Judgment :- 1. This petition has come up before a Division Bench of this Court on the basis of an order of reference by a learned single judge doubting the correctness of the decision in Writ Appeal Nos. 421 and 507 of 1973 and 454 of 1974. The question arising for consideration is whether the goods vehicles KLA. 4416 and 4421 are liable to be taxed for the quarter 1-7-1972 to 30 91972. The vehicle's had been garaged, according to the petitioner, the registered owner of the vehicles, before the quarter commenced, for repairs and the fact was intimated in writing to the Regional Transport Officer and S.5 of the Kerala Motor Vehicles Taxation Act, 1963 (hereinafter referred to as the Act) complied with. It appears that after the vehicles were so garaged with Swarnam Motors, they were removed from the workshop to the premises of the owner due to lack of space at the workshop of Swarnam Motors. There is some controversy as to when this removal was. An appeal was taken from the order of the Regional Transport Officer (Ext. P-1) holding that the exemption from tax claimed by the petitioner for the quarter ended 30 91972, for the vehicles, cannot be granted. Evidence appears to have been sought to be produced before the appellate authority regarding the date of removal of the two vehicles. Exts.P-3 and P-4 were produced before the appellate authority and were relied on for the purpose that the removal was before the quarter commenced. This contention of the petitioner was not accepted by the appellate authority and it appears that the petitioner himself admitted before the appellate authority that the removal was on the 14th July, 1972, i.e. after the quarter commenced on 171972. In the final paragraph of the appellate order Ext. P5 it is stated as follows: "The records show that the petition from the appellant was enquired into by the Assistant Motor Vehicle Inspector who has reported that the vehicle was kept in Swarnam Automobiles from 17 1972 to 14 71972 only and thereafter it was removed from the using its own mechanical power. Thereafter the party was heard by the R.T.O. In the course of enquiry, the party admitted that the vehicle was not used on the road except for removal. Thereafter the party was heard by the R.T.O. In the course of enquiry, the party admitted that the vehicle was not used on the road except for removal. As regards the mode of removal it has been made out that the vehicle was removed by its own mechanical power". We have therefore in this case to proceed on the basis that the vehicles were removed from the Swarnam Automobiles on or about the 14th of July, 1972 and they were driven under their own mechanical power to another place. The question is whether such removal of the vehicle would amount to user of the vehicle as contemplated by the charging section, S.3 (1) of the Act. Sub section (1) of S.3 is in these terms: "3. Levy of tax:- (1) Subject to the other provisions of this Act, on and from the date appointed under sub-section (3) of S.1, a tax at the rates fixed by the Government by notification in the Gazette, not exceeding the maximum rates specified in the First Schedule, shall be levied on all motor vehicles used or kept for use in the State: Provided that no tax shall be levied on a motor vehicle kept by a dealer in or a manufacturer of such vehicle for the purposes of trade and used under the authorisation of a trade certificate granted by the registering authority". Motor vehicle has not been defined in the Act. But S.2 (1) states: "2(1) words and expressions used but not defined in this Act but defined in the Motor Vehicles Act, 1939 (Central Act 4 of 1939) shall have the meaning respectively assigned to them in that Act." And S.2(18) of the Motor Vehicles Act, 1939 defines 'motor vehicle' in these terms: "2(18) ' motor vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises;" 2. There is a presumption arising by virtue of sub-section (2) of S.3 of the Act which is in these terms: "3(2) The registered owner of, or any person having possession or control of a motor vehicle, of which the certificate of registration is current, shall for the purposes of this Act, be deemed to use or keep such vehicle for use in the State except during any period for which the Regional Transport Officer has certified in the prescribed manner that the motor vehicle has not been used or kept for use". It therefore follows that if the registration of a vehicle is current the provisions of sub-section (1) of S.3 would be satisfied and the tax would be attracted. This liability to pay tax can be avoided by seeking the exemption under S.S. We shall read the whole of S.5 of the Act. "5. Exemption from tax:- (1) In the case of a motor vehicle not being intended to be used or kept for use during the first month or first and second months of a quarter, or the whole of a quarter, half year or year, as the case may be, the registered owner or person having possession or control of such vehicle, shall give previous intimation in writing to the Regional Transport Officer in whose jurisdiction the motor vehicle is kept that such vehicle would not be used for such period and may at the same time surrender the certificate of registration and permit, if any, of the vehicle; and thereupon notwithstanding anything contained in sub-section (2) of S.3, the registered owner or such other person shall not be deemed to have used or kept for use the vehicle for such period and no tax shall be payable in respect of such vehicle for such period. (2) Nothing in sub-s. (1) shall exempt a person from liability to pay tax in respect of such vehicle, if on verification it is found that the vehicle has been used during such period or any portion thereof". 