Kerala High Court
Sanithjan.S vs Union Of India on 6 November, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:82400
W.P.(C)No.26396/2024 & Conn.cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
WP(C) NO. 26396 OF 2024
PETITIONERS:
SANITHJAN.S,AGED 37 YEARS,S/O. SADEERJAN, PROPRIETOR,
KERALA LINES TRAVELS,JAIL ROAD, KOHIMA, NAGALAND-
797001, PRESENTLY HAVING ITS HEAD OFFICE AT 104/4,
HOSUR MAIN ROAD, MADIWALA, BANGALORE, PIN - 560068
BY ADVS.SRI. P DEEPAK (SR.)
P.RAMAKRISHNAN
MAHESH SANKARASUBBAN SAHASRANAMAN
PRATAP ABRAHAM VARGHESE
ASHOK MENON
RESPONDENTS:
1 UNION OF INDIA,THROUGH ITS SECRETARY, MINISTRY OF ROAD
TRANSPORT & HIGHWAYS, TRANSPORT BHAWAN, 1, PARLIAMENT
STREET, NEW DELHI, PIN - 110001
2 STATE OF KERALA,THROUGH ITS SECRETARY, TRANSPORT
DEPARTMENT, GOVERNMENT OF KERALA SECRETARIAT,
THIRUVANANTHAPURAM, KERALA, PIN - 695001
3 TRANSPORT COMMISSIONER,GOVERNMENT OF KERALA, TRANSPORT
COMMISSIONERATE, 2ND FLOOR, TRANS TOWERS, VAZHUTHACAUD,
THYCAUD P.O., THIRUVANANTHAPURAM, KERALA, PIN - 695014
BY ADV SHRI.K.S.PRENJITH KUMAR, CGC
OTHER PRESENT:
SRI. ARUN AJAY SHANKER -GOVERNMENT PLEADER
SRI. MOHAMMED RAFIQ (SPL GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION AND HAVING
BEEN FINALLY HEARD ON 21.8.2024, ALONG WITH WP(C).26607/2024,
26992/2024, THE COURT ON 6.11.2024 DELIVERED THE FOLLOWING:
2024:KER:82400
W.P.(C)No.26396/2024 & Conn.cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
WP(C) NO. 26607 OF 2024
PETITIONER:
A ONE TRAVELS,MARAI MALAI, ADIGAL SALAI, PUDUCHERY,
REPRESENTED BY ITS PARTNER/PROPRIETOR TAMILSELVI,
RESIDING AT 12, KEERTH IILLAM, ABIRAMI NAGAR, 2ND
CROSS, BHARATHIYAR ROAD, COMBATORE, TAMIL NADU, PIN -
605004
BY ADVS. SRI. P.DEEPAK (SR.)
P.RAMAKRISHNAN
MAHESH SANKARASUBBAN SAHASRANAMAN
PRATAP ABRAHAM VARGHESE
ASHOK MENON
RESPONDENTS:
1 UNION OF INDIA,THROUGH ITS SECRETARY, MINISTRY OF ROAD,
TRANSPORT & HIGHWAYS, TRANSPORT BHAWAN 1, PARLIAMENT
STREET, NEW DELHI, PIN - 110001
2 STATE OF KERALA,THROUGH ITS SECRETARY, TRANSPORT
DEPARTMENT, GOVERNMENT OF KERALA SECRETARIAT,
THIRUVANANTHAPURAM, KERALA, PIN - 695001
3 TRANSPORT COMMISSIONER,GOVERNMENT OF KERALA, TRANSPORT
COMMISSIONERATE, 2ND FLOOR, TRANS TOWERS, VAZHUTHACAUD,
THYCAUD P.O., THIRUVANANTHAPURAM, KERALA, PIN - 695014
BY ADV SHRI.K.S.PRENJITH KUMAR, CGC
OTHER PRESENT:
SRI. ARUN AJAY SHANKER -GOVERNMENT PLEADER
SRI. MOHAMMED RAFIQ (SPL GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION AND HAVING
BEEN FINALLY HEARD ON 21.8.2024, ALONG WITH WP(C).26607/2024,
26992/2024, THE COURT ON 6.11.2024 DELIVERED THE FOLLOWING:
2024:KER:82400
W.P.(C)No.26396/2024 & Conn.cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
WP(C) NO. 26992 OF 2024
PETITIONERS:
1 K.R. SURESHKUMAR,AGED 56 YEARS
S/O. (LATE) RAMAKRISHNAN, PROPRIETOR, M/S. KALLADA
TOURS & TRAVELS, A SECTOR, PO/PS, NAHARLAGUN, ARUNACHAL
PRADESH, PIN - 791110
2 SAJEEVKUMAR K.R.,AGED 54 YEARS,S/O.RAMAKRISHNAN,
KALLADA HOUSE, PATTAMALY ROAD, IRINJALAKUDA P.O.,
IRINJALAKUDA, (PART), THRISSUR DISTRICT, PIN - 680121
3 SHAJI NAIR,AGED 46 YEARS, S/O .K.V. NAIR, M/S TRAVELOG
VENTURES, MANAGING PARTNER, NO. 13, HOSUR ROAD, DRC
POST, NEAR MAHINDRA SHOWROOM, BANGALORE, KARNATAKA
STATE, PIN - 560029
BY ADVS.G.HARIHARAN
PRAVEEN.H.
