JUDGMENT
K.S. Paripoornan, C.J.
1. The petitioner is the registered owner of Truck No. BRQ 1651. His plea is that the truck is badly deteriorated. He had no sufficient money to effect repairs and put it on road. He surrendered the valid papers of the vehicle before the District Transport Officer on 1-7-1980. Respondent No. 3, District Transport Officer, Patna informed the petitioner by Annexure-l dated 6-5-1992 that the vehicle shown in the surrender application was not found there and so it had plied on the road and cancelled the surrender. The petitioner was asked to pay the entire tax from 1-7-1988 till the date of order with penalty of 50%, The petitioner represented before the District Transport Officer that the vehicle was still in the garage (Annexure-2). The Transport Commissioner, by Annexure-3 publication, published a news item in the Hindustan Times, that all the owners including the present petitioner should deposit the taxes on the grounds that the vehicle sought to be surrendered were not found in the respective places. Thereupon, the petitioner filed C.W.J.C. No. 10139 of 1992 and this Court, by Annexure-4 dated 5-11-1992, directed the District Transport Officer, Patna to inspect the vehicle and if the vehicle was not found to be in a fit condition, he shall determine the tax liability, if any, by passing an order in accordance with law. The petitioner was directed to file a representation before the District Transport Officer within one week. He did so and filed Annexure-5 exemption dated 7-12-1992. Therein, he put forward the plea that he surrendered the papers of the vehicle on 1-7-1980 and since then the papers are surrendered and no certificate of fitness was taken or granted and no permit was taken for the period in question. He pleaded in Paragraph 10 of Annexure-5 that the road tax for the period from 1-7-1980 till the date of Annexure-5 may be exempted. By Annexure-6 dated 25-9-1993, the Joint Transport Commissioner adverted to the above aspects and held “that the petitioner could not prove by any material in support of the facts stated, which may be without any doubt that the vehicle ha i not operated on the road.” (Free English Translation of Annexure-6 supplied by petitioner’s counsel). It was further held that “in the course of physical verification the vehicle was not found in any garage but at the door of the applicant and the condition of the vehicle was found very damaged and was not fit to be repaired bat he could not come to the conclusion when the vehicle came in this rotten position.” “The applicant could not prove that the vehicle could not operate in the entire period, tax (exemption in) claimed,” The plea for exemption was rejected, (It was stated at the Bar that the physical verification was on 25-2-1993) In this writ petition, the challenge is against Annexure-6 as illegal and unauthorised. The respondents have produced the relevant files.
2, Heard counsel for the petitioner and also counsel for the respondents.
3. At the hearing, counsel for the petitioner urged the following points:
(i) In rejecting the plea for exemption, the Joint Transport Commissioner has not conformed to Section 9-A of the Bihar and Orissa Motor Vehicles Taxation Act, 1930. The Joint Transport Commissioner is not the Taxing Officer appointed as per Section 4 read with Section 2(e) of the Act and so he was incompetent to pass Annexure-6 order.
(ii) On a combined reading of Sections 6, 11, 11(A) and 12 of the Act, refusal to accept by the Taxing Officer the tax or additional motor vehicle tax, in respect of a motor vehicle, for the current quarter, unless the previous taxes due on the vehicle have been fully paid or settled as enjoined in Section 9-B of the Act, is unreasonable and unauthorised.
(iii) It is only the user of the vehicle that attracts tax. The burden to prove the same is on the Revenue. According to the petitioner, the vehicle was in a bad condition from 1-7-1980 and Annexure-5 order is relevant. So, the insistence of the authorities to pay the arrears, as a condition for acceptance of the tax for the current quarter, is unreasonable and improper.
Counsel for the respondents controverted the above points highlighted during arguments.
