IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.07.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.12551 of 2006 C.Mahendiran ... Petitioner -vs- The Regional Transport Officer Nagapattinam. ... Respondent Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari to call for the records of the respondent made in R.No.A4/15762/2005 dated 1.12.2005 and quash the same. For Petitioner : Mr.K.Hariharan For Respondent : Mrs.M.Sneha, Govt.Advocate O R D E R With the consent of the learned counsel appearing on either side, the Writ Petition itself is taken up for final disposal. 2. The prayer in the Writ Petition is for issuance of a writ of certiorari to quash the order passed by the respondent dated 1.12.2005. The petitioner is a holder of the contract carriage omni bus permit issued by the State Transport Authority, Pondicherry. On 18.6.2005, the vehicle was impounded at Porayar by the Motor Vehicle Inspector, Mayiladuthurai, alleging that the vehicle has been used regularly for transporting patients to Vinayaga Mission Hospital. Since the vehicle was seized, the petitioner approached this Court by filing W.P.No.20224 of 2005 and this Court by an order dated 22.6.2005, directed the respondent to release the vehicle, with a condition that the vehicle should be produced before the respondent as and when required. https://hcservices.ecourts.gov.in/hcservices/ 3. Thereafter, on 27.6.2005, the respondent issued a show cause notice demanding tax for the State of Tamil Nadu and the petitioner submitted his reply on 1.7.2005. The respondent by proceedings dated 1.12.2005, demanded tax for one full quarter at Rs.1,62,000/-, which is now sought to be enforced by a memo dated 20.4.2006. Aggrieved by such demand of tax and consequential memo, the petitioner has approached this Court by way of the present Writ Petition. 4. The learned counsel for the petitioner would contend that there cannot be a demand for tax without conducting any enquiry; that the respondent failed to furnish the Check Officer's remarks and did not call for further explanation from the petitioner; that at the time when the check was conducted, there were no passengers and the Check Report also does not show how many passengers travelled in the vehicle and therefore it has to be presumed that there are no passengers. Even assuming that the petitioner is liable to pay tax for State of Tamil Nadu in terms of Section 6(c) of the Tamil Nadu Taxation Act, the demand can be made for only seven days and only 1/10th of the quarterly tax can be collected. 5. The learned counsel relied on the decision of this Court in W.P.No.14447 of 1999 dated 17.9.1999, which was confirmed by the Hon'ble Division Bench in W.A.No.2503 of 1999 dated 27.6.2000, the decision of this Court in W.P.No.20025 of 2000 dated 7.4.2003 and the decision in W.P.No. 1241 of 2001 dated 10.10.2006, in support of his contentions. 6. The learned Government Advocate appearing for the respondent would contend that as on the date when the vehicle was checked, it did not have a valid permit in the State of Tamil Nadu and therefore the demand of tax is perfectly valid. Further, the question of granting personal hearing does not arise as the petitioner was given sufficient opportunity in the form of show cause notice and the same would satisfy the principles of natural justice. 7. I have considered the submissions made by the counsel appearing appearing on either side and perused the materials available on record. 8. It is not in dispute that the petitioner's stage carriage did not have a valid permit in the State of Tamil Nadu. The controversy revolves around the check which was conducted on the https://hcservices.ecourts.gov.in/hcservices/ vehicle on 18.6.2005, at Porayar by the Motor Vehicle Inspector, Grade-I, Mayiladuthurai. The copy of the Check Report has been given to the petitioner. Based on such Check Report, a show cause notice was issued to the petitioner dated 27.6.2005. The petitioner has submitted his explanation on 1.7.2005 and the respondent has called for the remarks of the Check Officer on the explanation submitted by the petitioner and the Check Officer has also given his remarks on 19.8.2005 and based on which the impugned proceedings dated 1.12.2005 has been issued. In fact, in the reference column in impugned order, the remarks of the Check Officer dated 19.8.2005 has been referred to. The compliant of the petitioner is that the copy of such report of the Check Officer has not been furnished which is in violation of principles of natural justice. Further, the usage of a vehicle as a contract carriage and whether additional tax is to be levied is a issue involving determination of disputed questions of fact and law and therefore principles of natural justice must be strictly observed. 