Kannappan vs The Regional Transport Officer and Another

Bhaskaran Nambiar, J.—The decision of M.P. Menon, J. in Eastern Sea Food (P) Ltd. v. R.T.A. and Ors. 1985 K.L.J. 968 was overruled by us in Velayudhan Nadar v. State of Kerala 1986 KLT 633, by judgment delivered on 3rd April, 1986, just before the summer vacation. When the same question arose before the same learned Judge in this Writ Petition soon after the vacation, the learned Judge, instead of following the Division Bench ruling, binding on the Single Bench reiterated his own view expressed in the decision overruled, and referred the case to a "larger Bench" by a lengthy, reference order dated 10th July, 1986. In an unprecedent move, the reference order itself was marked for reporting and the same is reported in Kannappan v. R.T.O. 1986 KLT 911. The learned Judge has observed in the reference order that our Bench decision "has left "many a precedent of this Court in shambles" obviously because we "were not cautioned by c6unsel against such an inherent danger". When the learned Judge was pressed by the Government Pleader to follow the Division Bench ruling, that was brushed aside by the remark:

Though the learned Government Pleader would suggest, with the touch of a ship-wrecked mariner sighting a sail, that I should follow the view of the Division Bench and dismiss the writ petitions, I must hesitate a little where others seem to be confident.

There can be no "hesitation" for a Single Judge to follow a Division Bench ruling binding on the Single Bench for, he is bound in law to follow the Division Bench decision. The fact that the views of the learned Judge did not find acceptance at the hands of the Division Bench does not mean that whenever the identical question is raised before the learned Judge, the matter has to be again referred to a Division Bench till the views of the Single Judge are endorsed by a Division or Full Bench. Brought up in the highest traditions of judicial discipline, this Court cannot at any time swerve from, the path of judicial decorum and propriety. We shall content ourselves by a quotation from the decision of the Supreme Court in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, thus:

We desire to add and as was said in Cassel and Co. Ltd. v. Broome 1972 A.C. 1027 we hope it will never be necessary for us to say so again that in the hierarchical system of Courts'' which exists in our country, ''it is necessary for each lower tier'', including the High Court, to accept loyally the decisions of the higher tiers''. ''It is inevitable in a hierarchical system of Courts'' that there are decisions of the Supreme Appellate tribunal which do not attract the unanimous approval of all members of the judiciary.... But the judicial system only works if someone is allowed to have the last word and that, last word, once spoken, is loyally accepted''. (See observations of Lord Hailsham and Lord Diplock in Broome v. Cassell). The better wisdom of the court below must yield to the higher wisdom of the court above. That is the strength of the hierarchical judicial system.

Reiterating the same principal, in a very recent ruling of the Supreme Court in Shyamaraju Hegde Vs. U. Venkatesha Bhat and Ors, came down very heavily on a Division Bench which did not follow the Full Bench decision of the same court.

u/s 3 of the Kerala High Court Act, a Single Judge may adjourn a case for being heard and determined by a Bench of two Judges. But a Single Judge has no power to refer a case to a Full Bench for, that power is expressly reserved to a Bench of two Judges u/s 4 of the Act. The reference now made by the learned Single Judge has to be construed as a reference u/s 3 to a Division Bench, even if the learned Judge intended by the use of the expression ''larger bench'', that it should be referred to a Full Bench.

In view of the Division Bench ruling in Velayudhan Nadar''s case 1986 KLT 633 which holds the field and which bind us also, it is unnecessary to re-state the law or give additional reasons in support of our conclusions. However, put of deference to the learned Judge, who has suggested a comprehensive examination of the provisions of the Act and the rules and pointed out that there is inconsistency with an earlier Division Bench ruling, we shall, examine the aspects highlighted in the order of reference.

The Petitioner is the owner of a motor vehicle registered in his name in this State. He has been plying his vehicle-bus K.R.E. 5397-on the public road in this State and paying the tax due under the Kerala Motor Vehicles Taxation Act. Tax in respect of this stage, carriage was in arrears from 1st January 1981. He filed an application for tax exemption received in the office of the R.T.O., Ernakulam on 7th July, 1981. It is his case that the vehicle was in the custody of the court from 18th February 1981 to 28th February 1981, in the workshop at Parur from 29th February 1981 to 10th April 1981, and attached by the Munsiff Court, Ernakulam and kept in its custody from 10th April 1981 to 3rd August 1981 and it was towed to a workshop and was in that workshop from 3rd August 1981 to 31st October 1981 and he got the vehicle back, to be used on the road on 1st November 1981. The authorities held that intimation for exemption was received after the prescribed period under Rule 10 of the Kerala Motor Vehicles Taxation Rules and non-use of the vehicle even if admitted will not qualify for tax exemption unless the statutory requirement, of filing the advance intimation regarding the stoppage of vehicle in time is complied with. On this basis, the Petitioner was not granted exemption for the quarters ending 31st March 1981 and 30th June 1981; and as he made the exemption application on 7th July 1981, he has granted exemption for July, 1981 and September, 1981. As bus was put on the road for one day in August, he was directed to pay tax for that month. The Petitioner has no case that he has filed any application for exemption for the quarter ending 31st December 1981. But his contention is that whether he has exemption in his favour or not, he is not liable to pay motor vehicle tax for the period he had not put the bus on the road and thus the question whether he filed the exemption application beyond the stipulated period or without fulfilling the requirements of the rule was immaterial to fix the tax liability.

