Naval Kishore Dewangan vs State Of Chhattisgarh
2022 Latest Caselaw 540 Chatt

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             (Proceedings through Video Conferencing)
                                                                  NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                      WPC No. 4028 of 2021
Naval Kishore Dewangan S/o Late Shri Ramgopal Dewangan, Aged
About 39 Years Caste Dewangan, R/o 102, Rs Marg, Rani Road, Town
School, Champa, District Janjgir - Champa Chhattisgarh.
                                                          ---- Petitioner
                              Versus
1.   State of Chhattisgarh Through The Secretary, Department of
     Transport, Mahanadi Bhawan, Mantralaya, New Raipur
     Chhattisgarh
2.   Regional Transport    Officer   /   Taxation   Authority,   Raipur
     Chhattisgarh
                                                      ---- Respondents

WPC No. 183 of 2022 Naval Kishore Dewangan S/o Late Shri Ramgopal Dewangan, Aged About 39 Years Caste Dewangan, R/o 102, Rs Marg, Rani Road, Town School, Champa, District Janjgir - Champa Chhattisgarh.

---- Petitioner Versus

1. State of Chhattisgarh Through The Secretary, Department of Transport, Mahanadi Bhawan, Mantralaya, New Raipur Chhattisgarh

2. Regional Transport Officer / Taxation Authority, Raipur Chhattisgarh

---- Respondents WPC No. 394 of 2022 Meena Devi Dewangan W/o Late Shri Ramgopal Dewangan Aged About 62 Years Caste Deangan, R/o 102, Rs Marg, Rani Road, Town School, Champa, District Janjgir Champa Chhattisgarh.

---- Petitioner Versus

1. State of Chhattisgarh Through The Secretary, Department of Transport, Mahanadi Bhawan, Mantralaya, New Raipur Chhattisgarh.

2. Regional Transport Officer / Taxation Authority Raipur Chhattisgarh.

---- Respondents (Cause-title taken from Case Information System)

For Petitioners : Mr. Varun Sharma and Mr. Shailendra Bajpai, Advocates For Respondents : Mr. Gagan Tiwari, Deputy Government Advocate.

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri N. K. Chandravanshi, Judge

Order on Board

Per Arup Kumar Goswami, Chief Justice

31.01.2022

Heard Mr. Varun Sharma, learned counsel along with Mr.

Shailendra Bajpai, learned counsel for the petitioners in these batch of

writ petitions, wherein, Section 3 (2) of the Chhattisgarh Motor Vehicle

Taxation Act, 1991 (herein after referred as 'Act of 1991') is challenged

on the ground that same is ultra vires to the provision of Section 56 of the

Motor Vehicles Act, 1988 (herein after referred as 'MV Act') and Article 19

(1) (g) of the Constitution of India. Challenge is also mounted on the

orders passed by the Regional Transport Officer / Taxation Officer

levying tax, penalty and interest.

2. Amount due in respect of petitioner in WPC No. 4028 of 2021,

petitioner in WPC No. 394 of 2022 and petitioner in WPC No. 183 of 2022

is Rs. 11,15,124/-, 11,61,684/- and 11,61,684/-, respectively.

3. Petitioners in all theses cases are owners of the school buses,

which are transport vehicles within the meaning of Section 2(47) of the

MV Act.

4. Mr. Sharma submits that as certificate of fitness of the vehicles had

expired, therefore, there is deemed suspension of registration and as

such, Section 3(2) of the Act of 1991 permitting levy of tax even in

respect of such a vehicle is ultra vires to Section 56 of the MV Act as well

under Article 19 (1) (g) of the Constitution of India. He submits that the

vehicles in question are not in use. He places reliance on the judgment

of Hon'ble Supreme Court in the case of Hardev Motor Transport v.

State of M.P. & Others, reported in (2006) 8 SCC 613, with particular

reference to paragraphs 16 and 17 thereon.

