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PETITIONER: TRAVAVANCORE TEA CO. LTD. ETC.

       Vs.

RESPONDENT: STATE OF KERALA AND ORS.

DATE OF JUDGMENT03/06/1980

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. FAZALALI, SYED MURTAZA

CITATION:  1980 AIR 1547            1980 SCR  (3)1388  1980 SCC  (3) 619

ACT:      Kerala Motor  Vehicles Taxation  Act (Act  24 of  1963) Sections 3  5 and 6, scope of-Motor Vehicles used for use in the State  whether the  user or keeping for use in the State means user on public roads only.

HEADNOTE:      The Kerala Motor Vehicles Taxation Act (Act 24 of 1963) was brought  into force  on 1-7-63.  The Act provides that a "tax at the rates fixed by the Government by notification in the Gazette  not exceeding the maximum rate specified in the First Schedule shall be levied on all motor vehicles used or kept for use in the state".      The  appellant   company  owned   17  motor   vehicles, tractors, trailers  and lorries  all of which are registered in the  Company’s name  under the  Motor Vehicles  Act.  The Company alleged  that the  vehicles  were  purchased  by  it solely and  exclusively for  use in the estates and intended to be  used only  for an  cultural purpose and were not used nor kept  for use in the State as contemplated under section 3 of  the Act.  The Company is a tea plantation having eight estates which  lie contiguous  to each  other  and  have  an extent of  9422.44 acres  in the  aggregate. The Company for the purpose  of plantation  are maintaining  roads  fit  for vehicular traffic  in the  eight estates  covering length of 131 miles  in the  aggregate.  On  23rd  September,  1964  a Bedford Lorry  owned by the Company and bearing registration No. KLK 1540 was seized by the Police and taken into custody in Tangamullay  Estate which  is one of the estates owned by the Company  but later  released on  payment under protest a sum of  Rs. 3150/- as tax for the period between 1-7-1963 to 31-12-64. The appellant Company filed O.P. 199/65 before the High Court  of Kerala  claiming that they were not liable to pay any  tax on  the Motor  Vehicles The High Court remanded the matter  to the  Transport Authority for a finding on the question raised.  Since the Transport authorities was of the view that Section 3 covers private roads as well and decided against the  appellant, the  appellant moved  the High Court once again  in O.P.  2173/68. Having  lost before the single bench and  the Division  Bench in the Letters Patent appeal, the appellant same up in appeal by special leave.      Allowing the appeals in part, the Court

