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2008 DIGILAW 2 (JHR)

Radha Kant v. State of Bihar

2008-01-03

D.P.SINGH

body2008
JUDGMENT: D.P. Singh, J.-Heard learned counsel for the parties on I.A. No. 3515/2007, by which the learned counsel for the appellant prays for substitution of legal heirs of deceased-appellant Radha Kant, who died on 7.8.2002, namely, Binod Kumar, Dilip Kumar and Pradeep Kumar. In view of the admitted fact. the I.A. petition is allowed and the heirs of deceased appellant be substituted in his place. 2. Heard learned counsel for the parties at length on the merit of this appeal. 3. This appeal is arising out of a suit preferred by Radha Kant. father of substituted appellants, against whom a certificate Case No. 166 (DTO)/92-93 was initiated for realisation of due tax in respect of vehicle bearing registration No. BHV 5891. 4. According to the memo of appeal, Radha Kant was registered owner of the bus bearing No. BHV 5891 plying within the State of Bihar up to 30.6.89. According to the appellant, after 30.6.89 the vehicle did not ply in Bihar, however after 12 years the District Transport Officer got a notice issued' against him for realisation of taxes for a period of 14 years, which was time barred. It is further asserted that the certificate issued against him to realize Rs. 3,04,863.65 paise by way of arrear of road tax, fine, additional tax etc. were not valid and could not be realised. The appellant further pleaded that the DTO, Ranchi having full knowledge that the bus was not plying since 30.6.89 forcibly obtained a letter from him on 23.12.92 and thereafter registered a case for realization of the taxes without serving a notice under Section 7 of Public Demand Recovery Act. 5. It is further stated that appellant raised objections before the Hon'ble Patna High Court at Ranchi Bench by way of writ and the same was disposed of with direction to the appellant to appear and file objection under Section 9 of Public Demand Recovery Act. However, the objection was illegally rejected and penalty was imposed. As such the suit was preferred before Sub-Judge, Ranchi. However, the learned lower court did not consider the illegality apparent on the records and dismissed the suit holding that it was not maintainable under Sections 43 and 46 of the Public Demand Recovery Act as well as on the other points. As such the suit was preferred before Sub-Judge, Ranchi. However, the learned lower court did not consider the illegality apparent on the records and dismissed the suit holding that it was not maintainable under Sections 43 and 46 of the Public Demand Recovery Act as well as on the other points. Hence the present appeal was preferred on the ground that the learned trial court has failed to consider the points of law and fact that the vehicle in question was not being plied within the jurisdiction of Bihar State and remained off of the road since 1.7.89, as such, he cannot be liable to pay the taxes. 6. The plea taken by the respondents-defendants, the DTO, Ranchi and Certificate Officer, Ranchi was that the plaintiff-appellant has not been able to prove that the vehicle in question was damaged and not plied during the period from 1.7. 89 tin the date of filing of the suit. It was also asserted that the question of surrendering the vehicle did not arise as the appellant has paid taxes at Rohtas for the same vehicle without obtaining no objection certificate for nearly 9 years. According to the respondents, the appellant fraudulently got the vehicle registered at Keonjhar, Orissa without paying the taxes even at Keonjhar and vide letter no. 434 dated 29.8.88, no such letter was issued from Keonjhar office,. It was also asserted that the appellant plaintiff has deposited taxes for the vehicle in question alongwith arrear taxes, vide scroll Nos. 84-85 on 15f89 for the quarter period of 1.7.89~to 30.9.89 only. Therefore, the suit was rightly dismissed. 7. The following issues were framed: (I) Is the suit maintainable as framed? (II) Whether the plaintiff got valid cause of action for this suit? (III) Is the suit barred by the principles of. estoppel, waiver and acquiescence? (IV) Is the suit bad under Sections 43 and 46 of the Bihar and Orissa Public Demand Recovery Act, 1914? (V) Is the suit barred under Section 34 of the Specific Relief Act? (VI) Is the suit bad for non-service of valid notice under Section 80 of Code of Civil Procedure, 1908? (VII) Is the certificate dated 4.12.1992 drawn up by the defendant no. 3 in Certificate Case No. 166(DTO) 1992-93 for realization of Rs. (V) Is the suit barred under Section 34 of the Specific Relief Act? (VI) Is the suit bad for non-service of valid notice under Section 80 of Code of Civil Procedure, 1908? (VII) Is the certificate dated 4.12.1992 drawn up by the defendant no. 3 in Certificate Case No. 166(DTO) 1992-93 for realization of Rs. 3,04,863.65 from the plaintiff as arrear of Road Tax, Additional Tax and fine in respect of Bus No. BHV 5891 illegal, void and without jurisdiction? (VIII) Is the plaintiff entitled to a decree as prayed for? 8. The learned trial court, after considering the materials on record, came to find and decide that issue nos. 4, 5 and 6 against the plaintiff-appellant. According to the learned trial court the suit was barred under Sections 43 and 46 of the Public Demand Recovery Act. It further held that the suit was bad for non-service of valid notice under Section 80 of CPC. It also held that the suit was barred under Section 34 of the Specific Relief Act and finally held regarding issue no. 7 that taxes were due for the period for which certificate was issued. 9. The learned counsel appearing on behalf of the appellant has stressed before me that the facts involved, as issue no. 7, were not decided correctly. According to the learned counsel, the road tax was paid at Keonjhar as the vehicle was registered there. Therefore, the taxes need not be realized by Ranchi DTO. He has brought on record the owner book showing that on 31.3.81 the vehicle in question bearing No. BHV 5891 has been transferred to appellant Pradeep Kumar, son of plaintiff-appellant Radha Kant. Much reliance was placed upon Ext. 4, the surrender certificate filled up by appellant Radhakant and Ext. 5, the certificate issued by body builder of the vehicle on 1.7.89. However, the certificate officer has considered all these aspects and by order dated 19.7.93 found and held the show cause as well as objection raised under Section 9 of Public Demand Recovery Act not valid. 