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2002 DIGILAW 191 (CAL)

Pradip Kumar Gupta v. State of West Bengal

2002-03-18

Ashim Kumar Banerjee

body2002
JUDGMENT Ashim Kumar Banerjee, J.: Writ petitioner's vehicle having Bihar registration was seized by the authority because of plying within the State without having any valid permit. Writ petitioner had been charged with fine as well as the penalty on the basis of a Government Order No. 16887 dated October 8, 1990. Break up of the said Rs. 71,450.00 assessed by the taxing officer is as follows:- Road Tax … Rs. 1,071.00 Additional … Rs. 34, 654.00 Penalty (under Motor Vehicles Tax Act) … Rs. 1,071.00 Penalty (under Motor Vehicles Tax Act) … Rs. 34,654.00 Total - … Rs. 71,450.00 The concerned circular appearing at page 24 of the writ petition is quoted below:- "From : Shri S. Chowdhury, IAS Jt. Secy, To the Govt. of West Bengal To : 1) The Taxing Officer, 2) The Regional Transport Officer No.: 16887 () - WT/6M-42/89 Pt. Calcutta, the 8th October, 1990 Sir, I am directed to say that the Taxing Officer, Asansol has sought for clarification regarding collection of Additional Tax, M. V. Tax in respect of vehicles registered in any State outside West Bengal but plying within the State of West Bengal without any valid permit. It was earlier clarified in this deptt. G. O. No. 14918-WT dt. 11th September, 1989 that Additional Tax for a minimum period of 17 (seventeen) weeks shall be recovered from the owners of such vehicles from the date of detection. It is now clarified that in respect of vehicles registered in any State other than the State of West Bengal but plying within West Bengal without any valid permit and without payment of any tax, requisite amount of Additional Tax as well as regular Motor Vehicles Tax for a minimum period of 17 (seventeen) weeks together with usual penalties shall be recovered henceforth from the date of detection. Regarding violation of provision of section 192 of the Motor Vehicles Act, 1988, (plying of vehicles without permit) separate compounding of offence shall also be initiated under existing orders. Yours faithfully, Sd/- S. Chowdhury. Jt. Secretary to the Govt. of West Bengal." 3. Short question before me is as to whether the Taxing Authority could assess the fine on the basis of a Government Order without having any statutory support. 4. Mr. Yours faithfully, Sd/- S. Chowdhury. Jt. Secretary to the Govt. of West Bengal." 3. Short question before me is as to whether the Taxing Authority could assess the fine on the basis of a Government Order without having any statutory support. 4. Mr. Dilip Samanta, learned counsel, in support of the petition, had drawn my attention to the relevant provisions of the West Bengal Motor Vehicles Tax Act and West Bengal Motor Vehicles Additional Tax Act. Section 4(2b), sections 18(7), (8) of the West Bengal Motor Vehicles Tax Act, 1979 are relevant herein and quoted below:- "Section 4(2b):–– In the case of a motor vehicle registered outside West Bengal, whether temporarily under [section 43 of the Motor Vehicles Act, 1988,] or otherwise and which is used or kept for use in West Bengal temporarily, tax shall be payable for every week or part thereof for which the motor vehicle is so used or kept for use in West Bengal, at the rate of one-fifty second part of the tax payable for the year, per week. Section 18(7):–– Any person who drives any motor vehicle in respect of which the tax has not been paid shall be punishable with a fine which may extend to one thousand rupees. Section 18(8):–– (a) Any offence punishable under this section, whether committed before or after the commencement of the West Bengal Motor Vehicles. Tax (Amendment) Act, 1992, may, either before or after the institution of the prosecution be compounded by such officers or authorities and for such amount as the State Government may, by notification in the Official Gazette, specify in this behalf. (b) Where an offence has been compounded under clause (a), the offender, if in custody shall be discharged and no further proceedings shall be taken against him in respect of such offence." 5. Section 23 of the West Bengal Motor Vehicles Additional Tax Act, 1989 is also relevant herein and is quoted below:–– "23. Penalty.–– Whoever contravenes any provision of this Act or of any rules or orders made thereunder shall, if no penalty is provided for such contravention, be punishable for the first offence, with the fine which may extend to three hundred rupees and, for any second or subsequent offence, with fine which may extend to five hundred rupees." 