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2003 DIGILAW 989 (KAR)

APOLINE MARCEL D SOUZA v. STATE OF KARNATAKA

2003-11-24

R.GURURAJAN

body2003
R. GURURAJAN, J. ( 1 ) PETITIONER-OPERATOR is challenging Annexure-C a notice dated 26-6-2003 issued by the third respondent. Petitioner has also challenged the notice at Annexure-D, dated 4-7-2003. Petitioners' further prayer is for a direction to consider the request of the petitioner without insisting upon production of vehicles in terms of the prayer 4 at para 21. ( 2 ) FACTS in brief are as under: petitioner is the owner of contract carriage vehicles bearing registration nos. MH 01/l, 6967, 6968, 6973, 7499, 7699 and 6905 and is operating his service in terms of the permits granted by the State of Maharashtra. Petitioner has filed a registration certificate of one such vehicle in terms of Annexure-A. Each one of the vehicles is covered by the contract carriage permit granted under the Motor Vehicles Act. Permit was granted by the authorities of the state of Maharashtra. Petitioner is paying quarterly tax regularly in respect of his vehicles in the State of Maharashtra at Rs. 1,100/- per seat per quarter. Section 88 of the Karnataka Motor Vehicles Taxation Act ('the Act' for short), contemplates that the permit granted by the authority of one region or the State shall not be valid outside the region or the State where the vehicle is entitled to be plied. In the case on hand, all the five vehicles of the petitioner are authorised to ply on the inter-State route of Mumbai to Mangalore. Petitioner has obtained countersignature from the State of Karnataka. Apart from obtaining requisite countersignature, the petitioner is also required to pay tax to the State of Karnataka as per Section 3 of the Karnataka Motor vehicles Taxation Act, 1957. The tax assessed by the authority of State of karnataka is Rs. 750/- per seat per quarter together with 5% surcharge which works out to Rs. 27,565/- every quarter in respect of each vehicle. Though the petitioner is paying the tax regularly, the third respondent refused to receive the tax resulting in petitioner moving this Court in W. P. Nos. 21667 to 21771 of 2003. This Court disposed of the writ petitions in terms of its order dated 8-5-2003. In terms of the order of this Court, petitioner filed objections before the third respondent. Though the petitioner is paying the tax regularly, the third respondent refused to receive the tax resulting in petitioner moving this Court in W. P. Nos. 21667 to 21771 of 2003. This Court disposed of the writ petitions in terms of its order dated 8-5-2003. In terms of the order of this Court, petitioner filed objections before the third respondent. According to petition averments, instead of considering the objections, the respondents sought the petitioner to produce the vehicles for inspection for assessment of tax and to verify as to whether the vehicles comply with Rule 128 of the Central Motor Vehicles Rules, 1989 ('the rules' for short ). This action is challenged. ( 3 ) HEARD the arguments of the learned Counsels for the parties. ( 4 ) SRI Puttige R. Ramesh, learned Counsel for the petitioner would argue that all the vehicles of the petitioner are contract carriages and the vehicles are having permits countersigned by the State of Karnataka. He refers to annexure-A to contend that State of Maharashtra has given its endorsement that these vehicles do not comply with Section 128 of the Rules and that therefore no further inspection is necessary. This endorsement is binding on this State as well. He relies on certain judgments in support of his case. Per contra, learned Government Advocate would argue that the inspection is sought for in the light of the amendment with a view to ascertain as to whether the petitioner herein can be termed as a tourist vehicle or not. Learned government Advocate justifies the inspection on the facts of this case. ( 5 ) AT this stage, I must notice that the petitioner filed another writ petition challenging the constitutional validity of the amended item 5 (a) (i) and 5 (a) (ii) in Part A to the Schedule. That petition was withdrawn by the petitioner. ( 6 ) THE Karnataka Motor Vehicles Taxation Act provides for three types of vehicles, viz. , stage carriage permit, tourist vehicle, contract carriages. They are defined under Section 2 (7), 2 (40) and 2 (43) of the Motor Vehicles Act, 1988. Admittedly, in the case on hand, petitioner is having contract carriage permits. Permits have been countersigned by the State of Karnataka. , stage carriage permit, tourist vehicle, contract carriages. They are defined