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^      HELD: 1.  On reading  sections 3, S and 6 of the Kerala Motor Vehicles  Taxation Act  (Act 24  of 1963), it is clear that a levy of tax is contemplated only on the vehicles that are used  or kept  for the  use on  the public  roads of the State. [1394G]      Bolalni ores  Ltd. v. State of Orissa, [1975] 2 SCR 138 @ 155, explained and distinguished.      2. Entry  57 in  List IT of the Constitution relates to taxes on  vehicles, whether  mechanically propelled  or not, suitable for use on roads, including tram 1389 cars subject  to the provisions of entry 35 of List III This entry enables  the A  State Government  to levy a tax on all vehicles whether mechanically propelled or not, suitable for use on  roads. Section  3  of  the  Kerala.  Motor  Vehicles Taxation Act  (Act 24 of 1963) provides that a tax "shall be levied on  all motor  vehicles used  or kept  for use in the State". The  vehicles in  the instant  case are mechanically propelled and  suitable for use on roads. The levy is within the competence of the State Legislature as Entry 57 in List. II authorises  the levy  on vehicles  suitable  for  use  on roads. [1393 B-E]      3. In  order to levy a tax on vehicles used or kept for use on  public roads  of the  Stare and  at the same time to avoid evasion  of tax  the legislature  has  prescribed  the procedure. Under  sub section  2 of  section 3  there  is  a presumption that  a motor  vehicle for which the certificate of registration  is current  shall be  deemed to  be used or kept for  use in  the State.  Section  3(2)  safeguards  the revenue of  the State  by relieving  it from  the burden  of proving that  the vehicle  was used  or kept  for use on the public roads  of the State. At the same time the interest of the bonafide  owner is  safeguarded by enabling him to claim and obtain  Q certificate  of non-user  from the  prescribed authority. In  order to  enable the  owner of the vehicle or the person  who is  in possession or being in control of the motor vehicles  of which  the certificate of registration is current  to  claim  exemption  from  tax  he  should  get  a certificate in  the  prescribed  manner  from  the  Regional Transport officer.  Section 5  provides for  exemption  from payment  of  tax  under  certain  circumstances.  Section  6 enables the  registered owner  or a  person in possession or control of  such a  vehicle to  get refund  of  tax  if  the conditions specified therein are satisfied. Thus in order to enable the  registered owner  or  person  in  possession  or control of  a vehicle  to  get  exemption  of  tax,  advance intimation  to  the  R.T.O.  along  with  the  surrender  of certificate of  registration is  necessary. The provision of s. 3  sub-sec. (2)  as well  as s.  5 and  s. 6 are meant to prevent evasion of tax and to provide for exemption from tax in proper  cases. Though  the purpose  of the  Act is to tax vehicles that  are used  or kept for use on the public roads of the  State, the  State is  entitled for  the  purpose  of safeguarding the revenue of the State and to prevent evasion of the  tax to  enact provision  like provision  as in  s. 3 raising a  presumption that  the vehicle is used or kept for use in  the State without any further proof unless exemption is claimed  under s. 3(2), s. 5 and s. 6. [1393 G-H, 1394 A- G]      4. In  order to  claim exemption  from payment  of  tax requirements of  s. 3(2) or ss. 5 and 6 should be satisfied. Surrender of the registration certificate contemplated under s. 5 is for making sure that the motor vehicles is not being put to any use and does not have the effect of annulling the

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certificate of registration. If the requirement contemplated under the  Act is  not satisfied  the  registered  owner  or person in possession or control of the vehicles would not be entitled to  claim any  exemption from payment of tax. [1394 H. 1395 A-Bl      5. The Kerala Motor Vehicles Taxation Act, 1963 (Act 24 of 1963)  came into  force on  18-3-63. Section  2(1) of the Taxation Act  provides that  words, and  expression used but not defined  in the  Motor Vehicles Act, 1939 (Central Act 4 of 1939)  shall have  the meaning  respectively assigned  to them in that Act. On the date when the Kerala Motor Vehicles Taxation Act  was  enacted,  Motor  Vehicles  Act  1939  was amended (by  Act 100  of 1956) and the emended definition on the date when the Taxation Act came into force exempted only motor vehicles which are of a special type adopted for use 1390 only in  factory or  in any  other enclosed  premises.  This amended definition  will have  to be  read into the Taxation Act  which  was  enacted  subsequent  to  the  date  of  the amendment (by  Act 100  of 1956) of the definition of "motor Vehicle" in  s. 2(18)  of the  Motor Vehicles Act (Central), 1939. [1396 F-H, 1397 Al

