JAGAN THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, the proprietor of a bakery, purchased a tempo traveller with a seating capacity of 17 passengers excluding the driver, manufactured by Force Motors, from the dealer at Mylapra in Pathanamthitta District on 20-10-2011. In the sale certificate, a copy of which is produced as Ext.P1, the address of the buyer is given as "Jagan Thomas, S/o Thomas Eapen, Thomson Bakery, VII/357, Niranam P.O., Kadapara, Thiruvalla-689581" and the dealer had described the class of the vehicle as, light motor vehicle contract carrier. The petitioner applied for registration of the vehicle on 25-10-2011 and produced along with the application, the original of Ext.P1 sale certificate, Ext.P2 tax invoice evidencing payment of value added tax, Ext.P3 certificate of insurance and Ext.P4 letter wherein he had declared that he intends to use the vehicle for personal use and requested that the vehicle may be registered as a private service vehicle for personal use. The third respondent returned the original of Ext.P4 letter by making the following endorsement on the original of Ext.P4 letter. The endorsement reads as follows:

(2.) The third respondent has filed a counter affidavit dated 1-2-2012. In paragraph 4 thereof, it is stated that as the petitioner purchased the vehicle in the name of his firm "Jagan Thomas, Thomson Bakery, Building No. VII/357, Niranam P.O., Kadapara, Thiruvalla", it means that the owner of the vehicle maintains it for the purpose of carrying persons for or in connection with his trade or business otherwise than for his personal purpose and therefore, the petitioner's vehicle can be registered only as a private service vehicle and classified as a transport vehicle with liability to pay motor vehicles tax at the rate applicable to transport vehicles. As regards, the petitioner's contention that identical vehicles manufactured by the very same manufacturer have been registered either as an omnibus for private use or as a private service vehicle for personal use, it is contended with reference to the registration details of the said vehicles that the registered owners of those vehicles are individuals and not institutions or concerns and therefore, no reliance can be placed on Exts.P5 to P7 registration particulars.

(3.) The second respondent has filed a counter affidavit dated 22-2-2012, wherein, in paragraph 4, after referring to the notification dated 5-11-2004 issued by the Central Government, it is contended that as the vehicle in the instant case was purchased in the name of a company (business concern) with the intention to use the vehicle for business purposes, it can be registered only as a contract carriage or as a private service vehicle; and in both events, the vehicle should be treated as a transport vehicle for taxation purposes. In paragraph 9 it is contended that as the petitioner's vehicle was purchased in the name of a business concern and it has a seating capacity of more than 6 passengers excluding the driver, it cannot be registered as a private service vehicle for personal use.