Judgment :- 1. The petitioners are owners of motor vehicles registered as stage carriages. They did not ply them on the respective routes for some time. Despite claim? to the contrary, they had also apparently failed to apply for exemption from payment of tax, in time, under S.5 of the Kerala Motor Vehicles Taxation Act, 1976 (Act 19/1976). The Taxation Officer demanded payment of tax for the periods the vehicles were off the road. The appellate authority declined to accept the petitioner's contention that notwithstanding their failure to comply with S. S, the question of actual user could be gone into separately and they could be relieved from tax liability if it was found that the vehicles concerned were not used or kept for use during the periods in question. It was an admitted fact in both the cases that the vehicles were not used on the roads, and were also not being kept for use. 2. The writ petitions are directed against the decision of the Taxation Officer and the orders of the Appellate Authority. The petitioners maintain that failure to apply for exemption under S.5 (read with R.10) cannot, by itself, foreclose an en enquiry into the question of tax liability depending on user of the vehicles. I had taken such a view in Eastern sea Foods v. RTA. and others (1985 KLJ 968), following earlier decisions of this Court, but it did not find favour with a Division Bench, in Velayudhan Nadar v. State (1986 KLT 633). Though the learned Government Pleader would suggest, with the touch of a ship-wrecked mariner sighting a sail, that I should follow the view of the Division Bench and dismiss the writ petitions. I must hesitate a little whether others seem to be confident. 3. The Kerala Motor Vehicles Taxation Act, 1976 had repealed and replaced the earlier enactment on the subject of vehicle taxation, namely, the Kerala Motor Vehicles Taxation Act, 1963 (Act 24/63). It is useful to note that the material provisions of both the 1963 and 1976 enactments relating to levy of tax, payment of tax, exemption from tax and refund of tax are more or less similar. It is useful to note that the material provisions of both the 1963 and 1976 enactments relating to levy of tax, payment of tax, exemption from tax and refund of tax are more or less similar. I shall first extract the relevant provisions of the 1963 Act: "S. 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: (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." "S 4. Payment of tax and issue of licence: (1) The tax levied in pursuance of subsection (1) of S.3 shall be paid in advance in such manner as may be prescribed, by the registered owner or person having possession or control of the motor vehicle, for a quarter half year or year, at his choice, upon a quarterly, half yearly or annual licence to be taken out by him. "S. 5. Exemption from tax. "S. 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-section (I) 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." "S. 6. Refund of tax: Where the tax for any motor vehicle has been paid for any quarter, half-year or year and the vehicle has not been used or kept for use during the whole of that quarter, half-year or year or a continuous part thereof not being less than one month, a refund of the tax at such rates as may, from time to time, be notified by the Government shall be payable subject to such conditions as may be specified in such notification." The corresponding provisions of the 1976 enactment can also be noticed here itself: S, 3. Levy of tax:-(1) Subject to the other provisions of this Act, on and from the date of commencement of this Act a tax shall be levied on every motor vehicle used or kept for use in the State; at the rate specified for such vehicle in the Schedule: (3) The registered owner of, or any person having possession or control of. a motor vehicle 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 no tax is payable on such motor vehicle under sub-section (1) of S.S. S.4. a motor vehicle 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 no tax is payable on such motor vehicle under sub-section (1) of S.S. S.4. Payment of tax and issue of licence:-(1) The tax levied under sub-section (1) of S.3 shall be paid in advance within such period and in such manner as may be prescribed, by the registered owner or person having possession or control of the motor vehicle, for a quarter or year, at his choice, upon a quarterly or annual licence to be taken out by him: X X X "S. 5. Exemption from fax -(1) In the case of a motor vehicle which is not intended to be used or kept for use during the first month or the first and second months of a quarter, or the whole of a quarter or year, as the case may be, the registered owner or the person having possession or control of such vehicle shall give previous intimation in writing to the Regional Transport Officer from whom the endorsement for tax has been obtained, that such vehicle would not be used for such period and thereupon, 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-section (1) shall exempt a person from liability to pay tax in respect of a motor vehicle, if, on verification, it is found that the motor vehicle has been used during such period or any portion thereof. "S. 6. Refund of tax Where the tax for any motor vehicle has been paid for any quarter or year and the vehicle has not been used or kept for use during the whole of that quarter or year or a continuous part thereof not being less than one month, a refund of the tax at such rates as may, from time to time, be notified by the Government, shall be payable subject to such conditions as may be specified in such notification." Ignoring minor details which are not material for the present, it can be seen that the relevant provisions of Act 19/76 and Act 24/63 are not different. 