Durga Prasad Yadav vs State Of U.P. And Another
2022 Latest Caselaw 5758 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                  Reserved on 13.04.2022.
 
                                                                                  Delivered on 04.07.2022
 
Court No. - 3     
 

 
1. Case :- WRIT TAX No. - 1119 of 2021
 
Petitioner :- Durga Prasad Yadav
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Ram Dular Yadav,Suman Kumar Yadav
 
Counsel for Respondent :- C.S.C.
 
With
 
2. Case :- WRIT TAX No. - 1135 of 2021
 
Petitioner :- Rameshvar
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Ram Dular Yadav,Suman Kumar Yadav
 
Counsel for Respondent :- C.S.C.
 

 
3. Case :- WRIT TAX No. - 1145 of 2021
 
Petitioner :- Durga Prasad Yadav
 
Respondent :- State Of U.P And Another
 
Counsel for Petitioner :- Ram Dular Yadav,Suman Kumar Yadav
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Jayant Banerji,J.

1. Heard learned counsel for the petitioners and learned Standing Counsel for the State-respondents.

2. These writ petitions involve common question of fact and law, and therefore, with the consent of the learned counsels for the parties, writ petitions were heard together and judgment was reserved on 13.04.2022.

3. These writ petitions have been filed praying for the following reliefs:-

WRIT TAX No. - 1119 of 2021

WRIT TAX No. - 1135 of 2021

WRIT TAX No. - 1145 of 2021

a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 08.10.2021 passed by Respondent no.2 in respect of Mini Bus No. U.P. 62T 6770.

b) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 to exempt the road tax from April, 2020 to March 2021 in respect of Mini Bus No. U.P. 62T 6770

a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 08.10.2021 passed by Respondent no.2 in respect of Mini Bus No. U.P. 70BT 0775.

b) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 to exempt the road tax from April, 2020 to March 2021 in respect of Mini Bus No. U.P. 70BT 0775.

a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.10.2021 passed by Respondent no.2 in respect of Mini Bus No. U.P. 44T 1449.

b) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 to exempt the road tax from April, 2020 to March 2021 in respect of Mini Bus No. U.P. 44T 1449.

4. Petitioners are the owners of School buses being Mini Bus bearing registration Nos. U.P. 62T 6770, U.P. 44T 1499 and U.P. 70 BT 0775. As per own record of the respondents, the bus of petitioner of Writ Tax No. 1119 of 2021 is attached with the recognised Junior High School i.e. "South Indian Public School, Shahganj, Jaunpur" to pick up the students from home and drop them to school and vice-versa. The buses of petitioners of Writ Tax No. 1145 of 2021 and Writ Tax No.1135 of 2021 are attached with the recognised Junior High School i.e. "Noorjahan Girls Higher Secondary School, Shahganj, Jaunpur" to pick up the students from home and drop them to school and vice-versa. All the writ petitioners with respect to buses in question have also entered into an agreement with the respective Schools for the aforesaid purpose under intimation to the concerned Assistant Regional Transport Officer, Jaunpur, which intimations are well available on original record of the respondents as produced before this Court and all the agreements were well in force during the period in question.

5. It is admitted to the respondents that from 25.03.2020 to 31.05.2020, complete lock-down was imposed by the Government on account of Pandemic COVID-19. It has also not been disputed by the respondents that on account of Pandemic COVID-19, Schools were not allowed to be opened, by the Government/Administration for a period of about two years from the date of lock-down.

6. Intimation with regard to non-plying of the buses on account of closure of the Schools due to Pandemic COVID-19, were also given by the petitioners to the concerned Assistant Regional Transport Officer. It is also admitted to the respondents that for a period of two months covered by total lock-down on account of Pandemic COVID-19, taxes under U.P. Motor Vehicles Taxation Act, 1997 (hereinafter referred to as the "Act 1997') were waived by the State Government and as such for that period of waiver, tax is not to be deposited. The dispute in these writ petitions is with regard to surrender applications submitted by the petitioners in the prescribed Form ''F' in respect of vehicles in question on 30.06.2020.

