Fr. Augustine Vallooran v. Regional Transport Officer, Thrissur; Additional Registering Authority, Irinjalakuda; Rahhiya Motors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 16TH DAY OF MARCH 2012/26TH PHALGUNA 1933** ## **WP(C).No. 15713 of 2011 (L)** **---------------------------** ## **PETITIONER(S):** ## **-------------** **FR.AUGUSTINE VALLOORAN, AGED 60 YEARS, S/O.DEVASSY, VALLOORAN, TRUSTEE OF DIVINE TRUST MURINGOOR, MURANGOOR P.O., CHALAKUDY, THRISSUR DISTRICT.** **BY ADVS.SRI.SIBY MATHEW** **SRI.PHILIP J.VETTICKATTU SMT.ANEY PAUL** **SRI.B.PREMNATH** ## **RESPONDENT(S):** - **--------------** **1. REGIONAL TRANSPORT OFFICER,** - **THRISSUR-680 001.** **2. ADDITIONAL REGISTERING AUTHORITY,** - **IRINJALAKKUDA, THRISSUR, PIN-680 001.** **3. M/S.RAHHIYA MOTORS, REPRESENTED BY ITS MANAGER (ADMINISTRATION & PERSONNEL)** - **GURUVAYOOR ROAD, PONKUNNAM, THRISSUR-680 101.** **R1 & R2 BY GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 16-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VPV** ## **WPCNO.15713/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE SALE CERTIFICATE IN FORM NO.XXI ISSUED BY THE 3RD RESPONDENT. EXT.P2: COPY OF THE TEMPORARY REGISTRATION OF THE PETITIONER'S VEHICLE. EXT.P3: COPY OF THE ORDER NO.R1/241/R1/2011 DATED 8.2.2011 PASSED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/ P.A. TO JUDGE** **VPV** ## **P.N.RAVINDRAN** , **J. --------------------------W.P.(C) No.15713 OF 2011 -------------------------Dated this the 16[th] day of March, 2012** ## **J U D G M E N T** The petitioner purchased a motor vehicle with a seating capacity of 14 passengers excluding the driver, manufactured by M/s.Force Motors Limited from the dealer at Thrissur on 19.1.2011. The vehicle was thereupon temporarily registered by the Registering Authority, Thrissur who issued Ext.P2 temporary certificate of registration that was valid during the period from 19.1.2011 to 25.1.2011. The petitioner thereafter applied for registration of the motor vehicle as an "omni bus for private use" by submitting an application before the Additional Registering Authority, Irinjalakuda. By Ext.P3 order passed on 8.2.2011, the Additional Registering Authority declined to register the motor vehicle as an omni bus for private use and directed the petitioner to apply for registration of the motor vehicle as a private service vehicle. The Additional Registering Authority held that as per the notification dated 5.11.2004 issued by the Government of W.P.(C) No.15713 OF 2011 2 India, a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of the vehicle for the purpose of carrying persons for, or in connection with his trade or business otherwise than for hire or reward is liable to be registered as a private service vehicle. Ext.P3 is under challenge in this writ petition. Relying on the decision of this Court in **Fr. Pious v. Sub Regional Transport Officer [2002 (3) KLT 965]** it is contended that the congregation of which the petitioner is the trustee is not conducting any trade or business and therefore, the motor vehicle purchased by the petitioner is liable to be registered as an omni bus for private use and not as a private service vehicle. 2. The second respondent has sworn to a counter affidavit dated 27.2.2012 wherein after referring to Ext.R2(a) notification dated 15.12.2004 issued by the Government of India, it is contended that an omni bus can be registered as a light motor vehicle for personal use only if it is used for personal purposes, that the petitioner is a trust and therefore, the vehicle W.P.(C) No.15713 OF 2011 3 can never be registered as a light motor vehicle for personal use. It is contended that the term personal use itself denotes that the use of the vehicle should be for personal purposes only. The counter affidavit proceeds to state that no class of vehicles are treated as omni bus for private use, that a trust is not a person and therefore the question of personal use does not arise in respect of a motor vehicle owned by a trust. 3. I heard Smt.Aney Paul, learned counsel appearing for the petitioner and Smt.Anitha Ravindran, learned Government Pleader appearing for respondents 1 and 2. I have also gone through the pleadings and the materials on record. By Ext.P3 order which is impugned in this writ petition, the Additional Registering Authority, Irinjalakuda declined to register the motor vehicle purchased by the petitioner in his capacity as Trustee of Divine Trust, Muringoor on the short ground that as per Ext.R2 (a) notification dated 15.12.2004, issued by the Government of India under sub-section (4) of section 41 of the Motor Vehicles Act, 1988, a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on W.P.