The Manager, Alampally Estate, Pasuppara P.O., Idukki v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR** **FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930** **WP(C).No. 12015 of 2004(E)** **------------------------------------------** **PETITIONER(S):** **--------------------------** **THE MANAGER, ALAMPALLY ESTATE, PASUPARA P.O., IDUKKI.** **BY ADV. SRI.JOSEPH KODIANTHARA** ## **RESPONDENT(S):** **---------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETRIATE, TRIVANDRUM.** **2. THE JOINT REGIONAL TRANSPORT OFFICER, VANDIPERIYAR.** **3. THE DEPUTY TRANSPORT COMMISSIONER (LAW), CENTRAL ZONE-II, ERNAKULAM.** **4. THE TRANSPORT COMMISSIONER, TRIVANDRUM.** **GOVERNMENT PLEADER SRI. K.P.PRADEEP FOR R1 TO 4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.12015/2004 E** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF SALE DEED DTD. 29/08/1932 EXECUTED BY THE ERSTWHILE TRAVANCORE GOVERNMENT. EXT.P2: COPY OF SALE DEED DTD. 12/02/1936 EXECUTED BY THE ERSTWHILE TRAVANCORE GOVERNMENT. EXT.P3: COPY OF LETTER DTD. 30/03/1981 WITH G-FORM FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P3(A): COPY OF LETTER DTD. 5/12/1990 WITH G-FORM FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P4: COPY OF LETTER DTD. 7/03/1995 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXT.P4(A): COPY OF LETTER DTD. 19/05/1995 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXT.P5: COPY OF LETTER DTD. 19/05/1995 FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P5(A): COPY OF LETTER DTD. 19/05/1995 FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P6: COPY OF LETTER DTD. 2/06/1995 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXT.P6(A): COPY OF LETTER DTD. 2/06/1995 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXT.P7: COPY OF LETTER DTD. 8/06/1995 FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P7(A): COPY OF LETTER DTD. 8/06/1995 FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P8: COPY OF LETTER DTD. 24/08/1995 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXT.P8(A): COPY OF LETTER DTD. 24/08/1995 FROM THE 2ND RESPONDENT TO THE PETITIONER.** _Kss_ **..2/-** **..2....** ## **WPC.NO.12015/2004 E** **EXT.P9: COPY OF LETTER DTD. 2/09/1995 FROM THE PETITIONER TO THE 2ND RESPONDENT.** - **EXT.P9(A): COPY OF LETTER DTD. 2/09/1995 FROM THE PETITIONER TO THE 2ND RESPONDENT.** - **EXT.P10: COPY OF JUDGMENT DTD. 28/01/2000 OF THIS HONOURABLE COURT IN O.P.NO.16519 OF 1995.** - **EXT.P11: COPY OF NOTICE DTD. 5/04/2000 FROM THE 2ND RESPONDENT TO THE PETITIONER.** - **EXT.P12: COPY OF AFFIDAVIT DTD. 17/04/2000 FROM THE PETITIONER TO THE 2ND RESPONDENT.** - **EXT.P13: COPY OF LIST OF DOCUMENTS DTD. 17/04/2000 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXT.P14: COPY OF CERTIFICATE DTD. 20/09/1995 ISSUED BY THE TAHSILDAR, PEERMADE.** - **EXT.P15: COPY OF CERTIFICATE DTD. 17/04/2000 ISSUED BY THE VILLAGE OFFICER, UPPUTHARA.** - **EXT.P16: COPY OF EXTRACT FROM THANDAPER ACCOUNT OF PETITIONER'S ESTATE ISSUED BY THE TAHSILDAR, PEERMADE, ISSUED ON 20/09/1995.** - **EXT.P17: COPY OF ORDER DTD. 17/07/2000 OF THE 2ND RESPONDENT. EXT.P18: COPY OF APPEAL DTD. 7/09/2000 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXT.P19: COPY OF ORDER DTD. 7/09/2001 PASSED BY THE 3RD RESPONDENT.** - **EXT.P20: COPY OF REVISION PETITION DTD. 11/01/2002 FILED BY PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXT.P21: COPY OF ORDER DTD. 6/03/2004 PASSED BY THE 4TH RESPONDENT.** _Kss_ **..3/-** **...3.....** ## **WPC.NO.12015/2004 E** **EXT.P22: COPY OF DEMAND NOTICE DTD. 5/05/2004 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER IN RESPECT OF TRACTOR NO.KL1 1037 AND ITS TRAILER.** **EXT.P23: COPY OF DEMAND NOTICE DTD. 5/05/2004 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER IN RESPECT OF TRACTOR NO.KL6 1050 AND ITS TRAILER.** ## **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.A.TO JUDGE** _Kss_ ## **K.BALAKRISHNAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** W.P.(C) No.12015 of 2004 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 28[th] November, 2008 ## **JUDGMENT** The petitioner is the manager of Alampally Estate at Pasupara in Idukki. The land for the above estate was assigned by the Travancore Government in favour of the predecessors- in-interest of the petitioner under Exts.P1 and P2 title deeds. The petitioner claims the entire extent of the estate is enclosed by fencing and there is only one access to the estate for entry and exit. The petitioner was having two tractors bearing registration Nos.KLI 1037 and KL 6/1050. They were being exclusively used within the estate area only and the roads inside the estate were private roads laid and maintained by the estate. So the vehicles of the petitioner were neither used nor kept for use in the public roads of the State. So the petitioner was claiming exemption from payment of tax by filing G-forms under Section 5 of the Kerala Motor Vehicles Taxation Act. It was being filed regularly from time to time. While so, there was some delay in filing the G- form for the year 1994-95. So the petitioner was called upon to pay tax for that year. The petitioner paid tax for the two vehicles for the said year. Thereupon, the demand drafts furnished by the petitioner were returned to him stating that he should pay the tax from W.P.C.No.12015/04 - 2 - 1.1.1990 and 1.1.1991 for the above said vehicles. 