This identical contention was repelled by the Division Bench in Nadar''s case 1986 KLT 633 in these words:

There is presumption that every vehicle possessed by a person is deemed to have been kept for use in the State except in cases where the exemption is claimed under Sub-section (1) of Section 5. In other words, if the exemption cannot be claimed by invoking Sub-section (1) of Section 5, the liability to pay the tax automatically gets attracted and the person cannot claim exemption from payment of tax. The question of establishing non-user, if these provisions are not complied with, does not arise. Such a person must pay tax and if in fact there is non-user the provision available under the Act is one in Section 6, namely, for refund of tax. That, in our opinion, is the scheme of the Act.

We still maintain that this judgment does not require re-consideration for it is m complete accord with the dictum of the Supreme Court in Travancore Tea Co. Ltd. v. State of Kerala 1980 KLT 568, an appeal from this Court, where it was held thus:

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 Section 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 to the R.T.O. along with the surrender of certificate of registration is necessary. The provision of Section 3 Sub-section (2) as well as Section 5 and Section 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 Section 3 raising a presumption that the vehicle is used or kept for use in the State without any further proof unless exemption is claimed u/s 3(2), Section 5 and Section 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 the 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 exigible on vehicles used for use on public roads, we must observe that in order to claim exemption from payment of tax requirements of Section 3(2) or Sections 5 and 6 should be satisfied. Surrender of the registration certificate contemplated u/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 in possession or control of the vehicle would not be entitled to claim any exemption from payment of tax.

It is useful also to extract a decision of a Full Bench of this Court in R.K.V. Motors and Timbers (P) Ltd. v. Regional Transport Officer 1982 KLT 166 where interpreting the content of the charging section, Section 3, this Court held thus:

The charging section is Section 3. Thereunder the levy is on every motor vehicle used or kept for use in the State. The rates are to be specified in the schedule. The levy itself, as is evident from the opening words of that section-Section 3-is subject to the other provisions of the Act. These other provisions will take in Section 5 dealing with exemption. If previous intimation in writing is given, no tax is payable in respect of such vehicle for such period. u/s 3(3), a registered owner of a motor vehicle is to be deemed to use or keep for use in the State such vehicle, except during the period for which no tax is payable on such motor vehicle under Sub-section (1) of Section 5. Thus, the very levy is excluded in respect of a period for which the exemption is granted u/s 5.

These two decisions, one of the Supreme Court and the other of a Full Bench of this Court, thus set at rest the doubts if any, lurking in any, mind.

The validity of the Act is no more in challenge and rightly so, in view of the aforesaid decision of the Supreme Court. The tax that is levied under the Act is a compensatory tax in respect of vehicles used or kept for use in this State. The Act provides that the registered owner of a motor vehicle or any person having possession or control of a motor vehicle shall'', for the purpose of this Act, be deemed to use or keep such vehicle for use in the State. This is a statutory safeguard to protect the revenue of the State by relieving it of the burden to prove that the vehicle was used or kept for use in this State. The Act also intended that the interest of the bona fide owner should also be protected and for this purpose provided an exemption from tax in Section 5. The State was entitled not only to protect the revenue of the State but also to prevent evasion of tax. Both objects were achieved by inserting the deeming provision in Section 3 of the Act and providing exemption m Section 5. The Supreme Court has said so in clear and unmistakable terms at page 571 of the reports.

Conscious of the constitutional limitations inherent in imposing a tax on motor vehicles and acquainted with the legislative field of entry 57 of List II, the legislature has made express provisions that the tax is levied only on vehicles used or kept for use in this State. The statutory presumption that a registered owner shall be deemed to use or keep such vehicle in the State does not enure during the period when the exemption operates and no tax is payable. The chaining section is itself subject to the other provisions of the statute and thus subject to the exemption provision in Section 5 also. The tax has to be paid in advance and when there is no exemption, payment has to follow. The Act does not contemplate any independent enquiry dehors Section 5 enabling the tax being withheld by the registered owner till a decision is reached. The Act does not also contemplate the postponement of the payment of tax on the basis of a proposed enquiry. After payment of the tax, if the registered owner is able to show that the vehicle was in fact, not used or kept for use on the road for a particular period, the Act, in Section 6 provides for refund of tax. There is thus ho possibility of the State appropriating amounts "exceeding the compensatory nature of the tax". If Without obtaining exemption, the registered owner can still contend, that he is not liable to pay tax in advance, as he has not used the vehicle or kept the vehicle for use in this State, Section 5, the exemption provision, becomes nugatory and redundant. It is not possible to accede to an interpretation which makes Section 5 otiose.