4. Dealing with S.3(2) of the 196? 4. Dealing with S.3(2) of the 196? Act and the consequences of a failure to apply for and obtain exemption under S.5, Govindan Nair J. (as he then was) had said, in Kathiri v. R.T.O. (1965 KLT.1206): "There are two ways therefore of getting over the deeming provision contained in S.3 (2) One is by complying with S.S. Even in such cases the negativing of the presumption provided by S.3 (2), is not conclusive for under S.5 (2) an investigation is possible and a conclusion can be reached that the vehicle was used or was kept for use. It appears to me that even when S.5 has not been complied with the question must be considered as to whether a vehicle has been used or kept for use for a specific period if a claim is made by the registered owner or the person having possession or control of the vehicle that the vehicle has not been used or kept for use for such period. This question has not been investigated in this case." His Lordship had added: "Merely because the enabling provision contained in S.5 is not available to a registered owner it does not necessarily follow that the tax must be paid for the vehicle even if he has not used or kept for use the vehicle for the period in question. This question in each case must be investigated and determined if a claim is made that there has been no user and that the vehicle was not kept for use." S. 3 (2) of the 1963 Act is similar to S.3 (3) of the 1976 Act; and the provisions of S.5 are also not dissimilar. If I remember right, the law as laid down by Govindan Nair J. in the above manner continued to be the law on the subject for this Court for more than two decades from 1965, despite repeal of the 1963 Act and its replacement by the 1976 Act. His Lordship had considerable experience in laws relating to vehicle taxation, and taxation of passengers and goods etc; in fact, the leading decisions of this Court on the sister enactment also (Act 25/63) had been rendered by his Lordship. (See. for example, E. A Thomman v R. T. 0. (AIR 1969 Ker.130) and Mayilvahanam Motor Service V. State (1972 KLT 564)). The State had not appealed against the decision in Kathiri. (See. for example, E. A Thomman v R. T. 0. (AIR 1969 Ker.130) and Mayilvahanam Motor Service V. State (1972 KLT 564)). The State had not appealed against the decision in Kathiri. Even the legislature, which must be deemed to have been aware of the position under the 1963 Act as judicially interpreted, did not attempt to modify the language of S.3 and 5 when it thought of replacing Act 24/63 with Act 19/76, about a decade later. In other words, there was no legislative attempt also to modify the law laid down in Kathiri. Even assuming therefore that the correctness of the law as laid down therein was open to doubt, was it necessary, after such long lapse of time, to attempt to alter it? 5. Under S.3 of the 1963 Act all motor vehicles "used or kept for use in the State" were subject to the levy. The deeming provisions of Sub-section (2) of S.3 only strengthened this position. Considering this aspect of the question, two Division Bench decisions of this Court, reported in Travancore Tes Estates Co. Ltd. v. State (1972 KLT 760) and Peermade Tea Co. Ltd. v. State (1972 KLT 848) had rejected the contention of certain estate owners that their vehicles, used exclusively on estate roads and for agricultural purposes only, were not liable for payment of tax; the decisions had taken note of the wide language of S.3 and held that no distinction could be attempted between vehicles used on private roads and those used on public roads. But in Travancore Tea Co. v. State of Kerala (1980 KLT 568) the Supreme Court took a different view of the matter, and said: "The question that falls for decision is whether on the assumption that the motor vehicles are used or kept for use within the estate, and not intended to be used on public roads of the State the tax is leviable? In order to appreciate the question raised, it is necessary to refer to the relevant entry in the Constitution, the provisions of the Act and the Motor Vehicles Act and the decision relating to the question rendered by this Court. Entry 57 in List II of the Constitution relates to 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. Entry 57 in List II of the Constitution relates to 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. This entry enables the State Government to levy a tax on all vehicles whether mechanically propelled or not, suitable for use on roads (emphasis supplied). There is no dispute that the vehicles are mechanically propelled and suitable for use on roads. S. 3 of the impugned Act (Kerala Motor Vehicles Taxation Act, 24 of 1963) provides that a tax "shall be levied on all motor vehicles used or kept for use in the State". The levy is within the competence of the State legislature as entry 57 in List II authorises levy on vehicles suitable for use on roads. It has been laid down by this Court in Bolani Ores Ltd. v. Orissa that under Entry 57 of List II, the power of taxation cannot exceed compensatory nature which must have some nexus with the vehicles using the roads i.e. public roads: If the vehicles do not use the roads, notwithstanding that they are registered under the Act, they cannot be taxed." The above observations, is my opinion, are authority enough to suggest that in construing S.3, 5 and 6 of the Act in question, it is necessary to have the nature of the tax in mind; the very wide language used by a statute will have sometimes to be read down, with reference to the relevant legislative entry in the Constitution. It is no doubt true that the character of a tax cannot be confused with the machinery for its collection, but still, if the machinery provisions are interpreted in such a manner as to alter the character of the tax and take it out of the relevant constitutional entry, the position will be different. 