Disposed

Ashraf P v. the Secretary

Kerala HC12 Jul 2016WP(C)/6473/2016

Case brief

AI extract

What is this about?

The court examined a writ petition challenging a memo ordering tax payment and change of service type. It held that tax liability begins from the vehicle alteration date as per precedent. The respondent was directed to reconsider tax liability and process the renewal application accordingly.

What did the court decide?

The memo regarding tax was directed to be reconsidered. The renewal application was to be considered as ordinary service. Temporary permit was to be considered within two weeks.

Ashraf P Vs the Secretary — Service and Employment | Kerala HC (2016)

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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 SHAJI P.CHALY

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TUESDAY, THE 12TH DAY OF JULY 2016/21ST ASHADHA, 1938

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WP(C).No. 6473 of 2016 (H)

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PETITIONER(S):

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ASHRAF P., S/O. KOMU HAJI, PARAMMAL HOUSE, PADAPARAMBA, P.O. VATTALUR, MALAPPURAM DISTRICT.

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BY ADV. SRI.SAJU J.VALLYARA

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RESPONDENT(S):

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1. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, MALAPPURAM DISTRICT, PIN-676 505.

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2. THE REGIONAL TRANSPORT AUTHORITY, REPRESENTED BY ITS SECRETARY, MALAPPURAM DISTRICT, PIN-676 505.

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ADDITIONAL R3 IMPLEADED

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3. MOHAMMED N., S/O.ALI, NADAKALATHIL HOUSE, ARAKKUPARAMBA P.O., THAZHEKODU, MALAPPURAM.

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*** ADDITIONAL R3 IMPLEADED AS PER ORDER ORDER 12.7.2016 IN IA.9965/2016.**

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BY SENIOR GOVERNMENT PLEADER SMT.K.A.SANJEETHA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 6473 of 2016 (H)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1. PHOTOCOPY OF THE REGISTRATION PARTICULARS OF STAGE CARRIAGE KL-10-G-2253.

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EXT.P2. PHOTOCOPY OF THE REGISTRATION CERTIFICATE OF STAGE CARRIAGE KL-53-A-6930.

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EXT.P3. PHOTOCOPY OF THE REGULAR PERMIT VIDE NO. P.ST.10/53/2001 IN RESPECT OF STAGE CARRIAGE KL-53-A-6930.

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EXT.P4. PHOTOCOPY OF THE RENEWAL APPLICATION DATED 16-12-2015 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.

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EXT.P5. PHOTOCOPY OF THE COVERING LETTER DATGED 16-12-2015 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT ALONG WITH EXHIBIT P4.

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EXT.P6. PHOTOCOPY OF THE MEMO VIDE NO. C5/201466/15 DATED 16-2-2016 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER.

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RESPONDENT(S)' EXHIBITS:

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------------------------

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EXT.R3(a): TRUE COPY OF THE ROUGH SKETCH

//TRUE COPY//

P.S.TO JUDGE

Msv/

SHAJI P. CHALY, J

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W.P.(C)NO.6473 OF 2016

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Dated this the 12^th day of July, 2016

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J U D G M E N T

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This writ petition is filed by the petitioner seeking to quash Ext.P6 memo, issued by the first respondent whereby the petitioner was permitted to conduct the service as ordinary one with the condition that the vehicle is to be altered as ordinary service instead of city service, was also directed to file temporary application for conducting service as ordinary service. and a further direction to pay tax due for the period from 01.10.2011 to 31.12.2015 amounting to Rs.1,64,700/- (Rupees one lakh sixty four thousand seven hundred only)

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Brief facts for the disposal of the writ petition are thus:-

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Petitioner was issued with regular permit in respect of stage carriage bearing No.KL-10G 2253 as

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W.P.(C)NO.6473 OF 2016

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ordinary city service. Subsequently, the above vehicle was replaced and the regular permit was issued as per Ext.P3. According to the petitioner, petitioner is conducting service as ordinary city service from 2001 onwards as sanctioned by the authority and the vehicles are registered as city service with a seating capacity of 18 in all. It is also urged that the renewal application was submitted before the expiry of Ext.P3. However, the first respondent has issued Ext.P6 memo on the reason that the vehicle is conducting city service which is not allowable in Malappuram district and hence the application for renewal will be considered by the second respondent. According to the petitioner, during the pendency of renewal application, the holder of a regular permit is entitled to continue the service by virtue of temporary permit. Petitioner challenges Ext.P6 memo being arbitrary and illegal.

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First respondent has filed a counter affidavit refuting the allegations, claims and demands made by the petitioner in the writ petition. That apart, it is

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W.P.(C)NO.6473 OF 2016

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contended that as per Section 71(3) (a) of the Kerala Motor Vehicles Act 1988, no such notification was published with respect to Malappuram District and hence there is no city permit in Malappuram District. The city or town permit was issued by mistake to the petitioner in contravention of the provisions of Motor Vehicles Act and Kerala Motor Vehicles Rules. That apart, it is also contended that as per Rule 2 (CA) since the town service is not notified in Malappuram District petitioner cannot insist that he should operate his vehicle as a city service. It is also contended that local enquiry was conducted by the Accountant General (Audit) of Kerala for the financial year 2014-2015 and strongly objected the service and reported that all other services operating are still operating as moffussil service and there is no city or town service operating in Malappuram District. Apart from the same, it is also stated that petitioner is liable to pay the tax as quantified as per Ext.P6.

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I have heard learned counsel for the

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W.P.(C)NO.6473 OF 2016

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petitioner and learned senior Government Pleader, and perusing the pleadings and documents on record. The thrust to the contention advanced by the learned counsel for the petitioner is that, petitioner is not liable to pay the tax as provided in Ext.P6 memo since he is liable to pay the tax from the date of the alteration of the vehicle only. This question was considered by a Division Bench of this court in [Siju V RTA, 2010(4) KLT 848] and held that the operator is liable to pay the tax from the date of the alteration made to the vehicle. Obviously, Ext.P6 is issued by the first respondent without looking into the principles of law laid down by this court in the aforesaid judgment. Therefore, I think it is only appropriate that Ext.P6 memo to the extent it affects the petitioner with respect to the payment of tax, is directed to be reconsidered without disturbing the other findings. Therefore, there will be a direction to the first respondent to reconsider the question with respect to the tax liability fixed against the petitioner as per Ext.P6 memo by looking into the principles of law

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W.P.(C)NO.6473 OF 2016

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laid down by this court in the aforesaid judgment and take a decision on the same within a period of one month from the date of receipt of a copy of this judgment. There will also be a further direction to consider Ext.P4 application, by the second respondent as an ordinary service within a period of six weeks from the date of receipt of a copy of this judgment. If the petitioner files any application seeking temporary permit, the same shall be considered within a period of two weeks from the date of receipt of a copy of this judgment.

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Writ petition is disposed of accordingly.

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sd/-

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SHAJI P. CHALY, JUDGE

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R.AV

Ashraf P v. the Secretary

Case brief

What is this about?

What did the court decide?

Ashraf P v. the Secretary

Case brief

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