Travancore Tea Co. Ltd. Etc. v. State of Kerala and Ors.

Judgment

The Judgment of the Court was delivered by KAlLAsAM, J. These three appeals are by special leave granted by this Court against the judgment and order of the High Court of Kerala in Writ Appeals Nos. 451, 630 and 807 of 1969 respectively. · The questions that arise for consideration in all the. three appeals are! the same and can be dealt with together. As. the facts so far as they ,,. are necessary for decision in these appeals are similar, we will confine the judgment to the facts in Civil Appeal No. 437 of 1970. The appellant in Ciivil Appeal No. 437 of 1970 is Travanrore Tea Estates Co. Ltd. Vandiperiyar in Kerala State. The 1st respondent is the State of Kerala and respondents nos. 2 and 4 are the ~uth~ities functioning under the Kerala. Mo~r Ve!1k~ faxation Act (Act 24 of 1963) which will hereatter be referred to~ the Act, was brouijit into force on 1-7-1963.

TheAct provides tbat "a tax at the rates fixed by the Government by nofifi." · cation in the Garette not exceeding the maximum rates specified in the First Schedulf> shall be levied onl all Motor Vehicles used or .keptl for use in the State." The appellant company owned 17 motor vebir cles, tractors, trailers and lorries all of which are registered in tbe _t • company's name under the Motor Vehicles Act. The company alleged that the vehicles were purchased by it solely and exclusively &'.Ji' use in the estates and intended to be used only for agricultural purposa and were not used nor kept for use ·in the State as contemplalsl . I under s. 3 of the Act. The compwiy is a tea plantation having eighi . estates which lie contiauous to each other and have an extent of "TRAVANCORE TEA co. v. STATE OF KERALA (Kailasam, !.) 9422.44 .acres in the aggregate.

Til_e company for the purpose of plantation are maintaining roads fit for vehicnlar traffic in the eight estates covering a length of 131 miles in the . aggrega~e. On 23rd September, 1964 a Bedford Lorry owned by the company an<\ bearing registration No. KLK-1540 was seized by the police and taken into custody under s. 13 of the Act. According to the appellant the -seizure was effected in Tengamullay Estate which is one of the eight estates owned by the company. The company wrote to the Department on 28-12-1964 stating that the vehicle was being used for agricultural purpose on private roads in the :Estates aDJl the company is not liable to pay tax and asked for the release Of the vehicle. On the company paying sum of Rs. 3,150/- as tax under '\iprotest for the period between 1-7-63 to 31-12-64, the vehicle w~ _!')deased. The department proceeded to prosecute the appellant in the Pee.rmade 1st Oass Magistrate's Court ind the case is still pend• ing. The appellant company filed 0. P. No. 199/65 before \he High Court of Kerala claiming that they were not liable to pay any tax. on the motor vehicles.

The High Court by its judgment dt. 3rd March, 1966 directed the Regional Transport Officer, Kottayam-2rul respondent herein, to examine the question raised in the writ peti~ ·!ion.and to pass final orders. It also directed that if the.petitioner was aggrieved with the order he was at liberty to approach the High Cburt. fu the· meanwhile it directed stay of prosecution and collection of tax. ·The matter was taken up for consideration by the 2nd respondent. The ·. · ~ 2nd 1espondent rejected the pleas of the appellant and by his order dt. 12-4-68 held that the 13 vehicles mentioned in the Original Petition were liable to pay ~ax under the Act. · The appellant filed a petition before the High Court for appropriate relief. The High Court disposed of the petition 0. P. No. 2173/68 along with 0. P. No. 2081/68 filed by Peermade Tea Co. who are the appellants in C.A. 438/70 in this .Court, by a common or<ler dt 19th December, 1968. Th.e learned! held that the language in. s.

3 of the Act showed that there i$ a, d~ure from the legislative policy o:f restricti;ng the tax liabifay only to vehicles using public roads. It held that the tax is imposed by s. 3 on all the moitor vehiclres used or kept for use in the State irrespective of any ,question as to whether they are used or kept for use on public roads or not. It rejected the contention on behalf. of the appellant that legislature must be taken to have intended to levy " f.- mich . tax only on motor vehicles , using or kept for use on pubfil: roads. The learned .Judge also held that the Act is not beyond the competence of thio legislative powers of the State as the tax.is le_viable by the State in respect of all m.otor vehicles are used or kept for use , in the State quite irrespective of any question as •cy whether or not such vehicles are us.ed on public roads. !1980] 3 S.C.lt. Aggrieved by the decision of the single Judge the appellant took the matter up on Letters Pate¢ Appeal.