5. Mr. Gagan Tiwari, learned Deputy Government Advocate appearing

for the respondents submits that issue raised in these writ petitions is no

longer res integra as this Court, in the case of Abdul Shafiq v. State of

Chhattisgarh & Others (WPT No. 155 of 2017), by an order dated

14.07.2017, had dismissed the writ petition wherein an identical

challenge was mounted.

6. Section 3(2) of the Act of 1991, reads as follows :

"3. Levy of Tax on Motor Vehicles - (1) xxx

(2) A Transport vehicle of which the certificate of

registration is current, shall, for the purposes of this

Act, be presumed to have been in use or kept for use,

notwithstanding the expiry of the certificate of fitness

in case of such transport vehicle.

7. Section 56 of the MV Act, reads as follows :

"56. Certificate of fitness of transport vehicles.--

(1) Subject to the provisions of sections 59 and 60,

a transport vehicle shall not be deemed to be validly

registered for the purposes of section 39, unless it

carries a certificate of fitness in such form containing

such particulars and information as may be prescribed

by the Central Government, issued by the prescribed

authority, or by an authorized testing station mentioned

in sub-section (2), to the effect that the vehicle complies

for the time being with all the requirements of this Act

and the rules made thereunder:

Provided that where the prescribed authority or the

"authorized testing station" refuses to issue such

certificate, it shall supply the owner of the vehicle with

its reasons in writing for such refusal.

(2) The "authorized testing station" referred to in

sub-section (1) means a vehicle service station or public

or private garage which the State Government, having

regard to the experience, training and ability of the

operator of such station or garage and the testing

equipment and the testing personnel therein, may

specify in accordance with the rules made by the

Central Government for regulation and control of such

stations or garages.

(3) Subject to the provisions of sub-section (4),

certificate of fitness shall remain effective for such

period as may be prescribed by the Central

Government having regard to the objects of this Act.

(4) The prescribed authority may for reasons to be

recorded in writing cancel a certificate of fitness at any

time, if satisfied that the vehicle to which it relates no

longer complies with all the requirements of this Act and

the rules made thereunder; and on such cancellation

the certificate of registration of the vehicle and any

permit granted in respect of the vehicle under Chapter V

shall be deemed to be suspended until a new certificate

of fitness has been obtained:

[Provided that no such cancellation shall be made

by the prescribed authority unless such prescribed

authority holds such technical qualification as may be

prescribed or where the prescribed authority does not

hold such technical qualification on the basis of the

report of an officer having such qualifications.]

(5) A certificate of fitness issued under this Act

shall, while it remains effective be valid throughout

India."

8. We are of the considered opinion that the judgment rendered in

Abdul Shafiq (supra) is squarely applicable in the present cases.

Paragraphs 3 to 7 of the said judgment read as follows:

"3. Section 39 of the MV Act makes registration of

motor vehicles obligatory. It provides that no person

shall drive any motor vehicle and no owner of a motor-

vehicle shall cause or permit the vehicle to be driven in

a public place or any other place unless the vehicle is

registered in accordance with the Chapter IV of the MV

Act and the certificate of registration of the vehicle has

not been suspended or cancelled and the vehicle

carries a registration mark displayed in the prescribed

manner. The proviso to that Section is not relevant for

the purpose of this case. Any mechanically propelled

vehicle adapted for use upon roads detailed in the

definition clause of Section 2(28) of the MV Act is a

'motor vehicle' or 'vehicle' for the purpose of that Act.

Therefore, Section 39 of the MV Act applies to all

motor-vehicles or vehicles as defined in Section 2(28)

of the MV Act. Various definitions in Section 2 of that

Act show that vehicles get classified into different

categories as defined therein. Section 56(1) of the MV

Act applies to "transport vehicle" which

is defined in Section 2(47) of the MV Act, to mean a

public service vehicle, a goods carriage, an

educational institution bus or a private service vehicle;

which categories are also defined. Hence, the

applicability of Section 56 of the MV Act is confined to

transport vehicles. The proviso in Sub-section (1) of

Section 56 of the MV Act denudes a transport vehicle

of the efficacy and the validity of its registration under

Section 39, unless it carries a "certificate of fitness".

