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1985 DIGILAW 952 (ALL)

Sri Ram Tewari v. Passenger Tax officer, Gorakhpur

1985-10-07

A.BANERJI, K.KHANNA

body1985
JUDGMENT A. Banerji, J. - This writ petition has been filed by Sri Ram Tewari under Article 226 of the Constitution, challenging imposition of Passenger Tax on his Jeep vide order dated 18th June, 1985. The stand taken by the petitioner is that his Jeep is a private Jeep and not a stage carriage and consequently exempted from Passenger Tax under the provisions of U.P. Motor Gadi Yatri Kar Adhiniyam, 1962. The stand taken by the respondent Passenger Tax Officer, is that the vehicle in question was carrying eleven persons when it was stopped and a notice under S. 8 of the Adhiniyam was gent to the petitioner, both through registered post and in due course. None appeared to contest the matter and on the basis of the material-on the record the order. dated 18th June, 1985 (Annexure-1 to the writ petition) was passed by the Passenger Tax Officer imposing a sum of Rs. 1120/- as Passenger Tax for January 1985, Rs. 280/- as Additional Passenger Tax, Rs. 70/- as Insurance Charges and Rs. 100/- as penalty, in all Rs. 1570/-. He was also given 30 days time to pay up the aforesaid amount. The petitioner did not file any appeal which is statutorily provided under the provisions of S. 13(1) and has come up to this Court directly. The writ petition was filed in this Court on 25th July, 1985. We have heard learned counsel for the parties and proceed to dispose of the petition at the stage of admission as permitted under the Rules of the Court. 2. Mr. S.K. Varma, learned counsel for the petitioner, raised three contentions. First, that the petitioner was not served with a notice under S. 8 of and he was not aware of any date fixed by the Passenger Tax Officer in this matter. Secondly, the vehicle in question viz. the Jeep was a private vehicle and not a stage carriage, consequently there could be no imposition of passenger tax on the said vehicle. Thirdly there is no finding anywhere by the Passenger Tax Officer that the vehicle was carrying passengers for hire or reward on the day it was detained and consequently the imposition of passenger tax was bad in law. Learned counsel also argued that the authorities could only prosecute the driver and the owner of the vehicle for overloading the Jeep under the Motor Vehicles Act, 1939. 3. Learned counsel also argued that the authorities could only prosecute the driver and the owner of the vehicle for overloading the Jeep under the Motor Vehicles Act, 1939. 3. Learned Standing Counsel raised preliminary objections about the maintainability of the writ petition. His contentions were two-fold. Firstly, the petitioner had an alternative remedy viz by a statutory appeal and he ought to have exhausted the remedy before approaching this Court under Article 226 of the Constitution. Secondly, if the petitioner had not received any notice under S. 8 of the Adhiniyam and was not aware of the proceedings of 18th June, 1985, he could have made an application to the Passenger Tax Officer for recalling of the order, which the officer was competent to recall and as such he should not have approached this Court without first exhausting this remedy. On the merits learned Standing Counsel urged that it is not necessary that a vehicle should be registered as stage carriage for the purposes of imposition of Passenger Tax, but if the vehicle was such which came within the definition of stage carriage in S. 2(g) of the Act it would be stage carriage, notwithstanding the fact that it was not registered as stage carriage. In this context he urged that a vehicle which was carrying more than six passengers for hire or reward would be deemed to be a stage carriage and such a stage carriage could be proceeded against for payment of Passenger Tax under the provisions of Motor Gadi Yatri Kar Adhiniyam, 1962. Refuting the argument that ends of justice would be met by merely prosecuting the driver and the owner of the vehicle for overloading the vehicle, and was the appropriate course open to the R.T.O. learned Standing Counsel argued that those provisions were under the Motor Vehicles Act. whereas in the present case the proceedings were under the Adhiniyam. 4. Having heard learned counsel for the parties we are of the view that the petitioner should seek one or more of the remedies available to him. whereas in the present case the proceedings were under the Adhiniyam. 