^ ^y\w\ BEPOKE THE HIGH COU83? GF CHHATTISGAKH AS BILASPVR. Writ Petitioa N@»3-S-^-2^/2003« ^ •^ •^ IL PETITIONER SESPOBi&ENTS <2^^^> ^^-" Smt^ ©repa^iBevi^ Wife ©fLate Shri S.P»Siagh, / Aged about 50 years^ ^/o K©r4acollery^ Mstt. Korea (C»G<), // VERSUS // t l* The State ef Ghhattisgarh,. Through the Secretary^ ©epartRieat©fTra&sport^ D,K»Bhawan, JRaipur <C»G«)« 2. The Inchacge Transpert rlyiiag ..•- ^ Squatf^ ^Mkapur^ \^ 3^ The Regional Transport Offiaer Bilaspur (C<G«)« ^^ WRIT PETITION US&ER AR3?ICLES 226/227 OsP_S^ CONSTISUTION GS INBIA. 1. ^;^^^?—-- ^^ WRIT PETITION N0. 3542 OF 2003 Smt. Dropadi Etevi -Versus- State of Chhattisgarh & otih^rs ORDEIl L\ POSTFOR ^<02-2004 Sd/- L.C. Bhadoo Judge HIfiH COURT 0»JUniCATURBl CHHATTIfiGARIIs RILA»?UR WRIT PBTIIIOa WO. 3542 OF 2003 Smt Dropadi Deyi -Versus- State of ChhatUsgarfi & othera Petitioner by Shri B, K. Rawat, Advocate. Respondents No. 1 to 3 by Shri Sanjay K. Agaawal, Deputy Advocate General. O R DE R (Passed on^L-Februaiy, 2004) As per Justace L. C. Bhadoo. Under Article 226/227 offhe Constitution of India the pctitioncr who N registercd owner of Bus No. C.G. 16-ZA/0130 has fitod fhis writ petiction chaBengmg the seizure memo dated 18.10.2003 and for grant of exemplaiy cost of Rs. l,00,000/- for illcgal seizure ofthe vehicte, Brief feicts yyymg risc to filmg of fhis writ petidbn are that the petitaoiier is canyii^g on transport biMiaess on the strcngth of sta^e cairiage permit granted by the Transport Authority. The petitioner is hoMing regular pennit No. 758-B/98 on thc route Chiaairi to Bachra. Pbdi via Budhripaia aad Ratanpur, The regular permit was expired on 7.7.2003 and the imiewal appUcation is pendiag, During fhe pendenqy of tte c^pUcation for rcgidar pennit the petitioner obtaiaed temporary permit for the mouth of August and September, 2003. Howcvcr, on 30tlt September 2003 fbe petitioucr submitted an appMcatioa to the R.T.O. Bflaspur inforaamg tfaat (he petitioncr w not wiUing to takc temporaiy pennit for the nionffa of October, 2003 for the reaBoa that tfae vehicte rcquires repairs, copy of the sqoplicataon i» Amiexure P/3. Tbe pctitioner had ateo deposrfted the motor vehicte Tax amounting Rs. 8000/- for the month ofOctober 2003 on 10.10.2003, oopy ofthe challan »Annrature P/4. ^3' On 18.10.2003 the ffying squad of flae transport department seized the vehicle which was under repairs for the reason that the vehicle was not covered with fhe pennit nor the driwer was haviag licence. The vehicle was seized under flie piovisions of Section 207 ofthe Motor Velucles Act, 1988 and Section l6(3) of the Motoiyan Karadhan Adtuiuyam, 1991( which wiU be referred hercmafter <fhe Act 1991), A copy of the seizare memo is Annexure P/5, No assessment oider has been pa^^d by fhe Taxing OjBScer nor any dexnand notice has beea issued, tliereforc, the sdzurc of the vehacte is patentfy ittegal and without jmisdaction. Neifher aay notice has been issued to thc petitioner nor aay opportunity ofhearing been oflFercd, Under section 66(3) of the Motor Vehicles Act, 1988 no pennit is requircd for the vehicfc for fhe purpose ofits repairs, therefbre it has been praycd fhat the seizure memo be quashed, thc vehicle be reteased suad exemplary cost be granted in favour ofthe petitibner. Retura has been filed on behalf of fbe respoDdents No. 1 to 3 in which it has been mentioDed that the petitioner ought to have avaUed the rcmedy availabte under the provisions of ^ctioii 20 ofthe Act 1991 as this is the altemative and efficacious rcxttedy available to the petitioner. Most of the feiete are admitted by the rcspondents, however fhey have iBientioned ia their rctum that on 18,10,2003 fhe vehicle was found pfying wifhout permit upon whrch the seiziirc memo was prepared and copy af the paiichnaioa is filed as Annexure R/2. On iaspection it was fouad that fhe