IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2008 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.24218 of 2004 and W.P.M.P.No.29405 of 2004 S.Thanamani APS Transports 68 Ahilmedu Veethi Sait Colony Erode .. Petitioner Vs. The Regional Transport Officer Gobichettypalayam Erode District. .. Respondent Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari, to call for the records of the respondent herein made in R.No.25254/,4/2004 dated 17.08.2004 demanding a sum of Rs.17100/- as 1/10 of quarterly tax for a contract carriage in respect of petitioner's spare bus TN.47/C.6177 and to quash the same and for further orders. For petitioner : Ms.S. Radhagopalan For respondents : Mr.A.Arumugam AGP O R D E R This writ petition is filed for issuance of a writ of Certiorari, to call for the records of the respondent herein made in R.No.25254/ , 4/2004 dated 17.08.2004 demanding a sum of Rs.17100/- as 1/10 of quarterly tax for a contract carriage in respect of petitioner's spare bus TN.47/C.6177 and to quash the same and for further orders. 2. Facts of the case area s follows: The petitioner is a stage carriage operator, having a stage carriage permit issued by the Regional Transport Authority, Erode. The vehicle bearing registration No.TN.47/C.6177 was covered by valid spare bus permit. In respect of the above said vehicle the petitioner obtained temporary permits under Section 88 (8) of the Motor Vehicles Act in order to ply on special occasions to visit various tourist places, for the period from 05.03.2004 to 12.03.2004 to ply from Gobi to Chennai up and down, empty and from Chennai to Chennai via., VGP, Mahabalipuram, Melmaruvathur, Tindivanam, Pondi, Kumbakonam, Rameswaram, Kanyakumari. 3. The petitioner has further submitted that as the tour was about to be completed as per the schedule, on 11.03.2004, at Tiruthani, one of the inmates of the tourist party suffered chest pain and therefore the tourists decided to cut short their tour and requested the driver to proceed to chennai. At that time, the vehicle was checked by the Regional Transport Officer, Meenambakkam, and a check report was issued alleging that the vehicle was operated against the conditions of the special permit by picking up another group of persons. Based on the said check report, the respondent issued a show cause notice on 17.07.2004 stating that the vehicle had plied violating special permit and directed the petitioner to show cause as to why the permit should not be cancelled under Section 86(1) of the Motor Vehicles Act, 1988 for the irregularity. The petitioner submitted an explanation denying the charges and also explained that because of the chest pain of one of the tourists, the tour was cut short and the fact was also explained to the Checking Officer at the time of check and also prayed that further action may be dropped. However, the respondent without accepting the explanation of the petitioner, issued the impugned notice in R.No.25254/E-4/2004 dated 17.08.2004 demanding a sum of Rs.17,100/- being 1/10th of quarterly tax in respect of the contract under the provisions of the Tamil Nadu Motor Vehicles Taxation Act, 1974. Hence, the petitioner has approached this Court by way of this writ petition. 4. Referring to the show cause notice dated 17.07.2004 issued by the Regional Transport Officer, Gobichettypalayam, learned counsel for the petitioner submitted that when the show cause notice was issued only for cancellation of the permit, the respondents ought to have provided adequate opportunity of personal hearing before passing an order. She further submitted that in the absence of any action under the Tamil Nadu Motor Vehicles Taxation Act, the impugned order demanding excess tax is liable to be set aside. 5.Learned counsel for the petitioner further submitted that as the petitioner had already been issued with a valid special permit under Section 88 (8) of the Motor Vehicles Act, 1988 for the period from 05.03.2004 to 12.03.2004, there is no violation of the permit condition. 6.Placing reliance on an un-reported judgment dated 04.02.2000 made in W.P.No.1426 of 2000, learned counsel for the petitioner submitted that in the absence of any specific provision under the Tamil Nadu Motor Vehicles Taxation Act and Rules framed thereunder, the demand raised by the respondent for collection of tax for use of the vehicle, as a contract carriage, is unjustified. It is also the contention of the learned counsel for the petitioner that the respondent has not considered the explanation of the permit holder in proper perspective. 7.Mr.A.Arumugam, learned Additional Government Pleader for the respondent, on the basis of the impugned order, submitted that the spare bus, bearing Registration No.TN.47/C.6177 has been operated as an omni bus and therefore, the petitioner has to pay the differential tx as per Section 11 of the Tamil Nadu Motor Vehicles Taxation Act,1974. Heard the learned counsel appearing for the parties and perused the record. 