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2007 DIGILAW 546 (PAT)

Surendra Sharma v. State Of Bihar

2007-03-16

AFTAB ALAM, REKHA KUMARI

body2007
Judgment Rekha Kumari, J. 1. This application under Article 226 of the Constitution of India has been filed by the petitioner Surendra Sharma for quashing the order dated 6.9.1999 passed by the Member Board of Revenue, Bihar in Case No. 15-A of 1999 dismissing the revision petition of the petitioner against the order of the Secretary, Department of Transport dated 16.6.1997 in Appeal No. 66 of 1996 under which he has affirmed the order dated 16.9.1996 passed in Case No. 23 of 1996 by the Joint State Transport Commissioner, Patna rejecting the application of the petitioner for grant of exemption of taxes with effect from 1.10.1990 till date in respect of the mini-bus bearing registration No. BPQ-5455 belonging to him. 2. Learned counsel for the parties were heard. 3. The case of the petitioner is that he is the owner of the above bus. The tax of the bus was paid upto 30.9.1990. However, on 20.9.1990 the vehicle was badly damaged in anti-reservation movement at Jamaldih Chowk (Danapur). The petitioner contacted the police station, but it refused to lodge the first information report. On 24.9.1990 the vehicle was taken to Tewary Bechar & Company, Kankarbagh for repair by. towing it through a truck. On 25.9.1990 an information was given to the District Transport Officer, Patna (respondent no. 5) by post regarding the accident and the place where the vehicle had been parked and thereafter request was made to respondent no. 5 from time to time for inspection of the vehicle, but no action was taken by the respondent. After repair of the engine on 21.3.1993 the vehicle was shifted in the garrage of Lucky Body Builders in Kankarbagh for repair of body, and an information to this effect was also given to respondent no. 5. After repair of the body, the petitioner submitted an application to respondent no. 5 for exemption of tax for the period from 1.10.1990 which was not accepted saying that it should be sent by registered post. Hence, the petitioner sent an exemption application by registered post, but the respondent refused to receive the same also. The petitioner, hence, filed C.W.J.C. 6578 of 1993 for a direction by the High Court for disposal of the exemption application. The High Court, by order dated 8.10.1993 directed the petitioner for filing a fresh exemption application before the District Transport Officer. The petitioner, hence, filed C.W.J.C. 6578 of 1993 for a direction by the High Court for disposal of the exemption application. The High Court, by order dated 8.10.1993 directed the petitioner for filing a fresh exemption application before the District Transport Officer. In compliance of that order, he sent a fresh exemption application by registered post on 1.2.1994, but the respondent refused to accept the same, and the application returned unserved on 4.2.1994. The petitioner, hence, again filed a writ petition (C.W.J.C. No. 2815 of 1994) and by order dated 11.8.1994 the High Court directed him to handover a fresh exemption application alongwith an affidavit to the Government Pleader No. IX for service to respondent no. 5. The petitioner, however, fell seriously ill and so could not come to Patna for a year to obtain the order of the Court. After recovery, on 8.2.1996 he filed an application for exemption of taxes for the period 1.10.1990 to 21.12.1995 during which the vehicle was off the road, through registered post. In the meantime on 22.12.1995 the vehicle was seized from his residence, where it was parked, for non-payment of tax and kept at Bihta police station for safe custody. Thereafter the District Transport Officer issued a demand notice through his letter no. 753 dated 16.3.1996 (Annexure-10) directing him to deposit the tax for the period 1.10.1990 to 22.5.1996 amounting to Rs.1,27,169.00 after rejecting his prayer for exemption of tax on the ground that the application was not in accordance with law inasmuch as the provisions of Sec.17 of the Bihar Motor Vehicles Taxation Act, 1994 (hereinafter referred to as the Act of 1994) and Rule 13 of the Rules and also the direction of State Transport Commissioner letter no. 3106 dated 20.12.1990 were not complied with. 4. The further case of the petitioner is that the Act of 1994 is not applicable in this case and so the demand of the respondent no. 5 is illegal. The intention of respondent no. 5 is also not fair. As per the order of the High Court dated 8.10.1993 he was requested at first to make an enquiry on the application, but without making any enquiry he transmitted the record to the Transport Commissioner. It is further said that as per delegated power, the exemption application was ordered to be heard by the Joint State Transport Commissioner (respondent no. 4). It is further said that as per delegated power, the exemption application was ordered to be heard by the Joint State Transport Commissioner (respondent no. 4). He fixed the matter for hearing on 22.5.1996 after giving notice, but on 22.5.1996 the application could not be heard. However, without giving any intimation to the petitioner of the next date fixed, on 14.6.1996 he (respondent no. 4) passed an ex parte order rejecting his application, without looking into the record and applying his mind. The order of respondent no. 4 was challenged in appeal before the Secretary, Department of Transport (Respondent no. 3) but the appeal was dismissed. The petitioner, hence, preferred revision against the order of respondent no. 3. The revision was heard by the Member, Board of Revenue (respondent No. 2) who dismissed the revision application without deciding the point raised by the petitioner. 