Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 197 (ORI)

Prafulla Kumar Samantaray v. R. T. O. Rourkela

2016-03-10

B.R.SARANGI

body2016
JUDGMENT : B.R. Sarangi, J. 1. The petitioner, who is a registered owner of the vehicle (Mini Truck) bearing registration No.OR-02Q-7167, has filed this petition seeking to quash the demand notice No.4920 dated 04.07.2014 for payment of additional tax amounting to Rs.42,124/-, vide Annexure-4, within a period of fifteen days, failing which action under Section 17(2) of the Orissa Motor Vehicle Taxation Act, 1975 shall be initiated against him, otherwise R.C./Permit of the vehicle would be cancelled. 2. The fact leading to filing of this petition is that the petitioner is an unemployed person and is maintaining his livelihood out of the income derived from his vehicle after paying tax and keeping all the motor vehicle documents in order. The aforesaid vehicle of the petitioner bearing registration No.OR-02Q-7167 was seized by Forest Range Officer, B.J.P. Range, Keonjhar, Opposite party no.2 and subsequently pursuant to the order of the District Judge, Keonjhar in F.A.O. No. 1 of 2012, the vehicle was released by the D.F.O., Keonjhar, opposite party no.3 on 22.04.2014. The case of the petitioner is that since the vehicle was not in possession of the petitioner between the period 22.01.2011 and 22.04.2014 and he has not plied the vehicle, he was not liable to pay the motor vehicle tax and he could not have also intimated the off road of the vehicle as it was seized by the Forest Authority. However, demand notice has been issued vide Annexure-4 demanding tax of Rs. 14,866/- and penalty of Rs. 27,258/-, which is double the amount of tax, in total Rs.42,124/-, for the period during which the vehicle was under the custody of the forest authority and therefore, the case of petitioner is that he is not liable to pay the said amount. Hence, this petition. 3. Mr. S.B. Das, learned counsel for the petitioner urged that the petitioner being a registered owner of the vehicle, could not ply the same for the period from 22.01.2011 to 22.04.2014 during the period the vehicle was in the custody of the Forest Authority and therefore, he is not liable to pay the tax and penalty as demanded vide Annexure-4. He further submits that the claim of the petitioner is covered by the ratio of the judgment of this Court in Ishwar Chandra Prusti Vs. R.T.O., Sambalpur and Others, 2015 (1) OLR 576 . He further submits that the claim of the petitioner is covered by the ratio of the judgment of this Court in Ishwar Chandra Prusti Vs. R.T.O., Sambalpur and Others, 2015 (1) OLR 576 . It is further urged that the distinguishing feature of the reference made to Ishwar Chandra Prusti (supra) is that Ishwar Chandra Prusti is an auction purchaser, whereas, the petitioner is the owner of the vehicle in question. Even if the petitioner is the owner of the vehicle, since the vehicle was seized by the Forest Authority and it was under the possession of the State Authority, no intimation of off road is required to be given to the Registering Authority and the petitioner is not liable to pay the tax and penalty demanded by the authorities vide impugned demand notice in Annexure-4. Section 12 of the Motor Vehicle Taxation Act stipulates that tax and penalty can be levied against a person who was in possession or control over the vehicle and in the present case since after seizure the vehicle in question was in possession of the Forest Authority, it was not under the possession and control of the petitioner and therefore, he is not liable to pay the demand so raised by the authority concerned. 4. Mr. B.K. Sharma, learned Standing Counsel for the Transport Department raises preliminary objection with regard to maintainability of the writ petition on the plea that in view of the judgment reported in Sujit Kumar Dhir Vs. State of Orissa, 2014 (2) OLR 1070 , when there is availability of alternative remedy under the statute, the petitioner instead of approaching the appropriate authority, should not have invoked the extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India. He further submits that when adequate remedy has been prescribed under Sections 18 and 19 of the OMVT Act, by providing appeal or revision, as against demand so raised by the authority, the petitioner has to approach the appropriate authority ventilating his grievance instead of approaching this Court. He further submits that when adequate remedy has been prescribed under Sections 18 and 19 of the OMVT Act, by providing appeal or revision, as against demand so raised by the authority, the petitioner has to approach the appropriate authority ventilating his grievance instead of approaching this Court. He further urged that as required under Section 20 of the OMVT Act, the petitioner being a registered owner, if the vehicle was seized by the forest authority in that case the petitioner had to intimate the off road of the vehicle and non-providing such information as per Sub-Section (3) of Section 10 of the said Act, the petitioner is liable to pay the tax and penalty for vehicle in question and the demand so raised in Annexure-4 is wholly and fully justified. 