Kerala High Court
A One Travels vs Union Of India on 6 November, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:82400
W.P.(C)No.26396/2024 & Conn.cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
WP(C) NO. 26396 OF 2024
PETITIONERS:
SANITHJAN.S,AGED 37 YEARS,S/O. SADEERJAN, PROPRIETOR,
KERALA LINES TRAVELS,JAIL ROAD, KOHIMA, NAGALAND-
797001, PRESENTLY HAVING ITS HEAD OFFICE AT 104/4,
HOSUR MAIN ROAD, MADIWALA, BANGALORE, PIN - 560068
BY ADVS.SRI. P DEEPAK (SR.)
P.RAMAKRISHNAN
MAHESH SANKARASUBBAN SAHASRANAMAN
PRATAP ABRAHAM VARGHESE
ASHOK MENON
RESPONDENTS:
1 UNION OF INDIA,THROUGH ITS SECRETARY, MINISTRY OF ROAD
TRANSPORT & HIGHWAYS, TRANSPORT BHAWAN, 1, PARLIAMENT
STREET, NEW DELHI, PIN - 110001
2 STATE OF KERALA,THROUGH ITS SECRETARY, TRANSPORT
DEPARTMENT, GOVERNMENT OF KERALA SECRETARIAT,
THIRUVANANTHAPURAM, KERALA, PIN - 695001
3 TRANSPORT COMMISSIONER,GOVERNMENT OF KERALA, TRANSPORT
COMMISSIONERATE, 2ND FLOOR, TRANS TOWERS, VAZHUTHACAUD,
THYCAUD P.O., THIRUVANANTHAPURAM, KERALA, PIN - 695014
BY ADV SHRI.K.S.PRENJITH KUMAR, CGC
OTHER PRESENT:
SRI. ARUN AJAY SHANKER -GOVERNMENT PLEADER
SRI. MOHAMMED RAFIQ (SPL GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION AND HAVING
BEEN FINALLY HEARD ON 21.8.2024, ALONG WITH WP(C).26607/2024,
26992/2024, THE COURT ON 6.11.2024 DELIVERED THE FOLLOWING:
2024:KER:82400
W.P.(C)No.26396/2024 & Conn.cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
WP(C) NO. 26607 OF 2024
PETITIONER:
A ONE TRAVELS,MARAI MALAI, ADIGAL SALAI, PUDUCHERY,
REPRESENTED BY ITS PARTNER/PROPRIETOR TAMILSELVI,
RESIDING AT 12, KEERTH IILLAM, ABIRAMI NAGAR, 2ND
CROSS, BHARATHIYAR ROAD, COMBATORE, TAMIL NADU, PIN -
605004
BY ADVS. SRI. P.DEEPAK (SR.)
P.RAMAKRISHNAN
MAHESH SANKARASUBBAN SAHASRANAMAN
PRATAP ABRAHAM VARGHESE
ASHOK MENON
RESPONDENTS:
1 UNION OF INDIA,THROUGH ITS SECRETARY, MINISTRY OF ROAD,
TRANSPORT & HIGHWAYS, TRANSPORT BHAWAN 1, PARLIAMENT
STREET, NEW DELHI, PIN - 110001
2 STATE OF KERALA,THROUGH ITS SECRETARY, TRANSPORT
DEPARTMENT, GOVERNMENT OF KERALA SECRETARIAT,
THIRUVANANTHAPURAM, KERALA, PIN - 695001
3 TRANSPORT COMMISSIONER,GOVERNMENT OF KERALA, TRANSPORT
COMMISSIONERATE, 2ND FLOOR, TRANS TOWERS, VAZHUTHACAUD,
THYCAUD P.O., THIRUVANANTHAPURAM, KERALA, PIN - 695014
BY ADV SHRI.K.S.PRENJITH KUMAR, CGC
OTHER PRESENT:
SRI. ARUN AJAY SHANKER -GOVERNMENT PLEADER
SRI. MOHAMMED RAFIQ (SPL GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION AND HAVING
BEEN FINALLY HEARD ON 21.8.2024, ALONG WITH WP(C).26607/2024,
26992/2024, THE COURT ON 6.11.2024 DELIVERED THE FOLLOWING:
2024:KER:82400
W.P.(C)No.26396/2024 & Conn.cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
WP(C) NO. 26992 OF 2024
PETITIONERS:
1 K.R. SURESHKUMAR,AGED 56 YEARS
S/O. (LATE) RAMAKRISHNAN, PROPRIETOR, M/S. KALLADA
TOURS & TRAVELS, A SECTOR, PO/PS, NAHARLAGUN, ARUNACHAL
PRADESH, PIN - 791110
2 SAJEEVKUMAR K.R.,AGED 54 YEARS,S/O.RAMAKRISHNAN,
KALLADA HOUSE, PATTAMALY ROAD, IRINJALAKUDA P.O.,
IRINJALAKUDA, (PART), THRISSUR DISTRICT, PIN - 680121
3 SHAJI NAIR,AGED 46 YEARS, S/O .K.V. NAIR, M/S TRAVELOG
VENTURES, MANAGING PARTNER, NO. 13, HOSUR ROAD, DRC
POST, NEAR MAHINDRA SHOWROOM, BANGALORE, KARNATAKA
STATE, PIN - 560029
BY ADVS.G.HARIHARAN
PRAVEEN.H.
