Venkatesh Supta, V.R. vs Rto, Bangalore and Another

M.P. Chandrakantharaj Urs, J.-This matter coming up for orders today is taken up for final heating by consent of parties and disposed of by the following order:

The petitioner is registered owner of a motor vehicle bearing registration mark AAC 7469. The petitioner surrendered the relevant documents prescribed to be surrendered under the Karnataka Motor Vehicles Taxation Rules, on 1-8-1985 with an application and also intimating the 1st respondent-Regional Transport Officer, Bangalore, the place at which the vehicle had been garaged. After the surrender, it is alleged that the vehicle was forcibly taken away from the garage by one Farooq. A complaint was lodged with the Kalasipalyam Police Station in regard to the theft of the vehicle. The police complaint was duly registered by the concerned authorities. Said Farooq was traced along with the vehicle, prosecuted and he was fined with Rs. 150/- by the III Metropolitan Magistrate, Bangalore, in C.C. No. 10652/85. The vehicle was released to the custody of the petitioner and he placed the vehicle in the place where it was originally garaged as indicated in the application for surrender on 5-9-1985. He could not inform the 1st respondent of the event that transpired between 20-8-1985 and 5-9-1985 It appears that the Motor Vehicles inspector visited the garage at 4 P.M. on 5-9-1985 and found that the vehicle of the petitioner was not there and therefore, he made a report on the basis of which the 1st respondent Regional Transport Officer, Bangalore, came to the conclusion that the vehicle was being used on the road and therefore liable to pay tax. Accordingly, he made a demand to pay tax for the period 1-8-1985 to 31-10-1985 within 7 days from the date of receipt of the notice. The notice bears the signature of Assistant Regional Transport Officer, Bangalore (South). A true-copy of the demand is at Annexure-C to the petition. In response to the demand notice, the petitioner submitted his explanation in writing a true-copy of which is produced at Annexure-D to the petition. Separately the petitioner filed an appeal under the Karnataka Motor Vehicles Taxation Act, 1957 (for short ''the Act'') to the Deputy Commissioner for Transport, Bangalore Division, Bangalore That appeal came to be dismissed purporting to be in accordance with the decision of this Court in Writ Petition No. 125/85. Aggrieved by the same, the petitioner has approached this Court under Articles 226 and 227 of the Constitution inter-alia contending that once the documents were surrendered and the surrender was accepted by the 1st respondent, the burden of proving that the vehicle was still used on the roads in Karnataka was on the respondent and they could not, therefore, issue the demand notice at Annexure-C muchless sustain the same in the appeal proceedings.

No material is placed by the respondents before this Court to disprove the facts stated by the petitioner in regard to what happened to the vehicle on 19-8-1985 culminating in the prosecution of the said Farooq and return of the vehicle to the petitioner and his re-garaging it at the place indicated in the surrender application. Therefore, as long as there was no conclusive proof available to the Assistant Regional Transport Officer, Bangalore South, Bangalore, that the vehicle had been used after surrender on the roads by the petitioner, it was not liable for tax under the Act as the surrender had been accepted. The mere fact that at 4 P.M. on 5-9-1985 the vehicle was not found in the garage is not the conclusive proof that the vehicle had been used on the road. It was only the conclusive proof that the garage did not contain the vehicle. Nor can the petitioner be held responsible for the use of the vehicle when admittedly it was stollen by Farooq and used on road. That is not an ''use'' as contemplated under Sec. 3 of the Karnataka Motor Vehicles Taxation Act.

On these facts I find that the appellate authority, the 2nd respondent, has mis-directed himself in relying upon the decision of this Court in W.P. 125/ 85. From the passage extracted in his order which is at Annexure-E to the petition, it is seen that in that case what fell for consideration was the exemption granted under Section 16 of the Act and not relatable to the surrender.

In the case of B.V. Subramanya Setty v Senior Regional Transport Officer, Mysore (I.L.R. 1984, page 85) Full Bench of this Court has laid down the law clearly that the burden of proving that there is liability on the part of the owner of a vehicle to pay tax under the Act is on the Tax-Officer, in all cases, whether either on account of legal presumption the Registration Certificate is not valid or that the registration has been surrendered and therefore nor valid or current. If that burden is not discharged, then the vehicle cannot be subjected to the tax.

In the instant case beyond the assertion of the Motor Vehicles Inspector, as is evidenced by the report made by him a true-copy of which is at Annexure-C, that the vehicle of the petitioner was not found at the garage where it was expected to be found, there is nothing on record to show that the petitioner used the said vehicle on road. Perhaps, it is after the Motor Vehicles Inspector visited that the petitioner put back the vehicle in to the garage after the disposal of the case by the Magistrate and after the vehicle was returned to the petitioner. Therefore, the user of the vehicle on road has not been proved and as such, the demand is clearly without the authority of law.

In the result, this Writ Petition is allowed, rule made absolute and the impugned demand as well as the appellate order confirming the demand are hereby quashed.

There will be no order as to costs.