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Judgment
R. Banumathi, J.—Notification S.O.1248 (E) dated 05.11.2004 is challenged on the ground that Omni Buses belonging to the Petitioner
Society have been categorised as ''transport vehicles'' and therefore, Notification is ultra vires.
Briefly stated case of the Petitioner is as follows:
(i) Petitioner is a religious and charitable institution registered under the Societies Registration Act. Petitioner is an international organisation doing
extensive religious and charitable work. Head Quarters of the Petitioner Mission is situated in Chennai and it has branches all over India. For its
religious work and preaching work in various States, Petitioner has acquired vehicles including Omni buses from time to time.
(ii) Petitioner owns about 30 Omni Buses registered under the caption ''Omni Buses for private use''. Petitioner Mission has purchased a bus
bearing registration No. KL-5 H-5292 from Kerala and when the Petitioner Mission has produced the purchased bus KL-5 H-5292 before 3rd
Respondent for registration, 3rd Respondent stated that they would register the vehicle only under the category of ''transport vehicle'' in view of the
Notification of the 1st Respondent dated 05.11.2004 as clarified in its letter dated 03.10.2006. Since the Omni Buses owned by the Petitioner
Mission do not come under the category of ''transport vehicle'', they cannot be categorized under the heading ''transport vehicle''
(iv) According to the Petitioner, registration of vehicles belonging to religious institution as ''transport vehicle'' would clearly infringe the right of the
religious institutions enshrined under Article 25 of Constitution and seeks to quash the notification of the 1st Respondent dated 05.11.2004 and
direct the 3rd Respondent to register the Omni Bus of the Petitioner Mission as ""Omni Bus for private use.
Second Respondent has filed counter stating that under Notification dated 19.6.1992, 1st Respondent has classified both ''transport'' and ''non-
transport'' vehicles. Under the heading ''non-transport'' vehicles in column (xiv), there is a classification as ""Omni Bus for private use''. It is averred
by the 2nd Respondent that such registrations of omni buses were misused for commercial purposes leading to huge loss of revenue to State
Government. In its clarification, Government have introduced another classification of the vehicle Omni bus for private use has been deleted and
new notification was made for ''Private Service Vehicle"".
Case of the Respondent is that 1st Respondent has clarified in its letter dated 03.10.2006 that in so far as registration of vehicle (having more
than 6 seats) of Charitable/Philanthropic institutions is concerned, such vehicles widely use the road and therefore, be appropriately registered in
''transport'' category and they should undergo fitness test and such vehicles should be endorsed as ''Private Service Vehicles'' and be registered in
''transport category''. According to the Respondents, Petitioner Mission falls within the category of ''Private Service Vehicle'' under ''Transport''
category for which tax of Rs. 150/- per seat per quarter is to be leviable and since the 1st Respondent has issued a Notification only to curb the
wrong doer and to restrict the revenue loss to the Government, Petitioner Mission cannot challenge the Notification by way of filing of Writ
Petition.
In exercise of power u/s 41(4) of Motor Vehicles Act, S.O.451(E) dt 19.06.1992 was passed classifying ''Omni Buses for private use'' as
''non-transport vehicle''. In the said Notification, Omni Buses by itself was classified as ''transport vehicle'' (vide clause xxiii).
In supersession of the earlier Notification, S.O.451 (E) S.O.1248(E) dt 05.11.2004, was issued whereby the classification of the vehicle ''Omni
Buses for private use'' has been deleted. Under the new Notification Omni Buses was made as ''private service vehicle'' under the category of
transport vehicle. Omni Bus has been kept in the category of ''transport vehicle'' with a view to bringing it under the purview of fitness regime as it
is exhaustively used on road. However, the taxes to be levied on such vehicle would fall within the jurisdiction of State Government.
The consequences of impugned notifications are:
� Under Tamil Nadu Motor Vehicles Taxation Rules, the tax payable is Rs. 150/- for every person per quarter which the vehicle permitted to
carry.