3. As we said earlier it has been admitted that S.5(1) has been complied with by the petitioner. Even so by virtue of sub-s. (2) of S.5 if the vehicle has been actually used the tax would be payable as is evident from that sub-section. 3. As we said earlier it has been admitted that S.5(1) has been complied with by the petitioner. Even so by virtue of sub-s. (2) of S.5 if the vehicle has been actually used the tax would be payable as is evident from that sub-section. So the question whether the removal of the vehicle under its own power would be user of the vehicle within the meaning of that word 'use' occurring in subsection (1) of S.3 as well as S.5(2) arises. Before we proceed to deal with the arguments on these aspects it is necessary to notice S.22 as well as the notification issued under that section. S.22 reads thus: "22. The Government may, if in its opinion, it is necessary in the public interest so to do, by notification in the Gazette, make an exemption, reduction in the rate or other modification in regard to the tax payable (i) by any person or class of persons; or (ii) in respect of any motor vehicle or class of motor vehicles; or (iii) in respect of any motor vehicle or class of motor vehicles using a specified route". Exercising the power conferred by the section a notification exempting certain motor vehicles from tax under the Act had been issued. It is necessary to notice the three classes of vehicles which were so exempt. We shall extract Clause.8,10 and 11 of the notification. "8. Any transport vehicle, which is, during the course of any specified taxation period, used for proceeding to or returning from a workshop for the purpose of equipping such vehicle with a producer gas installation or with a diesel oil engine and which is not used for any other purposes during the whole of the period, provided that previous permission in writing shall be obtained from the Regional Transport Officer concerned for the journeys to and from the workshop. 10. Motor vehicles which during any specified taxation period are used only for the purpose of inspection and obtaining a certificate of fitness under S.38 of the Motor Vehicles Act, 1939 (Central Act IV of 1939) from the tax payable in respect of such period. 10. Motor vehicles which during any specified taxation period are used only for the purpose of inspection and obtaining a certificate of fitness under S.38 of the Motor Vehicles Act, 1939 (Central Act IV of 1939) from the tax payable in respect of such period. Provided however, that in the case of a motor vehicle for which permit has already been issued under the Motor Vehicles Act 1939 (Central Act IV of 1939) the exemption shall apply only if the Regional Transport Officer concerned has immediately prior to the period of inspection issued a certificate to the effect that no tax is in arrears in respect of the said vehicle. 11. Any motor vehicle in disorder which is being removed from one place to another by towing or pushing and which is not used or kept for use for any other purpose during the whole of any taxable period, if prior written permission specifying the date of such removal has been obtained from the Regional Transport Officer concerned, and the owner has surrendered the certificate of registration and permit if any, of the vehicle to the Regional Transport Officer before such use: Provided that if for any reason the above condition for grant of exemption is not complied with, tax at the rate prescribed for the class of vehicle for one month of a quarter, i e. 2/5 of the rate per quarter will be levied, irrespective of the month of the quarter during which the vehicle is removed by pushing or towing". 4. In support of the argument that the vehicle had not been used, reliance has been placed on the observations of Isaac J. in the judgment in O.P. 6003 of 1971. The learned judge observed as follows: "It is contended that it is not the use of the road for removing the vehicle from one place to another, but it is the use of the vehicle on the road or keeping it in the State for using that attracts the tax liability. I agree with this contention. Removal of a vehicle under repair from one place to another for the same purpose does not attract the tax liability under S.3 of the Act." 5. I agree with this contention. Removal of a vehicle under repair from one place to another for the same purpose does not attract the tax liability under S.3 of the Act." 5. The learned counsel for the petitioner sought support for these observations from the three decisions In in re T. V. Moidu and another AIR 1960 Madras 265, State of U. P. v. Abdul Lathif and another AIR 1963 Allahabad 229 and Ahamed v. State of Kerala 1964 KLT 686. These decisions emphasised the difference between using a vehicle and driving a vehicle. And it was held in In re T. V. Moidu and another AIR. 1960 Madras 265 for the purpose of S.42 of the Motor Vehicles Act. 1939 that the use must be the use of the vehicle as a transport vehicle. We shall read S.42 (1) of the Motor Vehicles Act, 1939. "42 (1). No owner of a transport vehicle shall use or permit the use of the vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used". 6. The provisos to sub-section (1) of S.42 are not relevant for the purpose of this case. Ramaswami J. concluded his judgment in the case thus: "The net result of this analysis is that S.42 (1) has to be read as follows: "No owner of a transport vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place" The emphasis is ours. Relying on wording of sub-section (1) of S.42 and understanding the scheme of the Motor Vehicles Act, 1939 and bearing in mind the distinctions between the user of a transport vehicle and the driving of a vehicle the view has been taken that it is only the user of the vehicle as a transport vehicle that would attract S.42 (1). This decision has been followed by the Allahabad High Court in State of U.P. v. Abdul Latif and another AIR. 1963 Allahabad 229. This decision has been followed by the Allahabad High Court in State of U.P. v. Abdul Latif and another AIR. 1963 Allahabad 229. There is no further discussion in the Allahabad case nor is there any in the decision of this Court in Ahamed v. State of Kerala 1964 KLT 686 which followed the Madras and Allahabad cases. Counsel for the petitioner submitted that we must follow the same reasoning, for the purpose of S.3 (1) of the Act. It was contended that in the case of goods vehicles only the user of the vehicles as goods vehicles would attract the charge under the section. 7. We have already referred to S.3 (1) and the definition of the term "motor vehicle" which is applicable and neither the charging section nor the definition of the term "motor vehicle" would enable us to say that we should understand the word "used' in S.3 (1) of the Act as a particular type of user. The word is wide enough to take any type of use. The distinction that when a vehicle is taken to the garage it is only used on the road and that the vehicle cannot be said to be used, with respect does not appeal to us. The only qualification introduced by the section is that such user must be in the State. But the 'user' of the vehicle which has been defined as a mechanically propelled vehicle adapted for use on roads will include its user for being taken to a garage for attendance to necessary repairs. The only other qualification which we can possibly read into S.3 (1) must be that arising from the scope of the legislative entry under which the Act has been made. The relevant entry is item 57 of the State List of the Seventh Schedule to the Constitution. That entry only introduces the qualification that taxes are to be imposed on vehicles whether mechanically propelled or not, "suitable for use on roads". As long as a vehicle is capable of being used on roads even though it might stand in need of repairs, an enactment can provide that tax must be paid on such user and that is what we think has been done by S.3(1) of the Act. As long as a vehicle is capable of being used on roads even though it might stand in need of repairs, an enactment can provide that tax must be paid on such user and that is what we think has been done by S.3(1) of the Act. This view seems to get reinforced by the provision in S.22 providing for exemption and the notification that has been issued under the section particularly Clause.11 thereof which we have read. That clause enacts that exemption for removal to a workshop will be granted only under two conditions; one that the vehicle bad been towed or pushed and secondly that written permission had been obtained from the Regional Transport Officer specifying the date of its removal. The scheme of the Act therefore seems to us to provide for the tax being attracted in all cases where a vehicle had been used on the road. 8. The learned Government Pleader brought to our notice two decisions one in London County Council v. Wood 1897(2) Queen's Bench Division 482 and the other in Elliott v. Grey 1959(3) All England Law Reports 733. The first of these cases considered the effect of a bye-law made under S.32 of the Highways and Locomotives Act, 1879. That bye-law was in these terms: "No locomotive shall be used on any highway within the county of London until an annual licence for the use of the same shall have been obtained from the council by f he owner thereof": 9. the question that arose for consideration was whether "a steamroller which was not at the time being employed in road-making, but was merely passing through the county to a destination outside, was being "used Within the county" within the meaning of the section and the bye-law". The ruling was that the steam-roller was being used within the county though it was not being used as steam-roller. No doubt emphasis was placed on the object of the levy imposed for license and it appears that the levy was related to the user of the highway. 