10. These aspect has been considered by the trial court. It is admitted fact on record that the vehicle in question BHV' 5891 was registered in the name of Radha Kant, father of the present appellants, which was shown to be. plying within the jurisdiction of State of Bihar. 10. These aspect has been considered by the trial court. It is admitted fact on record that the vehicle in question BHV' 5891 was registered in the name of Radha Kant, father of the present appellants, which was shown to be. plying within the jurisdiction of State of Bihar. No tax was paid for the period for which the certificate has been issued, as no tax payment receipts have been filed by the plaintiff appellant before the trial court. The defence taken by the plaintiff was that his vehicle was again registered at Dehri-onson where the last payment was made for the period between 1.7.89 to 30.9.89. It further tried to be proved that during this period the vehicle in question remained in the garage and not plied on road. It is strange, if the vehicle in question having been surrendered and sent for being repaired etc. from 1.7.89 to 30.7.89, why the taxes were paid. The other plea taken is that the vehicle in question was lying within the State of Orissa appears to be afterthought, as no objection certificate has been obtained by the District Transport Officer, Ranchi for its transfer or plying it outside the State of Bihar. 11. Learned counsel for the appellant has admitted frankly that no objection certificate has not been obtained by the appellant for transfer of the vehicle in question or plying it outside the State. It has also come on record that the suit was filed just after rejection of the objection on 19.7.93 and 28.7.93 without serving any notice as required under Section 80 CPC. As such, I find that the learned trial court has rightly decided issue no. 6 against the appellant. 12. From the facts admitted on record, it appears that the appellants' father has not preferred any objection on being noticed by the certificate officer under Section 7 of Public Demand Recovery Act rather he preferred an objection under Section 9 of the Act after his writ was dismissed. The reason given by the certificate officer by order dated 19.7.93 shows that the appellant has not informed the registering authority regarding transfer of the vehicle as well as surrender of the vehicle, which was required under the provisions of the Act. The reason given by the certificate officer by order dated 19.7.93 shows that the appellant has not informed the registering authority regarding transfer of the vehicle as well as surrender of the vehicle, which was required under the provisions of the Act. The contradictory assertions that the vehicle in question was not fit to be plied on the road and paying the road tax for the same period also created reasonable doubt upon the plea of the appellant. As these facts could not support the case of the appellant, the learned trial court has rightly decided issue nos. 5 and 7 against him. 13. Learned counsel for the appellants at this stage submitted that the appellants were not liable to pay the additional tax as well as fine imposed upon them. In this context he placed reliance in the case of Bihar Motor Transport Federation & Ors. VS. State of Bihar & Ors., reported in 1994(1) BLJR 711 [: 1994(1) PLJR 343], in which a Division Bench of the Patna High Court has struck down Rule 3-B of Bihar Motor Vehicles Taxation Act, 1930 as ultra vires. However, the fact of the case relied upon was that the provisions as amended to impose penalty upon the addition tax by inserting Rule 3B in the year 1966 was found and held not valid as the amended provisions were enacted without delegated provisions of law making by State assembly. The facts of the case are different. In the fact of the case the additional taxes were imposed upon the due taxes. However, the amended provisions are applicable after 1983 while the dues are shown for the period 1st April, 1980 to 31.8.92. The disputed letter dated 23.12.92, proved as Ext. 6 on behalf of the appellant, shows that he has knowledge regarding this dues and he asked for time to pay the dues. 14. However, during objection various pleas were made that the vehicle in question was shifted to Orissa from 1980 and later on again transferred to Bhabhua, Rohtas on the basis of NOC No. 434 dated 29.8.88. Thereafter the last payment was made on 30.9.89 but during this period whatever tax was paid is not brought on record except the last payment at Rohtas for the period 1.7.89 to. 30.9.89. Thereafter the last payment was made on 30.9.89 but during this period whatever tax was paid is not brought on record except the last payment at Rohtas for the period 1.7.89 to. 30.9.89. This was done afterwards, as the appellant has also claimed that during this period the vehicle in question was confined in a garage at Ranchi, vide Ext. 5, for which Nagina Body Builders, Ranchi certified that the vehicle in question was received by it for repairs etc. At no time during this period any information was given to the District Transport Officer, Ranchi regarding shifting of the vehicle, an accident, not plying of the vehicle on the road and payment of taxes at different places. Therefore, the plea taken by the appellant before the trial court appears to be rightly not accepted. If a vehicle has been registered, taxes are required to be paid except under certain conditions with information to the transport office, which has not been complied with in this case. However, for the period between 31.3.80 to 31.7.83 no additional tax could be levied with penalty on it. 15. Having considered all these facts and circumstances, I find that the findings arrived at by the learned trial court that the plaintiff-appellant failed to prove that he was not liable to pay the road tax in certificate Case No. 166 (DTO)/92-93 does not require any interference. 16. Accordingly, I find no merit in this appeal. This appeal be and is dismissed with modification of the amount of certificate after deducting the additional taxes levied against the appellant for• the period 1.4.80 to 31.3.83 and consequential penalty upon the said amount. Office is directed to send back the lower court records to the court concerned for information and needful.