E A THOMMAN Vs. REGIONAL TRANSPORT OFFICER ERNAKULAM
HIGH COURT OF KERALA
REGIONAL TRANSPORT OFFICER, ERNAKULAM
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(1.) THESE writ applications were heard along with a batch of other writ applications where common questions have been raised. It is agreed that the decision in these cases will govern the other petitions as well.
(2.) THE petitioners in these writ applications are all 'operators' within the meaning of that term as defined in Section 2 (b) of the Kerala Motor Vehicles (Taxation of passengers and Goods) Act, 1963, (hereinafter called 'the Act' ). They impugn the validity of the Act. The grounds on which the Act is challenged may be grouped under five heads (a) the enactment though it purports to be under Item 56 of List ii of the Seventh Schedule to the Constitution, really does not fall within the ambit of that entry; in fact it has trespassed on legislative powers vested with the Union parliament and is a colourable piece of legislation and is incompetent; (b) the Act violates Part XIII of the Constitution, particularly Article 301 thereof, and does not satisfy the requirements of Article 304 (b); (c) the Act infringes Arti- cle 14 of the constitution; (d) that it is against the provisions in Article 19 (1) (g); and finally (e) that even if the Act is construed to have imposed the burden of the tax on the 'goods and passengers' it is still ineffective because of lack of provisions in the statute or rules made thereunder for collection of the tax from the passenger and/or the owner of the goods.
(3.) WE shall deal with these arguments serially. But before doing so, it is necessary to refer to the salient provisions in the Act to understand its scope and ambit. We may refer first to the preamble of the Act which runs thus:-" whereas it is expedient to provide for the levy of a tax on passengers and goods carried in stage carriages and public carrier vehicles in the state of Kerala;" This is followed by the important charging Section, section 3, which we shall extract in full:
"levy of tax on passengers and goods.--On and from the date of commencement of this Act, there shall be levied and paid to the Government, a tax on all passengers, luggage and goods carried by stage carriages, and on all goods transported by public carrier vehicles, at the rate of 10 naye paise in the rupee on the fares and freights, payable to the operators of such stage carriages and at the rate of 5 naye paise in the rupee on the freights payable to the operators of such public carrier vehicles; provided that in the case of all goods transported by public carrier vehicles for export out of the territory of India, no tax under this section shall be payable; provided further that no tax shall be levied on any passenger, luggage or goods carried in a stage carriage, if the total distance permitted to be covered by such stage carriage in a day, does not exceed eighty kilometres. Explanation I. For the purpose of this proviso, "export" shall not include movements of goods from one port in the territory of India to another port in the said territory. Explanation 2. For the removal of doubts it is hereby declared that - (i) in respect of passengers, luggage or goods booked through over the railways and any road transport service, the tax payable under this Act shall be calculated only on the fares and freights payable on such passengers, luggage or goods for the distance on the road covered by the taxable vehicle; (ii) no tax shall be payable under this Act on goods carried by any vehicle owned by any department of the Central Government or by the railways. " Section 4 provides for the composition of tax on an application by the operator which term means "any person whose name is entered in the permit as the holder thereof". Section 5 enjoins that in respect of every taxable vehicle, meaning thereby "a stage carriage, or a public carrier vehicle, which is referred to In section 3", the operator shall deliver or cause to be delivered a return in the prescribed form and Section 6 enjoins that the operator shall pay the tax payable during any month to a Government treasury and the receipt evidencing such payment forwarded to the prescribed officer before the 15th day of the month immediately succeeding. There is a further provision made hi Section 7 for action being taken where no returns have been filed or when the returns filed by the operator appear to be incorrect or incomplete. Section 8 provides for steps to be taken against the operator in case of escapement of tax. Penalty can be imposed on the defaulter under Section 9 and Section 10 contains a provision for the recovery of tax due under Sections 7, 8 and 9. It is clear from Sections 11 and 12 that a transferee of a motor vehicle will be liable for the tax that should have been paid by the transferor and that no taxable vehicle shall be used on any public road in case any tax or penalty payable in respect thereof remains unpaid or where returns required by Section 5 have not been filed. Section 15 provides for offences and penalties and Section 17 for composition of offences. There is provision made in Section 18 for reduction of tax in certain cases and Section 19 contains the power of Government to notify exemptions. The only other provision that we need notice is that contained in section 20 which empowers the Government to make rules. These powers as normally, are expressed in Section 20 (1) in very wide terms, namely, to make rules to carry out the purpose of the Act and in enumerating the specified powers without prejudice to the generality of the provision in Section 20 (1), it is inter alia provided in Section 20 (2) (g) that rules may be made for any other matter for which there is no provision or no sufficient provision in the Act and for which provision is, in the opinion of the Government, necessary for giving effect to the purposes of the Act.;
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