Kerala High Court: While deciding the petition, the bench of P.V. Kunhikrishnan, J., held that exclusion of mentally retarded persons from tax exemption by restricting the physically handicapped persons to blind, deaf and orthopedically handicapped, is discriminatory and violative of Article 14 of the Constitution of India.
Background
In the case at hand, the petitioner is a mentally retarded person with 75% of permanent disability. A motor car was purchased in the name of the petitioner for his own use. The Transport Commissioner, insisted on the payment of one-time tax for the vehicle and hence, he was forced to pay the one-time tax. According to a notification, issued under Section 22 of the Kerala Motor Vehicles Taxation Act, 1976 “(Act, 1976”), the physically handicapped persons are exempted from paying tax for three wheelers, invalid carriages, motor cycles and motor cars owned by them for their own use, whether driven by the handicapped persons themselves or by others for the transport of such handicapped persons, subject to the production of a certificate from the medical officer that the owner of the vehicle is a physically handicapped person with more than 40% disability at least. The explanation to the notification states that, for the purpose of the notification the physically handicapped persons mean blind, deaf and orthopedically handicapped. Based on this notification, the petitioner claimed the refund of amount paid by him as vehicle tax which was rejected by the Transport Commissioner by stating that, the petitioner is not entitled to the benefit because mentally retarded persons are not included in the explanation mentioned for physically handicapped persons in the notification. Thus, the petitioner filed this petition.
The question before the Court is whether the exclusion of ‘mentally retarded persons’ from the category of ‘physically handicapped persons’ in notification issued by the Government is discriminatory or not?
The Court opined that every human being is having incapacities either mentally or physically or talent-wise. Every citizen is having inborn talents in one way or another way. Just like the lack of inborn talents in some citizens, a differently abled person also has some disability, but many times they have better abilities than others in some other field. Some of these differently/specially abled persons will write stories, some of them will write poetry and some of them will sing and dance. They are not different, but one among us. They are a part of our society.
The Court said that the contention of respondents that simply because a mentally retarded person cannot own the responsibilities and questions relating to insurance coverage and third-party claims, the tax exemption cannot be enlarged to them, is not justified. The plight of the parents of the differently abled person is to be considered at this point of time. Some of the parents may have to take their children to school or other places. Under such a situation, a vehicle may be a dream to them. The suffering and insult suffered by some of the parents cannot be ignored.
The Court noted that Article 1 of United Nations Convention on the Rights of Persons with Disabilities states that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. Section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“Act, 1995”), defines “disability” as blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation, and mental illness. Similarly, the Rights of Persons with Disabilities Act, 2016 (“Act, 2016”) defines “person with a disability” in Section 2(s) as a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.
The Court concluded that when the Act, 1995 and the Act, 2016 says that the person with disability includes mentally retarded persons, the exclusion of mentally retarded persons from tax exemption by giving an explanation and restricting the physically handicapped persons to blind, deaf and orthopedically handicapped, is discriminatory and violative of Article 14 of the Constitution of India.
The Court further noted that the Government released another notification and exempted person with autism or cerebral palsy, multiple disabilities and mental retardation from tax payable while purchasing motor cars up to the value of Rs.7 lakhs applicable. While as per the contended notification, concession was given to certain categories of persons. When a concession is given to certain categories of persons, there cannot be a discrimination among that category itself.
The Court held that the petitioner is also entitled to tax exemption and the amount collected from the petitioner is to be refunded to the petitioner forthwith.
Hence, the Court set aside the notification of the government and declared that mentally retarded persons are also entitled to tax exemption while buying motor cars. The Court further directed that if any mentally retarded persons have purchased a motor car in their name during the period from 01-04-1998 till 01-03-2022 for their own use and paid tax, they are entitled to refund of the tax, if an application is filed to that effect.
[Clint Johnson v. State of Kerala, 2023 SCC OnLine Ker 502, decided on 25-01-2023]
Advocates who appeared in this case:
Counsel for Petitioner:- Advocate Varghese Parambil, Advocate Albert Joseph, Advocate P. Chandy Joseph, Advocate T.K. Kunjumon
Counsel for Respondent:- Advocate Reshmitha. R.