vehicle was canymg 14 passengers. Copy of Ust of passengera is fifcd as Aanexurc R/3. Copy of the statemeiits of three passengers is also Sted as Annexure R/4 and fhe vehicte is kept in the prcmises of (he polioc station Khadgvan. TtusnsfoBe the petition be dtemissed, I have heard Shri B. K. Rawat leamed counsel ft>r the petitioaer and leamed Deputy Advocate General Shri Sanjay K. Agaiwal for the Respondents No. 1 to 3. It M an admitted position tfaat on 18.10.2003 fhere was no pennit with the petitioner. The petitioner's claim is tfaat tbc vehicte was under rcpairs thercfore the temporary pdmit for fhe monfh of October, 2003 was not obtained by the petitioucr and ao. mtimation to that effect was submitted on 30th September, M^i 2003 iteelf. On the other bsaaid as per fhe rcspondents^ stand on 18.10.2003 the vehicle m question was found cassyixtg 14 passesigers fiom Chianiri to Bachrapodi, tickets were not issued to (hose passengers therdbre the vehicle was sdzcd by the ffying squad of the transport department, the seizure memo and panchoamas were prepared, stateiaents of the passengers were rccorded. Since the vehicle WSKS pfyiag without peimit therefoic ihey iiaposed a tax ofRs, 50,000/-. 7. Leamed counsel for fhe petidoner aiyied as (he vehacte waa seized under section 207 of the Motor Vehicles Act, 1988 therefore as per the proviso to section 207 mstead of seizing the vehicle; fhe officers of the ffymg squad oi^tit to have taken into possessK>n fhe documents of tiie vehfcle. On the other hand learaed Deputy Advocate General argued tfiat the vehicte was seisred under section 16(3) of fhe Act, 1991 as tte vehicte was found canyiag passengera without valid permit and pasymeitt of tax. 8. As per the scheme of fhe Act in the normal course (he tax is payable in advan<^< As per Sectton 3 a tax shall be fcwied on evexy motor vehicte used or kept for use ia fhe State at fhe late specifijwi in the Flrst Schcdute. As per Sectk>n 4(2) a transport vehicle ofwhich (he certificate of rcgistiation is cuiTEait shall, for the purpose of this Act, be presumed to faewe been in use or feept for use, notwithstanding the expuy of the certifteate of ftoess in case of tEaasport vehicle, Section 8 requires eveiy owner to file a declaratton with fhe taxation authonty and after the reccipt of such declaiation the tax is detennaaed. Rute 5 ofthc Motoryan Karadhan Rules> 1991 fiamed in exercise offhe powera conferred by Secdon 24 of fhe Act provides tfaat the declaration shsdl be in Fomi B for a transport vehick. A perusal of Fonn B appemled to fhe Rules shows that the owner of the vehicle has to give fhe partfculars of pennit held by hid m that Form. Tlius the teraunus a quo, the point of begianmg, ft>r determiaation of fhe tax under titie Act is fhe filiag of fhe declaration under Sectiosa 8 of the Act.aad ffae condition precedent for domg so is thc valid pennit under Section 66(1) <rf fhe Motor Vehicles Act, 1988. In the absence of this pennit the nonnal procedure for asscssment ^ lr and payment ofthc tax m advance for a teaasport vchfclc brcafes down. 9. Entry IV (^ iu the Pirst Schedute pravMies for tevy of tax on 'motor vehicte ptying without pennit* Tb&t is fhe cxtinoniinaiy mode of taxation. There is m-built peDally. EKplanatfon (1) appended to the Schedufc piovides that fhie number of passengera which a vehick is penaitted to cany shaU in fhe case ofa motor velifcle pfying for hirc or i^waid without permit be the maximum auinber of peraons or passeogera whfch the vehicle may be permitted to cany, ifa permit was granted. That meaas the tax in such a case is payabte in accordance with the aitirc registercd capacity irrespecfwe of the number of passengers ia fhe vehicle. In the present case capacity of the vehicte waa 50 passengers therefore Rs, 1000/- per pa^senger as per admissible tax, Rs. 50,000/- was imposed as tax, 10. Sectton 8(4) of fhe Act piovides that wbere tf»eowacr fiula to file a declaration required under sub-section (1) or (2) the ta?cation authority may, on the basis of infbrmatfon avaflabte with Irim and afier giving to the owner an opportunity of bexo^ hcaid, by an order m writing deteniune the amouut of tax payabte by such owner suo niotu and mtimate the same to hun in such fonn and wifhia such time as may be prcscribed, Sectioa 15 pxovides fw seryice ofdemand notice by the taxatfon authority. 