IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 263 of 2009 Date of Decision: 29.12.2009 Sant Ram and others ……… Appellants Versus State of Uttarakhand and two others ……… Respondents Coram : Hon’ble J.S. Khehar, C.J. Hon’ble B.C. Kandpal, J. Present: Mr. Rakesh Thapliyal, Advocate for the appellants. Mr. H.M. Raturi, Advocate for the respondents. J.S.Khehar, C.J. (Oral) (CLMA No.11338 of 2009) Learned counsel for the respondents has no objection, if the Delay Condonation Application is allowed. In view of the above, delay condonation application is allowed. Delay of 08 days in filing the instant appeal is hereby condoned. (SPA No.263 of 2009) The appellants had approached this court to assail the order dated 30.04.2009, whereby the Regional Transport Officer, Haldwani, addressed a communication to the President/Secretary of the Kichha-Melaghat Bus Union, to ensure the deposit of additional tax at the rate of Rs. 407/- per seat by some of the members of the said Union including the appellants herein. It was the case of the appellants before this Court, through Writ Petition (M/S) No.1241 of 2009, that the aforesaid direction affected the civil rights of the 2 appellants. It is, therefore, that the appellant had approached this court by filing the aforesaid writ petition, even though the aforesaid communication had not been addressed to them. 2. A learned Single Judge of this court disposed of Writ Petition (M/S) No. 1241 of 2009 by an order dated 10.11.2009. While disposing of the writ petition, the learned Single Judge recorded two concrete findings, firstly, that the appellants before this court had an efficacious alternative remedy, and as such, ought not to have approached this court. It was concluded, that the appellants should have sought their remedy under Rule 27 of the Uttaranchal Motor Vehicles Taxation Reforms Rules, 2003 (hereinafter referred to as the 2003 Rules). Secondly, the learned Single Judge also arrived at the conclusion, that the additional tax imposed was justified. It is, therefore, apparent that besides finding, that an alternative efficacious remedy was available to the appellant, the learned Single Judge also adjudicated upon the controversy on its merits. 3. It would not be justified for us to examine the controversy in hand, if the appellants have an alternative remedy in law, wherein they can seek appropriate relief. Therefore, before examining the controversy raised by the appellants on merits, we consider it just and proper to determine, whether or not the appellants had an efficacious alternative remedy, to assail the order dated 30.04.2009. Rule 27 of the 2003 Rules, referred to by the learned Single Judge in the impugned order dated 10.11.2009, is extracted hereunder, for facility of reference:- “27. Appeals: (1) Under Section 18 any person aggrieved by an order of the Taxation Officer may, within a period of thirty days from the date of such order, appeal against such order, to the Deputy Transport Commissioner. The appellant shall have to submit the copy of receipt certified by the taxation officer, after depositing the 50 3 percent of the amount as imposed by the taxation officer whose order is being appealed, before the appellate authority at the time of filing the appeals The appeal shall be in writing and shall state the grounds on which the appellant disputes the order. The Appellate Authority may, after hearing the appellant and making such enquiry from the Taxation Officer as he may consider necessary, confirm, modify or set aside the order. (2) The fees for the appeal shall be rupees five hundred which shall be deposited in the office of appellate authority. (3) The memorandum of appeal shall be presented to the Appellate Authority in triplicate by the appellant, and it shall be accompanied by a certified copy of the order appealed against and the receipt of the fee paid under sub-rule(2).” 4. A perusal of Rule 27 of the 2003 Rules reveals, that an appeal is competent against an order passed by the Taxation Officer. The aforesaid Rule also mandates, that the said appeal must be confined to the provisions of Section 18 of the Uttarakhand Motor Vehicles Taxation Reforms Act, 2003 (hereinafter referred to as the 2003 Act). A perusal of Section 18 of the 2003 Act, however, reveals, that an appeal is competent only in respect of an order passed under Section 12 of the aforesaid legislative enactment. To understand the true effect of the aforesaid provisions, Sections 12 and 18 of the 2003 Act are extracted hereunder:- “12. (1) When any person who has paid the tax in respect of a transport vehicle, proves to the satisfaction of the Taxation Officer in the prescribed manner that the motor vehicle in respect whereof such tax has been paid, has not been used for a continuous period of one month or more since the tax was last paid, he shall be entitled to a refund of an amount equal to one-third of the rate of quarterly tax payable in respect of such vehicle for each complete calendar month of such period for which such tax has been paid; Provided that no such refund shall be admissible unless such person has surrendered the certificate of 4 registration, the token, if any issued in respect of the vehicle and the permit, if any, to the Taxation Officer, before the period for which such refund is claimed. (2) Where the operator or, as the case may be, the owner of a motor vehicle, does not intend to use his vehicle for a period of one month or more he shall, before the date the tax or additional tax, as the case may be, is due, surrender the certificate of registration, the token, if any, issued in respect of the motor vehicle and the permit, if any, to the Taxation Officer of the region where the tax or additional tax was last paid and on such surrender, no tax or additional tax under this Act shall be payable in respect of such vehicle for each complete