V. L. Prasath v. Secretary to Government, Department of Transport, Secretariat, Thiruvananthapuram; State Transport Authority, Thiruvananthapuram; Regional Transport Officer, Kasaragod

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 30TH DAY OF OCTOBER 2014/8TH KARTHIKA, 1936** ## **WP(C).No. 32070 of 2008 (P)** **----------------------------** ## **PETITIONER :** **--------------------** **V.L.PRASATH, AGED 31, S/O. V. LOGANANTHAN 150, P.K. QUARTERS, VIDYA NAGAR P.O. KASARGODE.** **BY ADVS.SRI.NAIR AJAY KRISHNAN SRI.R.T. PRADEEP** **RESPONDENT(S) :** **----------------------------** **1. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF TRANSPORT, SECRETARIAT, THIRUVANANTHAPURAM.** ## **2. THE SECRETARY** **STATE TRANSPORT AUTHORITY, THIRUVANANTHAPURAM.** ## **3. THE REGIONAL TRANSPORT OFFICER, KASARAGOD.** **R1 TO R3 BY GOVT. PLEADER SRI. JOBY JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-10-2014, ALONG WITH WP(C) NO. 21082/2012 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 32070 of 2008 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF PERMIT VALID FROM 12-1-94 TO 11-1-99. EXT.P2 COPY OF ENDORSEMENT OF TRANSFER OF PERMIT WITH EFFECT FROM 29-4-97. EXT.P3 COPY OF RENEWAL OF PERMIT FOR A PERIOD OF 5 YEARS FROM 12-1-99. EXT.P4 COPY OF ENDORSEMENT OF TRANSFER OF PERMIT WITH EFFECT FROM 28-3-01 IN THE NAME K. BABU. EXT.P5 COPY OF ENDORSEMENT OF REPLACEMENT OF KL 14/7027 BY KL 14/C 7479 W.E.F. 17-5-12. EXT.P6 COPY OF ORDER DATED 22-8-03. EXT.P7 COPY OF ENDORSEMENT OF RENEWAL OF PERMIT FROM 12-1-04 TO 11-1-09. EXT.P8 COPY OF ENDORSEMENT OF TRANSFER OF PERMIT IN THE NAME OF PETITIONER W.E.F. 7-10-04. EXT.P9 COPY OF ENDORSEMENT OF REPLACEMENT OF STAGE CARRIAGE KL-14/D.5289 BY KL.14/F.5969. EXT.P10 COPY OF ORDER DATED 9-4-2008 BY 2ND RESPONDENT. EXT.P11 COPY OF REPRESENTATION DATED 20-5-08 BEFORE THE 1ST RESPONDENT. EXT.P12 COPY OF ORDER DATED 25-9-08 BY 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## P.D.RAJAN, J ......................................... WP(C)Nos. 32070 of 2008, 16844, 16845, 21082, 27076, 29232 & 31505 of 2012, 3899, 5289 8628, 17444, 27212 & 27213 of 2013 ......................................... Dated 30[th] October, 2014 ## JUDGMENT Since the issues involved in all the writ petitions are inter-connected, they are disposed of by common judgment. 2. The petitioner in WP(C)No.5289 of 2013 is the registered owner of Contract Carriage bearing No.KL-01-AQ 7623. He has got a valid permit also. The seating capacity of the said vehicle is 13. The respondent demanded to increase the seating capacity to 15. According to the petitioner, he is liable to pay the tax only as per the number of passengers permitted in the permit. Since the respondent is not accepting the tax, petitioner is put to great hardships. Hence, the petitioner approached this Court with WP(C) No.5289 of 2013 (along with connected writ petitions) filed under Article 226 of the Constitution of India seeking the following reliefs: “i) issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent not to compel the petitioner to increase the seating capacity of the vehicle beyond the stipulation in the Registration Certificate issued to him; 2 Wpc 32070/2008 & conn. ii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent to permit the petitioner to ply his vehicle KL-01-AQ 7623 as a 13 seater contract carriage vehicle after accepting the tax for the number of passengers permitted as per Contract Carriage Permit; and (iii)To grant such other reliefs as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case.” 3. When the matter came up for hearing, the learned counsel for the petitioner submitted that the dispute in these cases is already settled by a Division Bench of this Court in ## _**Musthaffa**_ v. _**Assistant Motor Vehicle Inspector**_ [2014 (1) KLT 575], which was agreed by the respondents also. In paragraphs 3, 5 and 7 of the above decision, it was held as follows: “3. In Vishwanatha Menon (supra), the Full Bench considered the question relating to jurisdiction of registering authority under S.52 of the Motor Vehicles Act, 1988, for short, “M.V Act”, in matters relating to grant of permission for alteration of the motor vehicle and whether an application for altering the seating capacity can be refused for the reason that it would adversely affect the interest of revenue. The question whether an application for altering the seating capacity can be refused for the reason that it would adversely affect the interest of revenue was declined to Wpc 32070/2008 & conn. 3 be answered since according to the learned Judges, such issue did not arise for consideration on the facts of that case. In answering the question regarding the jurisdiction of the registering authority in relation to grant of permission for alteration of motor vehicle, three aspects were pointedly noted on the basis of the governing statutory rules. Stage carriage vehicles are not vehicles with ready-made body built by manufacturers themselves. In so far contract carriage vehicles with bodies manufactured by the manufacturers themselves and having a definite seating capacity as designed by the manufacturer, it was held that no permission was necessary under S.52 of the M.V. Act to reduce the number of seats as by such reduction, no alteration has to be made in the entry regarding 'seating capacity' in the certificate of registration and the 'seating capacity' in such cases would continue to be the same irrespective of the reduction in the number of actual seats. The Division Bench in W.A. No.1516 of 2010 