Kishore Chand Purwar vs State Of U.P. Thru Sec. Transport ...
2015 Latest Caselaw 180 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 10
 
Civil Misc. Writ Petition 801 of 2010
 

 
Kishore Chand Purwar and others			.... Petitioners
 
Vs.
 
State of U.P. and others					.... Respondents
 

 
With
 

 
Civil Misc. Writ Petition 119 of 2011
 

 
Ravi Kumar Sachdeva and another			.... Petitioners
 
Vs.
 
State of U.P. and others					.... Respondents
 

 

 
Hon. Arun Tandon,J.

Hon. Dr. Satish Chandra, J.

Heard Sri A.R. Dube, Advocate on behalf of the petitioners and Standing Counsel on behalf of the State respondents.

Petitioners seek quashing of the Notification dated 28.10.2009 (Annexure-1 to the present writ petition) insofar as it relates to category of vehicles mentioned at serial no. 5 of the notification.

Sri A.R. Dube, counsel for the petitioners submitted before us that the Central Government in exercise of powers under Section 41(4) of the Motor Vehicles Act, 1988 (hereinafter referred to as '1988 Act') has classified Tow Trucks, Breakdown Van, Recovery Vehicles as non transport vehicles. Therefore, the State of U.P. is not justified in issuing the Notification dated 28th October, 2009 for the purposes of levy of tax on transport vehicles and to include within its ambit the specially designed vehicles, inasmuch as these specially designed vehicles, which are basically recovery van, cannot be treated as 'transport vehicles' in view of the Notification dated 19.02.1992 of the Central Government.

Sri A.R. Dube, Advocate has referred to the Division Bench judgment of this Court in the case of S.P. Beri vs. The Goods Tax Officer and another (Writ Petition No. 576 of 1992 decided on 23rd December, 1994), wherein it has been held that the Goods Tax can be imposed/levied on all goods carrier vehicles, public or private, but since under the Notification of the Central Government dated 19th June, 1992, referred to above, the Recovery Vehicles/Tow Trucks have been classified as non-transport vehicles, therefore no goods tax can be levied treating the said vehicles as transport vehicles.

Standing Counsel on the contrary submits that the judgment relied upon by Sri A.R. Dube, Advocate has absolutely no application in the facts of the case. It is pointed out that sub-section (2-A) of Section 4 of the U.P. Motor Vehicles Taxation Act, 1997 (hereinafter referred to as the Taxing Act, 1997'), added vide U.P. Act No. 18 of 2009 w.e.f. 28.10.2009, is the charging section in respect of specially designed vehicles. The State has been conferred the power to levy and collect tax on the vehicles on quarterly/yearly basis which are within the scope of sub-section (2-A) as added to Section 4 of the Taxing Act, 1997 at rates to be provided by notification in that regard.

We have heard learned counsel for the parties and have examined the records of the present writ petition.

It is no doubt true that the Central Government in exercise of powers under Section 41(4) of the 1988 Act has declared Tow Trucks, Breakdown Van, Recovery Vehicles as non-transport vehicles but the purpose of such Notification under Section 41(4) is entirely different. It would be worthwhile to reproduce Section 41(4) of 1988 Act, which reads as follows:

 
"NOTIFICATIONS UNDER THE MOTOR 	VEHICLES ACT
 
   (ISSUED BY THE CENTRAL GOVERNMENT)
 
			UNDER SEC. 41(4)
 
SPECIFICATION OF TYPES OF MOTOR      VEHICLES
 

S.O.451 (E), dated the 19th June, 1992- In exercise of the powers conferred by sub-section (4) of the Motor Vehicles Act, 1988 (59 of 1988) and in supersession of the Notification No. S.O. 436(E) dated the 12th June, 1989, except or respects things done or omitted to be done before such supersession, the Central Government hereby specifies the types of Motor Vehicles mentioned in Col. 2 of the Table below as the type in respect of Motor Vehicles specified in the corresponding entry in Col. 1 thereof for the purposes of sub-section (4) :-

THE TABLE

Transport Vehicles Non-Transport Vehicles

(xiii) Tow trucks/Breakdown/

Van/Recovery Vehicles."