4. I am of the view that the interpretation placed on Section 9-A of the Bihar and Orissa Motor Vehicle Taxation Act, 1930 (Act II of 1930). hereinafter referred to as “The Act”, is misconceived. Under Section 4 read with Section 2(e) of the Act, the State Government may appoint a Taxing Officer. Section 9-A of the Act provides thus:
9-A. (1) Where the Taxing Officer is, on an application accompanied by an affidavit of the owner of a motor vehicle of public service motor vehicle, is satisfied after due enquiries as prescribed by the State Government that a motor vehicle has not been used in Bihar for a continuous period of not less than one calendar month since the tax or the instalment of tax was last paid he may exempt the owner of a motor vehicle or public service motor vehicle from payment of arrears of tax and additional Motor Vehicle tax and write off the amount of such arrears upto a maximum of Rs. 2,000 under intimation to the State Transport Commissioner, and where the amount of arrears of such tax exceeds rupees two thousand refer the matter to the State Transport Commissioner or to any officer authorised by the State Government not below the rank of the Assistant State Transport Commissioner, for a decision.
(2) The State Transport Commissioner or any Officer authorised by the State Government not below the rank of the Assistant Trans-port Commissioner to whom any matter has been referred by the Taxing Officer under Sub-section (1) may, if satisfied that the motor vehicle has not been used for a continuous period of not less than one calendar month since the tax or the instalment of the tax was last paid, exempt the owner of the motor vehicle from payment of arrears of tax and additional motor vehicle tax and write off the amount of such arrears or part thereof.
(3) Notwithstanding anything contained in the preceding sub-section, where it comes to the notice of the State Government, the State Transport Commissioner or any other officer prescribed that exemption and writing off has been secured by any motor owner by mis-representation of facts or fraud the State Government or the Transport Commissioner or the authority prescribed may supersede the orders regarding writing off or exemption as the case may be, and institute fresh proceeding for the recovery of such amount together with a penalty that may exceed to one hundred per cent of the amount exempted, written off, as the case may be.
In order to obtain exemption from payment of tax, the owner of a motor vehicle should file an application along with an affidavit before the Taxing Officer. The Taxing Officer should be satisfied, after due enquiries as prescribed by the State Government, that the motor vehicle has not been used in Bihar for a continuous period of not less than one calendar month since the tax was last paid. If he is so satisfied, after due enquiries, and the arrears does not exceed Rs. 2,000, he may grant exemption under intimation to the State Transport Commissioner. Where the amount of arrears exceeds Rs. 2,000 he shall refer the matter to the State Transport Commissioner or to any officer authorised by the State Government not below the rank of the Assistant Transport Commissioner, for a decision. Such officer, before whom the matter was referred, may, if satisfied that the motor vehicle was not used for a continuous period of not less than one calendar month since the tax was bad paid, can grant exemption. The Government have authorised all the Joint State Transport Commissioners, passed at the Head Quarter under the Transport Department to dispose of the Motor Vehicle Tax Exemption cases exceeding Rs. 5,000 with penalty, by notification No. 12144 dated 18-8-1992. By the said notification, it was stated that the exemption cases will be distributed among the Joint State Transport Commissioners by the State Transport Commissioner. The Government had also promulgated a notification No. 13589 dated 7-12-1991, explaining the otherwise existing and form, regarding “due enquiries” contemplated by Section 9-A(1) of the Act. The Taxing Officer, on intimation by the owner of the vehicle about the non-use of the vehicle in the manner stated in Section 9-A of the Act, will conduct an enquiry, either by himself or through the Motor Vehicle Inspector, shall carry out physical verification of the parking place of the vehicle at least once a month in a random manner and record the result of the inspection in the order-sheet. If the vehicle is not found in any of the inspections by the Taxing Officer at the parking place the claim for exemption of taxes for that period will stand dismissed. Other provisions are also made therein to effectuate the provisions of Section 9-A of the Act. In view of the authorisation notification No. 12144 dated 18-8-1992 and the prescription of the method and manner of enquiry contemplated to Section 9-A(1) of the Act by notification of the Government dated 7-12-1991, I hold that the Joint Transport Commissioner was authorised to dispose of the exemption application in this case under Section 9-A of the Act, since the amount of arrears exceeded Rs. 2,000. It is evident from Annexure-6, order of Joint Transport Commissioner, that the physical verification of the vehicle was conducted on 25-2-1993 and the vehicle was not found in any garage. It was found that the vehicle was lying at the door of the petitioner and the condition of the vehicle was very damaged and was not fit to