Upendra Rai v. State Of Bihar — 1996 DIGILAW 603 (PAT)

Judgment 1. In this writ application, the petitioner has come against the order dated 13/14th December, 1995 passed by the Joint Transport Commissioner, as contained in. Annexure-4 refusing to exempt the road tax and additional tax relating to Truck No. BHF 2631 belonging to the petitioner which was seized on 30th November, 1992 by Ramnagar Police Station and since then it was lying there. 2. The facts of the case lie in a very narrow compass : The petitioner who is a registered owner of the aforesaid truck is said to have paid the road tax and the additional tax till 30th June 1986. The petitioners case was that due to major repairing of the truck and for want of money, the operation of the truck was stopped from 1st July 1986 and all the papers were surrendered to the District Transport Officer, Motihari. The petitioner alleged that since 1st July 1986, the said truck was not plied on road and was lying idle. The petitioner filed application for exemption of the road tax and additional tax before the respondent No. 3, the District Transport Officer, Motihari on 15th December, 1992. A copy of the said application is Annexure-1 to the writ application. Petitioners further case was that after filing of the exemption application, the petitioner filed a writ application in this Court being C.W.J.C. No. 13250 of 1992 for an appropriate direction to the respondents to dispose of the exemption application. The said writ application was disposed of on 12th February, 1993 directing the respondent No. 3 to dispose of the said application within a period of one month. The petitioners further case was that the respondent No. 2 passed an ex parte order refusing to grant exemption and against that order the petitioner again came to this Court in C.W.J.C. No. 4502 of 1993. However, the petitioner alleged that when no order was passed for exemption of tax and additional tax, the petitioner ultimately deposited the entire taxes for the period 1st July, 1986 to 30th November, 1992. The petitioner, therefore, lastly confined his prayer to exempt the road tax and additional taxes only for the period 30th November, 1992 uptil now i.e. for the period the vehicle remained seized in Ramnagar Police Station. The petitioner, therefore, lastly confined his prayer to exempt the road tax and additional taxes only for the period 30th November, 1992 uptil now i.e. for the period the vehicle remained seized in Ramnagar Police Station. The Joint Transport Commissioner, rejected the prayer of the petitioner to grant exemption in payment of road tax and additional tax for the period 30th November, 1992 till date when the vehicle remained in custody of Police. According to the petitioner, the impugned order of the Joint Transport Commissioner is absolutely illegal and mala fide. 3. A counter-affidavit was filed on behalf of the respondent stating inter alia that although the petitioner filed an application for grant of exemption in the payment of road tax and additional tax on the ground that the vehicle was not being plied on the road but on 30th November 1992, the vehicle was seized by Ramnagar Police Station in the district of West Champaran, while plying on the road without any paper and thereafter the exemption application was sent by the petitioner on 15th December, 1992 through registered post. According to the respondents, prior to filing of the exemption application, the vehicle in question was seized by the Police and the said fact was suppressed by the petitioner in his exemption application. It was stated that as the vehicle in question was seized by the Police, while plying on the road without any paper, the petitioner, therefore, is liable to pay taxes with penalty even for the period of non-user of the vehicle. 4. The short question involved in this writ application is as to whether the petitioner is entitled to get exemption in payment of road tax and additional tax for the period when admittedly the vehicle was kept in Police custody after its seizure on the road and whether the impugned order passed by the Joint Transport Commissioner refusing to grant exemption on the ground that the vehicle was lying in the Police custody only after it was seized for plying the vehicle without any payment of any tax and without any valid paper. 5. Mr. Badri Narayan Singh, learned counsel for the petitioner firstly submitted that the very concept of imposing tax on the vehicle is that it uses the road. If the vehicle is not plied on the road, then no tax or additional tax is leviable on the said vehicle. 5. Mr. Badri Narayan Singh, learned counsel for the petitioner firstly submitted that the very concept of imposing tax on the vehicle is that it uses the road. If the vehicle is not plied on the road, then no tax or additional tax is leviable on the said vehicle. The learned counsel submitted that use of road by the vehicle is condition precedent for imposing tax. The learned counsel then submitted that admittedly the vehicle did not use the road for the period 30th November, 1992 when the vehicle was seized by the Police and till date when admittedly the vehicle is lying in the Police custody. In this connection, the learned counsel relied on the decisions in Bolani Ores V/s. State of Orissa, reported in AIR 1975 SC 17 : (1975 Tax LR 1208), South Chhotanagpur, Bihar Motor Transport Fed. V/s. State of Bihar, reported in 1991 BBCJ 390 and in Kapildeo Singh V/s. The State of Bihar, reported in 1993 (1) PLJR 295. 