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Madhya Pradesh High Court · body

2007 DIGILAW 1212 (MP)

PRAKASH CHANDRA PUROHIT v. TRANSPORT COMMISSIONER

2007-11-22

S.K.SETH

body2007
Judgment S.K.Seth, J. ( 1. ) This order shall also govern the disposal of W.P. No. 5544/2006 as the facts and issues involved in both writ petitions are similar. For the sake of convenience, relevant facts are noticed from the above writ petition. ( 2. ) Petitioner, at the relevant time, held an All India Permit in Form M.P.M.V.R.- 54 (T.V.P.) for an Omni Bus (Video-Coach) bearing registration No. M.P.39/F 000.7. In the morning of 4.7.2005 said vehicle was checked and seized vide Panchnama and seizer memo Annexure P-2 and P-3 respectively. Thereafter proceedings were initiated under Section 16 of the M.P. Motoryan Karadhan Adhiniyam, 1991 and a notice was served upon petitioner to show cause against recovery of penal tax @ Rs. 1500 per seat amounting to Rs. 52,500/- as if the vehicle was plying without permit. Petitioner submitted reply to the show cause notice but the Taxation Authority being unsatisfied with the reply, ordered petitioner to pay Rs. 52,500/- as penal tax vide Annexure P-7. It seems that against Annexure P-7, petitioner directly filed a writ petition (WP No. 288/05) in this Court. Said WP was disposed off on 18.9.2005 Annexure P-8. Pursuant to aforesaid order, petitioner preferred an appeal. By the order impugned, appeal preferred by the petitioner was dismissed by Appellate Authority, respondent No. 1. Hence this writ petition. ( 3. ) Petitioner himself argued his case and submitted that in absence of breach of statutory provisions or permit conditions, not only the seizure of the vehicle, but also the levy of penal tax was bad in law. He invited attention to the list of passengers drawn up at the time of checking and seizure of the vehicle in support of contention that all passengers were traveling from Machalpur to Indore and in between no passenger was picked up or set down during the journey. Therefore, it could not be said that the vehicle was plying without permit and without payment of tax. Per contra, learned Government Advocate appearing for respondents justified the levy of penal tax. ( 4. ) After having heard arguments at length, we are of the view that both writ petitions deserve to be allowed. ( 5. ) It is now well settled that the Motor Vehicle Act, 1988 and rules made thereunder are self contained complete code. Per contra, learned Government Advocate appearing for respondents justified the levy of penal tax. ( 4. ) After having heard arguments at length, we are of the view that both writ petitions deserve to be allowed. ( 5. ) It is now well settled that the Motor Vehicle Act, 1988 and rules made thereunder are self contained complete code. The Parliament while enacting the Motor Vehicle Act, 1988 however refrained from indicating any principle of taxation and field was left open to State Legislatures by virtue of Entry 57 of State List of Vllth Schedule to the Constitution. The State Government for the said purpose, enacted the M.P. Motoryan Karadhan Adhiniyam, 1991. Section 3 is the charging section and provides for levy of tax on every motor vehicle used or kept for use within the State at the rates specified in the First Schedule. The Schedule was amended by the M. P. Motoryan Karadhan (Sanshodhan) Adhiniyam 2004. Sub-item (g) of Item IV relating to Public Service Vehicle was amended in the following terms :- "(g) Motor plying without permit A. Vehicle permitted to carry up to 12 passengers (excluding driver) Rs.1000.00 per seat per month in accordance with the entire registered seating capacity. B. Vehicle permitted to carry more than 12 passengers (excluding driver) Rs.1500.00 per seat per month in accordance with the entire registered seating capacity." ( 6. ) At the instance of holders of- contract carriage permit the validity of the aforesaid amendment read with Explanation 7 of the First Schedule came up for consideration of Supreme Court in Hardeo Motor Transport Vs. State of M.P. reported in 2007 AIR SCW 556. Their Lordships of the Supreme Court after exhaustive analysis of the case law, declared the clause (g) of entry IV of the First Schedule as amended by M.P. Motoryan Karadhan Sanshodhan Adhiniyam, 2004 read with Explanation (7) of the First Schedule unconstitutional. It is not in dispute that petitioner also holds a contract carriage permit. It is not case of the respondents that he has not paid the tax or he was plying his vehicle on unauthorized route. It is only by virtue of Clause (g) as amended by the Sanshodhan Adhiniyam, read with Explanation (7) of the First Schedule respondents had initiated the action for levy of penalty. It is not case of the respondents that he has not paid the tax or he was plying his vehicle on unauthorized route. It is only by virtue of Clause (g) as amended by the Sanshodhan Adhiniyam, read with Explanation (7) of the First Schedule respondents had initiated the action for levy of penalty. Since the provisions have been declared unconstitutional, therefore the impugned order is unsustainable and deserves to be quashed. In the result the writ petition is allowed however, without any orders as to costs. Let a copy of this order be retained in record of the W.P. No. 5544/2006. ( 7. ) Order accordingly. Order passed accordingly.