The "certificate of registration" as defined in Section

2(4) of the MV Act evidences due registration of a

motor-vehicle in accordance with the provisions of

Chapter IV of the MV Act. The requirement that a

transport vehicle shall possess a "certificate

of fitness" in terms of Section 56(1) of that Act is one

which is in addition to the requirement of certificate of

registration. The effect of Sub-section (1) of Section 56

of the MV Act is that the validity of the registration of a

transport vehicle for the purpose of satisfying the

mandate of Section 39 of the MV Act is not to be

deemed, unless that particular transport vehicle carries

a certificate of fitness in accordance with the provisions

of Section 56 of the MV Act. Therefore, a transport

vehicle may be one which is covered by a certificate of

registration; yet, one which cannot be deemed to be

one which is validly registered for the purpose of

Section 39 unless it carries a certificate of fitness as

enjoined in Section 56 of the MV Act.

Reading such inhibition as contained in Section 56 of

the MV Act alongwith the prohibition contained in

Section 39, it can be seen that the legislative

prescription through those statutory provisions is that

no person shall drive any transport vehicle and no

owner of any transport vehicle shall cause or permit

that vehicle to be driven as delineated in Section 39 of

the MV Act unless that transport vehicle carries a

certificate of fitness in terms of the dictate of Section

56 of the MV Act read with the prescriptions made by

the Central Government as enjoined in that section,

apart from the certificate of registration.

4. Clause (c) of Section 2 of the Taxation Act

defines 'tax' to mean a tax leviable under that Act.

Section 3 of that Act provides for levy of tax on motor

vehicles. It reads as follows:

:"3. Levy of tax on Motor Vehicles. - (1) A tax

shall be levied on every motor vehicle used or kept for

use in the State at the rate specified in the First

Schedule:

[Provided that the lifetime tax on every motor

vehicle shall be levied at the rates specified in the

second Schedule]:

Provided further that in respect of a motor

vehicle passing through the State from a manufacturer

to a dealer under a temporary certificate of registration

for a period not exceeding one month, the rate of tax

shall be one third of the tax payable for a quarter.

(2) A Transport Vehicle of which the

certificate of registration is current, shall, for the

purposes of this Act, be presumed to have been in use

or kept for use, notwithstanding the expiry of the

certificate of fitness in case of such transport vehicle."

5. Sub-section (1) of Section 3 provides that a tax

shall be levied on every motor vehicle used or kept for

use in the State at the rate specified in the first

Schedule to that Act. The impugned Sub-section (2) of

Section 3 provides that a transport vehicle of which the

certificate of registration is current, shall, for the

purpose of the Taxation Act, be presumed to have

been in use or kept for use, notwithstanding the expiry

of the certificate of fitness in case of such transport

vehicle. The presumption so provided as per Sub-

section (2) of Section 3 of the Taxation Act is that if a

vehicle is covered by certificate of registration in terms

of the Motor Vehicles Act and the Rules thereunder, it

shall be deemed to be a vehicle which is used or kept

to be used for the purpose of levy of tax under Sub-

Section (1) of Section 3 of the Taxation Act.

6. As regards motor vehicle taxation, in terms of

Entry 57 in List II (State List) in the Seventh Schedule

in the Constitution, the State has the exclusive power

to make laws with respect to taxes on vehicles,

whether mechanically propelled or not, suitable for use

on roads; subject to the provisions of Entry 35 of List III

(Concurrent List), which includes the subject: principles

on which taxes on mechanically propelled vehicle are

to be levied. Therefore, the power of the State of

Chhattisgarh to levy tax through the provisions of the

Taxation Act is beyond dispute. The levy of tax as per

Section 3 of the Taxation Act is on every motor vehicle

used or kept for use in the State of Chhattisgarh. It is

not made dependent on the registration of the vehicle.

