SCA/8542/2000 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.8542 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- =================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO =========================================== JAGDISHSINH JASHVANTSINH ZALA - Petitioner(s) Versus REGIONAL TRANSPORT OFFICER & 3 - Respondent(s) =================================================== Appearance : MR DJ BHATT for Petitioner(s) : 1, MR KETAN J DWIVEDI, AGP for Respondent(s) : 1 - 4. =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 11/12/2008 ORAL JUDGMENT (1) This petition has been preferred challenging orders dated 11.03.1997 made by Regional Transport Officer, Bhavnagar, dated 16.06.1997 made by Regional Transport Authority, SCA/8542/2000 2/12 JUDGMENT Bhavnagar and dated 24.04.1998 made by Commissioner of Transport, Ahmedabad whereby the petitioner has been called upon to pay tax at the rate of Rs.2,004/- p.m. for vehicle registered as Maxicab bearing No.GJ-4-T-2801. (2) The brief facts are that : the petitioner is owner of a Matadoor vehicle bearing registration No.GJ-4-T-2801 which was used as a contract carriage Taxicab under the permit granted by the respondent authority. The petitioner got the vehicle modified with an increased carrying capacity of 12 + 1 and accordingly sought registration as a Maxicab. It appears that as the authorities were not taking any decision, the petitioner had approached this Court vide Special Civil Application No.609 of 2007 which came to be disposed of by this Court vide order dated 22.01.1997 directing the respondents to decide the written application dated 15.04.1996 on merits. SCA/8542/2000 3/12 JUDGMENT (3) Hence, vide order dated 11.03.1997 Regional Transport Officer, Bhavnagar held that the vehicle can be registered as a contract carriage vehicle in the category of Maxicab subject to the petitioner paying tax at the rate of Rs.167/- per seat, p.m., amounting to Rs.2,004/- p.m. considering the carrying capacity of 12 + 1 passengers. For this purpose the authority has placed reliance on provisions of Section 3-A of the Bombay Motor Vehicles Tax Act, 1958 (the Tax Act). Being aggrieved the petitioner carried the matter in appeal but the appellate authority failed to grant any relief, and vide order dated 16.07.1997 the Regional Transport Authority, Bhavnagar and the Transport Commissioner, Gujarat State, vide order dated 24.04.1998 confirmed the order made by the Regional Transport Officer, Bhavnagar. (4) The grievance ventilated on behalf of the petitioner is that the petitioner has been SCA/8542/2000 4/12 JUDGMENT called upon to pay tax at the rate applicable to an Omnibus whereas the vehicle in question has been accepted as being registrable in the category of Maxicab which does not form part of Omnibus referred to in Section 3-A of the Tax Act. That the definitions of the terms “maxicab” and “omnibus” as given in the Motor Vehicles Act, 1988 (the Act of 1988) are different and the respondent authorities cannot interchange the two terms or treat the vehicle as if maxicab is also an omnibus. Lastly, a grievance was made that against the order of the Commissioner the petitioner had preferred Revision Application No.5 of 2000 under Section 14-A of the Tax Act but the State Government has rejected the revision application by holding that the matter did not fall within the jurisdiction of the revisional authority and it was open to the petitioner to approach the Motor Vehicle Transport Appellate Tribunal. (5) On behalf of the respondent authorities SCA/8542/2000 5/12 JUDGMENT learned Assistant Government Pleader has reiterated the facts and submitted that all contract carriages, except a motorcab, and stage carriages, are basically omnibuses; the maxicab is also an omnibus; all maxicabs are omnibuses but all omnibuses are not maxicabs and hence, as per definition of the term “contract carriage” as appearing in the Act of 1988, tax is levied under provisions of Section 3A of the Tax Act. Learned Assistant Government Pleader has emphatically referred to and relied upon Paragraph Nos.13 and 14 of the affidavit-in-reply dated 10.08.2000 which read as under: “13. I say that the definition of omnibus as defined in section 2(29) is based on the carrying capacity of persons irrespective whether the persons carried therein are passengers or not. All the contract carriages (except the motor cab) and stage carriages are basically Ominbuses. The maxi cab is also an ominbus. I say that all the maxi cabs are omnibuses but all the omnibuses are not maxi cabs. Maxi cab is specifically included within the definition SCA/8542/2000 6/12 JUDGMENT of contract carriage. 