To say, therefore, that the Supreme Court has only "suggested" that "ordinarily" one should resort to the method u/s 5 "for claiming exemption u/s 5" is, with great respect, a misreading of the Judgment, for, the Supreme Court has emphatically stated, "if the requirement contemplated under the Act is not satisfied, the Registered owner or person in possession or control of the vehicle would not be entitled to claim any exemption from payment of tax". It was not a mere suggestion by the Supreme Court but a direct decision of the highest Court that generally exemption should be claimed if relief from payment of tax was required.

It has to be remembered that the Supreme Court in the Travancore Tea Co. case 1980 KLT 568 was rendering its decision in an appeal from a decision of this Court reported in Travancore Tea Estates Co. Ltd. v. State 1972 KLT 760 where it was held that neither the charging section nor the legislative entry requires that the motor vehicles taxed should be used on public roads. Reversing this decision, the Supreme Court observed: "If the words ''used or kept for use in the State'' are 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." The reference to the constitutional entries by the Supreme Court was thus not to whittle down the scope of the charging section or to efface the exemption clause.

The decision of the Supreme Court being absolutely clear on the point, and the law as laid down by the Supreme Court is binding on all courts under Article 141 of the Constitution, there is no justification or reason to dissect the judgment for minute analysis and then rely on a stray sentence here and there, divorced from its context, to find support for an argument that the exemption itself was a redundant statutory provision. Distinguishing the Supreme Court decision, the learned Judge in paragraph 6 of the reference order has stated "in the Supreme Court case, there was no application for exemption and still there was a direction for reinvestigation by the Supreme Court." We are afraid that the learned Judge seems to have ignored or missed the crucial sentences:

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 Toads. In the circumstances of the case, we have to take it that though, in terms, requirement of Sections 3 and 5 have not been complied with, in effect the requirements have been satisfied as the dispute proceeded throughout on that basis.

The reason for re-investigation is also stated by the Supreme Court thus:

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 u/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 tin the public road.

It is then said that the, decision in Nadar''s case 1986 KLT 633 is in conflict with an earlier Division Bench ruling in Jai Maruthi Motor Service v. Regional Transport Officer, Kozhikode ILR 1980 Ker 215.

We do not agree that the Division Bench decision in ILR 1980 Ker 215, strikes a different note. The writ Petitioners in those cases challenged the validity of the orders passed by the Transport authorities rejecting the exemption applications either on the ground that there was no prior intimation under Rule 10 or on the ground that the applications were not accompanied by registration certificates. This Court dismissed the writ petitions holding that the reasons thus given were proper and valid and the orders called for no interference. To say, therefore, that this decision upholds the ''theory'' that even without exemption, the registered owners can absolve themselves of their liability to pay tax under the Act, is to refuse to read the vital portions of the judgment. The reference order has extracted two sentences in that Division Bench judgment in support of the reasoning that even without the benefit of the exemption, an investigation is required to find whether the vehicle was used or kept for use. The sentences read thus:

In K.T. Kathiri v. Regional Transport Officer 1965 KLT 1206 our learned brother Govindan Nair, J., only ruled that merely because a person is not entitled to the benefit of the exemption u/s 5(2) of the Kerala Motor Vehicle Taxation Act, his liability for tax u/s 3 does not automatically follow. The principle thus stated seems to be unexceptionable. Non-availability of the exemption from tax would not automatically attract liability.

We reiterate that this principle is unexceptionable. Simply because, the benefit of the exemption is not available, the liability to be charged to tax does not automatically follow. The liability has to be found and fixed under the charging section. If under ,the charging section, which includes a deeming provision, liability is imposed under the act, that liability gets discharged only in two ways (1) by obtaining exemption u/s 5 or (2) by payment of the tax demanded. It is not the exemption provision that decides whether there is a statutory charge. Thus the non-availability of exemption does not automatically impose a tax liability. This is fundamental and the Division Bench was only re-stating the general law.

The Division Bench in ILR 1980 Ker 215, did not categorically approve the Single Bench decision for when, a different note was struck by Eradi, J. (as His Lordship then was), and the matter was referred to the Division Bench, it was observed "whatever that be, the questions that were urged before us in this case, did not fall for consideration of either of the two decisions". It cannot therefore, be said that the Division Bench in ILR 1980 Ker 215, approved the decision in Kathir''s case, 1965 KLT 1206.

