Judgment :- W.P. No. 20476 of 1992: 1. The petitioner is the owner of Tourist Maxi Cab bearing No. TSD 6130, with a permit valid in Tamil Nadu. The petitioner paid tax up to 30-6-1991. The fitness certificate expired on 23-5-1991. It is the claim of the petitioner that the vehicle developed major repairs and in order to carry out the same, the vehicle was entrusted to a garage on 2-5-1991. It is stated that the repairs were completed only on 11-12-1992 and handed over to the petitioner. 2. In the meanwhile, the Secretary to the Regional Transport Authority, Madras, issued a notice dated 16-11-1992 under S. 86 of the Motor Vehicles Act, calling for an explanation of the petitioner for non-compliance with the conditions of permit. The petitioner sent a reply on 12-12-1992 stating that the vehicle was under repair and it was taken delivery only on 11-12-1992. It was stated that the non-plying of the vehicle was neither wilful nor wanton, but beyond circumstances. On the same day, the petitioner filed an application before the respondent for permission to pay the current tax and obtained renewal of fitness certificate for the purpose of resuming service of the vehicle. The respondent issued a demand notice dated 16-12-1992. The petitioner was called upon to pay tax from 1-7-1991 to 30-9-1992 with penalty thereon as prescribed by the Tamil Nadu Motor Vehicles Taxation Act (hereinafter referred to as ‘the Taxation Act’) and the Rules thereunder. Aggrieved by the said demand, the petitioner h as filed this writ petition praying for issue of a certiorari. 3. The petitioner challenges the demand notice on three grounds: 1) It has been issued without any show cause notice and the principles of natural justice have been violated. 2) The validity of fitness certificate having expired on 2-5-1992, the petitioner had no liability to pay tax from that date. 3) When a proceeding under S. 26 of the 3 Motor Vehicles Act is pending, the respondent ought not to have issued a demand notice for payment of tax and penalty. 4. W.P. No. 12820 of 1992 : The petitioner is the owner of the public carrier bearing number TSF 0460. He said tax upto 30-9-1990. According to him, the vehicle developed major repairs on 28-9-1990 and it was entrusted to a garage. 4. W.P. No. 12820 of 1992 : The petitioner is the owner of the public carrier bearing number TSF 0460. He said tax upto 30-9-1990. According to him, the vehicle developed major repairs on 28-9-1990 and it was entrusted to a garage. After the repairs were completed, the vehicle was taken on a trial run on 24-3-1992, according to the petitioner, when the Motor Vehicles Inspector, Madras Central, stopped and checked the same. The Inspector found that the relevant documents were not carried in the vehicle and tax had not been paid for the quarter ending 31-3-1992, with the result be impounded the vehicle. The petitioner filed W.P. No. 6803 of 1992 for release of the vehicle. This Court by order dated 18-5-1992 directed the release of the vehicle on condition that the petitioner furnished bank guarantee for a sum of Rs. 8000 and produced xerox copies of the registration certificate, insurance certificate, etc., and also gave an undertaking to the effect that he would participate in the enquiry, if any, initiated in pursuance of the check report. The petitioner furnished a bank guarantee for Rs. 8000, but he did not comply with the other two conditions imposed by this Court. But the vehicle was released. A notice was issued to the petitioner under S. 86 of the Motor Vehicles Act on 7-8-1992 in R. No. A4/22889/92 calling upon him to show cause why his permit should not be cancelled for violation of the conditions of permit. 5. A demand notice was issued to him to pay the tax from 1-10-1990. but it returned unserved with the endorsement ‘not known’. The petitioner issued a notice through his advocate for grant of a fitness certificate. On receiving a negative reply, the petitioner filed W.P. No. 9919 of 1991 in this Court for issue of a Mandamus, By order dated 22-7-1992, I directed the respondents therein to inspect the vehicle on production by the petitioner and if it was found fit, they shall issue a fitness certificate in accordance with law. It was brought to my notice that the notices issued to the petitioner returned unserved. The petitioner explained that the address contained in the licence and the permit was that of the financier and he gave a particular address as his own address. It was brought to my notice that the notices issued to the petitioner returned unserved. The petitioner explained that the address contained in the licence and the permit was that of the financier and he gave a particular address as his own address. I recorded the same in my order and I directed the respondents therein to issue notice to the said address. The respondent fixed a date for enquiry and issued a notice to the petitioner. But, it returned unserved with the endorsement “no such person”. Thereafter, the respondent sought the opinion of the Government Pleader, who advised him to accept the current tax and issue the fitness certificate. When the petitioner came to pay the current tax, he explained that he was away from his place and that is why the notice could not be served and that he was prepared to accept the notices in person. 