6. Again, the Travancore Tea Co. case noticed S.3, 5 and 6 of the 1963 Act and suggested that ordinarily one should resort to the method under S.5 for claiming exemption from tax. But no such application had been made at all, in the very case before the Supreme Court, and still it was directed that taking into account the circumstance that the liability was always being disputed, the case was a fit one where the RTO. should re-investigate the question regarding use of public roads. 7. But no such application had been made at all, in the very case before the Supreme Court, and still it was directed that taking into account the circumstance that the liability was always being disputed, the case was a fit one where the RTO. should re-investigate the question regarding use of public roads. 7. Before proceeding to refer to other decisions and some other relevant aspects of the matter, I will pause here for a moment to point out that in OP. 7594/82 it is an admitted fact that the vehicle involved was not used at all from 18-2-1981 to 31-10-81, and that during two spells forming part of the above period, it was under custody of courts. In OP. 1690/83 also, it is an undisputed fact that the vehicle in respect of which tax was demanded was not operating during the period in dispute and that another vehicle had been operating in its place, on substitute temporary permits. Do not these admissions, that the vehicles were not being used and that they were also incapable of being used, make out a special case? Will not insistence on payment of tax in respect of the vehicles, on the above undisputed facts, be more like imposing a penalty on the registered owners for non-compliance with S.5, than attempting to collect a compensatory tax for user of roads? 8. In Jaya Maruthi Motor Service v. RTO. ILR (1980) 1 Ker. 215 it was suggested before a Division Bench of this Court that there was some difference between the views taken in Kathiri's case (1965 KLT 1206), and another decision rendered by Eradi J. (as he then was). After repelling this contention and noticing that the questions decided in the two cases were entirely different, their Lordships said: "In K. T. Kathiri v. Regional Transport Officer our learned brother Govindan Nair, J., only ruled that merely because a person is not entitled to the benefit of the exemption under S.5(2) of the Kerala Motor Vehicles Taxation Act, his liability for tax under S.3 does not automatically follow. The principle thus stated seems to be unexceptionable. Non-availablility of the exemption from tax would not automatically attract liability to tax. The principle thus stated seems to be unexceptionable. Non-availablility of the exemption from tax would not automatically attract liability to tax. That will have to be positively established on proof of the necessary ingredients." If anything, the above is authority for holding that chargeability to tax under S.3 must depend upon satisfaction of the requirements of that Section (including perhaps the presumption or deeming provision about use or keeping for use), and not on whether one has applied for exemption under S.5. 9. After the repeal of the 1963 Act and its replacement by the Act of 1976, it was contended before Vadakkel J. in Cherian Thomas v. RTO. (AIR 1982 Kerala 152) that the new Act required a new approach to S.3, 5 and 6; but the contention was rejected, and the Court held that the decision of Govindan Nair J. under the 1963 Act ("Kathiri") should still hold the field, as the legislative language continued to be the same. 10. It is unfortunate that the decisions in Kathiri (1965 KLT 1206), Jaya Maruthi ILR (1980) Ker. 215 and CherianThomas (AIR 1982 Kerala 152), not to make mention of a host of unreported decisions following them, were not brought to the notice of their Lordships of the Division Bench, in Velayudhan Nadar v. State (1986 KLT 633). The attention of their Lordships was also apparently not drawn to the decisions of the Supreme Court referred to to in Cherian Thomas and also Eastern Sea Foods. Nadar's case had arisen from OP. No. 1015/86 disposed of by Paripoornan J. at the admission stage; and a perusal of the judgment shows that the question whether S.3, 5 and 6 of the Act would preclude a separate enquiry about user of the vehicle or not, was not raised, or considered at all. It was apparently a simple case where the RTO and the Appellate authority had concurrently held that the intimation given under S.5, read with R.10, was not within time, and Paripoornan J. thought that there was nothing to interfere with a finding on such a question of fact. By the time the matter was taken to the Division Bench (in WA. By the time the matter was taken to the Division Bench (in WA. 248) counsel for the appellant bad perhaps come across the decision in Eastern Sea Foods (1985 KLJ 968); but the Writ Appeal was also dismissed at the admission stage, leaving many a precedent of this Court in shambles, obviously because their Lordships were not cautioned by counsel against such an inherent danger. 