D.V. Subramanya, Proprietor, D.C.V. Transport, Denkanikotta vs The State Transport Authority, Chepauk, Chennai and The Regional Transport Officer, Dharmapuri

The petitioner has filed the above writ petition praying to issue a writ of certiorari calling for the records of the first respondent relating to Memo/

No.85173/E4/97 dated 23/3/1998 and to quash the same.

In the affidavit filed in support of the writ petition, the petitioner would submit that he is the owner of the vehicle bearing Registration No.KA-

05/6300 covered by spare bus permit issued by the first respondent and that the Motor Vehicles tax in respect of this vehicle is payable before the

second respondent; that he also holds valid route bus permit issued by the first respondent for the route Bangalore to Ayyur; that he intending to

surrender the spare bus permit since the vehicle is idle; that the petitioner made an application in the prescribed form and fee on 16/9/1997 before

the first respondent, on which no order has been passed and hence he filed W.P. No.18838 of 1997 and this Court as per its order dated

18/12/1997 directed the first respondent to consider and pass orders on the application for surrender of spare bus permit within a weeks time. But

inspite of the said order, the first respondent has not passed any order till date.

Further stating that he had paid the Motor Vehicles tax for the spare bus upto 30/9/1997, based on which the second respondent had also

issued the tax clearance certificate and inspite of all these, since the first respondent issued the impugned memo dated 23/3/1998 remarking that

the stoppage report was sent late by 65 days and that no permission under Rule 172 (b) could be granted and that the petitioner has to pay the tax

for the spare bus from 1/10/1997 to 31/12/1997 with 100% penalty or otherwise, action would be taken to realise the amount in accordance with

law, testifying the validity of the same, the petitioner has come forward to institute this writ petition praying for the relief extracted supra.

During arguments, the learned counsel appearing on behalf of the writ petition would besides tracing the facts as set out in the petition would lay

emphasis on the order passed by this Court in W.P. No. 18838 of 1997dated 18/12/1997 thereby directing the first respondent to dispose of the

application within one week and without making a mention of the same, the impugned order has been passed and the same cannot be sustained.

Learned counsel at this juncture would cite the judgment reported in GOPU TRANSPORT, No.2, 65th STREET, ASHOK NAGAR,

MADRAS 600 083 Vs THE REGIONAL TRANSPORT OFFICER, MADRAS WEST, MADRAS 600 078 1994 W LR 263, wherein the

learned Single Judge of this Court has held that

In this case, the Fitness Certificate of the Vehicle expired on 10/5/1990 and once the Fitness Certificate had expired, the registration of the vehicle

as well as permit became ineffective and the vehicle cannot be operated on any public road. This Court has also held that tax cannot be levied if

the vehicle is not covered by a certificate of fitness. Under such circumstances, when the vehicle itself was not authorised to operate on any public

road including the roads in the State of Tamil Nadu and when the vehicle was not operated on any public road, the question of levy of tax does not

arise at all"".

Citing the above proposition of law the learned counsel would further submitted that u/s 15A of Tamil Nadu Motor Vehicles Taxation Act 1970,

notice to the operator and an enquiry are necessary and without such notice or opportunity in the enquiry, any order passed is nothing short of a

clear violation of natural Justice.

On such arguments, the learned counsel for the petitioner would seek to allow the writ petition to its prayer.

On the other hand, learned counsel appearing on behalf of the respondents authorities submitted that on physical possession it came to be noted

that the vehicle was not at all in the garage and therefore, the authorities in accordance with law levied the tax based on the report of the Motor

Vehicles Inspector dated 27/2/1998.

In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what

comes to be known is that the said matter is one connected to the levy of tax relating to the spare bus permit held by the petitioner.

The right of authorities in calculating the tax regarding the spare bus permits in accordance with the provisions of the Motor Vehicles Tax Act is

unquestionable nor is it under challenge in the writ petition. However, in case of recovery of tax, it is kept assumption within a period of five years

from the expiry of the period to which the tax relates and u/s 15 A of the Tamil Nadu Motor Vehicles Taxation Act, the licensing Officer may,

direct such owner or other person to pay such tax but only after issuing a notice to the registered owner or the person having the possession or

control of the motor vehicle and making such inquiry as he may consider necessary. But this notice or enquiry contemplated u/s 15 A of the said

Act has never been effected or held by the respondents in the case in hand.

Moreover, it further comes to be seen that the petitioner, seeking a direction to accept the surrender of the spare bus permit in respect of his

Vehicle No. KA-05/6300 as per the application dated 15/9/1997 filed on 16/9/1997 and issue the tax clearance certificate had approached this

Court on a writ petition praying to issue a writ of mandamus to that effect in W.P. No.18838 of 1997 and this Court by its order dated

18/12/1997 has directed the respondent therein ''THE STATE TRANSPORT AUTHORITY, CHEPAUK, CHENNAI 600005'' to dispose of

the representation filed by the petitioner on 16/9/1997 regarding the surrender of the spare bus permit bearing the above mentioned Registration

No. within a period of one week from the date of production of a copy of the order, thus disposing of the said writ petition. It further comes to be

known that the said authority, the respondent in the earlier writ petition, had never complied with the said direction of this Court, which is not only

highly deplorable but also punishable in law. Nor does the order impugned passed by the said authority dated 23/3/1998 make a mention of the

direction issued to it by this Court dated 18/12/1997 or the compliance of the same.

Needless to mention that the impugned order passed by the Transport Commissioner, Chepauk, Chennai 600 005 dated 23/3/1998 in the

impugned proceeding suffers from lack of opportunity as contemplated u/s 15 A of the Tamil Nadu Motor Vehicles Taxation Act and hence

becomes liable to be set aside. The State Transport Authority, Chepauk, Chennai 600 005 who is the respondent in the Writ Petition No. 18838

of 1997 and incumbent in the office on the date of passing of the order by this Court becomes liable to be proceeded against for suo motu

contempt of the order of this Court.

In result, in the interest of Justice, the following orders are passed:-

(i). The impugned order passed by the Office of the transport Commissioner, Chepauk, Chennai in its Memo No. 85173/E4/97 dated 23/3/1998

is quashed for non-compliance of the issue of notice and inquiry as contemplated u/s 15 A of the Tamil Nadu Vehicles Taxation Act affording such

opportunity for the owner of the vehicle to be heard and the matter decided and for non-compliance of the direction issued by this Court in

disposing of the representation made by the petitioner dated 16/9/1997 within a weeks time as per its order dated 18/12/1997.

(ii). However, the respondents are at liberty to determine the question of levy of tax on the vehicle of the petitioner complying with the procedures

contemplated u/s 15 A of the Tamil Nadu Motor Vehicles Taxation Act and disposing of the representation dated 16/9/1997 filed by the petitioner

as per the direction of this Court dated 18/12/1997 with due opportunity for the petitioner owner of the vehicle to be heard within 30 days from

the date of receipt of this order.

(iii). It is further directed that the incumbent in the Office of the State Transport Authority, Chepauk, Chennai 5, the respondent in the writ petition

No. 18838 of 1997 at the time of passing of the order by this Court on 18/12/1997, shall be proceeded against for contempt of the order of this

Court on account of deliberate and willful disobedience of the direction issued by this Court.

(iv). Consequently, the connected W.M.P.No.7085 of 1997 is closed.