be repaired. There was no knowing as to when the said vehicle obtained the rotten position, It should be remembered that exemption was claimed for the period from 1-7-1980 to 31-8-1991. But, even according to the petitioner, in Paragraph 5 of the writ petition, he surrendered the valid papers of the vehicle before the District Transport Officer only on 1-7-1988 and no certificate of fitness was taken or granted and no permit was taken thereafter. It is for the first time in Annexure-5, after the decision in C.W.J.C. No. 10139 (Annexure-4), the petitioner pleaded that the vehicle may be inspected and tax for the period from 1-7-1980 till the date of Annexure-5 may be exempted. In paragraph 2 of Annexure-5, a plea is put forward that the papers were surrendered before the District Transport Officer on 1-7-1980 which is against the plea set up in the writ petition (Annexure-5). The petitioner has no consistent case as to when the papers were surrendered. The Joint Transport Commissioner, on the basis of material before him, came to the conclusion that it could not be stated as to when the vehicle became damaged and reached a rotten position. In order to obtain exemption under Section 9-A of the Act, it is for the petitioner to prove, on the basis of material that the vehicle has not been used in Bihar for continuous period of not less than one calendar month since the tax was last paid. The prescription and the nature of the enquiry to be made in that connection by the Taxing Officer as stated in the notification dated 7-12-1991 visualises that the Registration certificate, fitness certificate, tax token certificate, certificate of insurance etc., shall be accompanied along with the intimation of the non-user of the vehicle. The petitioner has no case that it was so done at any time in 1980. The Taxing Officer has to carry the physical verification of the parking place of the vehicle periodically. It was not so possible in this case, because even the petitioner has no case, that he surrendered the valid papers of the vehicle at any time before 1-7-1988. Even the surrender said to have made on that day, is not proved by any material. It is because of the direction of this Court in Annexure-4 order in C.W.J.C. No. 10139 of 1992, the petitioner was enabled to file a representation before the District Transport Officer along with the documents and to give details regarding the vehicle and where it was garaged etc. Even in Annexure-5 the petitioner has only stated that the papers were surrendered in 1988. This is very crucial. In the light of the above materials available before the Joint Transport Commissioner, the Joint Transport Commissioner was fortified in stating that he could not come to a conclusion as when the vehicle became rotten or reached that position. It was found rotten on 25-2-1993, the date of physical verification. The Officer has also found that the petitioner could not prove, that the vehicle could not operate in the entire period, for (which) the tax exemption was claimed. The above finding arrived at by the Joint Transport Commissioner is largely a question of fact. It is evident, on a total view of facts, that the Joint Transport Commissioner was not satisfied that the petitioner was putting forth a true case or plea as could be seen from Annexure-6. It was arrived at by Joint Transport Commissioner conforming to the powers vested in him under Section 9-A of the Act read with notification dated 18-8-1992 and 7-12-1991. The said finding of. fact is not ordinarily open to challenge in a proceeding under Article 226 of the Constitution of India. This is not a case where the Joint Transport Commissioner, either acted unauthorisedly or was wanting in any statutory authority or entered a finding of fact on no material or otherwise acted perversely or unreasonably. The first point urged at the time of hearing therefore fails,
5. The second point urged at the time of hearing, to the effect that Section 9-B of the Act is ultra vires, is not pleaded in the writ petition. It cannot be said that Section 9-B of the Act which authorises the Taxing Officer to accept the tax or additional motor vehicle tax in respect of a motor vehicle for the current quarter only if the previous taxes due on the vehicle have been fully paid or settled, is in any way illegal, or unauthorised. Sections 6, 11, 11(A) and 12 of the Act do not in any manner envisage that a vehicle may be permitted to be run even when the arrears of tax are due thereon. It may be that the motor vehicle tax due and payable to the State may be enforced in more ways than one, as provided in Sections 6, 11, 11-A or 12 of the Act, but, it has nothing to do with the power of the Legislature to enact Section 9-B of the Act which empowers the Taxing Officer to accept the current tax only if the arrears arc paid. It is only a mode of recovery of legitimate tax or revenue due to the State, I do not find that Section 9-B of the Act is in any way objectionable or illegal or unauthorised. It is open to the Taxing Officer to refuse to accept the tax or additional tax in respect of a motor vehicle for the current quarter unless the previous taxes due on the vehicle have been fully paid or settled (Section 9-B). It is entirely within his competence or jurisdiction, nay his duty, to exercise the statutory powers so vested in him to see that the legitimate Revenue due to the State is collected. It is not open to any objection.