K.S.SMITHA
B.R.SINDU
V.R.SANJEEV KUMAR
V.ROHITH
AFNA V.P.
RESPONDENTS:
1 UNION OF INDIA,REPRESENTED BY THE PRINCIPAL SECRETARY
TO GOVERNMENT, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS,
SAMSAD MARG, NEW DELHI, PIN - 100001
2 STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY
TO GOVERNMENT, TRANSPORT DEPARTMENT, NORTH BLOCK,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2024:KER:82400
W.P.(C)No.26396/2024 & Conn.cases 4
3 THE TRANSPORT COMMISSIONER,
TRANS TOWERS, VAZHUTHACAD, THIRUVANANTHAPURAM, PIN -
695014
4 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, GOPALAPURAM, PIN - 678101
5 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, WALAYAR, PALAKKAD, PIN -
678624
6 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, AMARAVILA,
THIRUVANANTHAPURAM, PIN - 695122
7 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, MUTHANGA, (VIA)
SULTHANBATHERY, WAYANAD DISTRICT, PIN - 673592
8 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, IRITTY, KANNUR DISTRICT, PIN
- 670703
9 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, ARYANKAVU, KOLLAM DISTRICT,
PIN - 691309
10 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, KATTIKULAM, WAYANAD DISTRICT,
PIN - 670646
11 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, MANJESWARAM, KASARAGOD
DISTRICT, PIN - 671323
BY ADV SHRI.K.S.PRENJITH KUMAR, CGC
OTHER PRESENT:
SRI. ARUN AJAY SHANKER -GOVERNMENT PLEADER
SRI. MOHAMMED RAFIQ (SPL GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION AND HAVING
BEEN FINALLY HEARD ON 21.8.2024, ALONG WITH WP(C).26607/2024,
26992/2024, THE COURT ON 6.11.2024 DELIVERED THE FOLLOWING:
2024:KER:82400
W.P.(C)No.26396/2024 & Conn.cases 5
C.R
JUDGMENT
[WP(C) Nos.26396/2024, 26607/2024, 26992/2024] These writ petitions have been filed challenging the demand and collection of tax under the provisions of the Kerala Motor Vehicle Taxation Act, 1976 (hereinafter referred to as the 1976 Act) on tourist vehicles holding a permit in terms of the provisions contained in the All India Tourist Vehicles (Permit) Rules, 2023 (hereinafter referred to as the 2023 Rules) which were brought into force in supersession of All India Tourist Vehicles (Authorisation or Permit) Rules, 2021 (hereinafter referred to as the 2021 Rules).
2. It is the case of the petitioners that upon the tourist vehicles operating in more than one State obtaining a permit under the provisions of the 2023 Rules, no further 'authorisation fee/border tax' can be collected under the provisions of the 1976 Act. According to the petitioners, the 2021 Rules provided for the collection of authorisation fees/border tax by respective State Governments for plying of tourist vehicles having an All India Permit within the respective States and the quantum of such authorisation fee/border tax was also specified in the 2021 Rules. It is stated that, on 18.04.2023, the Union of India, in exercise of the powers conferred by 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 6 sub-section (14) r/w. sub-section (9) of Section 88 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 1988 Act) and in supersession of the 2021 Rules brought into force the 2023 Rules doing away with the provision for collection of authorisation fee/border tax by the various States Governments from tourist vehicle operators holding a valid All India Permit. It is submitted that, through an advisory, all State Governments and Transport Commissioners of all the States and Union Territories were advised not to levy any other kind of taxes or fees from tourist vehicles holding a valid permit issued under the 2023 Rules. It is stated that some of the petitioners had earlier approached the Supreme Court of India by filing a petition invoking Article 32 of the Constitution of India which was subsequently disposed of permitting the respective petitioners to approach the High Court. It is submitted that Ext.P11 order has been issued by the Transport Commissioner (Kerala), without the authority of law, requiring the collection of tax under the provisions of the 1976 Act even in respect of vehicles holding a permit in terms of the 2023 Rules.
