Rajasthan High Court - Jodhpur
M/S. Shrinath Travel Agency vs State Of Rajasthan And Ors on 8 February, 2023
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 1114/2020
M/s. Srinath Travels Agency, Through Its Partner Shri Prakash
Chandra Kabra Son Of Shri Madanlal Aged 49 Years Resident Of
Vrandawan Bagh, N.h. 8, Nathdwara, District Rajsamand.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary Cum
Commissioner, Transport Department, Sahkar Marg,
Parivahan Bhawan, Jaipur.
2. The District Transport Officer And Taxation Officer,
Rajsamand.
3. The Regional Transport Officer (Appeals), Udaipur Region,
Udaipur.
----Respondents
Connected With
D.B. Civil Writ Petition No. 1570/2017
M/s Srinath Travel Agency, Through Its Partner Shri Prakash
Chandra Kabra S/o Shri Madanlal, Resident Of Vrandawan Bagh,
N.h.8, Nathdwara, District Rajsamand
----Petitioner
Versus
1. State Of Rajasthan Through The Secretary Cum
Commissioner, Transport Department, Sahkar Marg,
Parivahan Bhawan, Jaipur
2. The District Transport Officer And Taxation Officer,
Rajsamand
3. The District Transport Officer And Addl. Secretary,
Regional Transport Authority, Udaipur
----Respondents
D.B. Civil Writ Petition No. 1973/2017
M/s Srinath Travel Agency, Through Its Partner Shri Prakash
Chandra Kabra Son Of Shri Madanlal, Resident Of Vrandawan
Bagh, N.h.8, Nathdwara District Rajsamand.
----Petitioner
Versus
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1. State Of Rajasthan, Through The Secretary Cum
Commissioner, Transport Department, Sahkar Marg,
Parivahan Bhawan, Jaipur.
2. The District Transport Officer And Taxation Officer,
Rajsamand.
3. The District Transport Officer And Addl. Secretary,
Regional Transport Authority, Udaipur.
----Respondents
D.B. Civil Writ Petition No. 14902/2017
M/s Shrinath Travel Agency, Through Its Partner Shri Prakash
Chandra Kabra Son Of Shri Madanlal, Resident Of Vrandawan
Bagh, N.h. 8, Nathdwara District Rajsamand Raj..
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary Cum
Commissioner, Transport Department, Sahkar Marg,
Parivahan Bhawan, Jaipur Raj..
2. The District Transport Officer And Taxation Officer,
Shahpura Bhilwara. Raj..
3. The District Transport Officer And Addl. Secretary,
Regional Transport Authority, Chittorgarh Raj..
----Respondents
D.B. Civil Writ Petition No. 16251/2017
M/s Shrinath Travel Agency, Through Its Partner Shri Prakash
Chandra Kabra Son Of Shri Madanlal, Resident Of Vrandawan
Bagh, N.h. 8, Nathdwara District Rajsamand Raj..
----Petitioner
Versus
1. State Of Rajasthan Through The Secretary Cum
Commissioner, Transport Department, Sahkar Marg,
Parivahan Bhawan, Jaipur Raj..
2. The District Transport Officer And Taxation Officer,
Chittorgarh Raj.
3. The District Transport Officer And Addl. Secretary,
Regional Transport Authority, Chittorgarh Raj..
----Respondents
For Petitioner(s) : Mr. R.K. Rathi.
For Respondent(s) : Mr. Sudhir Tak, AAG.
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HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
JUDGMENT
Judgment pronounced on ::: 08/02/2023
Judgment reserved on ::: 03/01/2023
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The instant bunch of writ petitions filed by the petitioner M/s.
Srinath Travels Agency under Article 226 of the Constitution of
India involves identical controversy and thus, the same are being
decided by this common order.
2. Basic facts relevant and essential for disposal of these writ
petitions are being referred from Writ Petition No.1570/2017
because the complete set of relevant documents and pleadings are
available in this file.
