IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5048 of 2010 Baldeo Chaudhary s/o late Mithu Lal Chaudhary, r/o at & P.O. –Pilkhi, P.s. – Sakra, District - Muzaffarpur Versus 1. The State Of Bihar 2. The Member, Board of Revenue, Bihar, Patna 3. The Secretary, Transport Department, Govt. of Bihar, Patna 4. The Joint State Transport Commissioner, Transport Department, Govt. of Bihar, Patna 5. The District Transport Officer, Muzaffarpur ----------- For the petitioner: Mr. Randhir Kumar Singh, Advocate For the respondents : Mrs. Nilu Agrawal, GA X Mr. Jainendra Kumar Sinha, AC to GA X --- 2 25/3/2010 Heard learned counsel for the petitioner and learned counsel for the respondents. In this writ application the petitioner has assailed the orders dated 15.4.2008, 12.8.2008 and 8.212.2009, as contained in Annexures -3, 4 & 5 respectively, passed by the Joint State Transport Commissioner, Bihar, Patna, the Secretary, Transport Department, Bihar, Patna and the Member, Board of Revenue, Bihar, Patna, refusing the prayer of the petitioner to exempt the payment of road tax and additional tax in respect of the petitioner‟s Bus bearing Registration No. BPF-1753 for the period 31.8.2005 to 2 24.2.2006, amounting to Rs.21,409/- excluding penalty. Mr. Randhir Kumar Singh, learned counsel appearing for the petitioner, while assailing the original appellate and revisional orders under Bihar Motor Vehicle Taxation Act, 1994 has submitted that all the three authorities have failed to consider the case of the petitioner in true perspective and the exemption of road tax has been denied to the petitioner on irrelevant grounds. In this regard, he has also placed reliance on the judgment of the Apex Court in the case of Jang Singh v. Brij Lal and others, AIR 1966 Supreme Court 1631. Mrs. Nilu Agrawal, learned counsel appearing on behalf of the State on the other hand has submitted that exemption of road tax has to be allowed by the authorities only on the basis of clinching evidence that the vehicle was not on road in the period of which exemption was claimed. She has, in this context, taken us to the findings of all the three authorities for supporting the view taken in the impugned orders, which we will refer to at the relevant place in this order. 3 The original authority, namely, the Joint Transport Commissioner in his order dated 15.4.2008 (Annexure -3) had refused such exemption on the ground that the vehicle was not having permit and it was also not backed by a garage certificate. When the matter was taken in appeal by the petitioner, the Secretary, Transport Department, being the appellate authority had affirmed the order of the original authority by recording that there was no report of the District Transport Officer to the effect that he had either inspected the vehicle in question or had found it to be fit for plying on the road. He had also found certain discrepancy in the garage certificate dated 25.2.2006 which was produced for the first time before the appellate authority and in this respect he had held that there was no contemporaneous inspection report either of the Motor Vehicle Inspector (for short, “the M.V.I”) and the District Transport Officer (for short, “the D.T.O”) regarding repair and fitness of the vehicle in question and as such the garage certificate produced before him for the first time could not be accepted. The revisional 4 authority, the Member, Board of Revenue, did not agree wholly with the view of the appellate authority. He too had drawn an adverse inference as against the belated production of the garage certificate dated 25.2.2006 and had held that that was not a reliable evidence. He had also found that the fitness certificate was also not produced before him. The revisional authority, in fact, had gone further to record that there was no clinching evidence with regard to surrender of the vehicle inasmuch as the D.T.O who is said to have accepted the plea of surrender of vehicle by the petitioner had not recorded anything in writing much less an order to that effect. Consequently, he has also put a question mark on the inspection report of the M.V.I., which seemed to him to have been prepared without any authority and/or direction of the D.T.O. The revisional authority had even examined the matter on the basis of the validity of the fitness certificate, which, as per the petitioner, had already expired on 29.10.2005 and yet without being any fresh fitness certificate it was claimed that the vehicle was allowed to ply with effect from 5 24.2.2006. We have carefully considered the materials on record and would find that in terms of the provision under Section 19 of the Bihar Motor Vehicle Taxation Act, 1994 ( hereinafter referred to as „the Act‟) the grant of exemption from payment of road tax and additional tax depends upon the authority being satisfied that the vehicle concerned was not being plied during the period for which exemption was prayed. For this purpose, the authority has to take into account the various circumstances including all important evidence with regard to the vehicle being in a condition of standstill for the purpose of repair in a garage. The garage certificate, as mentioned above, was never produced before the original authority and in terms of Rule 19 (4) of the Bihar Motor Vehicle Taxation Rules, 1994, there is a complete prohibition of adducing any fresh evidence either oral or documentary at the stage of appeal or revision. Thus, the authorities could not have relied on the belated garage certificate produced by the petitioner. 