7. As per own record of the respondents, the petitioners in respect of their vehicles in question, submitted applications in the prescribed Form ''F' on 30.06.2020 supported by an affidavit disclosing reasons for surrender of papers of vehicles in question. They also deposited prescribed fee of Rs 100/- along with surrender applications in Form ''F' and surrendered all the papers relating to the vehicles in question, as required under Section 12(2) of the Act, 1997 and the Rule 22 of U.P. Motor Vehicles Taxation Rules, 1998 (hereinafter referred to as the "Rules 1998").

8. Since the facts of all the writ petitions are almost common, therefore, the Writ Tax No.1119 of 2021 is treated as leading writ petition and the facts as available in the records of the respondents are noted below:-

(I) The aforesaid two Schools with which the petitioners entered into agreements in respect of their buses for carrying the students, are recognised Junior High Schools.

(II) Alongwith surrender applications, the petitioners submitted all the requisite papers and deposited fee, which all are still well available in the records of the respondents as produced by them.

(III) In support of surrender applications in the prescribed Form ''F', the petitioners have also submitted an affidavit before Assistant Regional Transport Officer (Administration), Jaunpur clearly stating therein as under:-

" le{k]

lgk;d lEHkkxh; ifjogu vf/kdkjh ¼iz'kklu½] tkSuiqj A

eSa nqxkZizlkn ;kno iq= jke ujs'k ;kno fuoklh [ksrkljk; tkSuiqj okgu la[;k UP62 T6770 cl dk dj fnukad 31-03-2020 rd tek gSA dksfoM 19 oSf'od egkekjh ds dkj.k ykWdMkmu vof/k esa esjk okgu lapkfyr ugha gks jgk Fkk] vkSj okgu esjs ?kj ij [kM+k gS orZeku le; esa Hkh HkkM+k u feyus ds dkj.k okgu lapkfyr ugha gks jgh gSA eSa vius okgu dk leLr izi= dk;kZy; esa lefiZr dj jgk g¡wA 'kklu }kjk dj ns;rk ds laca/k esa fy, x, fu.kZ; dh frfFk ls 15 fnu ds vanj vanj /kujkf'k tek dj nsaxsA lkFk gh leiZ.k vof/k esa esjk okgu ;fn lapkfyr ik;k tkrk gS rks bldh leLr ftEesnkjh esjh gksxhA

gLrk{kj"""""

(IV) The surrender application in Form ''F' bears endorsement of the office of Assistant Regional Transport Officer dated 30.06.2020, as under:-

"वाहन स्वामी ने वाहन का प्रपत्र समर्पण हेतु आवदेन किया है

आदेशार्थ"

(V) The aforesaid Form ''F' dated 30.06.2020 submitted by the petitioners in respect of their vehicles in question, do not bear any order of rejection of the surrender applications.

(VI) In the record of the respondents, there is cyclostyle letter No. 272A dated 13.07.2020 in which the space for mentioning the name of the addressee's vehicle number and the period till when tax is deposited, have been filled with blue carbon papers allegedly giving intimation that surrender applications are not liable to be accepted.

(VII) In the original record of the respondents, there is neither any proof of issuance of any notice to the petitioners for rejecting the surrender applications nor there is any proof of dispatch of alleged rejection order dated 13.07.2020, but in paragraph 17 of the counter affidavit dated 04.04.2022, the respondent no.2 i.e. Assistant Regional Transport Officer, Jaunpur has stated that the petitioners were informed vide order dated 13.07.2020 that surrender applications moved by them is inadmissible. In paragraph 3 of the supplementary counter affidavit dated 05.04.2022, the respondent no.2 has stated that by letter dated 13.07.2020 bearing Dispatch No. 272A, 35 letters were dispatched to different bus owners whose surrender applications were rejected.

(VIII) In paragraph 12 (C) of his personal affidavit dated 13.04.2022, the respondent no.2 has admitted that the aforesaid alleged letter bearing Dispatch No. 272A dated 13.07.2020 does not bear his signature and it was sent by one Pradeep Kumar Srivastava concerned clerk and for which Pradeep Kumar Srivastava, the concerned surrender clerk is responsible. Thus it has been admitted by the respondents that the aforesaid alleged letter dated 13.07.2020 bearing alleged Dispatch No. 272A has not been issued by the respondent no.2 and thus it has no legal sanctity and is non existent.

