Madras High Court
G.Winston vs The Secretary To The Government Of India on 24 September, 2020
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 W.P.(MD)No.5450 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.09.2020
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.5450 of 2020
G.Winston ... Petitioner
Vs.
1.The Secretary to the Government of India,
Ministry of Transport & Highways,
No.1, Parliament Street, Transport Bhawan,
New Delhi-110 001.
2.The Secretary to the Government of India,
Ministry of Heavy Industries and Public Enterprises,
(Department of Heavy Industry)
Room No.428, Udyog Bhavan,
New Delhi-110011.
3.The Transport Commissioner,
Transport Department,
Chepauk, Chennai-5.
4.The Regional Transport Officer,
RTO Office, Nagercoil,
situated at,
Pandarapuram, Thovalai Taluk,
Nagercoil, Kanyakumari District.
5.Derik Hyundai Motors,
Rep by its General Manager,
Nagercoil.
6.The Principal Secretary to Government
Transport Department,
http://www.judis.nic.in
1/12
2 W.P.(MD)No.5450 of 2020
Fort Saint George,
Chennai.
(R6 is suo motu impleaded
vide order dated 24.09.2020) ... Respondents
Prayer: Writ petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the records
relating to the impugned order dated 22.01.2020 vide his proceedings in
Lr.R.No.1223/C1/2020 passed by the fourth respondent and quash the
same as illegal and consequently, direct the fourth respondent to register
the petitioner's new Hyundai- i10 Car with auto clutch, a modern version
of Automatic Transmission without insisting the petitioner to produce
retro fitment certificate within a time frame as fixed by this Court and
grant life tax exemption as to the CARS for the disabled persons.
For Petitioner : Mr.T.Arul
For R1 & R2 : Mr.S.Jeyasingh
CGSC
For R3, R4 & R6 : Mr.S.Angappan
Government Advocate
For R5 : Mr.Xavier Rajini
ORDER
Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents 1 & 2 and the learned Government Advocate appearing for R3, R4 & R6 and the learned counsel appearing for the fifth respondent. http://www.judis.nic.in 2/12 3 W.P.(MD)No.5450 of 2020
2.The petitioner is a differently abled person. His left lower limb suffered polio attack. He is practising as a physiotherapist at Nagercoil. He had undergone higher education in Australia. He is having an independent professional practise. The petitioner purchased Hyundai Santro Car bearing Registration No.TN 74 K 4794 in the year 2006. The said vehicle had automatic transmission facility. The petitioner produced the vehicle before the Regional Transport Officer, Nagercoil who certified it as 'Invalid Carriage' in the R.C.Book. The petitioner was also exempted from payment of life tax.
3.The said Car had become old and the petitioner exchanged the same for a new Hyundai- i10 Car on 10.04.2019. When he approached the fourth respondent for registration, the fourth respondent insisted that the petitioner should effect modification by taking the vehicle to a Retro Fitment Centre.
4.The petitioner took the stand that the vehicle purchased by him does not require any modification and that, therefore, there was no need to go to the Retro Fitment Centre for adaptation. In this regard, the petitioner submitted a formal representation dated 03.01.2020 to the http://www.judis.nic.in 3/12 4 W.P.(MD)No.5450 of 2020 fourth respondent. The fourth respondent by the impugned communication dated 22.01.2020 took the stand that the vehicle purchased by the petitioner does require retro-fitment. The petitioner was called upon to make alteration as directed and produce the vehicle along with the certificate of such alteration. Only thereafter, the vehicle will be registered. It is this communication that has been put to challenge in this writ petition.
5.The fourth respondent had filed a detailed counter affidavit, in which, the reasons set out in the impugned communication have been reiterated. The petitioner had also filed a rejoinder.
6.The prayer made in the writ petition is in two parts. The petitioner demands that the fourth respondent should not insist on production of any Retro Fitment certificate. The second part of the prayer is that the vehicle in question should be granted life tax exemption.