6. Accordingly, he was served on 28-8-1992 when he paid the current tax. The hearing was posted to 3-9-1992. After hearing the petitioner, the respondent passed a detailed order on 15-9-1992 directing the petitioner to pay a sum of Rs. 13,930 towards tax plus Rs. 27860 towards penalty, making a total of Rs. 41,790. It is the said order that is challenged in this writ petition. The petitioner urges that the validity of the fitness certificate having expired already, the petitioner was not liable to pay tax. It is also urged that the petitioners vehicle was only in the garage and there was no liability to pay tax when it was not in use. 7. Before considering the contentions of the petitioners, it is necessary to refer to certain provisions of the statutes and the Rules made thereunder. S. 3 of the Tamil Nadu Motor Vehicles Taxation Act, 1974 hereinafter referred to as “Taxation Act” provides for levy of tax on every motor vehicle used or kept for use in the State of Tamil Nadu at the rate specified for such vehicle in the First Schedule or, as the case may be, in the Second Schedule. Sub-S. (2) empowers the Government to increase the tax specified in the Schedules by notifications from time to time. S. 4(2) of the Taxation Act provides that no motor vehicle shall be used or kept for use in the State of Tamil Nadu at any time unless a licence has been obtained. Sub-S. (2) empowers the Government to increase the tax specified in the Schedules by notifications from time to time. S. 4(2) of the Taxation Act provides that no motor vehicle shall be used or kept for use in the State of Tamil Nadu at any time unless a licence has been obtained. S. 5 thereof is to the effect that licence can be issued only on payment of tax. R. 3 of the Tamil Nadu Motor Vehicles Taxation Rules introduces a statutory fiction, whereby a motor vehicle shall be deemed to be used or kept for use in the State of Tamil Nadu for the purpose of S. 3 of the Taxation Act, in the case of transport vehicles covered by permit or counter signature of permit issued by any transport authority in the State. S. 8 of the Taxation Act provides for the period within which the tax is to be paid. According to the section, the tax due under the Act shall be paid within such period, not being less then seven days or more than 45 days from the commencement of the quarter, half-year or year as may be prescribed and different periods may be prescribed for different classes of motor vehicles. The corresponding rule under the Rules is R. 7, which prescribes different periods for different classes of vehicles. S. 8-A of the Taxation Act provides that no application for the grant or renewal of fitness certificate in respect of a transport vehicle shall be entertained unless the tax due under the Taxation Act in respect of such vehicle has been paid. The Proviso exempts only a new transport vehicle produced for registration. S. 15 of the Taxation Act prescribes that if the tax due in respect of a vehicle has not been paid within the period prescribed under S. 8, the registered owner or the person having possession or control thereof shall pay, in addition to the tax, a penalty of such sum, not exceeding twice the amount of the quarterly tax or as the case may be, half of the amount of annual tax payable, as may be prescribed. The section also makes him liable to punishment of fine which may extend to fifty rupees and the amount of the tax due by him in respect of such vehicle together with penalty referred to above. The section also makes him liable to punishment of fine which may extend to fifty rupees and the amount of the tax due by him in respect of such vehicle together with penalty referred to above. R. 8 is the corresponding rule, which prescribes different penalties, according to the periods of default. S. 18 of the Taxation Act declares that if the tax due in respect of a transport vehicle is not paid within the prescribed period, the validity of the permit shall be come ineffective from the date of expiry of the said period until such time, the tax is actually paid. R. 9 of the Rules enables any inspecting officer having reason to believe, that a transport vehicle has been or is being used with a permit rendered ineffective under S. 18 of the Taxation Act to impound the certificate of registration, the permit and such other documents as he may consider necessary. 