(C) No.15713 OF 2011 **==> picture [8 x 9] intentionally omitted <==** behalf of the owner of such vehicle for the purpose of carrying persons for or in connection with his trade or business otherwise than for hire or reward can be registered only as a private service vehicle and not as an omni bus for private use. Ext.R2(a) notification dated 15.12.2004 issued by the Government of India specifies the type of motor vehicles for the purpose of subsection (4) of section 41 of the Motor Vehicles Act. As per the said notification, a vehicle can be specified as an omni bus which is included in the category of transport vehicles. Clause (d) of Ext.R2(a) notification stipulates that: "the omni bus has been kept in the category of transport vehicle with a view to bringing it under the purview of fitness regime as it is exhaustively used on road'. However, the taxes to be levied on such vehicle would fall within the jurisdiction of State Governments." 4. The application submitted by the petitioner was for registration of the motor vehicle as an omni bus for private use. In other words the petitioner’s attempt was to have the vehicle registered as an omni bus, but classified as a non transport vehicle for the purpose of avoiding payment of higher rate of motor vehicle tax and also to take it out of the fitness regime W.P.(C) No.15713 OF 2011 5 which is required if a motor vehicle is to be used as a transport vehicle. On the terms of the notification dated 5.11.2004 issued by the Government of India, the petitioner could have sought registration of the motor vehicle as an omni bus and not as an omni bus for personal use. The petitioner could have sought registration of the motor vehicle as a private service vehicle for personal use and classified as a non transport vehicle if the vehicle had been registered in his name and he had declared that it is intended to be used by him solely for personal use. The petitioner has not however given the declaration that the vehicle is to be used by him solely for personal use. The declaration given by him was that he will not use the vehicle for any other purpose other than the private use of the trust. The term "private service vehicle" is defined in section 2(33) of the Motor ## Vehicles Act as follows: _“Private Service Vehicle” means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes._ ” 5. Though a learned single Judge of this Court had in **Fr.** W.P.(C) No.15713 OF 2011 6 ## **Pious v. Sub Regional Transport Officer [2002 (3) KLT** **965]** held that in a case of congregation, the use of vehicle by the members of congregation cannot be taken to be anything other than private use. It was held that as the chief of the congregation is holding the registration in his capacity as the head of the institution, the institution is the registered owner and consequently, the classification as an omni bus for private use which was made in the year 2000 was in order. The learned Judge held that the activities of the congregation are only religious and therefore they cannot be said to be involved in any trade or business and if petitioners are found engaged in any trade or business, the vehicles used in such trade or business will not come under the category of private service vehicles. Relief was however granted on the ground that in the absence of such allegations, reclassification of the vehicles used by the petitioners for their own use, as private service vehicles is not tenable. 6. The decision in **Fr. Pious v. Sub Regional Transport Officer (supra)** was rendered on 31.10.2002 before Ext.R2(a) notification dated 5.11.2004 was issued by the Government of W.P.(C) No.15713 OF 2011 7 India. In the light of the notification dated 5.11.2004 issued by the Government of India, as the vehicle in question is proposed to be used for the purpose of the activities of congregation of which the petitioner is a trustee and the petitioner has not declared that he intends to use it for personal use, the petitioner cannot seek registration of the motor vehicle as an omni bus for private use or as a private service vehicle and classified as a non transport vehicle. On the terms of notification dated 5.11.2004, the petitioner is entitled to have the vehicle registered as omni bus and classified as a transport vehicle. The Additional Registering Authority has not adverted to these aspects of the matter when he passed the impugned order. I am therefore of the opinion that the Additional Registering Authority should reconsider the application in the light of the observations made herein and the notification dated 5.11.2004 and take a fresh decision in the matter. I accordingly allow the writ petition, set aside Ext.P3 and direct the second respondent to pass revised orders in the matter expeditiously and in any event within two weeks from the 8 W.P.(C) No.15713 OF 2011 date on which the petitioner produces a certified copy of this judgment. Sd/- **P.N.RAVINDRAN,** **(JUDGE)** /TRUE COPY/ P.A. To JUDGE vpv