5. Considering the above pleadings available on record, the following question emerges for consideration:- (i) Whether the registered owner of the vehicle is liable to pay tax and penalty for the period the vehicle was under seizure by the forest authority and consequential release of vehicle pursuant to a proceeding initiated under the Forest Act” (ii) To what relief? 6. The State legislature enacted the “Orissa Motor Vehicles Taxation Act, 1975” to consolidate and amend the law relating to Taxation on Motor Vehicles. To give effect to the provisions of the Act, Rules have been framed called “Orissa Motor Vehicles Taxation Rules, 1976.” Section 3 of the Act deals with levy of tax which reads as follows:- “3. Levy of tax-(1) Subject to the other provisions of this Act, there shall be levied on every motor vehicle used or kept for use within the State a tax at the rate specified in Schedule-I and Schedule-III. (2) The State Government may by notification from time to time, increase the rate of tax specified in Schedule-I and Schedule-III; Provided that such increase shall not exceed fifty percent of the rate specified in Schedule-I and Schedule-III. (3) All references made in this Act to Schedule-I and Schedule-III shall be construed as reference to Schedule-I and Schedule-III for the time being amended in exercise of the powers conferred by this section.” 7. Levy of additional tax can be imposed in view of the provision contained in Section 3-A of the Act, which has been inserted vide Section 3 of the Orissa Act No.2 of 1986 and given effect to from 18.10.1985. Levy of additional tax can be imposed in view of the provision contained in Section 3-A of the Act, which has been inserted vide Section 3 of the Orissa Act No.2 of 1986 and given effect to from 18.10.1985. Section 4 deals with payment of tax and declaration of liability. Section 4-A of the Act has been inserted by way of amendment vide Orissa Act No.8 of 1989 w.e.f. 01.06.1989 empowering levy and payment of onetime tax. Admittedly, Section 3 is a charging Section under which power has been vested for levy of tax on every motor vehicle used or kept for use within the State at the rate specified under Schedule-I and Schedule-III. Under sub-Section (2) of Section 3, the State Government may by notification from time to time increase the rate of tax in Schedule-I and Schedule-III with a rider that such increase shall not exceed 50% of the rate specified. Section 4 makes it obligatory on the part of the use of the vehicle or kept for use to pay tax and declaration of liability. Therefore, the tax in question has to be paid in advance within such time and in such manner as may be prescribed to the taxing officer by the registered owner or person having possession or control of the vehicle. Sub-Section (2) of Section 4 prescribed the period in respect of which tax is to be paid under Sub-Section (1) of Section 47. On consideration of the entire provisions contained in Section 4, it appears that there may not be requirement of issuance of demand notice, rather it is a self-assessment process for which the registered owner or a person having possession or control over the vehicle is to deposit the tax to the taxing authority. As per Schedule-I, time and amount have been fixed for different categories of vehicles used by the registered owner. As per Schedule-I, time and amount have been fixed for different categories of vehicles used by the registered owner. Section 4-A which has been inserted by way of amendment, deals with levy and payment of onetime tax by using a non-obstinate clause, i.e., notwithstanding anything contained in Sections 3 and 4 of the Act, but subject to other provisions of the said Section, on every motor vehicle (being a motor car, Omnibus and Motor Cab) covered by items 6 of Schedule-I which is used personally or kept for personal use, onetime tax at the rate equal to the standard rate as specified in Schedule-III or five percentum of the cost of the vehicle whichever is higher is to be paid. Therefore, as per the provisions contained in Sections 4 and 4-A, a registered owner is to pay tax in accordance with the said provision. If the tax due in respect of any motor vehicle has not been paid as specified in Sections 4 and 4-A, the registered owner or the person having possession or control thereof shall, in addition to payment of tax due, be liable to pay penalty which may extend to twice the tax due in respect of that vehicle to be levied by such officer by order in writing and in such manner as may be prescribed under Section 13 of the Act. Sub-section (2) of Section 13 reads as follows:- “13(2). The penalty imposed under Sub-section (1) shall be without prejudice to the liability, if any, that may be incurred under any of the other provisions of this Act or the rules made thereunder but no such penalty shall be imposed without giving the party concerned a reasonable opportunity of being heard.” 