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2003 DIGILAW 406 (KER)

Kochumon Jacob v. Secretary

2003-06-24

G.SIVARAJAN

body2003
Judgment :- 1. The petitioner is a stage carriage operator. He is operating on the route Kottayam - Changanacherry on the strength of a regular permit issued to his stage carriage KL-05-A 8096 which is 1992 model vehicle. It is stated that the service is a town service as defined under R.2(ca) of the Kerala Motor Vehicles Rules, 1989, which prescribes the minimum seating capacity of the vehicle. The said vehicle is registered with 48 seats inclusive of driver. The petitioner wanted to reduce the seating capacity as well as the standing capacity of the said vehicle for which he made an application dated 20.12.2001 (Ext.P2). The respondent rejected the said application stating that if the application is allowed the quarterly tax of stage carriage with passenger capacity of 39 + 19 will be Rs.26,250.00 which will result in a loss of Government revenue at the rate of Rs.4,800.00 for each quarter. It was also stated that the travelling public will be deprived of the present benefit. The petitioner has challenged this order in this Writ Petition. A counter-affidavit is filed by the respondent. The relevant portion of the counter-affidavit reads as follows: "It is respectfully submitted that after the introduction of the K.M.V. Rules, 1989 no such application for reduction of seating capacity is entertained by the authorities as it will severely affect the tax collection of the Government. Some fresh permits are granted to the vehicles having seating capacity of 28. But these are additional to existing facility. Hence travelling public is not aggrieved by this grant. Whereas when seating capacity of existing permit is reduced the travelling public as well as revenue of the State both will affect." 2. A reply affidavit is filed by the petitioner. A1ongwith the reply affidavit petitioner has produced a copy of the proceedings of the respondent in another case granting reduction of seating capacity. The petitioner has also filed I.A. No.4681/2003. A1ongwith the affidavit filed in support of the LA petitioner has produced copies of two judgments of this Court rendered in similar circumstances. 3. The learned counsel appearing for the petitioner submits that the petitioner's stage carriage was being operated as a town service as per the permit issued by the respondent. Counsel submits that the minimum seating capacity of stage carriage is provided under R.269 of the Kerala Motor Vehicles Rules. 3. The learned counsel appearing for the petitioner submits that the petitioner's stage carriage was being operated as a town service as per the permit issued by the respondent. Counsel submits that the minimum seating capacity of stage carriage is provided under R.269 of the Kerala Motor Vehicles Rules. Petitioner's vehicle, it is stated, falls under the category having a wheel base of between 506 to 550 cm. for which the minimum seating capacity is 50. The counsel also submits that in view of the fact that the petitioner's stage carriage is plying as a town service, under the provisions of R.280, it should have a separate entrance and a separate exit and that by virtue of the first proviso to R.269, the minimum seating capacity can be reduced by two seats. The counsel also submits that the second proviso further provides that the minimum number can be further reduced by one fifth in the case of stage carriage operating as City/Town Service. He further submitted that it is only by virtue of the provisions contained in R.269 the petitioner had applied for reduction of the seating capacity from 46 to 39. The counsel also pointed out that the standing capacity of the stage carriages are also provided. Sub-r.(2) of R.267, it is stated, enables the respondent to fix the number of standing passengers. Under Cl.(b) of the said sub-rule, the number of standing passengers so fixed shall not exceed twenty-five per cent of the number of passengers for whom there is seating accommodations as specified in the sub-rule and further in the case of city service or town service it can go upto fifty per cent of the seating capacity. The counsel submits that it is by virtue of this provision the petitioner had applied for reduction of sitting and standing capacity of his stage carriage from 46 + 23 to 39 + 19. The counsel also submits that in similar circumstances a learned Single Judge of this Court in the judgment dt. 30.8.1994 in O.P. No. 6138/1994 quashed a similar proceedings and directed the registering authority to make necessary endorsements regarding the reduction of seating capacity as 39. He further submitted that this decision has been confirmed in appeal by the Division Bench in the judgment dated 3.8.1998 in W.A. No. 1323/1994. 