K.S.SMITHA
B.R.SINDU
V.R.SANJEEV KUMAR
V.ROHITH
AFNA V.P.
RESPONDENTS:
1 UNION OF INDIA,REPRESENTED BY THE PRINCIPAL SECRETARY
TO GOVERNMENT, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS,
SAMSAD MARG, NEW DELHI, PIN - 100001
2 STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY
TO GOVERNMENT, TRANSPORT DEPARTMENT, NORTH BLOCK,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
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W.P.(C)No.26396/2024 & Conn.cases 4
3 THE TRANSPORT COMMISSIONER,
TRANS TOWERS, VAZHUTHACAD, THIRUVANANTHAPURAM, PIN -
695014
4 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, GOPALAPURAM, PIN - 678101
5 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, WALAYAR, PALAKKAD, PIN -
678624
6 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, AMARAVILA,
THIRUVANANTHAPURAM, PIN - 695122
7 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, MUTHANGA, (VIA)
SULTHANBATHERY, WAYANAD DISTRICT, PIN - 673592
8 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, IRITTY, KANNUR DISTRICT, PIN
- 670703
9 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, ARYANKAVU, KOLLAM DISTRICT,
PIN - 691309
10 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, KATTIKULAM, WAYANAD DISTRICT,
PIN - 670646
11 THE TAXATION OFFICER, (MOTOR VEHICLE INSPECTOR),
MOTOR VEHICLE CHECK POST, MANJESWARAM, KASARAGOD
DISTRICT, PIN - 671323
BY ADV SHRI.K.S.PRENJITH KUMAR, CGC
OTHER PRESENT:
SRI. ARUN AJAY SHANKER -GOVERNMENT PLEADER
SRI. MOHAMMED RAFIQ (SPL GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION AND HAVING
BEEN FINALLY HEARD ON 21.8.2024, ALONG WITH WP(C).26607/2024,
26992/2024, THE COURT ON 6.11.2024 DELIVERED THE FOLLOWING:
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W.P.(C)No.26396/2024 & Conn.cases 5
C.R
JUDGMENT
[WP(C) Nos.26396/2024, 26607/2024, 26992/2024]
These writ petitions have been filed challenging the demand and
collection of tax under the provisions of the Kerala Motor Vehicle Taxation
Act, 1976 (hereinafter referred to as the 1976 Act) on tourist vehicles holding a
permit in terms of the provisions contained in the All India Tourist Vehicles
(Permit) Rules, 2023 (hereinafter referred to as the 2023 Rules) which were
brought into force in supersession of All India Tourist Vehicles (Authorisation
or Permit) Rules, 2021 (hereinafter referred to as the 2021 Rules).
2. It is the case of the petitioners that upon the tourist vehicles
operating in more than one State obtaining a permit under the provisions of
the 2023 Rules, no further 'authorisation fee/border tax' can be collected
under the provisions of the 1976 Act. According to the petitioners, the 2021
Rules provided for the collection of authorisation fees/border tax by
respective State Governments for plying of tourist vehicles having an All India
Permit within the respective States and the quantum of such authorisation
fee/border tax was also specified in the 2021 Rules. It is stated that, on
18.04.2023, the Union of India, in exercise of the powers conferred by
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sub-section (14) r/w. sub-section (9) of Section 88 of the Motor Vehicles Act,
1988 (hereinafter referred to as the 1988 Act) and in supersession of the 2021
Rules brought into force the 2023 Rules doing away with the provision for
collection of authorisation fee/border tax by the various States Governments
from tourist vehicle operators holding a valid All India Permit. It is submitted
that, through an advisory, all State Governments and Transport
Commissioners of all the States and Union Territories were advised not to
levy any other kind of taxes or fees from tourist vehicles holding a valid
permit issued under the 2023 Rules. It is stated that some of the petitioners
had earlier approached the Supreme Court of India by filing a petition
invoking Article 32 of the Constitution of India which was subsequently
disposed of permitting the respective petitioners to approach the High Court.
It is submitted that Ext.P11 order has been issued by the Transport
Commissioner (Kerala), without the authority of law, requiring the collection
of tax under the provisions of the 1976 Act even in respect of vehicles holding
a permit in terms of the 2023 Rules.
