Skip to content


M.K. Parameswaran Nair Vs. Sub-magistrate, Koothattukulam and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberA.S. No. 382 of 1957
Judge
Reported inAIR1958Ker52; 1958CriLJ380
ActsConstitution of India - Articles 254 and 304; Travancore-Cochin Vehicles Taxation Act, 1950
AppellantM.K. Parameswaran Nair
RespondentSub-magistrate, Koothattukulam and ors.
Appellant Advocate K.S. Sebastian, Adv.
Respondent Advocate C.M. Kuruvilla, Govt. Pleader
DispositionAppeal dismissed
Cases ReferredKrishna v. State of Madras
Excerpt:
- - 12. a perusal of the provisions of the said act clearly leaves no doubt in our mind that in pith and substance it is not legislation dealing with, respect to trade or commerce, but is legislation enacted by virtue of the powers conferred on the state legislature under entry no......taxation act of 1950 violate the provisions of the indian companies act and as such, hit by the provisions of article 254 of the constitution.7. our learned brother mr. justice, m. s. menon negatived, in our opinion, quite rightly both the contentions of the appellant and dismissed the original petition. the learned judge has held that the proviso to article 304 of the constitution has no application as the impugned enactment is nothing more than a fiscal measure coming under entry 57 of list ii (state list) of the seventh schedule to the constitution.8. our learned brother has also held that the-convictions do not in any way, contravene the provisions of the indian companies act. the learned judge held that the appellant being the registered owner of the motor vehicles, was properly.....
Judgment:

Vaidialingam, J.

1. We have absolutely no doubt that this appeal is devoid of any merits.

2. This appeal arises out of an application filed by the appellant for the issue of a writ of certiorari or such other directions for quashing the judgments dated 14-9-1956 passed by the first respondent, the sub-majristrate, Koothattukulam in C. C. Nos. 3 to 5 and 10 of 1954 and 170/1955 and for the issue of a writ of prohibition to respondents 1 to 4 from talcing any strps to enforce the directions contained in the judgment of the first res-pondent.

3. The appellant was prosecuted for an offence punishable under Sections 4 (1) (d) and 8 of the Travancore-Cochin Vehicles Taxation Act - Tra-vancore-Cochin Act XIV of 1950. In short, the prosecution case was that the appellant allowed the motor vehicles mentioned in the charge, to use the public road without paying the tax due on the same.

4. Several contentions were raised but not those contentions which have been raised in this court in the Original Petition and in the appeal before us. The magistrate found the appellant guilty and convicted him under Section 8 of the Act and sentenced him to pay a fine of Rs. 5/- in each of the cases and the arrears of taxes were also directed to be collected.

5. The appellant, instead of pursuing his ordinary remedies available under the Criminal Procedure Code, either by way of an appeal or revision, chose the extraordinary method of filing an application for the issue of a writ in this court.

6. In this application, he contended that the Travancore-Cochin Vehicles Taxation Act 1950, is invalid and unconstitutional and void, as the provisions contained in the proviso to Article 304 of the Constitution have not been complied with. In consequence, he challenged the proceedings before the magistrate and the conviction as absolutely void and of no effect.

He appears to have taken a further point that the judgments of the magistrate marked as Exs. A to P, based on the Travancore-Cochin Vehicles Taxation Act of 1950 violate the provisions of the Indian Companies Act and as such, hit by the provisions of Article 254 of the Constitution.

7. Our learned brother Mr. Justice, M. S. Menon negatived, in our opinion, quite rightly both the contentions of the appellant and dismissed the Original Petition. The learned Judge has held that the proviso to Article 304 of the Constitution has no application as the impugned enactment is nothing more than a fiscal measure coming under Entry 57 of List II (State List) of the Seventh Schedule to the Constitution.

8. Our learned brother has also held that the-convictions do not in any way, contravene the provisions of the Indian Companies Act. The learned Judge held that the appellant being the registered owner of the motor vehicles, was properly dealt with as the person liable to pay the tax. In this view, the learned Judge dismissed the O. P.

9. The appellant has filed this appeal against the judgment of our learned brother Mr. Justice M. S. Menon. As stated earlier, this appeal is devoid of any merits. We entirely agree with the findings given by the learned Judge on both the points against the appellant.