3. The petitioner herein is engaged in the transport business
and owns private transport vehicles viz. buses. A service order
dated 11.05.2016 was issued to the petitioner by the company
Hindustan Zinc Limited for a period of four years commencing
from 11.05.2016 to 10.05.2020. By virtue of this service order,
the petitioner was engaged to deploy 23 vehicles at different
locations of Hindustan Zinc Limited so as to ferry its employees to
and fro from the factory and office premises. On receiving the
service order, the petitioner submitted applications to the Road
Transport Department in the prescribed form under Section 76 of
the Motor Vehicles Act, 1988 for obtaining "private service vehicle"
permits. These applications were accompanied with the service
(4 of 12) [CW-1114/2020]
order dated 11.05.2016. The RTA, Udaipur scrutinized the
applications and granted 23 "private service vehicle" permits to
the petitioner on different dates between 01.09.2016 to
29.11.2016. Below Point No.6 relating to the specification and
number of persons permitted to be carried, it was noted that the
persons to be carried would be Hindustan Zinc Limited employed
as per the service order. The petitioner deposited the road tax for
23 vehicles covered under the permits period upto March 2017
and started plying the vehicles in the capacity of representative,
agent and agency of Hindustan Zinc Limited as per the terms and
conditions of the service order.
It is stated that a news item came to be published in the
'Rajasthan Patrika' newspaper edition dated 20.01.2017 alleging
inter alia that huge loss of revenue had been caused to the
transport department on account of collusion between the
department officials, Hindustan Zinc Limited and the petitioner.
Pursuant to this reporting, the Anti Corruption Bureau officials
seized relevant documents from the office of the RTA Udaipur and
criminal cases came to be registered. Immediately thereafter, the
DTO, Udaipur (Rajsamand) issued notice dated 20.01.2017 to the
petitioner requiring it to show cause as to why, the "private vehicle
service" permits granted to it in the garb of the service order may
not be suspended/cancelled as the same were in violation of
Section 86 of the Motor Vehicles Act. On the basis of the enquiry
conducted by department, the DTO proceeded to pass the order
dated 25.01.2017 whereby, all 23 permits, referred to above,
granted to the petitioner were suspended assigning the following
reasons:
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"i=koyh esa miyC/k lk{;ksa] vkosnu i= ds lkFk izLrqr
nLrkostksa ,ao ftyk ifjogu vf/kdkjh] mn;iqj ,oa bl
dk;kZy; ds izorZu dfeZ;ksa }kjk izdj.k ls lacaf/kr okguksa dh
tkWp djus dh izfdz;k esa ik;s x;s lk{;ksa dk eksVj;ku
vf/kfu;e] 1988 dh /kkjk 2 (35) rFkk /kkjk 2 (7) dk
voyksdu djus ij] eSa bl fu.kZ; ij igWwpk gwW fd lacaf/kr QeZ
}kjk mDrkuqlkj mYysf[kr dzekad 1 ls 23 rd izkIr futh
lsok ;ku ds vuqKki=ksa dk mi;ksx "lafonk;ku" ds :i
esa ;g fl} djrk gS fd ftl mn~ns'; ds fy, vuqKki= izkIr
fd;k tkuk Fkk og vuqKki=/kkjh }kjk Nqik;k x;kA ;g d`R;
eksVj;ku vf/kfu;e] 1988 dh /kkjk 86 (1)(d) dh Js.kh esa
vkrk gS tks vuqKk/kkjh ds fo:} bl izko/kku ds rgr
dk;Zokgh djus ds fy, Ik;kZIr lk{; gSA
vr% eSa uSu flag lks<k] ftyk ifjogu ,oa vfrfjDr
lfpo] izknsf'kd ifjogu izkf/kdkj mn;iqj eSllZ JhukFk
VsoYlZ ,tsUlh] ukFk}kjk] jktleUn dks bl dk;kZy; }kjk
tkjh fuEu vuqKki= dks eksVj;ku vf/kfu;e] 1988 dh /kkjk
86 ds vUrxZr iznRr 'kfDr;ksa dk iz;ksx djrs gq, rRdky
izHkko ls fuyafcr djrk gWwA"
The DTO observed in the order dated 25.01.2017 that the
vehicles were being used as contract carriages, however, while
applying for the permits, the transporter, concealed material facts
and thus, the permits were liable to be suspended by virtue of
Section 86(1)(D) of the Motor Vehicles Act which reads as below:
"86. Cancellation and suspension of permits.-(1) The
transport authority which granted a permit may cancel the
permit or may suspend it for such period as it thinks fit-
(a)
.....
(d) if the holder of the permit has obtained the permit by
fraud or misrepresentation, or
...."