3. Sri. P. Deepak, the learned Senior Counsel appearing for the petitioners on the instructions of Adv. Mahesh Sankarasubban Sahasranaman contends that the demand for payment of tax under the 1976 Act in respect of vehicles holding a valid permit issued under the 2023 Rules is clearly illegal and unsustainable in law. It is submitted that Entry 57 of List II of the VIIth 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 7 Schedule to the Constitution of India which permits the State to make law for the levy of taxes on vehicles is expressly subject to the provisions of Entry 35 of List III which authorises making of law relating to mechanically propelled vehicles 'including the principles on which taxes on such vehicles had been levied'. It is submitted that the 2023 Rules is a piece of legislation traceable to Entry 35 of List III. It is submitted that by virtue of the provisions contained in Article 254 of the Constitution of India, Union legislation in respect of subjects specified in List III, whether earlier to or later to the State legislation, will prevail and the State legislation will, to the extent of inconsistency, be inoperative. He submits that the judgment of the Supreme Court in State of Assam and others v. Labanya Probha Devi; AIR 1967 SC 1575 has considered the two entries namely Entry 57 of List II and Entry 35 of List III and has held that the Entries deal with different matters, though the subjects appear to be allied ones. It is submitted that, while Entry 57 of List II deals with taxes on vehicles, Entry 35 of List III denotes rules of guidance in the matter of taxation. It is submitted that the 1976 Act does not contain any provision laying down any principles of taxation and therefore, it cannot be said that the 1976 Act is a 'ragbag' legislation drawing sustenance from both Entry 57 of List II and Entry 35 of List III. It is submitted that though the 1988 Act (a legislation relatable to Entry 35 of List III) contains no provision laying down any principle of taxation it is open to the delegate 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 8 under that legislation (the Union Government) to make rules laying down 'principles of taxation' and if it chooses to do so, the provisions of the 1976 Act would be subject to the same. It is submitted that the expression 'law made by Parliament/Legislature of a State' in Art.246 of the Constitution of India includes not only plenary legislation but also subordinate legislation and that subordinate legislation also answers to the definition of 'law'. The learned counsel placed reliance on the judgments of the Supreme Court in Edward Mills Company Ltd., Beawar and others v. State of Ajmer and another; AIR 1955 SC 25 and Jayantilal Amratlal Shodhan v. F.N. Rana and others; AIR 1964 SC 648 in support of this contention. He relied on the decisions of the Supreme Court in Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another v. Union of India and others; AIR 1960 SC 554, Uttar Pradesh Power Corporation Ltd. v. National Thermal Power Corporation Ltd; (2009) 6 SCC 235, Udai Singh Dagar and others v. Union of India and others; (2007) 10 SCC 306, State of Rajasthan and others v. Basant Nahata; (2005) 12 SCC 77 and St. Johns Teachers Training Institute v. Regional Director, NCTE and another; (2003) 3 SCC 321 to establish the status of a delegated legislation. He referred to the provisions of the 2023 Rules and the provisions of Sections 88(9), 88(14) and 212 of the 1988 Act and attempted to establish that the 2023 Rules is 'law' relatable to Entry 35 of List 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 9 III. It is submitted that, if the 2023 Rules qualify as a law under Entry 35 of List III, any law made by the State Legislature under Entry 57 of List II will be subject to the provisions of the 2023 Rules. It is submitted that the view taken by this Court while considering a similar plea on the basis of 2021 Rules in the interim order dated 8.11.2022 in W.P.(C)No.34572/2022 and connected cases is not the correct view in law and also that the principles culled out in that order from the decisions of the Supreme Court in Government of Andhra Pradesh and others v. P. Laxmi Devi (Smt); (2008) 4 SCC 720 and Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and others; (2006) 4 SCC 327 have no application to the facts of the present case. Lastly, he again referred to the provisions of Section 212 of the 1988 Act and to the effect of laying Rules before Parliament. He thus contends that the petitioners in these cases are entitled to the reliefs sought for in the respective writ petitions.
