049-NLR-NLR-V-75-DHARMAWARDENA-Appellant-and-THE-GOVERNMENT-AGENT-PUTTALAM-Respondent.pdf
DEHERAGODA, J.—Dharmawardcna v. The Government Agent, Puttalam 275.
1972Present; Deheragoda,J.
DHARMAWARDENA, Appellant, and THE GOVERNMENT AGENT,PUTTALAM, Respondent
8. C. 909170—M. C. Puttalam, 8745
Beany Oil Motor Vehicles Taxation Ordinance—Sections 2 (7) and 4 U)—Tax dueunder the Ordinance—Recovery of it—Incompetence .of Magistrate to question' defaulter's liability.
A Government Agent issued to a Magistrate a certificate in terms of seotion4(1) of the Heavy Oil Motor Vehioles Taxation Ordinance for the recovery fromthe appellant of a sum of money as tax due from him for the period 1st October• 1963 to 31st December 1965 in respect of a motor vehicle. It was submittedbefore the Magistrate that the vehiole was a land vehicle and was, therefore ,exempted from taxation by virtue of the proviso to section 2 (1) of (heOrdinance.
Held, that it was not competent to the Magistrate, at the stage of executionproceedings, to question the liability of the defaulter.
VPPEAL from an aider of the Magistrate’s Court, Pattalam.
M.8. M. Nazeem, for the accused-appellant.
D. P, 8. Ounasekera, Counsel for State, for the Attorney-General.
A
Our. adv. mill.
July 4,1972. Dehbbagoda, J.—
This appeal arises from the issue of a certificate by the GovernmentAgent of the Administrative District of Puttalam to the Magistrate undersection 4 (1) of the Heavy Oil Motor Vehicles Taxation Ordinance inrespect of mojbor vehicle No. 25 Sri 1497 for the period 1.10.63 to 31.12.65for the recovery from the appellant of a sum of Rs. 4,075'36 as tax duefrom him under that Ordinance.
The'certificate complies with the provisions of the section including astatement to the effect that the notice required by subsection (2) of thatsection has been duly served on the appellant and a period .of seven dayshas elapsed since the date of service of that notice.
Upon receipt of this certificate the learned Magistrate had orderedsummons to be issued on the appellant. The appellant appeared beforethe learned Magistrate and took up the position that the certificate wasnot valid and that it was bad in law. The main ground which learned
270 DEHERAGODA. J.—Dharmawardena v. The Government Agent, PuttcUam
counsel who appeared for the appellant before the learned Magistrateurged for the invalidity of the certificate is that the appellant was not adefaulter for the reason that the vehicle in question was a land vehiclewithin the meaning of section 2 of the Heavy Oil Motor Vehicles TaxationOrdinance, that it had been so registered at the Office of the Registrar■of Motor Vehicles, and that it was so licensed for the years 1963 to 1966.He further submitted that it had been used as a land vehicle during thatperiod. Proviso (6) to section 2 (1) of the Ordinance exempts from taxa-tion under the Ordinance any vehicle in respect of which the GovernmentAgent is satisfied that the vehicle is registered as a land vehicle and thatit is used exclusively for agricultural purposes. It had been admittedthat the appellant was the registered owner of the vehicle, that a noticehad been served on the appellant, and that seven days had elapsed sincethe service of that notice. He had also admitted that the particularscontained in the certificate were correct. The sole ground therefore uponwhich the appellant resisted the payment was that the vehicle was regis-tered as a land vehicle and that it was exclusively used for agriculturalpurposes during the relevant period. He had sought to place before thelearned Magistrate proof of these two facts and the learned Magistratehas held that he has no power to reagitate the correctness of the tax or theliability of the defaulter in view of the decisions reported in Abdvlatty v.Assistant Government Agent, Jaffna 1 (68 N.L.R. 168), and in the case ofThe Attorney-General v. Jayasinghe 2 reported in 71 N.L.R. 285. He hastherefore disallowed the appellant’s application inviting the Court toinquire into the correctness of the Government Agent’s decision, andordered distress warrant to be issued for the recovery of the amountstated in the certificate.
Learned counsel for the appellant cited a number of cases in support ofthe view that an opportunity should be given to the appellant to show thathe was npt a defaulter within the meaning of the Heavy Oil Motor Vehi-cles Taxation Ordinance, because the vehicle in respect of which thecertificate had been issued was a land vehicle and that it was exclusivelyused for agricultural purposes during the period for which the tax wassought to be recovered. The cases cited by learned counsel relate tothe recovery of the amount of an award made by an arbitrator underthe Co-operative Societies Ordinance under rules made thereunder, therecovery of tax dueler the Income Tax Ordinance, and the enforcement
of an order of eviction under the Paddy Lands Act. The provisions ofenactments which have been interpreted in these cases are materiallydifferent from the provision in the Heavy Oil Motor Vehicles TaxationOrdinance and are therefore of no assistance in the interpretation of
1 (1964) 68 If. L. B. 168.
* (1968) 11 N. L. R. 285
DEHERAGODA, J.—Dharmawardena v. The Government Agent, Puttaiam 277
this provision of that Ordinance. He argues that wherever the Courthas refused to give an opportunity to an aggrieved person to challengethe statement in a certificate filed in Court, such decision has been basedon the existence of salutary provisions in those enactments to grant ahearing before a certificate could be issued, and that the provisions ofthe Heavy Oil Motor' Vehicles Taxation Ordinance do not provide anopportunity of being heard to a person who is sought to be taxed underthat Ordinance. I do not agree. The proviso to section 2 (1) of theOrdinance requires the Government Agent to satisfy himself as to whethera vehicle is registered as a land vehicle and whether it has been usedexclusively for agricultural purposes if an exemption is claimed in respectof that vehicle under that section. Section 4 (2) requires the GovernmentAgent, before he issues his certificate to the Magistrate, to serve a noticeon the defaulter calling upon him to pay the amount of the unpaid taxwithin a period of seven days from the service of such notice. Thisprovision is obviously meant to enable the person upon whom the noticehas been served, if he is resisting payment, to make representations tothe Government Agent lhat he is not a defaulter within the meaning ofthe Act. If the Government Agent is satisfied that the vehicle is a landvehicle which has been used exclusively for agricultural purposes, hewould at that stage decide not to issue a certificate to the Magistrate.If, however, he is not so satisfied he would, after the lapse of the stipulatedseven days, file a certificate in the Magistrate’s Court. The duty ofsatisfying himself has been imposed by the Legislature on the GovernmentAgent and it is not, in my view, competent to the Magistrate to considerthat question at the stage he is called upon to direct the amount to berecovered as though it were a fine imposed by him on the defaulter.Section 4 only requires him to be satisfied that the seven days’ noticerequired by subsection (2) has been duly served on the defaulter and thata period of seven days has elapsed since the date of the service of thatnotice. If the case of the appellant is that the Government Agent hasnot aoted bona fide in purporting to be satisfied that the vehicle was nota land vehicle or that it was not used exclusively for agricultural purposes,or that he was influenced by extraneous circumstances in arriving athis decision, then other remedies would have been available to him atthat time.
Learned Counsel for State brings to my notice that the appellant hasinvited the interference of this Court by coming before this Court byway of appeal when he has no right of appeal; and as he has no right ofappeal, the appeal should be dismissed.
I have considered this appeal on its merits with a view to grantingrelief, acting in revision, if a case had been made out by the appellantfor such relief. For the reasons I have given, I am in entire agreementwith the learned Magistrate, and I dismiss this appeal accordingly.
Appeal dismissed.