Kerala High Court
C.S.Sudhan vs The Regional Trasnport Offier on 18 December, 2020
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942
WP(C).No.23334 OF 2019(N)
PETITIONER/S:
C.S.SUDHAN
MANAGER, M/S.PRASUHAAA METALS, XII/23A, ERICADU,
PUTHUPPALLY P.O., KOTTAYAM-686011.
BY ADVS.
SRI.G.HARIHARAN
SRI.PRAVEEN.H.
RESPONDENT/S:
1 THE REGIONAL TRASNPORT OFFIER
CIVIL STATION, KOTTAYAM-686001.
2 JOINT REGIONAL TRANSPORT OFFICER,
SUB REGIONAL TRANSPORT OFFICE, CIVIL STATION,
THRIPUNITHURA-682301.
3 THE TRANSPORT COMMISSIONER,
TRANS TOWER, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.
R1-3 BY GOVERNMENT PLEADER
OTHER PRESENT:
SR GP SRI C K GOVIND
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11-12-2020, ALONG WITH WP(C).27006/2019(A), THE COURT ON 18-12-
2020 DELIVERED THE FOLLOWING:
WP(C).No.23334 OF 2019(N) AND CONTD. CASE
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942
WP(C).No.27006 OF 2019(A)
PETITIONER/S:
C.S.SUDHAN
MANAGER, M/S. PRASUHAA METALS, XII/23A, ERICADU,
PUTHUPPALLY P.O, KOTTAYAM 686 011
BY ADVS.
SRI.G.HARIHARAN
SRI.PRAVEEN.H.
SMT.K.S.SMITHA
SRI.V.R.SANJEEV KUMAR
RESPONDENT/S:
1 THE REGIONAL TRANSPORT OFFICER,
CIVIL STATION, KOTTAYAM 686 001
2 JOINT REGIONAL TRANSPORT OFFICER,
SUB REGIONAL TRANSPORT OFFICE, CIVIL STATION,
TRIPUNITHURA 682 301
3 THE TRANSPORT COMMISSIONER,
TRANS TOWER, VAZHUTHACAUD,
THIRUVANANTHAPURAM 695 014
4 MINISTRY OF ROAD TRANSPORT AND HIGHWAYS,
TRANSPORT BHAWAN, 1, PARLIAMENT STREET, NEW DELHI
110 001, REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, MINISTRY OF ROAD TRANSPORT AND HIGWAY
R1-3 BY GOVERNMENT PLEADER SRI. B.HARISH KUMAR
R4 BY SRI.JAGATH. N., CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11-12-2020, ALONG WITH WP(C).23334/2019(N), THE COURT ON
18-12-2020 DELIVERED THE FOLLOWING:
WP(C).No.23334 OF 2019(N) AND CONTD. CASE
3
JUDGMENT
Dated this the 18th day of December 2020 This order of mine shall dispose of two writ petitions, whereby identical question and prayer has been sought. The facts are being taken from W.P.(C)No.23334 of 2019. Petitioner is the Manager of M/s Parshuhaa Metals who was appointed in the firm on 15.6.2014. The owner of the firm purchased a tempo traveller vehicle for private service and approached for registration of the vehicle. When the registration of the said vehicle was refused by the authority, the petitioner preferred W.P.(C) No.37499 of 2010. Pursuant to the interim order in this case, Ext.P2 dated 23.12.2010 the vehicle was provisionally registered assigning registration No.KL-05AB-5555 as a non-transport vehicle (Private service vehicle for own use) and a life time tax of Rs.63,250/- was paid. The aforementioned writ petition was disposed of vide judgment dated 25.06.2014 Ext.P4 by noticing that a new tax structure was proposed for Caravan/Camper Van as per the WP(C).No.23334 OF 2019(N) AND CONTD. CASE 4 amendment brought in by the Kerala Finance Bill, 2014 and therefore the tax payable by the petitioner would have to be revised on that structure. The petitioner was directed to produce the certified copy of the judgment and the original registration certificate before the Taxation authority concerned with a period of three weeks from the date of receipt of the judgment, upon which suitable endorsement shall be made in the registration certificate.