8. R. 172(6) of the Tamil Nadu Motor Vehicles Rules framed under the Motor Vehicles Act, 1988, makes a condition of permit of every transport vehicle that it should be so maintained as to be available for the service for which the permit was granted for the entire period of currency of the permit and the permit is liable to be suspended or cancelled after due notice to permit holder, if the vehicle has not been used for the purpose for which the permit was granted for a continuous period of more than ten days, unless the holder of the permit had obtained in writing the prior permission of the Transport Authority to suspend the service of the vehicle for a specific period exceeding ten days. The first Proviso to the Rule states that to holder of a permit shall ordinarily be granted permission to suspend the service of the vehicle for a continuous period exceeding twenty days at a time and the second proviso enables an extension of the said period by such further period or periods, as the Transport Authority thinks fit. The third proviso enjoins the permit holder to pay the fee prescribed in the Table under R. 279. Thus, if a person stops the vehicle without using it for the purpose for which the permit had been obtained, he is bound to inform the authorities and also apply for permission to suspend the service for any period exceeding ten days. The third proviso enjoins the permit holder to pay the fee prescribed in the Table under R. 279. Thus, if a person stops the vehicle without using it for the purpose for which the permit had been obtained, he is bound to inform the authorities and also apply for permission to suspend the service for any period exceeding ten days. R. 254 of the same Rules prescribes that if holder of a stage carriage or a contract carriage or goods carriage permit withdraws the vehicle from the service for any reason and does not restore the same to service within a period of ten days, he shall forthwith report the fact, the reason therefor and the expected period of withdrawal to the Regional Transport Authority concerned and shall also submit a report to that authority immediately on restoration of the vehicle to the service. R. 255 prescribes that the report should be in the Form SPB-Part A for transport vehicles. R. 256 clarifies that the submission of a report under R. 254 shall not prejudice the action, if any, that might be taken under law in respect of the permit for non-performance or irregular performance of the service authorised by the permit. 9. S. 13 of the Taxation Act provides for refund of tax if the vehicle had not been used on any public road during the whole of the quarter, half year or year or life time or a continuous part thereof not being less than one month, at such rates as may, from time to time, be notified by the Government and the same shall be payable on an application made within such period as may be prescribed and subject to such conditions as may be specified in such notification. Rr. 11 and 14 of the Taxation Rules relate to refund of tax. R. 11 prescribes rates at which refund should be granted. Rr. 12 and 13 prescribe the authority to whom the application for refund shall be made and the sanction thereof. R. 14 prescribes the conditions for refund of tax. Cl. (a) thereof provides that taxation licence shall be surrendered to the Regional Transport Officer concerned within seven days from the date of stoppage of the vehicle or a reasonable period thereafter. Cl. R. 14 prescribes the conditions for refund of tax. Cl. (a) thereof provides that taxation licence shall be surrendered to the Regional Transport Officer concerned within seven days from the date of stoppage of the vehicle or a reasonable period thereafter. Cl. (b) directs that the non-use of the vehicle shall be intimated in writing to the Regional Transport Authority concerned by Registered Post with acknowledgement due together with such reasons for the non-use and the details as to the place where the vehicle is garaged, within seven days from the stoppage of the vehicle or within a reasonable period and shall thereafter, and the surrender, in the case of transport vehicle, of the certificate of registration and permit. 10. A perusal of the above provisions clearly indicates that they have been framed with a particular scheme. A permit holder is bound to use the vehicle for the purpose for which the permit had been obtained and that is condition of the permit. If he is withdrawing the service even temporarily, and not utilising the permit, he is bound to inform the authorities and give all the relevant particulars. It is seen from the prescribed Form that he is bound to inform the date from which the vehicle is stopped, the place where the vehicle is kept and the probable date of resumption of service. He is also required to inform the last quarter for which tax had been paid and the date of expiry of the fitness certificate. If he does not do so, he is deemed to be using the vehicle or keeping it for use within the meaning of S. 3 of the Taxation Act. That is why a statutory fiction is introduce by R. 3 of the Taxation Rules. The holder of permit is deemed