3. Sri. P. Deepak, the learned Senior Counsel appearing for the
petitioners on the instructions of Adv. Mahesh Sankarasubban Sahasranaman
contends that the demand for payment of tax under the 1976 Act in respect of
vehicles holding a valid permit issued under the 2023 Rules is clearly illegal
and unsustainable in law. It is submitted that Entry 57 of List II of the VIIth
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Schedule to the Constitution of India which permits the State to make law for
the levy of taxes on vehicles is expressly subject to the provisions of Entry 35
of List III which authorises making of law relating to mechanically propelled
vehicles 'including the principles on which taxes on such vehicles had been
levied'. It is submitted that the 2023 Rules is a piece of legislation traceable
to Entry 35 of List III. It is submitted that by virtue of the provisions
contained in Article 254 of the Constitution of India, Union legislation in
respect of subjects specified in List III, whether earlier to or later to the State
legislation, will prevail and the State legislation will, to the extent of
inconsistency, be inoperative. He submits that the judgment of the Supreme
Court in State of Assam and others v. Labanya Probha Devi; AIR
1967 SC 1575 has considered the two entries namely Entry 57 of List II and
Entry 35 of List III and has held that the Entries deal with different matters,
though the subjects appear to be allied ones. It is submitted that, while Entry
57 of List II deals with taxes on vehicles, Entry 35 of List III denotes rules of
guidance in the matter of taxation. It is submitted that the 1976 Act does not
contain any provision laying down any principles of taxation and therefore, it
cannot be said that the 1976 Act is a 'ragbag' legislation drawing sustenance
from both Entry 57 of List II and Entry 35 of List III. It is submitted that
though the 1988 Act (a legislation relatable to Entry 35 of List III) contains no
provision laying down any principle of taxation it is open to the delegate
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under that legislation (the Union Government) to make rules laying down
'principles of taxation' and if it chooses to do so, the provisions of the 1976
Act would be subject to the same. It is submitted that the expression 'law
made by Parliament/Legislature of a State' in Art.246 of the Constitution of
India includes not only plenary legislation but also subordinate legislation
and that subordinate legislation also answers to the definition of 'law'. The
learned counsel placed reliance on the judgments of the Supreme Court in
Edward Mills Company Ltd., Beawar and others v. State of Ajmer
and another; AIR 1955 SC 25 and Jayantilal Amratlal Shodhan v.
F.N. Rana and others; AIR 1964 SC 648 in support of this contention.
He relied on the decisions of the Supreme Court in Hamdard Dawakhana
(Wakf) Lal Kuan, Delhi and another v. Union of India and others;
AIR 1960 SC 554, Uttar Pradesh Power Corporation Ltd. v.
National Thermal Power Corporation Ltd; (2009) 6 SCC 235, Udai
Singh Dagar and others v. Union of India and others; (2007) 10
SCC 306, State of Rajasthan and others v. Basant Nahata; (2005)
12 SCC 77 and St. Johns Teachers Training Institute v. Regional
Director, NCTE and another; (2003) 3 SCC 321 to establish the status
of a delegated legislation. He referred to the provisions of the 2023 Rules and
the provisions of Sections 88(9), 88(14) and 212 of the 1988 Act and
attempted to establish that the 2023 Rules is 'law' relatable to Entry 35 of List
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III. It is submitted that, if the 2023 Rules qualify as a law under Entry 35 of
List III, any law made by the State Legislature under Entry 57 of List II will be
subject to the provisions of the 2023 Rules. It is submitted that the view taken
by this Court while considering a similar plea on the basis of 2021 Rules in the
interim order dated 8.11.2022 in W.P.(C)No.34572/2022 and connected cases
is not the correct view in law and also that the principles culled out in that
order from the decisions of the Supreme Court in Government of Andhra
Pradesh and others v. P. Laxmi Devi (Smt); (2008) 4 SCC 720 and
Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and
others; (2006) 4 SCC 327 have no application to the facts of the present
case. Lastly, he again referred to the provisions of Section 212 of the 1988 Act
and to the effect of laying Rules before Parliament. He thus contends that the
petitioners in these cases are entitled to the reliefs sought for in the respective
writ petitions.
4. Since these Writ Petitions have not been admitted, Sri.
Mohammed Rafiq, the learned Senior Government Pleader (Taxes) addressed
arguments in the matter, with the permission of the Court. He contends that
there is no provision in the 1988 Act which relates to taxes on motor vehicles.