The main contention raiself on bebalf c:4. the appellant was that the learned single Judge was in error in holding that all motor vehicles used or kept for 'use in the Stlte quite irrespective of any question as to whether or not they are used on public roads, is eaoneous in so far as i~ related to m.otOC vehicles used or kept exclusively for use in private estate and not used oc kept for use on the public roads of the State. The Letters Patent Bench affinned the decision of the single Judge and rejec!OO the appeal. The constitutional validity of the Act was not questioned before the Bench.

Holding that the legislative Entry 57 of the State l.ist only required that the vehicles should be suitable for use on roadsJ and the charging section QO!y provided that the vehicle should bJ:\_ used or kept for use in the State the required conditions were satisfied and there would be no justification for reading into the statute wordS- that are not there, and restricting the levy only on vehicle;i using public roads. While not contesting the correctness oll the observatioo of the Bench of the Kerala High Court that the levy cannot ba restricted to vehicles using the public roads, it was submitted thall tllo words in s. 3 cl. ( l ) of he Act "shall be levied on all motor vehicles used or kept for use in the State" should be confined to vehlcles used or kept for use on the public roads of the State, and not to vebic1es. . tbat are intended to be confined within the premises of the Estate. In other words the controversy between the parties before the R. T.O. the single Judge of the High Court and the Bench of the High Court can be stated by el(traeting the question at issue as framed by tilt R.T.O. "I understand that the roads used by these vehicles (even those within the estates) come under the definition of "Public Roads and Public Place" since at present I have not afforded opportunity to the company to refute the basis on which that fact is to be found.

I make it clear that I am not relying on that matter as a basis for this order and I reserve my right to investigate that matter if needed be later. I assume for argument sake (without conceding) that the estate roads are private roads. E\ren in that case, I am of the view that the company's vehicles are liable to pay tax. It is not in dispute that the vehicles are used and are kept for usei' within the State (The company roads are within the K~rala State). It is also not disputed that the vehicles are registered and their registration certificates are current and they are usable .motor vehicles. The tax levied under the K.M.V.T. Act is a tax on the possession of usable motor I \- TJUYANCOll.B TEA co. v. STATE OF KERALA (Kai/asam, J.) I 39J vdlide and it is realised for the propose of State Revenue.

Such being the nature of the levy accooling to me, I feel that irrespective of the q~tion whether the road on which llill veilicle is intend~ to be used is private or public, the tlU: ill attracted." The question that falls for decision is whether on the assumption that tb6 motoc vehicles are used or kept for use within the estate. and aot intended to be used on public roads of the State; the tax is leviatlle? In order to appreciate the question raised, it is n~ to refer to the relevant entry in the Omstitution, the provisiODS oji the Act and the Motor Vehicles Act ;!lid the decision relating to the quealioa rendered by this Court. (Entry 57 in List II of the Constitution: relates to taxes on vehicles, whether mechanically propelled oo not,. BOita.ble for use on roads, including tramcars subject to the proviSloos of entry 35 of List ill. This entry enables the State Government to levy a tax on all vehicles whether mechanically Jml'- petle.d Ot' not, suitable for use on roads.)

(emphasis supplied). There is no dispute that the vehicles are mechanically propelled and suitable lbr use on roads. Section 3 cA. the impugned Act (Kerala Motor Vehicles Taxation: Act (Act 24 Of 1963) provides that a tax "@hall be levied on all motor mllcles used or kept for use in the State." The levy is within the mmpdm<:e of the State legij;lature as entry 57 in List II anthorises hwy on vehicles suitable for use on roods. It has been laid d<*ll by this Court in "Boiani Ores Ltd. v. Orissa,"(') that under Eofi:y 57 of List II, the power of taxation cannot exceed compeasatocy nature which must have some nexus with the vehicles using tho l"Olldll i.e. public roads. If the vebicles do not use the roads, notwithstanding that they are registered under the Act, they cannot be taxed.. .