10. Mr. K. S. Sebastian, learned counsel for the appellant, raises the same two contentions before us also. We have absolutely no hesitation in rejecting both the contentions of the learned counsel

11. So far as the first contention based on Article 304 of the Constitution is concerned, in our opinion, that provision has absolutely no application to the present proceedings. As observed by their Lordships of the Supreme Court in their recent decision reported in Krishna v. State of Madras 1957 SCO 399: ((S) AIR 1957 SC 297) (A) when a law is impugned, what has to be ascertained is the true character of the legislation. At p. 410 (of SCR) : (at p. 303 of AIR) their Lordships very succinctly put the position thus :

'To do that, one must have regard to the enactment as a whole, to its object and to the scone find effect of its provisions. If on such examination it is found that the legislation in substance one ona matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench 011 matters which are beyond its competence.

It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are not.'

From the observations of their Lordships it follows that the question to be considered is : 'what is the nature of the Travancore-Cochin Vehicles Taxation Act 1950 in pith and substance?

12. A perusal of the provisions of the said Act clearly leaves no doubt in our mind that in pith and substance it is not legislation dealing with, respect to trade or commerce, but is legislation enacted by virtue of the powers conferred on the State Legislature under Entry No. 57, List II (State List) of the Seventh Schedule of the Constitution. The Act, as the preamble shows, is intended to provide for the levy of a tax on vehicles in the State.

Section 3 gives power to issue a notification directing the levy of a tax on every vehicle using a public road in the State and the notification is also to prescribe the rates payable for the periods, Section 4 makes it obligatory on the registered owner, or the person having possession or control of the vehicle to pay the tax. Vehicle itself has been defined under Section 2 (II) of the Act. Section 4 (3) (a) provides for the issue of a license to the person paying the tax in respect of a motor vehicle using a public road. There are certain other consequential sections which are not necessary to be considered in this case.

13. Article 304 relied upon by the learned counsel is contained in Part 13 of the Constitution entitled :

'Trade, commerce and intercourse within the territory of India.'

Mr. Sebastian was at very great pains to bring the Statute as one dealing with trade, commerce and intercourse. We are not able to see how this Act, the sole object of which is only to levy a tax on vehicles in the State, can be considered to be one dealing with trade, commerce and intercourse.

There is no dispute that in the Act even private owned vehicles are made liable for payment of tax. The scheme of the Act is to collect a tax from vehicles using the public road in the State. No trade or commerce is sought to be taxed under this Act; much less does the question of the Act imposing any reasonable restrictions on the freedom of trade, commerce or intercourse come in at all. This being so, the proviso to Article 304, so stronglv relied upon by the learned counsel for the appellant, has no application at all. Therefore the first contention of Mr. Sebastian falls to the ground.

14. Regarding the second contention of Mr. Sebastian, we are not able to see how there is any conflict between the Indian Companies Act and the impugned Act. There is absolutely no scope for the application of Article 254 of the Constitution at all.

The learned counsel has not been able to satisfy us that the essential ingredients for the application of Article 254 exist in this case. We do not see any violation of the provisions of the Central enactment namely, the Indian Companies Act 1913. That being so, the second contention of the learned counsel also fails.

15. Lastly, Mr. Sebastian cnntendod that the appellant, Mr. Parameswaran Nair, cannot be pro-and made liable for the payment of either the fine or the tax. According to the learned counsel, it is the Pankajam Motors (Private) Ltd., who are the owners and suitable action if at all can be taken only against them.

16. This argument is really one which could be dealt with on the nature of the permits and other documents granted in favour of the appellant. We are not sitting as a court of appeal or revision considering the merits of the conviction passed by the first respondent. If the appellant was aggrieved on any such ground, it was open to him to have challenged those proceedings by taking appropriate proceedings in the higher Criminal Courts.

These arguments are not available to the appellant in these applications under Article 226 of the Constitution. We are also of the opinion that there is absolutely no merit in this contention either. The petitioner is the registered owner of the motor vehicles concerned and as such, under Section 4 (1) (a) of the Travancore-Cochin Vehicles Taxation Act 1950, he is bound to pay the tax due. Under Section 8 if the tax is not paid, the registered owner is liable to be punished with fine and there is also provision under Section 8 for recovery of the arrears of tax as if it were a fine.

17. All the contentions of the learned counselfail and this appeal is dismissed with costs of the4th respondent which we fix in the sum of Rs. 250/-.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //