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2007 DIGILAW 52 (CAL)

Iswar Prasad Bhattacharya v. State

2007-02-01

KALYAN JYOTI SENGUPTA

body2007
Judgment :- (1) THE above writ petition has been filed by the petitioner for the following reliefs: (a) A writ in the nature of the mandamus commanding the respondents concerned, (i) To consider the Annexure "p-1" collectively containing the grievances of the petitioner being an ex-military person for not providing any facilities, amenities and services as per Government rules; (ii) Not to encourage the respondent authorities to extort money from the petitioner; (hi) To consider this instant application on top priority because of rehabilitation venture has been damaged by the respondents; (iv) Prayed for setting aside all the earlier illegal judgments and consider annexure "p-l" collectively for issue of appropriate orders; (v) To follow the Motor Vehicles Act, 1988 and Part-B and Part-C of Schedule-1 of section 3 of West Bengal Additional Tax and One-time Tax on Motor vehicles Act, 1989 and amendment Act, 1992, 2004 and thereto; (vi) Stoppage of registration of omnibuses "contract Carriage", "public service Vehicles" and "idle Bus" without covering any substantive route permit or All Bengal Contract Carriage route permit in accordance with 127 (b) of Government gazette/ notification dated 20th February, 2003; (vii) To stop of issue special permits upon such owner of the vehicles those who are registered in West Bengal and plying in West Bengal and not covered by any substantive route permit; (viii) To stop of realization of double road tax and double additional tax by the respondents; (ix) To refund all the regular road tax and all the regular additional tax with 500% penalty which were illegally realized from the petitioner since the day of registration on 20th February, 1990 to 30th April, 1996; (x) To release the omnibus of the petitioner bearing No. WB-23/0398 with all the accessories in the same condition that was illegally seized on 18th June, 1997 along with issue of permanent route permits from Kolkata to siliguri; (xi) Prayed for urgently interim relief to the petitioner as he is starving with his family members; (xii) Prayed for returning last 15 years of golden age of the petitioner and his family members along with entire damages; (xiii) Prayed for urgently payment of compensation of Rs.5 crore to the petitioner and if the respondent authorities will refund by voluntarily calling all such owner of the vehicles like petitioner and will take necessary action against the concerned Taxing Officers of Motor Vehicles Department of government of West Bengal for all sorts of illegal activities and if otherwise not refunding to all the operators of such vehicles then may kindly be directed to the respondent to pay compensation of Rs. 500 crore from the fund of extortion money to the petitioner; (xiv) Prayed for issue of necessary directions upon the Deputy General manager of West Bengal Financial Corporation to provide compensation immediately, financial assistance as compensation for livelihood of the petitioner and his family members. (b) Prayed for granting priority to the ex-servicemen regarding their resettlement as they are sacrificing by their golden youths to protect our sovereignty also by sacrificing financially as they are getting 8 hours of basic pay whereas engaged in the defence services round the clock being combatant soldiers without any overtime benefits; (c) Prayed for payment of arrears of overtime which may kindly be given to all the ex-servicemen those who have been deprived from their rehabilitation by the State of West Bengal; (d) A writ in the nature of the certiorari calling upon the respondents concerned to produce all the records in connection with the subject-matter of the writ petition before the Honble Court for appropriate order or orders could pass thereupon. (2) AFTER going through the body of the petition for several hours I could gather the relevant fact to which a Law Court can pay attention. Such summarized fact ignoring the allegations made against the learned Judges of this Court is as follows: The petitioner is an ex-serviceman of Indian Air Force after completing his regular engagement on and from 31" August, 1988. He tried his best to get the government service after completing his service. However, on failure of getting any service he opted for financial loan for re-employment under the scheme commonly known as self-employment for ex-servicemen formulated by Ministry of defence, Government of India. In the said scheme the project of the petitioner for obtaining financial loan for carrying on transport business was duly approved. So he obtained loan of a sum of Rs. 5 lakhs sanctioned and released by West Bengal Financial Corporation and purchased a motor vehicle which was registered as WB-23/0398 on 20th February, 1990 by registering authority. The grievance of the petitioner is that no fixed route permit was issued on one hand and on the other hand all the taxes including additional road taxes were realised from the petitioner though he could not ply the vehicle gainfully in any particular route. He had chosen for plying his vehicle in the inter-State route from Calcutta to Puri. The grievance of the petitioner is that no fixed route permit was issued on one hand and on the other hand all the taxes including additional road taxes were realised from the petitioner though he could not ply the vehicle gainfully in any particular route. He had chosen for plying his vehicle in the inter-State route from Calcutta to Puri. The petitioner had to pay all these illegal taxes owing to ignorance of the position of the law. The petitioners vehicle was illegally seized by the Transport Department while the same was on the road and it is kept at Contai Police Station. (3) THE petitioner filed a writ petition in this Court challenging the action of the State Transport Department for realizing the tax in connection with the said vehicle. The said writ petition being C. O. No. 16487 (W) of 1996 was dismissed by the Honble Mr. Justice Samaresh Banerjee as His Lordship then was. Thereafter, an appeal was preferred against the said judgment and order. However, the same was also dismissed by the Division Bench. A review application was made against the said Division Bench judgment and order. However, the said review application was proved to be unsuccessful. Then another writ petition was filed being W. P. No. 7177 (W) of 2003 making the same grievance contained in the earlier writ petition. However, the same was also dismissed. Before that the petitioner filed second writ petition being W. P. No. 3190 (W) of 2002 which was also dismissed. (4) IT is contended in the present writ petition that all the judgments passed by the learned Single Judge and Division Bench have not dealt with and/or addressed the problems and issues canvassed by the writ petitioners. Those judgments are to be recalled on the present writ petition. It is also claimed that the taxes which were realised should be refunded with interest as the State authority has no authority or jurisdiction to impose and/or realise tax on a vehicle which was not plied because of non-issue of permit. Naturally the West Bengal Financial Corporation cannot realize any amount of loan because a vehicle could not be plied. State of West Bengal and its officials viz. respondent nos. 1 to 7 have filed affidavit-in-opposition to oppose the present writ petition. Naturally the West Bengal Financial Corporation cannot realize any amount of loan because a vehicle could not be plied. State of West Bengal and its officials viz. respondent nos. 1 to 7 have filed affidavit-in-opposition to oppose the present writ petition. The General Manager of West Bengal Financial Corporation, respondent No. 8 has also filed affidavit-in-opposition to oppose the present writ petition. (5) THIS writ petitioner appeared in person to place his case made in earlier writ petitions and the present writ petition. Thereafter the writ petitioner sought legal aid from High Court Legal Services Committee and the Committee engaged Mr. Dipak Kumar Ghosh, learned Advocate to appear on behalf of the writ petitioner. (6) IN the body of the petition the writ petitioner made unfounded and unjustified allegations against the judgments in the body of the petition, which were good enough to dismiss the petitioner in limine. But the petitioner by filing supplementary affidavit has withdrawn all the allegations and as such the allegations made in the body of the petition were expunged by an order dated 16th March, 2006. (7) THEREAFTER the matter was heard and argument was advanced. (8) A written notes of argument was filed on behalf of the petitioner. After going through the written argument I find the submission of the writ petitioner which is relevant for the decision of this matter is as follows: the petitioner highlighted the fact mentioned in the writ petition and contended that the State respondents have no authority under the law to realise any road tax or additional road tax under the law, as such, whatever amount has been realised is liable to be refunded as the same was realised illegally. The Motor Vehicles Department has illegally seized the petitioners vehicle at contai on the allegation of non-payment of the illegal tax and the said bus has been kept idle at the police station at Contai under the open sky and the bus is damaged and is being deteriorated in its value. The petitioner applied for temporary permit but in spite of that no permit was issued and as such his livelihood has been jeopardized. This Court passed several orders directing the concerned respondent to issue route permit to the petitioners vehicle but no action has been taken. The petitioner applied for temporary permit but in spite of that no permit was issued and as such his livelihood has been jeopardized. This Court passed several orders directing the concerned respondent to issue route permit to the petitioners vehicle but no action has been taken. According to the writ petitioner the earlier judgments and orders are bad in law as the petitioners case cannot be thrown out on the plea of principle of res judicata. The grievance of the petitioner as mentioned in the instant petition is a separate cause of action and has been filed for violation of Motor Vehicles. Act and also the Additional Tax Act. In the earlier writ petitions the petitioners challenged the validity of the Act. By the instant writ petition the petitioners case is that the petitioner is not liable to pay any tax other than leviable under the Act. It is further contended that even after illegal seizure of the vehicle no action has been taken under the law when there has been no payment of tax for disposal of the vehicle within 20 days from the date of default. It is further contended that the petitioner is not liable to pay any amount on account of repayment of loan to the respondent No. 8 as the petitioner did not ply the vehicle. (9) THE State respondent has not filed any notes of argument, however, filed affidavit-in-opposition. In the affidavit-in-opposition of the State and its officials it is stated that the State respondent is competent to legislate laws relating to motor vehicles. It is also contended that the petitioner time and again filed writ petition vexatiously on the selfsame cause of action and all those writ petitions were dismissed previously. The present writ petition also contains the same grievance and as such the present writ petition is also liable to be dismissed. All the grievances and allegations of the petitioner in the present writ petition have already been adjudicated and/or decided and are deemed to have been decided by this Court both by the learned Single Judge and also by the Division Bench earlier. So this writ petition should be thrown out in limine. According to the State respondent the petitioner is liable to pay all taxes under the provisions of Motor Vehicles Act, 1988 and West Bengal Additional Tax act on Motor Vehicles, 1989. So this writ petition should be thrown out in limine. According to the State respondent the petitioner is liable to pay all taxes under the provisions of Motor Vehicles Act, 1988 and West Bengal Additional Tax act on Motor Vehicles, 1989. Whatever taxes have been, realised by the State authority has been done lawfully and question of refund of the same does not and cannot arise. The vehicle of the petitioner was intercepted by the Motor vehicle Enforcement Branch, Contai on June 18,1997 at 10. 30 a.m. near Local board, Contai vide seizure list No. 190084 while the vehicle was being plied without paying tax and additional tax, without permit for carrying tourist party as a contract carriage under the West Bengal Additional Tax and One-time tax on Motor Vehicle Act, 1989. The contract carriage is within the purview of the additional tax. Question of payability of the tax by the petitioner was finally decided by the Honble Justice Indira Banerjee when Her Lordship was pleased to dismiss the writ petition being W. P. No. 3190 (W) of 2002 with the observation that the issues involved in the writ petition had already been decided by the Honble Justice Samaresh Banerjee (as His Lordship then was) in an earlier writ petition filed by the writ petitioner. The aforesaid order of dismissal of the Honble Justice Indira Banerjee was appealed against and that was also dismissed. (10) THE respondent No. 8 has also filed affidavit-in-opposition and written notes of argument. This respondent is also opposing the writ petition. It is contended by the writ petitioner that West Bengal Financial Corporation sanctioned a sum of Rs. 4. 20 lakh of the Term Loan (Transport) and Rs. 0.84 lakh as Soft Seed Capital Loan in favour of the petitioner. Loans were secured inter alia by hypothecation of the Vehicle (Contract Carriage, Luxury Coach)in favour of the Corporation and repayment of the loan was guaranted by the petitioner. All the terms and conditions of the loans were also accepted by the petitioner in writing by a letter dated 5th January, 1990. The deed of hypothecation was executed in favour of the said Corporation. The petitioner did not keep the Corporation informed about the condition of the vehicle nor was making repaying loan. All the terms and conditions of the loans were also accepted by the petitioner in writing by a letter dated 5th January, 1990. The deed of hypothecation was executed in favour of the said Corporation. The petitioner did not keep the Corporation informed about the condition of the vehicle nor was making repaying loan. After a long time the Corporation came to know that the hypothecated vehicle of the petitioner has been seized by the Motor vehicles Department, Government of West Bengal at Contai, District midnapore. The official of the Corporation wrote to the Motor Vehicles department, Government of West Bengal for release of the vehicle in favour of the Corporation so that it could take necessary arrangement for taking over possession of the vehicle at their end. But the vehicle was not released. Thereafter the Corporation by letter dated 16th April, 2003 called upon the petitioner for repayment of the loan. But the petitioner did not turn up, instead filed the present writ petition. It is said that due to non-payment of dues of corporation by the petitioner the liability on account of the principal amount of loan as well as the interest has come to a figure of Rs. 49,45,207/ -. The respondent