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2016 DIGILAW 317 (HP)

Kultar Singh v. State of Himachal Pradesh

2016-03-22

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Mansoor Ahmad Mir, Chief Justice. The writ petitioners have sought writ of mandamus commanding the respondents not to charge the taxes applicable for the use of National Highway 21A, which is incomplete and not roadworthy, to refund the excess taxes charged and to complete the construction of National Highway 21A within a stipulated period, on the grounds taken in the memo of the writ petition. 2. Respondents have filed the replies. 3. Respondents No. 1 and 3, in their short reply filed on 8th November, 2013, have stated that Pinjore-Baddi-Nalagarh-Swarghat NH21A falls within the territorial limits of Himachal Pradesh from Km 17/400 to 66/275 (near Baddi to Swarghat), the work of strengthening the road was completed on 9th February, 2011 and it is roadworthy. However, some pot holes were developed due to rainy season, which were repaired. The road from Manapura to Nalagarh is in good condition and from Nalagarh to Bagleher, the work was awarded to M/s Trilok Chand Gupta & Co. Kankhal, Haridar (Uttarakhand). 4. Thereafter, respondents No. 1 and 2 have filed detailed reply on 31st January, 2014 and in para 9 of the reply on merits, it is stated that though, Chikni Bridge was constructed, but stretch of it was washed away due to unprecedented flash floods and its reconstruction was under process, it was to be completed by March, 2014. 5. Respondent No. 3, in its reply on merits, has stated in para 5 how taxes are being charged. It is apt to reproduce para 5 of the reply herein: “5. That in reply to this para it is submitted that Govt. of Himachal Pradesh has issued notification dated 9-1-2006 and fixed the rates of Special Road Tax which has to be charged for National Highways, State Highway etc. (Annexure R II). The Regional Transport Officer cum Taxation Authority under Himachal Pradesh Motor Vehicle Taxation Act 1972 has charged the special Road Tax as per these rates which are notified by Government.” 6. It has also been stated in the reply that the taxes charged are permissible as per the law applicable. It is profitable to reproduce para 12 of the reply on merits filed by respondent No. 3 herein: “12. That Regional Transport Officers are rightly charging the Special Road Tax as per rates so fixed by State Govt. It has also been stated in the reply that the taxes charged are permissible as per the law applicable. It is profitable to reproduce para 12 of the reply on merits filed by respondent No. 3 herein: “12. That Regional Transport Officers are rightly charging the Special Road Tax as per rates so fixed by State Govt. to avoid any kind of Audit Objections and charging the Special Road Tax as per rates of National Highway. Already annexed as (Annexure R II).” 7. Mr. Romesh Verma, learned Additional Advocate General, stated at the Bar that the said road is operationalized. His statement is taken on record. 8. The question is – whether the writ petitioners are within their rights to file the writ petition and seek a writ of mandamus commanding the respondents not to charge the taxes? 9. It is not known in which capacity the writ petitioners have filed the writ petition. Had they filed the writ petition in representative capacity, they were required to seek permission under Order VIII Rule 1 of the Code of Civil Procedure (for short “CPC”), which they have not done. The writ petition is also not in the nature of public interest litigation because it is not fulfilling the requirements as per the Rules framed by this Court read with the mandate of the Apex Court judgments. 10. The writ petition has been loosely drafted, leads nowhere. It is also apt to record herein that the writ petitioners have not questioned the mandate of notification dated 9th January, 2006 (Annexure RII), the mention of which has been made in paras 5 and 12 of the reply (supra) read with the mandate of sub-Section (1) of Section 3(A) of the Himachal Pradesh Motor Vehicles Taxation Act, 1972 (for short “the Act”). 11. The said notification, dated 9th January, 2006 (Annexure RII) provides how to levy, charge and pay the Special Road Tax to the State Government for the roads in hills. Without questioning the said notification, the writ petitioners cannot seek writ of mandamus. 12. In terms of the mandate of the said notification, the Special Road Tax was payable from 1st April, 2005. Without questioning the said notification, the writ petitioners cannot seek writ of mandamus. 12. In terms of the mandate of the said notification, the Special Road Tax was payable from 1st April, 2005. The writ petitioners have not raised any finger right from the date of issuance of the notification, i.e. from 9th January, 2006, till filing of the writ petition in hand, i.e. 6th August, 2013, is suggestive of the fact that the writ petition is aimed at to avoid paying the taxes, which the writ petitioners are legally bound to pay. 13. It would also be profitable to record herein that the road in question has been declared as National Highway on 6th January, 1999, in terms of Annexure P3. Once the road has been declared as a National Highway, the taxes are payable as are applicable to a National Highway. 14. It was for the writ petitioners to question the said notification, which they have failed to do so till filing of the writ petition. Rather, they have acted upon the same and paid the taxes. Once, the road has been declared as National Highway, the consequential actions have to follow. 15. In view of the above, we find no merit in the writ petition and the same is dismissed alongwith all pending applications.