Kamil Mohammed v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** ## **THURSDAY, THE 10TH DAY OF JANUARY 2013/20TH POUSHA 1934** ## **WP(C).No. 9094 of 2012 (J)** **--------------------------** **PETITIONER(S) : ---------------------** **KAMIL MOHAMMED, AGED 34 YEARS, S/O.A.K. MOHAMMED ALI, DIRECTOR, MASCOT FROZEN FOODS PVT.LTD., N.H. 47, AMBATTUKAVU ALUVA,KERALA - 683 106, RESIDING AT NO. 7A TRINITY CASTLE APARTMENT,EDAPALLY-682 024.** **BY ADVS.SRI.P.K.IBRAHIM SMT.A.A.SHIBI** **RESPONDENT(S) :** - **-----------------------1. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2. THE SECRETARY DEPARTMENT OF MOTOR VEHICLES, GOVT. OF KERALA SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **3. THE SUB REGIONAL TRANSPORT OFFICER, ALUVA - 683 101.. BY DR.SEBASTIAN CHEMBAPALLIL, SPL. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AMV** ## **WP(C).No. 9094 of 2012 (J)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **:** **P1. : COPY OF THE RELEVANT PAGE OF THE FINANCE BILL 2012 PROPOSING AMENDMENT TO IN THE KERALA MOTOR VEHICLE TAXATION ACT 1976 TO LEVY TAX ON THE PURCHASE VALUE INDEX OF THE PRIVATE SERVICE VEHICLES.** **P2. : COPY OF THE COMMUNICATION DATED 29.03.2012 OF THE TRANSPORT COMMISSIONER.** - **P3. : COPY OF THE TAX RECEIPT DATED 27.03.2012 EVIDENCING PAYMENT OF TAX FOR HIS NEW RENAULT PULSE CAR.** **P4. : COPY OF THE PROTEST LODGED BY THE PETITIONER WITH THE REGISTERING/TAXING AUTHORITY ON LEVYING ONETIME TAX.** ## **RESPONDENTS EXHIBITS : NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE** ## **AMV** ## **ANTONY DOMINIC,J -----------------------------W.P.(C)No.9094 of 2012** **---------------------------------------Dated this the 10[th] day of January, 2013** ## **JUDGMENT** Heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for respondents. 2. Petitioner purchased a new Renault Pulser vehicle. Thereupon, one time tax as provided under Section(3) of the Kerala Motor Vehicles Taxation Act 1976 was levied by the respondents. Although, he paid the tax, the payment was made under protest. It is thereafter, this writ petition was filed praying to declare that one time levy of tax on purchase value of a new vehicle for personal use at the time of its registration is violative of Article 14 of the Constitution of India. He also seeks a direction to the respondents to return the tax collected from him. 3. The validity of the Motor Vehicle Taxation Act has already been upheld by the Apex Court in the judgment in W.P.(C).No.9094 of 2012 : 2 : **Automobile Transport Ltd. etc. v. State of Rajasthan and others (AIR 1962 SC 1406)** . Subsequently, Section 3 of the Kerala Motor Vehicles Taxation Act was amended and levy of one time tax was introduced. The levy of one time tax in the Kerala Motor Vehicles Taxation Act, was challenged before this Court and a Division Bench of this Court in **Anas v. State of Kerala (1999 (3) KLT 147)** upheld the constitutional validity of the said levy also. Further, the Apex Court has also upheld similar provisions in other enactments in the judgments in **State of Maharashtra and others v. Madhukar Balkrishna Badiya and others (AIR 1988 SC 2062)** and **State of Tamil Nadu v. Krishnappan and others (AIR 2005 SC 2168)** . Thus, levy of one time tax on Motor vehicles stands upheld not only by this Court but also by the Apex Court. 4. In spite of the above, the petitioner seeks to raise the invalidity of the levy by pleading thus in paragraph 6 W.P.(C).No.9094 of 2012 : 3 : ## of the writ petition: _It is submitted that the premises on which the challenge to one time tax was upheld, with great respect by the apex court and the Hon'ble High Court is wholly illogical, irrational and on presumptions and assumptions which has no basis with the true facts and ground realities._ 5. According to the petitioner, levy of entire tax on the first registered owner irrespective of the possibility of transfer of the vehicles is discriminatory and arbitrary. It is also his case that the justification of avoiding periodical visits for payment of tax, given by the Apex Court judgment in **State of Tamil Nadu v. Krishnappan and others (AIR 2005 SC 2168)** has no relevance in the changed scenario where E-Payment options are available. It is also his contention that the finding of the Apex Court that the collection of tax in advance would enable the State to spend larger amounts for immediate schemes will not justify collection of tax from the first registered W.P.