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 437-437 and 1460 of 1970.      Appeals by  Special Leave from the Judgments and orders dated 24-3-1969  & 10-11-1969  of the  Kerala High  Court in Writ Appeal Nos, 451/79, 630/69 & 807/69.      A. B.  Divan, M.  Vellapally and  T. M.  Ansari for the Appellant in CA 437/70.      M. Vellapally  and T.  M. Ansari  for the  Appellant in C.A. 438/ 70. Kapil Sibal,      M. Vellapally  and T.  M. Ansari  for the  Appellant in C.A. 438/70.      Kapil Sibal,  M. Vellapally  and T.M.  Ansari  for  the Appellant in 1460/70.      K.  T.   Harindranath  and   K.  M.  K.  Nair  for  the Respondents in all the appeals.      The Judgment of the Court was delivered by      KAILASAM, J.  These three  appeals are by special leave granted by  this Court against the judgment and order of the High Court  of Kerala  in Writ Appeals Nos. 451, 630 and 807 of  1969   respectively.  The   questions  that   arise  for consideration in  all the three appeals and the same and can be dealt  with together.  As the  facts so  far as  they are necessary for decision in these appeals are similar, we will confine the judgment to the facts in Civil Appeal No. 437 of 1970.      The appellant  in Civil  Appeal  No.  437  of  1970  is Travancore tea  Estates  Co.  Ltd.  Vandiperiyar  in  Kerala State. The  1st  respondent  is  the  State  of  Kerala  and respondents nos.  2 and  4 are  the authorities  functioning under the  Kerala Motor  Vehicles taxation  Act (Act  24  of 1963) which  will hereafter  be referred  to as the Act, was brought into force on 1-7-1963. The Act provides that "a tax at the  rates fixed by the Government by notification in the Gazette not  exceeding the  maximum rates  specified  i  the First Schedule shall be levied on all Motor Vehicles used or kept for  use in  the State." The appellant company owned 17 motor Vehicles,  tractors, trailers and lorries all of which are  registered  in  the  company’s  name  under  the  Motor Vehicles Act.  The company  alleged that  the vehicles  were

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purchased by  it solely  and  exclusively  for  use  in  the estates and  intended  to  be  used  only  for  agricultural purpose and  were not  used nor kept for use in the State as contemplated under  s. 3  of the  Act. The  company is a tea plantation having eight estates which lie contiguous to each other and have an extent of 1391 9422.44 acres  in the aggregate. The company for the purpose af   plantation are  maintaining  roads  fit  for  vehicular traffic in  the eight estates covering a length of 131 miles in the  aggregate on  23rd September,  1964 a  Bedford Lorry owned by  the company  and bearing registration No. KLK-1540 was seized  by the police and taken into custody under s. 13 of the  Act. According  to the  appellant  the  seizure  was effected in  Tengamullay Estate  which is  one of  the eight estates owned  by the  company. The  company  wrote  to  the Department on  28-12-1964 stating that the vehicle was being used for  agricultural  purpose  on  private  roads  in  the Estates and  the company  is not liable to pay tax and asked for the  release of the vehicle. On the company paying a sum of Rs.  3,150/- as  tax under protest for the period between 1-7-63 to 31-12-94, the vehicle was released. The department proceeded to  prosecute the  appellant in  the Peermade  1st Class Magistrate’s  Court and the case is still pending, The appellant company  filed o.  P. No.  199/65 before  the High Court of  Kerala claim  in that  they were not liable to pay any tax  on the  motor  vehicles.  The  High  Court  by  its judgment dt. 3rd March, 1966 directed the Regional Transport officer, Kottayam-2nd  respondent  herein,  to  examine  the question raised  in the  writ petition  and  to  pass  final orders.  It   also  directed  that  if  the  petitioner  was aggrieved with  the order  he was at liberty to approach the High Court. In the meanwhile it directed stay of prosecution and  collection   of  tax   the  matter  was  taken  up  for consideration by  the 2nd  respondent.  The  2nd  respondent rejected the pleas of the appellant and by his order dt. 12- 4-68 held  that the  13 vehicles  mentioned in  the original Petition  were  liable  to  pay  was  under  they  act.  The appellant  filed  a  petition  before  the  High  Court  for appropriate relief. The High Court disposed of the petition- o. P.  No. 2173/68  along with  o. P  No. 2081/68  filed  by Peermade Tea  Co. who  are the  appellants in C.A. 438/70 in this Court,  by a  common order dt. 19th December, 1968. The learned Judge  held that  the language  in s.  3 of  the Act showed that there is a departure from the legislative policy of restricting  the tax  liability only  to  vehicles  using pubic roads.  It held that the tax is imposed by s. 3 on alt the motor  vehicles used  or  kept  for  use  in  the  State irrespective of  any question as to whether they are used or kept for  G use  on pubic  roads or  not.  It  rejected  the contention on  behalf of the appellant that legislature must be taken  to have  intended to  levy such  tax only on motor vehicles using  or kept for use on public roads. The learned Judge also held that the Act is not beyond the competence of the legislative  powers of  the State as the tax is leviable by the  State in  respect of  all motor vehicles are used or kept for use in the State quite irrespective of any question as whether or not such vehicles are used on public roads. 1392      Aggrieved by  the decision  of  the  single  Judge  the appellant took  the matter  up on Letters Patent Appeal. The main contention  raised -  on behalf  off the  appellant was that the  learned single  Judge was in error in holding that all motor  vehicles used  or kept for use in the State quite irrespective of  any question  as to whether or not they are