2. The petitioner filed his objections. The petitioner was informed by Exts.P8 and P8(a) that based on the report of the Motor Vehicles Inspector, Vandiperiyar, it is seen that the roads inside the estate are public roads and therefore vehicles being used on public roads are liable to tax. The petitioner challenged Exts.P8 and P8(a) before this court. The said orders were quashed by Ext.P10 judgment. The matter was remitted to the Taxation Officer. There was a direction to grant the petitioner adequate opportunity of being heard. 3. The petitioner on receiving notice of hearing, filed his objections and produced documents. But finally the Jt. Regional Transport Officer, Vandiperiyar issued Ext.P17 order dated 17.7.2000 holding that the title deeds of the petitioner provides right of way to the public through the estate roads. So the public have access to the estate roads without any hindrance. So such roads should be treated as public roads. Since the vehicles are plied on public roads, the petitioner is liable to pay tax. The said finding was rendered relying on an enquiry report of the Motor Vehicles Inspector, Vandiperiyar dated 28.5.1995. 4. The petitioner preferred Ext.P18 appeal against the said W.P.C.No.12015/04 - 3 - order before the Deputy Transport Commissioner. The said appeal was dismissed by Ext.P19 order. The reasons given by the appellate authority for rejecting the appeal were as follows: “As per the report of the MVI, Vandiperiyar, this Estate is situated at Pasupara with an extent of about 500 acres. Elappara- Upputara road is passing through the boundary of the Estate. There is a Harijan Settlement Colony near Anapollam to where the shortest route is through the Estate roads. The vehicles bound to this Colony and neighbouring places are allowed, through the Estate roads only on payment of toll and issuing entry pass. This type of control by the Estate authorities cause undue hardship to the residents of neighbouring lands. In the case of almost all the Estates in this Taluk, their right in the Estate lands are based on the title deed executed between them and the erstwhile Secretary to the Government of Travancore. The Title Deed in respect of Alampally Estate is not available for verification. It is learnt from the Revenue Authorities that the Title Deed of Alampally Estate is similar in substance with that of other Estates. The condition of the Title Deeds provides that W.P.C.No.12015/04 - 4 - there shall be a right of way to the public through the Estate roads, and the Estate owners are bound to provide roads through the Estate lands for the convenience of the residents of neighbouring lands. The condition being as such the public has got the right of access to the Estate roads without any hindrance and the place where the public has the free right of access can be treated as public place. Under these circumstances, the roads passing through the Alampally Estates are public roads and motor vehicles operating on those roads are liable to be taxed as per the Kerala Motor Vehicles Taxation Act. Hence the appeal deserves no merits and is rejected.” 5. The petitioner filed a revision (Ext.P20) against that order before the Transport Commissioner. In the said revision, the above finding of the appellate authority was attacked in grounds G and J. Those grounds are extracted below : “G. The finding in the order that the shortest route to the Harijan Settlement is through the estate roads is incorrect. The roads in the estate do not connect to any W.P.C.No.12015/04 - 5 - other road and the roads end in the estate itself. The Anapallom Harijan Colony is connected to Upputhara Town by a P.W.D. road and no part of that road has any connection with the roads in the Alampally Estate. The said Harijan Colony has no right of access through the roads inside the petitioner's estate. In fact the further finding that the vehicles bound to the said colony and neighbouring places are allowed through the estate roads only on payment of toll and issuing entry pass, is contradictory to the very assumption made by the 1[st] Respondent that the public has a right of way over the estate lands. J. The conclusions of the 1[st] and 2[nd] respondents in the impugned orders based on the title deeds are clearly erroneous. At the time of purchase of the land there were no established roads or right of way inside the estate and neither then nor now is there any natural or other right of way through the estate to any neighbouring land of the estate. The 6[th] clause of the title deeds which is the one relied on by the 1[st] and 2[nd] Respondents only refers to established right of way and natural right of way through W.P.C.No.12015/04 - 6 - the land when such is necessary in order to render the neighbouring land available. The said clause was inserted in the sale deeds not because there were any roads or right of way in the land, but only because the same was a standard clause in the form of sale deed, which was used for sale of Government land at that time.” 6. But the Transport Commissioner dismissed the revision. The relevant portion of the said order is as follows: “Even private roads permit access to the public. Therefore even if the roads are maintained by the Estate, it can be termed to a public road provided public has access to it. In this