4. Since these Writ Petitions have not been admitted, Sri. Mohammed Rafiq, the learned Senior Government Pleader (Taxes) addressed arguments in the matter, with the permission of the Court. He contends that there is no provision in the 1988 Act which relates to taxes on motor vehicles. It is submitted that the view taken by this Court in the interim order dated 8.11.2022 in W.P.(C)No.34572/2022 and connected cases while dealing with the similar contention raised in the background of the 2021 Rules, is the 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 10 correct view to be taken in the matter. He submitted that an essential legislative function cannot be delegated. He placed reliance on the judgment of the Supreme Court in Basant Nahata (Supra) and Global Energy Ltd. and another v. Central Electricity Regulatory Commission; (2009) 15 SCC 570 in support of this contention. He also placed reliance on the judgment in P. Laxmi Devi (Supra) to reiterate that the subordinate legislation even if made under the provisions of the 1988 Act cannot override plenary legislation made by the State Legislature with reference to Entry 57 of List II. He also placed reliance on the judgment of this Court in U. A. Lathif v. State of Kerala; 2023 (6) KLT 183.
5. Having considered the submissions made across the bar, I am of the view that the petitioners have not made out any case for grant of relief.
6. The scope of Entry 57 of List II and Entry 35 of List III is beyond cavil. The words used clearly indicate the scope of both Entries. They offer no scope for an argument that they overlap in any manner. In Labanya Probha Devi (Supra) it was held:-
"11. The short question, therefore, is whether any of the provisions of the amending Acts is repugnant to any of the provisions of the existing law with respect to any of the matters enumerated in the Concurrent List. Under the existing law i.e. Act 9 of 1936, no motor vehicles could be used in the Assam 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 11 Province unless the owner thereof had paid in respect of it a tax at the appropriate rate specified in the Schedule to the Act and, save as therein specified, such tax should thereafter be payable annually notwithstanding that the motor vehicle might from time to time cease to be used (see Section 4). As aforesaid, the Schedule annexed to the principal Act was amended from time to time by different amending Acts and the rate was increased. Under the 1963 amending Act, apart from other provisions which do not relate to any principles of taxation, a new Schedule has been substituted. Neither the amending Act nor the Schedule laid down any principles of taxation in respect of motor vehicles. So too, the amending Act of 1966 substituted the Schedule of the Act by another Schedule. A perusal of the aforesaid Schedule only discloses that different rates were fixed; that is to say, the amended Schedule does not lay down any principles on which taxes on motor vehicles are to be levied within the meaning of Entry 35 of the Concurrent List; it is solely concerned with taxes on vehicles within the meaning of Entry 57 of List II. The two entries deal with two different matters though allied ones -- one deals with taxes on vehicles and the other with the principles on which such taxes are to be levied. When two entries in the Constitution, whether in the same List or different Lists, deal with two subjects, if possible, an attempt shall be made to harmonize them rather than to bring them into conflict. Taxes on vehicles in their ordinary meaning connote the liability to pay taxes at the rates at which the taxes are to be levied. On the other hand, the expression "principles of taxation" denotes rules of guidance in the matter 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 12 of taxation. We, therefore, hold that the amending Acts do not come into conflict with the existing law in respect of any principles of taxation, but only deal with a subject-matter which is exclusively within the legislative competence of the State Legislature. In this view, there is no scope for the application of Article 254 of the Constitution."
Entry 57 of List II reads thus:-
"57. Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III."
Entry 35 of List III reads thus:-
"35. Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied."
Entry 57 of List II thus enables the State Legislature to make a law for the imposition of 'Taxes on vehicles......'. It is true that Entry 57 of List II is expressly made subject to any legislation made under Entry 35 of List III. However, the contention that the 1976 Act should be subject to the 2023 Rules is only to be rejected. It must be noted that the 2023 Rules is a piece of subordinate legislation framed in the exercise of the powers conferred by sub- section (14) r/w sub-section (9) of Section 88 of the 1988 Act. It is not even contended before me that the 1988 Act contains any provision relating to taxation. Therefore, even if it were to be assumed that the words 'principles 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 13 on which taxes on such vehicles had been levied' in Entry 35 of List III includes the power to regulate and fix the tax payable by tourist vehicles holding an All India Permit; in the absence of any taxing provision in the 1988 Act, it must be held that no tax can be imposed by the authority of the subordinate legislation. This point seems settled by the ratio of Bimal Chandra Banerjee v. State of Madhya Pradesh, (1971) 81 ITR 105 where it was held:-
"14. No tax can be imposed by any bye-law or rule or regulation unless the statute under which the subordinate legislation is made specially authorises the imposition even if it is assumed that the power to tax can be delegated to the executive. The basis of the statutory power conferred by the statute cannot be transgressed by the rule-making authority. A rule-making authority has no plenary power. It has to act within the limits of the power granted to it."
