IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1226 of 2003 (M/S) (Old Writ Petition No. 1888 of 1995) Garhwal Jal Sansthan, 62, Race Course Road, Dehradun through its General Manager. ………….Petitioner. Versus State of U.P. through Secretary to Government of U.P. Transport Department, Civil Secretariat, Lucknow and two others. …………Respondents. Sri Rakesh Thapliyal, learned counsel for the petitioner. Sri K.P. Upadhyay, learned Additional C.S.C. for the State –respondent. Date June 19, 2008. Hon’ble B.S. Verma, J. Sri Rakesh Thapliyal, learned counsel for the petitioner and Sri K.P. Upadhyay, learned Additional Chief Standing Counsel for the State-respondents. This writ petition has been filed for the following reliefs:- i) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 30.5.5/1.6.95 and 22.6.94 contained in Annexure Nos. 1 and 2 to the writ petition and staying the impugned goods tax and penalty imposed on the petitioner. ii) To issue a writ, order or direction in the nature of mandamus directing the opposite party no. 1, the government to dispose of the representation dated 13.7.95 made by the petitioner and to issue specific, clear directions to the Transport Authorities that the goods tax may not be imposed on the vehicles, tractors, tankers, etc. used by Jal Sansthan carrying water, its machinery and for other instruments in public interest, and make a declaration to the abovesaid effect. iii) To issue any such other further suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the present case. iv) To award the costs of the petition in favour of the petitioner. According to the petitioner, Garhwal Jal Sansthan, it is a Local Body Institution created under Section 187 of the U.P. Water Supply and Sewerage Act 1975. The petitioner has to maintain water supply and provide sewerage facilities in the cities, towns and villages of Garhwal Division of the State. Petitioner-Jal Sansthan has trucks, tankers, tractors, which carry water, instruments, machinery to supply water and provide sewer facilities to the citizens. According to the petitioner no commercial activity is carried out by the petitioner-Jal Sansthan and it provides water “free of cost” to the citizens in summer season. The grievances of the petitioner is that a notice was sent to the petitioner by the Regional Transport Officer Dehradun asking the petitioner to deposit goods tax. The petitioner filed objection against the notice contending therein that goods tax is not leviable on the petitioner. The RTO/Goods Tax Officer, Transport Depart did not find favour with the petitioner and imposed sum of Rs. 85,370/- as goods tax and Rs. 17074 as penalty thereon for the period 1.1.86 to 306.1994 vide order dated 22.6.1994 (Annexure No. 2 to the writ petition) Aggrieved, the petitioner preferred an appeal before the Deputy Transport Commissioner, U.P. Lucknow, but the appellate authority did not find favour with the petitioner and dismissed the appeal by the impugned order dated 1.6.1995. The petitioner made a representation to the Government with the request to the issue a Government Order exempting the vehicles of Jal Sansthan from payment of goods tax vide Annexure No. 7. The main ground of challenge raised in the writ petition is that the goods tax is not leviable on the vehicles of Jal Sansthan as these are not used in commercial purposes. Leaned counsel for the petitioner has contended that under Section 7 of the Uttar Pradesh Motor Gadi (Mal-Kar) Adhiniyam 1964 there is a provision for exemption from tax for which the petitioner had already approached to the State Government. In paragraph no. 6 of the memo of writ petition, the petitioner itself has stated that the petitioner-Sansthan used to pay good tax to Regional Transport Officer Dehradun for its truck and the goods tax was paid upto 31.12.1985. It has been stated that the tax was being paid due to ignorance of law. I have heard learned counsel for the parties and perused the record including the averments made in the memo of writ petition and the counter affidavit filed by the State. The Allahabad High Court passed an order dated 1-9- 1995 to the following effect:- “The learned counsel for the petitioner prays for and is granted two weeks time to file a supplementary affidavit to place on record that Jan Sansthan is a local authority and is not liable to pay tax under the provisions of U.P. Motor Gadi Mal Kar Adhiniyam 1964. The petitioner would also indicate whether this ground has been taken by him before the authorities below or not.” So far no such supplementary affidavit was brought on record by the petitioner and it appears that the order dated 1.9.1995 had not been complied with. Moreover, in the counter affidavit the contention of the petitioner that the petitioner is not carrying the commercial activities has been denied. In paragraph no. 3 of the counter affidavit, it has been stated that the Garhwal Jal Sansthan is supplying the water and also providing the sewerage facilities in the city but the Sansthan is not providing any free service to the citizens. Section 7 of the Uttar Pradesh Motor Gadi (Mal-Kar) Adhiniyam, 1964 reads as under:- “Exemption from tax.-The State Government may, by order notified in the Gazette, and subject to such conditions, if any, and for such period, as may be specified in the order- (a) exempt totally or partially from the levy of tax any goods carried for the defence of India or for an educational, medical, philanthropic or other public purposes; (b) exempt form the operation of all or any of the provisions of sections 10, 19, 20, 21, 22 and clause (c) of sub-section (1) of section 26: (i) a goods vehicle plying on an inter-State route; (ii) a goods vehicle in respect of which an agreement for the acceptance of a lump sum in lieu of the amount of tax has been arrived at under section 9.” Under Section 7 of the said Act, the State Government has power to pass order regarding exemption from tax. Unless and until there is no such order in favour of the petitioner, the contention of the petitioner that the impugned order dated 22-6- 1994 passed by the Regional Transport Officer/Malkar Adhikari, Transport Department Dehradun as well as the order dated 1.6.1995 passed by appellate authority are not tenable cannot be accepted. In view of the fact that the goods tax was paid only upto 31.12.1985 by the petitioner coupled with the fact that the power to exempt the tax lies with the State Government, in my view, the impugned orders do not suffer from any perversity or infirmity. The writ petition is devoid of merit and must fail. The writ petition is dismissed. Costs easy. However, it is open to the petitioner to pursue its representation before the State Government. All pending applications stand disposed of. (B.S. Verma, J.) RCP