It is submitted that the view taken by this Court in the interim order dated
8.11.2022 in W.P.(C)No.34572/2022 and connected cases while dealing with
the similar contention raised in the background of the 2021 Rules, is the
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correct view to be taken in the matter. He submitted that an essential
legislative function cannot be delegated. He placed reliance on the judgment
of the Supreme Court in Basant Nahata (Supra) and Global Energy
Ltd. and another v. Central Electricity Regulatory Commission;
(2009) 15 SCC 570 in support of this contention. He also placed reliance
on the judgment in P. Laxmi Devi (Supra) to reiterate that the subordinate
legislation even if made under the provisions of the 1988 Act cannot override
plenary legislation made by the State Legislature with reference to Entry 57 of
List II. He also placed reliance on the judgment of this Court in U. A. Lathif
v. State of Kerala; 2023 (6) KLT 183.
5. Having considered the submissions made across the bar, I am of the
view that the petitioners have not made out any case for grant of relief.
6. The scope of Entry 57 of List II and Entry 35 of List III is beyond
cavil. The words used clearly indicate the scope of both Entries. They offer no
scope for an argument that they overlap in any manner. In Labanya
Probha Devi (Supra) it was held:-
"11. The short question, therefore, is whether any of the
provisions of the amending Acts is repugnant to any of the
provisions of the existing law with respect to any of the matters
enumerated in the Concurrent List. Under the existing law i.e.
Act 9 of 1936, no motor vehicles could be used in the Assam
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Province unless the owner thereof had paid in respect of it a tax
at the appropriate rate specified in the Schedule to the Act and,
save as therein specified, such tax should thereafter be payable
annually notwithstanding that the motor vehicle might from
time to time cease to be used (see Section 4). As aforesaid, the
Schedule annexed to the principal Act was amended from time
to time by different amending Acts and the rate was increased.
Under the 1963 amending Act, apart from other provisions
which do not relate to any principles of taxation, a new
Schedule has been substituted. Neither the amending Act nor the
Schedule laid down any principles of taxation in respect of
motor vehicles. So too, the amending Act of 1966 substituted the
Schedule of the Act by another Schedule. A perusal of the
aforesaid Schedule only discloses that different rates were
fixed; that is to say, the amended Schedule does not lay down
any principles on which taxes on motor vehicles are to be levied
within the meaning of Entry 35 of the Concurrent List; it is
solely concerned with taxes on vehicles within the meaning of
Entry 57 of List II. The two entries deal with two different
matters though allied ones -- one deals with taxes on vehicles
and the other with the principles on which such taxes are to be
levied. When two entries in the Constitution, whether in the
same List or different Lists, deal with two subjects, if possible,
an attempt shall be made to harmonize them rather than to
bring them into conflict. Taxes on vehicles in their ordinary
meaning connote the liability to pay taxes at the rates at which
the taxes are to be levied. On the other hand, the expression
"principles of taxation" denotes rules of guidance in the matter
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of taxation. We, therefore, hold that the amending Acts do not
come into conflict with the existing law in respect of any
principles of taxation, but only deal with a subject-matter which
is exclusively within the legislative competence of the State
Legislature. In this view, there is no scope for the application of
Article 254 of the Constitution."
Entry 57 of List II reads thus:-
"57. 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."
Entry 35 of List III reads thus:-
"35. Mechanically propelled vehicles including the principles
on which taxes on such vehicles are to be levied."
Entry 57 of List II thus enables the State Legislature to make a law for the
imposition of 'Taxes on vehicles......'. It is true that Entry 57 of List II is
expressly made subject to any legislation made under Entry 35 of List III.
However, the contention that the 1976 Act should be subject to the 2023
Rules is only to be rejected. It must be noted that the 2023 Rules is a piece of
subordinate legislation framed in the exercise of the powers conferred by sub-
section (14) r/w sub-section (9) of Section 88 of the 1988 Act. It is not even
contended before me that the 1988 Act contains any provision relating to
taxation. Therefore, even if it were to be assumed that the words 'principles
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on which taxes on such vehicles had been levied' in Entry 35 of List III
includes the power to regulate and fix the tax payable by tourist vehicles
holding an All India Permit; in the absence of any taxing provision in the
1988 Act, it must be held that no tax can be imposed by the authority of the
subordinate legislation. This point seems settled by the ratio of Bimal
Chandra Banerjee v. State of Madhya Pradesh, (1971) 81 ITR 105
where it was held:-
"14. No tax can be imposed by any bye-law or rule or regulation
unless the statute under which the subordinate legislation is made
specially authorises the imposition even if it is assumed that the
power to tax can be delegated to the executive. The basis of the
statutory power conferred by the statute cannot be transgressed by
the rule-making authority. A rule-making authority has no plenary
power. It has to act within the limits of the power granted to it."
This issue can be considered from another angle. The fact that the Union
Parliament may legislate with reference to Entry 35 of List III does not lead to
the conclusion that its delegate (here the Union Government) can make Rules
without any enabling power in the parent statute (here the 1988 Act). This
issue was considered by the Supreme Court in Kerala Samsthana Chethu
Thozhilali Union (Supra) and it was held:-
"48. The High Court, furthermore, in our opinion, is not correct in
tracing the legislative power of the State to Entries 23 and 24 of List
III of the Seventh Schedule of the Constitution. The legislative field
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contained in the Seventh Schedule of the Constitution provides for
field of plenary power of the legislature but what a legislature can
do, evidently, a delegatee may not, unless otherwise provided for in
the statute itself."
