George Vadakkel, J.
1. The petitioner owned a goods carriage vehicle bearing registration No. KLF 2080. As is seen from Ext. P-3 revisional order passed by the Transport Commissioner, Trivandrum, and as averred in the petition the said vehicle was garaged for repairs on 12-9-1975. The petitioner's case is that thereafter the said vehicle has not been used at all and that it was sold out as scrap iron. It is the petitioner's further case that while the said vehicle was in the garage its permit expired on 30-6-1976 and the validity of the said vehicle's fitness certificate expired on 1-10-1975. According to the petitioner, the permit was not renewed thereafter, nor any fitness certificate obtained for the vehicle subsequently. These facts have not been controverted by any counter-affidavit filed on behalf of the respondents.
2. The petitioner submitted three applications for exemption from payment of the tax in respect of the vehicle in question payable under Section 3 of the Kerala Motor Vehicles Taxation Act 1976 (hereinafter the Act). His first application was on 30-10-1975. By the said application he sought exemption from payment of tax under the Act for the period 1-10-1975 to 31-12-1975, The said application wasreceived by the concerned authority, namely the 1st respondent herein on 3-11-1975. He submitted his second application in that behalf on 7-1-1976. By this application he sought exemption from payment of tax in respect of the vehicle in question for the period starting with 1-10-1975 and ending with 31-12-1976-His third application was on 7-4-1977. By that application he sought exemption from payment of tax under the Act for the period 1-10-1975 to 30-6-1977. It is his case that during all this time, from 1-10-1975 to 30-6-1977, the vehicle was in the garage, and that even thereafter the vehicle has not been used on the public roads.
3. The 1st respondent rejected the petitioner's application submitted on 30-10-1975 for the reason that it was not received within one week from the date of commencement of the period for which exemption from payment of tax in respect of the vehicle in question was claimed on account of its non-user. The petitioner's second application was rejected stating that the registration certificate has not been produced along with that application, which as already stated, was submitted on 7-1-1976. The 1st respondent partially acted upon the petitioner's third application, in that he granted exemption for the period 1-4-1977 to 30-6-1977. According to the 1st respondent, here again the application was belated so far as an inclusive of the quarter ending 31-3-1977.
4 The petitioner preferred an appeal against 1st respondent's order dated 7-12-1978. It appears to be a composite order disposing of the three applications submitted by the petitioner seeking exemption from payment of tax under the Act. The appellate authority, namely the Deputy Transport Commissioner dismissed the said appeal as per Ext. P-1 order. The petitioner preferred a revision before the Transport Commissioner, Trivandrum who as per his Ext. P-3 order dismissed the revision also.
5. The petitioner impugns herein the proceedings that have led up to the passing of Exts. P-1 and P-3 orders. It is contended that the provisions of the Act and the Rules thereunder have been substantially complied with and that therefore the petitioner is not liable to pay tax on the vehicle in question under the provisions of the Act.
6. The Act has been enacted by virtue of the provision in Entry 57 in List 2 in Schedule VII of the Constitution. The saidentry enables the State Legislature to enact on 'tax on vehicles, whether mechanically propelled or not, suitable for use on roads, including tram-cars subject to the provisions of Entry 35 of List III', It is by now well settled by the decision of the Supreme Court in Bolani Ores v. State of Orissa (AIR 1975 SC 17) that the power of taxation under Entry 57 'cannot exceed the compensatory nature which must have some nexus with the vehicles using the roads, viz., public roads' -- see para 29, at page 28 of the aforesaid decision. Reading the expression, 'used or kept for use in the State' as 'used or kept for use on the public roads of the State' the Supreme Court upheld the constitutional validity of the Act in Travancore Tea Co. v. State of Kerala [AIR 1980 SC 1547]. The Supreme Court by that decision reversed the decisions of this Court, Travancore Tea Estate Co. Ltd. v. State of Kerala (1972 Ker LT 760) and Peermade Tea Co. Ltd. v. State of Kerala (1972 Ker LT 848). These decisions had taken the view that the Act would be attracted even it it be that the concerned vehicle does not use public roads of the State and uses only private roads. It was pointed out by the Supreme Court in that decision that 'if the vehicles do not use the roads, notwithstanding that they are registered under the Act they cannot be taxed'. The Supreme Court in so holding relied on the earlier decision of that Court in Bolani Ores v. State of Orissa, AIR 1975 SC 17).
