Mere use of a vehicle without any business activity linked with it does not attract levy of tax under Section 176 of the Orissa Municipal Act, 1950.

JUDGMENT :

A. Pasayat, J. - Petitioner's bi-cycle was seized by staff of Cuttack Municipal Corporation (hereinafter referred to as the 'Corporation') on the ground that it was being plied inside the Corporation limits without requisite licence.

2. Petitioner's case, in brief, is as under :

Petitioner is the owner of an Atlas brand bi-cycle. He being a permanent resident of Purunabasanta Grama Panchayat which forms, part of Raghunathpur Panchayat Samiti, had obtained requisite licence for user of his bi-cycle. He comes to Cuttack occasionally for personal works. Though he had obtained a licence for user of his bi-cycle, under an erroneous impression that it was unlicensed, seizure thereof was made purportedly u/s 186 of Orissa Municipal Act, 1950 (in short, the 'Act') and Orissa Municipal Rules, 1953 (in short, the 'Rules' ) framed thereunder. Stand of petitioner is that in view of Section 188 of the Act, he having obtained licence for plying his cycle, there was prohibition on further collection. Executive Officer of the Corporation has taken the stand that at the time of seizure, documents relating to payment of licence fee could not be produced and therefore, there was liability to pay fine, and since petitioner used his cycle within Municipal area everyday, and kept it there, no protection can be derived from Section 183, He comes to his place of work near Cuttack Railway Station everyday. That brings in application of Section 176. Though the expression used in Section 176 of the Act is "ordinary course of business", the expression "business" cannot be equated as trade or commerce and would mean ordinary course of activity in any event. Section 186 applies when the bi-cycle is employed in carriage, irrespective of the fact when it is used in actual trade or business. Since there was no licence, officials have rightly seized the bi-cycle.

3. Though the point involved is simple in nature and financial implication is negligible, it was submitted by the learned counsel for parties that similar' problems arise frequently and position in law should be settled.

4. For resolution of controversy as to whether seizure-was. proper, it is necessary to take note of few provisions. In Section 3(3) of the Act "carriage" is defined as follows:

" carriage' means any wheeled vehicle with springs or other appliance acting as springs, which is used for conveyance of human beings and includes any kind of bi-cycle, tri-cycie, rickshaw, but does not include a motor Vehicle within the meaning of the Motor Vehicles Act; 1939 (IV of 1939);"

Obviously therefore, bi-cycle is a carriage for the purpose of the Act and Rules. In Chapter XIII under broad topic "tax on carriages, carts, horses and other animals" Sections 176 to 195-A are included Section 176 "deals with tax on carriages, carts, horses and other animals. Section 188 oh which petitioner bases his case deals with prohibition on double tax. Section 179 deals with grant of licence on payment of tax. Section 181 prohibits keeping of a carriage without licence. A combined reading of provisions contained in Sections 176, 181 and 186 of the Act leaves no manner of doubt that tax is to be levied on carriages, and except where it is not brought to use or is so damaged as in the opinion of the Executive Officer to be unfit for use, shall be liable for tax. Section 185 permits seizure of carriage of cart not bearing numbers. Proviso to Section 185 indicates that no carriage or cart, other than bi-cycle, shall be seized or detained when actually employed in the conveyance of any passengers or goods. Undoubtedly, there is prohibition on double taxation in terms "of Section 188. It provides that nothing in Sections 176 to 185 shall be deemed to authorise levy more than one tax for the same period in respect of any carriage, cart, horse and other animal which is kept or used in more than one Municipality or any other Local Authority. In such cases the tax shall be levied by the Executive Officer of the Municipali