IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 WA.No. 458 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.37418/2007 Dated 07/02/2008 .................... APPELLANT: PETITIONER: ---------------------- GEORGE ANTONY, MANAGING PARTNER, M/S.G.K.GRANITES, REGD. OFFICE, OORAKKAD KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.T.M.MOHAMMED YOUSEFF(SR.) SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SMT.U.M.FOUSIA SMT.RABIA BEEGAM T.K. SRI.JOBI.A.THAMPI SMT.ASHIFA YOUSEFF SMT.T.V.SREEJA SMT.M.KABANI DINESH RESPONDENTS: 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 DISTRICT. 3. KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, DISTRICT OFFICE, PALARIVATTOM ERNAKULAM, KOCHI 682 025. 4. THE REGIONAL TRANSPORT OFFICER, MUVATTUPUZHA. R1,R2 & R4 BY G.P. SRI. MOHAMMED RAFIQ R3 BY ADV. SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- W.A. No. 458 OF 2008 -------------------------------------------- Dated this the 2nd day of July, 2008 C.R. JUDGMENT Ramachandran Nair,J. Appellant is engaged in blasting, crushing and sale of rock in various forms. Appellant has 24 vehicles used for transport of rubble, stone chips, etc. When appellant offered to remit motor vehicle tax, the RTO demanded clearance certificate in terms of Section 8A of Kerala Motor Transport Workers Welfare Fund Act for accepting tax. Since appellant had not remitted any contribution towards motor transport workers welfare fund, no certificate could be obtained. Consequently, motor vehicle tax was not received by the RTO. When the appellant approached this Court challenging the action of the RTO, this Court declared that appellant was covered by the definition of "motor transport undertaking" under Section 2(h) of the act. However, the question of claim of exemption under the proviso to Section4 was left open for the appellant to prove before the RTO. It is against this judgment that this appeal is filed. 2 2. We have heard counsel appearing for the appellant and standing counsel appearing for the Motor Transport Workers Welfare Fund Board. The liability to pay contribution in respect of transport workers under the Kerala Motor Transport Workers Welfare Fund Act is on the transport undertaking as defined in Section 2(h) of the Act. Section 2(h) of the Act defines "motor transport undertaking" as follows: "motor transport undertaking" means a motor transport undertaking engaged in carrying passengers or goods or both by road for hire or reward and includes a private carrier. From the above definition, it is clear that a private carrier is also covered under the Act. Section 2(l) of the Act says that all other words and expressions used but not defined in this Act and defined in the Motor Vehicles Act, 1939 (Central Act 4 of 1939) shall have the meanings respectively assigned to them in the 1939 Act. The Welfare Fund Act came in 1985, when the Motor Vehicles Act, 1939 was in force. The definition of "private carrier" as contained in Section 2 (22) of the Motor Vehicles Act, 1939 is as follows: "Private carrier" means an owner of transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport or who uses the 3 vehicle for any of the purposes specified in subsection (2) of Section 42. It is clear from the above that the industry transporting goods in their private vehicle is covered by the above definition. Consequently, even though appellant is not mainly a motor transport undertaking, it becomes liable to pay contribution by virtue of inclusive definition covering private carrier under Section 2(h) of the Act. The Supreme Court in the decision in MUNICIPAL COUNCIL, RAIPUR V. STATE OF M.P., AI.R. 1970 SC. 1923 held that municipality engaged in transport of garbage in their own truck is covered by the Act even though it is not motor transport undertaking by virtue of inclusive definition under 2(h) of the Act. Following the said judgment of the Supreme Court, we hold that appellant answering the definition of motor transport undertaking is liable to pay contribution under the Act. 3. The next question to be considered is appellant's claim of exemption under the priviso to Section 4 which provides for exemption to those who are otherwise liable to pay contribution for the workers, if such workers are covered by Employees Provident Fund Act, Gratuity Act, etc. This is a matter to be proved before the adjudicating officer and not before this Court. In fact, learned single Judge has given freedom to the appellant to prove this fact before the RTO for 4 receiving tax without insisting on production of certificate by the appellant from the Welfare Fund Inspector under Section 8A of the Act. We feel that this matter has to be considered in adjudication proceedings by the Executive Officer of the Welfare Fund Board and not by the RTO. Writ Appeal is therefore disposed of directing the District Executive Officer to call for proof of coverage of employees under the Employees Provident Fund Act or Gratuity Act and on being satisfied about coverasge and consequent eligibility for exemption, he will issue required certificate to the appellant for production before the RTO for receiving tax. If appellant is not entitled to exemption there will be direction to the District Executive Officer to complete the adjudication upto date and issue orders determining contribution payable under the Act including advance contribution for the appellant to make payment and on payment to issue certificate for production before the RTO for receiving tax. (C.N.RAMACHANDRAN NAIR) Judge. (V. K. MOHANAN) Judge. kk 5