Thus the contention that in the light of the legislative power conferred by
Entry 35 of List III and in the light of the fact that the authority of the State
Legislature under Entry 57 of List II is expressly subject to any law made
under Entry 35 of List III, the 2023 Rules will override the provisions of the
1976 Act, is only to be rejected. For the same reason, the question of the
application of the provisions of Article 254 of the Constitution of India does
not arise. In fact, the decision in Labanya Probha Devi (Supra) is itself
authority for the proposition that Article 254 has no application in the facts of
the present case.
7. I had the occasion to consider a challenge (on almost identical
grounds) in the context of the 2021 Rules in W.P(C)No. 34572 of 2022 &
connected cases. While declining interim relief in those cases it was held:-
" I cannot read the provisions of the All India Rules in isolation and
without reference to the constitutional scheme of legislation. The
Constitution of India is the "grundnorm" [Kelsen - The Pure Theory
of Law). In Govt. of A.P. and others v. P. Laxmi Devi, (2008) 4 SCC
720 it was held:-
"32. According to Kelsen, in every country there is a
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hierarchy of legal norms, headed by what he calls as the
'Grundnorm' (The Basic Norm). If a legal norm in a
higher layer of this hierarchy conflicts with a legal norm
in a lower layer the former will prevail (see Kelsen's "The
General Theory of Law and State').
33. In India the Grundnorm is the Indian Constitution,
and the hierarchy is as follows.
(i) The Constitution of India:
(ii) Statutory law, which may be either law made by
Parliament or by the State Legislature;
(iii) Delegated legislation, which may be in the form of
Rules made under the Statute, Regulations made under
the Statute, etc.;
(iv) Purely executive orders not made under any statute.
34. If a law (norm) in a higher layer in the above
hierarchy clashes with a law in a lower layer, the
former will prevail. Hence a constitutional provision
will prevail over all other laws, whether in a statute or
in delegated legislation or in an executive order. The
Constitution is the highest law of the land, and no law
which is in conflict with it can survive. Since the law
made by the legislature is in the second layer of the
hierarchy, obviously it will be invalid if it is in conflict
with a provision in the Constitution (except the
Directive Principles which, by Article 37, have been
expressly made non- enforceable)."
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Therefore, the provisions of the All India Rules will
have to be interpreted only in terms of legislative
power......"
As already noticed, the 2023 Rules have been expressly framed with reference
to the provisions of Section 88 of the 1988 Act. A reading of Section 88 of the
1988 Act does not indicate that the provision has anything to do with the
imposition of a tax and even if it were to be assumed for a moment that the
scope of the words "....principles on which taxes on such vehicles are to be
levied" in Entry 35 of List III to the Constitution of India includes the power
to prescribe a tax in respect of vehicles holding All India Permit, it must be
held that the 2023 Rules are ultra vires the provisions of Section 88 of the
1988 Act and therefore, no mandamus can be sought to enforce it.
8. There is yet another aspect of the matter. Subordinate legislation is
not only required to be in conformity with the plenary legislation under which
it is framed but it must also be in conformity with all other plenary legislation
made by Parliament or the State Legislature. If any other view is taken, it
would result in a situation where it would have to be conceded that by
subordinate legislation made by the delegate under a particular legislation, a
plenary law made by a competent legislature could be rendered inoperative.
In Indian Express Newspapers (Bombay) (Pvt) Ltd. and others v.
Union of India and others, (1985) 1 SCC 641 it was held:-
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"75. A piece of subordinate legislation does not carry the same
degree of immunity which is enjoyed by a statute passed by a
competent Legislature. Subordinate legislation may be
questioned on any of the grounds on which plenary legislation is
questioned. In addition it may also be questioned on the ground
that it does not conform to the statute under which it is made. It
may further be questioned on the ground that it is contrary to
some other statute. That is because subordinate legislation must
yield to plenary legislation. ............" (emphasis is mine).
On similar lines is the decision of the Supreme Court in Kerala
Samsthana Chethu Thozhilali Union (Supra), where it was held:-
"17. A rule is not only required to be made in conformity with the
provisions of the Act whereunder it is made, but the same must be in
conformity with the provisions of any other Act, as a subordinate
legislation cannot be violative of any plenary legislation made by
Parliament or the State Legislature."
Thus, it is not possible to hold that a Rule made in exercise of the rule-making
power under the provisions of the 1988 Act, can tinker with or control the tax
imposed by plenary legislation, namely the 1976 Act. In other words, the 2023
Rules must not only answer to the provisions of the 1988 Act but would also
be answerable to the provisions of the 1976 Act.