� Petitioner Society engaged in religious and charitable works and whenever Petitioner Society has to take the vehicles out side the State, every
time permit has to be obtained from other States to enable the vehicle to pass through in those States.
Contending that the Notification dated 05.11.2004 is ultra vires the Constitution and also the provisions of M.V. Act, the learned Senior
Counsel Mr. G.Rajagopal, appearing for the Petitioner inter alia has raised the following contentions:
� Notification is violative of statutory provisions and unsustainable.
� Omni Buses owned by Petitioner Society do not come under ''transport vehicle'' and therefore, they cannot be categorised under the heading
''transport vehicle''.
� Earlier Notification rightly treated the vehicles as ""Omni Buses for private use'' and it is not open to the Central Government to delete the said
clause and include it under the category ''transport vehicles''.
� Classification of all Omni Buses irrespective of the nature of use under the category of transport vehicle is vires as per Section 2(47) of M.V.
Act.
On behalf of the Respondents 2 and 3, Mr. N. Senthilkumar, learned AGP has contended that Petitioner''s vehicle is used for missionary
purpose and not merely for personal use and therefore Petitioner''s Omni Buses are rightly treated as ''private service vehicles'' and Petitioner
Society cannot challenge the Notification.
Learned AGP would further submit that the vehicles of Charitable/Philanthropic institutions, such vehicles widely use the road and therefore be
appropriately registered in transport category and such vehicles should undergo annual fitness test and should be endorsed as ''Private Service
Vehicles'' and be registered in transport category.
On behalf of the 1st Respondent, Mr. K.E.Elango, Asst. Solicitor General-I has contended that as per the notification S.O.1248(E) dt
05.11.2004 letter No. RT/1028/14/2002-MVL dated 03.10.2006 Omni Bus has been shifted from ''non-transport vehicle'' to ''transport vehicle''
and the vehicle has to necessarily undergo annual fitness test and the Notification does not run against the Statute nor against the provisions of the
Statute.
For appreciation of the contentious points, we may refer to certain provisions in the Motor Vehicles Act. Omni Bus is defined in Section 2(29)
of M.V. Act which reads as under:
Omni Bus"" means any motor vehicle constructed or adapted to carry more than six persons excluding the driver.
As per Section 2(33) of M.V. Act ''private service vehicle'' is defined as follows:
private service vehicle"" means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or
on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire
or reward but does not include a motor vehicle used for public purposes.
Section 2(47) defines transport vehicle as under:
transport vehicle"" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
Main contention of the Petitioner Society is that Petitioner Society being a Religious/Charitable institution and the vehicles used by Petitioner
Society cannot be classified as transport vehicles. Drawing Court''s attention to the objects of the Society, learned Senior Counsel for the
Petitioner submitted that Petitioner Society was formed with an object to impart religious education and to establish education and training
institutions and to preach the gospel and the Holy Bible throughout the world. Learned Senior Counsel for the Petitioner further argued that the
activities of the Society cannot be termed as ''trade'' or ''business'' within the meaning of Section 2(33) of M.V. Act and under no state of
imagination, vehicles of Petitioner Society can be classified as ''private service vehicles''.
Learned Senior Counsel for the Petitioner has drawn the Court''s attention to the objects of the Society. Petitioner Society was formed based
on the doctrine of the Church and to manage the temporal or secular activities of the Mission/Church. The primary objects of the Society are:
(i) To impart religious education centred on the life and teachings of our Lord Jesus Christ and the sacred Scriptures.
(ii) To establish and manage educational, vocational and training institutions.
(iii) To preach the gospel and the Holy Bible throughout the world.
(iv) To establish and manage Churches, faith homes and religious institutions within and outside India.
(v) To conduct conventions and camps for propagation of the doctrine of the Church.
(vi) To promote evangelization, Bible culture, Christian values and morals and to organize gospel outreach tours.
