IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1687 of 2010 Balindra Rai, son of Shri Mahavir Rai, resident of Village: Imlichatti, P.S. Brahampur, District-Muzaffarpur. -- Petitioner. Versus 1. The State of Bihar. 2. The Member, Board of Revenue, Bihar, Patna. 3. The Secretary, Transport Department, Government of Bihar, Patna. 4. The Joint State Transport Commissioner, Transport Department, Govt. of Bihar, Patna. 5. The District Transport Officer, Muzaffarpur. -- Respondents. For the petitioner : Mr. Randhir Kumar Singh, Advocate. For the respondents : Mr. Siddharth Prasad, AC to AAG-9. -------- PRESENT: THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR.JUSTICE MIHIR KUMAR JHA O R D E R (03.02.2010) As per Dipak Misra, C.J.- Invoking the jurisdiction of this court under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for issue of a writ of certiorari for quashment of the order dated 11.09.2009 passed by the Member, Board of Revenue in Revision Case No.03 of 2009, whereby he has affirmed the order passed by the Secretary, (Transport), who has concurred with the order passed by the Joint Transport Commissioner, Bihar, Patna. - 2 - 2. We have heard Mr. Randhir Kumar Singh, learned counsel for the petitioner, and Mr. Siddharth Prasad, learned counsel for the State. 3. It is submitted by Mr. Singh that the Member, Board of Revenue has fallen into grave error by expressing the view that the petitioner did not have a valid permit after 27.03.2004 and, therefore, he cannot claim exemption of tax for the period 05.09.2005 to 25.11.2005. It is contended by Mr. Singh that the permit was valid till 2009 and, hence the finding recorded by the Member, Board of Revenue is absolutely perverse. 4. Mr. Siddhartha Prasad, learned counsel for the State has submitted that the Member, Board of Revenue has taken note of the fact that the permit which was sought to be relied upon having the validity period belonged to a different vehicle altogether. Learned counsel has also invited our attention to Annexure-1 to show that there was no mention of permit number qua vehicle. Learned counsel for the State has also submitted that the petitioner had not produced any permit before the appellate authority. 5. Be it noted, the Secretary (Transport) after analyzing the facts on record has held as follows:- - 3 - “From the perusal of the impugned order of Joint State Transport Commissioner it appears that the claim of the appellant has been dismissed on the following grounds: 1. The permit of the vehicle in question has not been furnished. 2. Insurance papers have not been furnished. 3. The vehicle in question has been released without obtaining the certificate from MVI/DTO regarding the vehicle having been repaired and fit to be ply on road. From the perusal and analysis of the document available on record it appears that on the date of surrender the vehicle was not covered with a valid permit because the photocopy of the permit filed by the appellant (annexure-3 of the memo of appeal) reveals that it was valid from 28.3.1999 to 27.3.2004 only. The photocopy of the insurance documents reveals that the vehicle in question was covered by insurance till 28.2.2006. It also appears that the appellant in the present instance submitted an application dated 25.11.2005 to the District Transport Officer, Muzaffarpur requesting for the release of the vehicle in question and the District Transport Officer, Muzaffarpur without ascertaining the status of repair or fitness of the vehicle in question released the vehicle merely on the request of the appellant.” claim of the appellant has been dismissed on the following grounds:- 1. The permit of the vehicle in question has not been furnished. 2. Insurance papers have not been furnished. 3. The vehicle in question has been released without obtaining the certificate from MVI/DTO regarding the vehicle having been repaired and fit to be ply on road. From the perusal and analysis of the document available on record it appears that on the date of surrender the vehicle was not covered with a valid permit because the photocopy of the permit filed by the appellant (annexure-3 of the memo of appeal) reveals that it was valid from 28.3.1999 to 27.3.2004 only. The photocopy of the insurance documents reveals that the vehicle in question was covered by insurance till - 4 - 28.2.2006. It also appears that the appellants in the present instance submitted an application dated 25.11.2005 to the District Transport Officer, Muzaffarpur requesting for the release of the vehicle in question and the District Transport Officer, Muzaffarpur without ascertaining the status of repair or fitness of the vehicle in question released the vehicle merely on the request of the appellant." 