IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.03.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.20510 of 2003 and W.P.M.P.No. 25588 of 2003 S. Ravirajan ... Petitioner vs. The Regional Transport Officer, Perambalur. ... Respondent Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari to call for the records of the respondent relating to R.No.6670/A2/2003 dated 03.04.2003 in respect of vehicle No. T.N.09/M 1011 and quash the same. For Petitioner : Mr.N.Gopalakrishnan For Respondent : Mr.C.Ramesh, Addl. Govt. Pleader O R D E R The petitioner has sought for a Writ of Certiorari, to quash the order of the Regional Transport Officer, Perambalur in R.No.6670/A2/2003 dated 03.04.2003 in respect of vehicle No. T.N.09/M 1011 and for further orders. 2. The petitioner is the owner of the above said vehicle covered by tourist permit issued by the State Transport Authority, Pondicherry and the permit is valid upto 05.12.2004. The insurance certificate and the fitness certificate were also valid upto 05.12.2004. On 13.03.2003, the vehicle was checked by the Motor Vehicle Inspector, Grade I, Perambalur and based on the check report, the vehicle was seized. As per the direction of this Court in W.P.No.8550 of 2003, the seized vehicle was directed to be released subject to filing undertaking to appear and produce the vehicle as and when required and not to transfer or encumber the vehicle in question. 3. The respondent has issued a show cause notice dated 03.04.2003, directing the petitioner to pay a sum of Rs.1,08,000/- as tax to the State of Tamil Nadu for the entire quarter ending with 31.03.2003 starting from 01.01.2003 and compounding fee of Rs.2200/-. Aggrieved by the same, the petitioner has preferred this writ petition for the relief as stated supra. 4. Placing reliance on unreported judgments passed by this Court in W.P.Nos. 69 and 70 of 1974 and W.P.No. 4078 of 1978, Mr. N.Gopalakrishnan, learned counsel appearing for the petitioner submitted that the respondent ought to have issued a show cause notice by giving an opportunity to the petitioner before imposing heavy burden of tax liability. He further submitted that the question of collecting the compounding fee does not arise as the provision of the Motor Vehicles Act and the Rules contemplate payment of compounding fee only in lieu of suspension as per section 86(5) of the Motor Vehicles Act 1988 and that suspension of permit could be imposed by the authority who had granted permit. As the respondent is not a permit issuing authority, imposition of compounding fee is liable to be set aside. Learned counsel for the petitioner further submitted that for the violation noticed by the checking officer, there cannot be any demand of tax. 5. Per contra, Mr.C. Ramesh, learned Additional Government Pleader appearing for the respondent referring to impugned order submitted that the vehicle was checked near Mangalamedu Police Station on Trichy-Chennai Highway Road and it was found to have been operated without a permit and the person in charge of the vehicle was not in possession of registration certificate, Insurance certificate, tax token, permit, D.L. and such other records. The learned counsel appearing for the respondent further submitted that on verification of records, it was found that the vehicle had plied in Tamil Nadu without renewal of authorisation beyond 27.05.2002 and payment of tax due to the Government of Tamil Nadu is very serious offence as per the provisions of the Tamil Nadu Motor Vehicles Act, r/w rules of the Tamil nadu Motor Vehicles Taxation Act. Further, the petitioner is liable to pay the tax as per section 3 of the Tamil Nadu Motor Vehicles Taxation Act along with compounding fee of Rs.2200/-. 6. The learned counsel further submitted that though the petitioner was holding an all India permit, the petitioner is not supposed to operate the vehicle without special permit or temporary permit. That apart, the vehicle has picked up passengers from Trichy, by collecting individual fare of Rs.120/- per head, so as to set down at Chennai, which is a serious violation not only of the permit condition, but also the provisions of Tamil Nadu Motor Vehicles Taxation Act. The tax has to be paid in advance by the holder of permit as per Schedule II of section 3 of the Motor Vehicles Taxation Act. Since the petitioner had failed to remit the tax within the prescribed time, there is no need to issue show cause notice before demand is made by the Regional Transport Officer concerned. 7. Heard the learned counsel appearing for the parties and perused the available records. 