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Pursuant to suspension of permits, the DTO issued separate
orders whereby, road tax was qualified as applicable to contract
carriage permits and penalty was calculated and the petitioner
was directed to deposit the same. The vehicles in question were
also seized on 25.01.2017.
4. In one of the cases, the petitioner challenged the order of
seizure and the demand notice by filing an appeal to the appellate
authority but in the remaining matters, the impugned orders
whereby, the petitioner's vehicles were seized and the demands
were raised, have been challenged by filing these writ petitions
under Article 226 of the Constitution of India.
5. In consequence of ad interim orders passed by this Court,
these vehicles were ordered to be released to the petitioner on
interim custody/ Supurdaginama. This Court is apprised that the
petitioner has satisfied the demand notices by paying the amounts
albeit under protest.
6. Learned counsel Shri Rathi representing the petitioner,
vehemently and fervently contended that no fraud was ever
practiced by the petitioner when the applications were filed for
grant of private service vehicle permits. The service contract
issued to the petitioner by the corporate entity Hindustan Zinc
Limited for whose employees' the petitioner's vehicles were to be
deployed, was duly annexed with the applications for grant of
permit. The impugned notices for suspension of permits and the
seizure of the petitioners' vehicles were issued purely on account
of a malicious news article published in the 'Rajasthan Patrika'
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edition dated 20.01.2017. He urged that it was clearly stated in
the order dated 25.01.2017 passed by the DTO, Udaipur that the
permits granted to the petitioner were being suspended on
account of non-disclosure of true facts as defined under Section
86(1)(d) of the Motor Vehicles Act. However, as per Shri Rathi,
there is no material on record to establish that the petitioner
indulged in concealment of facts while submitting the applications
for grant of "private service vehicle" permits. He urged that if at
all, the applications so filed were non-compliant of any rule or
regulation, the transport authority treated the same as
applications for contract carriage permits or in the alternative, the
same could have either been rejected or granted under the
applicable category. Nonetheless, on being satisfied with the
service contract annexed with the applications filed by the
petitioner, the transport authority granted the "private vehicle
service" permits for the petitioner's buses and hence, the
impugned action of suspension of permits; seizure of the vehicles
and demand of additional tax and penalty, is absolutely unjustified
and illegal and deserves to be struck down. His alternative
submission was that even if it is assumed that the petitioner
should have been granted the permits in question as contract
carriage permits then also, by virtue of notification dated
31.03.2006 as amended vide notification dated 08.03.2016, the
permits of the petitioner would have to be treated as non-
temporary fix contract/permits with an industrial/commercial
entity and the special road tax would be payable on such permits
subject to a maximum of Rs.12,500/- per month. Shri Rathi thus
implored the Court to accept the writ petitions and quash the
impugned demands of tax and penalty and prayed that the
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amounts already deposited may be ordered to be adjusted for
upcoming eventualities.
7. Per contra, Shri Sudhir Tak, learned AAG representing the
respondents, vehemently and fervently urged that the permits for
"private service vehicles" were granted to the petitioner on
account of the misrepresentation in the applications and on
realizing the mistake, the vehicles were seized for the reason of
non-payment of tax and the permits were suspended by adopting
due process of law. He submitted that the petitioner was granted
private service vehicle permits to ply the vehicles, however, the
same were used as contract carriages in violation of the rules and
the permits. Thus, as per Shri Tak, the transport authority was
absolutely justified in suspending the permits and raising the tax
liability and imposing penalty against the petitioner. However, Shri
Tak was not in a position to dispute the fact that in the order
dated 25.01.2017, the relevant part whereof has been extracted
herein above, the transport authority took the impugned action
considering the petitioner's applications to be in violation of
Section 86(1)(d) of the Motor Vehicles Act, referred to supra.
8. The respondents, in their detailed reply, have not been able
to even barely justify the aspersion that the permits in question
were procured by practicing fraud. Shri Tak, during the course of
oral submissions, fairly conceded that as a matter of fact, it is a
case of permits of wrong category being granted under an
inadvertent misconception rather than the permits having been
procured by practicing fraud. Inspite of the above, Shri Tak's
submission was that once the mistake was realized, the transport
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authority was perfectly justified in demanding tax and imposing
penalty upon the petitioner in view of the provisions of the Act and
the Rules by presuming that the vehicles were operated as
contract carriages during the relevant period. He submitted that
the petitioner has already deposited the entire tax amount as
demanded by the authority and thus, now it is estopped from
challenging the impugned action. His submission was that the
controversy has now been rendered purely academic and no
useful purpose would be served by deciding the issues on merits.