7.The petitioner's counsel drew my attention to the definition of the terms “adapted vehicle” and “invalid carriage” as defined in http://www.judis.nic.in 4/12 5 W.P.(MD)No.5450 of 2020 Section 2(1) and 2(18) of the Motor Vehicles Act, 1988. Sections 2(1) and 2(18) of the Motor Vehicles Act, 1988, read as follows:-
“2(1).“adapted vehicle” means a motor vehicle either specially designed and constructed, or to which alterations have been made under sub-section(2) of Section 52, for the use of a person suffering from any physical defect or disability, and used solely by or for such person;
2(18).“invalid carriage” means a motor vehicle specially designed and constructed, and not merely, adapted, for the use of a person suffering from some physical defect or disability, and used solely by or for such a person.”
8.He thereafter pointed out that G.O.Ms.No.3352, Home (Transport-T) Department, dated 29.12.1976, grants exemption from payment of tax leviable under Tamil Nadu Motor Vehicles Taxation Act, 1974 for all motor vehicles specially designed or adapted for the use of physically handicapped persons provided that the adapted vehicles are used by the physically handicapped persons only. The petitioner's counsel also relied on the decision of the Division Bench of the Andhra Pradesh High Court reported in 2007 (1) ALD 252 (Lakshmi Reddy Vs. State of Andhra Pradesh) and High Court of Rajasthan in Vijay Raj Khariwal Vs. Union of India (Civil Writ Petition No.2697 of 2005), dated 26.04.2020. He also pointed out that the Union Government had http://www.judis.nic.in 5/12 6 W.P.(MD)No.5450 of 2020 issued clear instructions exempting physically disabled persons, from being levied with GST in such cases.
9.Per contra, the learned Government Advocate submitted that the impugned order is very much in consonance with the statutory provisions set out in the Motor Vehicles Act and the aforesaid G.O and that the impugned order does not call for any interference.
10.I carefully considered the rival contentions and went through the materials on record.
11.The first question that arises for my consideration is whether the vehicle purchased by the petitioner herein warrants retro fitment. The petitioner's lower left limb alone is afflicted with polio and his right limb is very much fit to drive.
12.The petitioner's counsel draw my attention to the communication bearing No.TT-11021/40/2014-MVL, dated 15.06.2016. The said communication issued by the Ministry of Transport and Highways, Government of India, categorically states that for those http://www.judis.nic.in 6/12 7 W.P.(MD)No.5450 of 2020 persons having disability in the left lower limb, any Automatic Car or Geared Car with Auto Clutch is the recommended type of vehicle. In other words, persons with the aforesaid disability can very well drive such Cars. It is not in dispute that Hyundai i10 vehicle is an automatic Car and it is having Auto Clutch. In other words, a person having disability in the left lower limb need not have to use that limb at all. Therefore, the fourth respondent is clearly wrong in insisting that the petitioner's vehicle has to be retrofitted.
13.I, therefore, have no hesitation to quash this portion of the impugned communication. It is quashed accordingly. The fourth respondent will register the petitioner's vehicle and the petitioner cannot be called upon to produce the Retro Fitment Certificate sought for by the fourth respondent.
14.The second question that arises for my consideration is whether the petitioner can demand exemption from payment of life time tax. To decide this issue, I have to go only by the exemption circular issued by the Government of Tamil Nadu. The said circular reads as follows:-
http://www.judis.nic.in 7/12 8 W.P.(MD)No.5450 of 2020 “ Government of Tamil Nadu Abstract Motor Vehicles – Taxation - Motor Vehicles adapted for use of physically handicapped persons – Exemption from payment of tax – ordered.
Home (Transport – T) Department G.O.Ms.No.3352 dated 29th December 1976 Read again: G.O.Ms.No.1932, Home, dated 19/7/72 Read also: From Thiru H.Ramakrishna Iyer, Assistant Information Officer, Press Information Bureau, Letter dated 23.09.76 and 25.09.76.
ORDER The following notification will be published in the Tamil Nadu Government Gazette.
Notification In exercise of the powers conferred by sub-section (1) of Section 20 of the Tamil Nadu Motor Vehicles Taxation Act, 1974 (Tamil Nadu Act 13 of 1974) and in supersession of the Home Department Notification S.R.O.No.11-1 No.4027 of 1972, dated 19th July 1972 published at Page No.769 in Part II Section I of the Tamil Nadu Government Gazette, dated 16th August 1972, the Governor of Tamil Nadu hereby exempts from the payment of tax leviable under the said Act, all motor vehicles specially designed or adapted for the use of physically handicapped persons provided that the adapted vehicles are used by the physically handicapped persons only.
The exemption hereby shall come into force on the from 1st January 1977.