6. There is no pleading in the writ petition even regarding the third point. Section 6 of the Act envisages that the vehicle tax shall be paid annually by the registered owner or person having possession or control of the motor vehicle. Normally the registered owner of the person having possession or control of the motor vehicle is presumed to use the vehicle. It is open to such person to allege and prove by cogent materials that the motor vehicle has not been used in Bihar for a continuous period of not less than one calendar month since the tax was last paid. He can plead for exemption under Section 9-A of the Act. When the vehicle is with the registered owner or with any other person who has possession or control over the same, it is exclusively within his knowledge whether the vehicle was used or not, in the State of Bihar. The fact of non user of the vehicle for all or any of the period, is exclusively within the knowledge of that person. It is such a person who requires or pleads for exemption. The burden of proof is on him to allege and prove the essential facts in that connection and also to prove the matter in accordance with the provisions of the Act and the Rules. I am unable to accept the plea of the petitioner that it is for the Revenue to prove that the vehicle was used for all or any of the period. Once a person is a registered owner or is one having, prosecution or control of the vehicle, the normal presumption is that he is using the vehicle. He should disloge that presumption by positive material. It is not for the Revenue to prove, by any affirmative material that the vehicle was used in the State of Bihar for any period during the time the vehicle was with the registered owner or with a person who has possession or control of the vehicle. I repel the plea that the burden is on Revenue to prove that the vehicle was used for any particular period. The third point urged during the hearing also fails.
7. Counsel for the petitioner urged that a direction should be issued to the respondents to permit the petitioner to run the vehicle after accepting the “Current Tax” and that for payment of arrears in instalments should be ordered or matter further investigated. Till then, the vehicle should not be disabled to be plied in the road. These are not matters within the domain of this Court while exercising the extraordinary jurisdiction under Article 226 of the Constitution so long as the statutory authority act, in accordance with law. It is not proved otherwise herein. So, the plea on this aspect fails.
8. Before closing, I should make one point clear. By Annexure-5, the petitioner prayed for exemption from 1-7-1980 till the date of Annexure-5 (7-12-1992). That alone could be considered by Annexure-6, in the order of the Joint Transport Commissioner, It is seen from Annexure-6 order, that on the date of verification 25-2-1993, the vehicle was found to be very damaged and was not fit to be repaired. As and when exemption from the tax will have the period 25-2-1993 arises for consideration, the concerned authorities to bear this vital aspect in mind.
9. I hold that the writ petition is without substance and it is dismissed No costs.
Immediately after the judgment was pronounced, counsel for the petitioner orally prayed for the issue of a certificate to appeal to the Supreme Court of India under Article 133 read with Article 134( A) of the Constitution of India. We are of the view that no substantial question of law which needs to be decided by the Supreme Court, arises for consideration in this case. The prayer for the issue of a certificate to appeal to the Supreme Court is rejected.
N.K. Sinha, J.
10. I agree.