6. It is significant to note here that in the revision petition filed by the petitioner a plea was raised that he had a valid permit, but the same was rejected by the Board of Revenue. The reasonings ascribed by the Board of Revenue in its order in Hindi on being translated into English would read as under:- "Perused the Appellate and Revision records. The petitioner produced the proof of having permit on first point as ground of rejection. He had also mentioned in para-14 of the Appeal petition that he had valid permit at the time of surrender of vehicle. But as a proof of it, the photocopy of the permit which he had attached there was Annexure-3 of the Appeal petition. It was another permit bearing no. 137/99 which was valid till 27.3.04. The Appellate Authority has formed the right opinion on this ground. The permit filed in Revision petition bears no. 82/99 which was valid till 16.2.09. This vehicle was substituted on 10.2.05 in place of the other vehicle covered with this permit. The same permit would have been relevant had the petitioner wanted to present his case in the Appeal Petition. In ground no. 3 of the Appeal the petitioner has also stated that the vehicle not being covered with valid permit (besides other documents) is not a proper ground for rejecting the tax remission. Clearly, his case showed that there was no permit. He mentions in ground no. 3 of Revision case that his vehicle was covered with permit and the same was surrendered. Thus, coming with the new facts in Revision case which could have been produced at the time of Appeal, is not proper." - 5 - 7. It would thus become clear that the petitioner initially had lodged his claim for refund of tax on 5.9.2005 by claiming the vehicle to be off road since 26.8.2005 but he had annexed the copy of permit no. 82/99 which was valid for the period 28.3.1999 to 27.3.2004 only, though in Form-J he had cleverly mentioned the date of validity of the permit upto 16.2.2009. This however was detected by the appellate authority and when the said finding of fact was assailed before the Revisional authority i.e. Board of Revenue he had not only produced a separate and different permit no. 82/99 which was shown to be valid till 16.2.2009 which was for some other vehicle but had also taken a plea that there was no requirement in law to produce copy of permit for remission of road tax. Consequently the aforesaid finding of fact that the revisional authority i.e. the Board of Revenue that the petitioner did not possess the valid permit as on 26.8.2005 the date from which his vehicle was claimed to off-road is an unassailable on fact specially when the document in question itself, permit no. 82/99 issued by Deputy Transport Commissioner on 16.12.1999 vide Annexure-6 to the writ petition would go to show that it was valid for the period 17.2.2009 to 16.2.2004 and the endorsement of its renewal from 17.2.2009 to 16.2.2014 was made on its back only on - 6 - 10.2.2009 on a date the appeal had already stood disposed of i.e. 19.8.2008. It is significant to note that the other permit no. 137/99 valid up to 27.3.2004 or the permit which was valid between 28.3.2004 to 16.2.2009 has purposefully not produced by the petitioner in this writ application and now a plea has been advanced that there is no necessity in law to have a valid permit for claiming exemption of road tax for the period 5.9.2005 to 25.11.2005 as the vehicle was off-road. It is urged by Mr. Singh that once the vehicle is off the road and there was proper surrender, the tax cannot be levied. To bolster his submission, he has commended us to a three-judge Bench decision of the Apex Court rendered in Bolani Ores Ltd. v. State of Orissa, AIR 1975 Supreme Court 17. He has also relied on the decision in the State of Gujarat and others Vs. Kaushikbhai K. Patel and another, AIR 2000 Supreme Court 2175. 8. In Bolani Ores Ltd., (supra), in paragraph 15 the Apex Court has expressed the view as follows:- “ …… Since the taxing statute is a regulatory or compensatory statute, it is contended that the provisions of Sections 6-B, 7, 9-A of the Taxation Act relate only to the actual use of the public road. It is pointed out that Section 6 of the Taxation Act does not place the burden of taxation on the registered owners of the motor vehicles, but only on the persons who keep the motor vehicles for use which would mean these use them on the public roads. If no such use of public roads is made or the - 7 - vehicles are not such which can be used on the public roads, then no tax could be levied under the Taxation Act.” 9. On a perusal of the said decision, it is manifest that their Lordships were dealing with altogether a different controversy inasmuch as the concept of a vehicle used on public roads or nature of vehicle was the issue. Thus, the said decision is not attracted to the case at hand since we are concerned with valid discontinuance of use of a vehicle. 