A.H. Joshi, J.
1. Heard both sides.
2. Perused the record. Petitioner has argued the case. Considering that the petitioner is appearing in person, we have heard the petition at quite length and have read every paper contained in the paper book.
3. In the midst of hearing, we had noticed that the annexures to the petition were not arranged in proper sequence. Therefore, it was difficult to understand the case. This court had guided the petitioner as to the usefulness of proper arrangement of annexures. Thereafter the petitioner sought leave to re-arrange the annexures. Leave to rearrange the annexures in date sequence and place on record fresh synopsis, index, etc. was granted. The petitioner had complied with this exercise and thereafter we have continued with the hearing of the petition.
4. Petitioner is resident of Jalna and is owner of motor vehicle No. MH-21/6123, which is registered as a public transport passenger contract carriage Bus. It is allowed to carry in it one driver, cleaner and 37 passengers i.e. total 39 persons. This bus is to run and hence the Bus owner has to apply for permit to run as contract carriage bus.
5. Petitioner’s Bus is used on road for business whenever a special contract for Transport is available and is entered. Thereafter petitioner has to apply to the Transport authority by furnishing list of passengers and has to pay the tax and thereupon he gets a permit.
6. According to the petitioner:-
(a) The flying squad of R.T.O., Nasik found the petitioner’s bus on 8.9.2006 at 14.05 hours at Sinnar in District Nasik, on Nasik to Gargoti Road. The Bus was carrying 24 passengers who were students of a college from Nasik Road.
(b) The Inspector of the Regional Transport Office concerned conducted inspection of the Bus. The Inspector of Flying Squad has issued to the driver a check memo on the spot, copy whereof is at page 20. The results of inspection were notified in the memo.
(c) The Inspector concerned has detained the bus at S.T. Workshop at Sinnar, because R.C.book and Tax book showing payment of tax and permit were not with the driver, apart from various other defects including want of permit and payment of tax.
(d) The amount of tax for quarter commencing from 1.8.2006 to 31.10.2006, to the tune of Rs.5087/- and interest of Rs. 204/- thereon is paid by the petitioner on 11.9.2006 in the office of Dy.R.T.O., Jalna. Copy of receipt towards payment of this amount is at page 24 of the petition.
(e) It is also seen that the petitioner has paid tax on permit between 11.9.2006 to 24.9.2006 at Jalna on 11.9.2006 for journey between Jalna and Dwarka with list of passengers from Jalna.
(f) Thereafter the petitioner had tendered the receipt above referred at Page 24 to the detaining authority. The authority was not satisfied with the payment of tax by the petitioner deposited on 11.9.2006 at Jalna.
(g) According to the said authority, it was a case where the vehicle was found on road, with passengers and was without payment of due tax and the bus was run with various other illegalities and without permit.
(h) The inspecting authority had lodged prosecution as well insisted on the petitioner for payment of one month’s tax afresh.
(i) The petitioner has paid the tax amount of Rs.17,020/- to R.T.O. Nasik under receipt dated 14.9.2006, copy whereof is at Page 29 of the paper book. Thereafter the bus was released.
(j) Petitioner and the Driver were prosecuted in the court of Judicial Magistrate, First Class, Nasik. They have pleaded guilty and were sentenced to pay fine and they have paid the fine amount.
(k) Petitioner issued to R.T.O. Nasik a notice dated 4.10.2006 under Section 80 of the Civil Procedure Code and demanded refund and compensation.
(l) R.T.O. Nasik refuted the demand and illegality, relying on Circular issued by the Transport Commissioner which is dated 6.7.2003 kept at Page 37 of record.
(m) The Transport Commissioner’s Circular, dated 6.6.2003 provides inter alia that a motor vehicle, bus which is run without permit and without payment of tax be detained in accordance with law. Relevant clause is quoted in vernacular :-
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“HINDI”
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[quoted from page 38 of the paper book]
(n) One month’s tax be recovered from the bus operator who may be found running the bus without permit. Relevant clause is quoted below:-
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“HINDI”
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[quoted from page 38 of the paper book]
7. The reliefs sought by the petitioner as are culled out from the body of petition and oral arguments are as follows:-
(i) That the detention of vehicle by the R.T.O. Nasik be held to be illegal.
(ii) Petitioner be awarded monetary compensation towards said illegal detention of the Bus at Sinnar.
(iii) The tax recovered by R.T.O. Nasik tallying to sum of Rs.17,220/0 for one month i.e. August, 2005 be ordered to be refunded with interest, etc.
(iv) Circular, dated 6.6.2003 issued by Transport Commissioner which is at Page 37 of the paper book be quashed.
8. From the narration herein before it is evident that on the dates when the vehicle was found at Sinnar consisting of 24 passengers who were college students from Nasik road on hire charges for Rs.1,500/- at 2.14 hours on 8.9.2006, the petitioner did not possess permit.
9. The permit relied upon by the petitioner consisted list of passengers from Jalna which is dated 9.9.2006 and payment of tax is effected on 11.9.2006 for journey between Jalna to Dwarka, Somnath, etc. and returned journey to Jalna.
10. There was no nexus between the passengers found in the bus and the permit. The amount of Rs.5,087/- paid as tax, and interest is paid thereon on 11.9.2006 is for the period beginning from 1.8.2006 to 31.10.2006. The vehicle came on the road first, illegally and thereafter after offence was caught - this tax is paid.
11. Challenge to Circular, dated 6.6.2003 is based on the ground that the law does not authorise detention of the vehicle as well as the recovery of tax for one month.
