Goutam Kumar Sarangi vs The State Of West Bengal & Ors
2022 Latest Caselaw 2757 Cal

                IN THE HIGH COURT AT CALCUTTA
                     Constitutional Writ Jurisdiction
                             Appellate Side
Present:
The Hon'ble Justice Hiranmay Bhattacharyya

                           WPA 14888 of 2021
                             Goutam Kumar Sarangi
                                   Vs.
                     The State of West Bengal & Ors.


For the Petitioner            : Mr. Arabinda Chatterjee, Sr. Adv.
                                Ms. Kakali Dutta

For the State                 : Mr. Amal Kr. Sen, Ld. A.G.P.
                                Mr. Lal Mohan Basu

Heard on                       : 12.05.2022

Judgment on                    : 12.05.2022


The Court :
      This writ petition has been filed praying for issuance of a writ in

the nature of mandamus to set aside the order passed on the hearing

which was took place on July 28, 2021 before the Secretary, State

Transport Authority, West Bengal and was communicated to the

petitioner under a covering letter dated August 11, 2021.

      By the said order, the prayer of the writ petitioner for exemption

of motor vehicle tax and additional tax was rejected on the ground

that the vehicle in question was registered outside the State of West

Bengal.
                                    2




      The writ petitioner claims to be the owner of a vehicle bearing

registration No. OR22B5037 which is a non-AC Sleeper Coach and the

same was registered with the registering authority at Balasore in the

State of Odisha. The State Transport Authority of the State of Odisha

issued inter-state stage carriage permit in respect of said vehicle for

the period from 14.04.2018 to 13.04.2023. The petitioner claims to

have paid the tax and additional tax for period from 7th February,

2019 to 6th May, 2020. In the meantime, due to Covid-19 Pandemic

and declaration of lock down, the petitioner claims that he could not

ply his vehicle. The petitioner claims to have started plying the vehicle

on   and   from   October   1,   2020.      The   petitioner   submitted

representation dated December 17, 2020 before the Secretary, State

Transport Authority, West Bengal praying for adjustment of motor

vehicles tax as well as additional road tax in respect of the said

vehicle. The petitioner approached this Hon'ble Court by filing a writ

petition being WPA No. 5379 of 2021 as the respondent authorities

were sitting tight over his representation. The said writ petition was

disposed of by a Coordinate Bench of this Court by an order dated

March 16, 2021 by directing the respondent no. 3 of the said writ

petition to consider the representation dated 17.12.2020 which was

marked as annexure P-6 to the said writ petition after giving an

opportunity of hearing to the petitioner and to pass a reasoned

decision thereof within the time stipulated in the said order. Pursuant

to the said direction the Secretary, State Transport Authority heard

the petitioner on July 28, 2021 and rejected the prayer for exemption.

Being aggrieved the writ petitioner has approached this Court.

Mr. Chatterjee, learned senior counsel appearing for the

petitioner submits that the petitioner is entitled to exemption from

payment of tax in terms of Section 4(2)(b) read with Section 4(3) of the

West Bengal Motor Vehicles Tax Act, 1979 (for short 'the 1979 Act')

and also refund or remission of additional tax in terms of Section

21(2) of the West Bengal Additional Tax and One Time Tax of Motor

Vehicles Act, 1989 (for short 'the 1989 Act'). He further refers to a

notification being No. 2246-WT/3M-14/2020 (Pt.I) dated 10th August,

2020 which allows exemption as one time relief in view of the

prolonged lock down due to Covid-19 Pandemic. Mr. Chatterjee

submits that the precondition for claiming exemption under the said

notification is satisfied in the instant case as the petitioner has

cleared tax and additional tax up to May 6, 2020. He further submits

that the authorities could not have applied the notification No. 613-

WT/3M-14/2020(Part I) dated February 23, 2021 to the case of the

petitioner which imposes restriction for claiming exemption in respect

of the stage carriages and contract carriages registered outside the

State of West Bengal. Thus Mr. Chatterjee submits that the order

passed by the Secretary cannot be sustained in the eye of law as the

right to claim such exemption which accrued in favour of the writ

petitioner by virtue of the notification dated August 10, 2020 could

not have been taken away by subsequent notification.

Mr. Sen, learned Additional Government Pleader submits that

the notification dated August 10, 2020 was subsequently modified by

a notification no. 998-WT/3M-14/2020(Pt-I) dated March 22, 2021

whereby the notification dated August 10, 2020 is to be read as "the

above noted exemptions are allowed only for the vehicles registered in

West Bengal and covered by permits issued by STA/RTAs of this state

as a 'one time relief' in this crisis period and not to be cited as a

precedence"

However, Mr. Sen, in his usual fairness, submits that the

Secretary while passing the order dated July 28, 2021 did not

consider the provisions of the 1979 Act as well as the 1989 Act which

he ought to have. He also submitted that the matter may be sent for

reconsideration by the respondent authority. On the issue as to

whether the petitioner is entitled to claim benefit of the notification

dated August 10, 2020, Mr. Sen submits that since the said

notification stood modified by the subsequent notification dated

March 22, 2021, the exemption notification which was prevailing as

on the date of consideration of the prayer of the exemption is to be

followed and not the earlier notification which stood modified in the

meantime.

Heard the learned advocates for the parties and perused the

materials on record.

It appears from the receipt issued by the Public Vehicle

Department, Kolkata, West Bengal that the petitioner paid motor

vehicle tax as well as additional tax for the period from 7th February

2020 to 6th May, 2020 on 3rd February, 2020. It is also not in dispute

that the category of the vehicle of the petitioner falls otherwise within

the category of vehicles entitled to exemption as per the notification

dated 10th August, 2020. Thus the condition for claiming exemption

of tax and additional tax for a period from 1st April, 2020 to 30th

September, 2020 is satisfied in the instant case.

