IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WP(C).No. 29491 of 2007(J) -------------------------- PETITIONER: ------------ C.P. BAVA, CHATHANATTU HOUSE, NELLISSERY P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.G.HARIHARAN RESPONDENTS: ------------- 1. TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM. 2. DISTRICT TRANSPORT COMMISSIONER, CENTRAL ZONE-II, ERNAKULAM. 3. THE REGIONAL TRANSPORT OFFICER, IDUKKI. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 ORDER OF DTC CENTRAL ZONE II ERNAKULAM DT 9.11.04. P2 ORDER DT 8.2.07. P3 NOTICE OF HEARING BY R2. /TRUE COPY/ P.A.TO JUDGE K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 29491 OF 2007 J ```````````````````````````````````````````````````` Dated this the 11th day of June, 2008 J U D G M E N T Petitioner filed a statutory appeal under section 23 of the Motor Vehicle Taxation Act which culminated in Ext.P1 order. The Deputy Transport Commissioner, by Ext.P1 order, found that no tax is due for the quarter from 1.10.1997 to 31.12.1997 and from 1.4.1998 to 30.6.1998. However, the appellate authority found in Ext.P1 that the petitioner is liable to remit tax for the period from 1.7.1997 to 30.9.1997. According to the petitioner, he remitted tax as per Ext.P1. He challenges Ext.P2. It is an order issued by the Transport Commissioner against Ext.P1. It is stated that Ext.P3 is a notice of hearing served by the 2nd respondent on the basis of Ext.P2. The petitioner seeks quashing of Ext.P2. 2. I heard the learned counsel for the petitioner and the learned Government Pleader. The learned counsel for the petitioner submits that by Ext.P1 appellate order, the WPC.29491/07 : 2 : petitioner was given certain benefits. Section 24 of the Motor Vehicles Taxation Act reads as follows. “ 24. Powers of revision of Transport Commissioner -(1) The Transport Commissioner may - (a) suo motu call for and examine the record of any order passed by any authority or officer under this Act; or (b) on application, call for and examine the record of any order passed in appeal under Section 23, to satisfy himself as to the regularity of the proceedings or the correctness, legality or propriety of the order, and, if in any case it appears to the Transport Commissioner that the order shall be modified, annulled or remitted for reconsideration, he may pass such order thereon as he may deem fit. (2) An application under clause (b) of sub- section (1) shall be filed in such manner as may be prescribed within three months from the date on which the order to which the application relates was communicated to the applicant, and shall be accompanied by such fee as may be prescribed. (3) The Transport Commissioner shall not suo motu initiate proceedings to revise any order after the expiry of two years from the date on which such order has been passed. WPC.29491/07 : 3 : (4) No order prejudicial to any person shall be passed under sub-section (1), unless such person has been given an opportunity of making his representation.” 3. It is contended by the learned counsel for the petitioner that power under section 24 of the Act can be exercised suo motu subject to two conditions. Firstly, it should be exercised within a period of two years. Secondly, it is contended that the power can be exercised only after affording an opportunity to hear the party. He would submit that in this regard, both limitations incorporated in section 24 have been over looked by the 1st respondent in passing Ext.P2. It is pointed out that Ext.P2 is dated 8.2.2007. Ext.P1 order passed by the Deputy Transport Commissioner is dated 9.11.2004. Therefore, it is passed more than two years back. Further, the petitioner was not heard before the order was passed. 4. The stand taken by the respondents as stated in the counter affidavit is briefly put as follows. WPC.29491/07 : 4 : The petitioner remitted tax for the period 1.4.1998 to 30.6.1998, ie., before Ext.P1 order was passed. After Ext.P1 order was passed, the petitioner made a request before the 3rd respondent to adjust the tax paid for the quarter 1.4.1998 to 30.6.1998 for which quarter the petitioner was not liable to pay tax as per Ext.P2 against the quarter ending 30.9.2007. But, this request of the petitioner was rejected by the 3rd respondent. Thereupon, the petitioner took the matter before the 1st respondent and it is on the same that Ext.P2 order has been passed. The petitioner filed a revision petition against the decision of the 3rd respondent and there is nothing wrong in the order passed. 5. Apparently, the exercise of power under section 24 is sought to be justified on the basis of the application made by the petitioner. A perusal of clause (b) of section 24 reveals that the power of the Commissioner is limited to considering the order passed in appeal under section 23 on an application filed by the party. In this case, the order under section 23, WPC.29491/07 : 5 : which is Ext.P1, has been passed by the Deputy Commissioner in an appeal filed by the petitioner. The petitioner has not filed any application within the meaning of clause (b) of section 24 before the Commissioner questioning Ext.P1 order before him. If only the petitioner files an application under section 24(1)(b), the power under section 24(1)(b) could have been invoked. If that be so, since the petitioner filed revision before the Commissioner feeling aggrieved by the decision of the 3rd respondent refusing to accept the request of the petitioner to adjust the fee paid for the quarter commencing from 1.4.1998 against the tax payable for the quarter ending on 30.9.1997, the power under section 24 cannot be invoked. Admittedly, it is a case of the Government that there is no power to adjust the tax paid by the petitioner against the tax due for the quarter ending on 30.9.1997. Even if that decision of the 3rd respondent were liable to be supported by the Transport Commissioner, he would not be with the authority to interfere with the order WPC.29491/07 : 6 : passed by the Deputy Commissioner under section 23 (Ext.P1). It is also not disputed that the petitioner was not heard before Ext.P2 was issued. If that be so, it is also passed beyond two years and this is not a case where the power is sought to be justified as an instance of exercise of power suo motu. At any rate, even if it is treated as power being purported to be exercised suo motu Ext.P2 is bad not only for the reason that it is beyond two years but also it is passed without affording an opportunity to hear the petitioner. For all the grounds, it is found that Ext.P2 is illegal. Accordingly, Ext.P2 is quashed. Any consequential steps taken pursuant to Ext.P2 will not be enforced. The writ petition is allowed as above. (K.M.JOSEPH, JUDGE) aks