This issue can be considered from another angle. The fact that the Union Parliament may legislate with reference to Entry 35 of List III does not lead to the conclusion that its delegate (here the Union Government) can make Rules without any enabling power in the parent statute (here the 1988 Act). This issue was considered by the Supreme Court in Kerala Samsthana Chethu Thozhilali Union (Supra) and it was held:-
"48. The High Court, furthermore, in our opinion, is not correct in tracing the legislative power of the State to Entries 23 and 24 of List III of the Seventh Schedule of the Constitution. The legislative field 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 14 contained in the Seventh Schedule of the Constitution provides for field of plenary power of the legislature but what a legislature can do, evidently, a delegatee may not, unless otherwise provided for in the statute itself."
Thus the contention that in the light of the legislative power conferred by Entry 35 of List III and in the light of the fact that the authority of the State Legislature under Entry 57 of List II is expressly subject to any law made under Entry 35 of List III, the 2023 Rules will override the provisions of the 1976 Act, is only to be rejected. For the same reason, the question of the application of the provisions of Article 254 of the Constitution of India does not arise. In fact, the decision in Labanya Probha Devi (Supra) is itself authority for the proposition that Article 254 has no application in the facts of the present case.
7. I had the occasion to consider a challenge (on almost identical grounds) in the context of the 2021 Rules in W.P(C)No. 34572 of 2022 & connected cases. While declining interim relief in those cases it was held:-
" I cannot read the provisions of the All India Rules in isolation and without reference to the constitutional scheme of legislation. The Constitution of India is the "grundnorm" [Kelsen - The Pure Theory of Law). In Govt. of A.P. and others v. P. Laxmi Devi, (2008) 4 SCC 720 it was held:-
"32. According to Kelsen, in every country there is a 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 15 hierarchy of legal norms, headed by what he calls as the 'Grundnorm' (The Basic Norm). If a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer the former will prevail (see Kelsen's "The General Theory of Law and State').
33. In India the Grundnorm is the Indian Constitution, and the hierarchy is as follows.
(i) The Constitution of India:
(ii) Statutory law, which may be either law made by Parliament or by the State Legislature;
(iii) Delegated legislation, which may be in the form of Rules made under the Statute, Regulations made under the Statute, etc.;
(iv) Purely executive orders not made under any statute.
34. If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the Directive Principles which, by Article 37, have been expressly made non- enforceable)."
2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 16 Therefore, the provisions of the All India Rules will have to be interpreted only in terms of legislative power......"
As already noticed, the 2023 Rules have been expressly framed with reference to the provisions of Section 88 of the 1988 Act. A reading of Section 88 of the 1988 Act does not indicate that the provision has anything to do with the imposition of a tax and even if it were to be assumed for a moment that the scope of the words "....principles on which taxes on such vehicles are to be levied" in Entry 35 of List III to the Constitution of India includes the power to prescribe a tax in respect of vehicles holding All India Permit, it must be held that the 2023 Rules are ultra vires the provisions of Section 88 of the 1988 Act and therefore, no mandamus can be sought to enforce it.
8. There is yet another aspect of the matter. Subordinate legislation is not only required to be in conformity with the plenary legislation under which it is framed but it must also be in conformity with all other plenary legislation made by Parliament or the State Legislature. If any other view is taken, it would result in a situation where it would have to be conceded that by subordinate legislation made by the delegate under a particular legislation, a plenary law made by a competent legislature could be rendered inoperative. In Indian Express Newspapers (Bombay) (Pvt) Ltd. and others v. Union of India and others, (1985) 1 SCC 641 it was held:-
2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 17 "75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. ............" (emphasis is mine).
On similar lines is the decision of the Supreme Court in Kerala Samsthana Chethu Thozhilali Union (Supra), where it was held:-
"17. A rule is not only required to be made in conformity with the provisions of the Act whereunder it is made, but the same must be in conformity with the provisions of any other Act, as a subordinate legislation cannot be violative of any plenary legislation made by Parliament or the State Legislature."
Thus, it is not possible to hold that a Rule made in exercise of the rule-making power under the provisions of the 1988 Act, can tinker with or control the tax imposed by plenary legislation, namely the 1976 Act. In other words, the 2023 Rules must not only answer to the provisions of the 1988 Act but would also be answerable to the provisions of the 1976 Act.