11, Section 16 lays down the power ofentiy, adssuie aad detentton of motor vehicles in case of non-paymeiit of tax, Sub-sections (3) and (4) ofSTCtaon 16 are as undcr: (3) The Taxation Autfaonty or any olG&xr aullaoriseed by the State Goverament in tfais behalf miy if hc haa Teaaon to belteve tfaat a motor vebscle has been or is bcia^ uaed without paymettt of tax, penalty or intercst due, sdhse aod detain such inotor vehicle and for this purpose tafcc CMT cause to be taken any step as may be considered proper for the temporary safe custody of sucdi motor vducte and for the realization oftax due. (4) Wherc a motor vehicte has been seized and dctamed under sub-sectfon (3), fhe owiwr or tfac peraon mchar^e of such vehicte niay appty to the T€«ationAufhorily or any oSBcer aufhorized m tfais bdmlfby tfae State GovCTnacmcat tc^ctliCT "F wifh fbe retevant documente for the rdtease of the veliicle and if such authority or oflBcer after venfisc^tion of such documents, is satisjDied that no amount of tax is due in respect of that vehfcle, may by an order iii writmg retease such vehicte.^ 12. Rute 17 ofthe Rules, 1991 is rctevant in this ccnitext and fhat is as under:- "17. Ptocediure fiwr arfamre aaul detentlon of motw wehicle in ca»e of non-payniCTit of tax - (The memoraadum of seizure aad the order of seizure and detention ofmotor vehicte under sub-secrtion (3) of Section 16 ofthe Act shaU be xaade m Porm U-l and U-2 respectivety, aad copies fhereof shaU be seryed on the persous fix>m whose possession or coirixol sucti motor vehicle hsus been seized and detaixied) (2) The motor vehfcle seized and detained Bhall be kept m safe custody at the nearest PoMce Statwn or at any other place at the discretiba of thc oflfcer sefemg the motor vehrcte or fhe Taxation Authority. (3) The vehicfc detaiaed shaU be rdtea&ed by the offifcer or the Taxation Authority seirifl^ it on payment of tax, penally and mtCTest due." 13. The conjoint reacUng of Sections 8(4), 15 and 16 of the Act and Riile 17 of fhe Rules gocs to show fhat the sdzure and detention of fhe vehicte shaU continue until the tax €XDL fhe vehkde whrch was found pfyuig without permit is paid. There is no provisfon fbr release ofthe velucte without payment oftax < per Esitsy IV(^ of the Firat Schedule. As per the piovision the tax mi»tbe pa3kl in advance before the vehicfc is biou^ht on the ioad. Duly has been caste upon fhe Taxation Authority to determiae tfae tax as eariy as possible quickfy as pcr Section 8(4) after hpflring tfae owner and serve the demaiajd notice on. hiTn- During flus proc^ss fhe Taxation Authorily will also decide fbe disputed questioas of fect raised by fhe owner. Tbsre is a provmion of cypeal to the prcscnbed aufhonty under section 20 offhe Act 14. As far as tiie authority cited by leanaed couasel fw tfae petitfoiwr A.I.R. 1993 M.P. 29(Mahendra Aroia & anofher Vs. Thc Transport CommissionCT, M.P. Gwalior & others) is conoenied para-29 in whrch it has been held fhat when a putrfic aervioe <® vehicle is foutid ptyiag for hire or rewaid and is used actuaBty fbr transport of passei^ers without a valid penntt iasuied m accoxdanoe wifh law aufhorizittg it to ei^age ia fhat toEMle, the owner oftih.e vehicte shaU be liable to pay tax in teixas ofitem (g) of Entiy IV of the Flrst &;hedule. It has been obscived ihat for avoiding a seteure