Now question arises as to whether the petitioner can claim

exemption on the basis of the notification dated August 10, 2020. The

object behind issuance of such notification is that private operators of

stage carriages who faced financial stress due to increase in financial

price and limited number of ridership to ensure social distancing

norms were allow exemption as onetime relief in the crisis period. The

right to claim benefit of such exemption accrued in favour of the

petitioner with effect from the date of issuance of the said notification

that is on and from August 10, 2020. The said notification does not

also stipulate any application to be made for claiming exemption.

However, the petitioner claimed adjustment of motor vehicles tax as

well as additional road tax on two-fold grounds by filing a

representation dated 17.12.2020. Firstly, that such exemption has

been provided for under the 1979 Act and the 1989 Act and secondly

in terms of the exemption notification dated August 10, 2020 issued

by the Government of West Bengal.

The notification dated February 23, 2021 was for the purpose of

one time exemption of tax and additional tax for the period from 1st

January, 2021 to June 30, 2021, whereas the claim of the petitioner

for exemption is upto September, 2020.

The notification dated February 23, 2021 does not also refer to

the earlier notification dated August 10, 2020. It is an independent

exemption notification extending the benefit of exemption from 1st

January, 2021 to 30th June, 2021 to Passenger Transport Vehicles

having Stage Carriage and Contract Carriage permits registered in the

State of West Bengal. Thus, the said notification dated February 23,

2021, in the considered view of this Court, cannot be applied to the

case of the petitioner.

Now the question comes as to whether the right of the petitioner

to claim exemption by virtue of the notification dated August 10, 2020

can be taken away by issuance of a subsequent notification on March

22, 2021. The said notification dated March 22, 2021 cannot operate

retrospectively to take away the vested right of the petitioner. Thus the

right which stood vested upon the petitioner and was claimed by

making a representation in such regard to the respondent authority

could not have been denied by taking aid of the subsequent

notification dated March 22, 2021.

This matter can be also looked into from a different angle. The

petitioner claimed exemption in terms of the notification dated August

10, 2020 by making representation which was received by the

authority as far back as on December 22, 2020. The respondent

authority sat tight over the matter, which compelled the writ petitioner

to approach this Court. This Court by an order dated March 16, 2021

directed the respondent No. 3 to consider the said representation of

the petitioner.

By the said representation, the petitioner claimed his right

under the notification dated August 10, 2021. No reasonable

explanation is forthcoming from the respondents as to why no

decision was taken on such representation for such a long time. Even

at the time of hearing of the writ petition being WPA 5379 of 2021 on

March 16, 2021, the respondent authority did not contend that the

said notification dated August 10, 2021 is not applicable to the case of

petitioner. As on the date when the said writ petition was disposed of,

the subsequent notification dated March 22, 2021 did not see the light

of the day. Thus a legally vested right accrued in favour of the

petitioner for consideration of his prayer for exemption in terms of the

notification dated August 10, 2020. Thus the consideration as per the

direction passed by this Hon'ble Court ought to have been on the

basis of the Notification dated August 10, 2020 that was prevailing as

on the date of passing of the order on the earlier writ petition that is

on March 16, 2021. Thus on the said ground also the subsequent

notification dated March 22, 2021 could not have been applied to the

case of the petitioner.

This Court is of the considered view that the reasons for which

the prayer of the writ petitioner was rejected by the respondent

authority cannot be sustained in the eye of law and the same is liable

to set aside.

However, since the authorities have to take a decision as to the

amount of tax and additional tax which the petitioner may be entitled

to refund or claim adjustment thereof, this Court feels that the

concerned respondent authority should be directed to take a fresh

decision on the representation of the petitioner. While considering the

prayer for adjustment the said respondent shall also consider the

claim of the petitioner for adjustment in terms of the provisions laid

down under the 1979 Act and 1989 Act.

At this stage, Mr. Sen, learned Additional Government Pleader,

upon definite instruction from the Transport Department, submits

that this particular issue with regard to exemption and refund of tax

and additional tax is being delegated to the Additional Secretary

Transport Department, Government of West Bengal.

For the reasons as aforesaid the impugned order passed on the

hearing conducted on July 28, 2021 and communicated under a

covering letter dated August 11, 2021 is set aside and quashed.

WPA No.14888 of 2021 stands allowed.

This Court, therefore, directs the Additional Secretary,

Transport Department, Government of West Bengal who is in the

charge of Motor Vehicle Taxes to consider the representation of the

petitioner dated 17.12.2020 which is appearing at page 45 (annexure

P6 of this writ petition) in the light of the observations made herein

before and after taking into consideration the relevant provisions of

the 1979 Act and the 1989 Act and to dispose of the same by passing

a reasoned order upon giving an opportunity of hearing to the

petitioner or his authorized representatives and to communicate the

same to the petitioner. It is expected that entire exercise shall be

completed by the added respondent within 4 weeks from the date of

communication of this order.

Since, the Additional Secretary is not a party to this writ petition

and Mr. Sen Submits that such authority is the competent authority

to take a decision in this regard, such authority is added as a party

respondent to this writ petition. Since Mr. Sen represents such

authority, no fresh notice be served upon the added respondent.

Leave is granted to the learned advocate on record of the

petitioner to amend the cause title of the instant writ petition

preferably by tomorrow, i.e. on 13.05.2022.

There shall be no order as to costs.

Urgent photostat certified copies of this judgment may be

delivered to the learned Advocates for the parties, if applied for, upon

compliance of all formalities.

(Hiranmay Bhattacharyya, J.) tbsr