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1996 DIGILAW 380 (KER)

Ashraf v. Joint Regional Transport Officer

1996-09-06

P.A.MOHAMMED

body1996
JUDGMENT P.A. Mohammed, J. 1. These two writ-petitions involve a common question as to the rate of tax applicable to 'forklift' under the provisions of the Kerala Motor Vehicles Taxation Act, 1976, for short 'the Taxation Act'. The petitioners purchased 'forklift' for the purpose of their business of acting as Steamer Agents for various Shipping Companies at Cochin. According to them, 'forklift' is an equipment used basically for lifting goods for stacking at different heights. It has four wheels and is capable of moving with limited speed it cannot be and is not used for transporting goods from place to place and its use is confined to storage places like godowns. Therefore the petitioners took the view that 'forklift' purchased by them do not require registration under the provisions of the Motor Vehicles Act, 1939 which is applicable only in the case of Motor Vehicles. However, in view of compulsion from first respondent, petitioners registered their vehicles as required under the Act. The first respondent, Joint Regional Transport Officer, while granting registration made endorsement in the respective registration books that the petitioners are liable to pay tax at the rate of Rs. 1,000/- per quarter apparently treating 'forklift' as a 'goods carriage vehicle'. 2. Being aggrieved by the aforesaid endorsement, the petitioner in OP No. 11377 of 1991 filed an appeal before the Deputy Transport Commissioner, Ernakulam under S.23 of the Taxation Act. The said appeal was disposed of by him as per Ext.P1 order finding that the vehicle in question is a non-transport vehicle which is wrongly classified as 'goods vehicle' by the Joint Regional Transport Officer, Mattancherry. Therefore the Deputy Transport Commissioner directed the Joint RTO to revive the endorsement and realise the tax accordingly. After the above order of the Deputy Transport Commissioner the petitioner remitted the tax at the rate of Rs. 500/- per year. However when the petitioner's representative went to the office of the first respondent for payment of tax for the period commencing from 1-10-1991 the first respondent made an endorsement in the R.G. book directing the petitioner to pay motor vehicle tax at the rate of Rs. 1,000/- per quarter applicable to goods vehicle from 1-7-1989 and at the rate of Rs. 1,250- per quarter from 1-4-1991 in the light of TC's clarification GV/AR/ Tourist tax/M/Cab No. KCP 8693. Ext.P2 is the copy of the said endorsement made by the first respondent. 1,000/- per quarter applicable to goods vehicle from 1-7-1989 and at the rate of Rs. 1,250- per quarter from 1-4-1991 in the light of TC's clarification GV/AR/ Tourist tax/M/Cab No. KCP 8693. Ext.P2 is the copy of the said endorsement made by the first respondent. On enquiry it was understood that the endorsement in the R.C. book as per Ext.P2 was made in view of Ext.P3 notification issued by the Ministry of Surface Transport (Transport Wing) dated 12-6-1989. 3. In OP No. 4966 of 1992, the Joint RTO adopted the order of the Deputy Transport Commissioner dated 19-11-1988 which was produced as Ext.P2 in OP No. 11377/91. Consequently he made Ext.P2 in OP No. 11377/91. Consequently he made Ext.P2 endorsement in the Registration Certificate stating that the yearly rate of tax is Rs. 500/- with effect from 1-1-1989. Subsequently the said endorsement was changed and fixed the quarterly tax as Rs. 1.250/- plus ten per cent surcharge, as per Ext.P3, the petitioner was consequently directed to remit the arrears. 4. Heard learned counsel appearing for the petitioners and also the Government Pleader. 5. Ext.P1 is the order passed by the Deputy Transport Commissioner (Law), Central Zone II, Ernakulam, in the case of the petitioner in OP No. 11377 of 1991. Accepting the contention advanced by the owner of the vehicle, the Deputy Transport Commissioner observed thus: "But on thorough examination, it is understood that the vehicle in question is also a forklift, which wrongly classified goods vehicle by the Jt. RTO, Mattancherry. There cannot be any discrimination of similar vehicle in registration, as such the vehicle KCF 8693 is also a forklift and not a goods vehicle, tax realised in similar vehicles cannot be discriminated also. As such, tax is due only at the rate of non-transport vehicle." 6. Learned Government Pleader placing reliance in Ext.P3 in OP No. 11377 of 1991 contended that it is a 'heavy motor vehicle' for which rate of tax applicable is as found by the Joint Regional Transport Officer. Ext.P3 is an order passed by the Government of India in exercise of the powers conferred under sub-section (4) of S.41 of the Motor Vehicles Act 1988 (59 of 1989) thereby specifying the types of vehicles. Ext.P3 is an order passed by the Government of India in exercise of the powers conferred under sub-section (4) of S.41 of the Motor Vehicles Act 1988 (59 of 1989) thereby specifying the types of vehicles. Sub-section (4) of S.41 is as follows.: "In addition to the other particulars required to be included in the certificate of registration, it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design, construction and use of the motor vehicles, by notification in the official Gazette, specify,"So the specification made by the Central Government in exercise of powers conferred under the Motor Vehicles Act, 1988 cannot be applied in fixing the rate of tax applicable to a vehicle under the provisions of Taxation Act The 'Taxation Act' is an independent enactment by which the rate of tax is specified in the Schedule attached thereto and the said provisions have to be applied in the present case. 7. The question now remains to be considered is as to what is the correct rate of tax applicable in respect of the vehicle in question. The Government Pleaders points out that the vehicle in question will come under entry 3 relating to the goods vehicle contained in Schedule to the Taxation Act. But the said Act does not define the word 'goods vehicle. The Government Pleader therefore submits that the word 'the goods vehicle' has been defined in clause.(xii) of S.4(1) of the Kerala Motor Vehicle (Taxation of Passengers and Goods) Revival and Special Provisions Act, 1983 as follows: "goods vehicle" means any motor vehicle constructed or adapted for use for the carriage of goods solely or in addition to passengers or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers, and includes an articulated vehicle, a tractor trailer combination, a tiller-trailer combination and a trailer drawn by any other motor vehicle when used for the carriage of goods." It is also brought to my notice the following definition of the word 'goods carriage' contained in clause (14) of S.2 of the Motor Vehicles Act, 1988. "Goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods." 8. "Goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods." 8. In order to come within the definitions of 'goods vehicle' or 'goods carriage' discussed herein above the main conditions to be fulfilled are, (1) it must be a motor vehicle, and (ii) it must be used for the carriage of goods. The vehicle in question is not used for the carriage of goods from one place to another. It use is confined to the lifting of the goods for stacking. In this context the following observation of the Deputy Transport Commissioner (Law) Central Zone-II is very relevant. "This is a vehicle not kept for use on road, but forklift is used only in the container yard which is a privately owned premises except in Willingdon Island Road, which is also owned by the Cochin Port Trust Alternately, it is not a transport vehicle, as it does not carry of load its own but used to lift load for stacking only." In view of the above factual situation, the Deputy Transport Commissioner found that the tax can be levied only at the rate of tax applicable to non-transport vehicles. Since the above finding is based on facts, this court it difficult to have a different view from what has been taken by the Deputy Transport Commissioner (Law) in this case. 9. In the result, Ext.P2 in OP No. 11377 of 1991 is set aside. Consequently the endorsement shall be made on the basis of Ext.P1 order of the Deputy Transport Commissioner. In OP No. 4966 of 1922 Ext.P3 is quashed and Ext.P2 endorsement is restored.