In the letter No. RT/1028/14/2002-MVL dated 03.10.2006, Central Government has clarified that so far as registration of vehicles of
Charitable/Philanthropic institutions, such vehicles widely use the road and therefore, be appropriately registered in transport category so that they
should undergo annual fitness test. It may be that Petitioner Society is a Religious/Charitable/Philanthropic institution. But Omni Buses of any
Religious/Charitable institutions are classified as ''transport vehicles'', because the vehicles widely use the road.
Primarily, the purpose of classification of vehicles is two fold:
� For the purpose of levy and collection of tax and for the purpose of general revenue which is compensatory.
� To ensure that the vehicles should undergo periodical testing/annual fitness test and thereby ensuring safety of the passengers.
The tax levied on motor vehicles is compensatory in nature, though need not necessarily be 100% justification. The imposition of tax on motor
vehicle by the State which is regulatory or compensatory in character, it would not infringe the freedom of trade, commerce or right to practice the
religion. It is fairly well settled that the object is to tax all motor vehicles used on roads and that the tax is of compensatory in nature. Tax is on the
basis of either weight of the vehicle or its seating capacity and mileage travelled.
Petitioner Society is stated to be owning number of Omni Buses for the purposes of going to various places for praying and preaching. The
classification of the vehicle is primarily for the purpose of levy of tax depending on the weight of the vehicle or its seating capacity and mileage
travelled. If the Petitioners Vehicles are not so much using the road and the vehicles are only used for religious and charitable purposes it is for the
Petitioner Society to approach the concerned Authorities either for getting exemption / concession in Taxes.
First Schedule of Tamil Nadu Motor Vehicles Taxation Act deals with levy of taxes. As per first schedule, clause-8 ''in other cases'' like Omni
Bus for every person tax is payable at the rate of Rs. 150/- quarterly. Having regard to user of the roads, tax is levied as compensatory as
contribution, maintenance and upkeep of the road. In fact, as per the said clause, vehicles owned by educational institutions for transport of
students and staff of schools for every person tax is payable at the rate of Rs. 50/- quarterly and students and staff of colleges quarterly tax
payable is Rs. 100/- for every person. If the Omni Buses owned by writ petitioner society are running less mileage, it is for the Petitioner Society to
approach the Authorities seeking exemption / concession.
Learned Senior Counsel for the Petitioner submitted that objects of the Society cannot be equated as trade or business within the meaning of
Section 2(33) of the Act. In support of his contention, learned Senior Counsel placed reliance upon 2002 (3) KLT 965 [Fr. Pious v. Sub Regional
Transport Officer]. In the said decision, Kerala High Court has held that Omni Bus used by institutions or persons for religious purposes, the re-
classification of the vehicles used for their own purpose of congregation of nuns as private vehicle is not correct. In the said decision, the tax is
being demanded retrospectively from 5/2000 to 6/2002 based on the circular dated 15.7.2002 issued by the Transport Commissioner. That apart
at the time when the case was decided by the Kerala High Court, Notification S.O.451 (E) was in vogue whereby Omni Bus for private use has
been categorised as non-transport vehicle.
Business means any activity in which one is engaged or one has to do as a special service, duty or mission. There is no force in the contention
that it would be illogical to classify the Petitioner Society vehicle as ''private service vehicle''. The notification cannot be challenged on the ground of
arbitrariness in classifying ''Omni Buses'' as ''private service vehicle''
On behalf of the Petitioner, learned Senior Counsel mainly contended that classification of Petitioner''s vehicle as transport vehicle and thereby
compelling them to pay heavy tax and making them to take permit when the vehicles are being taken out side the State would infringe the
fundamental right of the Petitioner Society for practising and propagating their religion. Learned Senior Counsel would further submit that
registration of vehicles belonging to religious institution as transport vehicle clearly interferes with the right of religious institutions enshrined under
Article 25 of Constitution of India and Petitioner Society would not be in a position to freely use the vehicle in inter-state and would be required to
obtain permit every time when the vehicle is taken outside the State. Learned Senior Counsel would further contend that right of freedom of
conscience would include the right to propagate. It was further submitted that right of operating the vehicle is integral part of activities to propagate
tenets of religion and preaching one''s own religion.
