Kerala High Court
Musthaffa K.K vs Assistant Motor Vehicle Inspector on 20 December, 2013
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY,THE 20TH DAY OF DECEMBER 2013/29TH AGRAHAYANA, 1935
WP(C).No. 14305 of 2012 (K)
----------------------------
PETITIONER :
--------------------
MUSTHAFFA K.K.,
KURUNCHOOR HOUSE,
P.O.CHIRAMANGAD, THRISSUR.
BY ADV. SRI.P.RAMAKRISHNAN
RESPONDENT(S) :
----------------------------
1. ASSISTANT MOTOR VEHICLE INSPECTOR
SUB REGIONAL TRANSPORT OFFICE, WADAKKANCHERY
THRISSUR-680 582.
2. JOINT REGIONAL TRANSPORT OFFICER
SUB REGIONAL TRANSPORT OFFICE, WADAKKANCHERY
THRISSUR-680 582.
R1 & R2 BY SR. GOVT. PLEADER SRI. NOBLE MATHEW
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-03-2013,
ALONG WITH WP(C) NO. 14726/2012 & CONNECTED CASES, THE COURT
ON 20-12-2013 DELIVERED THE FOLLOWING:
Mn
...2/-
WP(C).No. 14305 of 2012 (K)
APPENDIX
PETITIONERS' EXHIBITS :
-------------------------------------
EXT.P1 : TRUE COPY OF NOTICE DTD.13.6.2012 ISSUED BY THE 2ND
RESPONDENT.
EXT.P2 : TRUE COPY OF RECEIPT ISSUED IN THE NAME OF SRI.JOSEPH FOR
THE PERIOD 1.4.2011 TO 30.6.2011.
EXT.P3 : TRUE COPY OF REGISTRATION CERTIFICATE IN THE NAME OF
JINU MOHAN.
EXT.P4 : TRUE COPY OF CONTRACT PERMIT IN THE NAME OF JINU MOHAN.
EXT.P5 : TRUE COPY OF REGISTRATION CERTIFICATE ISSUED IN THE
PETITIONER'S NAME.
EXT.P6 : TRUE COPY OF CONTRACT PERMIT ISSUED IN THE PETITIONER'S
NAME.
RESPONDENTS' EXHIBITS :
----------------------------------------
EXT.R2(a) COPY OF THE RC PARTICULARS OBTAINED FROM THE OFFICE OF
THE JOINT REGIONAL TRANSPORT OFFICER, PARASSALA OF THE
VEHICLE BEARING REGISTRATION NO. KL-01-S-4585.
EXT.R2(b) COPY OF THE REGISTRATION PARTICULARS OF THE VEHICLE
BEARING REGISTRATION NO. KL-01-S-4585 AS ENTERED IN THE
RECORDS OF THE OFFICE OF THE JOINT REGIONAL TRANSPORT
OFFICER, WADAKKANCHERY.
EXT.R3(a) COPY OF THE RC PARTICULARS RECEIVED FROM SUB REGIONAL
TRANSPORT OFFICE, THODUPUZHA.
EXT.R3(b) COPY OF THE REPORT OF THE JOINT REGIONAL TRANSPORT
OFFICER, IRINJALAKKUDA.
EXT.R3(c) COPY OF THE RC PARTICULARS RECEIVED FROM SUB REGIONAL
TRANSPORT OFFICE, KARUNAGAPPALLY.
EXT.R3(d) COPY OF THE REPORT OF THE JOINT REGIONAL TRANSPORT
OFFICER, IRINJALAKKUDA.
EXT.R3(e) COPY OF THE RC PARTICULARS RECEIVED FROM SUB REGIONAL
TRANSPORT OFFICE, THALIPARAMBA.
EXT.R3(f) COPY OF THE REPORT OF THE JOINT REGIONAL TRANSPORT
OFFICER, IRINJALAKKUDA.
(Contd...)
WP(C).No. 14305 of 2012 (K)
EXT.R3(g) COPY OF THE RC PARTICULARS RECEIVED FROM SUB REGIONAL
TRANSPORT OFFICE, NEDUMANGAD.
EXT.R3(h) COPY OF THE REPORT OF THE JOINT REGIONAL TRANSPORT
OFFICER, IRINJALAKKUDA.
EXT.R3(i) COPY OF THE RC PARTICULARS RECEIVED FROM SUB REGIONAL
TRANSPORT OFFICE, PALA.
EXT.R3(j) COPY OF THE REPORT OF THE JOINT REGIONAL TRANSPORT
OFFICER, IRINJALAKKUDA.
EXT.R3(k) COPY OF THE RC PARTICULARS RECEIVED FROM SUB REGIONAL
TRANSPORT OFFICE, MAVELIKKARA.
EXT.R3(l) COPY OF THE REPORT OF THE JOINT REGIONAL TRANSPORT
OFFICER, IRINJALAKKUDA.
EXT.R3(m) COPY OF THE RC PARTICULARS RECEIVED FROM SUB REGIONAL
TRANSPORT OFFICE, KOLLAM.
