CLINT JOHNSON Vs. STATE OF KERALA

JUDGEMENT

(1.) The point to be decided in this case is whether the exclusion of "mentally retarded persons" from the category of "physically handicapped persons" in Ext.P3 notification issued by the Government by invoking the powers under Sec.22 of the Kerala Motor Vehicles Taxation Act, 1976 (for short the, "Act,1976") is discriminatory or not.

(2.) The short facts narrated in the writ petition are as follows: The petitioner is a mentally retarded person and the writ petition is filed through his guardian, his mother. A perusal of Ext.P1, the Standing Disability Assessment Board Certificate issued by the competent authority, will show that the petitioner is having mental retardation (moderate) and his permanent disability was assessed as 75%. It is stated in the writ petition that the petitioner is fond of outings apart from that, if he is kept in the house itself, he often becomes restless and his behaviour sometimes becomes unpredictable. However, at the same time, it is very difficult for him to travel in the public transport system because of his physical disabilities. So, in order to integrate with the society, the parents of the petitioner thought of purchasing a motor car for his travel. Accordingly, a motor car was purchased in the name of the petitioner for his own use. It is the case of the petitioner that the 2nd respondent, The Transport Commissioner, insisted on the payment of one-time tax to the vehicle and hence, he was forced to pay the one-time tax as evidenced by Ext.P2 receipt. According to Ext.P3 notification, issued as per Sec.22 of the Act,1976, the payment of tax is exempted to - three wheelers, invalid carriages, motor cycles and motor cars which are owned by physically handicapped persons for their own use whether driven by the handicapped persons themselves or by others for the transport of such handicapped persons subject to the production of a certificate from the medical officer not below the rank of a civil surgeon that the owner of the vehicle is a physically handicapped person with more than 40% disability at least. For the purpose of the notification, the physically handicapped persons are explained as blind, deaf and orthopeodically handicapped persons. Ext.P3 is the notification. Based on Ext.P3 notification, the petitioner claimed the refund of Rs.40,570.00 paid by him as vehicle tax. But the 2nd respondent disallowed the exemption by stating that as per Ext.P3 notification, the petitioner is not entitled to the benefit because mentally retarded persons are not included in the explanation mentioned as physically handicapped persons in Ext.P3 notification. According to the petitioner, rejection of the prayer for the refund of the tax amount of Rs.40,570.00 paid by the petitioner is blatantly discriminatory and violates the fundamental right under Article 14 of the Constitution of India. It is also submitted that as per Ext.P5 notification, the charitable organisation exclusively used for the conveyance of mentally retarded/physically handicapped/deaf and dump children, inmates of orphanages and old age homes etc. are given a deduction in motor vehicles tax. Hence it is submitted that the petitioner, who is a mentally retarded person, is entitled to tax exemption. Hence, the above writ petition is filed with the following prayers :

(3.) The 1st respondent filed a counter affidavit, in which it is stated that as per the existing definition of the term 'physically handicapped', vide SRO No.301/98, mental retardation is not considered as a physical handicap and hence, the petitioner is not entitled to the benefit of exemption from the payment of motor vehicles tax. It is also stated in the affidavit that the hardship encountered in parenting a differently abled child is not disputed. But, according to the 1st respondent, The Taxation Authority, the 2nd respondent, The Transport Commissioner is bound by the prevailing rules and laws and thus the rejection of the prayer of the petitioner for exemption from tax is justified. It is stated in the counter affidavit that the 2nd respondent is not a competent authority to overrule the existing provisions and hence, there is no need to interfere with Ext.P4 order.