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used on  public roads,  is erroneous in so far as it related to motor  vehicles used  or  kept  exclusively  for  use  in private estate  and not  used or  kept for use on the public roads of  the State.  The Letters  Patent Bench affirmed the decision of  the single  Judge and  rejected the appeal. The constitutional validity of the Act was not questioned before the Bench.  Holding that  the legislative  Entry 57  if  the State  list  only  required  that  the  vehicles  should  be suitable for  use on  roads and  the charging  section  only provided that  the vehicle should be used or kept for use in the State  the required  conditions were satisfied and there would be no justification for reading into the statute words that and  not  there,  and  restricting  the  levy  only  on vehicles  using  public  roads.  While  not  contesting  the correctness of  the observation  of the  Bench of the Kerala High Court  that the  levy cannot  be restricted to vehicles using the  public roads,  it was submitted that the words in s. 3  cl. (1)  of he  Act "shall  be  levied  on  all  motor vehicles used  or kept  for use  in  the  State"  should  be confined to  vehicles used  or kept  for use  on the  public roads of the State, and not to vehicles that arc intended to be confined  within the  premises of  the Estate.  In  other words the  controversy between the parties before the R.T.O. the single Judge of the High Court and the Bench of the High Court can  be stated  by extracting the question at issue as framed by the R.T.O.           "I  understand   that  the  roads  used  by  these      vehicles (even those within the estates) come under the      definition of  "Public Roads and Public Place" since at      present I  have  .  not  afforded  opportunity  to  the      company to refute the basis on which that fact is to be      found. I  make it  clear that  I am not relying on that      matter as a basis for this order and I reserve my right      to investigate that matter if needed be later. I assume      for argument  sake (without  conceding) that the estate      roads are  private roads.  Even in that case, I am of .      the view  that the company’s vehicles are liable to pay      tax. It  is not  in dispute  that the vehicles are used      and are  kept for  use within  the State  (The  company      roads arc  within the  Kerala State).  It is  also  not      disputed that  the vehicles  are registered  and  their      registration certificates  are  current  and  they  are      usable  motor   vehicles.  The  tax  levied  under  the      K.M.V.T. Act is a tax on the possession of usable motor 1393      vehicle and  it is  realised for  the propose  of State      Revenue.   Such being  the nature of the levy according      to me, I feel that irrespective of the question whether      the road on which the vehicle is intended to be used is      private or public, the tax is attracted."      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.  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