If the words used or kept for use fu the State is coostrued as wed or kept for use on the public toads of the State, the Act would be iil caofonnity with the powers conferred on the State legislafilre under Entry 57 of List II. If the vehicles are Sllitable for use on publio roads they are liable to be taxed. In order to levy a tax on vehii:fea used or kept foc use on: public roads of the State and at the same t11nc to avoid evasion Q!i tax the legislature has prescribed the procedure. Sub-section 2 o~ sec. 3 provides that the registered OWB« or any person having possession of or control of a motoc vehicle of. wbich · a certificate Of registration is current shall for the pw:pase of. this Act be deemed to use dr kept such vehicles for use (I) [1975] 2 SCR 138 at 155. SUPllEME COURT REPORTS in the State except during any period for which the Regional Tmnsport Authority has · certified in the prescribed manner that lhe motor vehicle has not been used or kept for use.

Under tbia subsection there is a presumption that a motor vehicle for whick the certificate of registration is current shall be deemed to be used or kept for use in the Slate. This provision safeguards the revenue of the State by relieving it from the burden of proving that the vebicle was uesd or kept fur use on the public roads of the State. At the same time the interest of the bonafide owner is safeguarded by enabling him to claim and obtain a certificate of non-user from the · prescribed authority. In order to enable the owner of the vehicle or th"e person who is in possession or being in control of the motor vehicle of which the certificate of registration is curre111 to clai;m exemption from tax he should get a certificate in the pr=rlbed manner from the Regional Transport Officer. Section 5 of the Act provides for exemption from payment of tax under certain circumstances.

It enables the registered owner or the person having possession or control of such vehicle to gi~e previous intimation in writing to the R.T.O. that the vehicle .would ~ be used !Or such period and at the same time surrender certificate ot registration and permit oil the vehicle. Section: 6 enables the registered owner or a person in possession or control of such a vehicle to ge~ refund cf tax if conditions specified in s. 6 are satisfied. Thus, in order to enable the registered owner or person in possession or control of a vehicle to get exemption of tax, adva_nce intimation to the R T.O. along with the surrender of certificate of registration is necessary. The provision of s. 3, su~sec. (2) as "'.ell as s. 5 and s. 6 are meant to prevent evasion of tax 'l!ld to provide for exemption from tax in proper cases.

Though the purpose of the Act is to .tax vehicles that are used or kept for use on the public roads of the State, the Slate is entitled for the purpose of saftlguarding the revenues of the State and to prevent evasion of the tax, to enact provision like provi" sion as in s. 3 raising a presumption tha~ the vehicle is used or. kep~ for use in the Staie without any further proof unless exemption is: claimed under s. 3 (2), s. 5 and S· 6. It niay be observed that reading sections 3, 5 and 6 it is clear that a levy of tax is contem· plated only on the vehicles that are used or kept for use on the public roads of the State. 'While we agree with the contentio~s of the learned counsel for the appellant that the tax is only exigible on vehicles used oc kept fur use on public roads, we must observe that in order to claim exemption from payment of ~ requirements of s. 3 (2) or ss. 5 and 6 should be ~atisfied. Surrender of the registratlon certificaie r ; I . TRAVANCORE TEA co. v. STATE OF KERALA (Kai/asam, l.) •contemplated under s.

5 is for making sur~ .that the motor vehiclei ·is not being put to any use andj does not have the effect of annulling the· certificate of registration. If the requi=ent contemplated under the Act iS not satisfied the registered owner or person in posssession or. control of the vehicle would not be entitled to claim any exemptionJrom payment of tax'. it remains for consideration as to what is the appropriate order that should be passed on the facts and circumstances of this 'c:ise: As a general proposition of law as exemption ~from payment of !aX; had not been claimed and obtained as required under this Act,. the appe1- · . !ant would be liable to pay tax but as already pointed out and set out clearly in the onler of the R.T.O., the question that was raised and ·disputed was whether on the assumpti-On that the vehicles were kejJil: for use in the estates ;i.Ione and not for use on the public roads of the ·State, tax is leviable.

The authorities proceeded on the basis that ·even assuming that the vehicles were not intended to be used on the public roads, they are liable to tax. _In this view, the appellant did not apply for exemption or notify non-user as required under thel piovi<;kms of the Act- But on the facts :ind circumstances of the case it is clear that the appellant claimed f.or exemption from tax on thei grounrl that it was not1being u-'ed on the public roads. In the circumstances of the case we have to take it that though, in terms, requiremen; of ss. 3 and 5 have not been complied "ith, in effect the requireiments have been satisfied as the dispute proceeded throughout or\ that basis. But as has been specifically stated by the R.T.0., the question whether estate roads. are public roads is reserved for further investigation and decision. · Equally the R.T.O. will be at liberty to act un<ler s.