8. Reading of the impugned order dated 03.04.2003 shows that on 13.03.2003 at about 2.30 a.m., the Motor Vehicle Inspector Grade I Perambalur (office of the Regional Transport Officer, Perambalur) stopped and checked the HMV Omni bus bearing Registration No.TN 09 M 1011 near Mangalamedu Police Station on Tiruchy- Chennai Highways Road and detected the following irregularities:- (a) R.C., I.C. Tax token, permit, D.L., and other records not produced for check. (b) Special Permit or temporary permit to ply in Tamil Nadu not produced. (c) The vehicle has picked up passengers from Trichy by collecting individual fare of Rs.120/- per head so as to set down at Chennai. (d) The custodian of the vehicle failed to pay Tamilnadu tax at the time of check and the driver absconded from the spot. Hence, the vehicle was impounded as per section 207 of the Motor Vehicles Act 1988. (e) The cleaner of the vehicle alone signed in the check report since the driver had absconded. Since no records were available at the time of check, the checking officer had not furnished the correct name and address of the permit holder. Subsequently, on 03.04.2003, the authorised agent of the petitioner, appeared before the Regional Transport Officer, Perambalur and produced a copy of this court order dated 19.03.2003 in W.P.No. 8550 of 2003 along with the copy of records of the vehicle in question. On verification, the validity of records were ascertained as follows:- (i) Permit: TD/TP/4/116/99 (TVP/54/PY/94) dated 10.12.1999 issued by State Transport Authority, Pondicherry- All India Permit valid upto 05.12.2004. (ii) Insurance Certificate: 07.05.2002  06.05.2003 (iii) Fitness certificate: 26.06.2002 to 25.06.2003 (iv) Tax for 31.03.2003 paid for home State only (i.e) Pondicherry. Authorization issued by A/STA/Pondy to ply in Tamilnadu, Andhra Pradesh, Kerala, Karnataka, Maharastra (5 states) validity: 28.05.2001 to 27.05.2002 (with a condition to pay the tax/fees if any levied by the states concerned) (v) Driving licence of Thiru. Thennarasan was valid upto 15.02.2004 (not authorised to drive tourist vehicle) 9. On verification of the records indicated above shows that the authorisation issued by the Regional Transport Authority, Pondicherry was valid only upto 27.05.2002 and that payment of tax is due to State of Tamilnadu. That apart, the operation of the vehicle, within the state of Tamil Nadu and picking up the passengers from Trichy by collecting Rs.120/- per head so as to set down at Chennai has not been disputed by the petitioner. It is seen from the check report that the owner of the vehicle/person incharge of the vehicle has failed to pay the tax to the State of Tamil Nadu at the time of checking and the driver had also absconded from the spot. 10. Section 66 in chapter V of the Motor Vehicles Act 1988 deals with "Control of Transport Vehicles". As per section 66(1); "No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used". Section 192 in chapter XIII of Motor Vehicles Act 1988 deals with "Offences, Penalties and Procedure" to be followed by the authorities in contravention of any provision of the Motor Vehicles Act or rules covered thereunder. As per section 192(1) "whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the3 provisions of section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both: Provided that the Court may, for reasons to be recorded, impose a lesser punishment". 11. The Tamil Nadu Motor vehicles Taxation Act, 1974 is enacted for the purpose of levy of tax on motor vehicles in the State of Tamil Nadu. Section 3 of the M.V. Taxation Act deals with "Levy of tax" and it reads as follows: "Subject to the provision of sub section (2) tax shall be levied on every motor vehicle used or kept for use in the State of Tamil Nadu at the rate specified for such vehicle in the First Schedule or in the Second Schedule or in the Third Schedule, as the case may be". Section 8 of the M.V. Taxation Act states about the "Period within which tax is to be paid" and it is extracted here under: "The tax due under this Act shall be paid within such period, not being less than seven days or more than (forty five days) from the commencement of the quarter, half year or year, as may be prescribed, and different periods may be prescribed for different classes of motor vehicles". Section 6 of the M.V. Taxation Act deals with the "Issue of temporary licence" and it reads as follows; "A temporary licence for a period not exceeding seven days or thirty days or ninety days, as the case may be, at a time, may be issued in respect of any class of motor vehicles specified in the First Schedule, on payment of tax- (a) in respect of a temporary licence exceeding thirty days, at the rate of quarterly tax; (b) in respect of a temporary licence exceeding seven days but not exceeding thirty days, at the rate of one third of the quarterly tax; (c) in respect of a temporary licence not exceeding seven days, at the rate of one tenth of the quarterly tax. 12. A reading of the Section 6 of the M.V. Taxation Act makes it clear that if a temporary licence for a particular period is granted by the competent authority, the holder of the permit is liable to pay the tax, as applicable to that class of the vehicle specified in the First Schedule, depending upon the period of temporary licence. Admittedly, the petitioner has got an authorisation issued by the State Transport Authority, Pondicherry to ply the vehicle in Tamil Nadu, Andhra, Kerala, Karnataka, Maharashtra (5 states) and the validity is from 28.05.2001 to 27.05.2002, with a specific condition that the holder of the permit should pay the tax/fees if any levied by the states concerned. Since the vehicle in question is not covered by a temporary permit, the petitioner having agreed to pay the tax/fees for operating the vehicle in the States, ought to have paid the tax in advance to the concerned States and operated the vehicle within the State of Tamil nadu. Since the vehicle in question, on the date of check was not covered temporary permit as per section 6 of the M.V. Taxation Act, the consequence is that the holder of the permit using the motor vehicle in the State of Tamilnadu has to pay the tax as specified in the First Schedule . 