No. 8 through learned Counsel has contended that the present writ petition is also hit by the principle of res judicata. (11) I have considered the contentions of all the parties in this writ petition. I have considered the grievance of the petitioner as well as the prayer. It appears to me that issues relating to payability of the tax as agitated by the petitioner cannot be decided by this Court in this writ petition as all the contentions and issues raised in the present writ petition have been adjudicated and/or decided previously by the learned Single Judges on different occasions. No other issue has been left to be decided. The judgments and orders of all the learned Single judges were also appealed against and the Appeal Court also dismissed the appeals. Under such circumstances, this Court cannot reopen or touch any issue. The prayer for setting aside of the earlier judgments passed by this Court is patently absurd and deserves no consideration at all. It was open for the petitioner to challenge the decisions of the Appeal Court before the Honble supreme Court. Under such circumstances, this Court cannot reopen or touch any issue. The prayer for setting aside of the earlier judgments passed by this Court is patently absurd and deserves no consideration at all. It was open for the petitioner to challenge the decisions of the Appeal Court before the Honble supreme Court. Strangely, the petitioner did not take any step to challenge the aforesaid decisions. Those decisions are standing in the way of considering the issues of payability of tax by the petitioner under the aforesaid Acts. Under those circumstances, the prayers made by the petitioner in this regard are rejected. As far as the claim for compensation of Rs. 500 crore and 5 crore are concerned the same cannot be granted by the Writ Court even assuming the same is permissible under the law. It would be open for the petitioner to take appropriate legal measure before the appropriate forum if so advised. Similarly, prayer for returning last 15 years of golden age for the petitioner and member of his family along with entire damage is apparently an absurd prayed and the same cannot be granted at least by the Writ Court and in this regard this court is not making any comment whether this can at all be granted by the law Court or not. Relief for refund of the tax already realised from the petitioner and also the penalty allegedly levied is out of question because the obligation of payability of tax by the petitioner for his vehicle has already been decided by this Court earlier. So this relief cannot be granted. (12) THE bargain between the petitioner and the Financial Corporation is absolutely contractual rights and obligations as the petitioner is bound by the terms and conditions of the deed of hypothecation and those contained in document granting loan. The disputes raised by the petitioner are covered by the said agreement. The petitioner has not challenged the said agreement. There is no dispute that the petitioner has failed to repay the loan amount. As such, the question of giving any direction upon the Deputy General Manager of west Bengal Financial Corporation for compensation or financial assistance for the livelihood of the petitioner does not and cannot arise. The petitioner has not challenged the said agreement. There is no dispute that the petitioner has failed to repay the loan amount. As such, the question of giving any direction upon the Deputy General Manager of west Bengal Financial Corporation for compensation or financial assistance for the livelihood of the petitioner does not and cannot arise. It is not under stood under what provision of the law the said Corporation will give further assistance or compensation to the petitioner as the petitioner fails to establish such rights. The relief sought for against the respondent No. 8 is absolutely absurd and devoid of any sense. (13) BUT I find one grievance of the petitioner necessitating consideration of the Court is that the vehicle of the petitioner has been seized and the same has been kept at Contai Police Station under the open air or sky. Under the provision of the law if the alleged outstanding dues on account of tax is not paid the seized vehicle is liable to be disposed of by auction sale after 30 days from the date of default. In the affidavit-in-opposition of the State it has not been explained what steps have been taken with regard to the said vehicle. Therefore, I direct the Motor Vehicles Department concerned to report to this Court what is the situation and position of the said vehicle and what steps had been taken if at all in the past. Such report shall be submitted within four weeks from the date of receipt of the copy of this order. Let the matter appear as marked to be mentioned on the next date of hearing which is fixed six weeks hence. (14) THUS, the matter is otherwise disposed of except for the aforesaid reasons. (15) LET xerox plain copy of the operative part of this judgment duly counter-signed by the Assistant Registrar (Court) be given to the learned Lawyers for the parties upon making application for obtaining certified copy of this judgment.