5. It is also the case of the petitioner in the supplementary affidavit that he had no knowledge of the impugned order and he came to know about it only on 17.5.2006 when notice under section 7 of the Public Demand Recovery Act was received by him and he then filed this writ petition. 6. Learned counsel for the petitioner submitted that the exemption application has been rejected by the impugned order (Annexure-13) on the ground that the vehicle was not surrendered as prescribed under the law, nor the parking place was declared, and no enquiry was done as prescribed. He further contended that though in that order the provision of law prescribing the above provisions, has not been mentioned, the appellate order (Annexure-12) would show that the appeal was dismissed "as there was no sufficient material for satisfaction under section 9-A of the Bihar & Orissa Motor Vehicles Taxation Act, 1930 (hereinafter referred to as the Act of 1930) with regard to the nonuser of the vehicle, but Section 9-A of the Act of 1930 does not provide for surrender of the vehicle or information about the place of parking etc., and, therefore, there was no non-compliance of the provisions of Section 9-A of the Act of 1930. 7. 7. He further submitted that the procedure for enquiry to be conducted by the Taxing Officer under section 9-A of the Act of 1930 in matters of exemption of the motor vehicle tax in cases of nonuser was provided by the Government of Bihar, Transport Department notification on 7.12.1991 which was published in the Bihar Gazette on 23.3.1992 (Annexures 14 & 14/1) and in that notification for the first time it was provided that the affidavit accompanying the intimation given by the owner of the vehicle about non-use of the vehicle would mention the place where the vehicle would be parked during the period of non-use, and that the application was also to be accompanied by registration certificate, fitness certificate, then current, if any, tax token, then current, certificate of Insurance of the motor vehicle and road permit. So, prior to that notification there was no need of sending intimation about the place of parking or enclosing the above documents with the application for exemption and the petitioners case with regard to the exemption is from 1.10.1990. Therefore, according to the learned counsel though Section 9-A of the Act of 1930 is applicable in this case, the notification is not applicable in this case and so, the impugned order is illegal. 8. Learned counsel further submitted that the order of the Joint State Transport Commissioner would show that he has rejected the application of the petitioner as according to him, the exemption application was not filed in accordance with the provisions of Sec.17 of the Act of 1994 and Rule 13 of the Rules framed thereunder, as the vehicle was not surrendered as prescribed nor the place of parking was declared, nor the vehicle was got inspected, but the Act of 1994 came into force on 20.4.1994 and so, the above provisions of this Act is also not applicable in this case. 9. Learned counsel relied on the Division Bench decision of this Court passed in C.W.J.C. No. 11182 of 1993 (Nirmal Kumar Singh vs. State of Bihar and Others), a copy of which is Annexure-15 to show that the notification issued under section 9-A of the Act of 1930 and the Act of 1994 are not retrospective and not applicable in this case. 10. 10. Learned counsel also submitted that the vehicle was seized by the Enforcement Sub-Inspector on 22.12.1995 and since then it is in police custody and that the petitioner is not liable to pay tax for the period during which the vehicle remained in police custody as no tax is payable during that period. In support of this submission he relied on a decision passed in L.P.A. No. 413 of 1997 by a Bench of this Court (Indradeo Singh vs. State of Bihar), a copy of which is Annexure-16 to this application. 11. In order to appreciate the submissions of the learned counsel, it may be pointed out that though the petitioner has claimed that after the vehicle became incapable of use on 20.9.1990, the petitioner on 25.9.1990 filed an application by post and then in obedience to the order dated 8.10.1993 passed in the writ petition, he sent another application for exemption of tax by registered post, the appellate order (Annexure-12) would show that such applications were not received in the department. The respondent no. 3 has also raised doubt about the filing of those applications and has given cogent reasons for the same. 12. Therefore, the exemption application which falls for consideration is the application dated 7.2.1996 received in the office of respondent no. 5 on 15.2.1996 sent by registered post after more than one year in response to the order dated 11.8.1994 passed in C.W.J.C. No. 2815 of 1994. The-impugned order also shows that this application of the petitioner was the subject matter of consideration by the respondents. 13. The main question in this case is whether Section 9-A of the Act of 1930 as obtained prior to the Government notification or after the coming into force of the notification or the Act of 1994, is applicable in this case. 14. I he argument of the learned counsel as already mentioned, is that Section 9-A of the Act of 1930 which was in force prior to the notification issued thereunder prescribing procedure, would be applicable in this case and as already mentioned he has relied on a decision of this Court in Nirmal Kumar Singh vs. State of Bihar in this regard. 