IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 37418 of 2007(D)
1. GEORGE ANTONY,MANAGING PARTNER
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. THE REGIONAL TRANSPORT OFFICER
3. KERALA MOTOR TRANSPROT WORKERS WELFARE
4. THE REGIONAL TRANSPORT OFFICER
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :07/02/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 37418 OF 2007 D
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Dated this the 7th day of February, 2008
J U D G M E N T
Petitioner seeks a declaration that the demand made by the
respondents for production of a certificate testifying payment of
contribution of dues under the Motor Transport Workers Welfare
Fund as a condition precedent for accepting Motor Vehicle Tax in
respect of their vehicles is without jurisdiction and violative of the
Constitutional provisions. On this basis, a direction to the respondents
to accept Motor Vehicles Tax in respect of the petitioner’s vehicles
without insisting on the production of a certificate as stated above is
also sought for.
2. Petitioner’s is a partnership firm engaged in mining of
granites. For the purpose of its business activities, petitioner owns
and operates a number of vehicles such as lorries. These lorries are
WPC 37418/07 : 2 :
mainly used for transporting granites. According to the petitioner,
when the Motor Vehicle Tax in respect of these vehicles was sought to
be remitted, the respondents demanded production of a certificate
from the 3rd respondent to the effect that the petitioner cleared all
dues under the Motor Transport Workers Welfare Fund Scheme. On
account of this, petitioner filed representations to the authorities
requesting for accepting tax and when these representations did not
yield any result, this writ petition has been filed.
3. It was contended that the petitioner’s establishment is
not a Motor Transport Undertaking as defined in Section 2(h) of the
Kerala Motor Transport Workers Welfare Fund Act, 1985. It is also
contended that the insistence on the production of a certificate is
invalid in law and is not supported by the provisions of either the
Kerala Motor Vehicles Taxation Act or the Kerala Motor Transport
Workers Welfare Fund Act.
4. The term “motor transport undertaking” is defined in
WPC 37418/07 : 3 :
Section 2(h) of the Welfare Fund Act as one meaning ‘motor transport
undertaking engaged in carrying passengers or goods or both by road
for hire or reward and includes a private carrier. A reading of this
definition would show that it is an inclusive one and even a private
carrier is included. In so far as the petitioner is concerned, it is
stated that for transporting granites from the mines and for other
incidental commercial activities, the lorries belonging to the petitioner
are being used. In view of the vide terms in the definition of Motor
Transport Undertaking, and as even private carrier is included, I
cannot accept the contention that the petitioner’s establishment is
not a Motor Transport Undertaking. In any case, when a welfare
legislation like the Welfare Fund Act is sought to be interpreted, the
Court will not be justified in adopting a restricted interpretation
defeating the purpose of the Act.
5. Petitioner contends that this aspect of the matter is
covered by the decision in the case of Toc-H Public School v. District
WPC 37418/07 : 4 :
Executive Officer (1992(1) KLT S.N.49) which held that buses only
used for transporting children of the school cannot be considered as a
Motor Transport Undertaking. However, a reading of the said
judgment would show that the Government had issued an order
clarifying that school buses do not come within the definition in
Section 2(h) and it was entirely relying on the said Government order
that the decision was rendered by this Court. This decision, in my view,
does not help the petitioner in any manner.
6. The contention of the petitioner that the demand for
production of the certificate does not have any support in the Welfare
Fund Act also is incorrect. By Act 23 of 2005, Welfare Fund Act was
amended and Section 8(A) was introduced to the Act. This section
provides that every registered owner or person having possession or
control of a Motor Vehicle in respect of a Motor Transport Undertaking
liable to pay contribution shall at the time of making payment of the
tax under the Kerala Motor Vehicle Taxation Act, 1976 produce before
WPC 37418/07 : 5 :
the Taxation Officer the receipt of remittance of contribution to the
fund upto the preceding month. In view of Section 8(A), it can be seen
that it is mandatory for a person liable to pay contribution to produce
receipt of remittance of contribution before the Taxation Officer
accepting tax under the Kerala Motor Vehicle Taxation Act, 1976.
Therefore, that averment of the petitioner is also incorrect.
7. Similarly, the provisions contained in Section 4(7) and (8)
of the Motor Vehicles Taxation Act introduced by Act 24 of 2005 also
casts similar liability on persons liable to pay tax under the said Act.
For all these reasons, I cannot accept the contention raised by the
learned senior counsel for the petitioner.
8. However, before concluding I should also add that the
proviso to Section 4(1) of the Welfare Fund Act provides that nothing
in Section 4 dealing with the contribution payable to the Fund shall
apply to a Motor Transport Undertaking to which the provisions of the
Employees Provident Fund and Miscellaneous Provisions Act, 1952
WPC 37418/07 : 6 :
applies. In this case, petitioner has not produced any material to
establish that their’s is an establishment covered by the provisions
contained in the Employees Provident Fund and Miscellaneous
Provisions Act.
9. The decision of this court in WP(C) No.31865/07 relied on
by the petitioner is obviously is in respect of an establishment to which
the EPF Act applies. In this context, I clarify that in case the
petitioner’s establishment is one covered under the EPF Act, it will be
open to the petitioner to prove this fact to the satisfaction of the
Taxation Officer by producing satisfactory proof to the effect that
upto date contribution has been paid, in which case, the said officer
will accept the tax due without insisting on the production of a
certificate as contemplated in Section 8(A) of the Welfare Fund Act.
Subject to the above observations, writ petition will stand
disposed of.
ANTONY DOMINIC,JUDGE
Rp