calendar month of the period during which the vehicle remains withdrawn from use and the aforesaid documents remain surrendered with the Taxation Officer. Provided that in case such vehicle is found plying during the period when it documents as mentioned in this sub-section remain surrendered with the Taxation Officer, such owner or operator, as the case may be, shall be liable to the tax as if the said documents were not surrendered and shall also be liable to the tax as if the said documents were not surrendered and shall also be liable to the penalty payable under sub-section (3) of section 9. (3) Where the owner of a motor vehicle other than a transport vehicle, in respect whereof one-time tax has been paid under this Act proves to the satisfaction of the Taxation Officer in prescribed manner that such motor vehicle has not been used for a continuous period of one month or more, he shall be entitled to a refund of such tax at the rates specified in Part ‘A’ of the Second Schedule for the said period. Provided that no such refund shall be admissible, unless the certificate or registration and the token, if any, issued in respect of the vehicle are surrendered by the owner with the Taxation Officer. Provided further that the total amount of refund under this sub-section shall not exceed the one-time tax paid under this Act. 5 (4) In calculating the amount of refund under sub-section (3) any portion of the period being less than a calendar month, shall be ignored. (5) The owner of a motor vehicle other than a transport vehicle, in respect whereof one-time tax has been paid under this Act shall be entitled to refund of such tax at the rate specified in Part ‘B’ of the Second Schedule on the ground that he has, after payment of such tax, paid tax in respect of such vehicle under any enactment relating to any tax on motor vehicles in any other State or Union Territory as a consequence of such vehicle having been brought over permanently to such other State or Union Territory or that such motor vehicle has been converted into a transport vehicle or that the registration of such motor vehicle has been cancelled. (6) Where any person who has paid the tax other than one-time tax in respect of an old motor vehicle, proves to the satisfaction of the Taxation Officer that the motor vehicle in respect of which such tax has been paid, has not been used for a continuous period of one calendar month or more since the tax or installment was last paid, he shall be entitled to a refund of an amount equal to one- twelfth of the rate of annual tax payable in respect of such vehicle for each complete calendar month of such period for which such tax has been paid. Provided that no such refund shall be admissible unless such person has surrendered the certificate of registration and the token, if any, issued in respect of the vehicle to the Taxation Officer, before the period for which such refund is claimed. (7) An operator of a transport vehicle entitled to any refund of tax under sub-section (1), shall also be entitled to refund of such portion of the additional tax paid under section 5 or, as the case may be, under section 6, is attributable to the period for which he is entitled to refund under sub-section (1); and the amount of such refund shall be calculated on the same principle as is laid down in the said sub-section. (8) Where the operator, or as the case may be, the owner of a motor vehicle is unable to use his motor vehicle due to an accident of the said vehicle and the certificate of registration, the token, if any, issued in 6 respect of the said vehicle and the permit, if any are surrendered to the Taxation Officer within a week from the date of such accident together with a copy of the first information report, such surrender shall be deemed to have been made on the date of the accident. (9) In case of non use of any passenger or goods vehicle due to any accident or due to detainment under any act for any specific period in police station; on an application presented before the Competent Authority within prescribed time period along with sufficient evidence, the non use of the vehicle can be accepted for a period of complete calendar month or such months by the Competent Authorities. The Competent Authorities are prescribed in accordance with tax liability limits as below, who may accept the applications from the owner/Incharge of the vehicle. Up to Rs. 10,000.00 Asstt. Regional Transport Officer/Tax Officer (Having Jurisdiction) Above 10,000.00 & Regional Transport Upto Rs.20,000.00 Officer (Having Jurisdiction) Above Rs. 20,000.00 Addl. Transport Commissioner & Up to Rs. 30,000.00 or Deputy Commissioner nominated by the Transport Commissioner. Above Rs. 30,000.00 Transport Commissioner. After thorough investigations, the non use of the vehicle and liability of Tax or Additional Tax, may be decided by the competent authority. 18. (1) Any person aggrieved by an order of the Taxation Officer made under section 12 may, within thirty days from the date of receipt of such order, prefer an appeal to the Appellate Authority. (2) The Appellate Authority may, after giving the appellant an opportunity of being heard pass such orders as it thinks fit. (3) Every order made by the Appellate Authority in an appeal under sub-section (1) shall be final.” 