under S«;tion 16(3) of fbe Act two coxaditions of obtainmg a pennit and advance payment of tax coatoBiplated under fhe Act are to be satibsjBted. The legal rcquircinent ia, firet there shall be a pennit dufy obtained and thcn partkmlara ofthat duJy filfcd m fhe declsuation whfle tendermg iwyment It bas been furfher stated that it is obvious ttiat <cfbr tbe reaMzation of tax due" seizurc aad detentton can tws ixxade under Sectkxn 16(^ as fhat is its object and purpcxse and tax tevied and i»yabtein terms of sub-item (^ is abo *ta?c du^. The sdzure must be in conformity wifh the provisions offhe Act aad the Rutes, 15, The ofher decision of the Division Bench is Naveen Vs, Sta*e_^ M.P. rcported in 1994 MPLJ 681 in which it has bcen hdd Ifaat the taxable event is use of a vehicte as a public scardce vdhicte. The safte&ction is that of fhe Taxatfon Authorily. Such satisfaction is implfcit in the act ofenquiiy taadmg to seunire and assessment It has been furfher held that Section 16 of fhe Aet enable fhe petitioner to appxoach tfae autfaority and satisfy it wittx the rCT^oids or ofherwise that there has been no non-paynieiit of tax due, Section 20 provides for an appeal to the Appefflate Authorily, subjwt of courae to the condition tfae tax should be cfcarcd. The Appellate Authority has juri^iictibn as well as a duty to go iuto thc contentions raised by an appeflant aud anive at a proper and correct decision on (he basis of tfae matertsd available before it This appears to be an eflfective, eflGteadbiis and alteraative remedy, The disputed questfons of fect arising in the ca<^ cannot be determined ia exeicise of exteaonliiiaxy jurisdiction zmder Articte 226 ofthe Coi titution oflaida, 16. In the light of the above decisions ifwe took iato tfae fecte ofthe prcsent case, the vehicte in question was seiaed on 18. IO.^X)3 while canymg 14 passengers ftum Chiraairi to Baehxa Podi and the seizure memo was prei^uned as rcquired under law, the list of peussengera was ateo prcpared and fhe statements af the passengera were recorded, The seizuxe was rcported to the _-^ 17. 18. (^) Taxiag Aulfaorily. As per tfae petition of fhe petitioner durmg fhat {^riod the vehicle was under repaira so no permit was obtamed and a false caae has beexi prepared against fhe pef(dbi r. Where^ on the ofher hand fhe respondents have produced the seizure mem.o, copy ofthe statements offlie ^aaesvgsss and saad that at fhe rclevaoit time the bus in question was canying 14 passengers, without issumg tickets to fhe pa^sengera, Thexeforc» as has been held m the case of Naveen (supia) disputed questions arc involved in this petitfon, The petitfoner^B claim m that the pennit was not obtained, as the vehicte reqixires repairs whercas fhe re8pomients? case is that fhe vehicte was being plted without pennit In view of the above, the proper cx>urse for fhe petitfoaer was to approach the appropriate taxation authority as envisaged aii section 16 offhc Act, 1991 and ought to have produced aU the documente and asked jfor adjudication to tt» concenied authority in accordance wifhi law. But instead ofappioachiag the concemed autbority fhe petitioner has preferred to file tlus writ petition before fhjs Court and tfae petititooer has supprcssed th&s fact that the vehicte ia qpiestion was found conym^ passei^pra by the ffyiag squad of the transport department oa 18, 1Q.2SW3. Therefore, fhis Coiut cannot mvofce fhe csrtxa onimary Jurusdrction to adjudicate upon theae dtiputed qucstfons offairta, the petitioner bas effectwe and cqualty ^Beeidbus remedy to approach ihe concemed aufhority and thcreafiter if sbe is aj®rievcdtfaen may fite an appeal undcr s«rtion20 ofthe Act In vfew of the above discussion I am of tihie opmion fhat therc is no merit ia fhis petidoa, which is liable to be dismissed and is disxidssedt —~—--— Sd/- L.C. Bhadoo Judge Thakur r ^/\