4. Having heard learned counsel for the parties we are of the view that the petitioner should seek one or more of the remedies available to him. We would, therefore, not express our opinion on the merits, but would certainly make it clear that the definition of stage carriage as given in S. 2(g) of the Motor Vehicles Act would embrace within its fold a vehicle which, though a private vehicle, is found carrying more than six passengers for hire or reward, even though it is not registered as stage carriage with the Motor Vehicle Authorities. The definition of stage carriage uses the words "carrying or is adapted to carry". Any vehicle which is adapted to carry besides the driver six passengers would be regarded as stage carriage unless exempted. Similarly, a vehicle which is currying more than six passengers for hire or reward would also come within the definition of stage carriage. Reference was made to the decision, in the case of Tata Engineering and Locomotive Co. Ltd. v. Sales Tax Officer, Poona, AIR 1979 SC 343 , by learned counsel for the petitioner. However, that decision, in our opinion would not help the petitioner. In that case a private vehicle was found carrying employees of the Company to the work site and they were being charged a small amount. The Court observed that since the Company's vehicle was employed to carry its own workers it would not tantamount to carrying passengers for hire. In our opinion the above decision is clearly distinguishable. We have already observed that we do not propose to express any opinion on the merits. We will, therefore, not go in the question as to whether a notice was duly served on the petitioner or not. and whether the vehicle was carrying more than six passengers and whether it was being so done for hire or reward. All these are questions of facts which will be looked into and decided by the Passenger Tax Officer or the Appellate Authority. 5. We find the contention of the learned Standing Counsel regarding maintainability of the petition to be sound. It is well-settled by their Lordships of the Supreme Court that where there is a statutory remedy, the petitioner should normally exhaust the remedy before approaching the High Court under Article 226 of the Constitution. 5. We find the contention of the learned Standing Counsel regarding maintainability of the petition to be sound. It is well-settled by their Lordships of the Supreme Court that where there is a statutory remedy, the petitioner should normally exhaust the remedy before approaching the High Court under Article 226 of the Constitution. There may be exceptional cases where the Court may interfere even though there is an alternative remedy and it has not been availed of. But such cases are rare and there must be good reasons shown before the Court is asked to interfere. We do not find any good reason for exercising our discretion and power under Article 226 of the Constitution in the present case. Even if the period of time, for making an application for recalling the order on the ground that no notice was served, has expired, the petitioner would have seven days from the date of obtaining certified copy of this order to make such an application to the concerned Passenger Tax Officer. In the case the petitioner desires to file an appeal, he may do so within a period of seven days from the date of obtaining a certified copy of this order. 6. Learned Counsel for the petitioner had raised a contention that several other writ petitions raising similar points had been entertained by this Court. One such case referred to was Writ Petn. No. 189 of 1983, Prem Singh v. Passenger Tax Officer, Nainital, That case pertains to a taxi cab. That vehicle was challaned for carrying 13 passengers and the matter was compounded by the driver by payment of Rs. 70/-. The contention was that the passenger tax could not be imposed on taxi cab/motor car. The facts of that case are not similar to the present one. In that case notice had been served on the erring owners of the vehicle and the matter had been compounded by the driver which means that there was an admission that the vehicle was carrying more than six passengers. Further, the admission of a writ petition by a Bench of the Court does not bind another Division Bench from dismissing in limine another writ petition. Further, the admission of a writ petition by a Bench of the Court does not bind another Division Bench from dismissing in limine another writ petition. If the facts in the two writ petitions are exactly the same and they raise common questions of law and facts the admission for hearing of a petition will certainly have a persuasive value on the later Division Bench. However, the admission of a case is not binding as a precedence in every case. As indicated above we are satisfied that the petitioner has two alternative remedies which he has not availed of and it is just and proper that he should avail them first before approaching this Court. 7. We, therefore, dismiss the writ petition with the observations that the petitioner will be entitled to file an application for recalling the order imposing passenger tax, before Passenger Tax Officer within seven days of obtaining a certified copy of this order and may likewise approach, in an appeal, to the Appellate Authority against the order of the Passenger Tax Officer. We order accordingly. There will be no order as to costs.