24.4.2006.
EXT.-P7.	COPY OF THE REQUEST DATED 7.7.2006.
EXT.-P8.	COPY OF THE RECEIPT EVIDENCING PAYMENT OF THE FEE OF RS.50/- DATED 10.1.2007.
EXT.-P9.	COPY OF THE DEMAND NOTICE DATED 27.12.2000.
EXT.-P10.	COPY OF THE APPELLATE ORDER PASSED BY THE DEPUTY TRANSPORT COMMISSIONER, ERNAKULAM IN APPEAL NO. 16/2000 DATED 14.4.2004.
EXT.-P11.	COPY OF THE NOTICE OF SALE ISSUED BY THE 3RD RESPONDENT DATED 22.2.07

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RESPONDENTS' EXHIBITS :-

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EXT. R4(a): COPY OF THE ORDER IN APPEAL NO. 16/2000 DATED 14.4.2004

// TRUE COPY//

P.A. TO JUDGE

DST

P.R. RAMACHANDRA MENON, J.

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W.P.(C). 2123 of 2007

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Dated this the 6^th day of March, 2012

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JUDGMENT

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The liability to satisfy tax in respect of vehicle bearing No.KL-C/1873 under the Kerala Motor Vehicles Taxation Act is the subject matter involved.

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The petitioner was the owner of the lorry bearing No. KL-C/1873 as aforesaid and according to the petitioner, he transferred the possession, control and such other rights over the vehicle as per Ext.P2. The registered owner of the vehicle was one Mr. Narayanan. Some steps were taken by concerned respondents against the petitioner alleging arrears of tax for the period fron 1.7.1988 to 31.3.1999, which made the petitioner to approach this Court by filing O.P.10718 of 1999. The said case was disposed of as per Ext.P2 judgment, directing the petitioner to avail the statutory remedy. However, since further proceedings were pursued by the respondents without serving a copy of the order stated as in existence, the petitioner again

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W.P.C. No. 2123 of 2007 -2-

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approached this Court by filing O.P.No.23734 of 1999, which was disposed of as per Ext.P3 judgment, directing the second respondent to pass final orders after giving an opportunity of hearing and to have the same communicated. It is stated that, Ext.P4 notice was issued on 29.10.2005, pursuant to the above verdict, asking the petitioner to produce further materials to substantiate his case and to satisfy the liability, if he failed to establish the same.

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On receipt of Ext.P4 notice, the petitioner preferred Ext.P5, pointing out the fact that the petitioner had never been the owner or person having control or possession over the vehicle in question, after the transfer effected as per Ext.P2. After considering the same, Ext.P6 proceeding was issued by the second respondent demanding the due amount, holding that the 'explanation' offered was not satisfactory. In the course of enquiry, the petitioner was given to understand that the proceedings were finalized pursuant to the order passed by the Deputy Commissioner in an appeal preferred by the fourth respondent, to whom the vehicle was transferred by the

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W.P.C. No. 2123 of 2007 -3-

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petitioner as per Ext.P2. It is stated that the said order was passed without hearing the petitioner. The fourth respondent has entered appearance and filed a counter affidavit stating that the averment of the petitioner is not correct and that the fourth respondent was never the owner or person having possession or control over the vehicle at any point of time. It is also stated that the order passed by the appellate authority on 14.4.2004,

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which has been produced as Ext.P10 along with I.A.No.9493/2007, (Ext.R4(a) produced by the fourth respondent) has become final.

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Going by the contents of Ext.P10/(Ext.R4(a)), it is seen that the said proceedings were finalised by the appellate authority without giving any opportunity of hearing to the petitioner. The observations made by the appellate authority in

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the said proceedings are very much relevant, which is extracted below:-

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“Accordingly, Demand notice issued to the possessor Sri.T.P.Sulailman, Chirakkakkudy, Allapra. The said Sulaiman filed O.P.No.23734/99 before the Hon'ble High Court and Hon'ble High Court disposed

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W.P.C. No. 2123 of 2007

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-4-

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the O.P. directing the petitioner for hearing. Accordingly, the said Sulaiman appeared before the respondent for hearing on 23.3.2000 and produced copy of Sale agreement between Sulaiman and the appellant, in which it is stated that the vehicle has been sold on 27.4.98 to the appellant. Thereafter, demand notice issued to the appellant. The appellant appeared before the respondent and stated that he has sold the vehicle to somebody and failed to produce evidence of the sale of the vehicle and detailed enquiry conducted by the respondeant revealed that the vehicle was sold to appellant on 27.4.88 by Sri. Sulaiman. Hence Demand notice issued from 1.7.1988.

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As per photocopy of sale agreement, the vehicle was possessed by the appellant only for 15 days and after that from 9.7.88 onwards Sri. Sulaiman is th.25 e possessor of the vehicle.

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Hence, the matter is remanded to the respondent to take correct action.”

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Since there is a specific observation in Ext.P10 that the enquiry conducted by the second respondent revealed that the vehicle was sold by the petitioner to the appellant on 27.4.88, whether

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W.P.C. No. 2123 of 2007 -5-

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any further proceedings could be pursued against the petitioner, (since he ceased to be a person having control over the vehicle) is a matter to be considered. More so, an admitted fact does not require to be proved. That apart, there is a further observation in Ext.P10 by the appellate authority, that the vehicle was possessed by the appellant therein only for 15 days and thereafter, it was repossessed by the petitioner. On what basis the said finding was arrived at, is not discernible from Ext.P10.

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Yet another aspect to be noted is that, the statute fixes the liability in respect of arrears of tax over the registered owner or the person having control/affairs of the vehicle. Admittedly, the petitioner was not the registered owner of the vehicle, but it was one Mr. Narayanan. The liability of the petitioner was only by virtue of the possession and control over the vehicle, which had come to the custody of the petitioner from 7.9.1987 as observed by this Court in the opening paragraph of Ext.P2 judgment. Since such control and possession, even according to the second respondent, stood transferred as on 27.4.1988, as conceded in Ext.P10 order (as revealed in the enquiry), the

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W.P.C. No. 2123 of 2007 -6-

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correctness and sustainability of the impugned proceedings against the petitioner has to be reconsidered. The proceedings also do not reveal as to steps taken against the 'registered owner' of the vehicle. This Court finds that the matter requires to be reconsidered by the second respondent fixing the liability upon the proper person.

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In the above facts and circumstances, the impugned proceedings are set aside and the matter is remitted to the second respondent, to have it reconsidered and finalised in accordance with the relevant provisions of law, after issuing notice to the petitioner, the fourth respondent, the registered owner of the vehicle and others concerned, if any. It is also open for the respondents concerned to take possession of the vehicle and proceed with further steps to have the due amount realised.

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Writ petition is disposed of accordingly.

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P.R. RAMACHANDRA MENON, JUDGE.

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Kp/-

Sulaiman C.P. v. State of Kerala

Case brief

What is this about?

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Sulaiman C.P. v. State of Kerala

Case brief

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