15. Section 9-A of the Act of 1930 as amended in 1982 reads thus: "9A. 15. Section 9-A of the Act of 1930 as amended in 1982 reads thus: "9A. (1) Where the Taxing Officer 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. 2,000.00 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." 16. It would thus appear that Section 9-A of the Act of 1930 does not provide for surrendering of the vehicle or any information regarding the place of parking etc. for which the application of the petitioner has been rejected. In the case of Nirmal Kumar Singh (supra) prayer was made for exemption of tax from 1.1.1989 to 31.3.1990. The Division Bench, hence, held that as the notification under section 9-A of the Act of 1930 came into force thereafter, the same would not be applicable in the case as by its nature it cannot have the retrospective effect. 17. In our opinion, that decision is not applicable in this case. In that case the Bench was comparing the provisions of Section 9-A as applicable in the State of Orissa with Section 9-A as applicable in the State of Bihar, and held that as in the State of Orissa, under section 9-A there were provisions for giving information regarding the place of parking etc. and there was no such provision under section 9-A as applicable in the State of Bihar, the exemption application could not be rejected on any of those grounds. and there was no such provision under section 9-A as applicable in the State of Bihar, the exemption application could not be rejected on any of those grounds. Incidentally, it was also observed therein that the notification issued under section 9-A of the Act of 1930 by the State of Bihar would not be applicable in the case as it came into force after the period for which exemption was sought for. In the instant case, however, though the period of exemption commences from 1.10.1990 i.e. prior to the issuance of the notification, the application of exemption was filed after the coming into force of the notification and the period of exemption is still continuing and did not terminate before the coming into force of the notification as was in the case of Nirmal Kumar Singh (supra). 18. In this connection, however, the decision of the Supreme Court in the Case of Sudhir G. Angur and others vs. M. Sanjeev and others, (2006)1 SCC 141 may be referred to in that case. Learned counsel for the respondents had relied on a decision of the Bombay High Court in support of his submissions and the Supreme Court approved the view of the Bombay High Court wherein it has been observed that "no party has vested right to a particular proceeding or to a particular form. It has been held that it is well settled that all the procedural laws are retrospective unless the Legislature expressly states to the contrary. It has been held that the procedural laws in force must be applied at the date when the suit or proceeding comes on for trial or disposal. It has been held that a Court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. It has been held that if a court has jurisdiction to try the suit when it comes for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted". 19. The application for exemption in this case also though relates to the period from 1.10.1990 till date, it was filed on 15.2.1996. 19. The application for exemption in this case also though relates to the period from 1.10.1990 till date, it was filed on 15.2.1996. Hence, in view of the above decision of the Supreme Court, the procedure which was in force on that date would be applicable, and admittedly the Act of 1994 was in force at that time and the Act of 1930 had long before been repealed. So, the application should have been filed as far as practicable in accordance with the procedure prescribed under sec. 17 of the Act of 1994 and not under section 9-A of the 1930 Act but the application has not been filed in form J as required under Rule 13 of the Rules framed under the Act of 1994 and necessary papers of the vehicle had not been surrendered and necessary undertaking specifying the period of discontinuance of the vehicle and the place of parking of the vehicle was also not submitted as required under sec. 17 of the Act of 1994. Thus, it is obvious that the application was not maintainable and no exemption under sec. 19 of the Act of 1994 could be granted to the petitioner. 20. Apart from this, even if it be assumed that section 9-A of the 1930 Act de hors the notification, was applicable in this case, no specific procedure has been provided therein for enquiry. Under the provision of that section the owner of the vehicle had only to satisfy the Taxing Officer that the facts contained in the application were correct. However, the order of the appellate authority (Annexure-12) shows that after perusing the papers submitted and hearing the arguments, he was not satisfied with the facts contained in the application. The impugned order also shows that on account of various inconsistencies respondent no. 2 also has expressed serious doubt about the credibility of the claim. These are findings of facts and cannot be challenged here. 21. So, when the taxing authority was not satisfied with the contents of the application for exemption even if section 9-A is applicable in this case, no direction can be given to the respondents in this writ to exempt the tax. 22. These are findings of facts and cannot be challenged here. 21. So, when the taxing authority was not satisfied with the contents of the application for exemption even if section 9-A is applicable in this case, no direction can be given to the respondents in this writ to exempt the tax. 22. Then as regards the period in which the vehicle has been in police custody, the case of the petitioner as already mentioned is that it was seized by the police for non-payment of tax on 22.12.1995 and has been in the custody of police since then. Though the case of the petitioner is that the vehicle was seized from his residence where it was parked, the copy of seizure list (Annexure-8) shows that it was seized at Kothian while plying overloaded with 20 passengers on the roof. The vehicle seized under Annexure-8 also bears registration no. BPQ 5439 whereas the vehicle in question bears registration no. BPQ 5455. The case of the petitioner is that actually his vehicle bearing registration no. BPQ 5455 was seized but by mistake in the seizure list the number had been noted as BRQ 5439. 