FR PIOUS Vs. SUB RTO

JUDGEMENT

(1.) THE petitioners in these Original Petitions are either priests or nuns and they are registered owners of Bajaj Tempo or Mahindra Jeep having seating capacity of 10 including driver. While the petitioners were paying tax at the rate applicable to "omni bus for private use" under item 6 of Schedule to the Kerala Motor Vehicles Taxation Act, 1976 (hereinafter called the Taxation Act), the R. T. O. changed the endorsement in the R. C. Book describing the vehicle as "private service vehicle". THE endorsement is as follows: "balance tax from 5/2000 to 6/2002 as per circular no. 7/2000 of TC TVM is due and tax from 1. 7. 2002 at PSV rate is due at Rs. 1260/- per quarter. "

(2.) THE tax is being demanded from 5/2000 to 6/2002 based on the circular dated 15. 7. 2002 issued by the Transport Commissioner. THE said endorsement is produced as Ext. P1 and the circular Ext. P2 in O. P. No. 23403/2002. Similar endorsements are made by the respective R. T. Os. in the case of other petitioners. Letters demanding motor vehicle tax at the rate applicable to "private service vehicles" are also issued. THE petitioners' case is that the petitioner's vehicle are omini bus for private use coming under item 6 of the Schedule to the Taxation Act and therefore, the original endorsement and payment of tax being made at the rate of Rs. 70/- per seat are correct.

(3.) ISSUES arise for consideration both under the Motor vehicles Act as well as under the Motor Vehicle Taxation Act. There is no dispute that the vehicle in the case of the petitioners are omni bus. Under S. 2 (29) of the Motor Vehicles Act, "omni bus" means any motor vehicle constructed or adapted to carry more than six persons excluding the driver. So as far as the requirement of Motor Vehicles Act is concerned, permit is required only if the vehicle is a transport vehicle. "transport vehicle" as defined under S. 2 (47) of the M. V. Act includes a private service vehicle. The case of the respondents is that the petitioners are using the vehicle as 'private service vehicle' and therefore, they need permit. 'private Service Vehicle' is also defined in S. 2 (33) of the Act which reads 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. " It is clear from the definition of private service vehicle that the vehicles used by the institutions or persons for trade or business only come within the category of private service vehicle. Trade or business are not defined under the Act and therefore, the meaning of the words 'trade' and 'business' available in the common parlance has to be adopted. Trade and business are explained in the Blacks Law Dictionary as follows: "trade means the act or business of buying and selling for money, traffic barter. Business means employment, occupation, profession or commercial activity engaged in for gain or livelihood. "