to use the vehicle or keep it for use, unless he acts under the relevant rules and gives information to the authorities concerned that the vehicle had been stopped and has not been used. The word ‘use’ referred to in S. 3 of the Taxation Act is not a legal use but a factual use. If a vehicle is used factually or kept for use factually, even though the owner of the vehicle is not entitled in law to use the same as such, he is bound to pay the tax as per S. 3 of the Taxation Act. If a vehicle is used factually or kept for use factually, even though the owner of the vehicle is not entitled in law to use the same as such, he is bound to pay the tax as per S. 3 of the Taxation Act. If he is genuinely not using the vehicle or not in a position to use the vehicle or not keeping the vehicle in use, he will certainly be entitled to exemption from payment of tax for the period during which the vehicle was not in use if he had furnished the necessary Information to the authorities prescribed. In the absence of his taking such action under the relevant rules, the law presumes that he is using the vehicle or keeping it for use. In such cases, he is bound to pay tax as levied under the Taxation Act. It is also to be noted that the tax is paid practically in advance for the period for which the vehicle is to be used. It should, in all cases, fie paid within the period prescribed, which happens to be in the beginning of the month, quarter or year. Hence in most of the cases where the vehicle is stopped without being used, the owner will be obliged to ask for refund as he would have already paid the tax for the period. That is why there are provisions for applying for the refund of tax. Those provisions show that when an application for refund is made, he is bound to surrender the licence. A reading of these provisions would lead to the conclusion that unless a person complies with the Rules relating to intimation of withdrawal of the vehicle from service, he is bound to pay tax and he cannot claim exemption therefrom. The burden is always on him to prove that the vehicle has not been used or not kept for use. 11. The language of Ss. 3, 4 and 8 of Taxation Act cast a duty on the owner of the vehicle to pay the tax himself. The quantum of tax is set out in the Schedule, unless altered by Government notification. The amount of tax is thus known already to the owner of the vehicle. The Taxation Act is not like Income Tax Act or Sales Tax Act, where an assessment has to be made on the basis of returns. The quantum of tax is set out in the Schedule, unless altered by Government notification. The amount of tax is thus known already to the owner of the vehicle. The Taxation Act is not like Income Tax Act or Sales Tax Act, where an assessment has to be made on the basis of returns. The tax is a fixed amount and it has to be paid within the periods specified, Even with regard to penalty, the rules themselves prescribe the amounts of penalty depending on the period of default. Here again, there is no necessity for any order of assessment as such. Consequently, an order directing payment of tax as well as penalty on default, does not require any previous notice to the person concerned. The person is very well aware that he had not paid the tax. If he has paid the tax already and a demand is mistakenly, it is always open to him to convince the authorities that he had paid the tax and yet a wrong demand is issued. If, on the other hand, his contention is that he is not liable to pay tax, it is for him to make out that case. Hence, there is no necessity whatever for issuing a show cause notice to the owner of the vehicle in order to call upon him to pay the tax, which he himself is bound to pay and the penalty for default in payment of tax. There is no question of any violation of principles of natural justice. It is a statutory liability cast on the owner of the vehicle and he should perform his duties properly. If he has failed to do so, he cannot claim that there is a violation of principles of natural justice in his not having been heard before the order is passed. The order is parsed only on the basis of the statutory prescription of which he is already aware. 12. Hence the first contention of the petitioner in the first petition that there is no show cause notice and there is violation of principles of natural justice, is without substance. Learned counsel placed reliance on the judgment of Nainar Sundaram, J. in B. Mahalakshmi v. The Regional Transport Officer, Salem and another W.P. No. 4078 of 1978, dt. 23-6-1981. 