9. The petitioner seeks to object to the levy by raising factual question that at the time of check, the vehicle was empty, the vehicle was taken for repairs and the Check Report of the Motor Vehicle Inspector, Mayiladuthurai, does not say anything about the passengers in the bus. 10. On the legal aspect, by relying upon section 6 of the Tamil Nadu Motor Vehicles Taxation Act, the learned counsel for the petitioner contends that even assuming that the petitioner is liable to pay the tax, the said liability is only at the rate of 1/10th of the quarterly tax and not the amount demanded in the impugned order. Further, it is to be noted that this Court in W.P.No.1241 of 2001 dated 10.10.2006, considered the aspects as regards whether opportunity of personal hearing should be afforded in such matters and held thus: "14. Contending that in such cases of levying additional taxes, affording personal hearing is necessary, learned counsel placed reliance upon the Judgment of NAINAR SUNDARAM, J. in S.Mahalakshmi .. Vs.. The Reginal Transport Officer, Salem and another (W.P.No.4078 of 1978 dated 23.6.1981) (Referred to in 1993 W.L.R. 476). In that cases the authorities took the view that the vehicle was used as stage carriage though the owner was having only an omni bus carriage permits. She was directed to show cause why she should not pay tax on the basis that it was used as a stage carriage. She offered an explanation which was not accepted and an order was passed against her. That was challenged by her https://hcservices.ecourts.gov.in/hcservices/ on the ground that she was not heard in person and an opportunity should have been given to her by the authorities. Further, reliance was placed on the Judgment of KOSHAL, J. in Therasa Paulase .. Vs.. The Regional Transport Authorities, Madurai and Another ( W.P.No.69 and 70 of 1974 dated 18.11.1979), who held that an order which burdens a person with heavy pecuniary liability is quasi judicial in character and could not be passed without affording an opportunity to the person concerned of being heard. Reference was also made to the Judgment of Natarajan, J. in Raja Transport Firm .. Vs.. The Regional Transport Officer, Madurai (W.P.No. 4688 of 1976 dated 04.10.1978) and the Judgment of Mohan, J. in N.Subramaniam ..Vs.. The Regional Transport Officer, Thanjavuir (W.P.No. 4733 of 1976 dated 16.10.1978). In all those cases, it was held that the order was quasi judicial in character and the petitioner ought to have been heard before it was passed. Consequently, he quashed the order. Since the levy of additional tax and the points raised by the petitioner involve determination of disputed question of law and fact, the petitioner is to be afforded opportunity of personal hearing. Hence, the matter has to be remitted back to the Respondent with a direction to give personal hearing to the petitioner." 11. It is to be seen that in the instant case also no opportunity of personal hearing had been granted to the petitioner. The petitioner's case itself is if such hearing had been granted, the petitioner would have been able to demonstrate that the levy of tax is without jurisdiction. That apart, the Check Officer's report dated 19.8.2005 was also not furnished to the petitioner, which appears to be the basis of the impugned order. 12. Hence, for all the above reasons, the petitioner is entitled to succeed. Accordingly, the Writ Petition is allowed, the impugned order is quashed and the matter is remanded to the respondent for fresh consideration. The respondent is directed to furnish a copy of the remarks of the Check Officer dated 19.8.2005, which has been referred to in the impugned proceedings dated 1.12.2005. On receipt of the copy of the Check Officer's report, the petitioner shall be entitled to submit further representation or objections. Thereafter, the respondent shall afford an opportunity of personal hearing to the petitioner and pass orders on merits and in accordance with law. It is open to the petitioner to raise all factual and legal contentions raised in this Writ Petition. https://hcservices.ecourts.gov.in/hcservices/ 13. The Writ Petition is allowed on the above terms. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar rpa To The Regional Transport Officer Nagapattinam. + 1 cc to the Mr.K. Hariharan, Advocate SR.53089 + 1 cc to the Government Pleader SR.53030 W.P.No.12551 of 2006 MS(CO) EU 3.08.2010 https://hcservices.ecourts.gov.in/hcservices/