EXT.R3(n) COPY OF THE REPORT OF THE JOINT REGIONAL TRANSPORT
OFFICER, IRINJALAKKUDA.
EXT.R3(o) COPY OF THE FIR IN CRIME NO. 237 OF 2012 OF IRINJALAKKUDA
POLICE STATION.
//TRUE COPY//
P.S. TO JUDGE
Mn
"CR"
Thottathil B.Radhakrishnan
&
B.Kemal Pasha, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = = = WPC.Nos.14305 of 2012-K, 14726 of 2012-M, 14891 of 2012-J, 15068 of 2012-G, 15533 of 2012-N, 16393 of 2012-Y, 16524 of 2012-M, 16554 of 2012-T, 16581 of 2012-W, 16720 of 2012-L, 16721 of 2012-M, 16722 of 2012-M, 17158 of 2012-T, 17163 of 2012-U, 17164 of 2012-U, 17173 of 2012-V, 19915 of 2012-L, 23208 of 2012-A, 23559 of 2012-T, 24004 of 2012-A, 24063 of 2012-G, 24252 of 2012-F, 24393 of 2012-Y & 27829 of 2012-C = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of December, 2013.
Judgment Thottathil B.Radhakrishnan, J.
1. These writ petitions are before the Division Bench on a reference made by a learned single Judge stating that there is conflict between the observations in Vishwanatha Menon v. Addl. Registering Authority [1998(2) KLT 112 (FB)] and the findings in W.A.No.1560 of 2012 as regards the liability to pay tax under the Kerala Motor Vehicles Taxation Act, 1976, hereinafter referred to as the "KMVT Act", for short.
wpc14305/12 & con.cases -: 2 :-
2.Heard the learned counsel for the petitioners and the learned Special Government Pleader for the Department of Taxes. While the learned counsel for the petitioners argued that the tax liability under the KMVT Act is dependent on the availability of seats to carry passengers, the learned Special Government Pleader argued that the tax liability is dependent on the seating capacity and it cannot be treated as variable depending upon whether the operator removes the existing seats or fixes additional seats.
3. In Vishwanatha Menon (supra), the Full Bench considered the question relating to jurisdiction of registering authority under Section 52 of the Motor Vehicles Act, 1988, for short, "MV Act", in matters relating to grant of permission for alteration of the motor vehicle and whether an application for altering the seating capacity can be refused for the reason that it would adversely wpc14305/12 & con.cases -: 3 :- affect the interest of revenue. The question whether an application for altering the seating capacity can be refused for the reason that it would adversely affect the interest of revenue was declined to be answered since according to the learned Judges, such issue did not arise for consideration on the facts of that case. In answering the question regarding the jurisdiction of the registering authority in relation to grant of permission for alteration of motor vehicle, three aspects were pointedly noted on the basis of the governing statutory rules. Stage carriage vehicles are not vehicles with ready-made body built by manufacturers themselves. In so far contract carriage vehicles with bodies manufactured by the manufacturers themselves and having a definite seating capacity as designed by the manufacturer, it was held that no permission was necessary under Section 52 of the MV Act to reduce the number of seats as by such reduction, no alteration has to be made in the entry wpc14305/12 & con.cases -: 4 :- regarding 'seating capacity' in the certificate of registration and the 'seating capacity' in such cases would continue to be the same irrespective of the reduction in the number of actual seats. The Division Bench in W.A.No.1516 of 2010 is seen to have proceeded on the same footing, that is to say, that the tax liability due on a contract carriage will depend upon the seating capacity as shown in the R.C.book. There are some observations in Vishwanatha Menon (supra) touching the provisions relating to rate of tax. However, the conclusion of those discussions as reflected in paragraphs 16 to 18 of that judgment as reported in KLT was to the effect that no permission is necessary under Section 52 of the MV Act for reducing the number of seats of contract carriage vehicles with bodies manufactured by the manufacturers themselves and having a definite seating capacity as designed by the manufacturer because, by such reduction, no alteration has to be made in the wpc14305/12 & con.cases -: 5 :- entry regarding the seating capacity in the certificate of registration. It was also held that the `seating capacity' in such cases would continue to be the same irrespective of the reduction of number of actual seats. The statements in that judgment that the tax liability for contract carriage vehicles is related to "the number of passengers permitted to carry in the respective vehicles" and "the number of passengers permitted to carry will depend on the permit issued to the particular vehicle" were made only to further state that no arguments were placed before the Full Bench, including as to what are the conditions to be satisfied for making modifications or changes. It was, therefore, that the learned Judges declined to express any view on the question as to whether permission to alter the seating capacity can be refused for the reason that it would adversely affect the interest of revenue. Under such circumstances, we are of the view that wpc14305/12 & con.cases -: 6 :- Vishwanatha Menon (supra) was not rendered laying down any principle of law that would apply to the question as to whether the liability to tax under the KMVT Act would depend on the number of seats as regards contract carriage vehicles.