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suitable for use on roads.      Section 3  of the  impugned Act  (Kerala Motor Vehicles Taxation Act  (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 by 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.      If the  words used  or kept  for use  in the  State  is construed as used or kept for use on the public roads of the State, the  Act would  be  in  conformity  with  the  powers conferred on  the State  legislature under  Entry 57 of List II. If the vehicle are suitable for use on public roads they are liable  to be  taxed. In order to levy a tax on vehicles used or kept for use on public roads of the State and at the same time  to avoid  evasion  of  tax  the  legislature  has prescribed the  procedure. Sub- section 2 of sec. 3 provides that the registered owner or any person having possession of or control  of a  motor vehicle  of which  a certificate  of registration is  current shall  for the  purpose of this Act be deemed to use or kept such vehicles for use 1394 in the State except during any period for which the Regional Transport Authority  has certified  in the prescribed manner that the  motor vehicle  has not  been used or kept for use. Under this  sub-section there  is a presumption that a motor vehicle for which the certificate of registration is current shall be  deemed to  be used  or kept  for use in the State. This provision  safeguards  the  revenue  of  the  State  by relieving it from the burden of proving that the vehicle was used or  kept for  use on  the public roads of the State. At the  same  time  the  interest  of  the  bonafide  owner  is safeguarded  by   enabling  him   to  claim   and  obtain  a certificate of  non-user from  the prescribed  authority. In order to  enable the  owner of the vehicle or the person who is in possession or being in control of the motor vehicle of which the  certificate of  registration is  current to claim exempting from  tax he  should  get  a  certificate  in  the prescribed manner from the Regional Transport Officer.      Section 5  of  the  Act  provides  for  exemption  from payment of  tax under  certain circumstances. It enables the registered owner  or the person having possession or control of such  vehicle to  give previous  intimation in writing to the R.T.O.  that the  vehicle would  not be  used  for  such period  and  at  the  same  time  surrender  certificate  of registration and  permit of  the vehicle.  Section 6 enables the registered owner or a person in possession or control of such a  vehicle to get refund of tax if conditions specified in  s.  6  are  satisfied.  Thus  in  order  to  enable  the registered owner  or person  in possession  or control  of a vehicle to  get exemption  of tax, advance intimation of the R.T.O.  along   with  the   surrender  of   certificate   of registration is  necessary. The  provision of s. 3, sub-sec. (2) as well as 6. 5 and s. 6 are meant to prevent evasion of tax and  to provide  for exemption from tax in proper cases. Though the  purpose of  the Act  is to tax vehicles that are used or  kept for  use on the public roads of the State, the State is  entitled  for  the  purpose  of  safeguarding  the revenues of  the state and to prevent evasion of the tax, to enact provision  like  provision  as  in  s.  3  raising’  a

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presumption that  the vehicle is used or kept for use in the Situate  without  any  further  proof  unless  exemption  is claimed under s. 3(2), s. 5 and s.6. It may be observed that reading sections  3, 5  and 6 it is clear that a levy of tax is contemplated  only on the vehicles. that are used or kept for use on the public roads of the state.      ‘While we  agree with  the contentions  of the  learned counsel for  the appellant  that the tax is only eligible on vehicles used  or kept  for use  on public  roads,  we  must deserve that in order to claim exemption from payment of tax requirements of  s. 3(2) or ss. 5 and 6 should be satisfied. Surrender of the registration certificate 1395 contemplated under  s. 5  is for  making sure that the motor vehicle is  not being  put to  any use and does not have the effect of  annulling the certificate of registration. If the requirement contemplated  under the Act is not satisfied the registered owner  or person  m possession  or control of the vehicle would  not be  entitled to  claim any exemption from payment of tax’.      It  remains   for  consideration  as  to  what  is  the appropriate order  that should  be passed  on the  facts and circumstance of  this case.  As a general proposition of law as exemption  from payment  of tax  had not been claimed and obtained as  required under this Act, the appellant would be liable to  pay tax  but as  already pointed  out and set out clearly in  the order  of the  R.T.O., the question that was raised and  disputed was  whether on the assumption that the vehicles were  kept for  use in the states alone and not for use on  the public  roads of the State, tax is leviable. The authorities proceeded  on the  basis that even assuming that the vehicles  were not  intended to  be used  on the  public roads, they  are liable  to tax. In this view, the appellant did not  apply for  exemption or notify non-user as required under the  provisions of  the Act.  But  on  the  facts  and circumstances of  the case  it is  clear that  the appellant claimed for exemption from tax on the ground that it was not being used  on the public roads. In the circumstances of the case we  have to  take it that though, in terms, requirement of ss.  3 and  5 have  not been complied with, in effect the requirements have  been satisfied  as the  dispute proceeded throughout on  that basis.  But  as  has  been  specifically stated by the R.T.O., the question whether estate roads are. public roads  is  reserved  for  further  investigation  and decision. Equally the R.T.O. will be at liberty to act under s. 5(2)  of the Act and decline exemption from the liability to pay  tax for the relevant period if on verification it is found that  the vehicle  has been used during that period on the public road.      Before concluding,  we  would  refer  to  a  contention raised by  the learned counsel based on the decision of this Court in  Bolani Ores  Ltd. v.  Orissa, (supra). The plea of the learned  counsel is that the word "motor vehicle" should be understood  as defined  by s. 2(18) of the Motor Vehicles Act, 1939  and excluded  from taxation  motor vehicles "used solely upon the premises of the owner." As the vehicles with which we  arc concerned  were claimed  to have been kept for use solely  in the premises of the company, it was contended that the vehicles are not exigible to tax. This Court in the decision cited  was dealing  with the  Orissa Motor Vehicles Taxation Act,  1930. Section(2c)  of the Orissa Taxation Act adopted the  definition of  Motor vehicles  Act as  found in Motor Vehicles  Act, 1914.  The Motor vehicles Act. ]914 was repealed and replaced by the Motor Vehicles 1396

