N. Bala Lingam vs The Joint Transport Commissioner and Secretary

The petitioner herein is the owner of a goods vehicle bearing registration number APB 7428, and it was seized on 22-5-1990 by Forest Officials of Warangal District on the allegation that the vehicle was used in the commission of a forest offence. Challenging the legality of the seizure, the petitioner filed Writ Petition 8198 of 1990 in this Court which was disposed of by an order dated 14-6-1990 directing the Forest Officials to release the vehicle in favour of the petitioner on condition of his furnishing security in a sum equivalent to the value of the vehicle and also giving an undertaking that he should produce the same before the authorities as and when demanded for purposes of proceeding with the enquiry under the provisions of the Forest Act. The formalities specified in the order, the petitioner could complete only on 4-12-1990 and obtain release of the vehicle on that day. His case is that as the vehicle was not in a road-worthy condition, it was towed back to his native village Gajwel on 5-12-1990 and on that very day the vehicle was seized by the Motor Vehicles Inspector on the allegation that the vehicle was plying without payment of tax and that contrary to the conditions of the permit, it was found carrying eight passengers each of them paying Rs. 3/- to the driver. For the entire period 22-5-1990 to the quarter ending 31-12-1990 the petitioner was called upon by a show cause notice dated 7-12-1990 to pay a sum of Rs. 6,210/- towards tax and penalty. In his explanation dated 18-12-1990 the petitioner submitted that the vehicle was towed-back to his native village Gajwel and during the period when he was not in possession of the vehicle, he was not liable to pay tax. He also denied the allegation that the vehicle was found plying without payment of tax and asserted that the vehicle was not in a road-worthy condition. Accepting the explanation in part, so far as the quarter covering 1-7-1990 to 30-9-1990, the proposed tax and penalty specified in the show cause notice was deleted and a demand notice was issued on 18-12-1990 in Memo No. 2388/ B1 /90 by the Joint Transport Commissioner and Secretary, R.T.A. Hyderabad, calling upon the petitioner to pay a sum of Rs. 4,140/- towards tax and penalty within seven days failing which action would be taken against him to realise the amount without notice. Questioning the legality of the aforesaid demand notice, the present writ petition was filed.

Sri T. Jagadish, the learned counsel for the petitioner, could not seriously dispute the liablity of the petitioner to pay tax for the quarter from 1-4-1990 to 30-6-1990 and the proportionate penalty as mandated in Rule 13 of the A.P. Motor Vehicles Taxation Rules, but confined his argument to the legality of the imposition of full tax for the second quarter, i.e., from 1-10-1990 to 31-12-1990, and penalty for that period. According to the learned counsel for the petitioner, as the vehicle was not kept for use upto 5-12-1990 by the petitioner in respect of quarter from 1-10-1990 to 31-12-1990, his liability to tax for that quarter is only l/3rd of the quarterly tax as per G.O.Ms. No. 83, Transport, Roads and Buildings (Transport-II) dated 26-3-1980, and as the petitioner had no opportunity to remit the tax, the imposition of penalty for that quarter is impermissible in law. Controverting these contentions, the learned Government Pleader has stated that when once the vehicle was found plying without tax, the liability to pay tax and penalty automatically follow by virtue of the provisions of the Motor Vehicles Taxation Rules.

We have perused the records produced by the learned Government Pleader. The alleged check-report mentions that the vehicle was found carrying eight passengers each paying Rs. 3/- to the driver that the driver absconded. The usual practice of the Department is that whenever a check-report is prepared and if there is an allegation that the vehicle is carrying passengers, statements of the passengers will be obtained. But in this case, no such statements were obtained; nor any details concerned the names of the passengers were mentioned in the check-report. The actual place where the vehicle was subjected to check also was not mentioned. We have grave doubts as to whether the vehicle was in a road-worthy condition on 5-12-1990; in his explanation offered by the petitioner, the specific plea taken was that the vehicle was in damaged condition and it was towed-back to his native village. But this aspect was not at all adverted to in the demand notice. If the release of the vehicle was on 4-12-1990 and if it was towed-back to his native village on 5-12-1990 and subjected to check at 10.40 A.M. on 5-12-1990, the petitioner had no opportunity to approach the authorities for payment of tax for the quarter 1-10-1990 to 31-12-1990. As there was no reasonable opportunity for the petitioner to remit the tax within the short time of a few hours after obtaining release of the vehicle, subjecting him to penalty on the ground of non-payment of tax, in our opinion, is unreasonable and arbitrary.

So far as the liability to tax for the quarter 1-4-1990 to 30-6-1990 is concerned, as the seizure of the vehicle was on 22-5-1990, the petitioner is liable to pay tax as well as penalty for that period. The quarterly tax was Rs. 690/- and the penalty as per Rule 13 paragraph 2 of the Table appended thereto comes to the same amount i.e., Rs. 690/- Paragraph 2 of the Table appended to Rule 13 says that within two months from the beginning of the quarter if tax not paid, the vehicle owner is liable to pay penalty at the rate not exceeding fee amount of quarterly tax. The quarter commenced on 1-4-1990 and the vehicle was seized on 22-5-1990 and therefore the liability of the petitioner to pay penalty in respect of that quarter is equivalent to the amount of tax. For the second quarter from 1-10-1990 to 31-12-1990 the tax liability of the petitioner comes to Rs. 230/-, l/3rd of the quarterly tax by virtue of G.G.Ms.No. 83 dated 26-3-1980. We have already held that for this quarter he is not liable to pay any penalty. The total liability of the petitioners, therefore, is as detailed below:

(1) Quarter ending 3s0-6-1990:- Tax Rs. 690/-. Penalty Rs. 690/-.

(2) Quarter ending 31-12-1990:- Tax Rs. 230/-. Penalty "Nil".

By virtue of the interim orders of this Court, it is stated that the entire amount of Rs. 4,140/-, as directed in the impugned notice dated 18-12-1990, was paid ,in instalments. If that be so, the respondent is directed to refund a sum of Rs. 2,530/- to the petitioner, since we have quantified his liability to pay tax and penalty at Rs. 1,610/-.

To the extent indicated above, the writ petition is allowed. No order as to costs. Government Pleader''s fee Rs. 250/-.