under Section 2 (7), 2 (40) and 2 (43) of the Motor Vehicles Act, 1988. Admittedly, in the case on hand, petitioner is having contract carriage permits. Permits have been countersigned by the State of Karnataka. The certificate of registration is also filed at Annexure-A and it is seen that the state of Maharashtra has issued an endorsement therein that these motor vehicles do not comply with Rule 128 of the Rules. Petitioner's essential contention is that in the light of this endorsement, no further inspection is necessary on the facts of this case. Let me see as to whether this contention can be accepted. ( 7 ) THE Karnataka Motor Vehicles Taxation Act earlier provided for a tax at the rate of Rs. 750/- per seat per quarter in respect of motor vehicles (contract carriages) plying for hire or reward and constructed or adopted to carry. More than 12 passengers (excluding driver and conductor/attendant) and covered by the permit issued under Section 74 of the Act. The subsequent amendment by LA Bill 6 of 2003 providing for item 5 (a) (i) and 5 (a) (ii) in Part 'a' to the Schedule as under:" (A) (I) Motor vehicles (contract carriages) plying for hire or reward and constructed or adopted to carry more than 12 passengers (excluding driver and conductor/attendant) and covered by permit issued under Section 74 of the Motor Vehicles Act, 1988 and complying Rule 151 (2) of Karnataka Motor Vehicles Rules, 1989, for every passengers Rs. 750/ -. (ii) Motor vehicles (contract carriages) plying for hire or reward and constructed or adopted to carry more than 12 passengers (excluding driver and conductor / attendant) and covered by permit issued under section 74 of the Motor Vehicles Act, 1988 and complying Rule 128 of the Central Motor Vehicles Rules, 1989 for every passenger Rs. 2,000/-". ( 8 ) A careful reading of the amended provision would show that the State Government in its wisdom has categorised two types of operators for the purpose of levy of tax in terms of the Act. The first set of operators are those who have permits issued under Section 74 of the Motor Vehicles Act, 1988 and complying with Rule 151 (2) of the Karnataka Motor Vehicles Rules. The first set of operators are those who have permits issued under Section 74 of the Motor Vehicles Act, 1988 and complying with Rule 151 (2) of the Karnataka Motor Vehicles Rules. The second set of operators are those who have a permit issued under Section 74 of the Act and complying with Rule 128 of Central Motor Vehicles Rules, 1989. In the case on hand, according to respondents petitioner's vehicles fall under item 5 (a) of the Schedule Part A of the Karnataka Motor Vehicles taxation Act, 1957 and according to them, the petitioner has to pay Rs. 2,000/- per seat per quarter. On an earlier occasion, this Court had directed the respondents to consider with regard to the liability in terms of the amended rule. To find out as to whether the petitioner is liable to pay Rs. 2,000/- or Rs. 750/-, it is necessary for the authority to come to a decision with regard to compliance of the petitioner's vehicles either with Section 151 (2) of the karnataka Motor Vehicles Rules or with Rule 128 of the Central Motor vehicles Rules. Rule 128 of the Central Motor Vehicles Rules provides for various details in respect of contract carriage. It mentions several details with regard to the vehicle and the seating capacity etc. It can be done only by inspection of vehicles. Therefore, the respondents have sought for inspection of the vehicles. The objection of the petitioner is that the endorsement comes in the way of an inspection by the State of Karnataka. A reading of annexure-A would show that the State of Maharashtra has no where stated that the petitioner does not comply with Rule 128 of the Rules. There is a specific endorsement in Annexure-A that the petitioner's vehicles does not comply with Rule 128 (10) of the Rules only. Rule 128 (10) of the Rules deal with seating capacity. Therefore a reading of the endorsement would show that the petitioner is not absolutely free from Rule 128 of the Central Motor vehicles Rules in the case on hand. Therefore, the petitioner cannot get any assistance by relying on Annexure-A in terms of an endorsement for the purpose of decision with regard to tax liability in terms of the Act. In these circumstances, it cannot be said that the respondents are not in any way wrong in seeking for inspection of the vehicles. Therefore, the petitioner cannot get any assistance by relying on Annexure-A in terms of an endorsement for the purpose of decision with regard to tax liability in terms of the Act. In these