case detailed enquiries are seen conducted by the Motor Vehicle Inspector, Vandiperiyar who has reported that the roads passing through Aleppathy Estate are used by the public and hence are public roads. The term 'public place' is made enough to include any place wherein members of the public use and which they have right of access. The right of access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes or badges or on payment of fee. The use may be restricted generally or to W.P.C.No.12015/04 - 7 - particular purpose or purposes. What is necessary is that the place must be accessable to members of the public (AIR 1988 SC 248). If the public at a large have and right of access though that right is regulated or restricted, it would be a public place (2000(1) KLT (SN) 62). In view of the above, it has to be held that the road passing through Alempally Estate are public roads. Accordingly Motor Vehicles operating on those roads are liable to be taxed as per KMVT Act. Therefore the revision petition is dismissed.” 7. This Writ Petition is filed by challenging Ext.P17 order of the Jt. Regional Transport Officer, Vandiperiyar, Ext.P19 order of the appellate authority and Ext.P21 order of the revisional authority. 8. The petitioner relied on the decision of the Apex Court in **Travancore Tea Co. Ltd. v. State of Kerala** (1980 KLT 568). The petitioner submits that the facts of that case are identical to the facts of this case. It was a case interpreting the provisions of the Motor Vehicles Taxation Act, 1963. The provisions interpreted are similar to those contained in Motor Vehicles Taxation Act, 1976, it is submitted. So the principles laid down in that decision will be squarely applicable to the facts of this case, it is submitted. Learned counsel further W.P.C.No.12015/04 - 8 - submitted that the enquiry report of the Motor Vehicles Inspector, Vandiperiyar based on which the decision was rendered against the petitioner was not served on him. The inspection was conducted by the said officer without notice to the petitioner. So the reliance placed on that report vitiates the impugned orders. 9. The respondents have filed a counter affidavit resisting the prayers in the Writ Petition. Apart from the grounds taken in the impugned orders, the counter affidavit further says that the petitioner's vehicles are taken outside the estate for major repairs and also for replenishing fuel. Section 2(34) of the Motor Vehicles Act, 1988 defines 'public place' which includes public roads also. Every place where the public have access even if it is restricted by permissions, passes etc. should be treated as public place. It is pointed out that there is a school inside the estate apart from a Church. The public has access to those institutions which are public institutions. In the counter affidavit, the facts disclosed in the enquiry report of the Motor Vehicles Inspector, Vandiperiyar are reiterated. The Elappara-Upputhara public road goes by the side of the estate, it is submitted. Further, there is a Scheduled Caste Settlement colony on the rear side of the estate. There is access for the residents of that colony through this estate also. Therefore, the roads in the W.P.C.No.12015/04 - 9 - estate are public roads. So the vehicles plied on that roads are liable to pay tax. In support of those submissions, reliance is made on the decision of this court in **Chacko v. Mariyakutty** (1987 (1) KLT 32) and a decision of the Madras High Court in **Bhuvaneswari v. Sornakumar** (2000(1) KLT (Sh.Notes,p.55)(case No.62). 10. Heard learned counsel on both sides. 11. The criticism made by the petitioner that the report of the Motor Vehicles Inspector, Vandiperiyar has not been furnished to him is devoid of any merit. The contents of the report have been put to the petitioner. That will satisfy the requirement of law. Going by the pleadings and the materials on record, it would appear that the roads inside the estate can be used by the public also. The school and the Church inside the estate are public institutions to which everyone will have access though there may be a gate and watchman to control or restrict the entry. The persons going to the Church or the School cannot be prevented by him. Since the roads inside the estate are used by the public, they can be treated as public place or public roads. The respondents also maintain that the residents of the Scheduled Caste Settlement Colony behind the estate are also using the estate roads to reach the colony, though the petitioner disputes the said submission. In this proceeding, this disputed question cannot W.P.C.No.12015/04 - 10 - be decided. In view of the above factual matrix, the view taken by the statutory authorities that the roads inside the estate are public roads and therefore the vehicles of the petitioner being used on them are liable to tax cannot be said to be illegal or perverse. A plausible view on the facts has been taken by the authorities with which this court cannot interfere under Article 226 of the Constitution. In a Writ Petition, this court will not normally interfere with the findings of fact made by the statutory authorities. No ground has been made out like perversity of the finding, to take a different view in this case. In the result, the Writ Petition fails and it is dismissed. srd ## **K.BALAKRISHNAN NAIR, JUDGE**