7 Having read and re-read the aforesaid provisions, we have no doubt in our mind, that an appeal under Section 18 is competent only against an order contemplated under Section 12. The impugned order passed in the instant case relates to the levy of additional tax at the hands of Regional Transport Officer. The instant order cannot be deemed to have been passed under Section 12 of the Act of 2003. Since the subject matter within the ambit of consideration i.e. Section 12 is separate and distinct from the subject matter of the impugned order, we are satisfied, that an appeal could not be filed at the hands of the appellant, so as to impugn the order dated 30.04.2009 under Section 18 of the 2003 Act. 5. Rule 27 of the 2003 Rules, referred to by the learned Single Judge, so as to arrive to the conclusion, that an efficacious alternative remedy is available to the appellants, in our view was not justified, on account of the fact, that an appeal under Rule 27 is competent, only if it is permissible under Section 18 of 2003 Act. We are, therefore, of the view, that the remedy of appeal is not available to the appellants under Rule 27 of the 2003 Rules. It is not the case of the learned counsel for the respondents, that some other remedy is available to the appellants (not under Rule 27 but) under other some Rule. Since no other Rule has been brought to our notice at the hands of the learned counsel for the respondents, under which it could be stated, that an efficacious alternative remedy is available to the appellants, we are of the view, that it will be justified to conclude, that no alternative remedy was available to the appellants (so as to assail the order dated 30.04.2009). 6. In the peculiar facts and circumstances noticed hereinabove, we will also have to examine the merits of the controversy raised at the hands of the appellants. In so far as the issue of levy of additional tax is concerned, learned counsel for the respondents invited our attention to the fact, that two 8 communications dated 15.06.2007 and 21.09.2007 were issued after a meeting of the Regional Transport Officer was held on 31.10.2006, requiring the President/Secretary of the Kichha - Melaghat Bus Union to submit the changed time table. It is the vehement contention of the learned counsel for the respondents, that it was obligatory on the representatives of the aforesaid Kichha -Melaghat Bus Union, to furnish the particulars of the changed time table, under Section 17 of 2003 Act. However, since the aforesaid information was not furnished by the representatives of the Bus Union, two communications dated 21.03.2009 and 24.04.2009 were addressed to the Taxation Officer, Sitarganj, requiring him to conduct a secret survey with regard to the plying of buses. Accordingly, the Taxation Officer, Sitarganj submitted a survey report dated 25.04.2009. It is the vehement contention of the learned counsel for the respondents, that the additional tax liability, was fastened by the respondents on the basis of the aforesaid secret survey report. It is, therefore, submitted, that the impugned order dated 30.04.2009 must be deemed to have been issued, as a consequence of the non- cooperation of the representatives of the Bus Union. 7. We have considered the submissions advanced by the learned counsel for the respondents. It is apparent from the factual details narrated hereinabove, that various communications had been addressed to the President/Secretary of Kichha-Melaghat Bus Union, from time to time, whereas the liability to pay additional tax, in the present controversy admittedly falls on the shoulders of the operators in question, including the appellants. After the survey report dated 25.04.2009, the impugned letter dated 30.04.2009 was also addressed to the President/Secretary of the Kichha-Melaghat Bus Union and not to the individuals, who were to shoulder the liability of additional tax. Based on the aforesaid facts, learned counsel for the appellants vehemently contends, that an adverse order had been passed against the appellants for the recovery of additional tax, 9 thereby affecting their civil rights without informing them the basis of the levy of additional tax, and also without affording an opportunity to show cause. 8. Learned counsel for the respondents, while acknowledging the fact, that the liability communicated to the President/Secretary of Kichha-Melaghat Bus Union, through the impugned order dated 30.04.2009, will have to be recovered from the appellants, as also some other bus operators, also acknowledges, that the said liability has been fastened upon the appellants and other similarly situated bus operators, without issuing any notice to them, and without affording an opportunity of hearing to them. Realizing the predicament, in which the instant factual acknowledgement has placed him, learned counsel for the appellants very fairly states, that the respondents will suspend the recovery of additional tax from the appellants till a proper show cause notice is issued to them affording them an opportunity of hearing, in consonance with the rules of natural justice, whereupon a well reasoned speaking order will be passed by the competent authority, and only thereafter recovery, if any, will be made from the appellants. 9. Learned counsel for the appellants accepts the offer made by the learned counsel for the respondents. 10. In view of the above, the instant Special Appeal is allowed. The impugned order/letter dated 30.04.2009 assailed by the appellants in Writ Petition (M/S) No.1241 of 2009 shall remain under suspension for the time being, till the respondents issue a notice to the appellants and other bus operators, similarly situated as the appellants, to show cause why additional tax be not levied upon them, disclosing the details and particulars thereof. Whereupon after receipt of a reply from the appellants, as also other bus operators, the appellants and other similarly situated, would be afforded an opportunity of hearing, besides the opportunity to file a formal reply. 10 And thereafter in case the competent authority arrives at the conclusion, that additional tax is leviable on the appellants, the same would be recoverable from them, in the same fashion as it was earlier ordered on 30.04.2009, in terms of the order which shall now be passed. 11. The instant special appeal is disposed of in the aforesaid terms. ( B.C. Kandpal, J.) ( J.S. Khehar, C.J.) 29.12.2009 29.12.2009 P.Singh