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Act, 1939.  The definition  of motor vehicle’ in s. 2(18) of the Motor  Vehicles Act,  1939 excluded  motor vehicles used solely upon  the premises  of the  owner. The  Orissa  Motor vehicles Taxation  Act was amended and orissa Amendment Act, 1943 re-enacted  the provisions  of the Taxation Act. ’Motor Vehicles’ was  defined under  s. 2(18) of the Motor Vehicles Act, 1939  excluding vehicles  used solely upon the premises of the owner. Subsequently the definition of ’motor vehicle’ under s.  2(18) of the Motor Vehicles Act was amended by the Act 100  of 1956  which confined the exemption from taxation to "motor vehicles of a special type adopted for use only in a factory  or in any other enclosed premises." The exemption from tax only be claimed after amendment to s. 2(18) by Act, 100 of  1956, if the vehicle was of special type adopted for use only  in a factory or in any other enclosed premises and the exemption  that was  avail able  before the amendment by Act 100  of 1956  to Motor  Vehicles used  solely  upon  the premises of  the owner  was taken  away. This Court held "if the subsequent,  Orissa Motor  Vehicles Taxation (Amendment) Act, 1943,  incorporating the  definition of‘motor  vehicle’ referred to  the definition of ’motor vehicle’ under the Act as then  existing, the  effect of  this  legislative  method would, in our view, amount to and incorporation by reference of the  provisions of  s. 2(1)  of the Act in s. 2(c) of the Taxation Act . Any subsequent argument in the Act or a total repeal of  the Act  under a  fresh legislation on that topic would not  affect the  definition of  ’motor vehicle’  in s. 2(c) of  the Taxation Act." As a result this Court held that the definition  of ’motor  vehicle’ given in s. 2(18) of the Motor Vehicles  - Act,  1939 before the amendment by Act 100 of 1956  was  applicable.  Relying  on  this  decision,  the learned counsel  submitted that  the  test  that  is  to  be applied to  determine whether motor vehicle is liable to tax or not  is whether  it comes under the exemption provided by under s.  2(18) of  the Motor  Vehicles Act, 1939 before the amendment. We  are unable to accept the contention mainly on the ground that the Kerala Motor Vehicles Taxation Act, 1963 (Act 24 of 1963) came into force on 18-3-63. Section 2(1) of the Taxation Act provided that words and expression used but not defined in the Motor Vehicle Act, 1939 (Central Act 4 of 1939) shall  have the  meaning respectively assigned to them in that  Act. On  the date  when the  Kerala Motor  Vehicles Taxation Act  was  enacted,  Motor  Vehicles  Act  1939  was amended by  Act 10()  of 1956  and the amended definition on the date when the Taxation Act came into force exempted only motor vehicles  which are  of a special type adopted for use only in  a factory  or in  any other  enclosed premises. The amended definition  will have  to be  read into the Taxation Act which  was enacted  subsequent to  the date  of  the  ,. amendment of the definition of ’Motor Vehicle’ by Act 100 of 1956 1397 In this  view we  feel that  the decision  in Bolani’s  case (supra) will not be of any assistance to the learned counsel for the appellants.      The appeals  are allowed to the extent indicated above. But in the circumstances there will be no order as to costs. S.R.                               Appeals allowed in part. 1398