circumstances, it cannot be said that the respondents are not in any way wrong in seeking for inspection of the vehicles. Even otherwise, when an authority wants to arrive at a fact finding decision on the basis of an inspection it cannot be said to be an unnecessary one for the purpose of a fair decision. On the other hand, it only helps the parties for a reasonable decision. ( 9 ) PETITIONER relies on the following judgments to contend that grant of permit after counter signature comes in the way of the respondents. (A) Jayanna v Assistant Regional Transport Officer: this judgment is with regard to levy of tax in the light of an entry in part A of the Schedule. This judgment is not applicable as on today in the absence of any fact finding with regard to the vehicle in question. (B) Sanjeeviah v Regional Transport Officer: a Division Bench of this Court considered the scope of Rule 216. In that case the facts of the case would show that in the said case the operator questioned the notice issued to them with regard to the seating capacity of the vehicle in conformity with Rule 216 of the Kamataka motor Vehicles Rules. This Court after noticing various facts came to a conclusion in para 9 that a motor vehicle registered in accordance with chapter III of the Motor Vehicles Act in any State shall not be required to be registered elsewhere in India and that a certificate of registration issued or in force under the Motor Vehicles Act in respect of such vehicle shall be effective throughout India. The facts of the said case are with regard to acceptance or otherwise of a certificate issued by another State. This judgment in the given set of circumstances is not applicable to this case. This judgment cannot be pressed into service for the purpose of levy of tax in terms of the amended rule. (C) O. P. No. 34306 of 2002, (Ker. H. C.): the facts of this case would show that the application filed by the operators were not entertained by the State of Karnataka. This judgment cannot be pressed into service for the purpose of levy of tax in terms of the amended rule. (C) O. P. No. 34306 of 2002, (Ker. H. C.): the facts of this case would show that the application filed by the operators were not entertained by the State of Karnataka. It was while considering with regard to the request in those cases, the Kerala High court ruled that once registration has been granted in respect of a vehicle by one State it is valid and its status as registered vehicle cannot be doubted by any other registering authority. Here again it is to be noted that the State of Karnataka in the case on hand, is not doubting the registration of vehicle at the hands of the Maharashtra Authorities. This judgment is equally in applicable to the facts of this case. (D) N. Badrinath v State of Karnataka: a reading of the facts in the said case would show that a check report was issued noting certain offences against the operator in that case with regard to laden weight. After noticing the facts of the said case, this Court ruled that the registration certificate and the permit relating to the vehicles in those cases would come in the way of proceeding against the petitioner. This Court again ruled that the registration certificate issued by another State is binding. This Court ruled that in terms of the statute no subsequent registration necessary in the said case. This case is equally distinguishable on facts. ( 10 ) AT this stage, I must point out that applicability of any judgment would depend upon the facts and the relevant laws governing the facts of that case. It cannot be applied mechanically in a given circumstances. None of the cases cited by the petitioner would come to the rescue of the petitioner. In these circumstances I do not find any justifiable grounds to interfere with the directions of the respondent with regard to inspection of the vehicle. In these circumstances, petitioners are directed to produce the vehicles for inspection and the respondents after inspection are directed to take a decision with regard to the tax liability in respect of these vehicles in accordance with law. ( 11 ) PETITIONER is having the benefit of an interim order to pay tax at the rate of Rs. 750/- per seat per quarter. ( 11 ) PETITIONER is having the benefit of an interim order to pay tax at the rate of Rs. 750/- per seat per quarter. Since the higher tax liability is still under investigation, I deem it proper to direct the respondents to collect tax at the rate of Rs. 750/- per seat per quarter till a final decision is taken with regard to the applicability of the amended rule. Ordered accordingly. No costs. --- *** --- .