2. The learned counsel appearing for the petitioner submits that the first respondent had not made any changes in the tax structure apart from the collection of life time tax. On many occasions the vehicle was seized alleging the same being used as Caravan and paid additional taxes as evidenced from receipts Exts. P5, P6 and P7. A circular No.14/2013 dated 27.6.2013 was issued by the Joint Transport Commissioner enforcement wherein specific instructions have been issued relating to the collection of tax for vehicles used campers van specifying that if the Campers van/Caravan vehicles are registered under the Non Transport Vehicle Category, life time tax prescribed for Private Service Vehicle for personal use WP(C).No.23334 OF 2019(N) AND CONTD. CASE 5 would be levied. In view of the passing of the finance bill 2014 Motor Vehicle Taxation Act was amended and a new provision has been added to the existing tax structure by including caravan/camping trailer in serial No. 11(iii) of the schedule was attached whereby a lumpsum of Rs.1000 for every square metre or part thereof the floor area was fixed as tax. Respondents instead of rescheduling of the tax structure in terms of the directions contained in the judgment Ext.P4 vehicle had been subjected to frequent interceptions. It is in this background, the petitioner has sought the indulgence of this Court for issuance of a writ in the nature of mandamus commanding the first respondent to reschedule the tax structure of the vehicle bearing registration No.KL-AB-5555 applicable to caravan vehicles taking note of the observations made in Exhibit P4 judgment and to adjust the tax amount of Rs.1,69,730/-. There is no justification on the part of the respondents for frequent interception. During the pendency of the writ petition, a show cause notice Ext.P10 dated 26.9.2019 has been issued by the first respondent proposing to invoke Section 53 of the Motor Vehicles Act dealing with suspension WP(C).No.23334 OF 2019(N) AND CONTD. CASE 6 of registration. It is in that background the petitioner was compelled to file other writ petition ie., W.P.(C) No.27006 of 2019. This Court while issuing notice in the said writ petition had already stayed the operation of Ext.P10.
3. On the other hand, learned Government Pleader opposes the writ petition by submitting that the petitioner has not complied with the directions contained in the judgment; he was directed to produce original registration certificate within three weeks from the date of receipt of Ext.P4 judgment. But neither the same has been produced nor required fees for making changes in the certificate of registration has been remmitted. As per Section 7 of the Kerala Motor Vehicle Taxation Act, the motor vehicle in respect of which tax has been paid is altered used or proposed to be used, in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable, the registered owner or the person having possession or control of such vehicle shall pay an additional tax of a sum equal to the difference between the tax already paid and the tax liable to be paid. The vehicle in question was WP(C).No.23334 OF 2019(N) AND CONTD. CASE 7 being exigible to personal service vehicle tax, when it was found that it had been altered and used as a Caravan, additional tax was demanded. It is in that background notice Ext.P10, for suspension of the previous registration has been issued as the petitioner failed to comply with the directions contained in Ext.P4. In support of the contentions, the judgment of the Hon'ble Supreme Court in Regional Transport Officer & Others. v. K. Jayachandra and Another (Civil Appeal No.219222 of 2019) whereby the dictum laid down by the Division Bench of this Court was set aside, and relied that there cannot be an alteration specified by the manufacturer for the purpose of entry in the certificate of registration. However in the instant case, the seats installed in the Van had been removed and used as Caravan. There is no structural change ie., width, length and hight / overhang of the vehicle. However the structural changes had not been verified as the petitioner failed to produce the vehicle. In other words, the original specifications provided by the manufacturer, in view of Section 52(1) of the Motor Vehicle Act cannot be altered and urged this Court for dismissal of the WP(C).No.23334 OF 2019(N) AND CONTD. CASE 8 writ petition. It was next contended that the Division Bench by noticing Rule 96 and 103 of the Kerala Motor Vehicles Rules 1989 held that alteration was not prohibited as its alteration can always be on inspection of the vehicle and satisfaction by issuing a fresh measurement certificate in Form MC but the same was not accepted in the judgment of the Supreme Court.
