K. U. Vijayaraghavan and Others v. The Transport Commissioner, Transport Commissionerate and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938** **WP(C).No. 24162 of 2015 (U) ----------------------------** **PETITIONER(S):** **-------------** **1. K.U. VIJAYARAGHAVAN, AGED 58 YEARS, S/O.N.P.GOPALAN NAIR, THULASI, VAYAPPARAPPADI, MANJERI, PIN - 676 121.** **2. K.T.SULAIMAN, AGED 45 YEARS, S/O.ABDURAHIMAN, KALLADITHODI HOUSE, THURAKKAL, KANHIRATTUKUNNU, MANJERI.** **3. M.NARAYAAN, AGED 60 YEARS, S/O.UNNEERI, 12/121, MOZHIKKAL HOUSE, MANHAPPATA (P.O), MANJERI, PIN - 676 123.** **4. SATHEESH KUMAR P.N., S/O.NARAYANAN NAIR, MANIMANDIRAM, VELLARANGAL, VAYAPPARAPPADI, MANJERI, PIN - 676 121.** **BY ADV. SRI.K.DILIP** **RESPONDENT(S):** - **--------------** **1. THE TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE, 2ND FLOOR, TRANS TOWERS, VAZHUTHAKKAD, TRIVANDRUM - 14.** **2. THE REGIONAL TRANSPORT OFFICER, MALAPPURAM, PIN - 676 505.** **3. THE JOINT REGIONAL TRANSPORT COMMISSIONER, MALAPPURAM, PIN - 676 505.** **4. THE ASSISTANT MOTOR VEHICLE INSPECTOR, MALAPPURAM, PIN - 676 505.** **5. THE MOTOR VEHICLES INSPECTOR, MALAPPURAM, PIN - 676 505.** **6. THE SECRETARY,** - **R.T.A., MALAPPURAM, PIN - 676 505.** **BY GOVERNMENT PLEADER SMT.M.M.JASMIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 24162 of 2015 (U)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXT.P1: A TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED TO THE VEHICLE OF THE 1ST PETITIONER BEARING REGISTRATION NUMBER KL-44-A-4200 DATED 25-08-2011. EXT.P2: A TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED TO THE VEHICLE OF THE 2ND PETITIONER BEARING REGISTRATION NUMBER KL-10-AN-4967 DATED 11-03-2013. EXT.P3: A TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED TO THE VEHICLE OF THE 3RD PETITIONER BEARING REGISTRATION NUMBER KL-10-AC-2772 DATED 13-06-2011. EXT.P4: A TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED TO THE VEHICLE OF THE 4TH PETITIONER BEARING REGISTRATION NUMBER KL-10-AQ-9042 DATED 06-03-2014. EXT.P5: A TRUE COPY OF THE CIRCULAR NO.B1/2787/TC/2014 ISSUED BY THE 1ST RESPONDENT DATED 10/03/2014. EXT.P6: A TRUE COPY OF THE INSPECTION REPORT OF THE 4TH RESPONDENT DATED 02/05/2015. EXT.P7: A TRUE COPY OF THE JUDGMENT IN W.P.(C).3448/2015 DATED 11/06/2015. EXT.P8: A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 18-06-2015. EXT.P9: A TRUE COPY OF THE COMMUNICATION OF THE 4TH RESPONDENT DATED 03-06-2015. EXT.P10: A TRUE COPY OF THE COMMUNICATION OF THE 5TH RESPONDENT TO THE 1ST PETITIONER DATED 29/06/2015. EXT.P11: A TRUE COPY OF THE QUERY SUBMITTED BY THE 1ST PETITIONER UNDER THE R.T.I. ACT DATED 29-07-2015.** **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **A.M. SHAFFIQUE, J.** ## **-------------------------------------** W.P.(C) No. 24162 of 2015 -------------------------------------Dated this the 14[th] day of November, 2016 ## **JUDGMENT** Petitioners have approached this Court challenging Exts.P8, P9 and P10 communications and for a direction to respondents 2 and 3 to accept tax from the petitioners for the vehicles involved at the normal rate of tax fixed for contract carriages in terms of guidelines prescribed in Ext.P5 circular. Ext.P8 seems to be a report of the Regional Transport Officer stating that the report of the second respondent indicating that the vehicle Nos. KL 44A 4200, KL10 AN 4967, KL10 AC 2772 and KL 10 AQ 9042 are fitted with high back reclining/push back seats at the time of manufacturing. Hence, tax should be collected in the rate of that category. Ext.P9 is a communication of the fifth respondent dated 3.6.2015 with reference to the vehicles in question. 2. The issue projected by the petitioners was in regard W.P.(C) No. 24162 of 2015 -2- to a claim for reducing the tax liability. It is contended that these vehicles are contract carriage vehicles and though originally it was fitted with push back seats, later it was converted to ordinary seats. As a result of which, there is a reduction in liability to pay tax. However, when such a claim was made, the respondents did not accept the same on the ground that the original manufacturer had fixed the vehicles with push back seats. A writ petition was filed before this Court as W.P.(C) No.3448 of 2015 which was disposed of directing the Regional Transport Authority to take a decision in the matter. Pursuant to the said decision, Ext.P10 order had been passed. Ext.P10 is with reference to vehicle KL-44-A4200. Learned counsel submits that similar orders had been passed with reference to other vehicles also. It is stated in Ext.P10 that since the vehicles were fitted with high back reclining push back seats at the time of manufacturing, since the same is confirmed by the dealer of the vehicle, tax has been demanded and collected in accordance with the rates W.P.(C) No. 24162 of 2015 -3- prescribed thereunder and therefore, the request for refund of tax for the period from 1.1.2014 to 31.12.2014 is rejected. 3. The main contention urged by the petitioners is that in respect of contract carriages having ordinary seats, the tax is levied at a different rate than contract carriages having push back seats. Though the vehicles were fitted with push back seats at the time of purchase, they were converted to ordinary seats and therefore, the petitioners were entitled for a reduction in the tax which has not been granted so far. It seems that the petitioners have sought for refund of the tax which has not been agreed by the respondent authorities. 