2.This order issues with the concurrence of the Finance Department vide its U.O.No.153960/F/HII/76-1, dated 20.11.76.
K.Subrahmanyam Commissioner and Secretary to Government To The Transport Commissioner, Madras-600 005.
All Regional Transport Authorities/All Regional Transport Officers, The Accountant General, Madras-600 018.
http://www.judis.nic.in 8/12 9 W.P.(MD)No.5450 of 2020
15.The circular states that all motor vehicles specially designed or adapted for the use of physically handicapped persons and used by them would be entitled to exemption from the levy of the said tax. In the case on hand, there is no dispute that the vehicle in question is used by the petitioner herein. Therefore, the petitioner does fulfill the second requirement set out in the G.O.Ms.No.3352, Home (Transport-T) Department, dated 29.12.1976.
16.Now the only question that has to be answered by me is whether the vehicle purchased by the petitioner can be categorized as motor vehicle specially designed or adapted for the use of physically handicapped persons. Even though the learned counsel appearing for the petitioner made an earnest attempt to persuade me to accede to his view point, I regret my inability. Hyundai i10 can be used by any person. It cannot be called as vehicle specially designed or adapted for the use of physically handicapped person. In other words, Hyundai i10 is a vehicle which a normal person or a differently abled person like the petitioner can drive. It has not been specially adapted or designed for the use of differently abled persons. The technological design of the vehicle is such that the physical disability of the petitioner will not come in the way of http://www.judis.nic.in 9/12 10 W.P.(MD)No.5450 of 2020 driving the vehicle. Use of the vehicle by the petitioner by itself will not make it an invalid carriage. On the other hand, the vehicle must be specially designed or adapted to address the needs of the physically challenged person. Such is not the case here. It is a car designed for all. Incidentally, it suits the petitioner also. The petitioner is an incidental beneficiary. He is not a targeted beneficiary. Therefore, the other requirement set out in G.O.Ms.No.3352, Home (Transport-T) Department, dated 29.12.1976 is not satisfied.
17.Of-course, issue regarding the mode of interpretation did arise in this case. A beneficial provision must be expansively and liberally construed so that the intended beneficiaries reap the fruits. But it is equally well settled that a provision exempting payment of tax must be strictly interpreted and if there is any ambiguity, the benefit must go not to the assessee but to the revenue. The G.O in question is not however torn by such conflicting interpretations. It poses a factual and straight-forward question. Is the vehicle “specially designed” or “adapted” for the use of physically handicapped persons?”. “special” is something different from what is normal. “Specially” means “for a particular purpose or person” (Oxford Advanced Learner's Dictionary 9th http://www.judis.nic.in 10/12 11 W.P.(MD)No.5450 of 2020 edition). P Ramanatha Aiyar's 'Advanced Law Lexicon' defines the word 'special' as follows:-
“Special. Designed for a particular purpose.
Exceptional in character, quality or degree, appointed or employed for a particular purpose or occasion, relating to a single thing.” Black's Law Dictionary also defines 'special' as 'unusual' or 'extraordinary'. Since the expression “specially” bears such a connotation, the vehicle in question cannot fall within the scope of the G.O.
18.Therefore, I am not able to accept the petitioner's request for granting exemption from the payment of life time tax. This Writ Petition is partly allowed. No costs.
24.09.2020
Index : Yes / No
Internet : Yes/ No
rmi
Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. http://www.judis.nic.in 11/12 12 W.P.(MD)No.5450 of 2020 G.R.SWAMINATHAN,J.
rmi To:
1.The Secretary to the Government of India, Ministry of Transport & Highways, No.1, Parliament Street, Transport Bhawan, New Delhi-110 001.
2.The Secretary to the Government of India, Ministry of Heavy Industries and Public Enterprises, (Department of Heavy Industry) Room No.428, Udyog Bhavan, New Delhi-110011.
3.The Transport Commissioner, Transport Department, Chepauk, Chennai-5.
4.The Regional Transport Officer, RTO Office, Nagercoil, situated at, Pandarapuram, Thovalai Taluk, Nagercoil, Kanyakumari District.
5.The Principal Secretary to the Government Transport Department, Fort Saint George, Chennai.W.P.(MD)No.5450 of 2020
24.09.2020 http://www.judis.nic.in 12/12