4. I have heard the learned counsel for the parties and appraised the paper book. The Division Bench of this Court in W.P.(C) No.29946 of 2006 and W.P.(C) No.8836 of 2007 arrived at a conclusion that structural alteration is permissible as per the provisions of Kerala Rules. But Supreme Court by noticing the amended provisions of Section 52 of Motor Vehicles Act, 1988 as well as Rule 126 of the Central Rules which deals with prototype of the every motor vehicle subject to test, held that alteration is impermissible. It would be apt to reproduce the operative part of the judgment rendered by the Hon'ble Supreme Court ibid.
The vehicle has to comply with the provisions of the Rules contained in Chapter V of the Central Rules as provided in Rule 92(1). Rule 92(1) has to be read as subservient to the provisions contained in section 52 of the WP(C).No.23334 OF 2019(N) AND CONTD. CASE 9 Act and what is prohibited therein to allow the same is not the intendment of the rules contained in the Chapter. Various provisions in Chapter V are additional safeguards to what is prohibited in section 52(1) that is to say, what has been specified originally by the manufacturers and once that has been entered in the particulars in the certificate of registration, cannot be varied. No vehicle can be altered so as to change original specification made by manufacturer. Such particulars cannot be altered which have been specified by the manufacturer for the purpose of entry in the certificate of registration. It is provided in Rule 126 of the Central Rules, prototype of every type of vehicle is subject to test. The provisions of Rule 126 intend for fitness of vehicle to be plied on the road by the agencies which are specified therein. Approval and certification of motor vehicles for compliance to these rules shall be in accordance with the AIS: 017- 2000. Rule 93 deals with overall dimensions of the motor vehicles such as width, length, height, overhang etc. No doubt about it that the vehicle has to be in conformity with the rules also but Rules cannot be so interpreted so as to permit the alteration as prohibited under section 52(1) of the Act. The alteration under the Rules is permissible except as prohibited by section 52. The specification of the rules would hold good with respect to the matters as not specifically covered under section 52(1) and not specified therein by manufacturer. The emphasis of section 52(1) is not to vary the "original specifications by the manufacturer". Remaining particulars in a certificate of registration can be modified and changed and can be noted in the certificate of registration as provided in section 52(2), (3) and (5) and the Rules. Under section 52(5), in case a person is holding a vehicle on a hire purchase agreement, he shall not make any alteration except with the written consent of the original owner.
33. In our considered opinion the Division Bench in the impugned judgment of the High Court of Kerala has failed to give effect to the provisions contained in section 52(1) and has emphasized only on the Rules. As such, the decision rendered by the Division Bench cannot be said to be laying down the law correctly. The Rules are subservient to the provisions of the Act and particulars in certificate of registration can also be changed except to the extent of the entries made in the same as per the specifications originally made by the manufacturer. Circular No.7/2006 is also to be read in that spirit. Authorities to act accordingly. WP(C).No.23334 OF 2019(N) AND CONTD. CASE 10
34. Resultantly, the impugned judgment cannot be sustained and is hereby set aside. The appeals are allowed.
5. The question of payment of tax in respect of a vehicle, which being used as personal service vehicle, as reflected in the registration certificate Ext.P3, has been classified as LMV-PSV Prsnl Use; if found by the authorities to be used as Caravan, whether it would amount to a structural alteration or an internal, can only be verified when the vehicle is produced for inspection. However, in the instant case there is no such pleadings qua compliance of directions of this court Ext.P4 or vehicle was brought for inspection to the notice of the registering authority for finalization of the registration number. It is in that background a show cause notice by complying with the provisions of Section 53 for suspension of registration has been issued. In my view, no further direction can be issued or action of the respondents can be questioned in as the petitioner would be at liberty to apprise the authorities in view of the provisions of the law as well as the judgment referred to above as to whether the vehicle can be registered with an alteration or not or subjected to additional tax. WP(C).No.23334 OF 2019(N) AND CONTD. CASE 11 Accordingly, I dispose of the writ petition directing the respondents to afford an opportunity of hearing to the petitioner in contemplation of show cause notice dated 26.9.2019 and take a call by complying with the principles of natural justice.