10. In Kaushikbhai K.Patel (supra), the Apex Court dealt with Section 3 of the Bombay Motor Vehicles Tax Act, 1958 and the Rules framed thereunder and expressed the view as follows: “Section 3-A(5) as amended by Gujarat Amendment Act requiring to satisfy the State Government or authorised officer as to the reasons beyond the control of the registered owner or the person in possession for non-use of the vehicle beyond three months was beyond the legislative competence of the State. In this view, the words “for reasons beyond the control of such owner or person” occurring in clause (b) of sub section (5) of Section 3-A of the Act were liable to be struck down. The taxes are levied on the vehicles using the roads or in any way forming the part of the flow of traffic on the roads which is required to be regulated and not on the vehicle which do not use the roads at all. What is material and relevant is use of road by vehicles for levy of tax under the Act. The reasons for non-use of roads is immaterial and irrelevant when the nature of the tax itself is compensatory for use of roads. Otherwise also various provisions and safeguards are available in the Act. The authorities have enough powers to check evasion of tax even - 8 - without insisting for the reasons beyond the control of registered owner or person as to the reasons for non-use. Moreover, mere apprehension of the authorities that omni-buses will be clandestinely operated and claim would be made for refund on the ground of their non-use cannot justify for the insistence of satisfaction as to the reasons beyond the control of the owner or person for non-use of a omnibus. Further, the condition that for a period of non-use beyond three months, the owner or a person in possession or control of vehicle should satisfy the reasons beyond the control for non-use of vehicle is attached to omnibuses and not to other vehicles. If the authorities see any difficulty in working of their officers in the matter of checking evasion of tax that itself is not a good ground to uphold the validity of the said condition under amended S.3-A(5).” (Quoted from the placitum) 11. Thus, the Apex Court opined that the taxes are levied as a regulatory measure and mere apprehension of the authorities that the vehicle might have clandestinely operated would not be a ground to deny the refund. Hence, the said decision is distinguishable on facts. 12. In Kulwant Singh Vs. State of Jharkhand, 2003 P.J.L.T.10, the learned Single Judge of the Jharkhand High Court has held in paragraph 3 as follows:- “ Respondents‟ case in the counter affidavit is that petitioner did not inform the District Transport Officer from time to time that the Dumper could not be made ready within a month and also for exclusion of the period of surrender. It is stated that in absence of any prayer for extension of surrender of the vehicle for the period beyond six months petitioner will not be entitled to exemption from payment of road tax.” - 9 - 13. In the said case, the bench interpreted Sections 17 and 19 and opined when an application for extension for period of surrender is filed, the appellant would be entitled to exemption from payment of road tax. In that factual backdrop, the learned Single Judge has decided on the admitted facts the vehicle was not used and Form-„J‟ was submitted by the petitioner therein. 14. In the case at hand, the facts are absolutely different and they are to be appreciated on the backdrop of statutory provisions. Section 17 of the Bihar Motor Vehicles Taxation Act, 1994 which deals with prior intimation of a temporary discontinuance of use of a vehicle reads thus: “17. Prior intimation of a temporary discontinuance of use of a vehicle.- (1) Whenever any motor vehicle becomes incapable of use due to disability caused by mechanical breakdown or litigation or due to other causes prescribed by State Government for any period more than a month, the owner shall on or before the date of expiry of the term for which the tax has been paid, furnish to the taxing office an undertaking duly signed and verified in the prescribed form and specifying the period aforesaid and the place where the motor vehicle is to be kept along with the current registration certificate, fitness certificate, and tax token, and such other particular as may be prescribed and shall from time to time by furnishing, further undertaking give prior intimation to the concerned taxing officer of the extension, if any, of the said period and the changes, if any of the place where the motor vehicle shall be kept. The owner shall also surrender the permit of the vehicle to the Transport Authority which has - 10 - granted permit to it with intimation to the taxing officer: Provided that no such undertaking shall relate to a period exceeding six months at a time. (2) If at any time during the period covered by an undertaking as aforesaid the motor vehicle is found being used or is kept at place in contravention of any such undertaking such vehicle shall for the purpose of this Act, be deemed to have been used through the said period without payment of tax. (3) In the absence of any undertaking delivered under sub-section (1) every motor vehicle liable to pay tax under this Act shall be deemed to have been used or kept for use within the State.” 