9. We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the material
placed on record.
10. There is nothing on record to even prima facie satisfy the
Court that the petitioner made any misrepresentation while filing
the applications for grant of permits qua 23 of its vehicles which
were deployed under the service contracts issued by Hindustan
Zinc Limited for ferrying its employees to and fro. The relevant
facts and documents were presented with the permit applications.
At the same time, grant of Private Service Vehicle Permits to
the petitioner was not permissible in the eyes of law. As per the
definition provided under Section 2(33) of the Motor Vehicles Act,
a 'private service vehicle' means a motor vehicle constructed or
adapted to carry more than six persons excluding the driver and
"ordinarily used by or on behalf of the owner of such
vehicle for the purpose of carrying persons for, or in
connection with, his trade or business otherwise than for
hire or reward but does not include a motor vehicle used
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for public purposes". The import of the definition clearly means
that the 'private service vehicle' would be one which is to be
ordinarily used by or on behalf of the owner of such vehicle for the
purpose of carrying persons for or in connection with his trade or
business other than for hire or reward. The moment the
petitioner's vehicles were deployed by the Hindustan Zinc Limited
through service contracts or in any other manner for
transportation of Hindustan Zinc Limited's employees, they could
not have been covered under the definition of 'private service
vehicle'. Thus, the transport authority concerned acted with
inherent illegality while granting permits in the nature of private
service vehicles on the applications submitted by the petitioner
based on the service contract issued by the Hindustan Zinc
Limited. Thus, to this extent, the impugned action whereby, the
permits were suspended cannot be faulted. However, the
impugned order dated 25.01.2017 to the extant it conveys that
the petitioner procured the permits by practicing fraud, is
incorrect. Possibly, the permits were granted in form of 'private
service vehicles' owing to ignorance of law but by no stretch of
imagination, the petitioner's applications can be branded to be
fraudulent. It was the duty of the transport authority concerned to
properly scrutinize and deal with the applications under the
correct provision of law. The illegality thus, was on part of the
transport authority concerned for which appropriate action should
have followed.
11. Be that as it may. The conclusion that the impugned order
dated 25.01.2017 is not happily worded and the aspersion of
fraudulent procurement of permits has wrongly been casted on
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the petitioner, by itself, would not absolve it of the liability to pay
tax as per the usage of the vehicle. It is not disputed that the
permits were granted to the petitioner in the month of September,
2016. The notification dated 08.03.2016 was prevailing at the
relevant point of time and it is an admitted position that
subsequent to the release of the vehicles, the petitioner was
charged tax on these very vehicles as per the rates prescribed in
this notification.
12. Resultantly, we are of the firm view that for the period during
which the petitioner plied the vehicles under the incorrectly issued
permits, it would have to be charged with the special road tax as
quantified under the notification dated 08.03.2016 which reads as
under:
"In the said notification -
(i) in the existing clause (4) of proviso appearing below the
table, for the existing expression "Rs.25,000", the expression
"Rs.32,000" shall be substituted:
(ii) after the existing clause (7) of proviso appearing below
the table, the following new clauses shall be added, namely:-
"(8) the Motor Vehicle specified in sub-clauses (v), (vi),
(vii) or (viii) of clause 2 of the table and plying exclusively
under a non-temporary fix contract with any industrial or
commercial entity, the Special Road Tax shall be payable at
the rate of 50% of the rate as mentioned against each in
column number 2, subject to a maximum of Rupees 12,500/-
per month.
(9) if any vehicle, specified in clause (8) of proviso is
found plying without appropriate permit they shall be liable
to pay tax two times of tax as specified in clause (4) of this
proviso for such vehicle."
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13. Consequently, the impugned demand notices are not
sustainable in eyes of law and are hereby quashed. The tax
liability of the petitioner for the subject period shall be calculated
by the transport authority concerned in terms of Clause 8 of the
amended notification dated 08.03.2016. The excess amount, if
any, paid by the petitioner shall be adjusted against its future
liabilities/dues with the department.
14. The writ petitions are allowed in the above terms.
15. No order as to costs.
15. A copy of this order be placed in each file.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
45-Tikam/-
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