6 That apart, this court would find sufficient force in the finding recorded by the Member, Board of Revenue, in his revisional order where he has gone to record that there was no conclusive proof of the vehicle being surrendered before the D.T.O. on 31.8.2005 and, in fact, the report of the M.V.I. on his own without there being any order or direction for submission of such report by the D.T.O. did not inspire confidence. The question would, therefore, arise that as to what was the real proof of the vehicle being in disuse for the period in question for which the exemption of tax was being claimed. There was no garage certificate with regard to the vehicle being under repair before the original authority and the subsequent order of the D.T.O. dated 10.10.2007 with regard to the surrender of vehicle on 31.8.2005 or the report of the M.V.I. of the same day dated 31.8.2005 without there being any direction of the D.T.O. to submit such report could by itself be not an evidence of disuse of the vehicle. In this regard the revisional authority has correctly found that whole story of the petitioner to be 7 unacceptable that the vehicle was again brought on road with effect from 25.2.2006 when the date of fitness of the Bus, the disputed public vehicle, had already expired on 29.10.2005 and was never claimed to have been renewed either before 24.2.2006 or even at the time of hearing his case for grant of exemption before the original authority. That would bring us to the statutory requirement which the petitioner was required to fulfill in terms of Section 17 of the Act. Section 17 of the Act reads as follows: “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 terms 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 granted permit to 8 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.” From reading of Section 17, it would be clear that it talks of prior intimation of a temporary discontinuance of use of a vehicle and an undertaking in terms of sub-section (1) of Section 17 of the Act. One of the requirements of the prescribed Performa Form J in terms of Rule 13 is submission of permit in original. But, in the present case, as noted above, the original authority had found that there was no permit on the record. In that view of the matter, it would be difficult to accept the plea of learned counsel for the petitioner that Form J, allegedly submitted by him on 31.8.2005 bearing the endorsement of D.T.O. and M.V.I., was an authentic document. Learned counsel 9 for the petitioner has also not produced before us the permit which was surrendered by him on 31.8.2005 and, therefore, it cannot be said with certainty that the vehicle in question had been in discontinuance of operation. The matter can be viewed from another angle inasmuch as the alleged garage certificate dated 25.2.2006 produced by the petitioner, as noted in the appellate order, had stated that the vehicle in question was in the Bachha Babu garage. The said certificate was never made part of the original intimation filed by the petitioner and a subsequent garage certificate produced by him which was not even produced before the original authority was incapable of being relied by the appellate authority in view of the above noted prohibition under Rule 19(4) of the Rules. It is this aspect of the matter which has been gone into at length by the revisional authority, who has found the whole story of surrender of the vehicle, its discontinuance of being used and again being brought on road, unacceptable on the ground that the validity of 10 the fitness certificate which had already expired on 29.10.2005 was not renewed at least on or before 25.2.2006 when the vehicle after its repair is said to have been again brought on the road. We also find that the petitioner had not complied the requirement of Section 19 of the Act which requires the owner of the vehicle to file an application along with necessary papers before the Taxing Officer on or before the date the tax was last paid. In the present case, the tax for the vehicle in question was paid only upto 31.8.2005 as declared in the Form J annexed with the writ application but no separate application along with the necessary papers was filed before the Taxing Officer for exemption of tax in the prescribed period nor the D.T.O. had opened a case record for holding inquiry in terms of Rule 15 of the Rules which requires that immediately on receipt of undertaking specified in section 17 along with enclosures the Taxing Officer (D.T.O.) shall initiate a case record. In the present case, such case record was seemed to have been initiated on 10.10.2007 as 11 contained in Annexure -2 to this writ application. From the record, as produced by the petitioner, it is also not clear that on intimation given by him that the vehicle is ready for plying on road the Taxing Officer (D.T.O.) had passed any order for release of the papers of the vehicle to the owner and this aspect of the matter was correctly analyzed by the revisional authority by holding that there was no written order of the D.T.O. regarding release of papers to the petitioner for plying of the vehicle again on the road. In such circumstances, this court while exercising its limited power of judicial review with regard to exemption of tax cannot hold that all the three authorities had in their concurring orders committed any error in refusing exemption of tax. Such grant of exemption from the payment of tax has direct impact on the revenue of the State and it cannot be allowed ipse dixit of the owner of the vehicle. The reliance placed by learned counsel for the petitioner on the judgment of the Apex Court in the case of Jang Singh (supra) to buttress his submission that the maxim “Actus curiae 12 neminem gravabit” , that is, act of court should do no harm to litigant, would also not be applicable in the facts of this case inasmuch as it cannot be said that when the case record was not opened immediately by the D.T.O. with regard to the surrender of vehicle on receiving intimation of the temporary discontinuance of use of the vehicle, the fault was only of the D.T.O. The petitioner also cannot make premium that M.V.I. had made an inquiry on the same day, on which the vehicle was allegedly surrendered without there being any order-sheet and/or order of the D.T.O. These aspects have been gone into in detail by the revisional authority and we find no reason to take a different view. As a matter of fact, the Apex Court in the case of Jang Singh (supra) in a case arising out of execution of a decree for a preemption proceeding had applied the said maxim by recording that the deposit less by one rupee by an illiterate decree holder on the basis of Bank Challan prepared by the Clerk of the Court could not have been to the detriment of the decree holder. In the present case when the permit and the 13 garage certificate were not filed by the petitioner and there were no clinching evidence to show the discontinuance of use of vehicle in the period in question, the exemption prayed by him could not have been allowed for asking. Thus, for the reasons indicated above, we do not find any error in the orders passed by the authorities under the Act refusing exemption of road tax to the petitioner. In the result, there is no merit in this application and the same is accordingly dismissed. Neyaz/ (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)