9. The contention of the learned Senior Counsel for the petitioners 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 18 that subordinate legislation also answers to the definition of 'law' cannot be doubted. However, in the light of the findings rendered above, that fact does not come to the aid of the petitioners. Similarly, the decisions cited to establish the status of delegated legislation and the fact that Rules framed by the Central Government under the 1988 Act have to be laid before Parliament also does not come to the aid of the petitioners. The requirement of laying of such Rules before Parliament does not sanctify the 2023 Rules and it cannot be held that a procedure of 'laying' will result in those Rules operating in the face of the provisions of the plenary legislation namely the 1976 Act.
No other point has been raised. The writ petitions fail and they are dismissed in limine.
Sd/-
GOPINATH P. JUDGE acd 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 19 APPENDIX OF WP(C) 26396/2024 PETITIONER EXHIBITS Exhibit P-1 TRUE COPY OF REGISTRATION CERTIFICATE OF VEHICLE NO. NL 01 B 1663 ALONG WITH THE CHALLANS CONFIRMING PAYMENT OF THE AUTHORIZATION FEE / BORDER TAX ISSUED BY GOVERNMENT OF TAMIL NADU Exhibit P-2 TRUE COPY OF ALL INDIA TOURIST VEHICLES (AUTHORISATION OR PERMIT) RULES 2021 PUBLISHED IN THE GAZETTE OF INDIA ON 11/3/2021 Exhibit P-3 TRUE COPY OF ALL INDIA TOURIST VEHICLES (PERMIT) RULES 2023 PUBLISHED IN THE GAZETTE OF INDIA ON 18/4/2023 Exhibit P-4 TRUE COPY OF ADVISORY DATED 4/8/2023 ISSUED BY THE 1ST RESPONDENT Exhibit P-5 TRUE COPY OF ORDER DATED 31/7/2023 ISSUED BY THE HONOURABLE SUPREME COURT IN WP (S) CIVIL NO. 756/2023 Exhibit P-6 TRUE COPY OF COUNTER-AFFIDAVIT DATED 20/11/2023 FILED BY THE 2ND RESPONDENT IN WP (S) CIVIL NO. 864/2022 BEFORE THE HONOURABLE SUPREME COURT Exhibit P-7 TRUE COPY OF COUNTER-AFFIDAVIT DATED 13/11/2023 DEHORS ANNEXURE FILED BY THE 1ST RESPONDENT IN WP (S) CIVIL NO. 864/2022 Exhibit P-8 TRUE COPY OF REJOINDER DATED 29/1/2024 FILED BY THE PETITIONER IN WP(S) NO. CIVIL NO.
756/2023 BEFORE THE HONOURABLE SUPREME COURT Exhibit P-9 TRUE COPY OF WRITTEN SUBMISSION DATED 20/2/20224 SUBMITTED BY THE PETITIONER IN WP(S) NO. CIVIL NO. 756/2023 Exhibit P-10 TRUE COPY OF JUDGMENT DATED 9/7/2024 IN WP (S) CIVIL NO. 864/2022 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 20 Exhibit P-11 TRUE COPY OF ORDER DATED 18/7/2024 ISSUED BY THE 3RD RESPONDENT 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 21 APPENDIX OF WP(C) 26607/2024 PETITIONER EXHIBITS Exhibit P-1 TRUE COPY OF REGISTRATION CERTIFICATE ALONG WITH THE PERMIT AND CHALANS OF THE VEHICLE BEARING REGISTRATION NO. PY-01 CZ 2154 Exhibit P-2 TRUE COPY OF ALL INDIA TOURIST VEHICLES (AUTHORISATION OR PERMIT) RULES 2021 PUBLISHED IN THE GAZETTE OF INDIA ON 11/3/2021 Exhibit P-3 TRUE COPY OF ALL INDIA TOURIST VEHICLES (PERMIT) RULES 2023 PUBLISHED IN THE GAZETTE OF INDIA ON 18/4/2023 Exhibit P-4 TRUE COPY OF ADVISORY DATED 4/8/2023 ISSUED BY THE 1ST RESPONDENT Exhibit P-5 TRUE COPY OF COUNTER-AFFIDAVIT DATED 20/11/2023 FILED BY THE 2ND RESPONDENT IN WP (C) NO.
864/2022 BEFORE THE HONOURABLE SUPREME COURT Exhibit P-6 TRUE COPY OF COUNTER-AFFIDAVIT DATED 13/11/2023 DEHORS ANNEXURE FILED BY THE 1ST RESPONDENT IN WP (C) NO. 864/2022 Exhibit P-7 TRUE COPY OF REJOINDER DATED 29/1/2024 FILED IN WP (C) NO. 756/2023 BEFORE THE HONOURABLE SUPREME COURT DEHORS ANNEXURE.