4.Section 2(7) of the MV Act defines "contract carriage" to mean a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein..... Section 73 of that Act provides, inter alia, that an application for a permit in respect of a contract carriage shall contain the type and seating capacity of the vehicle.
5.Section 3 of the KMVT Act is the charging provision. It provides that tax shall be levied on every motor vehicle used or kept for use in the State, at the rate specified for such vehicle wpc14305/12 & con.cases -: 7 :- in the Schedule. Therefore, levy of tax has to be at rate specified for the vehicle concerned. Going to the Schedule to that Act, Sl.No.7 deals with motor vehicles plying for hire and used for transport of passengers and in respect of which permits have been issued under the MV Act. That clause is further classified into two sub clauses. Sub-clause (i) deals with vehicles permitted to ply solely as contract carriages and to carry passengers. That sub-clause gets further classified into (a) to (g) of which, (g) deals with tourist motor cabs and the other categories are identified by the number of passengers that could be carried in the vehicle. The vehicles permitted to ply solely as stage carriages get classified under sub-clause (ii) of clause 7. While the number of passengers permitted to be carried may be relevant in so far as contract carriages with a definite seating capacity as determinable on the basis of its manufacture are concerned, the reduction in the number of seats, wpc14305/12 & con.cases -: 8 :- if any, made from the seating capacity, cannot be taken into consideration for reducing the rate of tax. To elucidate, it may be noted that if a contract carriage is a vehicle with manufactured body and fixed seating capacity designed by the manufacturer and if such seating capacity is, say 20; then, by reducing the number of seats, the liability to pay tax cannot be brought down from what would be payable for the seating capacity of 20 persons.
6.It is worthwhile to note and quote from V.S.Liaquath Ali Khan v. State of Kerala [AIR 1999 Ker. 22] in which the learned single Judge laid down as follows:
"5. While interpreting Section 52 of the Motor Vehicles Act, a Division Bench of this Court in Joint R.T.O., Alwaye v. Joshi, (1996) 1 K.L.T.196 and Radhamani v. Joint Regional Transport Officer, (1996) 2 K.L.T.477: (AIR 1997 Kerala 85) took the view that even if the number of wpc14305/12 & con.cases -: 9 :- seats are reduced, that will not change the in-built seating capacity of the vehicle and therefore alteration of particulars contained in the registration certificate does not arise at all. This Court held registering authority could issue registration certificate only with regard to the seating capacity and not with regard to seats provided by the owner. The above principle laid down by the Division Bench was accepted by a Full Bench of this Court in Vishwanatha Menon v. Addl.Registering Authority, (1998) 2 K.L.T.112(FB).
6. Full Bench held that there is no necessity of consideration of application under Section 52 at all since the reduction in number of seats would not amount to alteration which would require permission under Section 52 of the Act.
Tax liability, as held by the Full Bench, would depend upon the number of passengers permitted to carry in the vehicle.
7. Number of passengers permitted to carry would depend upon the permit wpc14305/12 & con.cases -: 10 :- issued to the particular vehicle. Questions as to whether permit holder has made application for making modifications in the permit, what are of the conditions to be satisfied for such change, or modification in the permit and whether the authorities can refuse permission to modify the permit once granted only for the reason of consequential reduction in revenue are not matters for this Court to go into in this proceeding. In this case we are concerned with only the question as to where petitioner's application for reducing the seating capacity would lie under Section 52 of the Act. Therefore in a case where there is a vehicle which has got definite seating capacity as designed by the manufacturer, no permission is necessary under Section 52 of the Act for reducing the number of seats, since no such alteration has to be made in the entry regarding seating capacity of the registration certificate. Seating capacity would continue to be the same irrespective of the reduction of the actual number of seats."
wpc14305/12 & con.cases -: 11 :-
7.We are in complete agreement with the aforesaid view, and we affirm it. In case of a vehicle having a definite seating capacity as designed by the manufacturer, no permission is necessary under Section 52 of the MV Act for reducing the number of seats since no such alteration has to be made in the entry regarding the seating capacity in the certificate of registration. Seating capacity would continue to be the same irrespective of the reduction in the number of actual seats. The reduction in tax depends upon the permit obtained by the petitioners. If the permit fixes number of passengers, the tax revenue would depend upon that permit in accordance with the KMVT Act. But, that cannot be done by reducing the seating capacity which is not permissible under Section 52 of the MV Act. Therefore, even if the total number of seats actually fixed and the number of seats for which permission is granted under the MV Act are at variance with the seating capacity as designed by wpc14305/12 & con.cases -: 12 :- the manufacturer, tax payable under the KMVT Act for a contract carriage will be on the basis of the definite seating capacity as designed by the manufacturer. We answer the reference accordingly.
In the light of the aforesaid, all these writ petitions fail. They are accordingly dismissed.
Sd/-
Thottathil B.Radhakrishnan Judge Sd/-
B.Kemal Pasha Judge Sha/
-true copy-
PS to Judge