8. The contention of the petitioner that a spare bus permit was issued by the Regional Transport Authority , Erode in respect of vehicle bearing Registration No.TN.47/C.6177 and that a special permit under Section 88 (8) of the Motor Vehicles Act was also obtained to carry tourist passengers for the period from 05.03.200 to 12.03.2004 in order to ply from Gobi to Chennai etc., is not disputed by the respondent by filing any counter affidavit. The impugned order states that the spare bus was used as an omni bus and therefore, the petitioner is liable to pay tax applicable to the omni bus. The petitioner has been further directed to pay Rs.17,100/- being the 1/10th of the quarterly tax for the omni bus permit. 9. In W.P.Nos.1624 of 1976 etc., batch, dated 09.09.1976, the main ground urged by the petitioners therein was that, "The spare bus is covered by a pucca permit issued by the Regional Transport Authority and the tax has been paid at 3/4th of the tax payable for a regular stage carriage. When the vehicle plies outside the region, temporary permits under Section 62(c) of the Motor Vehicles Act, 1939, were obtained and that at no time the contract carriage permit was issued to the petitioner." The issue raised and considered by this Court in the above case was whether the Regional Transport Officer, Tirunelveli, the respondent therein, had jurisdiction to demand the rate of tax applicable to the contract carriage. The stand taken by the Government was that if the spare bus was used other than as a reserve stage carriage, for instance, as a contract carriage or an omni bus, the liability was to pay full Tax and if at all, the holder of the permit wanted exemption from full taxation, he should have complied with G.O.Ms.No.1904 (Home), dated 21.10.1975. It was further contended that inasmuch as the petitioners therein had not fulfilled the requirements of the said Government Order, the impugned demand was perfectly valid. After analysing the provisions of the Motor Vehicle Taxation Act, this Court held that the above Government Order has no application and the petitioner therein was liable to pay only 3/4th of the tax, applicable to a regular stage carriage. 10. In yet another Writ Petition in W.P.No.1426 of 2000, dated 04.02.2000, on 05.11.1999, the Motor Vehicle Inspector checked a stage carriage bearing Registration NO.TN 63-B 9495 and found that the vehicle was used as a contract carriage, by collecting the individual fare of Rs.150/- each. Therefore, on the basis of the check report, a memo was issued to the permit holder to show cause as to why action should not be taken to suspend the permit under Section 86(1)(c) of the Motor Vehicle Act, 1988. The petitioner therein submitted his explanation and not satisfied with the same, by demand notice dated 15.12.1999, the petitioner was directed to pay Rs.11,400/- being the 1/10th tax, for the offence of using the spare bus as an omni bus and send the amount, immediately by way of cash. Relying on the decision of this Court in W.A.No.262 of 1977 etc., this Court in W.P.No.1426 of 2000, held that the violation of the permit condition, even if noted by the authorities concerned could only provide for a cause of action to proceed against the holder of the permit for cancellation or suspension of the permit and cannot levy tax and accordingly, set aside the demand of tax 11. In the case on hand, the allegation of the respondent is that the spare bus was used as an omni bus and therefore, the petitioner is liable to pay the difference in tax. The unreported judgments relied on by the learned counsel for the petitioner are applicable to the facts of this case. The learned Additional Government Pleader is not in a position to State as to whether appeals were preferred against the unreported judgments. Section 11 of the Motor Vehicles Taxation Act, is not applicable to the present case, and such a situation arises, only when the Motor Vehicle in respect of which, tax has been paid, is either altered or proposed to be used in such manner, as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable. Occasional use will not come within the ambit of alteration or proposed to be used. Therefore, there cannot be any change in the class of the vehicle. Under the Act, separate procedure is contemplated for changing the use of the vehicle. In the instant case, I find that the special permit under Section 88(8) of the Motor Vehicles Act was granted for a period from 04.06.2003 to 09.06.2003. Therefore, following the judgments referred to above, the petitioner, who was in possession of the spare bus permit as per the above provision, need not pay the tax demanded by the respondent. As pointed out by the Hon'ble Supreme Court in M.Narasimhaiah v. Dy. Commr., for Transport, Banglore reported in AIR 1988 SC 240, the competent authority shall consider the need to enforce the provision of Section 86 of the Motor Vehicles Act, 1988, if so advised. 13. For the above said reasons, the impugned order is set aside and the Writ Petition is allowed. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar kvsg To The Regional Transport Officer Gobichettypalayam Erode District. 1 cc To The Government Pleader, SR.8413 +1 cc To Mr.Ms. Radhagopalan, Advocate, SR.7961 W.P.No.24218 of 2004 msm [co] gkg/1.9