8. In view of sub-section (2) of Section 13 mentioned above, no penalty shall be imposed without giving the party concerned a reasonable opportunity of being heard. 9. Sections 18 and 19 of the Act deal with appeal and revision, which read as follows:- “18. Appeal-(1) Any person aggrieved by any order or direction of the Taxing Officer or by seizure made under Sub-sec.(2) of Sec.17 may, within prescribed time and in the prescribed manner, prefer an appeal to such authority on payment of such fees, if any, as may be prescribed. Appeal-(1) Any person aggrieved by any order or direction of the Taxing Officer or by seizure made under Sub-sec.(2) of Sec.17 may, within prescribed time and in the prescribed manner, prefer an appeal to such authority on payment of such fees, if any, as may be prescribed. (2) Every appeal shall be heard and disposed of in the prescribed manner; (3) Every decision on such appeal shall, subject to the provisions of Sec.19, be final and shall not be called in question in any Court of law.” 10. The vehicle in question having been involved in a forest offence has been seized at Anjar check gate in connection with the illegal transportation of char coal of 80 bags, on 21.01.2011 and proceeding as contemplated under Section 56 of Forest Act has been initiated against the said vehicle in OR Case No. 102BJ/2010-2011. In appeal in FAO No. 1 of 2012 arising out of OR Case No. 102BJ/2010-2011, the learned District Judge, Keonjhar directed release of the vehicle in favour of registered owner after observing due formalities. The admitted fact is that the vehicle was under seizure by the Forest Authority for the period 22.01.2011 to 22.04.2014. The basic consideration for levy of tax is that in view of Section 3 tax can be levied on every motor vehicle used or kept for use within the State. The petitioner being a registered owner of the motor vehicle, whether he used the vehicle or kept the same for use within the State, is liable to pay the tax as per the provisions contained under Section 3 of the O.M.V.T. Act. The liability to pay tax rests on a person till he ceased to be in possession or control of such vehicle. 11. In the present case the vehicle which had been seized in connection with commission of forest offence has been directed by the learned District Judge, Keonjhar in appeal under Sub-Section (2-e) of Section 56 of the Orissa Forest Act to be released in favour of the registered owner. The only question for consideration is that during the period of seizure, since the vehicle has remained with the possession and under the control of the forest department, which is a State authority, whether the registered owner is liable to pay the tax and penalty so demanded in Annexure-4. The only question for consideration is that during the period of seizure, since the vehicle has remained with the possession and under the control of the forest department, which is a State authority, whether the registered owner is liable to pay the tax and penalty so demanded in Annexure-4. When the vehicle was under seizure, it has neither been used nor kept for use by the registered owner for which tax can be leviable under Section 3 of the OMVT Act. More so, seizure having been made by the State Authority, the registered owner has no occasion to use the same. If the same has not been used or kept for use by the registered owner during the period of seizure by the State authority, the registered owner may not be liable to pay tax. But at the same time the registered owner owes a responsibility to communicate to the registering authority with regard to seizure of vehicle under Section 10 of the Orissa Forest Act. As it appears in the present case, no communication about seizure of the vehicle by the Forest Authority has been issued by the registered owner to the registering authority. The vehicle having been seized by the State authority with eyes wide open to the registering authority. When the vehicle in question has not been used or kept for use by the registered owner, nor was he in possession or control over the vehicle during the period of seizure, he is not liable to pay the tax and penalty as claimed in Annexure-4. 