23. Now even if it be assumed that actually the vehicle in question i.e. Mini-Bus bearing registration No. 5455 of the petitioner was seized and the same is in custody of police since 22.12.1995, in our opinion, no tax exemption can be granted to the petitioner even though it is off the road since its seizure. In the case of Indradeo Prasad (supra) relied on by the learned counsel (Annexure 16) prayer was made for exemption of tax for the period from 9.1.1996 till date on the ground that the vehicle was seized by the police for non-payment of tax and the vehicle remained in police custody. The Bench of this Court held that as the Motor Vehicles Taxation Act, 1994 had come in force prior to the period involved, the provisions of that Act would be applicable. It further held that "however as we have already noticed above, under sec. The Bench of this Court held that as the Motor Vehicles Taxation Act, 1994 had come in force prior to the period involved, the provisions of that Act would be applicable. It further held that "however as we have already noticed above, under sec. 17 read with Sections 18 and 19 of the Act one may be entitled for claiming refund of tax/exemption/write-off of tax under the circumstances mentioned in Sec.17 of the Act, but for doing so he is required to give prior intimation of a temporary discontinuance of use of vehicle to the Taxing Officer and surrender of permit of the Vehicle to the Transport Authority". In this case also as already shown neither the permit was surrendered nor other conditions as required under sec. 17 of the Act of 1994 were fulfilled. So, this decision does not help the petitioner. In the absence of any undertaking delivered under sub-section (1) of Sec.17, the vehicle would be liable to tax also for the period as it shall be deemed to have been used or kept for use within the State. 24. Learned counsel for the petitioner further submitted that the Fitness Certificate of the vehicle had expired on 2.3.1991 and, therefore, in view of Sec. 56 read with Sec.39 of the Motor Vehicles Act, 1988 , the Vehicle would not be deemed to be a registered vehicle and hence the owner of the vehicle would not be liable to pay any tax from that date. 25. In this connection it may be mentioned that prior to the promulgation of the Bihar Motor Vehicle Taxation Ordinance, 1994 (substituted by the Motor Vehicle Taxation Act, 1994) every person having possession or control of the Motor Vehicle was liable to pay tax. In the above Ordinance, for the first time it was provided under sec. 5 that owner of every registered motor vehicle alone would be liable to pay tax. In the year 2002, the Act of 1994 was amended by the Bihar Finance Act of 2002 and sub-section (4) was added to Sec. 5 dealing with Levy of Tax wherein it was provided that even if the certificate of fitness of the Vehicle is not valid, the tax and additional tax would be payable as is payable in the event a vehicle has had a valid certificate of posting. 26. 26. Therefore, it is obvious that the submission of the learned counsel has no relevance so far the tax liability of the petitioner prior to the coming into force of the above Ordinance and after the above amendment in Sec. 5. The above submission, of course, is relevant for the period falling in between those two periods. But, though it is provided in Sec. 56 of the Motor Vehicles Act that a transport vehicle shall not be deemed to be validly registered for the purpose of Sec.39 unless it carries a certificate of fitness, this provision has been made as a safety measure to avoid any accident whereas the Bihar Taxation Act is regulatory measure imposing compensatory taxes for the purpose of raising revenue to meet the expenditure for making roads, maintaining them and regulation of traffic. Therefore, the operation of Sec. 5 of the Taxation Act cannot be curtailed by the deeming provision in Sec. 56 of the Motor Vehicles Act and if this deeming provision is imported in the Taxation Act, there would be large scale evasion of tax which is not permissible under the taxation law. So, such interpretation cannot be made. Again, though a transport vehicle cannot legally run on road without a valid fitness certificate under the Motor Vehicles Act under the scheme of the Taxation Act, every motor vehicle for which registration has been issued is a potential user of roads and, therefore, is liable to pay tax unless and until the registration is nullified by express cancellation and suspension of the certificate of the registration under the provision of Motor Vehicles Act. So, only because the certificate of fitness had expired, by virtue of Sec. 56 of the Motor Vehicles Act, the petitioner cannot be exonerated to pay tax. 27. In view of the discussions made above, there appears no merit in the writ petition. Accordingly, the same is dismissed, but without any cost. Aftab Alam, J. 28 I agree.