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2008 DIGILAW 3 (JHR)

Binod Kumar Agrawal v. State of Bihar

2008-01-03

D.P.SINGH

body2008
JUDGMENT: D.P. Singh, J.-This appeal is taken up for hearing along with FA No. 81/97. 2. Heard learned counsel for both sides at length on the merit of this appeal. 3. This appeal arises out of the judgment and decree passed by Sub-Judge, IVth, Ranchi in Title Suit No. 137/93 dated 12.12.96, by which the suit has been dismissed. The suit was preferred by the appellant against the certificate issued against him in Certificate Case No. 170(DTO)/92-93 making him liable to pay the due tax along with additional tax and fine etc. to the tune of Rs.3,16,912.40. 4. According to this memo of appeal, the appellant has got a vehicle bearing registration No. 6990 in his name from 10.9.80 for which he was regularly paying taxes. It is further asserted that the said vehicle was not plying in the State of Bihar after 1980 but the Certificate Officer has directed him to pay taxes along with penalty and additional taxes for a period of more than 12 years, which is apparently time barred. The appellant has raised the plea of validity of such an order claiming therein that during this period the said vehicle has been registered at Keonjhar in the State of Orissa after paying taxes. However, on the basis of a letter obtained by DTO, Ranchi from his father, the present certificate case as well as the Certificate Case No. 166(DTO)/92-93 was initiated to extract illegal money from him. The memo of appeal further mentioned that the present certificate case has been issued without serving a notice under Section 7 of the Public Demands Recovery Act. 5. According to the plaintiff-appellant, the vehicle in question bearing registration No. 6990 was earlier registered in the name of one Dilip Kumar, which was transferred to him on 10.9.80. It has further been asserted that the plaintiff deposited the taxes of the vehicle up to 30.9.80, however, no tax token was made available to him. Thereafter the appellant has transferred his business to Keonjhar in the State of Orissa where the vehicle in question was plying after getting the vehicle endorsed by DTO, Keonjhar. Therefore, the plaintiff-appellant was not liable to pay taxes after 10.9.80 to the State of Bihar. It has further been asserted that the said bus was later on sold to the scrap dealer and the bus was stopped plying anywhere. Therefore, the plaintiff-appellant was not liable to pay taxes after 10.9.80 to the State of Bihar. It has further been asserted that the said bus was later on sold to the scrap dealer and the bus was stopped plying anywhere. Therefore, the question of payment of taxes does not arise. The plaintiff-appellant has further asserted that the DTO, Ranchi along with others forcibly obtained a letter from his father Radha Kant, against who Certificate Case No. 166(DTO)/92-93 was initiated, and got the process of certificate case initiated without serving any notice under Section 7 of the Public Demands Recovery Act. 6. The plaintiff-appellant has further asserted that when the matter was agitated before Ranchi Bench of Patna High Court in a writ, it was disposed of with direction to file objection under Section 9 of Public Demands Recovery Act before the Certificate Authority. According to the plaintiff-appellant, the realization of certificate amount of taxes and fine was barred under law of limitation as it was being claimed for the period from 1.10.79 to 31.8.92 while the vehicle in question was admittedly not being plied. 7. 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 Demands 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 Demands 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. 8. The defendants-respondents have asserted that the plaintiff-appellant has transferred the vehicle outside the State of Bihar without obtaining NOC from Ranchi DTO in violation of the provisions of Sections 29, 29A and 30 of the Motor Vehicles Act, 1939. 8. The defendants-respondents have asserted that the plaintiff-appellant has transferred the vehicle outside the State of Bihar without obtaining NOC from Ranchi DTO in violation of the provisions of Sections 29, 29A and 30 of the Motor Vehicles Act, 1939. According to the defendants-respondents the plaintiff-appellant has illegally paid the amount of taxes for a small period at Keonjhar causing loss to the State exchequer. It has further been asserted that the plea of selling the vehicle is afterthought as it was never brought to the notice of the District Transport Officer, Ranchi and the show cause filed under Section 9 of Public Demands Recovery Act has rightly been rejected. As such, the appellant was liable to pay the certificate amount. 