12. In Madan Lal v. State of Uttar Pradesh, (2003) 7 SCC 465, the word Possession has been defined to mean:- “The legal right to possession. Possession need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.” 13. In Halsbury’s Laws of England (4th Edn., Vol. 35, p. 617, para 1111), which has been cited in Sadashiv Shyama Sawant v. Anita Anant Sawant, (2010) 3 SCC 385 (394), the words “possession, physical and legal” have been distinguished as under:- “Possession is a word of ambiguous meaning, and its legal senses do not coincide with the popular sense. In Halsbury’s Laws of England (4th Edn., Vol. 35, p. 617, para 1111), which has been cited in Sadashiv Shyama Sawant v. Anita Anant Sawant, (2010) 3 SCC 385 (394), the words “possession, physical and legal” have been distinguished as under:- “Possession is a word of ambiguous meaning, and its legal senses do not coincide with the popular sense. In English law it may be treated not merely as a physical condition protected by ownership, but as a right in itself. The word possession may mean effective, physical or manual control, or occupation, evidenced by some outward act, sometimes called de facto possession or detention as distinct from a legal right to possession. Possession may mean legal possession : that possession which is recognized and protected as such by law. The elements normally characteristic of legal possession are an intention to possessing together with that amount of occupation or control of the entire subject-matter of which it is practically capable and which is sufficient for practical purposes to exclude strangers from interfering. Thus, legal possession is ordinarily associated with de facto possession; but legal possession may exist without de facto possession, and de facto possession is not always regarded as possession in law. A person who, although having no de facto possession, is deemed to have possession in law is sometimes said to have constructive possession.” 14. In State of Mysore v. Allum Karibasuppa, AIR 1974 SC 1863 , the apex Court while considering Section 54 of the Karnataka Cooperative Societies Act, held that the word control suggests check, restraint or influence. Control is intended to regulate and hold in check a restrain from action. 15. In S.V. Cooperative Bank Ltd. v. K. Panduranga, AIR 1974 SC 1248, it is held that the word control’ is synonymous with superintendent, management, or authority to direct, restrict or regulate. Similar view has also been taken in Regional Provident Fund Commissioner v. Sanatan Dharam Girls Secondary School, 2006 (10) JT 159 . 16. The vehicle having been under seizure with the forest authority, the petitioner lost his superintendence, management and authority to direct and restrict, regulate such vehicle. Similar view has also been taken in Regional Provident Fund Commissioner v. Sanatan Dharam Girls Secondary School, 2006 (10) JT 159 . 16. The vehicle having been under seizure with the forest authority, the petitioner lost his superintendence, management and authority to direct and restrict, regulate such vehicle. Even though, he was in legal possession of the vehicle he having no control over the same, and the vehicle being in custody of the forest authority, who is one of the State authorities, question of liability of the petitioner to pay tax and penalty should have been considered by the authority while issuing the demand notice in Annexure-4 for the period from 22.01.2011 to 22.04.2014. 17. In view of the aforesaid provision even though the petitioner was not in physical possession of the vehicle in question during the period of seizure, but he is legal possession of the same. Once he is in legal possession, he is obliged under the OMVT Act to intimate the authority with regard to off road of the vehicle. In view of the fact that the petitioner has not intimated the authority with regard to the off road of the vehicle, he has committed lapse under the OMVT Act itself. But the fact remains that the vehicle having been seized in connection with the forest offence and was in the custody of the State Authority, there was no occasion on the part of the petitioner to use the vehicle. More so the vehicle was not under the control of the petitioner during the period of seizure. Taking into consideration the contention of the petitioner that he is young person and earns his livelihood by plying the vehicle having suffered a lot, this Court is inclined to quash Annexure-4 instead of relegating the matter to the alternative forum available under the Act to exhaust. Accordingly the impugned demand in Annexure-4 is quashed. 18. With the aforesaid observation and direction, the writ petition stands disposed of. No cost.