K. Balakrishnan Nair, J.
1. The petitioner, in this Writ Petition, challenges the constitutional validity of Section 15 and also Sub-sections (7) and (8) of Section 4 of the Kerala Motor Vehicles Taxation Act, 1976. The brief facts of the case are the following:
2. The petitioner is a stage carriage operator, operating on the route Cheranellur-Fort Kochi, on the strength of a regular permit, granted to his vehicle KL-7/AN-6074. The tax in respect of the said vehicle for the quarter ending on 31.03.2006 has to be paid on or before 31.01.2006. A grace period is allowed upto 14.02.2006, i.e., for operating the stage carriage or keeping it in operation, he has to pay the tax on or before 14.02.2006. If tax is not paid within the said time limit, he will be liable to pay penal interest. Apart from that, non-payment of tax is an offence, punishable under Section 16 of the above said Act. If there is default to pay tax, the same can be recovered, invoking the provisions of the Kerala Revenue Recovery Act. If tax is not paid, the Police Officers and Officers of the Motor Vehicles Department are empowered to detain the vehicle. Section 15 of the Motor Vehicles Taxation Act provides that notwithstanding anything contained in the Motor Vehicles Act, if the tax in respect of a motor vehicle is not paid within the prescribed time limit, the validity of the permit will become ineffective, till the tax is actually paid. Recently, Sub-sections (7) and (8) have been introduced to Section 4 of the Act, as per the Motor Vehicles Taxation (Amendment) Act, 2005 (Act 24 of 2005), which is produced as Ext.P2. Sub-section (7) says that every registered owner or person, having possession or control over a motor vehicle, in respect of which, contribution under the Motor Transport Workers Welfare Fund Act, 1985 is liable to be paid, shall pay the same, before paying the motor vehicles tax. He shall produce proof for payment of the welfare fund dues upto the preceding month at the time of paying the tax. Sub-section (8) thereof provides that no tax shall be collected, unless the receipt for the remittance of welfare fund contribution is produced.
3. The petitioner submits, Section 15 and Sub-sections (7) and (8) of Section 4, are ultra vires of the provisions of the Motor Vehicles Act 1988 and various Articles of the Constitution of India. Therefore, those provisions are liable to be struck down. The learned Counsel for the petitioner Shri.P.Ravindran, firstly submitted that the impugned previsions violate the fundamental rights of the petitioner, guaranteed under Article 19(1)(g) of the Constitution of India. They impose an unreasonable restriction on the petitioner's fundamental right to carry on the business of running stage carriages. The Apex Court in Saghir Ahmad v. State of U.P. : (1964)ILLJ380SC , held that the right to use highways is a fundamental right. The said right-has unreasonably been restricted by the impugned provisions. Secondly, it was submitted that the impugned provisions are repugnant to Section 81 of the Motor Vehicles Act, 1988 and therefore, void. Section 81 of the Motor Vehicles Act, 1988 provides that the validity of a permit is for a period of five years. Section 15 of. the Motor Vehicles Taxation Act says that if the tax is not paid in time, the permit will become invalid. Since the Motor Vehicles Taxation Act does not have the assent of the President, under Article 254(2) of the Constitution of India, the same is invalid for being repugnant to Section 81 of the Motor Vehicles Act. Thirdly, the learned Counsel for the petitioner submitted that since the Motor Vehicles Taxation Act does not have the assent of the President, the impugned provisions will be hit by Article 304(5) of the Constitution of India, It is contended that since the said Act has been moved in the Legislature without the previous sanction of the President, the impugned provisions are invalid. In the absence of the previous sanction of the President under Article 304 even assuming the restrictions are reasonable, in terms of Article 19(6) of the Constitution of India, the impugned provisions are void ab initio, it is contended. The learned Counsel also relied on the decisions of the Apex Court inAtiabari Tea Co. Ltd. v. State of Assam : [1961]1SCR809 , Automobile Transport Limited v. State of Rajasthan 0065/1962 : [1963]1SCR491 and also the decision of this Court in Deputy Commissioner of Sales Tax v. Natarajan (1987(2) KLT SN Case No. 37).