11. Let us now see how the Division Bench (in Velayudhan Nadar) has approached the question. After referring to Eastern Sea Foods and observing that it was "extremely difficult" to agree with the view therein, their Lordships proceeded to extract S.6 of the Act and observed: "S. 5 speaks of exemption of tax which can be claimed only by satisfying the requirements of S.5(1), R.10 and Form G. The question of establishing non-user, if these provisions are not complied with, noes not arise. Such a person must pay tax and if in fact there is non-user the provision available under the Act is one in S.6, namely, for refund of tax. That, in our opinion, is the scheme of the Act. Unfortunately the scheme of the Act was not placed before the learned single judge and the attention of the learned single judge was not drawn to the provisions of S.6. We have, therefore, no hesitation in taking the view that it is not permissible for the authorities to make an investigation as to whether there has been non-user in cases where exemption is claimed without satisfying S.5 of the Act." With great respect, I venture to suggest that at least two aspects of the question were not brought to their Lordships' notice, when the above observations were made. The first is that S.6 does not provide for full refund, but only refund at such rates as may be notified. The second is that in considering whether the method in S.5 is the only possible one for avoiding advance payment, the existence of a provision for refund after payment cannot ordinarily be conclusive. I may add that though the State had filed an appeal against the decision in Cherian Thomas and the same is still pending as W. A. 131/81, no ground based on S.6 is seen taken even in that appeal. I may add that though the State had filed an appeal against the decision in Cherian Thomas and the same is still pending as W. A. 131/81, no ground based on S.6 is seen taken even in that appeal. And then, how can a Division Bench of this Court be persuaded to say that it is "not permissible" for the authorities to make an investigation, when the Supreme Court had actually directed such an investigation in the Travancore Tea Co, case (1980 KLT 568)? 12. I may be pardoned for observing here itself that that the well-known rule that where a statute prescribes a method for doing something, that method alone could be recognised in law, had been specifically referred to by me in Eastern Sea Foods. The rule, if I understand it correctly, is more readily applied in criminal law; at any rate, its application, it had appeared to me, could only have been subject to the nature of the statute imposing the tax and the earlier decisions construing the same statutory provisions. 13. Velayudhan Nadar (1986 KLT. 633) is inconsistent with the Division Bench ruling in Jaya Maruthi ILR. (1980)1- Ker. 215, and for that reason alone, I think the present two Original Petitions have to be referred to a larger bench for decision. And I feel that there are some other aspects of the matter also which require examination in depth. 14. To me at least, the scope and even the validity of S.5 seem to be in doubt. A careful examination of its language will show that the registered owner of a vehicle can get exemption under it for the first month of a quarter, for the first and second months of the quarter and also for the whole of a quarter, but not for the last month of a quarter or even the second and third months of a quarter. A Full Bench of this Court bad occasion to deal with this aspect in RKV. Motors & Timbers v. RTO. (1982 KLT 166) in the following words: "The interpretation of S.5, however, presents certain difficulties due to the obscurity of the language in which it is couched. We shall presently demonstrate this strange phenomenon in the statutory provisions. A Full Bench of this Court bad occasion to deal with this aspect in RKV. Motors & Timbers v. RTO. (1982 KLT 166) in the following words: "The interpretation of S.5, however, presents certain difficulties due to the obscurity of the language in which it is couched. We shall presently demonstrate this strange phenomenon in the statutory provisions. The section provides that "in the case of a motor vehicle which is not intended to be used or kept for use during the first month or the first and second months of a quarter, or the whole of a quarter or year, as the case may be, the registered owner shall give previous intimation in writing". (emphasis supplied). Take, for illustration, the quarter commencing on the 1st of January of a year. If the operator does not intend to use or keep for use the vehicle for January, he is enabled to make an application for exemption. So is the case if the intended non-user relates to January and February. If the non-user relates to January, February and March, then also exemption is contemplated if other conditions are satisfied. However, if the non-user relates to February, or February and March, the exemption will not be available, as the period of non-user does not answer the description 'first month', or 'the first and and second months of a quarter' or the whole of a quarter or year. This would be palpably arbitrary and unconstitutional, for there exists no reasonable basis for the obvious discrimination between the different periods of non-user and no rational nexus to the object of the enactment, namely, levy of tax on motor vehicles using the public roads and grant of exemption for periods of non-user. A serious threat to the constitutional validity of the section has, however, been averted by the concession made by the learned Advocate General (a concession which we note, has been rightly made and we therefore record it for the sake of clarification relating to the constitutional issue) that any operator would be entitled to claim exemption even for the second month or the second and third months, though prima facie the wording of the section would not take in such cases for exemption. In that view of the matter it has become unnecessary to consider the question whether S.5 results in an invidious discrimination or generates unconstitutional results." Is it possible to insist on strict compliance with the provisions of a Section which, in the opinion of a Full Bench of this Court, is prima facie unconstitutional and is allowed to survive only because the Advocate General agreed to water it down, even against the specific language of the legislature? 