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High Court Of Madhya Pradesh
S. P. KHARE
MUKESH KUMAR PATEL - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
W. P. 2422 Of 1999
Decided On : 08/05/1999
MOTOR VEHICLES ACT - TAXATION - SEIZURE OF VEHICLE - VEHICLE PLYING WITHOUT PERMIT - TAX LEVIED UNDER ENTRY IV (G) OF THE FIRST SCHEDULE - VEHICLE SEIZED UNDER SECTION 16 (3) OF THE ACT - PETITION CHALLENGING SEIZURE - DISMISSED.
Fact of the Case:
Petitioner's bus was seized for plying without a permit and non-payment of tax. Petitioner challenged the seizure, claiming the bus was a spare vehicle and not in use. The Taxation Authority determined the tax and issued a demand notice.
Finding of the Court:
The court found that the petitioner was not having a permit to ply the bus on the date it was seized. The seizure was made under Section 16 (3) of the M. P. Motoryan Karadhan Adhiniyam, 1991 (the Act). The tax was levied under Section 3 read with Entry IV (g) of the First Schedule to the Act, which provides for a tax on motor vehicles plying without a permit.
Issues: Whether the seizure of the vehicle was illegal.
Ratio Decidendi: The court held that the seizure of the vehicle was legal. The Act provides for the seizure and detention of motor vehicles in case of non-payment of tax. The petitioner had not obtained a permit to ply the bus and had not paid the tax due. The court also held that the petitioner could file an appeal under Section 20 of the Act before the Prescribed Authority.
Final Decision: The petition was dismissed. The petitioner was allowed to file an appeal before the Prescribed Authority within one month of the date of the order.
( 1 ) THIS is a petition under Article 226 of the Constitution of India challenging the seizure of the vehicle of the petitioner as per seizure memo dated 25-2-1999.
( 2 ) THE petitioner is owner of passenger Bus No. M. P.-12-2931. On 25-2-1999 it was seized by respondent No. 3, the Transport Sub-Inspector and it was kept at Harda Police Station. The petitioner was not having any permit to ply this bus on Harda-Khandwa route. The demand notice dated 18-3-1999 (Annexure P-1) was served upon the petitioner to pay Rs. 56000/- as tax and Rs. 3300/- as compounding fee. This notice was issued by respondent No. 2 Taxation Authority. The petitioner submitted his reply (Annexure P-2) on 24-3-1999.
( 3 ) THE petitioner's case is that the above mentioned bus is a spare vehicle. It was lying idle near civil hospital, Harda on 25-2-1999. There was no passenger in the bus. No seizure memo was prepared as required by the rules. The petitioner was not given any notice for assessment of tax. The seizure of the vehicle is illegal.
( 4 ) THE respondents' case is that the petitioner was plying the bus on Harda-Khandwa route on 25-2-1999. There were passengers in the bus. The seizure memo was prepared as per rules. The bus was seized under Section 16 (3) of the M. P. Motoryan Karadhan Adhiniyam, 1991 (hereinafter to be referred to as the Act ). It is stated that Section 86 has been wrongly mentioned in the demand notice (Annexure P-1 ). That is a typing error. The petitioner appeared on 18-3-1999 and after hearing him an order for the recovery of the tax was passed. The tax has been levied under Section 3 read with Entry IV (g) of the First Schedule to the Act. According to this Entry a public service vehicle plying without permit is liable to pay tax at the rate of Rs. 1000/- per seat per month in accordance with entire registered seating capacity if the vehicle is permitted to carry passengers exceeding 29. The order passed by the Taxation Authority is appealable under Section 20 (b) of the Act and therefore, this petition is not maintainable.
( 5 ) THE arguments of learned counsel for both the sides were heard. It is not disputed that the petitioner was not having a permit as per Section 66 (1) of the Motor Vehicles Act, 1988 to ply the bus on Harda-Khandwa route on the date it was seized.
( 6 ) AS per the Scheme of the Act the tax in the normal course is payable in advance. According to Section 3 a tax shall be levied on every motor vehicle used or kept for use in the State at the rate specified in the First Schedule. As per Section 4 (2) a transport vehicle of which the certificate of registration is current shall, for the purpose of this Act, be presumed to have been in use or kept for use, notwithstanding the expiry of the certificate of fitness in case of transport vehicle. Section 8 requires every owner to file a declaration with the taxation authority and after the receipt of such declaration the tax is determined. Rule 5 of the Motoryan Karadhan Rules, 1991 framed in exercise of the powers conferred by Section 24 of the Act provides that the declaration shall be in Form B for a transport vehicle. A perusal of Form B appended to the Rules shows that the owner of the vehicle has to give the particulars of permit held by him in that Form. Thus the terminus a quo, the point of beginning, for determination of the tax under the Act is the filing of the declaration under Section 8 of the Act and the condition precedent for doing so is the valid permit under Section 66 (1) of the Motor Vehicles Act, 1988. In the absence of this permit the normal procedure for assessment and payment of the tax in advance for a transport vehicle breaks down.
( 7 ) ENTRY IV (g) in the First Schedule provides for levy of tax on "motor vehicle plying without permit". That is the extraordinary mode of taxation. There is in-built penalty. Explanation (1) appended to the Schedule provides that the number of passengers which a vehicle is permitted to carr
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