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2016 DIGILAW 1411 (HP)

Anupam Paul v. State of H. P.

2016-07-16

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. Present petition has been filed for quashing and setting aside notification dated 06.11.2008 (Annexure P-2) vide which vehicle owned by petitioner bearing registration No. HP-68-0203 was exempted from payment of Special Road Tax for the period from 09.11.2006 to 28.09.2007 by Government of Himachal Pradesh and for direction to respondents to exempt petitioner from payment of Special Road Tax for a period from 09.11.2006 till the date of release of permit i.e. 21.01.2009 and for further direction to refund further excess Special Road Tax amount, deposited by petitioner or to adjust excess payment towards Special Road Tax payable in future. 2. I have heard counsel of parties and gone through documents placed on record as well record produced by respondent under direction of Court. 3. It is not disputed that vehicle of petitioner had met with an accident on 03.11.2006 resulting into total loss to vehicle. Petitioner had submitted his claim with Insurance Company on total loss basis which was finally settled by Insurance Company on 28.09.2007. 4. Petitioner had applied for Special Road Tax exemption vide his application (Annexure P-1) seeking exemption from February, 2007 till date. Copy of application placed on record as Annexure P-1 bears no date on it. However, from record produced by respondents, it transpires that said application was filed in April, 2008. 5. It has been contended on behalf of petitioner that vehicle had met with an accident on 03.11.2006 and claim was received by petitioner after 28.09.2007. Thereafter petitioner had made arrangement of new vehicle and permit was released to him only on 21.01.2009. Therefore, exemption in Special Road Tax is required to be granted upto 21.01.2009 as till then vehicle of petitioner remained off the road. Petitioner has placed on record copy of Part-B summary of the permit as Annexure P-3 having endorsement date of deposit as 09.11.2006 and release as 21.01.2009. It has been submitted that in view of above facts and circumstances, granting of exemption to Special Road Tax only upto the date of settlement of claim by Insurance Company is arbitrary, irrational and unreasonable and there is no reason for not granting exemption till date of release of permit i.e. 21.01.2009 6. It has been submitted that in view of above facts and circumstances, granting of exemption to Special Road Tax only upto the date of settlement of claim by Insurance Company is arbitrary, irrational and unreasonable and there is no reason for not granting exemption till date of release of permit i.e. 21.01.2009 6. In response by respondents, it is submitted that petitioner had failed to produce substituted vehicle within two months as per provisions of sub rule 3(ii) of Rule 106 of Himachal Pradesh Motor Vehicle Rules, 1999 from the date of deposit of route permit and after giving exemption to petitioner, Special Road Tax of remaining period was rightly assessed amounting to Rs.1,70,000/- by the Department. As per stand of the State, exemption of tax can only be given for a period of three months as per Section 14(2) of the Himachal Pradesh Motor Vehicle Taxation Act, 1972 only and that under Section 14(3) of Himachal Pradesh Motor Vehicle Taxation Act, 1972, State Government is empowered to grant tax exemption to any class of vehicles in public interest and exercising powers under this Section, Government of Himachal Pradesh vide impugned notification dated 06.11.2008 has rightly granted exemption from 09.11.2006 to 28.09.2007 as vehicle in question remained out of road due to road accident resulting into total loss to vehicle. As per reply, time period to produce substituted vehicle was given upto 8th January, 2007 but petitioner had failed to produce vehicle due to non-settlement of claim by Insurance Company. It is further submitted by learned Deputy Advocate General that claim was settled by Insurance Company on 28.09.2007. However, petitioner could not produce the vehicle within two months thereafter and therefore after giving exemption to petitioner till 28.09.2007 tax for remaining period was rightly assessed. 