In Kathiri''s case 1965 KLT 1206 he learned Single Judge held thus:

There are two ways therefore of getting over the deeming provision contained in Section 3(2). One is by complying with Section 5. Even in such cases the negativing of the presumption provided by Section 3(2), is not conclusive for u/s 5(2) an investigation is possible and a conclusion can be reached that the vehicle was used or was kept for use. It appears to me that even when Section 5 has not been complied with, the question must be considered as to whether a vehicle has been used or kept for use for a specific period if a claim is made by the registered owner or the person having possession or control of the vehicle that he vehicle has not been used or kept for use for such period. This question has not been investigated in this case.

In view of the Supreme Court judgment in 1980 KLT 568 and the interpretation of Sections 3 and 5 by the Full Bench in 1982 KLT 166, the decision in K.T. Kathiri v. Regional Transport Officer 1965 KLT 1206 s no longer good law. That decision stood overruled by the decision of the Division Bench in Nadar''s Case 1986 KLT 663. The earlier Division Bench of this Court in ILR 1980 Ker 215 also did not expressly approve the dictum of the learned Single Judge in 1965 KLT 1026, for, it recognised and applied the exemption provisions, refused to direct re-investigation dehors Section 5 and denied relief to the Petitioners therein.

It is unfortunate that the learned Judge has characterised a Division Bench ruling of this Court as leaving many a precedent of this Court in "shambles"-"butchers slaughterhouse; scene of carnage". We shudder to follow the same style of reasoning. Judgments of Single Benches or even Division Benches, expressly or impliedly overruled by the Supreme Court or a larger Bench are not binding precedents. Wrong judgments are not good precedents.

The judgment of Justice Govindan Nair was not referred to or followed by Justice Eradi in O.P. No. 3469 of 1976 when a claim made on the basis of an exemption which did not satisfy the requirements of Section 5 of the Act was not upheld by this Court. Justice Paripoornan too did not follow Justice Govindan Nair''s dictum in O.P. No. 1015 of 1986. The Division Bench affirmed that decision in 1986 KLT 633.

It is unfortunate that the learned Judge has not spared the Judges of this Court constituting the Full Bench in 1982 KLT 166, hot to speak of the Advocate General who appeared for the State. The duty of a court to strike down a law arises only when all attempts to support the law constitutionally fails, for, there is a presumption in favour of the constitutionality of every statute. Reading down the provision of a statute is a well recognised judicial approach to sustain any law. It is not the duty of the Advocate General to meekly submit to the pleas of unconstitutionality and he will be failing in his duty as; the top constitutional adviser of the State if he does not stoutly support any legislation challenged in a court of law. Where the Act requires amendment to make it conform to constitutional requirements, it wil1 be the plain duty of the Advocate General to give timely advice to the State, as it is equally within his power to assist the court to read down the law in those cases where any other interpretation would lead to absurd results and make the Act unworkable. The "concession" of the Advocate General before the Full Bench was accepted by the court as having been "rightly made" and the observations of the learned Judge after a quotation from Lord Asquith:

Is it possible to borrow and extend the above language and say that while it is the privilege of the legislature to be obscure in its language, it will not be the duty of the court to interpret the words of the statute and remove the obscurity, for that would be the exclusive function of Advocate Generals willing to make ''concession''?

Seems to us, with great respect to the learned Judge, most inopportune, totally misplaced and grossly erroneous.

We are also not prepared to approve the precedent sought to be created by marking for publishing the reference order in the law journals. An order of reference does not decide the rights of parties. It may contain tentative views of the learned Judge marking the reference, but not the final conclusions. It is the principle of "stare decisis" that necessitates the decisions of the Supreme Court and the High Court to be reported in the law journals. The decisions of the Supreme Court are also the laws of the land under Article 141 of the constitution. When there is no decision to be followed by any authority, as in a reference order, the publication of the order of reference has no relevance. The reference order, at best, shows only a "course of reasoning which cannot be elevated to a general proposition of law" and reporting of reference orders which cannot serve the general interest of the society in the predicability of the law has only to be deprecated. Publication of a reference order has only a negative effect and serves as an open invitation for fresh litigation. We are not a ward of the publication of a reference order in the Law Journals except when it is part of the final judgment. When an attempt was made on an earlier occasion to publish and reference order, we prevented the same by issuing orders alter disposing of the main case.

On the facts of this case, the authorities were right in refusing relief to the Petitioner as the exemption application did not fulfil the requirements of Rule 10 and Section 5. The original petition is thus without merits and it is dismissed. After the payment of the tax, it is open to the Petitioner to claim refund u/s 6 of the Act arid when any such application is filed, the Respondents will pass appropriate orders according to law.

The original petition is thus dismissed; but, in the circumstances of the case, there will be no order as to costs.