KOCHUMON JACOB Vs. SECRETARY
HIGH COURT OF KERALA
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(1.) The petitioner is a stage carriage operator. He is operating on the route Kottayam - Changanacherry on the strength of a regular permit issued to his stage carriage KL - 05 - A 8096 which is 1992 model vehicle. It is stated that the service is a town service as defined under R.2(ca) of the Kerala Motor Vehicles Rules, 1989, which prescribes the minimum seating capacity of the vehicle. The said vehicle is registered with 48 seats inclusive of driver. The petitioner wanted to reduce the seating capacity as well as the standing capacity of the said vehicle for which he made an application dated 20.12.2001 (Ext. P2). The respondent rejected the said application stating that if the application is allowed the quarterly tax of stage carriage with passenger capacity of 39 + 19 will be Rs.26,250.00 which will result in a loss of Government revenue at the rate of Rs.4,800.00 for each quarter. It was also stated that the travelling public will be deprived of the present benefit. The petitioner has challenged this order in this Writ Petition. A counter affidavit is filed by the respondent. The relevant portion of the counter affidavit reads as follows:
It is respectfully submitted that after the introduction of the K.M.V. Rules, 1989 no such application for reduction of seating capacity is entertained by the authorities as it will severely affect the tax collection of the Government. Some fresh permits are granted to the vehicles having seating capacity of 28. But these are additional to existing facility. Hence travelling public is not aggrieved by this grant. Whereas when seating capacity of existing permit is reduced the travelling public as well as revenue of the State both will affect.
(2.) A reply affidavit is filed by the petitioner. Alongwith the reply affidavit petitioner has produced a copy of the proceedings of the respondent in another case granting reduction of seating capacity. The petitioner has also filed I.A. No.4681/2003. Alongwith the affidavit filed in support of the LA petitioner has produced copies of two judgments of this Court rendered in similar circumstances.
(3.) The learned counsel appearing for the petitioner submits that the petitioners stage carriage was being operated as a town service as per the permit issued by the respondent. Counsel submits that the minimum seating capacity of stage carriage is provided under R.269 of the Kerala Motor Vehicles Rules. Petitioners vehicle, it is stated, falls under the category having a wheel base of between 506 to 550 cm. for which the minimum seating capacity is 50. The counsel also submits that in view of the fact that the petitioners stage carriage is plying as a town service, under the provisions of R.280, it should have a separate entrance and a separate exit and that by virtue of the first proviso to R.269, the minimum seating capacity can be reduced by two seats. The counsel also submits that the second proviso further provides that the minimum number can be further reduced by one fifth in the case of stage carriage operating as City / Town Service. He further submitted that it is only by virtue of the provisions contained in R.269 the petitioner had applied for reduction of the seating capacity from 46 to 39. The counsel also pointed out that the standing capacity of the stage carriages are also provided. Sub-r.(2) of R.267, it is stated, enables the respondent to fix the number of standing passengers. Under Cl.(b) of the said sub-rule, the number of standing passengers so fixed shall not exceed twenty - five per cent of the number of passengers for whom there is seating accommodations as specified in the sub-rule and further in the case of city service or town service it can go upto fifty per cent of the seating capacity. The counsel submits that it is by virtue of this provision the petitioner had applied for reduction of sitting and standing capacity of his stage carriage from 46 + 23 to 39 + 19. The counsel also submits that in similar circumstances a learned Single Judge of this Court in the judgment dt. 30.8.1994 in O.P. No. 6138/1994 quashed a similar proceedings and directed the registering authority to make necessary endorsements regarding the reduction of seating capacity as 39. He further submitted that this decision has been confirmed in appeal by the Division Bench in the judgment dated 3.8.1998 in W.A. No. 1323/1994. The counsel further submitted that the loss of revenue on account of reduction of the seating capacity is not a relevant consideration for disposing the application for reducing the seating capacity. He also submitted that though the convenience of the travelling public is a relevant matter the respondent did not furnish any details to establish that the reduction of the seating capacity will prejudicially affect the travelling public.;
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