7. It is argued on behalf of petitioner that there is no nexus with the date 28.09.2007 for granting exemption from tax as claim amount was not released immediately by Insurance Company and for want of funds, petitioner was not able to purchase vehicle immediately after settlement of claim on 28.09.2007. It is stated that tax exemption was to be granted not till the date of settlement of claim with Insurance Company but till the date of release of permit. It is stated that tax exemption was to be granted not till the date of settlement of claim with Insurance Company but till the date of release of permit. Learned Deputy Advocate General was submitted that there was inordinate delay on the part of petitioner in brining new vehicle on road even after settlement of claim on 28/09/2007 and therefore petitioner is not entitled for exemption after 28.09.2007. It is further pointed out that as per application (Annexure P-1) filed by petitioner, tax exemption w.e.f. February, 2007 was prayed for and therefore, petitioner was entitled for exemption since February, 2007 whereas tax exemption has been granted since 09.11.2006. 8. Perusal of record indicates that petitioner has filed application for exempting from Special Road Tax till date in April, 2008 since February, 2007. In pursuance to this application after receiving case of petitioner for exemption of Special Road Tax from Regional Transport Officer Dharamshala, the Director Transport had referred the same to Additional Chief Secretary (Transport) to the Government of Himachal Pradesh vide letter dated 09.09.2008. It was mentioned that in this letter, that reference has been received from Regional Transport Officer, Dharamshala for exemption of Special Road Tax in respect of Bus No. HP-68-0203 for period from 09.11.2006 to 28.09.2007 on the ground that in accident the vehicle was to tally damaged. The case was placed before the Additional Chief Secretary with observations (vide Note-135 of noting sheet) that owner has applied for Special Road Tax exemption for the period from 09.11.2006 to 28.09.2007. Again (vide Note-139 of noting sheet) case of petitioner was resubmitted to concerned authority with observation that appellant has only sought exemption for the period when vehicle met with an accident till date on which the insurance claim was settled by the Insurance Company. As noticed above, the case of petitioner placed before the concerned authority to be considered under Section 14(3) of the Himachal Pradesh Motor Vehicle Taxation Act, was with respect to exemption from 09.11.2006 to 28.09.2007. Case for granting exemption, beyond the date of settlement of Insurance claim by Insurance Company on 28.09.2007 till the date of issuance of permit or date of application made by petitioner, was never placed before the concerned authority. The concerned authority has neither considered nor decided the case of petitioner regarding exemption of Special Road Tax beyond 28.09.2007 till filing of the application or release of permit. The concerned authority has neither considered nor decided the case of petitioner regarding exemption of Special Road Tax beyond 28.09.2007 till filing of the application or release of permit. 9. Grant of exemption from Special Road Tax under Section 14(3) of the Himachal Pradesh Motor Vehicle Taxation Act is discretionary powers which is to be exercised by concerned authority on the basis of facts and circumstances of the case in public interest. Petitioner has right of consideration of his request for exemption but in present case complete request of petitioner has neither been placed before Government nor has been considered. Government has considered case of petitioner till 28.09.2007 as placed before concerned authority. Request beyond 28.09.2007 was neither accepted nor rejected as it had never been considered. 10. In view of above discussion, present petition is disposed of with the directions to the respondent No. 2 and respondent No.4 to place the case as requested by petitioner along with relevant material before respondent No.1 to consider the case of petitioner for grant of exemption under Section 14(3) of Himachal Pradesh Motor Vehicle Taxation Act, 1972 within eight weeks from today and respondent No.1 is directed to consider the case of petitioner within 12 weeks from receipt of reference from respondent No.2 on the basis of facts and documents placed before him and also keeping in view norms, standards and parameters including time taken for release of payment by insurance company after settlement, reasonable time required to bring new vehicle on road thereafter completing all codal formalities and also date of submitting application by petitioner and any other factor required to be considered to decide the issue of granting or refusing exemption from Special Road Tax sought by petitioner. Needless to say that respondent No.1 shall decide the matter by granting opportunity to petitioner of being heard if desired so, and by passing a speaking order which shall be conveyed to petitioner. Pending applications, if any, stand disposed of. No order as to cost. Record be returned forthwith.