Article 25 of Constitution guarantees the right to every person, whether citizen or non-citizen, the freedom of conscience and the right of freely
to profess, practise and propagate religion. But this guaranteed right is not an absolute one. It is subject to (1) public order, morality and health, (2)
the other provisions of Part III of the Constitution, (3) any existing law regulating or restricting an economic, financial political or other secular
activity which may be associated with religious practice, (4) a law providing for social welfare and reform, and (5) any law that may be made by
the State regulating or restricting the activities aforesaid or providing for social welfare and reform [Vide Sardar Syedna Taher Saifuddin Saheb
Vs. The State of Bombay,
Though, Government could not interfere with the religious practice or propagation, it may deal with such acts without infringing the principles of
fundamental freedom of religion. Under the Notification, the vehicles are classified as ''transport vehicles'' mainly for the purpose of levy and
collection of appropriate tax which is compensatory and to ensure fitness test of the vehicle. Notification cannot be challenged as infringing the
fundamental rights of the Petitioner Society. There is no merit in the contention that classification of private service vehicle would infringe the
religious freedom of the Petitioner Society.
Writ Petitioner refers to one vehicle bearing No. KL-5 H-5292 which was produced by the Petitioner Society for registration before 3rd
Respondent. The said vehicle was purchased in Kerala and said to have been produced for registration on 26.2.2007 with a request to grant
temporary registration for the vehicle. Request of the Petitioner could not be considered, since as per Section 43 of the Act new vehicle alone
could be granted temporary licence. As per Section 47 of M.V. Act, vehicles which have already been registered in other States, only re-
registration has been provided. 3rd Respondent cannot be faulted for declining the temporary registration of the vehicle.
28.It may be that Omni Buses owned by the Petitioner Society are used only for preaching / attending prayer meeting it may also be that Omni
Buses owned by Petitioner Society are used for other charitable purposes and running less mileage. If the vehicles of Petitioner Society are so used
for Religious / Charitable purposes and running less mileage, it is for the Petitioner Society to approach the Transport Commissioner / 2nd
Respondent seeking concession in rate of taxes.
It is pertinent to note that in respect of vehicles used by Philanthropical Institutions, concession has been granted in payment of tax. For
instance, from the information available in case of one Murthuzaviya Educational and Cultural Foundation of South India. No. 186, Big Street,
Triplicane, Chennai-5, where the vehicles are used for taking destitute children and deaf and dump children 50% concession has been granted in
rate of payment of tax in respect of vehicle belonging to the said trust. Therefore in the instant case it is for the Petitioner Society to approach the
1st Respondent / Transport Commissioner for payment of tax in respect of vehicles owned by it.
Earlier, by the interim order dated 27.4.2007, Justice R.Sudhakar has directed registration of all the vehicles of the Petitioner Society with an
observations that registration is subject to the result of the Writ Petition. In the said order, Petitioner Society was also directed to file an affidavit of
undertaking to pay all the taxes and charges as may be payable if they do not succeed in the Writ Petition.
Notification dated 05.11.2004 is not ultra vires the Constitution or the provisions of M.V. Act and the Writ Petitioner Society is not entitled to
the relief sought for in the Writ Petition and the Writ Petition is dismissed. No costs.
� However, it is open to the writ Petitioner Society to approach the 2nd Respondent / Transport Commissioner seeking concession in payment
of tax in respect of vehicles owned by Petitioner Society.
� On such representation the 2nd Respondent shall consider the same and pass appropriate orders within six weeks from the date of receipt of a
copy of the representation.
� The taxes and charges payable in respect of the vehicles owned by the Petitioner Society shall be subject to the orders passed by the 2nd
Respondent.
� The affidavit of undertaking filed by the Petitioner Society to pay all the taxes and charges as may be payable shall continue to hold good till
the disposal of the representation by the 2nd Respondent.
� After the orders are passed by the Transport Commissioner/ 2nd Respondent the Petitioner Society shall pay the taxes and charges as may be
payable within the time as allowed by the 2nd Respondent / Transport Commissioner.