(C).No.9094 of 2012 : 4 : owner. Further, according to him, in the absence of any guarantee that the State would be able to raise plan fund from new registration, according to the petitioner, the aforesaid conclusion of the Apex Court has no scientific basis. 6. It is also contended that levy of Motor Vehicle Tax under Section 3 of the Act is on the person, who uses the vehicle. Therefore, if one time tax is levied on the first registered owner, who is at liberty to transfer the vehicle at his volition, with the transfer of the vehicle, according to the petitioner, the compensatory nature of the levy is lost. On these and other grounds, the petitioner says that a more fair and just taxing policy would be to levy tax on the basis of weight cum dimension cum kilometre use of the vehicle. It is on these averments, the petitioner contends that the levy of one time tax from the first registered owner of the vehicle, is unconstitutional. W.P.(C).No.9094 of 2012 : 5 : 7. As already noticed above, not only the Motor Vehicles Taxation Act, but also the levy of one time tax stands upheld both by this Court and also by the Apex Court. Once the constitutionality of the levy has been thus upheld by the Apex Court, this Court is bound by the law laid down by the Apex Court in view of the provisions of Article 141 of the Constitution of India. The question would be whether, in spite of it, it is open to this Court to reopen the constitutionality of the levy on the ground that the contentions urged by the petitioner were not urged or considered by the Apex Court. In my view, such a course of action is impermissible. This very question has also been considered by the Apex Court in **Director of Settlements A.P. and others v. M.R.Apparao and another** _**(**_ **2002(4) SCC 638)** , where the Apex Court has held thus: _The decision in a judgment of the Supreme Court cannot be assailed on the_ W.P.(C).No.9094 of 2012 : 6 : _ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court(see Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur and AIR 1973 SC 794). When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity.(See Narinder Singh v. Surjit Singh and Kausalya Devi Bogra v. Land Acquisition Officer)._ 8. Learned counsel for the petitioner then contended that tax under Section 3 can be levied for use of the vehicle on the roads in the State of Kerala. Therefore, according to him, the purchase value, the basis on which, tax is levied by Ext.P1 amendment to the Annexure to the Act has no nexus with the legislative object. W.P.(C).No.9094 of 2012 : 7 : However, I am unable to accept this contention. In matters of taxation, legislature is at liberty to choose objects of taxation and the basis of taxation. It was in exercise of that legislative freedom that the legislature has chosen to levy tax based on its purchase value of the vehicle. There is neither any constitutional nor statutory prohibition in adopting purchase value as the basis for tax. In fact, a reading of the Apex Court Judgment in **State of Tamil Nadu v. Krishnappan and others (AIR 2005 SC 2168)** shows that, one of the criterions for levying tax in that case, was the value of the vehicle. Therefore, I am not impressed by this contention raised by the counsel for the petitioner. 9. Insofar as the suggestion of the petitioner that instead of levying tax on the basis of the purchase value, tax should be based on weight cum dimension cum kilometre run by a vehicle in the road is concerned, this court is concerned only whether the existing levy by the W.P.(C).No.9094 of 2012 : 8 : legislature is constitutionally valid or not and this Court is not concerned whether a better basis of taxation is available to the State, since such choice is within the purview of the legislature. Once levy of one time tax on the basis of the purchase value is upheld, the enquiry by this Court should end at that stage. Therefore, I am not persuaded to consider the feasibility or desirability of the suggestion made by the petitioner as the suggestion made is outside the province of this Court. In the result, I do not find any merit in this writ petition. The writ petition fails and it is dismissed. Sd/- **ANTONY DOMINIC, JUDGE** ln