9. The contention of the learned Senior Counsel for the petitioners
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that subordinate legislation also answers to the definition of 'law' cannot be
doubted. However, in the light of the findings rendered above, that fact does
not come to the aid of the petitioners. Similarly, the decisions cited to
establish the status of delegated legislation and the fact that Rules framed by
the Central Government under the 1988 Act have to be laid before Parliament
also does not come to the aid of the petitioners. The requirement of laying of
such Rules before Parliament does not sanctify the 2023 Rules and it cannot
be held that a procedure of 'laying' will result in those Rules operating in the
face of the provisions of the plenary legislation namely the 1976 Act.
No other point has been raised. The writ petitions fail and they are
dismissed in limine.
Sd/-
GOPINATH P.
JUDGE
acd
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APPENDIX OF WP(C) 26396/2024
PETITIONER EXHIBITS
Exhibit P-1 TRUE COPY OF REGISTRATION CERTIFICATE OF
VEHICLE NO. NL 01 B 1663 ALONG WITH THE
CHALLANS CONFIRMING PAYMENT OF THE
AUTHORIZATION FEE / BORDER TAX ISSUED BY
GOVERNMENT OF TAMIL NADU
Exhibit P-2 TRUE COPY OF ALL INDIA TOURIST VEHICLES
(AUTHORISATION OR PERMIT) RULES 2021
PUBLISHED IN THE GAZETTE OF INDIA ON
11/3/2021
Exhibit P-3 TRUE COPY OF ALL INDIA TOURIST VEHICLES
(PERMIT) RULES 2023 PUBLISHED IN THE GAZETTE
OF INDIA ON 18/4/2023
Exhibit P-4 TRUE COPY OF ADVISORY DATED 4/8/2023 ISSUED
BY THE 1ST RESPONDENT
Exhibit P-5 TRUE COPY OF ORDER DATED 31/7/2023 ISSUED BY
THE HONOURABLE SUPREME COURT IN WP (S) CIVIL
Exhibit P-6 TRUE COPY OF COUNTER-AFFIDAVIT DATED
20/11/2023 FILED BY THE 2ND RESPONDENT IN WP
(S) CIVIL NO. 864/2022 BEFORE THE HONOURABLE
SUPREME COURT
Exhibit P-7 TRUE COPY OF COUNTER-AFFIDAVIT DATED
13/11/2023 DEHORS ANNEXURE FILED BY THE 1ST
RESPONDENT IN WP (S) CIVIL NO. 864/2022
Exhibit P-8 TRUE COPY OF REJOINDER DATED 29/1/2024 FILED
BY THE PETITIONER IN WP(S) NO. CIVIL NO.
756/2023 BEFORE THE HONOURABLE SUPREME COURT
Exhibit P-9 TRUE COPY OF WRITTEN SUBMISSION DATED
20/2/20224 SUBMITTED BY THE PETITIONER IN
Exhibit P-10 TRUE COPY OF JUDGMENT DATED 9/7/2024 IN WP
2024:KER:82400
Exhibit P-11 TRUE COPY OF ORDER DATED 18/7/2024 ISSUED BY
THE 3RD RESPONDENT
2024:KER:82400
APPENDIX OF WP(C) 26607/2024
PETITIONER EXHIBITS
Exhibit P-1 TRUE COPY OF REGISTRATION CERTIFICATE ALONG WITH
THE PERMIT AND CHALANS OF THE VEHICLE BEARING
REGISTRATION NO. PY-01 CZ 2154
Exhibit P-2 TRUE COPY OF ALL INDIA TOURIST VEHICLES
(AUTHORISATION OR PERMIT) RULES 2021 PUBLISHED IN
THE GAZETTE OF INDIA ON 11/3/2021
Exhibit P-3 TRUE COPY OF ALL INDIA TOURIST VEHICLES (PERMIT)
RULES 2023 PUBLISHED IN THE GAZETTE OF INDIA ON
18/4/2023
Exhibit P-4 TRUE COPY OF ADVISORY DATED 4/8/2023 ISSUED BY
THE 1ST RESPONDENT
Exhibit P-5 TRUE COPY OF COUNTER-AFFIDAVIT DATED 20/11/2023
FILED BY THE 2ND RESPONDENT IN WP (C) NO.
864/2022 BEFORE THE HONOURABLE SUPREME COURT
Exhibit P-6 TRUE COPY OF COUNTER-AFFIDAVIT DATED 13/11/2023
DEHORS ANNEXURE FILED BY THE 1ST RESPONDENT IN WP
Exhibit P-7 TRUE COPY OF REJOINDER DATED 29/1/2024 FILED IN
WP (C) NO. 756/2023 BEFORE THE HONOURABLE SUPREME
COURT DEHORS ANNEXURE.