14. I say that section 3A provides for levy of tax on all omnibuses which are used or kept for use a tax at the rates specified therein. Since maxi cab is an omnibus as well as contract carriage, tax under section 3A shall be leviable thereon. According to sub-section (3) of section 3 of the Tax Act, no tax shall be leviable under sub-section (1) on motor vehicles on which tax is leviable under sub-section (1) of section 3A.” (6) Under the Act of 1988 the terms “contract carriage” as defined in Section 2(7), “maxicab“ as defined in Section 2(22) and “omnibus” as defined in Section 2(29) read as under: “2(7) “contract carriage” means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a persons with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed SCA/8542/2000 7/12 JUDGMENT rate of sum-- (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes-- (i) a maxicab; and (ii) a motorcab notwithstanding the separate fares are charged for its passengers;“ "2(22) “maxicab” means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward; “2(29) “omnibus” means any motor vehicle constructed or adapted to carry more than six persons excluding the driver;” (7) A plain reading of the aforesaid provisions shows that both 'maxicab' and 'omnibus' are assigned different meanings. The definition of the term “omnibus” refers to carrying capacity of more than six persons excluding the driver SCA/8542/2000 8/12 JUDGMENT while the definition of the term “maxicab” refers to a motor vehicle having capacity to carry more than six passengers but not more than twelve passengers, excluding the driver, for hire or reward. Therefore prima facie, the legislature having used the term “persons” while defining “omnibus” and the word “passengers” while defining “maxicab” it is apparent that a distinction is drawn by the legislature. Similarly, in so far as maxicab is concerned, the same is meant as a vehicle run on hire or for reward, while in case of omnibus the said words “for hire or reward” are missing. It is true that the term “contract carriage” includes a maxicab but from the same it is not possible to equate the terms “maxicab” and “omnibus” as is sought to be done by the respondent authority. Nor is it possible to agree with the contention that all omnibuses include maxicabs. In other words, all maxicabs are omnibuses. SCA/8542/2000 9/12 JUDGMENT (8) The provisions of Section 3A of the Tax Act permit levy and collection of tax at the specified rates on all omnibuses which are used or kept for use in the State exclusively as contract carriages. The said provision does not refer to a maxicab and hence, prima facie a maxicab, even if falling within the definition of the term “contract carriage” cannot be included for the purposes of tax under Section 3A of the Tax Act. (9) However, the revisional authority having incorrectly rejected the revision on the ground of lack of jurisdiction, it is not necessary for the Court to express any final opinion in the matter. Section 14A of the Tax Act permits the State Government to call for and examine the record of any proceedings under the Tax Act for the purposes of satisfying itself as to the legality and propriety of any order passed by the Taxation Authority or by an authority referred to in Section 14(1) of the Tax Act and thereafter SCA/8542/2000 10/12 JUDGMENT modify, annul or reverse such an order after giving a person, who is affected by the order, an opportunity of hearing before making an order by the revisional authority. The powers also include making of an order directing fresh proceedings. (10) The revisional authority has erred in holding that the dispute brought before it was not falling within the provision of Section 14A of the Tax Act. The petitioner had approached the revisional authority with an application challenging the orders made by the Taxation Authority including the Commissioner of Transport and the revisional authority was required to call for the record and examine the proceedings and after hearing the petitioner pass an order in accordance with law. The reference to the Transport Appellate Tribunal by the revisional authority, as provided in Section 89 of the Act of 1988, is misplaced in law. Section 89 of the Act of 1988 permits a person to file appeal if such a SCA/8542/2000 11/12 JUDGMENT person is aggrieved by the refusal of the Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him etc. Therefore, the said provision, prima facie, cannot be invoked because the Taxation Authority has already dealt with the successive representation and the appeal filed by the petitioner and the vehicle was already registered as a maxicab as accepted by the respondent authority in its affidavit-in-reply. The only dispute between the parties was the rate of tax payable upon the vehicle having been registered as maxicab and while granting contract carriage permit in respect of the said vehicle. Therefore, the dispute was principally as to the correct rate of tax leviable under the Tax Act and the revisional authority was bound to exercise jurisdiction vested in it. (11) In the circumstances, the order dated 26.05.2000, rejecting Revision Application No.5 of 2000, is hereby quashed and set aside SCA/8542/2000 12/12 JUDGMENT and Revision Application No.5 of 2000 stands restored to the file of the revisional authority for taking a fresh decision in accordance with law, without being influenced by any prima facie observations made hereinbefore. The revisional authority shall, needless to state, grant an opportunity of hearing to the petitioner before deciding the revision application. (12) The petition is allowed accordingly in the aforesaid terms. Rule made absolute. There shall be no order as to costs. Sd/- [D. A. MEHTA, J] *** B h a v e s h *