(IX) In paragraph 4 of the personal affidavit dated 12.04.2022, the respondent no.1 i.e. the Principal Secretary (Transport) has stated that he immediately enquired the aforesaid matter and issued a departmental inquiry against the respondent no.2 by Order No. 773 dated 11.04.2022 on the following charge:-

"fnukad 13-07-2020 dks mDr okguksa ds leiZ.k fujLr uksfVl esa gsj&Qsj djds fnukad 13-07-2020 dks ,d gh izs"k.k la[;k& 272, }kjk fuxZr fd;k x;kA i=kad& 272, ij dqy 35 okguksa ds leiZ.k izi= fujLr fd, x, gSaA mDr vfu;ferrk] leiZ.k vfHkys[kksa esa gsjkQsjh] 'kkldh; mRrjnkf;Roksa ds fuoZgu ds izfr ykijokgh ,oa mnklhurk cjrus ds dkj.k m0iz0 ljdkjh deZpkjh vkpj.k fu;ekoyh] 1956 ds fu;e&3 ds mYya?ku dk izFken`"V;k nks"kh ik, tkus ds n`f'Vxr Jh lR;sanz izdk'k flag ds fo:) m0iz0 vuq'kklu ,oa vihy fu;ekoyh] 1999 ds fu;e&7 ds varxZr foHkkxh; vuq'kklfud dk;Zokgh ,rn~)kjk lafLFkr dh tkrh gS""

(X) The alleged entry No. 272A dated 13.07.2020 of the Dispatch register is reproduced below:-

"272(A) - uksfVl -35 leiZ.k okgu fujLrhdj.k uksfVl"

(XI) Fitness certificate of buses in question had expired on 26.02.2021, 26.06.20-21 and 18.12.2020 respectively i.e. during the course of surrender and the Pandemic COVID-19. The tax was deposited by the petitioners in respect of vehicles in question upto March, 2019, December, 2019 and December, 2019 respectively.

9. Pursuant to the writ petition filed earlier by the petitioners, the respondent no.2 passed the impugned order dated 08.10.2021 which is reproduced below:-

dk;kZy; lgk;d lEHkkxh; ifjogu vf/kdkjh ¼iz'kklu½] tkSuiqjA

i=kad&[email protected]@[email protected] fnukad& 08-10-2021

dk;kZy; vkns'k

okgu la[;k&UP62T6770 cl ds laca/k esa ekuuh; mPp U;k;ky; iz;kxjkt }kjk fjV la[;k& [email protected] esa fnukad 09-09-2021 dks fn;s x, vkns'k ds vuqikyu ds dze esa mYys[kuh; gS fd dk;kZy; vfHkys[kkuqlkj okgu Lokeh }kjk Ldwy cl dk ijfeV izkIr ugha fd;k x;k FkkA ;fn cl lapkfyr ugha gks jgh Fkh rks ns;dj tek dj okgu leiZ.k fd;k tk ldrk FkkA 'kklukns'k ds vuqlkj ;g lwfpr fd;k x;k Fkk fd okgu dk leLr dj tek dj okgu leiZ.k dj ldrs gSaA fdarq budk dj tek u gksus ds dkj.k leiZ.k fujLr dj fn;k x;k FkkA okgu Lokeh }kjk dj tek dj okgu iqu% leiZ.k fd;k tk ldrk Fkk fdarq okgu Lokeh }kjk okgu leiZ.k ugha fd;k x;kA ftlls buds okgu dk leiZ.k ugha ekuk tk ldrk gSA 'kklu }kjk dksfoM&19 ds rgr nks ekg dk dj ekQ fd;k x;k gS] ftldk ykHk budks fn;k tk,xkA okgu Lokeh dks rhu cjkcj fdLrksa esa ¼rhu ekg esa½ dj tek djus dh vuqefr nh tkrh gSA

rn~uqlkj vuqikyu lqfuf'pr djsaA

dk;kZy; lgk;d lEHkkxh; ifjogu vf/kdkjh]