is seen to have proceeded on the same footing, that is to say, that the tax liability due on a contract carriage will depend upon the seating capacity as shown in the R.C. Book. There are some observations in Vishwanatha Menon (supra) touching the provisions relating to rate of tax. However, the conclusion of those discussions as reflected in paragraphs 16 to 18 of that judgment as reported in K.L.T. Was to the effect that no permission is necessary under S.52 f the M.V. Act for reducing the number of seats of contract carriage vehicles with bodies manufactured by the manufacturers themselves and having a definite seating capacity as designed by the manufacturer because, by such reduction, no alteration has to be made in the entry regarding the seating capacity in the certificate of registration. It Wpc 32070/2008 & conn. 4 was also held that the 'seating capacity' in such cases would continue to be the same irrespective of the reduction of number of actual seats. The statements in that judgment that the tax liability for contract carriage vehicles is related to “the number of passengers permitted to carry in the respective vehicles” and the number of passengers permitted to carry will depend on the permit issued to the particular vehicle” were made only to further state that no arguments were placed before the Full Bench, including as to what are the conditions to be satisfied for making modifications or changes. It was, therefore, that the learned Judges declined to express any view on the question as to whether permission to alter the seating capacity can be refused for the reason that it would adversely affect the interest of revenue. Under such circumstances, we are of the view that Vishwanatha Menon (supra) was not rendered laying down any principle of law that would apply to the question as to whether the liability to tax under the K.M.V.T. Act would depend on the number of seats as regards contract carriage vehicles. xxx xxx xxx 5. Section 3 of the K.M.V.T. Act is the charging provision. It provides that tax shall be levied on every motor vehicle used or kept for use in the State, at the rate specified for such vehicle in the Schedule. Therefore, levy of tax has to be at rate specified for the vehicle concerned. Going to the Schedule to that Act, Sl.No.7 deals with motor vehicles plying for hire and used for transport of passengers and in respect of which permits have been issued under the M.V.Act. That clause is further classified into two sub clauses. Sub-clause (i) deals with vehicles permitted to ply solely as contract carriages and to carry passengers. That sub-clause gets Wpc 32070/2008 & conn. 5 further classified into (a) to (g) of which, (g) deals with tourist motor cabs and the other categories are identified by the number of passengers that could be carried in the vehicle. The vehicles permitted to ply solely as stage carriage get classified under subclause (ii) of Clause 7. While the number of passengers permitted to be carried may be relevant in so far as contract carriages with a definite seating capacity as determinable on the basis of its manufacture are concerned, the reduction in the number of seats, if any, made from the seating capacity, cannot be taken into consideration for reducing the rate of tax. To elucidate, it may be noted that if a contract carriage is a vehicle with manufactured body and fixed seating capacity designed by the manufacturer and if such seating capacity is, say 20; then by reducing the number of seats, the liability to pay tax cannot be brought down from what would be payable for the seating capacity of 20 persons. xxx xxx xxx 7. Number of passengers permitted to carry would depend upon the permit issued to the particular vehicle. Questions as to whether permit holder has made application for making modifications in the permit, what are of the conditions to be satisfied for such change, or modifications in the permit and whether the authorities can refuse permission to modify the permit once granted only for the reason of consequential reduction in revenue are not matters for this Court to go into in this proceeding. In this case we are concerned with only the question as to where petitioner's application for reducing the seating capacity would lie under S.52 of the Act. Therefore in a case where there is a vehicle which has got definite seating capacity as designed by the manufacturer, no permission is necessary under S.52 of the Act for reducing the number Wpc 32070/2008 & conn. 6 of seats, since no such alteration has to be made in the entry regarding seating capacity of the registration certificate. Seating capacity would continue to be the same irrespective of the reduction of the actual number of seats.” 4. In the above case, this Court considered the seating capacity as designed by the manufacturer and the position of alteration made by the purchaser after obtaining a certificate of registration. The reduction in tax depends upon the permit obtained by the petitioner. 5. Similar question was raised by the petitioners in WP (C)Nos. 32070 of 2008, 16844, 16845, 21082, 27076, 29232 & 31505 of 2012, 3899, 8628, 17444, 27212 & 27213 of 2013. I have considered the reliefs sought for in the above writ petitions. In the circumstances, I am of the opinion that further discussion about the facts of these cases is not necessary. In view of the above observation made by the Division Bench of this Court, I am of the opinion that there is no merit in all these writ petitions and they are dismissed accordingly. ## **P.D. RAJAN, JUDGE.** lgk