7. Section 5 (11 of the Act reads:
'5. Exemption from tax. -- (1) In the case of a motor vehicle which is not intended to be used or kept for use during the first month or the first and second months of a quarter, or whole of a quarter or year, as the case may be, the registered owner or the person having possession or control of such vehicle shall give previous intimation in writing to the Regional Transport Officer from whom the endorsement for tax has been obtained, that such vehicle would not be used for such period and thereupon, the registered owner or such other person shall not be deemed to have used or kept for use the vehicle for such period, and no tax shall be payable in respect of such vehicle for such period.' This provision enables the owner of a motor vehicle to obtain tax-exemption under the provisions of the Act lay giving previous intimation in writing to the concerned Regional Transport Officerthat such vehicle would not be used for such period. On being so intimated, the registered owner or such other person, who has control over the vehicle, shall not be deemed to have used or kept for use the vehicle for such period. Consequently, no tax shall be payable in respect of such vehicle for such period. The Act provides for another presumption as well and that presumption is raised by Sub-section (3) of Section 3, which reads :
'(3). 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 keep 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.'
Thereunder in, respect of a motor vehicle the non-user of which has not been intimated as envisaged by Section 5 (1) of the Act, its registered owner or any person having possession or control over the same shall be deemed to use or keep such vehicle for use in the State, that is to say for use on the public roads in the State. Mark that though Section 5 (1) speaks of giving 'previous intimation', it does not specify the period within which the intimation of non-user is to be given. In fact the expression 'previous intimation' would indicate that that intimation should be at some time prior to the commencement of the period for which exemption is sought. Still under R. 10 of the Kerala Motor Vehicle Taxation Rules, 1975 (hereinafter the Rules) made under the Act such intimation need be given so as to reach the concerned authority only within one week from the date of commencement of the period for which exemption from payment of tax in respect of the vehicle is claimed due to non-user. It is suggested on behalf of the petitioner that the rule making authority itself considered that the substantive provision in the Act, Section 5 (1) is not mandatory and that the previous intimation can be even after the commencement of the period for which exemption is sought. On that basis it is argued that rejection of the petitioner's application on the ground that the intimation was not received within a week of the commencement of the period for which exemption was sought for cannot be sustained. The submission is that though under Section 3 (3) a presumption can be drawn against the petitioner that the vehicle in question was used or kept foruse on the public roads of the State, the petitioner can prove and establish that as a matter of fact it was not kept for such use nor used on the public roads of the State. On that basis it is contended that the petitioner on proving and establishing the aforesaid facts is entitled to exemption from payment of tax under the provisions of the Act. Elaborating the contention, it is argued that in so far as the tax under the Act is a compensatory tax for using the vehicle on the roads of the State, a vehicle which is not used and which has not been kept for use on such roads cannot be taxed under the provisions of the Act.
8. The learned counsel for the petitioner further brought to my notice an earlier decision of this Court in Kathiri v. R. T. O., Kozhikode (1965 Ker LT 1206) and contended that the aforesaid decision supports the arguments advanced as aforesaid. The above said decision was rendered under the earlier Act, Motor Vehicles Taxation Act, 1963, which was repealed by Section 60 of the Act. Though there are some slight variations in the language of Section 5 (1) of the earlier Act from the language of Section 5 (1) of the present Act, I do not think there is much difference, except for some verbal variations. Referring to Section 5 (1) of the earlier Act, Govindan Nair, J. (as he then was) said as follows 9.
'5. Ext. P-2, the order passed by the Regional Transport Officer and the order passed by the appellate authority the Collector, Ext. P-3, proceed on the basis that there is tax liability for a vehicle for a given period if there has been no compliance with Section 5. According to the appellate authority, there should be a prior intimation stating the period for which the vehicle was not intended to be used. Merely because the enabling provision contained in Section 5 is not available to a registered owner it does not necessarily follow that the tax must be paid for the vehicle even if he has nol used or kept for use the vehicle for the period in question. This question in each case must be investigated and determined if a claim is made that there has been no user and that the vehicle was not kept for use.'
The learned Judge earlier pointed out in that decision that :
'There are two ways therefore of getting over the deeming provision contained in Section 3 (2). One is by complying with Section 5. Even in such cases the negativingof the presumption provided by Section 3 (2), is not conclusive for under Section 5 (2) an investigation is possible and a conclusion can be reached that the vehicle was used or was kept for use. It appears to me that even when Section 5 has not been complied with, the question must be considered as to whether a vehicle has been used or kept for use for a specific period if a claim is made by the registered owner or the person having possession or control of the vehicle that the vehicle has not been used or kept for use for such period. This question has not been investigated in this case.'
