P. Lala Sheriff vs Licensing Officer-cum-Regional Transport Officer and Another

M.N. Rao, J.—The petitioner is the owner of an idle bus bearing registration No. MYK 6076 in respect of which a special permit u/s 88(8) of the Motor Vehicles Act, 1988, was granted by the Licensing Officer-cum-Regional Transport Officer, Chittoor, the first respondent herein, on 22-8-1989, for a period of three days from 24-8-1989 to 26-8-1989 (both days inclusive) on the route Madanapalle, Salem, Tiruchirapally, Nagore, Pondicherry, Madras, Vellore, Kotayatham, Palamaner, Mulbagal, Srinivasapuram, Madanapalle. The vehicle was seized on the intervening night of 26/27th August, 1989 at 1-45 AM by the Motor Vehicles Inspector at Palamaner check post and in consequence of the check report a show-cause notice dt.31-8-1989 was issued to the petitioner calling upon him to show cause why the tax should not be imposed qua contract carriage for the entire quarter from 1-7-1989 to 30-9-1989 and also penalty thereon. In his explanation dt.19-9-1989, the petitioner stated that before the mid-night of 26-8-1989 the vehicle in fact had reached the check post at Palamaner, but the Assistant Motor Vehicle Inspector stopped the vehicle and after detaining the same for more than one hour issued the check report at 1-45 AM on 27-8-1989. He, therefore, pleaded that he would pay tax for three days to the Government and requested that the same may be accepted. Rejecting that explanation the first respondent issued the impugned demand notice dt.4-10-1989 in Rc. No. 21756/A2/89 observing:

"It is observed that the vehicle was actually checked at 1-45 AM on 27-8-1989. The driver of the vehicle also attested the vehicle check report accepting the offence and the time of check. If it were the thing that the vehicle was detained on 26-8-1989 from 12 midnight to 1-45 AM on 27-8-1989, driver might have given his written statement in the vehicle check report. But that was not done. Thus, the offence was held proved beyond doubt."

In that view, he confirmed the levy of tax of Rs. 15,000/- and the penalty of Rs. 15,000/-as indicated in the show-cause notice and called upon the petitioner to pay the amount within seven days from the date of receipt of the demand notice. Challenging the same the present writ petition was filed.

Shri V. Narasimha Reddy, the learned counsel for the petitioner, contends that even as per the conditions of G.O.Ms. No. 735, Transport, Roads and Buildings Department, dt.12-8-1983, as amended subsequently from time to time, it was open to an operator to seek extension of the period of permit within the State and as and when that is done by producing sufficient evidence, the authorities are bound to accept the tax for a further period of three days. He says there was no time for the petitioner to make an application seeking extension of the period of validity of the permit and, therefore, even if the allegation that the vehicle was stopped for more than one hour after it had reached Palamaner prior to the midnight of 26-8-1989 is to be rejected on the ground that it is a disputed question of fact, the petitioner''s contention as regards his physical inability to approach the authorities earlier than 10-30 AM on 27-8-1989 deserves to be accepted. In opposition to this the learned Government Pleader says that when it was found that the vehicle was not covered with a valid permit after the midnight of 26-8-1989 the petitioner is bound to pay tax for the entire quarter.

In compliance with our direction, the learned Government Pleader has produced before us the record relating to this case. The permit granted to the petitioner contains endorsements made by transport authorities of the various places through which the vehicle had passed between 24-8-1989 and 26-8-1989. One of the endorsements bears the date 26-8-1989, When the vehicle was checked at Poonamallee in Madras. It is, therefore, clear that on 26-8-1989 the vehicle was at Madras and necessarily it must have taken a few hours for it to reach Madanapalle. Palamaner, the place at which it was subjected to check, is at a distance of 59 Kms. from Madanapalle. It would have taken about one hour for the vehicle to reach Madanapalle from Palamaner. It was not the case of the respondents that unauthorisedly the vehicle had made more than one trip on the authorised route carrying different sets of passengers, nor was there any allegation that the vehicle was used as a stage carriage.

All the conditions necessary for running the vehicle as a contract carriage in accordance with the conditions contained in the special permit had been complied with except the allegation that after the expiry of the period of validity it was still found plying. G.O.Ms. No. 735, Transport, Roads and Buildings Department, dt.12-8-1983, which authorises levy of tax on contract carriages for short periods, contains inter alia condition No. 3 which reads:

"In case extension of the period of validity of the permit is sought for within the State, tax due shall be paid and evidence produced before the authority in whose jurisdiction the extension is sought for."

It was not only the case of the petitioner that prior to the midnight of 26-8-1989 the vehicle had reached Palamaner but he also specifically pleaded for permission to pay the tax for another three days, the minimum period required for payment of such tax, but that request was rejected. We do not find any valid reason for rejection of the request made by the petitioner. Any request for extension of time to the concerned licensing authority could not have been made before 10.30 A.M. on 27-8-1989. It was, therefore, impossible for the petitioner to obtain permission for extending the period of validity of the permit at the time when the vehicle was subjected to check namely, 1-45 A.M. on the intervening night of 26/27th August, 1989. This aspect was totally ignored by the 1st respondent while issuing the demand notice. In the particular circumstances of the case, we are satisfied that the licensing authority has failed to consider a very relevant circumstance as a consequence of which the impugned order was issued. We, therefore, set aside the impugned order. The petitioner is directed to pay of sum of Rs. 520/-, the required minimum pro rata tax for a period of three days. A Division Bench of this Court, by the order dated 24-10-1989, stayed the collection of penalty and so far as tax was concerned directed the petitioner to pay one-fourth (Rs. 3,750/-) within eight weeks from that date. If the above said amount has been paid by the petitioner, the same shall be refunded after deducting a sum of Rs. 520/- which represents the pro rata tax for the period of three days. This order shall be complied with within eight weeks from the date of its receipt.

The writ petition is allowed. No costs, Govt. Pleader''s fee Rs. 350/-.