6. Mr. Satish Chandra Jha, J.O. to G.P. IX on the other hand submitted that the Joint Transport Commissioner rightly rejected the application filed by the petitioner for exemption of payment of tax for the period when the vehicle was lying in the custody of Police. The learned counsel submitted that the petitioner without getting the vehicle released from the Police custody sent the exemption application dated 15th February, 1992 by post and thereafter filed a writ application. According to the counsel the petitioner virtually filed the aforesaid exemption application without disclosing the fact that the truck in question was seized by the Police on 30th November, 1992 while plying on the road without any paper. 7. Before appreciating the rival contention of the learned counsel for the parties, it is necessary to look into the relevant provisions of the Bihar Motor Vehicles Taxation Act, 1938 which was applicable during the relevant period when the vehicle was seized by the Police. 8. The Motor Vehicle Taxation Act (hereinafter to be referred to as the said Act) was enacted to impose the tax on motor vehicles in Bihar. Sec. 6 of the said Act reads as under :Section 6 : Imposition of tax. 1. 8. The Motor Vehicle Taxation Act (hereinafter to be referred to as the said Act) was enacted to impose the tax on motor vehicles in Bihar. Sec. 6 of the said Act reads as under :Section 6 : Imposition of tax. 1. As from the first day of January, 1931, and after that date, there shall be paid on every motor vehicle a tax at the rate specified in the Second Schedule to this Act. 1 A. As from the first day of April, 1983 and after that date there shall be paid annually by the registered owner or person having possession or control of every public service motor vehicle an additional motor vehicle tax at the rate specified in the Third Schedule of this Act.(2) The tax shall be paid annually by the registered owner or person having possession or control of the Motor Vehicle provided that the tax may be paid-(i) for one or more quarterly periods, on payment for each such quarterly period of one quarter of the annual rate of the tax.(ii) for any period less than a quarterly period expiring on the last date of any quarterly period, on payment of one-twelfth of the annual rate of the tax for every month or part of a month included in such period.(iii) for one month, commencing from the date of registration at the rate of one-twelfth of the annual rate of the tax where the motor vehicle is temporarily registered under Sec. 25 of the Motor Vehicles Act, 1939 (IV of 1939) : Provided further that in case of a motor vehicle temporarily registered under Sec. 25 of the Motor Vehicles Act, 1939 only one-twelfth of the tax payable for the year shall be payable in respect of such vehicle so registered. In case of renewal of temporary registration under proviso to Sec. 25 of the abovementioned Act, tax at the rate of one-twelfth payable for the year shall be payable on each renewal of the temporary registration." (3) The taxing officer shall grant to every person who pays tax or extra tax under subsection (2) of Sec. 9, or additional motor vehicle tax under Sec. 6(1A) in respect of any motor vehicle or public service motor vehicle :(a) receipt in which shall be specified the particulars of the tax, extra tax, or additional motor vehicle tax paid and such other particulars as may be prescribed; and (b) A tax token in the prescribed form, provided that in case of public service motor vehicle no token for extra tax paid shall be granted unless the additional motor vehicle tax due has been paid." 8A. The other relevant provision of the said Act is Sec. 9A which reads as under :Section 9A:"(1) Where the Taxing Officer, is, on an application accompanied by an affidavit of the owner of a motor vehicle or public service motor vehicle is satisfied after due enquiries as prescribed by the State Government that a motor vehicle has not been used in Bihar for a continuous period of not less than one calendar month since the tax or the instalment of tax was last paid, he may exempt the owner of a motor vehicle or public service motor vehicle from payment of arrears of tax and additional Motor Vehicle tax and write off the amount of such arrears upto a maximum of Rs. 2000.00 under intimation to the State Transport Commissioner, and where the amount of arrears of such tax exceeds rupees two thousand refer the matter to the State Transport Commissioner or to any Officer authorised by the State Government not below the rank of the Assistant State Transport Commissioner for a decision.(2) The State Transport Commissioner, or any Officer authorised by the State Government not below the rank of the Assistant Transport Commissioner to whom any matter has been referred by the Taxing Officer under Sub-sec. (1) may, if satisfied that the motor vehicle has not been used for a continuous period of not less than one calendar month since the tax or the instalment of the tax was last paid, exempt the owner of the motor vehicle from payment of arrears of tax and additional motor vehicles tax and write off the amount of such arrears or part thereof.