On a simple reading of the aforesaid section it would be clear that it deals with the facts/material to be mentioned in the registration documents in respect of motor vehicles including special category of vehicles. It is in this background that the Central Government has issued the notification.

This notification of the Central Government dated 19th June, 1992 will not control the competence of the State Government to levy and collect road tax on motor vehicles, inasmuch as competence of the State to levy tax on motor vehicles is not under challenge.

It is not in dispute that the vehicles owned by the petitioners do answer the description of motor vehicle. This takes the Court to consider the scope of Section 4 (2-A), which is the charging section in the facts of the case. Section 4 (2-A) reads as follows:

"4. Imposition of tax.-

(1) .......

(2).....

(2-A) Save as otherwise provided by or under this Act no public service vehicle other than those referred in sub-section (1-A) and sub-section (2) shall be used in any public place in Uttar Pradesh unless a monthly tax at such rate as may be notified by the State Government is paid in respect thereof:

Provided that in respect a motor vehicle under this sub-section instead of monthly tax, a quarterly or an yearly tax at such rate as may be notified by the State Government may be payable."

From a simple reading of the said section it would be seen that the State Legislature has provided that the State Government can levy tax on 'specially designed vehicles', which will include Tow Trucks, Recovery Vehicles etc. The tax is to be charged on quarterly/yearly basis in respect of such vehicles as per the rate to be specified by the State by notification in the gazette.

It may be recorded that Section 4(2-A) of Taxing Act, 1997 is not under challenge in the present writ petition. The notification issued by the State Government dated 28th October, 2009 at Item No. 5 with Explanation-II reads as follows:

"NOTIFICATION

No. 1997/30-4-09-8(19)/09

Lucknow : Dated: 28 October, 2009

In exercise of powers under sub-section (2) of section 4 of the Uttar Pradesh Motor Vehicles Taxation Act, 1997 (Act No. 21 of 1997), the Governor is pleased to fix the rate of tax specified in column (3) and column (4) of the table below in respect of class of motor vehicles specified in the corresponding entry in column (2) thereof :-

TABLE

Rate of tax on transport vehicles under sub-section (2) of Section 4

Sl.No.

Description of Vehicles

Tate of tax per Quarter. (in rupees)

Rate of annual tax.(in rupees)

Construction equipment vehicle or vehicle manufactured in special design or for special purpose and registered or used for commercial purpose, for every metric ton of the unladen weight of the vehicle or part thereof.

Provided.........

Explanations-

1 ......

2 "Vehicle constructed in special design or for special purpose" specified in column no. (2) against serial no. 5 of the table means mobile workshop, mobile canteen, camper vans or trailers, cash vans, fire tenders, snorked ladders, auxiliary trailers and fire fighting vehicles, fork lift, vehicles or trailers fitted with equipments like rig, generator, compressor, crane mounted vehicle, tow trucks, breakdown van, recovery vehicles, tower wagons and tree trimming vehicles, publicity van, etc.

For the purpose of serial no. 1 and serial no. 2 of this table seat will not include the drivers' seat."

In view of the aforesaid, we do not find any illegality in the notification issued by the State Government levying tax on specially designed vehicle. The vehicle owned by the petitioners answer the description of specially designed vehicle. We hardly find any good ground to sustain the challenge made in the present writ petition.

The judgment relied upon by A.R. Dube, Advocate is clearly distinguishable for three reasons (a) it dealt with the issue of goods tax and (b) the competence of State to levy tax flows from sub-section (2) to Section 4, added vide U.P. Act No. 18 of 2009 to the Taxing Act, 1997, (c) The said judgment was delivered prior to 1997 i.e. even prior to the enforcement of Motor Vehicles Taxation Act, 1997 and in any case prior to the introduction of sub-section (2) to Section 4 of the Taxing Act, 1997.

For the reasons recorded above, both the writ petitions are dismissed. Interim order, if any, stands discharged.

Date:- 28.04.2015

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