9. The following issues were framed:- (I) Is the suit maintainable as framed? (II) Has the plaintiff got valid cause of action for this suit? (III) Is the suit barred by the principles of waiver, estoppel and acquiescence? (IV) Is the suit barred under Sections 43 and 46 of the Bihar and Orissa Public Demands Recovery Act? (V) Is the suit barred under Section 34 of the Specific Relief Act? (VI) Is the suit bad for non-service of notice under Section 80 of the Civil Procedure Code, 1908? (VII) Is the certificate dated 4.12.1992 drawn up by the defendant no. 3 in Certificate Case No. 170(DTO) 1992-93 for realization of Rs.3,16,912.40 paise from the plaintiff as arrear of road tax, additional tax and fine in respect of Bus No. BHV 6990 illegal, void and without jurisdiction? (VIII) Is the plaintiff entitled to a decree as prayed for? 10. The learned trial court while considering the issue nos. 4, 5, 6 and 7 decided the issues against the plaintiff appellant on the ground that intermittent transfer of the vehicle in question bearing No. BHV 6990 has been asserted by the plaintiff on 9.7.79, 25.7.79 and 22.3.80 as well as on 10.9.80 without informing the District Transport Officer, just to avoid the legal dues which the owner of the vehicle has to pay for plying the bus. The learned trial court has further found and held that the registration of the vehicle in question at Keonjhar on 19.12.81, vide Ext. 2 was made without NOC from Ranchi office. The learned trial court has rightly found and held that two receipts, Exts. The learned trial court has further found and held that the registration of the vehicle in question at Keonjhar on 19.12.81, vide Ext. 2 was made without NOC from Ranchi office. The learned trial court has rightly found and held that two receipts, Exts. 3 and 3/1 did not explain what amount was deposited for which period. It has further held that all the pleas were found not maintainable in absence of information to the registration authorities as per law. The learned trial court further held that by order dated 18.7.93 the certificate officer has allowed deduction of amount of tax paid by the plaintiff at Ranchi and Keonjhar from certificate dues. It further held that notice required under Section 80 CPC was not served before filing of the suit. According to the learned trial court the suit was barred under Sections 43 and 46 of the Bihar and Orissa Public Demands Recovery Act also. 11. I have gone through the reasoning given by the trial court to arrive at the conclusion. The issues in the present appeal are same and similar as in F.A. No. 81/97 in which similar pleas were taken by the appellant, father of the present appellant for non-payment of dues levied in Certificate Case No. 160(DTO)92-93. I further find that the appellant has failed to prove a case of fraud against the respondents defendants before initiation of the Certificate Case No. 170(DTO)92-93. The notice under Section 80 CPC earlier issued by the plaintiff-appellant dated 20.3.93 is admittedly after initiation of the proceeding in certificate case in December, 1992. The learned trial court has further found and held that the relief prayed for by the, appellant-plaintiff was only up to the extent that the certificate issued against him was illegal, void and without jurisdiction. As such, the suit itself was barred under Section 34 of the Specific Relief Act. 12, Learned counsel for the appellant at this stage submitted that the appellant was not liable to pay the additional tax as well as fine imposed upon it. 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. 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 additional tax by inserting Rule 3-B in the year 1966 was found and held not valid as the amended provisions were inserted without delegated provisions of legislation. The facts of the case are different. In the fact of this case the additional taxes were imposed upon the due taxes. However, the amended provisions were applicable after 1983. The dues are shown for the period 30.9.80 to 30.6.83. 13. Having considered all these facts and circumstances, I find that the findings arrived at by the learned trial court in Title Suit No. 137/93 that the plaintiff-appellant failed to prove that he was not liable to pay the road tax in Certificate Case No. 170(DTO)92-93. 14. Accordingly, I find no merit in this appeal. In the result, this appeal be dismissed with modification of the amount of certificate after deducting the additional taxes levied against the appellant for the period 30.9.80 to 30.6.83 and consequently penalty upon the said amount. Office is directed to send back the lower court records to the court concerned for information and needful.