(3) Notwithstanding anything contained in the preceding sub-sections, where it comes to the notice of the State Government, the State Transport Commissioner or any other Officer prescribed that exemption and writing off has been secured by any motor owner by misrepresentation of facts or fraud, the State Government or the Transport Commissioner or the authority prescribed may supersede the orders regarding writing off or exemption, as the case may be, and institute fresh proceeding for the recovery of such amount together with a penalty that may exceed to one hundred percent of the amount exempted/ written off, as the case may be." 9. From the perusal of the aforesaid provision of the said Act, it is evident that tax is payable by every person having possession or control of the motor vehicle irrespective of the fact whether the vehicle was plied or not unless exempted for payment of tax on fulfillment of conditions provided under Sec. 9A of the said Act. In Belani Ores Ltd. V/s. State of Orissa (supra) the question for consideration before the apex Court was as to whether dumpers, rockers and tractors are motor vehicles within the meaning of relevant Motor Vehicle Taxation Act and accordingly taxable thereunder. Their Lordships held that a motor vehicle which is not adapted for use upon road to which the public have no right of access is not a motor vehicle within the meaning of Sec. 2(18) of the Motor Vehicles Act. In other words, those vehicles which although are registerable under the Motor Vehicles Act are not taxable under the said Act as they are working under the premises of their respective owners. This decision, in my opinion, therefore, does not help the petitioner for deciding the question involved in this writ application. 10. The learned counsel also relied upon the decision in South Chotanagpur, Bihar Motor Transport Fed. V/s. State of Bihar (supra). This decision, in my opinion, therefore, does not help the petitioner for deciding the question involved in this writ application. 10. The learned counsel also relied upon the decision in South Chotanagpur, Bihar Motor Transport Fed. V/s. State of Bihar (supra). In that case, an order issued by the State Transport Commissioner, Bihar was challenged by which the Transport Commissioner directed all the District Transport Officers to accept surrender of licence on certain specified conditions. A Division Bench of this Court allowing the writ application observed : "It is now well known that a citizen has a fundamental right to carry on a business in terms of Article 19(1)(g) which includes a right not to carry on business. See Excel Wear V/s. Union of India, AIR 1979 SC 25 : (1978 Lab IC 1537). It would, therefore, be evident that if a person does not intend to carry on any business in transporting goods or passengers by means of a public service motor vehicle, he cannot be made liable to pay any road tax in terms of the provisions of the said Act.Only with that end in view, Secs. 7 and 9A of the Act have been enacted. In terms of Sec. 7 a person is entitled to refund of tax when he produces a certificate signed by the Taxing Officer stating that the tax token granted in respect of the vehicle has been surrendered.From a perusal of Sec. 9A of the said Act, it would appear that in terms of subsection (1) of Sec. 9A, the Taxing Officer exercises a quasi judicial function and by reason of Sub-sec. (3) thereof, the State Government or the Transport Commissioner has been empowered to supersede such an order in the event it comes to its knowledge that exemption and writing off has been secured by any owner by misrepresentation of fact or fraud. The power of the State Government or the Transport Commissioner under Sub-sec. (3) of Sec. 9A of the said Act being statutory in nature, the same can be exercised only in independent case if the conditions precedent therefor exist. The said provision, therefore, also do not empower the respondent No. 2 to issue a general instruction as contained in Annexure-3 to C.W.J.C. No. 1221 of (9)(sic)(R) and C.W.J.C. No. 2172/88(R)." 11. (3) of Sec. 9A of the said Act being statutory in nature, the same can be exercised only in independent case if the conditions precedent therefor exist. The said provision, therefore, also do not empower the respondent No. 2 to issue a general instruction as contained in Annexure-3 to C.W.J.C. No. 1221 of (9)(sic)(R) and C.W.J.C. No. 2172/88(R)." 11. In Kapildeo Singh V/s. State of Bihar (supra), the question was as to under what circumstances, an owner is entitled to be exempted from payment of Motor Vehicle Tax. The fact of that case was that the petitioner surrendered documents before the District Transport Officer, Gaya on 1st July, 1989 as the condition of the bus was badly deteriorated and required major repairing. In June, 1991, the bus was repaired and he got a permit from the Regional Transport Authority on 22nd June, 1991. The petitioner applied for exemption from payment of road tax and additional road tax in respect of the said vehicle for the period 1st July, 1989 to 31st May, 1991. The said exemption application was rejected by the Transport Commissioner taking into consideration that the vehicle was caught plying on 1st July, 1991 by the Special Judicial Magistrate at a place named Kusma. In that case exemption was not claimed for the period when the vehicle was caught plying on the road and for the period when it was in the custody of Police rather it was found that prior to seizure of the vehicle, the petitioner appeared to have deposited the road tax and additional road tax. For that reason, this Court remitted the matter to the Transport Commissioner for re-consideration. This decision, therefore, in my opinion, also does not help the petitioner as the period for which exemption was claimed was different. 