Sd/-
AMIT RAWAL
sab JUDGE
WP(C).No.23334 OF 2019(N) AND CONTD. CASE 12 APPENDIX OF WP(C) 23334/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT LETTER DATED 15.06.2014 ISSUED IN THE NAME OF THE PETITIONER AS THE MANAGING OF M/S.PRASUHAAA METALS.
EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED 23.12.2010 IN W.P.(C) NO.37499/2019.
EXHIBIT P3 TRUE COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE NO.KL-05AB-5555 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT MADE IN W.P. (C)NO.37499/2010 DATED 25.06.2014.
EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 01.07.2017 ISSUED BY THE 2ND RESPONDENT FOR RS.49600/- AS ADDITIONAL TAX FOR THE VEHICLE MENTIONED IN EXHIBIT P3.
EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 01.07.2017 ISSUED BY THE 2ND RESPONDENT FOR RS.6500/- AS ADDITIONAL TAX FOR THE VEHICLE MENTIONED IN EXHIBIT P3.
EXHIBIT P7 TRUE COPY OF THE ENDORSEMENT MADE BY THE 1ST RESPONDENT FOR HAVING RECEIVED A SUM OF RS.50380/- FROM THE PETITIONER.
EXHIBIT P8 TRUE COPY OF THE CIRCULAR NO.14/2013 DATED 27.06.2013 ISSUED BY THE TRANSPORT COMMISSIONER.
EXHIBIT P9 TRUE COPY OF THE RELEVANT PORTION RELATING TO THE INCLUSION OF TAX STRUCTURE RELATING TO CAMPERS VAN UNDER ACT 29/2014 VIDE NOTIFICATION DATED 23.07.2014.
WP(C).No.23334 OF 2019(N) AND CONTD. CASE 13 APPENDIX OF WP(C) 27006/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT LETTER DATED 15-06-2014 ISSUED IN THE NAME OF THE PETITIONER AS THE MANAGING OF M/S. PRASUHAA METALS EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED 23-12- 2010 IN W.P(C) NO. 37499/2019 EXHIBIT P3 TRUE COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE NO. KL-05AB- 5555 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE JUDGMENT MADE IN W.P(C) NO. 37499/2010 DATED 25-06-2014 EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 01-07-2017 ISSUED BY THE 2ND RESPONDENT FOR RS. 49,600/- AS ADDITIONAL TAX FOR THE VEHICLE MENTIONED IN EXHIBIT P3 EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 01-07-2017 ISSUED BY THE 2ND RESPONDENT FOR RS. 6500/- AS ADDITIONAL TAX FOR THE VEHICLE MENTIONED IN EXHIBIT P3 EXHIBIT P7 TRUE COPY OF THE ENDORSEMENT MADE BY THE 1ST RESPONDENT FOR HAVING RECEIVED A SUM OF RS. 50,380/- FROM THE PETITIONER EXHIBIT P8 TRUE COPY OF THE CIRCULAR NO. 14/2013 DATED 27-06-2013 ISSUED BY THE TRANSPORT COMMISSIONER EXHIBIT P9 TRUE COPY OF THE RELEVANT PORTION RELATING TO THE INCLUSION OF TAX STRUCTURE RELATING TO CAMPERS VAN UNDER ACT 29/2014 VIDE NOTIFICATION DATED 23-07-2014 EXHIBIT P10 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 26-09-2019 ISSUED BY THE 1ST RESPONDENT PROPOSING TO INVOKE ACTION U/S. 53 OF THE MOTOR VEHICLES ACT EXHIBIT P11 TRUE COPY OF THE GOVERNMENT ORDER DATED 28- WP(C).No.23334 OF 2019(N) AND CONTD. CASE 14 02-2019 ISSUED BY THE 4TH RESPONDENT VIDE NOTIFICATION NO. RT 11036/06/2019 MVL.