5(2) of the Act and decline exemption from tlie: liability to pay tax for the relevant period if on verification it is found that the vehicle has been used during that period on the public road. Before concluding, we would refer to a contention miSed. by the · learned counsel based on the. decision of this Court in Boiani Ores Ltd. v. Orissa, (supra). The plea of the learned couasel is that the word "motor vehicle" should be understood as defined by s. 2(18) of the Motor V"hicles Act, 1939 and excluded from taxation motor vehi<:les "used solely upon the premises of the owner." As the vehicles · \vith which we are concerned were claimed to have been kept for use solely in the premises of the . company, it was contended that the vehicles are not exigible to tax. This Court in the decision cited was dealing with the Orissa Motor Vehicles Taxation Act, 1930. Section ·2(c) of the Orissa Taxation Act adopted the definition of Motor ·vehicles Act as found in Motor Vehicles Act, 1914.

The Motot'. -vehicles Act, 1914 was repealed and replaced by the Motor Vehicles Act, 1939. The definition of 'motor vehicle' in s. 2(18) of the Motor Vehicles Act, 1939 excluded motor vehicles used solely upon· thee pmnises ct. the owner. The Orissa Motor vehicles Taxa,tion Act wa& amended and Orissa Amendment Act, 1943 re-enacted the provisions Of the Taxation Act. 'Motor Vehicles' was defined under s. 2 ( 18) of the Motor Vehicles Act, 1939 excluding vehicles used solely upoo; the premises Of the OWller. Subsequently the definition ct. 'motor, vehicle' under s. 2(18) of the Motor Vehicles Act was amended by die Act 100 of 195 6 which confined the exemption from tax~tion to "motor vehicles of a ·special type adopted for use only in a fact.Ory 'QI in any other enclosed premises." The exemption from tax CllII· only be claimed after amendment to s.

2(18) by Act, 100 of 19S6, if the vehicle was of special type ado¢ed for use only in a fact.ocy ;(_ or in any other enclosed premises and the exemption that was srailable before the amendment by Act 100 of 1956 to Motoc Vdlldes used solely upon the premises of the owner was taken away. This. Court held "if the subsequent, Orissa Motor Vehicles TBXMion (Amendment) Act, 1943, incorporating the definition ct. 'motor: vehicle' referred to the definition of 'motor vehicle' under the Ari. as then existing, the effect of this legislative method would, in our view, amount to an incorporation by reference of the provisions of s. 2(1); of the Act in s. 2(c) of the Taxation Act . Any subsequent ameodment in the A!:t or a total repeal of the Act under a fresh legislation. on that topic would not affect the definition of 'motor vehicle' in· s. 2(c) of the Taxation Act." As a result this Court held that fue definition of 'motor vehicle' given in s. 2(18) of the Motoc Veiticles .

Act, 1939 before the amendment by Act 100 of 1956 was applicable. Relying on this decision, the learned counsel submitted that the test that is to be applied to determine whether motor vehicle is l1able to· tax or not is whether it comes under the exemption provided by under s. 2(18) of the Motor Vehicles Act, 1939 before the amendment .. We / are unable to accept the contention mainly on the ground that the "i Kerala Motor Vehicles Taxation Act, 1963 (Act 24 of 1963) came · into force on 18-3-63. Section 2(1) of the Taxation Act provide& that words and expression used but not defined in the Motor V ehicle11 Act,. t 1939 (Central Act 4 of 1939) shall have the meaning respectively assigned to them in that Act.

On the date when the Kerala Motor Vehicles Taxation Act was enacted, Moto~ ~hicles Act 1939 was ·amended by Act 100 of 1956 and the amended definition on the date 1' • II when the Taxation Act came into force exempted only motor vehicles. which are of a special type adopted for use only in a factory or in any other enclosed premises. The amended definition will have to be read into the Taxation Act which was enacted subsequent to the date of the· amendment of the definition of 'Motor Vehicle' by Act 100 of 1956< TRAVANCORE TEA co. v. STATE OF KERALA (Kailasam, !.) 139 7 In this vi.ew we feel that the decision in Bolani's case (supca) will not be of any assistance to the learned counsel for the appellants. The appeals are allowed to thei extent indicated above. But in the circumstances there will be no order as to costs. S.R. 1.ppeals allowed in part.