13. Section 7 of the M.V. Taxation Act deals about "Liability to payment of tax by persons succeeding to the ownership, possession or control of motor vehicles" and it is extracted here under; "If the tax leviable in respect of any motor vehicle remains unpaid by any person liable for the payment thereof and such person, before paying the tax, has transferred the ownership of such vehicle or has ceased to be in possession or control of such vehicle, the person to whom the ownership of the vehicle has been transferred or the person who is in possession or control of such vehicle, shall be liable to pay the said tax". 14. In a recent judgement of this court, in 2008 (1) CTC 835 in I.Shajahan /vs/ The Regional Transport Officer, Coimbatore (South) and another, this court considered an issue as to whether the provisions of the Tamil nadu Motor Vehicles Taxation Act 1974 can operate independently, de horse the penal action taken against the holder of the permit for suspension or cancellation of the permit, as the case may be. 15. In the reported case, the petitioner was a State wide contract carriage permit holder, in respect of a vehicle and the permit was issued by State of Kerala . The vehicle crossed the State of Kerala and entered into Tamil Nadu where it was checked and found that there was no valid permit. The Regional Transport Officer, Coimbatore (South), passed an order, directing the permit holder to pay the tax of Rs.34,000/- for the use of the vehicle within the state of Tamil Nadu. The petitioner had contended that for violation of permit conditions noticed by the checking officer, Motor Vehicles Act contemplates only disciplinary action and tax cannot be levied. Rejecting the said contention, this court held that though the M.V. Act contemplates disciplinary action for violation of the conditions of the permit, as per section 3 of the Tamil Nadu Motor Vehicles Taxation Act, 1974, the State Government can levy tax on every motor vehicle used or kept for use in the State of Tamil Nadu. The Court has further held that the provisions of both the Motor Vehicles Act and Tamil Nadu Motor Vehicles Taxation Act 1974 can operate independently and are not repugnant to each other. Merely because penal provision is contemplated under the Parent Act that will not preclude the authorities from levying and collecting tax. 16. In so far as the contention raised by the learned counsel appearing for the petitioner, that show cause notice was not issued by the respondent to refute the allegations, it is seen from the affidavit that the petitioner has not specifically denied that the checking report has not conducted any inspection. Further, sitting under the extraordinary jurisdiction, this Court cannot reappraise the factual aspects, considered by the authorities. 17. In a decision reported in Raj Fernandez v. Regional Transport Officer, Madras, in 1993 Writ L.R. Page 476, at para 11, it has been held that; "The Taxation Act is not like Income Tax Act or Sales Tax where an assessment has to be made on the basis of returns. The tax is a fixed amount and it has to be paid within the periods specified. Even with regard to penalty, the Rules themselves prescribe the amounts of penalty depending on the period of default. Here again, there is no necessity for any order of assessment as such. Consequently, an order directing payment of tax as well as penalty on default, does not require any previous notice to the person concerned. The person is very well aware that he had not paid the tax. If he has paid the tax already and a demand is made mistakenly, it is always open to him to convince the authorities that he had paid the tax and yet, a wrong demand is issued. If, on the other hand, his contention is that he is not liable to pay tax, it is for him to make out that case. Hence, there is no necessity whatever for issuing a show cause notice to the owner of the vehicle in order to call upon him to pay the tax, which he himself is bound to pay and the penalty for default in payment of tax. There is no question of any violation of principle of natural justice. It is a statutory liability cast on the owner of the vehicle and he should perform his duties properly. If he has failed to do so, he cannot claim that there is a violation of principles of natural justice in his not having been heard before the order is passed. The order is passed only on the basis of the statutory prescription of which he is already aware". 