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Madhya Pradesh High Court · body

2014 DIGILAW 1643 (MP)

Ishwarlal v. State of M. P.

2014-12-10

D.K.PALIWAL, P.K.JAISWAL

body2014
Judgment 1. Shri Umesh Gajankush, learned counsel for the appellant -Ishwarlal. Ms. Mini Ravindran, learned Dy. Govt. Advocate for the respondents No. 1 to 4. Shri Subodh Abhyankar, learned counsel for the respondent No. 5 - Vinod Kumar Jain. Heard on I.A. No. 5343/2013, an application for grant of leave to appeal. Considering the fact that the action of imposition of tax and its recovery was initiated at the instance of the appellant, therefore, we grant leave to appeal to challenge the order dated 1-8-2013, passed in W.P. No. 8437/2013. 2. Accordingly, I.A. No. 5343/2013, is allowed. 3. They are heard. 4. This order shall also govern the disposal of W.A. No. 851/13, W.A. No. 929/13, W.A. No. 930/13, W.A. No. 931/13, W.A. No. 932/13, W.A. No. 934/13, W. A.. No. 973/13, W.A. No. 974/13 filed by the appellant and W.A. No. 1032/13, W.A. No. 1033/13, W.A. No. 1034/13, W.A. No. 1035/13, W.A. No. 1036/13, W.A. No. 1038/13 and W.A. No. 1044/13 filed by the State as the common questions are involved and all the matters were heard together and are being decided by this common order. For the purpose of this order, the facts are taken from W.A. No. 851/2013. 5. Brief facts of the case are that the respondent No. 5 (petitioner), who are Bus Transporter has challenged the orders of recovery of tax dated 7-5-2013 (Annexure-P/5) and 28-5-2013 by filing a writ petition under Article 226 of the Constitution of India. As per cause-title of the writ petition, the aforesaid orders were passed by Road Taxing Authority/RTO, Gwalior. All the buses in question were registered at RTO, Gwalior. The seizure of vehicle was made at Indore and, therefore, they challenged the order of recovery of tax by filing a writ petition at Indore. 6. In para 1(4) of the writ petition it has been stated, that the imposition of tax and its recovery has been initiated by RTO, Gwalior on a private complaint, whereby it was alleged that the vehicle which was covered by All India Tourist Permit No. 1835/STA/TOB/8/from 1-3-2008 to 31-7-2013, its permit was surrendered by the petitioner on 31-7-2008 but despite this, the vehicle was plied by the vehicle owner from M. P. to Maharashtra. 7. The writ petition was filed mainly on the ground that no inquiry has been conducted as prescribed under section 8(3) of the M.P. Motoryan Karadhan Adhiniyam, 1991. 7. The writ petition was filed mainly on the ground that no inquiry has been conducted as prescribed under section 8(3) of the M.P. Motoryan Karadhan Adhiniyam, 1991. As per record, the writ petition was filed on 9-7-2013 and it was listed and decided on 23-7-2013 i.e. on the first day of hearing. 8. Learned Dy. Govt. Advocate for the respondents No. 1 to 4 have submitted that no opportunity was granted to the State to file a reply and seek instructions in the matter. She further submitted that as per Article 226(3) of Constitution of India, the petition can be filed within the jurisdiction of the Court where cause of action or part of it arose. The entire cause of action regarding impugned order of recovery arose within the territorial jurisdiction of Gwalior. Only Gwalior Bench has jurisdiction. No part of cause of action or small fraction of cause of action arises within the jurisdiction of this Court. No cause of action arose at Indore regarding recovery of tax from the respondent No. 5 and, therefore, the Indore Court has no territorial jurisdiction to try and entertain the writ petition. She further submits that a statutory appeal is provided under section 20 of the M.P. Motoryan Karadhan Adhiniyam, 1991 and, therefore, the petition was not maintainable. The learned writ Court entertained the petition only on the ground that along with the appeal there is pre-condition for entertaining the appeal and, therefore, remedy provided to respondent No. 5 was not efficacious remedy and objection regarding statutory remedy of appeal was turned down. 9. It is not in dispute that the respondent No. 5 in all the matters, who are the owner of the vehicle and are having All India Permit, has surrendered all the vehicles by respondent No. 5. Thereafter, the complaint was filed against the respondent No. 5 by present appellant to the effect that the offending vehicle are being plied without permit and, therefore, the vehicle was seized and the respondents have been asked to deposit the amount of tax along with the penalty. 10. Thereafter, the complaint was filed against the respondent No. 5 by present appellant to the effect that the offending vehicle are being plied without permit and, therefore, the vehicle was seized and the respondents have been asked to deposit the amount of tax along with the penalty. 10. Considering these facts and so also the fact that as per section 5 of the M.P. Motoryan Karadhan Adhiniyam, 1991, the respondent No. 5/vehicle owner is liable to pay the tax liability, we are of the view that the writ petition has been wrongly entertained without giving sufficient opportunity to the respondents No. 1 to 4, secondly, this Court has no territorial jurisdiction to try the writ petition and lastly the order which was impugned in the writ petition is appealable under section 20of the M.P. Motoryan Karadhan Adhiniyam, 1991. The proper recourse for the respondent No. 5 is to challenge the order by filing an appeal before the Appellate Authority. Rule of exclusion of writ jurisdiction due to availability of alternative remedy is a rule of discretion and not one of compulsion. Writ Court may exercise discretionary jurisdiction of judicial review in at least three contingencies, where writ petition seeks enforcement of fundamental rights, where there is a failure of principles of natural justice and where proceedings are wholly without jurisdiction. None of any of the above three contingencies are satisfied in the present case. Thus, the respondent No. 5 is directed to take recourse to the remedy available under section 20 of the 1991 Act. For the above mentioned reason, the impugned order passed in W.P. No. 8437/2013 on 1-8-2013 is set aside. The writ appeal is allowed in part to the extent as indicated hereinabove, but without any order as to costs.