4. Counter affidavit has been filed by the second respondent wherein it is stated that on inspection of vehicle KL 10-AQ-9042, it was found that the seats were altered as ordinary seats. Further, it is stated that the petitioners had not applied for any alteration in the matter of seats or seating capacity and no change in respect of the nature of seats fitted with the vehicles were endorsed in the registration certificate. W.P.(C) No. 24162 of 2015 -4- Therefore, petitioners were not entitled to the benefit on account of unauthorised alterations made in the vehicle. Further it is stated that the tax has been imposed on the vehicles in accordance with Finance Bill, 2014 and the procedure followed for fixing the rate of tax is in accordance with Circular No.3/2014. 5. Reply affidavit has been filed _inter alia_ pointing out that then there is a different classification taking into account the nature of seats, and when it is found that the seats in the vehicles have been converted as ordinary seats, petitioners are entitled for reduction in the rate of tax. 6. Learned counsel for the petitioners also placed the reliance on the judgment of this Court in **Vishwanatha** ## **Menon v. Additional Registering Authority [1998 (2) KLT** **112]** wherein it is held that for reducing the number of seats in contract carriage vehicles, no permission is required. 7. On the other hand, the learned Government Pleader while supporting the stand taken in the counter affidavit, W.P.(C) No. 24162 of 2015 -5- submits that the vehicle was fitted with push back seats at the time of manufacturing and even at the time of registration. However, when it was inspected, it was noticed that they have made some modification to the seats to ensure that it is not a push back seat. 8. The classification as far as contract carriages are concerned, is seen from the Finance Bill, 2014. The Circular No.7/2014 has been issued with reference to the Finance Bill, 2014, which would show that there is a difference in the rate of tax, taking into account the fact as to whether the seat is ordinary or push back. 9. One contention urged by the learned Government Pleader is that the change of alteration of the vehicle has not been informed to the transport authorities. Section 52 (1) reads as under: ## “ **52. Alteration in motor vehicle** :- ## (1) xxx (2) Notwithstanding anything contained in subsection (1), a State Government may, by W.P.(C) No. 24162 of 2015 -6- Notification in the Official Gazette, authorise, subject to such conditions as may be specified in the notification, and permit any person owning not less than ten transport vehicles to alter any vehicle owned by him so as to replace the engine thereof with engine of the same make and type, without the approval of registering authority.” 10. The only requirement in terms of Section 52 is that the motor vehicles shall not be altered without permission, if the alteration would cause variation in the particulars contained in the certificate of registration. Exts.P1 to P4 are the certificates of registration in respect of the vehicles in question, which does not contain any provision that the vehicle is fitted with either push back or ordinary seats. Therefore, Section 52 will not apply to the fact situation. 11. When there is a change in tax to be paid depending upon the nature of seats either ordinary, push back or sleeper, necessarily, it shall be open for the registered owner of the vehicle to seek for payment of tax in accordance with the said classification. Nothing prevents an owner of the vehicle to W.P.(C) No. 24162 of 2015 -7- change the push back seats to ordinary or vice versa. In such circumstances, when there is a change in the seats by which the push back seats are converted as ordinary seats, necessarily, it shall be open for the registered owners to claim that the rate of tax shall be reduced. In the case on hand, with reference to Ext.P10, while considering the claim in KL-44-A4200, the Secretary, Regional Transport Authority observed that the tax was collected since the vehicle was fitted with push back seats. No doubt that at the time of registration, the vehicles were fitted with push back seats and the authorities were justified in collecting tax at the respective rate. The Statute came to effect only from 1.4.2014, which differentiated between vehicles having push back seats and ordinary seats. Therefore, when there is a conversion from push back to ordinary, definitely, the registered owners are entitled for the said benefit. In the said circumstances, I am of the view that this writ petition can be disposed of as under: W.P.(C) No. 24162 of 2015 -8- Before finalising the order, it would be relevant to notice that four petitioners are approached this Court, where the cause of action in respect of each of the vehicles are totally separate. Ext.P10 order is only with reference to one vehicle and the other orders are not produced. Therefore, I am of the view that only a general direction can be issued in this matter. - (i) Ext.P10 is set aside. (ii) Petitioners shall submit necessary representation to the Regional Transport Officer. (iii) It is made clear that if the vehicles have been converted to ordinary seats, the future tax shall be collected only at the rate prescribed for contract carriages having ordinary seats. **Sd/A.M. SHAFFIQUE JUDGE** Scl/14.11.2016