Exhibit P-8 TRUE COPY OF JUDGMENT DATED 9/7/2024 IN WP (C)
Exhibit P-9 TRUE COPY OF ORDER DATED 18/7/2024 ISSUED BY THE
3RD RESPONDENT
2024:KER:82400
APPENDIX OF WP(C) 26992/2024
PETITIONER EXHIBITS
Exhibit P1 . A TRUE COPY OF THE LIST OF 61 NO'S OF ALL INDIA PERMIT
VEHICLES OWNED AND OPERATED BY THE 1ST PETITIONER
Exhibit P2 A TRUE COPY OF THE LIST OF 3 NO'S OF ALL INDIA PERMIT
VEHICLES OWNED AND OPERATED BY THE 2ND PETITIONER
Exhibit P3 A TRUE COPY OF THE DETAILS OF 14 NO'S OF ALL INDIA
PERMIT VEHICLES OWNED AND OPERATED BY THE 3RD PETITIONER
Exhibit P4 A TRUE COPY OF THE GAZETTE NOTIFICATION NO.GSR.302 (E)
DATED 18.04.2023 ISSUED BY THE 1ST RESPONDENT
Exhibit P5 A TRUE COPY OF THE COMMUNICATION DATED 04.08.2023 ISSUED
BY THE 1ST RESPONDENT
Exhibit P6 A TRUE COPY OF THE NOTIFICATION DATED 06.06.2023 ISSUED
BY THE 2ND RESPONDENT
Exhibit P7 A TRUE COPY OF THE SCHEDULE ATTACHED TO THE KERALA MOTOR
VEHICLE TAXATION ACT, 1976 AS AMENDED BY FINANCE ACT,
2020 (ACT 7 OF 2020) WHICH WAS COME INTO FORCE FROM
01.04.2020
Exhibit P8 A TRUE COPY OF THE MINUTES OF THE 35TH MEETING OF THE
TRANSPORT DEVELOPMENT COUNCIL HELD AT NEW DELHI ON
12.12.2013 A TRUE COPY OF THE MINUTES OF THE 35TH
MEETING OF THE TRANSPORT DEVELOPMENT COUNCIL HELD AT NEW
DELHI ON 12.12.2013
Exhibit P9 A TRUE COPY OF THE 36TH MEETING OF THE TRANSPORT
DEVELOPMENT COUNCIL HELD ON 28.10.2014
Exhibit P10 A TRUE COPY OF THE GOVERNMENT NOTIFICATION NO.GSR166E
DATED 10.03.2021 ISSUED BY THE 1ST RESPONDENT
Exhibit P11 A TRUE COPY OF THE COMMON ORDER PASSED BY THE HON'BLE
SUPREME COURT OF INDIA IN CONNECTION WITH WRIT PETITION
NO.864/2022 ALONG WITH 117 OTHER CASES ON 09.07.2024
Exhibit P12 A TRUE COPY OF THE CIRCULAR DATED 18.07.2024 ISSUED BY
THE 3RD RESPONDENT
Exhibit P13 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 7TH RESPONDENT
ON 25.07.2024 FOR A SUM OF RS.10,500/- FOR THE PERIOD
2024:KER:82400
FROM 25.07.2024 TO 31.07.2024 VIDE RECEIPT
NO.KLT2407256875577 IN THE NAME OF 1ST PETITIONER FOR
VEHICLE NO.AR-01J-1387 ON 25.07.2024
Exhibit P14 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 6TH RESPONDENT
ON 25.07.2024 FOR A SUM OF RS.11,100/- FOR THE PERIOD
FROM 25.07.2024 TO 31.07.2024 VIDE RECEIPT
NO.KLT2407256881892 IN THE NAME OF 1ST PETITIONER FOR
VEHICLE NO.AR-01J-4160
Exhibit P15 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 7TH RESPONDENT
ON 26.07.2024 FOR A SUM OF RS.10,500/- FOR THE PERIOD
FROM 26.07.2024 TO 01.08.2024 VIDE RECEIPT
NO.KLT2407266936838 IN THE NAME OF 1ST PETITIONER FOR
VEHICLE NO.AR-01J-1392 ON 26.07.2024
Exhibit P16 . A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH
RESPONDENT ON 20.07.2024 FOR A SUM OF RS.11,300/-
COLLECTED AS RS.10,800/- IN THE FORM OF MV TAX &
RS.500/- IN THE FORM OF CESS FOR THE PERIOD FROM
21.07.2024 TO 27.07.2024 VIDE RECEIPT
NO.KLT2407206572014 IN THE NAME
Exhibit P17 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT
ON 19.07.2024 FOR A SUM OF RS.11,300/- COLLECTED AS
RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM
OF CESS FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024
VIDE RECEIPT NO.KLT2407196517230 IN THE NAME OF THE 3RD
PETITIONER FOR VEHICLE NO.KA-51AJ-9996 ON 19.07.2024
Exhibit P18 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT
ON 19.07.2024 FOR A SUM OF RS.11,300/- COLLECTED AS
RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM
