Back
2014 Supreme(Ori) 479
ORISSA HIGH COURT: CUTTACK
B.R. SARANGI, J.
Sujit Ku. Dhir & Ors. - Petitioner
Versus
R.T.O - C-T-O. & Ors. Rourkela - Opposite Party
W.P.(C) Nos. 20436, 20456, 20457, 20475, 20476, 20477, 20478, 20479, 20480, 20481, 20482, 20483, 20484, 20485, 20471, 19895 & 19986 of 2014
Decided on : 11.11.2014
Headnote:1. ORISSA MOTOR VEHICLES TAXATION ACT, 1975 - Orissa Motor Vehicles Taxation Rules, 1976 - Constitution of India - Arts. 226 and 227 - Imposition of tax and penalty - Writ petitions - Whether writ petitions maintainable ? - There is availability of alternative remedy under the law, alternative remedy may be statutory, non-statutory or constitutional where a right is created by a statute - The statute itself may provide for a remedy for violation of such rights - Where a statute creates a right or liability and also prescribes a remedy or procedure for enforcement of that right or liability, resort must be had to that remedy before invoking the extraordinary and prerogative writ jurisdiction of the High Court under Art. 226 - Where statutory remedy is available, petition under Art. 226 is not generally entertained since Article 226 is not intended to circumvent statutory procedures.
Since the taxing statute requires strict constructions, if mechanism has been prescribed under the taxing statute, the same should be strictly adhered to. Therefore, if the mechanism is available under the statute for just and proper adjudication of the case under the Act and the Rules, and the taxing statute requires strict construction and also application thereof, this Court should not entertain these writ petitions on the ground of speedy and efficacious remedy available to the petitioners. (Para - 20)
2. ORISSA MOTOR VEHICLES TAXATION ACT, 1976 - Sec. 13 -Imposition of penalty should be in conformity with the provisions contained in Section 13 of the Act read with Rule 9 of the Rules - Penalty cannot be imposed at the whims and caprice of the authorities and rather while imposing the same, the requirement of sub-section (2) of Section 13 has to be adhered to by giving the party concerned, a reasonable opportunity of hearing and recovery of tax and penalty be made in consonance with the provisions contained in Section 14. (Paras - 13 and 24)
3. CONSTITUTION OF INDIA, 1950 - Art. 226 - Statute - Alternative remedy - Writ - Were a party has a statutory remedy available under the relevant statute, he cannot bypass the said remedy and file a writ petition under Art. 226 - Writ Court can entertain the petition provided the order is alleged to be without jurisdiction or has been passed in flagrant violation of the principles of natural justice, or the provisions of the, Act/Rules are under challenge. (Paras - 19 to 21)
4. ORISSA MOTOR VEHICLES TAXATION ACT, 1976 - Secs. 4 and 4-A - Payment of tax and declaration of liability - A registered owners to pay tax in accordance with the said provision - If the tax due in respect of any motor vehicle has not been paid as specified in Secs. 4 and 4-A the registered owner or the person having possession or control thereof shall, in addition to payment of tax due, be liable to pay penalty which may extend to twice the tax due in respect of that vehicle to be levied by such officer by order in writing and in such manner as may be prescribed under Sec. 13 of the Act. (Para - 7)
5. ORISSA MOTOR VEHICLES TAXATION ACT, 1976 - Sec. 17(2) proviso - No seizure shall be made and no such vehicle shall be retained in custody except in such manner, under such circumstances and subject to such conditions as the State Government having regard to the reasonable convenience and facility of transport of the passengers and goods, if any, may prescribe - Provisions as contemplated under Sub-section (2) of Section 17 can also be invoked to seize the motor vehicle for non-payment of arrear due. (Para-11)
JUDGMENT
Dr. B.R.Sarangi, J.
In the above batch of writ petitions, the petitioners have challenged imposition of tax and penalty by the authorities under the Orissa Motor Vehicles Taxation Act, 1975, hereinafter referred to as “the Act” in short, and Orissa Motor Vehicles Taxation Rules, 1976, hereinafter to be referred to as “the Rules” in short. Since common questions of facts and law are involved in these writ petitions, the same heard together and are disposed of by this common judgment.
2. The fact leading to filing of these petitions is that the petitioners were directed to pay tax and in default thereof to pay penalty as contemplated under the provisions of the Act and Rules. Consequentially demand notices were issued to them by the opposite party authorities for realization of the same from them. Though mechanism has been prescribed under the Act and Rules, instead of availing such remedy and complying with the same, the petitioners have straightway approached this Court invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
3. Learned counsel appearing for the petitioners submitted that imposition of tax and penalty by the authorities is arbitrary, unreasonable and as such no time limit has been prescribed under the provisions of law with regard to initiation of any proceeding inasmuch as it is a lingering process . In the event such procedure is adhered to, it would cause great prejudice to the petitioners because power has been vested on the authority, who is busy in administrative work, and not able to discharge the duty under the provisions of law and could not considered the application in due time with regard to non-payment of tax and penalty, as a result the movement of the vehicles would be stalled. Further by use of word „may?, in Section 13 of the Act it gives an unfettered power on the authority for imposition of penalty, which causes great prejudice to the petitioners.
4. Mr. J. Pal, learned standing counsel for the Transport Department, strenuously refuted the contentions raised by the learned counsel for the petitioners and stated that Section 3 of the Act being a charging Section, power has been vested on the authority to levy on every motor vehicle used or kept for use within the State to pay tax at the rate specified in Schedule-I and Schedule-III. Section 4 of the Act requires payment of tax in advance and as such, there is no requirement of assessment such tax, rather it is a self-assessment process for which the owner of the vehicle has to pay tax because rates have already been mentioned in Schedule-I and Schedule-III. In Schedule-I and Schedule-III for every class of vehicle rate have been fixed. In Schedule-I though the rate was fixed differently, due to subsequent amendment by Schedule –III for personal vehicles there is introduction of one time tax. Section 66 of the Motor Vehicles Act, 1966 deals with necessity of permits for motor vehicle and unless the motor vehicle has got permit issued by the competent authority, the vehicle cannot be used. To have permit, tax has to be paid by the owner in compliance with the provisions contained under the Act and Rules framed thereunder in time. If the tax is not paid in time, under Section 13 of the Act, power is there to impose penalty and rate of penalty has been prescribed in the Table of Sub Rule (2) of Rule 9 of the Rules and the manner of recovery has been prescribed under Section 14 of the Act. If anybody is aggrieved by any order of the competent authority he may preferred an appeal under Section 18 of the Act and the procedure has been envisaged under Rule 22 of the Rules and if anybody is aggrieved by the order of the appellate authority, he/she may prefer revision under Section 19 of the Act. Apart from the same if the tax is not paid, power has been vested with the police and other officers to seize the vehicle under Section 17(2) of the Act because non-payment of tax is an offence und