Exhibit P-8 TRUE COPY OF JUDGMENT DATED 9/7/2024 IN WP (C) NO. 864/2022 Exhibit P-9 TRUE COPY OF ORDER DATED 18/7/2024 ISSUED BY THE 3RD RESPONDENT 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 22 APPENDIX OF WP(C) 26992/2024 PETITIONER EXHIBITS Exhibit P1 . A TRUE COPY OF THE LIST OF 61 NO'S OF ALL INDIA PERMIT VEHICLES OWNED AND OPERATED BY THE 1ST PETITIONER Exhibit P2 A TRUE COPY OF THE LIST OF 3 NO'S OF ALL INDIA PERMIT VEHICLES OWNED AND OPERATED BY THE 2ND PETITIONER Exhibit P3 A TRUE COPY OF THE DETAILS OF 14 NO'S OF ALL INDIA PERMIT VEHICLES OWNED AND OPERATED BY THE 3RD PETITIONER Exhibit P4 A TRUE COPY OF THE GAZETTE NOTIFICATION NO.GSR.302 (E) DATED 18.04.2023 ISSUED BY THE 1ST RESPONDENT Exhibit P5 A TRUE COPY OF THE COMMUNICATION DATED 04.08.2023 ISSUED BY THE 1ST RESPONDENT Exhibit P6 A TRUE COPY OF THE NOTIFICATION DATED 06.06.2023 ISSUED BY THE 2ND RESPONDENT Exhibit P7 A TRUE COPY OF THE SCHEDULE ATTACHED TO THE KERALA MOTOR VEHICLE TAXATION ACT, 1976 AS AMENDED BY FINANCE ACT, 2020 (ACT 7 OF 2020) WHICH WAS COME INTO FORCE FROM 01.04.2020 Exhibit P8 A TRUE COPY OF THE MINUTES OF THE 35TH MEETING OF THE TRANSPORT DEVELOPMENT COUNCIL HELD AT NEW DELHI ON 12.12.2013 A TRUE COPY OF THE MINUTES OF THE 35TH MEETING OF THE TRANSPORT DEVELOPMENT COUNCIL HELD AT NEW DELHI ON 12.12.2013 Exhibit P9 A TRUE COPY OF THE 36TH MEETING OF THE TRANSPORT DEVELOPMENT COUNCIL HELD ON 28.10.2014 Exhibit P10 A TRUE COPY OF THE GOVERNMENT NOTIFICATION NO.GSR166E DATED 10.03.2021 ISSUED BY THE 1ST RESPONDENT Exhibit P11 A TRUE COPY OF THE COMMON ORDER PASSED BY THE HON'BLE SUPREME COURT OF INDIA IN CONNECTION WITH WRIT PETITION NO.864/2022 ALONG WITH 117 OTHER CASES ON 09.07.2024 Exhibit P12 A TRUE COPY OF THE CIRCULAR DATED 18.07.2024 ISSUED BY THE 3RD RESPONDENT Exhibit P13 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 7TH RESPONDENT ON 25.07.2024 FOR A SUM OF RS.10,500/- FOR THE PERIOD 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 23 FROM 25.07.2024 TO 31.07.2024 VIDE RECEIPT NO.KLT2407256875577 IN THE NAME OF 1ST PETITIONER FOR VEHICLE NO.AR-01J-1387 ON 25.07.2024 Exhibit P14 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 6TH RESPONDENT ON 25.07.2024 FOR A SUM OF RS.11,100/- FOR THE PERIOD FROM 25.07.2024 TO 31.07.2024 VIDE RECEIPT NO.KLT2407256881892 IN THE NAME OF 1ST PETITIONER FOR VEHICLE NO.AR-01J-4160 Exhibit P15 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 7TH RESPONDENT ON 26.07.2024 FOR A SUM OF RS.10,500/- FOR THE PERIOD FROM 26.07.2024 TO 01.08.2024 VIDE RECEIPT NO.KLT2407266936838 IN THE NAME OF 1ST PETITIONER FOR VEHICLE NO.AR-01J-1392 ON 26.07.2024 Exhibit P16 . A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 20.07.2024 FOR A SUM OF RS.11,300/- COLLECTED AS RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM OF CESS FOR THE PERIOD FROM 21.07.2024 TO 27.07.2024 VIDE RECEIPT NO.KLT2407206572014 IN THE NAME Exhibit P17 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 19.07.2024 FOR A SUM OF RS.11,300/- COLLECTED AS RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM OF CESS FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024 VIDE RECEIPT NO.KLT2407196517230 IN THE NAME OF THE 3RD PETITIONER FOR VEHICLE NO.KA-51AJ-9996 ON 19.07.2024 Exhibit P18 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 19.07.2024 FOR A SUM OF RS.11,300/- COLLECTED AS RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM OF CESS FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024 VIDE RECEIPT NO.KLT2407196517009 IN THE NAME OF THE 3RD PETITIONER FOR VEHICLE NO.NL-01B1040 ON 19.07.2024 Exhibit P19 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 20.07.2024 FOR A SUM OF RS.10,800/- COLLECTED IN THE FORM OF MV TAX FOR THE PERIOD FROM 21.07.2024 TO 27.07.2024 VIDE RECEIPT NO.KLT2407206572361 IN THE NAME OF THE 3RD PETITIONER FOR VEHICLE NO.NL-01B-1041 ON 20.07.2024 Exhibit P20 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 19.07.2024 FOR A SUM OF RS.10,500/- COLLECTED AS RS.10,000/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM OF CESS FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024 VIDE RECEIPT NO.KLT2407196514188 IN THE NAME OF THE 3RD PETITIONER FOR VEHICLE NO.NL-01B-2516 ON 19.07.2024 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 24 Exhibit P21 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 19.07.2024 FOR A SUM OF RS.11,000/- COLLECTED AS MV TAX FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024 VIDE RECEIPT NO.KLT2407196513057 IN THE NAME OF THE 3RD PETITIONER FOR VEHICLE NO.NL-01B-2028 ON 19.07.2024 Exhibit P22 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 20.07.2024 FOR A SUM OF RS.7,200/- COLLECTED IN THE FORM OF MV TAX FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024 VIDE RECEIPT NO.KLT2407206570784 IN THE NAME OF THE 3RD PETITIONER FOR VEHICLE NO.NL-01B-2029 ON 20.07.2024 Exhibit P23 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 20.07.2024 FOR A SUM OF RS.10,500/- COLLECTED AS RS.10,000/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM OF CESS FOR THE PERIOD FROM 21.07.2024 TO 27.07.2024 VIDE RECEIPT NO.KLT2407206571456 IN THE NAME OF THE 3RD PETITIONER FOR VEHICLE NO.NL-01B-2517 ON 20.07.2024 Exhibit P24 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 19.07.2024 FOR A SUM OF RS.11,300/- COLLECTED AS RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM OF CESS FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024 VIDE RECEIPT NO.KLT2407196516812 IN THE NAME OF THE 3RD PETITIONER FOR VEHICLE NO.NL-01B-2684 ON 19.07.2024 Exhibit P25 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 20.07.2024 FOR A SUM OF RS.11,300/- COLLECTED AS RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM OF CESS FOR THE PERIOD FROM 21.07.2024 TO 27.07.2024 VIDE RECEIPT NO.KLT2407206572574 IN THE NAME OF THE 3RD PETITIONER FOR VEHICLE NO.NL-01B-2685 ON 20.07.2024 Exhibit P26 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT ON 20.07.2024 FOR A SUM OF RS.9,500/- COLLECTED AS RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM OF CESS FOR THE PERIOD FROM 21.07.2024 TO 27.07.2024 VIDE RECEIPT NO.KLT2407206586129 IN THE NAME OF THE 3RD PETITIONER FOR VEHICLE NO.PY-01CT-4199 ON 20.07.2024 Exhibit P27 A TRUE COPY OF THE AFFIDAVIT DATED 26.07.2024 SWORN TO BY THE 1ST PETITIONER IN THE FORM OF AN UNDERTAKING BEFORE THIS HON'BLE COURT AS DIRECTED BY THE HON'BLE SUPREME COURT OF INDIA Exhibit P28 A TRUE COPY OF THE AFFIDAVIT DATED 26.07.2024 SWORN TO BY THE 2ND PETITIONER IN THE FORM OF AN UNDERTAKING BEFORE THIS HON'BLE COURT AS DIRECTED BY THE HON'BLE SUPREME COURT OF INDIA 2024:KER:82400 W.P.(C)No.26396/2024 & Conn.cases 25 Exhibit P29 A TRUE COPY OF THE AFFIDAVIT DATED 26.07.2024 SWORN TO BY THE 3RD PETITIONER IN THE FORM OF AN UNDERTAKING BEFORE THIS HON'BLE COURT AS DIRECTED BY THE HON'BLE SUPREME COURT OF INDIA.