18. The said reported judgement has not been overruled on the points raised and the same squarely applies to the facts of present case. Therefore, the contention of the learned counsel for the petitioner that there has been a violation of principles of natural justice cannot be approved, both on facts and law. In the decision relied on by the learned counsel for the petitioner in W.P.No.21423 of 2000 dated 03.04.2007, this Court has held that tax levied by the authority, being compensatory in nature, the demand to pay quarterly tax for violations noticed on a single day is liable to be set aside, and even assuming that the checking is true, tax can be levied for that particular month only. In the said Order, the petitioner was a stage carriage operator having a contract carriage, All India Tourist permit. When the vehicle was checked by the respondent, it was found that the holder of the permit had picked up passengers from Coimbatore to Anamalai. Whereas, in the instant case, the vehicle bearing Regn. No.TN 09/M 1011 was not even authorised to ply within the State of Tamil Nadu beyond 27.05.2002 and that there was no special permit or temporary permit. In the absence of any authorisation under form 47 of the M.V. Act, the authorities are competent to levy appropriate tax under section 3 of the Tamil Nadu Motor Vehicles Taxation Act. Payment of tax as per First Schedule is per quarterly. 19. It is a well settled legal proposition that when the Act contemplates, specific things to be done in a particular manner, Courts have no power to add or delete the words to an Act. The Apex Court in (2006)8 SC cases 613 in Hardev Motor Transport v. State of M.P. and others, at para 35, held that; "The transport authorities of the State indisputably have the power to check a vehicle so as to ascertain whether payment of tax is being evaded. They have been conferred with the power to detain a vehicle. They can release the vehicle only when tax as demanded is paid. Even the power of the court to release the vehicle has been taken away unless tax is paid and the court can satisfy itself as to whether a tax is paid or not only on the receipt of the certificate issued by the transport authorities of the State. The power of the transport authorities therefore is very wide. However, only because a wide power has been conferred the same by itself would not lead to a presumption that the same is capable of misuse or on that count alone the provisions of Article 14 of the Constitution would be attracted. But, when a statute confers a wide power upon a statutory authority, a closer scrutiny would be required". 20. For the reasons stated above, I do not find any procedural irregularity or illegality in the demand notice issued by the Regional Transport Officer, Perambalur in R.No.6670/A2/2003 dated 03.04.2003. However, while demanding tax at Rs.1,08,000/- due to State of Tamil Nadu @ Rs.3000/- per seat per quarter along with 1% tax by the Regional Transport Officer, Perambalur, has directed the petitioner to pay the compounding fee at Rs.2200/- as assessed for the following offences:- (a) Non carrying of records  Rs.100/- (b) Plied without valid permit - Rs.500/- (c) Plied without driving licence - Rs.1000/- (d) Non payment of tax - Rs.100/- (e) for having plied the vehicle within the Tamilnadu - Rs.500/- _________ Total -Rs.2200/- _________ 21. Section 86 of the Motor Vehicles Act empowers the Transport authority which granted a permit to cancel the permit or suspend it, for such period as it thinks fit if there is violation of any conditions specified in section 84 or of any conditions contained in the permit. Further, section 86(5) of the Act states that; "Where a permit is liable to be cancelled or suspended under clause (a) or clause (b) or clause (e) of sub section (1) and the transport authority is of opinion that having regard to the circumstances of the case, it would not be necessary or expedient so to cancel or suspend the permit if the holder of the permit agrees to pay a certain sum of money, then, notwithstanding anything contained in sub section (1), the transport authority may, instead of cancelling or supsending the permit, as the case may be, recover from the holder of the permit the sum of money agreed upon". 22. A reading of section 86(5) makes it clear that the Regional Transport Officer, Perambalur, respondent herein, is not the permit issuing authority and he has no jurisdiction to direct the petitioner to pay any compounding fee for the offence/violation committed by the petitioner. Hence, the impugned order is liable to be set aside to the limited extent of imposition of compounding fee only. 23. In view of the specific provision under section 192(A) of the M.V. Act, it is open to the concerned authority to take appropriate action. Accordingly, the writ petition is allowed only to imposition of compounding fee. No costs. Consequently, connected Miscellaneous Petition is closed. 25.03.2008 Index: Yes/No Internet: Yes/No rk To The Regional Transport Officer, Perambalur. S. MANIKUMAR, J. rk W.P.NO.20510 of 2003 25.03.2008