Back
1991 Supreme(Pat) 19
PATNA HIGH COURT
S.B.Sinha and R.N.Sahay JJ.
Palamau Zila Transport Association And Banwari Lal Agarwala
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 1107 of 1988 ; 1300 of 1988 ; 2172 of 1988 ;
Decided On : JANUARY 11, 1991
Headnote:Constitution of India, Articles 14 & 19(I)(g) - Public Service motor vehicles intended to be used for carrying on business, mayor may not be plied on public road-a citizen has a fundamental right to carryon business which includes not to carryon business-such person can not be made liable to pay any road tax in terms of the provisions of the Act - AIR 1979 SC 25 rel. on (Paras 16 & 17)
B & O Motor Vehicle Taxation Act, 1930, Secs. 6, 8, 11A (as amended)-Act provides for regulatory, measure in imposing Taxes for the purpose of raising revenue to meet the expenditure for making roads, repairing them and, to facilitate movement and regulation of traffic-despite amendment in Secs. 6 & 8 by amending Act of 1983 an owner of a Vehicle is liable to pay tax only when it is used in the public roads-if a person does not intend to carryon any business in transporting goods or passenger by means of a public service motor vehicle, he can not be made liable to pay any road tax - AIR 1975 SC 17 & 1979 PLJR 398 referred & relied on. (Paras 10, 12, 14 & 17)
B & O Motor Vehicle Taxation Act 1930 (as amendment in 1983) Sec. 9A(i) & (3)-the taxing officer exercises a quasijudicial function-the State Govt. and the Transport Commissioner has been empowered to supersede an order in the event it comes to its knowledge that exemption and writing off has been secured by any owener by misrepresentation or fraud-the power being statutory in nature can be exercise. only in independent cases-the provision do not empower the Respt. no. 2 to issue general instruction. (Paras 26 & 27)
B & O Motor Vehicles Taxation Act, 1930, Section 4-Act is a self contained code and the Taxing Officer appointed u/s 4 is a statutory functionary and he is required to exercise his statutory function within the frame work of the Act. (Paras 9 & 21)
S.B.Sinha, J.
1. All these writ applications involving common questions of law and fact were heard together and are being disposed of by this common judgment.
2. In these cases, the validity and/or legality of the order, dated 22nd June, 1988 as contained in Annexure-3 to the C.W.J.C. Nos. 1300, 2172 of 1988 (R) and Annexure-2 in C.W.J.C. No. 1107/88 (R) and order dated 12-1-1990 (Annexure-3 to C.W.J.C. 1221/90 (R) are in question.
3. By reason of the said purported orders issued from the Office of the State Transport Commissions, Bihar, Patna, all the District Transport Officers were directed to accept surrender of the licenses granted to them in terms of the provisions of Bihar Motor Vehicles (Taxation) Act, 1930 (hereinafter called and referred to for the sake of brevity as the said Act) only if the applicants therefore fulfill the following conditions:-
-
(a) if the vehicle is involved in any accident resulting in extensive damage;
(b) if the vehicle is seized by the police and had been in seizure for a period of one month;
(c) major repairs of the vehicles which are expected to take more than one month.
4. According to the petitioners, in terms of the provisions of the said Act, the District Transport Authority of each district has been designated as Taxing Officer by a notification, dated 5-4-1973. The petitioners contend that they approached respondent No. 3 for surrender of the vehicles which was refused to them in view of the impugned orders as mentioned hereinbefore as a result whereof even if the petitioners or the members of their Palamau Zila Transport Association do not intend to ply their vehicles, they will have to pay tax in terms of the provisions of the said Act. According to the petitioners, they have a right to ply or not to ply their commercial vehicles in view of Article 19(1)(g) of the Constitution of India and thus by reason of an administrative order, their right to surrender their tax taken in order to enable to avoid payment of road tax cannot be curtailed. It has been contended that in that view of the matter, the impugned orders as contained in Annexure-3 to the aforementioned two writ applications are violative of Articles 14 and 19(1)(g) of the Constitution.
5. The petitioners in this connection have placed strong reliance upon Bolani Ores Ltd. V/s. State of Orissa reported in -- ; Tata Engineering and Locomotive Co. Ltd. V/s. State of Bihar 1979 PLJR 398 and Excel Wear V/s. Union of India and Ors. -- .
6. In this case, a counter-affidavit has been filed on behalf of the respondents. In the said counter-affidavit, it has been contended that no total embargo has been imposed by the State Transport Commissioner upon the District Transport Officers, but certain reasonable restrictions have been imposed with a view to checking malpractices and evasion of taxes adopted by the owners of the vehicles.
It has further been contended that an amendment has been carried out in 1983 in section of the said Act and in that view of the matter, all the registered owners or persons having possession or control over a vehicle have to pay tax in terms of Sec. 6 of the Bihar and Orissa Motor Vehicles Taxation Act, 1930.
7. The said Act was enacted to impose tax on motor vehicles in Bihar. Sec. 6 of the said Act read as follows:-
-
6. Imposition of tax.--(1) As from the first day of January 1931, and after that date, there shall be paid for every motor vehicle a tax at the rate specified in the Second Schedule to this Act. (1-A) As from the first day of April, 1983 and after that date there shall be paid annually by the registered owner or person having possession or control of every public service motor vehicle an additional motor vehicle tax at the rate specified in the Third Schedule of this Act.
(2) The tax shall be paid annually by the registered owner or person having possession or control of the motor vehicles provided that the tax may be paid-- (i) for one or more quarterly periods, on payment for eac