OF CESS FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024
VIDE RECEIPT NO.KLT2407196517009 IN THE NAME OF THE 3RD
PETITIONER FOR VEHICLE NO.NL-01B1040 ON 19.07.2024
Exhibit P19 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT
ON 20.07.2024 FOR A SUM OF RS.10,800/- COLLECTED IN THE
FORM OF MV TAX FOR THE PERIOD FROM 21.07.2024 TO
27.07.2024 VIDE RECEIPT NO.KLT2407206572361 IN THE NAME
OF THE 3RD PETITIONER FOR VEHICLE NO.NL-01B-1041 ON
20.07.2024
Exhibit P20 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT
ON 19.07.2024 FOR A SUM OF RS.10,500/- COLLECTED AS
RS.10,000/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM
OF CESS FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024
VIDE RECEIPT NO.KLT2407196514188 IN THE NAME OF THE 3RD
PETITIONER FOR VEHICLE NO.NL-01B-2516 ON 19.07.2024
2024:KER:82400
Exhibit P21 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT
ON 19.07.2024 FOR A SUM OF RS.11,000/- COLLECTED AS MV
TAX FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024 VIDE
RECEIPT NO.KLT2407196513057 IN THE NAME OF THE 3RD
PETITIONER FOR VEHICLE NO.NL-01B-2028 ON 19.07.2024
Exhibit P22 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT
ON 20.07.2024 FOR A SUM OF RS.7,200/- COLLECTED IN THE
FORM OF MV TAX FOR THE PERIOD FROM 20.07.2024 TO
26.07.2024 VIDE RECEIPT NO.KLT2407206570784 IN THE NAME
OF THE 3RD PETITIONER FOR VEHICLE NO.NL-01B-2029 ON
20.07.2024
Exhibit P23 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT
ON 20.07.2024 FOR A SUM OF RS.10,500/- COLLECTED AS
RS.10,000/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM
OF CESS FOR THE PERIOD FROM 21.07.2024 TO 27.07.2024
VIDE RECEIPT NO.KLT2407206571456 IN THE NAME OF THE 3RD
PETITIONER FOR VEHICLE NO.NL-01B-2517 ON 20.07.2024
Exhibit P24 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT
ON 19.07.2024 FOR A SUM OF RS.11,300/- COLLECTED AS
RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM
OF CESS FOR THE PERIOD FROM 20.07.2024 TO 26.07.2024
VIDE RECEIPT NO.KLT2407196516812 IN THE NAME OF THE 3RD
PETITIONER FOR VEHICLE NO.NL-01B-2684 ON 19.07.2024
Exhibit P25 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT
ON 20.07.2024 FOR A SUM OF RS.11,300/- COLLECTED AS
RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM
OF CESS FOR THE PERIOD FROM 21.07.2024 TO 27.07.2024
VIDE RECEIPT NO.KLT2407206572574 IN THE NAME OF THE 3RD
PETITIONER FOR VEHICLE NO.NL-01B-2685 ON 20.07.2024
Exhibit P26 A TRUE COPY OF TAX RECEIPT ISSUED BY THE 8TH RESPONDENT
ON 20.07.2024 FOR A SUM OF RS.9,500/- COLLECTED AS
RS.10,800/- IN THE FORM OF MV TAX & RS.500/- IN THE FORM
OF CESS FOR THE PERIOD FROM 21.07.2024 TO 27.07.2024
VIDE RECEIPT NO.KLT2407206586129 IN THE NAME OF THE 3RD
PETITIONER FOR VEHICLE NO.PY-01CT-4199 ON 20.07.2024
Exhibit P27 A TRUE COPY OF THE AFFIDAVIT DATED 26.07.2024 SWORN TO
BY THE 1ST PETITIONER IN THE FORM OF AN UNDERTAKING
BEFORE THIS HON'BLE COURT AS DIRECTED BY THE HON'BLE
SUPREME COURT OF INDIA
Exhibit P28 A TRUE COPY OF THE AFFIDAVIT DATED 26.07.2024 SWORN TO
BY THE 2ND PETITIONER IN THE FORM OF AN UNDERTAKING
BEFORE THIS HON'BLE COURT AS DIRECTED BY THE HON'BLE
SUPREME COURT OF INDIA
2024:KER:82400
Exhibit P29 A TRUE COPY OF THE AFFIDAVIT DATED 26.07.2024 SWORN TO
BY THE 3RD PETITIONER IN THE FORM OF AN UNDERTAKING
BEFORE THIS HON'BLE COURT AS DIRECTED BY THE HON'BLE
SUPREME COURT OF INDIA.
