C%? w? @g @gmm @Wh In the Hi h Court of Chhattis arh Bilas ur WP<T)-&;/MM10 Petitioner Mathanlal James, 38 Yrs., S/o Maganlal James, Méhendra Travels, New Bus Stand, Pandri, Raipur Versus Respondent lrState of Chhattisgarh, By Secretary in Charge, Transport Deptt., DKS Bhavan, ( Raipur 2. Taxation Authority cum Regional Transport Officer — Raipur 3.(M/s. Kanker Roadways, Thro’ Prop. — Preetam Singh Garcha, Near Gandhi Udyaan, Civil Lines, Raipur Petition Under Art. 226 of the Constitution of India n éx RESPONDENTS: 1. State of Chhattisgarh, By Secretary in Charge, Transport Department, DKS Bhavan, Raipur 2. Taxation Authority cum Regional Transport Officer Raipur M/s Kanker Roadways, Through Prop. — Preetam Singh Garcha, Near Gandhi Udyaan, Civil Lines, Raipur 3. Present: iii Shri Raja Sharma, counsel for the petitioners. Shri Sumesh Bajaj, Govt. Advocate for the State. Division Bench: Hon’bie S’hri Dhirendra Mishra & Hon’ble Shri R.N. Chandrakar, JJ. O R D E R (3—3—2011) The foliowing order of the Court was passed by Dhirendra Mishra, J. LIJ R v . The aforesaid writ petitions are being disposed of by this common order, as by these petitions, the petitioners have impugned the constitutionai’vaiidity of clause-(g) of Entry IV of the First Scheduie of the Chhattisgarh Motoryan Karadhan Adhiniyam, 1991 (for brevity ‘the Act of 1991’) read with Explanation (7) of the First Scheduie and further prayed for quashing of the impugned order dated 17-9—2009 whereby tax of Rs.19 iakhs has been imposed under the impugned entry of the First Schedule of the Act of 1991. . For the purposes of this order, reference is being made to the facts of W.P.(T) No.31 12/2010. . Briefly stated undisputed facts, as projected in the impugned order, are that the petitioner is the owner of bus bearing registration No.0G-O4/ZA—0513 with, a sitting capacity of 50+2 which is covered by the permanent permit on route Raipur to Jagdalpur. After formation of the State of Chhattisgarh in the year 2000, in order to provide commutation facility to the employees of the State Government working in Mantralaya, Secretariat, Directorate etc, the State hired buses owned by the private operators. Initially, the aforesaid work was entrusted to M/s Kanker Roadwaysfor the period from January, 2003 t vV' o December, 2005, however, later on, the work was entrusted to the petitioners with a‘flat rate of Rs.30,000/- per month as per conditions contained in ‘X /. (OK) agreement of Annexure-P/Z. However, on the complaint (Annexure-P/3) of respondent No.3, a notice (Annexure-P/4) was issued by the Taxation Authority proposing fixation of tax. The notice was duly replied vide ' Annexure—P/5, however, by the impugned order, recovery of baiance tax of Rs.5,78,975/— has been ordered. Learned counsel for the petitioners submitted that clause-(g) of Entry lV of the First Schedule of the Act of 1991 as amended by Madhya Pradesh Motoryan Sanshodhan Adhiniyam, 2004 read with Explanation (7) of the First Schedule thereof came for consideration before the Supreme Court in the matter of Hardeo Motor Transport Vs. State’of M.P. & others {AIR 2007 SUPREME COURT 839} and the same has been declared unconstitutional. ln the instant case‘also, tax has been levied under sub-clause (g) of Entry lV of the First Schedule for not obtaining separate stage carriage permit. Since the case of the petitioner is squarely covered by the decision of the Supreme Court in Hardeo Motor Transport (Supra), the impugned order levying tax under clause (g) of Entry lV of the First Schedule (Annexure-P/1) be set aside by declaring the provisions of clause (g) of Entry lV of the First Schedule as unconstitutional. On the other hand, Shri Sumesh Bajaj, learned Govt. Advocate appearing on behalf of the State would argue that since the petitioner did not obtain permit for plying the vehicle under contract carriage nor paid any tax @ Rs.100/— per seat per quarter, her vehicle was treated as Without having a valid contract carriage permit and the tax was rightiy assessed and imposed under clause (g) of Entry lV of the First Schedule of the Act of 1991. The petitioner never - raised issues like constitutionality and ultra vires of the provisions before the authority. The petitioner had an alternative remedy of preferring appeal before the Transport Commissioner. For these reasons, the instant petition deserves to be dismissed. . Heard learned counsel for the parties. . The issue of constitutional validity of the impugned provisions came for ' consideration before the Supreme Court in Hardeo Motor Transport (Supra). The Hon’ble Supreme Court, after elaborately discussing its earlier judgments on the subject, observed that Section 3 of the Act of 1991 is a r . "X V<,’ e . . charging section. The tax is levied on motor vehicle used or kept for use in the State at the rates specified in the First Schedule and thus, levy of tax is on the motor vehicles. Explanation (7) of the First Schedule of the Act of 1991 does not create any legal fiction which provides for a inclusive definition stating that the words “plying without permit" in Clause (g) shall include plying of a public service vehicle on an authorized route or making a trip not authorized by a permit granted under the 1988 Act lt has been further observed that by inserting an explanation in the Schedule of the Act the main prowsions of the Act cannot be defeated and the scope and effect of a prOViSion cannot be enlarged ConSIdering that the appellants had paid tax as speCified for in permits granted in their favour as a contract carriage, it has been held that for non- payment of tax or for paymentof tax for a wrong purpose, a penalty can be imposed but different rate of tax which is not contemplated under Section 3 of the Act of 1991 cannot be imposed by way of penalty. With these observations, it has been finally held that it is a trite law that the executive while fixing a rate of duty cannot be permitted to usurp the legislative power and make a provision which would be inconsistent with,the substantive provision of the statute. ln other words, the provisions contained g in the Schedule must be in consonance with the substantive provisions in the main Act. lt must be in conformity with the charging Section. As in terms of Section 3 of the 1991 Act, the legislature directed that the tax can be levied on motor vehicles subject to the rates fixed; by taking recourse to Explanation (7), firstly, no, new definition could be introduced and, secondly, an owner of a vehicle having one kind of permit could not have been treated as having no permit at all only because the transport authorities have reasons to believe that the conditions of permit have been violated. ln the instant case, the petitioner has challenged the constitutional validity of Clause (g) of Entry IV of the First Schedule of the Act of 1991 read with Explanation (7) of the First Schedule which provides for levy of tax at the rate of Rs.1 ,OOOI- per seat per month in accordance with entire registered seating ' capacity of motor vehicles plying without permit/authorization (Vehicle other than Tourist vehicle or Deluxe bus), which is not in consonance with the ‘\”‘ “i l . substantive provisions contained in Section 3 of the Act of 1991 which is a charging section. Following the decision of the Supreme Court in Hardeo Motor Transport (Supra), for the reasons mentioned above, Clause (g) of Entry lV of the First Schedule of the Act of 1991 read with Explanation (7) of the First Schedule is declared unconstitutional. Consequently, the impugned order (Annexure-P/t) dated 17/9/2009 levying tax and demand note dated 17—9—2009 are hereby set aside. 10. The writ petitions are accordingly allowed. No order as to costs. o. i. x-\.\i Sd/— Sdl- Dhirendra Mishraj f L RN Chandrakar Jadg " ” M; Judge e 1