6. Relying on the aforesaid three sections Mr. Relying on the aforesaid three sections Mr. Samanta submitted that the said provisions did not permit the State to realise the tax for 17 weeks and the said Government Order being contrary to the provisions of the statute was not enforceable in law and the tax imposed by the authority on the basis of the said order was without any authority of law and is liable to be quashed and set aside. Mr. Samanta further submitted that the authority had power to impose such tax and penalty from the date when the vehicle was seized and not for 17 weeks as had been done in the instant case. 7. Mr. N. I. Khan, learned counsel appearing for the State, relying on the decision of this court reported in 1997, Volume-11, Calcutta Law Journal, Page-91 submitted that this court had already held that when the statute was silent on a point the Government can issue Government Orders to supplement the statute. Relevant paragraph of the said judgment relied on by Mr. Khan is quoted below:–– "In absence of any statutory provision to deal with such a situation Government Order can be issued for supplementing and filling up of the gap in the statutory provision although certainly it can never override the statutory provision." 8. To resolve this issue section 4(2)(c) of the West Bengal Motor Vehicles Tax Act, 1979 and section 3(2)(c) of the West Bengal Motor Vehicles Additional Tax Act, 1989 are relevant herein and quoted below:–– "Section 4(2)(c):–– In the case of a transport vehicle registered in any State other than West Bengal but plying within West Bengal without valid permit and without payment of tax payable in West Bengal under this Act, the duration of such plying shall, notwithstanding anything contained in this section or elsewhere in this Act, be reckoned as a period of seventeen weeks prior to the date of interception, and such transport vehicle shall be liable to pay arrear tax at the rate specified in Part II under the sub-heading 'B. Vehicles for carrying passengers plying for hire or reward.' Under the heading 'Description of Motor Vehicles and Rate of Tax' in the Schedule, for a period of seventeen weeks from the date of every interception of the transport vehicle together with a fine of an equivalent sum. Section 3(2)(c):–– Where transport vehicles registered in any State other than West Bengal are found to be plying within West Bengal without valid permit or without payment of additional tax payable under this Act, the duration of such plying shall, notwithstanding anything contained in this section or elsewhere in this Act, be reckoned as the duration for a period of seventeen weeks retrospectively from the date of interception and such transport vehicles shall be liable to pay additional tax at the rates specified in item (f) of serial 2 under the heading 'B. Motor Vehicles (for carrying passengers) plying for hire.' In Schedule I for a period of seventeen weeks retrospectively from the date of every interception of the transport vehicle together with a fine of an equivalent sum." 9. The said two provisions had been inserted by way of amendment in 1999 with retrospective effect from October 8, 1990. With all humility I respectfully disagree with His Lordship's view taken in the case of Taklal vs. State (supra). Until and unless statute confers specific power on the State any notification or Government Order can not supplement the statute inasmuch as the power conferred upon the Government is derived only from the statute. However, that question has now become academic in view of the recent amendment in the year 1999. Now that the statute has granted power to impose such penalty @ 17 weeks and since such provision although came by way of amendment in 1999 had been made with retrospective effect from October 8, 1990 the action on the part of the respondent authority as on date is valid and binding upon the petitioner. It is true that on the day when the order was passed by the authority, the authority did not have any such power. However, such action of the authority had been ratified with retrospective effect by amending the statute. 10. Although the order impugned was bad on the day when the same was passed I hold the said order to be valid and binding upon the petitioner as on date in view of the subsequent amendment of the statute. Writ petition thus fails and is hereby dismissed. There would no order as to costs. Urgent xerox certified copy will be given to the parties, if applied for. Writ petition dismissed.