15. On a scrutiny of the aforesaid provision it is patent that the vehicle has to be surrendered as per the prescribed rules. A set of rules, namely, the Bihar Motor Vehicles Taxation Rules, 1994, (in short „the Rules‟) has been framed. Rule 13 deals with Form, etc. for temporary discontinuance from use. The said Rule reads as under:- “13. Form etc. for temporary discontinuance from use.- Intimation for temporary discontinuance of use of motor vehicle shall be given in Form J stating required particulars. Any change in undertaking so delivered as required under section 17 shall be intimated to the Taxing Officer from time to time.” 16. Rule 15 deals with procedure for enquiry in respect of temporary discontinuance of vehicles. Rule 13 refers to Form- „J‟. Form-‟J‟ has been brought on record as Annexure-1. Clause-6 of the said Form which is in Hindi on being translated into English reads as under:- “ I am also submitting the following documents in respect of the above vehicle:- - 11 - (a) Certificate of Registration--- Original copy (b) Fitness certificate-Validity period-01.05.06 (c) Certificate of Insurance- Validity period- 28.02.06. (d) Original permit- 16.02.2009.” 17. Thus, as per Form-„J‟ which is the prescription under the Rule, the requirement is to submit the original permit. The permit, as has been mentioned therein, is dated 16.02.2009. The same has not been given credence to by the authorities and they have recorded a categorical finding that the permit was not in vogue. Thus, there was actually no proper submission of Form-„J‟ and, therefore, there was no surrender of the vehicle for the purpose of keeping off road. Submission of learned counsel for the petitioner is that the recommendation of authority concerned has not been appositely appreciated. The recommending authority may recommend, but the same is not binding on the adjudicating authority. Emphasis has been laid on non-submission of the permit. Once there was non-compliance of Form-„J‟, we are inclined to think that the vehicle cannot be treated to be off road. All the authorities have adverted to non-submission of permit and there are two different permits. Mr. Singh, learned counsel for the petitioner, submitted that the permit was submitted. On a plain reading we do not find the same from any of the orders. - 12 - 18. In this context, we may refer with profit to the decision rendered in State of U.P. and others v. Maharaja Dharmander Prasad Singh, AIR 1989 Supreme Court 997. In paragraph 28, the Apex Court has held as follows:- “ ….However, Judicial review under Article 226 cannot be converted into appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision-making process. In Chief Constable of the North Wales Police V. Evans, (1982) 1 W.L.R.1155 refers to the merits-legality distinction in judicial review. Lord Hailsham said: “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court.” Lord Brightman observed: “….Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made….” And held that it would be an error to think: “…. That the Court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself.” When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision-making process includes examination, as a matter of law, of the relevance of the facts. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice. It would, however, be appropriate for the statutory authority, if it proposes to initiate action afresh, to classify the grounds pointing out which grounds, in its opinion, support the allegation of fraud or - 13 - misrepresentation and which, in its view constitute subsequent violations of the terms and conditions of the grant. The grounds must be specific so as to afford the Lessees an effective opportunity of showing cause.” 19. We have referred to the aforesaid decision so as to appreciate the concept of judicial review. Their Lordhips have emphasized that the High Court in exercise of power under Article 226 of the Constitution of India is to see whether there is an error in the decision making process. In our considered opinion, there is no error in the decision making process and an apposite view has been taken on the basis of relevant facts. 20. In view of the aforesaid, we do not perceive any error in the orders passed by the authorities and, accordingly, the writ petition, being devoid of merit, is dismissed. There shall be no order as to costs. (Dipak Misra, C.J.) (Mihir Kumar Jha, J.) Patna High Court The 03rd February, 2010 A.F.R. Sunil/P.S.Chandran