4. I also heard Shri.Raju Joseph, learned Special Government Pleader for Taxes. According to him, there is no repugnancy between Section 81 of the Motor Vehicles Act and the impugned provisions. Admittedly, the State Legislature is competent to enact a law, imposing tax on motor vehicles. The Legislature has incidental or ancillary power to provide provisions to recover the tax due under the main charging section. According to him, the incidental and ancillary powers, referable to a legislative entry and the legislative field related to the entry, will save such provisions.
5. Section 81 of the Motor Vehicles Act reads as follows :
Duration and renewal of permits --(1) A permit other than a temporary permit, issued under Section 87 or a special permit issued under Sub-section (8) of Section 88 shall be effective from the date of issuance or renewal thereof for a period of five years.
Provided that where the permit is countersigned under Sub-section (1) of Section 88, such counter signature shall remain effective from the date of issuance or renewal thereof for such period so as to synchronise with the validity of the primary permit..
(4) The Regional Transport Authority or the State Transport Authority, as the case may be, may reject an application for the renewal of a permit on one or more of the folio wing grounds, namely:..
(b) the applicant had been punished twice or more for any of the following offences within twelve months reckoned from fifteen days prior to the date of consideration of the application committed as a result of the operation of a stage carriage service by the applicant, namely:
(i) plying any vehicle(1) without payment of tax due on such vehicle:
(2) without payment of tax during the grace period allowed for payment of such tax and then stop the plying of such vehicle;.
Thus, normally, a permit will remain valid for 5 years, unless the same is suspended or cancelled under Section 86 of the Motor Vehicles Act, for the reasons mentioned therein. Section 15 of the Motor Vehicles Taxation Act reads as follows:
Transport vehicle permit to be ineffective if tax not paid- Notwithstanding anything contained in the Motor Vehicles Act, 1939 (Cental Act 4 of 1939), if the tax due in respect of a transport vehicle is not paid within the prescribed period, the validity of the permit for that vehicle shall become ineffective from the date of expiry of the said period until such time as the tax is actually paid.
The contention of the petitioner is that the above provision is repugnant to Section 81(1) of the Motor Vehicles Act. The Motor Vehicles Act is enacted under Entry 35 of List III of the 7th Schedule of the Constitution of India. Entry 35 reads, 'Mechanically propelled vehicles including the principles on which taxes on such vehicles are levied.' The Motor Vehicles Taxation Act is referable to Entries 56 and 57 of List II of the 7th schedule. Those entries are quoted below for convenient reference:
56. Taxes on goods and passengers carried by road or on inland waterways.
57. Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of Entry 35 of List III.
The Kerala Motor Transport Workers Welfare Fund Act has been enacted under Entry 24 of List III of Schedule 7. The said entry reads as follows:
24. Welfare of labour including conditions of work, provident funds, employers liability, workmen's compensation, invalidity and old age pensions and maternity benefits.
The petitioner, relying on Article 254 of the Constitution of India, submits, the provisions in the Motor Vehicles Taxation Act, concerning the validity of the permit, is repugnant to the provisions of Section 81 of the Central Act and therefore, void ab initio, by virtue of Article 254(2) of the Constitution, which reads as follows:
Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the Slate.