¼iz'kklu½] tkSuiqjA

izfrfyfi&

1- Jh nqxkZ izlkn ;kno iq= Lo0 jke ujs'k ;kno fuoklh [ksrkljk; 'kkgxat] tkSuiqjA

2- iVy lgk;d

dk;kZy; lgk;d lEHkkxh; ifjogu vf/kdkjh]

¼iz'kklu½] tkSuiqjA

10. Against the impugned order, the petitioners have filed the present writ petitions.

Discussion and Finding

11. The very basis of the impugned order is the rejection of surrender applications of the petitioners by the alleged notice dated 13.07.2020 bearing alleged Dispatch No. 272A. It has been admitted by the respondent no.2 on affidavit before us as afore-noted, that the aforesaid notice dated 13.07.2020 has not been signed by the A.R.T.O. concerned and it does not bear his signature. Thus the very basis of the impugned order that surrender applications of the petitioners were rejected, is wholly perverse; since it is admitted fact that surrender applications of the petitioners were not rejected by the respondent no.2, therefore, the very basis of the impugned order rejecting representation of petitioners, is non-existent, arbitrary and illegal. Therefore, the impugned orders to the extent it records that surrender applications of the petitioners were rejected , are hereby quashed.

Conduct of the Respondent No.2

12. The facts as briefly noted above in sub-paras (I) to (X) of Para 6 reveal that alleged surrender rejection notice dated 13.07.2020 is a waste piece of paper inasmuch as, it was not signed by the respondent no.2, but the respondent no.2 has misled this Court giving impression as if it was a notice/order issued by him. Even surrender applications of the petitioners in Form ''F', do not bear any valid order rejecting the applications. The dispatch register produced before us by the respondent no.2 starting from 03.01.2020 shows that the letters were dispatched through this register to authorities and individuals containing particulars of the persons to whom dispatch were made. On 13.07.2020 there are two entries bearing Nos. 271 and 272 which are at the end of page No. 119 of the dispatch register. A little space remained at the bottom of the page in which the Dispatch No. 272A has been inserted without any description as to whom notices have been sent. At the beginning of next page, the entries dated 15.07.2020 have been made. Thereafter, the dispatch entries of the subsequent dates with serial number in ascending order have been entered in which none of entries bears any dispatch number with a combination of numerical and alphabet in contrast to the dispatch number in question i.e. 272A which has been prima facie inserted in the little space remaining at the end of page 119 after the dispatch No. 272. Thus, prima facie this is interpolation in the Government record made by the respondent no.2 and this Court has been mislead.

13. By our detailed order dated 05.04.2022 we required the respondent no.2 to show cause as to why proceeding under Section 340 Cr. P.C. may not be initiated against him. However, on behalf of the said respondents, and learned Standing Counsel has persuaded much to excuse and to accept apology tendered in paragraph nos. 16 and 17 of the personal affidavit dated 13.04.2022 and the proceeding under Section 340 Cr. P.C. may be dropped. But at the same time by the aforesaid personal affidavit, the respondent no.2 attempted to shift his responsibility of aforesaid conduct upon a clerk namely Pradeep Kumar Srivsatava. Under the circumstances, the respondent no.2 does not deserve any leniency by this Court but on account of much persuation by the learned Standing Counsel and also in view of the departmental proceeding initiated by the respondent no.1 against him, we are not proceeding further under Section 340 Cr. P.C. against the respondent no.2 but exemplary cost deserves to be imposed upon him.

14. For all the reasons aforestated, these writ petitions deserve to be allowed with cost of Rs. 25,000/- in each of the writ petitions, which shall be paid by the respondents to the petitioners within two weeks by account payee cheque/bank draft.

15. The respondent no.2 shall receive the aforesaid dispatch register and three departmental files of vehicles in question from the office of this Court, which were kept in sealed covered under our two orders both dated 05.04.2022.

16. These writ petitions are allowed to the extent indicated above with costs as aforementioned.

Order Date:- 04.07.2022

T.S.