10. A more stringent view appears to have been taken in the decision in Elliott v. Grey 1959(3) All England Law Reports 733 apparently considering the scope and ambit of the Insurance Act which came up for consideration. 10. A more stringent view appears to have been taken in the decision in Elliott v. Grey 1959(3) All England Law Reports 733 apparently considering the scope and ambit of the Insurance Act which came up for consideration. It was ruled therein that "the words "to use a motor vehicle on a road", in S.35(1) of the Road Traffic Act, 1930, meant "to have the use of a motor vehicle on a road", and, as the car could be moved on Fe. 7,1959, even though it could not be driven, the appellant bad the use of it on a road, within the meaning of S.35 (1)." Lord Parker, C. J. stated his reasoning thus: "It is something for the protection of third parties. Approached in that way, it seems to me that the word "use" there is, as counsel for the respondent suggests, really equivalent to "have the use of a motor vehicle on a road". Indeed, the definition which counsel for the appellant suggested, and which, I think, was that "use" means to have the advantage of a vehicle as a means of transport including for any period or time between journeys, itself suggests availability. In other words, it is really equivalent to what counsel for the respondent suggests by the expression "have the use of". "In the present case, although this car could not be driven, there is nothing to suggest that it could not be moved. As I pointed out in argument, for all we know it was on the top of a hill and a little-boy could release the brake and the car could go careering down the hill. In the absence, at any rate, of a finding that it was immovable as, for instance, that the wheels were removed or something of that sort, I cannot bring myself to think that this car was not fairly and squarely within the words which I have used, "have the use of a motor vehicle on the road". 11. It is significant that the motor car which was on the 7th February, 1959 parked outside the house of the appellant had collided with another motor car and that it had broken down as early as December 20, 1958 and could not be driven. 11. It is significant that the motor car which was on the 7th February, 1959 parked outside the house of the appellant had collided with another motor car and that it had broken down as early as December 20, 1958 and could not be driven. It was observed thus: "Apparently its carburettor broke, the self-starter would not work, and its starting handle would not fit into the starting-handle hole because its worn end would not fit. Immediately that happened the appellant placed the car outside his house.and left it there, and it was still there on Feb. 7th. 1959. He also jacked the car up so that its wheels were off the ground and removed the battery. Having done that and having decided not to drive the car until it was repaired, he terminated his insurance cover. On this very day, Feb. 7,1959, however, he had, because I suppose spring was coming on, cleaned the car, oiled its locks sent the battery to be recharged and replaced the old carburettor with a new one. He found that the self-starter solenoid needed renewing. He also had un jacked the car. It is found that at the time in question, Feb. 7, the car could not be mechanically propelled because the engine would not work, and also that the appellant on that day had no intention of driving it or removing it from its position". Even in the above circumstances it was held that the owner of the car had used it on a road. That is why we ventured to characterise the decision as a stringent one. This decision may not be of help in interpreting S.3 (1) of the Act. Whatever that be, these decisions show that the word "used" has to be understood in the context in which it is used. We see no reason why we should give a restricted meaning to the word "used" occurring in S.3 (1) and 5 (2) of the Act. Understood in the light of the definition of the term vehicle we have to conclude that taking the vehicle to the workshop will be user of the vehicle. 12. We see no reason why we should give a restricted meaning to the word "used" occurring in S.3 (1) and 5 (2) of the Act. Understood in the light of the definition of the term vehicle we have to conclude that taking the vehicle to the workshop will be user of the vehicle. 12. We quite bee that this view might impose hardship on those registered owners of vehicles who are unaware of the provisions in S.22 and of the notification and those who bad not obtained the previous permission of the Regional Transport Officer for removal of the vehicles. What appears to us to be strange is that Clause.11 of the notification should have insisted that the vehicle might either be towed or pushed in order to get the benefit of the exemption. All repairs in a motor vehicle would not necessitate the vehicle being pushed or towed. It would be appropriate to provide for exemption even when the vehicle was taken under its own power for the purpose of repairs, provided previous permission had been obtained for so using the vehicle. It is a matter for the State Government to consider. 13. We dismiss this original petition, but direct the parties to bear their respective costs. Dismissed.