IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(C) NO. 17384 OF 2022
PETITIONER:
JAYA S
AGED 45 YEARS
W/O RAJANEESH S THILAKAN, NANDANAM,CHIRAKKADAVAM,
KAYAMKULAM, ALAPPUZHA
BY ADV PRASAD CHANDRAN
RESPONDENT:
THE JOINT REGIONAL TRANSPORT OFFICER
KAYAMKULAM, (TAXATION OFFICER) SUB REGIONAL TRANSPORT
OFFICE, MINI CIVIL STATION, KAYAMKULAM, PIN-690 502.
OTHER PRESENT:
ADV. DR. THUSHARA JAMES (SR. GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)N.17384/2022 2
JUDGMENT
The petitioner has approached this Court challenging Ext.P4 order calling upon the petitioner to remit tax on his vehicle (as a non-transport vehicle) on the basis of floor area with reference to Entry 15 of the Schedule of the Kerala Motor Vehicle Taxation Act, 1976.
2. The short case of the petitioner as projected by the learned counsel for the petitioner is that the vehicle of the petitioner was a stage carriage plying under a valid permit and the vehicle was registered in the year 2008. It is submitted with reference to the judgment of the Division Bench of this Court in W.A.No.220/2018 that, in respect of stage carriages registered prior to 1.10.2017, the levy of tax can only be on the basis of seating capacity and not on the basis of floor area. It is therefore submitted that the demand made in Ext.P4 is absolutely untenable.
3. The learned Senior Government Pleader appearing for the respondent would contend, with reference to Entries 7 and 15 of the Schedule to the Kerala Motor Vehicles Taxation Act that since the petitioner does not fall within Entry 7 which, applies only to motor vehicles plying for hire and used for transport of passengers and in respect of which permits have been issued under the Motor Vehicles Act 1988, the taxation of the petitioner will have to be under Entry 15 which provides only one method of calculation of tax which is on the basis of W.P.(C)N.17384/2022 3 floor area. It is submitted that the judgment of the Division Bench of this Court in W.A.No.220/2018 and connected cases is only in respect of the stage carriages in respect of which tax is levied under Entry 7 and not in respect of vehicles which have to pay tax under Entry 15 of the Schedule.
5. Having heard the learned counsel for the petitioner and the learned Senior Government Pleader, I am of the view that there is merit in the contention taken by the learned Senior Government Pleader that the petitioner cannot, on the basis of judgment in W.A.No.220/2018, claim that even in respect of vehicles which are to be taxed under Entry 15 of the Schedule to the Kerala Motor Vehicle Taxation Act, the tax will have to be calculated on the basis of seating capacity even if they registered prior to 1.10.2017.
6. There are two reasons why the argument of the learned counsel for the petitioner cannot be accepted. Firstly, the interpretation placed by the learned counsel for the petitioner would require this Court to read into Entry 15 something that is not there. This is clearly impermissible in exercise of jurisdiction under Article 226 of the Constitution of India. Secondly, a reading of the judgment in W.A.No.220/2018 of a Division Bench of this Court clearly indicates that the cut off date (1.10.2017) applies only to stage carriages in respect of which permits have been issued under the Kerala Motor Vehicles Act. In other words, that judgment would apply only in respect of vehicles to W.P.(C)N.17384/2022 4 which the "code of practice for Bus Body Design and Approval" applied with effect from 1.10.2017. The Division Bench clearly held that since the above code applied only from 1.10.2017, tax cannot be demanded under Entry 7 to vehicles registered prior to that date. The Schedule provides for a method of calculation of tax and unless there are clear indications that the method of calculation of tax under Entry 15 is to be restricted to vehicles registered after 1.10.2017, it cannot be held that the method of taxation provided in terms of Entry 15 will apply only to vehicles registered after 1.10.2017.
7. The learned counsel for the petitioner then submits with reference to Ext.P3 that even in respect of tax levied in terms of Entry 15 of the Schedule, the tax has been calculated only with reference to seating capacity in respect of vehicles registered prior to 1.10.2017. However, in the light of the interpretations that I have placed on the Schedule and the judgment of the Division Bench of this Court, it is not possible to grant relief to the petitioner even if the authorities have granted a benefit to persons similarly situated. The concept of negative equality is clearly alien to our jurisprudence. For all these reasons, the writ petition fails and will stand dismissed.
Sd/-
GOPINATH P.
JUDGE acd W.P.(C)N.17384/2022 5 APPENDIX OF WP(C) 17384/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY F THE REGISTRATION CERTIFICATE OF THE PETITIONERS VEHICLE BEARING NO KL-
29/A 5544
Exhibit P2 TRUE COPY OF THE PROCEEDINGS OF THE
RESPONDENT DATED 13.5.2022
Exhibit P3 TRUE COPY OF THE TAX ENDORSEMENT IN
RESPECT OF STAGE CARRIAGE BEARING NO KL-
03/P 5556.
Exhibit P4 TRUE COPY OF HE PROCEEDINGS OF THE
RESPONDENT DATED 24.5.2022