Also, such levy is not conditional on registration of the

motor vehicle concerned. The provisions in Section 39

of the MV Act read with Section 56(1) of that Act does

not abridge the authority to levy tax under Section 3 of

the Taxation Act. The impugned provision in Section

3(2) of theTaxation Act is a statutory devise to protect

and insulate the exchequer against deprivation of tax in

terms of Section 3(1) of the Taxation Act on the

premise that transport vehicle, though stands with a

certificate of registration, is to be treated

as one which cannot be driven or permitted to be

driven in any public or other place on the ground that it

does not carry a certificate of fitness in terms of

Section 56 of that Act. If we were to accept the plea

that inspite of possessing a certificate of registration, a

vehicle which has run beyond the expiry of certificate

of fitness should be exempted from levy of tax, that

would impinge the provision for levy of tax, as is

contained in Section 3(1) of the Taxation Act which

imposes the levy tax on 'motor vehicle used or kept for

use in the State'. There being no conflict between the

provisions of the MV Act and the Taxation Act, the plea

of the Petitioner that the impugned provision in the

Taxation Act does not stand in the light of the Article

254 of the Constitution is repelled. In the light of the

fact that the vehicles get classified into different

categories or types, going by the interpretation clause,

namely, Section 2 of the MV Act, no hostile

discrimination can be read into the impugned provision

in the Taxation Act. The impugned Sub-section (2) of

Section 3 of the Taxation Act applies only to those

vehicles which fall within the term 'transport vehicle' as

defined in the MV Act. For this reason, the plea of

arbitrariness and hostile discrimination and the

challenge attempted to be levied with reference to

Articles 14 and 19(1)(g) of the Constitution are only to

be negatived. We do so.

7. It is not in dispute that the Petitioner's vehicle is

one which continues to hold a certificate of registration.

Under such circumstances, we do not find that any

case for examining the constitutional validity of the

provisions is made out by the Petitioner. This writ

petition therefore fails."

9. As regards the plea set up by Mr. Sharma that the said vehicles are

not in use, such a plea cannot be accepted.

10. Section 55 of the MV Act provides that if a motor vehicle has been

destroyed or has been rendered permanently incapable of use, the owner

shall, within fourteen days or as soon as may be, report the fact to the

registering authority within whose jurisdiction he has the residence or

place of business where the vehicle is normally kept, as the case may be,

and shall forward to the authority the certificate of registration of the

vehicle and the registering authority shall, if it is the original registering

authority, cancel the registration and the certificate of registration, or, if it

is not, shall forward the report and the certificate of registration to the

original registering authority and that authority shall cancel the

registration.

11. The petitioners had not taken any such steps to demonstrate that

the vehicles were rendered permanently incapable of use.

12. In Hardev Motor Transport (supra) in paragraphs 16 and 17,

Hon'ble Supreme Court has observed as follow :

"16. Tax imposed on motor vehicles in terms of the

provisions of the 1991 Act is a regulatory one. It was

so held in Boloni Ores Ltd. v. State of Orrissa

{(19740 2 SCC 777} stating : (SCC p. 794, para 29)

"If the vehicles do not use the roads,

notwithstanding that they are registered under

the Act, they cannot be taxed."

17. We may, however, hasten to add that even if a

vehicle is roadworthy and can be plied on a road, a

tax may be imposed, but if a vehicle is not capable of

being plied on the road, no tax would be leviable."

13. A perusal of the above judgment goes to show that when the

vehicle is capable of plying on the road, a tax may be imposed, but if a

vehicle is not capable of being plied on the road, no tax would be

leviable. Present cases are not cases where any applications were filed

before the registering authority stating that the vehicles are rendered

permanently incapable of being used.

14. In view of the above discussions, there is no merit in these writ

petitions and accordingly, the same are dismissed.

15. Interim order passed earlier shall stand vacated.

                 Sd/-                                          Sd/-
       (Arup Kumar Goswami)                          (N. K. Chandravanshi)
            Chief Justice                                    Judge
Hem