IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 483 OF 2009 (MS) Virendra Kumar Banga ……….…Petitioner. Versus State of Uttarakhand and others. ………Respondents. Ms. Prabha Noliyal, Advocate for petitioner. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for State of Uttarakhand. 16th June, 2009 Hon’ble Sudhanshu Dhulia, J. This writ petition has been filed by the petitioner with the following prayer: “a. Issue a writ, order or direction ion the nature of certiorari quashing and setting aside the Recovery Citation issued by respondent no. 4 vide order dated 3- 10-2008. b. Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 4 to stay the order and effect of Recovery Citation dated 3-10- 2008. c. Issue a writ, order or direction in nature of mandamus commanding the respondent no. 4 not to take any coercive measure against the petitioner and also not to make any Kurki/attachment of petitioner goods and property. d. To pass any other and further orders, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. e. Award the cost of the petition to the petitioner.” The case of the petitioner is that the vehicle of the petitioner was not being used and was lying idle and therefore, the tax being recovered from the petitioner under Section 4 of the U.P. Motor Vehicles Taxation Act, 1997 (hereinafter referred to as “the Act”) is illegal. Admittedly, the order has been passed imposing the tax 2 on the petitioner under Section 12 of the Act. The statute itself provides an appeal against the order passed under Section 12 of the Act. Section 12 of the Act reads as follows: “12. Non-use of vehicle and refund of tax.—(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 [thirty days] 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, 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 of tax or additional tax, as the case may be, is due, surrender the certificate or 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 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 its documents as mentioned in this sub-section remain surrendered with the Taxation Officer, such owner or operator, as the case may be, 3 shall 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 rate specified in Part ‘A’ of the Second Schedule for the said period: Provided that no such refund shall be admissible, unless the certificate of 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. (4) In calculating the amount of refund under sub- section (3) any portion of the period being less than a 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 rates 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 Terriotory 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 4 to the satisfaction of the Taxation Officer that the motor vehicle ion respect of which such tax has been paid, has not been used for a continuous period of one month or more since the tax or instalment 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, 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 respect of the said vehicle and the permit, if any are surrendered to the Transport Officer within a week form 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.]” However, in the present case since the order has not been complied with, the recovery proceeding was initiated against the petitioner under Section 20 of the U.P. Motor Vehicles Taxation Act. Section 20 of the Act reads as follows: “20. Recovery of Tax.—(1) Arrears of any tax or additional tax or penalty payable under this Act shall be recoverable as arrears of land revenue. (2) The tax, the additional tax and penalty payable under this Act shall be first charge on the motor vehicle including its accessories, in respect whereof it is due.” 5 Although the petitioner has challenged the order dated 3.10.2008 of recovery, it has been passed by the concerned authority consequent to the order passed against the petitioner under Section 12 of the Act. The said order is appealable under Section 18 of the Act. Therefore, this writ petition is dismissed on the ground of alternative remedy. No order as to costs. In case an appeal is filed by the petitioner before the Transport Commissioner / who is the appellate authority as defined under Section 2 (b) of the Act within a period of one month from today, the same shall be decided as expeditiously as possible by the concerned authority and the case of the petitioner will not be rejected on technical grounds of limitation. (Sudhanshu Dhulia, J.) 16.6.2009 Rathour