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2005 DIGILAW 98 (KER)

Kerala Peoples Arts Club v. State of Kerala

2005-02-08

K.S.RADHAKRISHNAN, M.N.KRISHNAN

body2005
Judgment :- Radhakrishnan, J. Government in exercise of the powers conferred under Section 22 of the Kerala Motor Vehicles Taxation Act, 1976, reduced the rate of tax payable under the Act in respect of two vehicles KRA 6568 and KL-4/1269 owned by the Kerala Peoples Arts Club, Kayamkulam, registered under the Societies Registration Act, subject to the condition that the vehicles shall be used solely for the conveyance of artists of the drama troop in connection with the presentation of drama. Explanatory note to the said notification reads as follows: “The Secretary, Kerala Peoples Arts Club, Kayamkulam, has requested Government to grant concessional rate of tax in respect of two vehicles KRA 6589 and KL-4/1269 owned by the said club which are solely used for the conveyance of artists of the drama troop. Government are convinced of the position and in public interest grant concessional rate of tax to the said vehicles mentioned in the notification to the extent indicated therein. Hence this notification.” Petitioner, Kerala Peoples Arts Club, in short “KPAC”, enjoyed the concessional rate of tax with effect from 30.4.1994. Later Government by their letter dated 31.3.1995 cancelled the concessional rate of tax allowed to the above mentioned vehicles with effect from 1.4.1995 and directed to levy tax at the normal rate with effect from 1.4.1995. On the strength of the said letter demand was made on the petitioner for payment of normal rate of tax. Aggrieved by the said order petitioner has approached this Court. 2. The main contention raised by the counsel for the petitioner was that the Government have no jurisdiction to take away the concessional rate of tax granted by statutory notification issued under section 22 of the Kerala Motor Vehicles Taxation Act, 1976 through an executive order (Ext.P4 dated 20.4.1995). Counsel placed reliance on the decision of the apex court in K.M. Chikkaputta Swami v. State of A.P. (AIR 1985 S.C. 956). Interpreting identical provision in Andhra Pradesh Motor Vehicle taxation Act, the Supreme Court held that exemption notification issued under the Act can be modified only by another statutory notification issued under the Act and not by an executive order. 3. Petitioner’s contention on the face of it is attractive. Learned Government Pleader however made available a notification No.8408/95/PW&T dated 9th May 1995 rescinding the notification dated 30.4.1994 with effect from 1.4.1995. 3. Petitioner’s contention on the face of it is attractive. Learned Government Pleader however made available a notification No.8408/95/PW&T dated 9th May 1995 rescinding the notification dated 30.4.1994 with effect from 1.4.1995. That notification was issued in exercise of Section 22 of the Act. Therefore, the decision cited by the learned counsel for the petitioner is not applicable to the facts of this case. The fact that statutory notification cannot be rescinded by an executive order is well settled. Since Government have already issued notification with effect from 1.4.1995 the benefit of the concessional rate of tax would be available to the petitioner only upto 31.3.1995. Petitioner is obliged to pay tax at the normal rate with effect from 1.4.1995. It is so ordered. 4. Counsel for the petitioner submitted that considering the fact that the petitioner is a society registered under the Societies Registration Act consists of artists its case may be considered sympathetically. We are therefore inclined to give a direction to the State Government to recover the amount from the petitioner with interest only at the rate of 6% since the mater was pending before this court and this court has granted stay. With the above observation this writ petition is dismissed. 5. Counsel appearing for the petitioner requested for installment facility for paying off the amount in case the prayer in the writ petition is not allowed. We found no infirmity in the proceedings initiated against the petitioner and hence we permit the petitioner to pay off the amount in six equal monthly installments starting from 1st April 2005. If any of the two consecutive installments is defaulted, It is open to the respondents to recover the amount.