But, the notification issued by the Legislation (B) Department dated 25.03.1976 in the Kerala Gazette extraordinary, Volume 21, No. 196 shows that the President had given assent on 25.03.1976, for the Kerala Motor Vehicles Taxation Act, passed by the Legislative Assembly. In view of the above position, the main contention of the petitioner fails. The petitioner does not have a case that the new Motor Vehicles Act will prevail, notwithstanding the assent of the President granted in 1976, by virtue of the proviso to Article 254(2) of the Constitution. In the absence of any such contention, it is unnecessary for this Court to consider the said aspect. The petitioner proceeded on the footing that the Motor Vehicles Taxation Act did not have the assent of the President. In view of the assent of the President, the attack against the Motor Vehicles Taxation Act, relying on Article 304(b) is also unsustainable. The Apex Court has held that the subsequent assent will cure the absence of a previous consent under Article 304(b) of the Constitution. See the decisions of the Apex Court in Atiabari Tea Co.'s Ltd. v. State of Assam : [1961]1SCR809 and Automobile Transport Limited v. State of Rajasthan 0065/1962 : [1963]1SCR491 . So, the contention of the petitioner, relying on Article 304(b) of the Constitution also fails. Now, what remains is the attack against the impugned provisions, as violative of Article 19(1)(g). The Motor Transport Workers Welfare Fund Act has been enacted, to provide a welfare fund for the motor transport workers employed by the Motor Transport undertakings, to which Employees Provident Fund and Miscellaneous Provisions Act, 1952 and the Payment of Gratuity Act 1972, are not applicable. The Motor Transport industry consists of a large number of mini establishments, running one stage carriage or a contract carriage or a goods vehicle. The strength of the workmen in such establishments is insufficient to attract the provisions of the Employees Provident Fund and Miscellaneous Provisions Act or the Payment of Gratuity Act, mentioned above. In order to provide a welfare fund for such workers in the unorganised sector, the Motor Transport Workers Welfare Fund Act has been enacted. It was enacted by the State, in discharge of its obligation under Articles 38, 39, 42 and 43 of Part IV of the Constitution of India. To effectively implement its provisions, Act 24 of 2005 was introduced, to amend Section 4 of the Kerala Motor Vehicles Taxation Act. While considering the validity of such legislations, this Court should bear in mind, the principles laid down by the Apex Court in U.P. State Electricity Board v. Hari Shanker (AIR 1979 SC 65), which reads as follows:
Before examining the rival contentions, we remind ourselves that the Constitution has expressed a deep concern for the welfare of workers and has provided in Article 42 that the State shall make provision for securing just and humane conditions of work and in Article 43 that the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work, ensuring a decent standard of life and full enjoyment of leisure etc. These are among the 'Directive Principles of State Policy'. The mandate of Article 37 of the Constitution is that while the Directive Principles of State Policy shall not be enforceable by any Court, the principles are 'nevertheless fundamental in the governance of the country' and 'it shall be the duty of the State to apply these principles in making laws'. Addressed to Courts, what the injunction means is that while Courts are not free to direct the making of legislation. Courts are bound to evolve affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the Constitution must be ever present in the minds of Judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy.
The petitioner, in fact, does not challenge his obligation to pay welfare fund dues. He only challenges the coercive measures introduced in the Motor Vehicles Taxation Act, for the said purpose. Admittedly, the State Legislature has power to enact on Motor Vehicles taxation and also for providing a welfare fund for motor transport workers. Invoking the said power, flowing from the relevant entries in Lists II and III mentioned above, Section 15 and Sub-sections (7) and (8) of Section 4 have been introduced in the Motor Vehicles Taxation Act. If the petitioner has no dispute regarding the payment of welfare fund dues, he cannot be aggrieved by the introduction of an effective measure for collecting the fund. The default of stage carriage operators to pay welfare fund dues has reached alarming proportions and the Legislature has woken up to the situation and has provided stringent measures in the Motor Vehicles Taxation Act, to ensure collection of welfare fund dues. The Legislature should be conceded incidental and ancillary power, to provide effective machinery for the collection of welfare fund. In view of the above position, the challenge against the provisions of the Motor Vehicles Taxation Act, mentioned above, is repelled and the Writ Petition is dismissed.
WP(C) No. 3962/06
The point raised by the petitioners herein is covered by the decision in WP(C) No. 3595/06. Accordingly, this Writ Petition is also dismissed.