12. Hence the first contention of the petitioner in the first petition that there is no show cause notice and there is violation of principles of natural justice, is without substance. Learned counsel placed reliance on the judgment of Nainar Sundaram, J. in B. Mahalakshmi v. The Regional Transport Officer, Salem and another W.P. No. 4078 of 1978, dt. 23-6-1981. In that case, the authorities took the view that the vehicle was used as stage carriage, though the owner was having only an omni-bus carriage permits. She was directed to show cause why she should not pay tax on the basis that it was used as a stage carriage. She offered an explanation which was not accepted and an order was passed against her. That was challenged by her on the ground that she was not heard in person and an opportunity should have been given to her by the authorities. Reliance was placed on the judgment of Koshal. J. in Therasa Paulase v. The Regional Transport Authorities, Madurai and another W.P. No. 69 and 70 of 1974, dt. 18-11-1979, who held that an order which burdens a person with heavy pecuniary liability is quasi-judicial in character and could not be passed without affording an opportunity to the person concerned of being heard. Reference was also made to the judgment of Natarajan, J. in Raja Transport Firm v. The Regional Transport Officer, Madurai W.P. No. 4688 of 1976, dt. 4-10-1978 and the judgment of Mohan, J. in N. Subramaniam v. The Regional Transport Officer, Thanjavur W.P. No. 4733 of 1976, dt. 16-10-1978. The learned Judge relied on those judgments and held that the order was quasi-judicial in character and the petitioner ought to have been heard before it was passed. Consequently, he quashed the order. The facts of the said case are entirely different. The question whether a particular vehicle was used as stage carriage though the permit was only for an omni-bus carriage depended on several facts and circumstances. For deciding those facts and circumstances, an opportunity should have been given by the authorities to the party concerned. That ruling cannot have any bearing on the present case. 13. Learned counsel invites my attention to another judgment of the same learned Judge in Palanivel Roadways, Tirupattur v. The Regional Transport Officer, Madurai W.P. No. 1232 of 1981. For deciding those facts and circumstances, an opportunity should have been given by the authorities to the party concerned. That ruling cannot have any bearing on the present case. 13. Learned counsel invites my attention to another judgment of the same learned Judge in Palanivel Roadways, Tirupattur v. The Regional Transport Officer, Madurai W.P. No. 1232 of 1981. The question related to assessment of tax with regard to temporary permits issued for an idle vehicle belonging to the petitioner therein. The learned Judge quashed the demand on the ground that no opportunity was given to the petitioner to prove that the demand was on the basis of an incorrect assessment of tax. That judgment will also have no relevance to the present case. 14. My attention is drawn to my judgment in Padmini Selvaraj v. The Regional Transport Officer, Madras (North) W.P. No. 11419 of 1992, dt. 18-8-1992. That was also a case of demand for payment of tax after issue of a notice under S. 86 of the Act to show cause why the permit should not be cancelled. I directed the authorities to continue the enquiry pursuant to the show cause notice and pass orders thereon. I quashed the demand for tax. I rendered a similar judgment in G.J. Rajakannan v. The Regional Transport Officer, Madras Central W.P. No. 21295 of 1992, dt. 11-9-1992. In both the cases, I had taken the view that the demand for tax was not ordered by a notice to show cause and, therefore, they were unsustainable. When those cases were heard, counsel did not bring to my notice all the relevant provisions of the Act and the Rules. I did not have occasion to consider all the relevant Rules as there was not much of contest in those cases. I find that the view taken by me in those two cases is not in accord with the relevant provisions of the law. Hence, I consider that those two judgments were not based on the correct position of law. As I have pointed out earlier, the law does not require any show cause notice being issued before making a demand for payment of tax from the owner of the vehicle and the penalty which is consequent to default in payment. 15. The next contention is that the fitness certificates having expired, the petitioners have no liability to pay tax. As I have pointed out earlier, the law does not require any show cause notice being issued before making a demand for payment of tax from the owner of the vehicle and the penalty which is consequent to default in payment. 