9. It appears to me that the same construction as the learned Judge put on Section 5 (1) of the earlier Act read with Section 3 (2) of that Act should be placed on Section 5 (1) of the Act read with Section 3 (3) of the Act. It may here be mentioned that Section 3 (2) of the earlier Act is almost substantially the same as Section 3 (3) of the Act,
10. This, my view is supported by the decision of the Supreme Court, already referred to, in Travancore Tea Co. v. State of Kerala (AIR 1980 SC 1547). In that case as a matter of fact there was no application at all under Section 5 (1) of the Act. No such application appears to have been submitted, because the vehicle in question along with some other vehicles of the appellant before the Supreme Court were exclusively used only on the appellant's private roads. Taking the view that mere keeping of the vehicle creates tax liability, the concerned authorities seized one of the vehicles in question. It was only thereafter that the appellant before the Supreme Court wrote to the concerned authority asking for release of the said vehicle on the ground that the said vehicle was not liable to be taxed under the provisions of the Act. This letter was only on 28-12-1964 that is to say towards the end of the last quarter of 1964. This Court in the two decisions already referred to, Travancore Tea Estates Co. Ltd. v. State of Kerala (1972 Ker LT 760) and Peermade Tea Co. Ltd. v. State of Kerala (1972 Ker LT 848) took the view that irrespective of user of the vehicle on the public road the vehicle is liable to be taxed under the provisions of the Act. The Supreme Court said that it is not so and that the authorities have proceeded under a misconception. Noticing that the question has not been approached from the correct perspective, the Supreme Court directed the Regional Transport Officer to verify as to whether the vehicle in question has as a matter offact been used on the public roads of the State or has been kept for use on the public roads of the State. The Supreme Court further said that the Regional Transport Officer 'will be at liberty to act under Section 5 (2) of the Act and decline exemption from the liability to pay tax for the relevant period if on verification it is found that the vehicle has been used during that period, on the public road.' It appears to me that the Supreme Court in the aforesaid case has proceeded as if the person who seeks an exemption from tax can establish and prove the fact that the vehicle in question has not been used on the public roads of the State, nor has been kept for such use and thereby obtain exemption from payment of the tax under the provisions of the Act. The facts of the Supreme Court case stated above and the direction given by that Court lend support to only such a construction. The Supreme Court in that connection in fact said as follows (at p. 1551 of AIR) :
'In the circumstances of the case we have to take it that though, in terms, requirement of Sections 3 and 5 have not been complied with, in effect the requirements have been satisfied as the dispute proceeded throughout on that basis.'
This passage further lends support to the view that Section 5 (1) has to be construed as a provision substantial compliance of which is sufficient and that is what is required. No doubt when Section 3 (3) is attracted and the presumption arises against the petitioner, then it is for the petitioner to establish that the facts necessary to attract Section 5 (1) of the Act are obtained. It is to be remembered that as already indicated and as stated by the Supreme Court in Bolani Ores v. State of Orissa (AIR 1975 SC 17) the exigency of tax is the user of a vehicle on the public road or keeping that vehicle for use on the public road. The tax payer is entitled to, show that the exigency of tax has not fallen and that therefore he is not liable to pay tax under the provisions of the taxing Act. This I suppose is the principle on which the decision of the Supreme Court is founded.
11. In view of what is stated hereinbefore the proceedings that have led up to Exts. P-1 and P-3 orders cannot be sustained. In that view the matter has to be directed to be gone into afresh by the 1st respondent, the Regional Trans-port Officer from whose decisions Exts. P-1 and P-3 orders arose in appeal and revision respectively. There shall be a direction to that effect. I set aside Exts, P-1 and P-3 orders and the proceedings of the 1st respondent which were confirmed by these orders and direct the 1st respondent to consider the matter afresh in the light of what is stated herein before and in accordance with the provisions of law governing the same. It is brought to my notice that pursuant to the interim order on C. M. P. No. 7357 of 1980 the petitioner has deposited a sum of Rs. 2,000/- towards the demand made against him under the provisions of the Act. Depending upon the decision arrived at by the 1st respondent, the said sum shall be refunded or adjusted as the case may be. In the circumstances of the case, there shall be no order as regards costs.