IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 W.P(C).No. 37418 of 2007(D) ----------------------------------- PETITIONER: -------------- GEORGE ANTONY,MANAGING PARTNER M/S.G.K.GRANITES REGD. OFFICE,OORAKKAD KIZHAKKAMBALAM PO, ERNAKULAM DIST. BY ADV. SRI.K.RAMAKUMAR (SR.) RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY MOTOR VEHICLE DEPARTMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE REGIONAL TRANSPORT OFFICER (TAXATION) REGIONAL TRANSPORT OFFICE KAKKANAD, ERNAKULAM. 3. KERALA MOTOR TRANSPROT WORKERS WELFARE FUND BOARD, DISTRICT OFFICE, PALARIVATTOM, ERNAKULAM ,KOCHI 682 025. 4. THE REGIONAL TRANSPORT OFFICER MUVATTUPUZHA. BY ADV. SRI.P.RAMAKRISHNAN, SC, KMTWF BOARD GOVT. PLEADER, SRI. I.V. PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/01/2008, THE COURT ON 07/02/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =================== W.P.(C) NO. 37418 OF 2007 D =========================== Dated this the 7 th 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