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1979 DIGILAW 96 (KER)

R. T. O. IDUKKI v. PHILIP

1979-04-04

T.CHANDRASEKHARA MENON, V.P.GOPALAN NAMBIYAR

body1979
Judgment :- 1. These two writ appeals arise out of two writ petitions disposed of by a common judgment by a learned judge of this Court. The petitioners in the two writ petitions attacked the notices of demand calling upon them to pay arrears of tax due from them under the Kerala Motor Vehicles (Taxation of Passengers and Goods) Act 1963. The constitutional validity of the Act was attacked on the ground that the vehicles in question were used for transporting of goods only across the private roads of the petitioners within their factory or tea-estate and therefore liability to tax was not attracted. This was the only point that was raised and was argued before the learned judge, as seen from his judgment. The learned judge upheld the contentions thus raised and was of opinion that under the constitutional entry under which the Taxation of Passengers and Goods Act was passed and also under the provisions of the Act the levy of tax can be attracted only if the vehicle is used for transport of goods or passengers on public roads, and not, if they are used on private roads. The learned judge referred in support of his reasoning and conclusion to the judgment of the Assam High Court in H. P. Barua v. State of Assam (AIR. 1955 Assam 249). The decision of this Court in Travancore Tea Estates Co. Ltd. v. State (1972 KLT. 760) and Peermade Tea Co. Ltd. v. State of Kerala (1972 KLT. 848) were also referred to by the learned judge but the learned judge was not apparently prepared to follow the principle of the decisions as they were concerned with the Motor Vehicles Taxation Act of 1963, a different statute altogether. 2. We are unable to endorse the reasoning and the conclusion of the learned Judge. We may refer to Entries 56 and 57 of List II of the 7th Schedule to the Constitution. 56. Taxes on goods and passengers carried by road or on inland waterways. 57. 2. We are unable to endorse the reasoning and the conclusion of the learned Judge. We may refer to Entries 56 and 57 of List II of the 7th Schedule to the Constitution. 56. Taxes on goods and passengers carried by road or on inland waterways. 57. Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III." The Taxation of Passengers and Goods Act with which we are concerned in the present case, has been enacted under the powers conferred by Entry 56, and the Motor Vehicles Taxation Act was enacted under the powers conferred by Entry 57. Both the entries contained the expression'road'/'roads'. We think the expression 'road' or 'roads' occurring in these entries must bear the same meaning and cannot have one meaning in one, and a different concept altogether, in the other. On the language of the entries we see no ground or reason to restrict the expression 'road' to public roads, and to exclude private roads; so that, on the plain construction of the entries, we should think that the liability to tax is attracted under Entry 57 if the vehicles are suitable for use on roads whether public or private. We are fortified in this conclusion by the view taken by a Division Bench of this Court with respect to Entry 56 of List II. The question arose whether liability to tax on goods and passengers would be attracted if the vehicle in question is used not on public roads but on private roads maintained by estate owners. In holding that the tax would be attracted in such circumstances, a Division Bench of this Court observed in Travancore Tea Estates Co. Ltd. v. State of Kerala & Others (1972 KLT. 760): "As pointed out by the learned single judge neither the charging section, S.3 of the (Kerala) Act 24 of 1963 nor the legislative entry 57 of the State List, requires that the motor vehicles taxed should be used on public roads. The legislative entry only requires that the vehicles should be suitable for use on roads, and the charging section only that the vehicles should be used or kept for use in the State. The legislative entry only requires that the vehicles should be suitable for use on roads, and the charging section only that the vehicles should be used or kept for use in the State. These conditions the appellant's motor vehicles undisputedly satisfy; and even if it be that the tax is levied for the purpose of maintaining public roads, we are not for a moment saying that that need be so that would be no justification for reading into the statute words that are not there and restrict the levy to vehicles using public roads. It would, of course, be a different matter if the appellent would successfully assail the vires of the section by showing that such an unrestricted levy as the section clearly contemplates if unconstitutional; but the appellant has not even attempted to do that On the assumption that the appellant's case regarding the nature of the levy is correct, we have no doubt that both the legislative entry and the charging section must have been advisedly worded as they are out of the awareness that it would be impossible to ensure that motor vehicles suitable for use on roads would not be used on public roads." This ruling was followed by an another Division Bench to which one of us (myself) was a party in Peermade Tea Co. Lid. v. State of Kerala & Others (1972 KLT. 848). The question was dealt with thus: "The main questions agitated in these appeals is whether liability to tax under S.3 of the Kerala Motor Vehicles Taxation Act 1963 is attracted in these cases, where the vehicles in question are claimed to be used exclusively on the private roads in the appellant's estates. This question has been concluded against the appellants by the decision of this Court in W. A. No. 451 of 1969. On the strength of the said decision, the contention has to be found against the appellant." W. A. No. 451 of 1969 referred to is the decision reported in 1972 KLT. 760. These decisions are directly against the writ petitioner, and against the view taken by the learned single judge. 3. We cannot accept the principle of the judgment of the Assam High Court in H.P. Barua's case (AIR. 1955 Assam. 249). The said decision was reversed by the Supreme Court in AIR. 1961 SC. 232. 760. These decisions are directly against the writ petitioner, and against the view taken by the learned single judge. 3. We cannot accept the principle of the judgment of the Assam High Court in H.P. Barua's case (AIR. 1955 Assam. 249). The said decision was reversed by the Supreme Court in AIR. 1961 SC. 232. Besides, as already noticed the two Division Bench rulings of this Court are against the view taken by the Assam High Court and by the learned single judge. 4. Counsel for the Writ Petitioners sought to raise before us the contentions that the demand is unjustified on the merits and is opposed to the statutory provisions of the Act. We are unable to entertain these arguments. These were not urged before the learned Judge. We should think they were not rightly urged. Under S.13 of the Act the appellant has got a right of appeal against a notice of demand served on him under S.10 of the Act. Objections if any, on the merits are to be urged by the appellants in an appeal provided under the statute and not in writ proceedings under Art.226. That presumably was the reason why the contentions on the merits were not raised before, or dealt with by, the learned judge. We allow these appeals and set aside the judgment of the learned judge and hold that the demand raised by the impugned notices cannot be said to be unconstitutional or illegal. The petitioner's writ petitions O.P. Nos. 2812 and 5230 of 1975 in so far as they seek to canvass the constitutional validity of the demand and of the provisions of the Taxation of Passengers and Goods Act will stand dismissed with no order as to costs. Allowed.