12. As noticed above, Sec. 9A of the said Act very clearly lays down the conditions under which an owner can be exempted from payment of road tax. This decision, therefore, in my opinion, also does not help the petitioner as the period for which exemption was claimed was different. 12. As noticed above, Sec. 9A of the said Act very clearly lays down the conditions under which an owner can be exempted from payment of road tax. It is well settled that if the owner of the vehicle did not use the vehicle for a temporary period, for mechanical defect or breakdown, he should inform the Taxing Officer and in such a case he may not be liable to payment of tax for that period, if other conditions are fulfilled otherwise the owner is bound to pay the tax and tax taken cannot be issued unless up-to-date road tax and additional tax are paid by the owner of the vehicle. 13. In a case before the Supreme Court in Taxing Officer, Kalahandi V/s. Ajit Singh, reported in 1987 PLJR 52 (SC), the question before their Lordships was as to when the owner was liable to pay tax. The fact of the case before the Supreme Court was that penalty was imposed by the Transport Authority under Sec. 12A of the Bihar and Orissa Motor Vehicles Taxation Act, for not paying tax for the month of January, 1966 when the tax was due. The said order imposing penalty was challenged before the Orissa High Court. The High Court took the view that penalty could not be imposed unless there was a finding of the Regional Transport Officer that the vehicle had actually been plied in January, 1966. The matter went to the Supreme Court and their Lordships upholding the order of the Transport Authority observed as under : "We are afraid that the conclusion of the High Court cannot be sustained in view of the provisions of the Bihar and Orissa Motor. Vehicles Taxation Act, 1930, Sec. 6(2) of the Act requires that the tax shall be paid only by the person who keeps motor vehicle for his use. What is necessary to be proved or to be found is that vehicle is kept for use and not that it is actually plied on the road. Vehicles Taxation Act, 1930, Sec. 6(2) of the Act requires that the tax shall be paid only by the person who keeps motor vehicle for his use. What is necessary to be proved or to be found is that vehicle is kept for use and not that it is actually plied on the road. If any owner of a motor vehicle does not intend to use the vehicle for a temporary period, he may intimate the Taxing Officer under the provision of Sec. 9A of the Act in which case he would not be liable for payment of tax for the relevant period if the conditions prescribed under Sec. 9A of the Act are fulfilled. It was not the case of the owner of the motor vehicle that the vehicle was not kept for use and that intimation has been given to the Taxing Officer under Sec. 9A of the Act. The owner of the vehicle was under an obligation to pay tax for January, 1966. If he was under an obligation to pay the tax and had committed default in payment of tax, Sec. 12A would be immediately attracted and he would be liable to pay the prescribed penalty." 14. In the instant case, admittedly the vehicle was seized on 30th November, 1992 when it was being plied on the road without any valid documents and without any payment of road tax and remained in the custody of the Police as the petitioner did not take step for the release of the vehicle. In my opinion, during the period when the vehicle was seized and remained in the custody of the Police, it cannot be said that the vehicle was not fit for use on the road. In other words, the owner cannot be allowed to take the plea that because of break down or mechanical defect or any other defect, the vehicle was not used on the road for the period when it remained in the custody of the Police. In such circumstances, there is no question of granting exemption to the owner of the vehicle from payment of road tax or the additional tax. In such circumstances, there is no question of granting exemption to the owner of the vehicle from payment of road tax or the additional tax. The Joint Transport Commissioner by the impugned order rightly held that the question of grant of exemption does not arise as the vehicle was not used by the petitioner on account of its seizure by the Police for using the said vehicle without any valid document and payment of road tax and additional tax. 15. For the reasons aforesaid, I am of the opinion that the order dated 14th December, 1995 passed by the Joint Transport Commissioner is perfectly legal and valid and the petitioner is not entitled to any relief in this writ application. 16. This writ application is accordingly dismissed. There shall be no order as to cost.Application dismissed.