15. Lord Asquith is quoted as having once said: "It is the duty of the trial court to be slow, courteous and wrong. This is however not to say that it is the duty of the Court of Appeal to be quick, rude and right, for that would be to usurp the function of the House of Lords". Is it possible to borrow and extend the above language and say that while it is the privilege of the legislature to be obscure in its language, it will not be the duty of the court to interpret the words of the statute and remove the obscurity, for that would be the exclusive function of Advocate Generals willing to make "concession"? 16. Under S.4 of Act 19/76 the tax levied under S.3(1) "shall be paid in advance": i.e. the statute insists that the tax payable for any quarter should be paid before its commencement. But R.5 provides for payment long after the commencement of the quarter. Can a rule of this type operate against the language of the Section? Or, is it possible for the rule-making authority also to dilute the Section, and make its own contribution, besides those made by others, in that direction? 17. S.5 provides that an operator seeking exemption thereunder "shall give previous intimation" to the RTO., but R.10 prescribes that the intimation should reach the RTO within one week from the commencement of the period for which exemption is sought. Here again, the rule-making authority has assumed that intimation subsequent to the commencement of the period of non-use would amount to "previous intimation" within the meaning of the Section. It is usual to come across cases where requests for exemption under S.5 are declined on the ground that the intimation reached the RTO. one or two days late, as if the dead-line fixed by the rule, though opposed to the clear language of the Section, is sacrosanct. It is usual to come across cases where requests for exemption under S.5 are declined on the ground that the intimation reached the RTO. one or two days late, as if the dead-line fixed by the rule, though opposed to the clear language of the Section, is sacrosanct. Ad again, does S.5 or the rule-making power under S.28(2)(d) make the rule-making authority competent to prescribe such time-limits? In the absence of a specific conferment of power by the statute, can limitation be prescribed by subordinate legislation? These aspects also, in my opinion, require to be thrashed out. 18. S.15 of the Act stipulates that if the tax payable in respect of a transport vehicle remains unpaid even after the prescribed period, the validity of the permit of that vehicle will become ineffective, notwithstanding anything in the Motor Vehicles Act, 1939. Thus where a stage carriage is covered by a permit for a whole quarter commencing from the 1st of January of any year, and its tax remains unpaid within the time fixed under R.5, the SC permit becomes invalid. Under Entry No. 4 of the schedule to the Act, the rates of tax payable thereunder seem to apply to stage carriages only so long as they are covered by effective permits. What then is the rate of tax payable by a stage carriage when the contingency under S.15 happens? (In OP. 1690/83 there is a specific contention that the rates under Entry 7 can alone be collected). 19. Under S.38 of the Motor Vehicles Act, the certificate of registration of a transport vehicle lapses when its fitness certificate expires. If there is no valid registration, the question will arise as to what class such a vehicle could be considered as belonging for the purposes of the Entries in the Schedule to the Taxation Act. (This point also arises in one of the writ petitions). 20. The vehicle in OP. 7594 was admittedly under court custody for a considerable part of the period for which tax has been held to be payable by the petitioner therein. (This point also arises in one of the writ petitions). 20. The vehicle in OP. 7594 was admittedly under court custody for a considerable part of the period for which tax has been held to be payable by the petitioner therein. In exercise of power under S.22 of the Taxation Act the State Government had issued a notification exempting the following classes of vehicles (among others) from the liability to pay tax: "Motor vehicles which during any specified taxation period are used for the sole purpose of production before any court and for taking them back in compliance with the written orders of the court concerned, specifying the date or dates on which the vehicles may be used on the road for the above said purposes." Will the above provisions enable the registered owner of a vehicle to claim exemption from tax during periods of court custody? If not, who is to pay the tax for the periods? Will it be the responsibility of the Court, by reason of the language of S.3(3)? In my opinion the points noted above and others which may arise during the course of a comprehensive examination of the provisions of the Act and the Rules, require consideration by a larger bench; and the Original Petitions are accordingly adjourned for being heard by such a bench.