T T THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) These Original Petitions have come before us on a referernce made by learned single Judge. The issue raised in all these cases is the validity of the amendmem brought out to the Kerala Motor Vehicles Taxation Act, 1976, hereinafter referred to as the Act Kerala Finance Bill, 1993 incorporated Entry 3A to the Schedule to the Kerala Motor Vehicles Taxation Act, 1976 imposing tax on private service vehicle on the basis of seating capacity. That schedule was amended by the Finance Bill of 1994 and the rate of tax prescribed in Entry 3A has been made applicable to omni buses for private use also, According to petitioners, a private service vehicle which is being regularly used in connection with the trade or business of the owner, which is so used with a motive to earn profits can never be equated with a purely private vehicle used for personal purposes. So the amendment whereby it seeks to equate the above mentioned two types of vehicle is unjustifiable and ultravires the powers of the legislature.

(2.) Petitioners purchased Mahendra and Mahendra Commander Jeeps, Tractor, Tata mobile passenger version, Trax etc. which could accommodate more than six persons excluding the driver. It is alleged that they purchased these vehicles for their porsonal use solely as means of transport for themselves and the members of their family. The vehicles were produced for inspection and registration before the Registering Authority. These vehicles were registered as "light motor vehicles" (omni bus). The motor vehicle tax and surcharge for a period of two years was fixed at the rate of Rs. 600/- per annum as private vehicle under Entry 7 of the schedule to the Kerala Motor Vehicles Taxatation Act, 1976. By the amendment of 1993, Clause 3A was added to the schedule requiring every "private service vehicle" to pay tax at the rate of Rs. 100/- per seated passenger. In 1994 Clause 3A was amended adding "omni bus for private use " along with private service vehicles. Consequently "omni buses for private use" are classified along with "private service vehicle" and tax levied accordingly. The legislature by treating omni bus for private use along with private service vehicles has acted in an illegal, arbitrary, unconstitutional and discriminatory manner, contends the petitioners.

(3.) Words and expressions used in the Act which have not been defined in it should have the meaning respectively assigned to them in the Motor Vehicles Act or the Rules made thereunder, as per Section 2(m) of the Act. Section 2(21) of the Motor Vehicles Act, 1988 defines "light motor vehicle" as a transport vehicle or omni bus, the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 6,000 kilograms. Clause 22 of that Act define "maxicab" as any motor vehicle constructed or adapted to carry more than six passengers but not more than twelve passengers excluding the driver, for hire or reward. Clause 25 describes "motorcar" as any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward. As per Clause 26 otor car" means any motor vehicle other than a transport vehicle, omni bus, road-roller, tractor, motor cycle or invalid carriage. Omni bus has been defined in Clause 29 as any motor vehicle constructed or adapted to carry more than six persons excluding the driver. Section 2(33) describes "private service vehicle" 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 the public purpose. From these definitions, it is seen that any motor vehicle constructed or adapted to carry more than six persons excluding the driver will fall within the category of omni bus. A private service vehicle can be an omni bus because the vehicle is constructed or adapted to carry more than six persons excluding the driver. A private service vehicle should ordinarily be used for the purpose of carrying persons for, or in connection with the owners, trade or business otherwise than for hire or reward. Motor vehicles used for public purpose will not fall within the category of private service vehicle. An omni bus which is adapted to carry more than six passengers excluding the driver can also be a private service vehicle. If such an omni bus is used otherwise than for hire or reward, that omni bus squarely falls within the category of private service vehicle. Whether the vehicle is private service vehicle or omni bus capable of satisfying the requirements of private service vehicle is put in use the wear and tear of the road will be the same.