30.8.1994 in O.P. No. 6138/1994 quashed a similar proceedings and directed the registering authority to make necessary endorsements regarding the reduction of seating capacity as 39. He further submitted that this decision has been confirmed in appeal by the Division Bench in the judgment dated 3.8.1998 in W.A. No. 1323/1994. The counsel further submitted that the loss of revenue on account of reduction of the seating capacity is not a relevant consideration for disposing the application for reducing the seating capacity. He also submitted that though the convenience of the travelling public is a relevant matter the respondent did not furnish any details to establish that the reduction of the seating capacity will prejudicially affect the travelling public. 4. The learned Government Pleader appearing for the respondent on the other hand submits that the respondent has rejected the application for the reason that if the seating capacity is reduced as claimed by the petitioner that will surely lead to revenue loss considerably and also affect convenience of the travelling public. 5. I have considered the rival submissions. As already noted, the petitioner's application was rejected mainly on the ground that if the application is allowed it will certainly result in loss of revenue and also cause inconvenience to the travelling public. Here, it must be noted that, R.269 of the Kerala Motor Vehicles Rules clearly provides for the minimum seating capacity of stage carriages. The minimum seating capacity of a stage carriage having a wheel base of 533 cm. falls within the wheel base of 506 to 550 cm. for which the minimum seating capacity is 50: The first proviso to the said rule, as already noted, states that the minimum can be reduced by two seats, provided the stage carriage is having separate entrance and exit. As pointed out by the counsel, R.280 of the rules mandates that in respect of stage carriages operating as city/ town services it should have separate entrance and exit. Admittedly, the petitioner's vehicle is being operated as a town service. In such circumstances definitely the respondent is bound to consider that aspect. The second proviso also provides that the minimum so reduced can be further reduced by one fifth in the case of stage carriages operating as City/Town Service. So the petitioner is entitled to avail the benefit of second proviso also. In such circumstances definitely the respondent is bound to consider that aspect. The second proviso also provides that the minimum so reduced can be further reduced by one fifth in the case of stage carriages operating as City/Town Service. So the petitioner is entitled to avail the benefit of second proviso also. Further, R.267(2) provides for standing capacity of a stage carriage and as per the proviso (b) in the case of a stage carriage operating as town service, the standing capacity can go up to fifty per cent of the seating capacity. It is on the basis of these provisions the petitioner wanted to reduce the seating capacity as well as the standing capacity from 46 + 23 to 39 + 19 respectively. When the statute clearly provides for such reduction, it is not for the authority to say that if the seating capacity as well as the standing capacity is reduced that will result in loss of revenue. The rule making authority is very well aware that by reducing the seating capacity as well as by increasing the standing capacity the revenue due to the State by way of motor vehicles tax will be reduced. Knowing fully well, the rule making authority had enacted R.269 providing for reduction of the seating capacity from the minimum fixed. Here, it must be noted that though power is granted to the respondent for reducing the seating capacity as well as increasing the standing capacity, certainly it is for him to consider whether the reduction in the seating capacity will adversely affect the existing convenience of the travelling public. Certainly that matter will have to be decided only objectively and on the basis of statistics. Since the respondent had rejected the application mainly on the ground that it will result in loss of revenue and further it will cause inconvenience to the travelling public of the locality. I set aside the order Ext.P5 and direct the respondent to consider the application afresh strictly in accordance with the provisions of the rules mentioned herein above and the observations made in this judgment. This exercise will be done by the respondent within a period of two months from the date of receipt of a copy of this judgment. I set aside the order Ext.P5 and direct the respondent to consider the application afresh strictly in accordance with the provisions of the rules mentioned herein above and the observations made in this judgment. This exercise will be done by the respondent within a period of two months from the date of receipt of a copy of this judgment. The petitioner is entitled to operate the vehicle with a seating capacity of 39 and standing capacity of 19 till a decision is taken by the respondent as directed in this judgment. Original Petition is disposed of as above.