MUSTHAFFA Vs. ASSISTANT MOTOR VEHICLE INSPECTOR

JUDGEMENT

(1.) These Writ Petitions are before the Division Bench on a reference made by a learned single Judge stating that there is conflict between the observations in Vishwanatha Menon v. Addl. Registering Authority, 1998 2 KerLT 112 and the findings in W.A. No. 1560 of 2012 as regards the liability to pay tax under the Kerala Motor Vehicles Taxation Act, 1976, hereinafter referred to as the "K.M.V.T. Act", for short. Heard the learned counsel for the petitioners and the learned Special Government Pleader for the Department of Taxes. While the learned counsel for the petitioners argued that the tax liability under the K.M.V.T. Act is dependent on the availability of seats to carry passengers, the learned Special Government Pleader argued that the tax liability is dependent on the seating capacity and it cannot be treated as variable depending upon whether the operator removes the existing seats or fixes additional seats.

(2.) In Vishwanatha Menon , the Full Bench considered the question relating to jurisdiction of registering authority under S. 52 of the Motor Vehicles Act, 1988, for short, "MV 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 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 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 of 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 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 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.

(3.) Section 2(7) of the M.V. Act defines "contract carriage" to mean a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein.....S. 73 of that Act provides, inter alia, that an application for a permit in respect of a contract carriage shall contain the type and seating capacity of the vehicle.