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2006 Supreme(Ker) 22
Judges : THOTTATHIL B.RADHAKRISHNAN
The Quilon District Petroleum Dealers - Appellant
Versus
The State of Kerala Represented by its Chief Secretary - Respondent
Case No : WP.(C).No.26204 of 2005 (T)
Decided On : 01/16/2006
Advocates Appeared :
For the Petitioners: B. Suresh Kumar, M.A. Thasnim, Advocates. For the Respondents: R2, P. Ramakrishnan, SC, KMTWF Board, John Joseph Vettikkad, Government Pleader.
Headnote:
Motor Transport Workers Welfare Fund Act, 1985 - Section 2(1) - Seeking a declaration that the petroleum dealers owning tanker lorries for the purpose of lifting petroleum products from the installations of the petroleum companies to the retail outlets are not transporting undertakings for the purpose of the Kerala Motor Transport Workers' Welfare Fund Act, 1985 or Welfare Fund Scheme thereunder and are not, therefore, liable to pay any contribution under the said Act and the Scheme. A writ of mandamus compelling the respondents to desist from insisting on payment of such contribution as a pre-condition for receiving quarterly tax under the Kerala Motor Vehicles Taxation Act, 1976 is also sought for - Held, There could be no doubt that a petroleum dealer who puts his tanker lorry for the purpose of lifting petroleum products from the installations of the petroleum companies to the retail outlet is the owner of a transport vehicle other than a public carrier and the vehicle is used solely for the purpose of carriage of goods, the carriage of which is necessary for the purpose of his business which is not a business of providing transport. Hence, he is a private carrier as defined in S.2(22) of the Motor Vehicles Act, 1939 and therefore, a motor transport undertaking as defined in the Welfare Fund Act. No deletion or repeal of the earlier Act results in any modification of the Act into which the earlier Act had been incorporated by reference. Ordinarily, if an Act is incorporated in a later Act, the intention is to incorporate the earlier Act, with all the amendments made in it up to the date of incorporation. The case in hand is a case of clear incorporation and not merely one of reference alone - The incorporation made by S.2(1) of the Welfare Fund Act is absolute and is not subject to any qualifications or expectations. So much so, there is no room to hold that the repeal of the Motor Vehicles Act, 1939 has any impact on the continued inclusion of the provisions incorporated by reference as part of the interpretation clause of the Welfare Fund Act. The incorporation made by S.2(1) of the Welfare Fund Act is an incorporation which, in fact, means the bodily lifting of the provisions of one enactment and making it part of another. The repeal of the Motor Vehicles Act, 1939 is a fact known to the Legislature while the Amending Act was made in 2005. The law of the land also dictates that such knowledge of the Legislature has to be presumed. When the Legislature undertakes the exercise of amending an existing Act, it has to be presumed that the provisions of the Act that is being amended are fully adverted to and considered as the Legislature should. The fact that the Legislature, even while making the Amending Act, after the repeal of the Motor Vehicles Act, 1939, did not touch clause (1) of S.2 of the Welfare Fund Act is a clear indication that the legislative intention is only to have the incorporation made by S.2(1) to continue. This view of the matter also supports the conclusion arrived at above.In the result, the Writ Petition fails. The same is accordingly dismissed.
This writ petition is filed seeking a declaration that the petroleum dealers owning tanker lorries for the purpose of lifting petroleum products from the installations of the petroleum companies to the retail outlets are not transporting undertakings for the purpose of the Kerala Motor Transport Workers’ Welfare Fund Act, 1985 or the Welfare Fund Scheme thereunder and are not, therefore, liable to pay any contribution under the said Act and the Scheme. A writ of mandamus compelling the respondents to desist from insisting on payment of such contribution as a pre-condition for receiving quarterly tax under the Kerala Motor Vehicles Taxation Act, 1976 is also sought for.
2. Heard Adv. Sri B. Suresh Kumar on behalf of the petitioners and Sri. John Joseph Vettikkad on behalf of the first respondent State of Kerala.
3. The Kerala Motor Transport Workers’ Welfare Fund Act, 1985 (hereinafter referred to as the “WELFARE Fund Act”) was made to provide for the constitution of a Fund to promote the welfare of the motor transport workers in the State of Kerala. It envisages, among other things, the framing of a scheme called “the Kerala Motor Transport Workers’ Welfare Fund Scheme” for the establishment of a Fund for employees and for the administration of the said Fund.
4. The employer is liable to make contributions under the Welfare Fund Act, Section 2(e) of which defines “employer” as follows:
“2. Definitions.- In this Act, unless the context otherwise requires,
(e) ‘employer’ means in relation to any motor transport undertaking, the person who, or the authority which, has the ultimate control over, the affairs of the motor transport undertaking and where the said affairs are entrusted to any other person, whether called a manager, managing director, managing agent or by any other name, such other person.”
5. Except the terms defied in Clauses (a) to (k) of Section 2, clause (1) thereof provides 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 that Act.”
6. By the Kerala Motor Transport Workers’ Welfare Fund (Amendment) Act, 2005 (hereinafter called the “Amending Act”), certain amendments were made to the Welfare Fund Act, also in the interpretation clause in Section 2. The definition of “employer” in Section 2(e) of the Welfare Fund Act has been amended by Section 2(a) of the Amending Act by including the registered owner specifically within the sweep of the said definition. Section 8A introduced by the Amending Act provides as follows:
“8A. Production of receipt of remittance of welfare fund contribution.- Notwithstanding anything contained in any other law for the time being in force, every registered owner or person having possession or control of a motor vehicle in respect of a motor transport undertaking liable to pay contribution (other than autorickshaws covered under the provisions of the Kerala Autorickshaw Workers’ Welfare Fund Scheme, 1991) shall, at the time of making payment of the tax under the Kerala Motor Vehicles Taxation Act, 1976 (19 of 1976), produce before the Taxation Officer the receipt of remittance of the contribution to the fund due up to the preceding month.”
7. In view of the aforesaid newly introduction Section 8A, receipt of remittance of contribution to the fund due up to the preceding month has to be produced before the Taxation Officer at the time of making payment of the tax under the Kerala Motor Vehicles Taxation Act, 1976.
8. The competence of the State Legislature to bring the amendments as per the Amending Act is beyond challenge.
9. In fact, the nature of the contentions on the basis of which reliefs are sought for in the writ petition is that the definitions of “employer” and “motor transport undertaking” in the Welfare Fund Act, as amended, would not take in petroleum dealers since, according to the writ petitioners, the dealers owning tanker lor