12. It is seen that Section 12-A and 12-B of the Bombay Motor Vehicles Tax Act, 1958 provide for imperative authority to recovery of tax. Section 7 was brought into book of law by Act No. 43 of 1969.
Sections 12-A and 12-B read as follows:-
“12-A] No motor vehicle used or kept for use in the State shall be used on any road in the State in case any tax payable in respect thereof remains unpaid for more than thirty days after it has become due under the provisions of this Act, until the tax and interest, if any due, is paid.
12-B] Without prejudice to the provisions of Sections 12, 12-A and 16, where any tax due in respect of any vehicle has not been paid as specified in section 4, such officer not lower in rank than that of an Inspector of Motor Vehicles of the Motor Vehicles Department or an Inspector of Police of the Police Department, as the State Government may empower in this behalf, may, subject to rules made in this behalf, seize and detain the motor vehicle in respect of which the tax is due under this Act, and for this purpose, take or cause to be taken all steps for the proper maintenance and safe custody of the vehicle, until the tax and interest, if any, due in respect of the vehicle is paid and may provide for charges, if any, to be recovered for the custody and maintenance of the vehicle.”
13. The circular which aurhorises detention of vehicle which is at page 37 is thus perfectly within the powers of the executive as it is spelt out from Section 12-B of the Bombay Motor Vehicles Tax Act, 1958.
14. In so far as direction to recover tax for period of one month as directed in the Circular, dated 6.6.2003 is concerned, it is seen to be a measure devised by the executive to recover unpaid tax. This measure appears to be deterrent measure, towards admitted act of failure to pay the tax.
15. The principle in the enforcement of taxation law is that ordinarily the tax does not operate in retrospection is duly honoured while tax to be recovered is restricted to one month. The vehicle owner has a duty to pay the tax before the vehicle is brought on the road, as is imperative under Section 12-A of the Bombay Motor Vehicles Tax Act, 1958.
16. Admittedly, on the facts of the present case, the petitioner’s vehicle was on the road. It was run without permit. The permit whichever was sought by the owner was applied two days later. The list of passengers carried in the bus does not correspond with the passengers who were actually found in the bus. All these facts lead to an inference that the vehicle was in use at strange place other than its usual location and it was bound to be running or in actual use. Exact period for which the Bus was in use was sheerly within the knowledge of the owner.
17. Fact of matter as is seen in present case is a specimen. State has noticed that numerous vehicles including Buses are registered and those are used. It is a matter of public knowledge and it is worth judicial notice that each and every transport operator cannot be brought under physical verification. One who brings the Bus on road on due payment of tax and legally, ought not to have any scare for the Circular, dated 6.6.2003.
18. In order to overcome the challenge posed by tax evaders, the Commissioner appears to have authorized recovery of tax for entire duration from the date on which the tax was last paid. Yet the Circular provides for recovery of tax of one month when law fastens a duty on a party to move the vehicle on the road only upon payment of tax.
19. A party who takes the vehicle on the road without payment of tax runs the risk of being liable to pay the tax for entire period for which the vehicle is liable to be deemed in use.
20. Provisions in relation to non-use are pertinent. Non-use of a vehicle authorises the owner to declare the non-use. Once the vehicle is declared under nonuse for 30 days and intimation is given and certificate is sought, the owner becomes eligible for exemption from payment of tax. The tax which is already paid can be refunded or can be adjusted towards future liability to pay tax in advance.
21. The vehicle owner who does not declare the nonuser and his vehicle is found to be used without permit and without payment of tax, no presumption will come to the help of such registered owner for claiming an injunction or restraint against recovery of tax. The Circular which authorises recovery of tax for one month is thus reasonable and modest than arbitrary.
22. Had the petitioner still been firm on his stand that the tax was not liable to be paid to the inspecting authority, as it was already paid, though paid pursuant to oral or written demand, it was open to the petitioner to claim the adjustment. On the other hand, though the petitioner has paid the tax under protest, he has never explained as to what are the factual grounds of protest and the factual grounds on which the petitioner is entitled for refund. Moreover any such prayer for adjustment or refund was not made to the authorities under the Mumbai Motor Vehicles Tax Act, 1958, or rules, etc.
23. Petitioner has claimed monetary compensation. Petitioner’s claim for compensation is based on his plea that the vehicle was wrongly detained, tax, penalty, etc. were wrongly levied and alleged wrongful detention has resulted into causing huge loss to the petitioner. All these assumptions of the petitioner are based on totally erroneous foundation as is found by this court in foregoing paragraphs.
24. The petitioner’s conduct that he has paid tax for 2 quarters on 10.9.2006, covers the period from May 2006. The Bus inspected and detained on 4.8.2006. This late payment constitutes adequate evidence of the fact that the petitioner’s vehicle was not just ‘kept for use’ but was actually used without payment of tax and was actually used without securing permit and without paying the tax. Thus, the petitioner’s claim is based on a fictional foundation, apart that he has not approached this court with clean hands.
25. In these premises, it is evident that the petitioner has tried to pursue the petition with a litigious approach. This being a Writ Petition praying for prerogative writ, the petitioner was under obligation to be truthful, candid, and honest to the core. Petitioner ought to have approached this court with clean hands. All these virtues are lacking in the conduct of the petitioner.
26. This court, therefore, holds that none amongst the claims made by the petitioner stand within the four corners of law and the petitioner is not entitled to relief whatsoever.
27. Therefore, the challenge to the Circular issued by the Transport Commissioner, the levy and recovery of tax to the tune of Rs.17,020/-, etc. by a petition under Articles 226 and 227 of the Constitution of India is without any merit, and we refuse to grant any relief whatsoever.
28. Petition is dismissed. Rule is discharged with costs.