15. The next contention is that the fitness certificates having expired, the petitioners have no liability to pay tax. Reliance is placed on the judgment of a Division Bench of this Court in Sri Srinivasa Transports, Dindigul v. The Regional Transport Officer, Madurai and another 1977-I-MLJ 227. The judgment was based on the rules as they existed at that time. The relevant Act was Madras Motor Vehicles Taxation Act. 1931. That Act was amended by Act 33 of 1973. The original Act used the expression “use in a public road”. After the amendment the expression was “kept or used”, just as in the present Act. After the amendment Act came into force, the Government issued a notification providing for certain exemption in the case of vehicles that were kept as defined in the Act. R. 2 provided that a motor vehicle shall be deemed to be kept for use so long as the vehicle is covered by a permit or counter-signature. The rule was similar to the present R. 3. However, there were two Provisos. The first proviso was that in case of a transport vehicle, if the vehicle was not covered by a valid fitness certificate or a valid permit, it may be deemed that the vehicle was not kept for use as a transport vehicle and was not taxable as such. On the basis of the said Proviso, the Bench held that once the validity of the permit or the fitness certificate expired, the vehicle could not have been considered to have been kept for use and the owner did not incur any liability to pay tax. That proviso is absent in the present rules. Advisedly, it has been removed. Hence, the ruling of the Bench in that case will not help the petitioners herein. Even if the fitness certificate or permit is not valid, the vehicle shall be deemed to have been kept for use, under R. 3, if it is covered by a permit. I have already pointed out that S. 3 refers to the actual use and not the validity of the certificate or permit. 16. Even if the fitness certificate or permit is not valid, the vehicle shall be deemed to have been kept for use, under R. 3, if it is covered by a permit. I have already pointed out that S. 3 refers to the actual use and not the validity of the certificate or permit. 16. Learned counsel invites my attention to S. 38 of the Motor Vehicles Act which provides that a transport vehicle shall not be deemed to have been validly registered for the purpose of S. 39 of the Act unless it carries a certificate of fitness, insists upon registration of the vehicle in accordance with Chapter IV of Act and in the absence of such registration, no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place place. Reliance is placed on R. 47(1)(g) of the Central Motor Vehicles Rules. R. 47. provides for application for registration of motor vehicles to be made in Form 20. Cl. (g) of Sub-R. (1) refers to roadworthiness certificate in Form 22 from the manufacturers, which should accompany the application for registration. Neither the above sections nor the rule help the petitioners in the present case. Learned counsel submits that when there is a statutory bar against plying the vehicle without a valid permit or a valid licence, the owner of the vehicle cannot be made to pay tax under the provisions of the Taxation Act. There is no substance in this contention. The tax is based upon the actual user of the vehicle or the intention to use the vehicle factually. 17. R. 62 of the Central Motor Vehicles Rules provides for grant of certificate of fitness in respect of a transport vehicle in Form No. 38 and for its renewal for the periods indicated therein. The Rule also prescribes for a fee for the grant of renewal as specified in R. 81. That Rule also does not help the petitioners. Hence, the second contention must fall. 18. The third contention is that when a proceeding under S. 86 of the Motor Vehicles Act is taken or pending, there cannot be a demand for tax. There is no substance in this contention. That Rule also does not help the petitioners. Hence, the second contention must fall. 18. The third contention is that when a proceeding under S. 86 of the Motor Vehicles Act is taken or pending, there cannot be a demand for tax. There is no substance in this contention. The provisions of the Taxation Act and the Rules framed thereunder are enforceable in addition to the proceedings which may be initiated against the owner of the motor vehicle, who violates the conditions of permit. They are not actually exclusive. 19. Hence, the contentions of the petitioners are rejected. In so far as the petitioner in W.P. No. 19920 of 1992 is concerned, it should not be pointed out that he is not entitled to get any favourable order under Art. 226 of the Constitution of India, the grant of which is purely discretionary. The facts set out earlier amply prove that he failed to comply with the conditions imposed by this Court and he also misled this Court by giving an address at which he could not be found. If his claim that he was temporarily away when the notice for the enquiry was issued is true, the return would not have been with the endorsement “no such person”. Obviously, the petitioner in that case is not disclosing the truth to this Court. 20. In the result, both the writ petitions fail and they are dismissed. 21. W.P. Nos. 20476 of 1992 and 19920 of 1992— Srinivasan, J.:— The petitioner in W.P. No. 20476 of 1992 is permitted to pay the amount demanded in five equal monthly instalments. The first of such payments shall be made on or before 18.1.93 and similar payments on or before 18th of every succeeding month.