CIVIL WRIT JURISDICTION CASE No.4057 OF 1998 ------------ In the matter of an application under Article 226 of the Constitution of India. ----------- Nagendra Tiwary, son of Sri Jagarnath Tiwary, resident of Village- Izratola, Mitbhairwa, P.O. and P.S. Govindganj, Motihari, District- East Champaran -------- Petitioner. Versus 1. The State of Bihar. 2. Member, Board of Revenue, Govt. of Bihar, Patna. 3. Secretary, Department of Transport, Govt. of Bihar, Patna. 4. Joint State Transport Commissioner, Bihar, Patna. 5. District Transport Officer, Motihari, East Champaran. ----- Respondents. ------------- For the Petitioner: Mr. Sunil Kumar Gupta, Advocate. For the Respondents: Mr. Amarendra Kumar, A.C. to AAG- 4. ------------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ********* S.K.Katriar,J. The writ petition has been preferred with the prayer to quash the order dated 10.2.1998 (Annexure-14), passed by the learned Member, Board of Revenue, in Revision Case. No.122 of 1997 ( Nagendra Tiwary Vs. The Department of Transport), whereby he has rejected the revision application preferred by the petitioner, the petitioner’s claim for exemption from payment of tax for the period 1.4.1989 to 31.7.1992, has been rejected, and the order of the two authorities below him have been affirmed. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The petitioner claims to 2 be the owner of bus no. B.R.E. 3233, and he had permit to ply it for carriage of passengers etc. The petitioner’s further case is that he surrendered the vehicle before the District Transport Officer, Motihari, on 31.3.1989, because it was in a state of disrepair and needed drastic repairs to be back on the road. The petitioner’s application was rejected by order dated 3.4.1996 (Annexure-12), passed by the learned Transport Commissioner, inter alia, on the ground that there was no material on record to show that he had in fact surrendered the vehicle. On the contrary, he found that there was material on record to suggest that the vehicle was actually plying. Aggrieved by this order, the petitioner preferred appeal which was rejected by order dated 22.3.1997 (Annexure-13), passed by the learned Secretary, Transport Department, Government of Bihar, who affirmed the findings of facts passed by the learned first authority. Aggrieved by this order, the petitioner preferred revision application before the learned Board of Revenue which has been rejected by the impugned order. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the learned Board of Revenue has misdirected itself in determining the issue, inasmuch as the requirement to surrender the vehicle along with the papers was introduced by the State Government by notification dated 23.3.1992, issued in terms 3 of Section 9A of the Bihar and Orissa Motor Vehicles Taxation Act, 1930 (hereinafter referred to as ‘the Act’). He next submits that it has been held in a long line of cases that taxation under the Act is compensatory in nature. It is, therefore, axiomatic that if vehicle is not used, tax is not leviable. He relies on the following reported judgments of the Supreme Court: (i) Bolani Ores Ltd. Vs. State of Orissa, A.I.R. 1975 SC 17 (ii) State of Gujrat and others Vs. Kaushikbhai K. Patel and another, A.I.R. 2000 SC 2175 (iii) South Chotanagpur Division of Bihar Motor Transport Federation Vs. State of Bihar & Ors., 1991 B.B.C.J.390 He next submits that the duty to enquire is on the authority under the Act. He relies on the following reported judgment: (i) Jang Singh Vs. Brij Lal and others, A.I.R. 1966 SC 1631. (ii) Rama Shanker Singh Vs. The State of Bihar and others, 1987 P.L.J.R. 52(S.C.). (iii) Kapildeo Singh Vs. The State of Bihar, 1993(1) P.L.J.R.295. He further relies on the order of a Division Bench dated 5.8.1994, passed in C.W.J.C. no. 11182 of 1993 (Nirmal Kumar Singh Vrs. The State of Bihar and others). 4. Learned Government Counsel has supported the impugned order. He submits that there is no material on record to suggest that the petitioner had ever surrendered the vehicle and the same was not in use. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. All the three authorities have consistently found that 4 there was no material on record to show that the vehicle had ever been surrendered before the appropriate authority. On the contrary, the three authorities have concurrently found that the vehicle was in use during the period in question. It thus appears to us that in view of the consistent finding of fact, it is difficult for this Court in writ jurisdiction to reexamine those issues of facts. We feel bound by the same. We reach at the conclusion that the petitioner had never surrendered the vehicle in question, and in fact the same was in operation throughout. This concludes the matter. 6. In the result, we do not find any merit in this writ petition. It is accordingly dismissed. B.P. Verma, J. I agree. Patna High Court, Patna, Dated 9th November, 2010 Vinay/ N.A.F.R. ( S. K. Katriar,J. ) (Birendra Prasad Verma, J.)