1. This writ petition is under Article 226 of the Constitution of India for quashing of the order dated 18.10.2012 passed by the Secretary-cum-State
Transport Commissioner whereby and whereunder the application filed by the petitioner for exemption of road tax for the period from 09.05.2007 to
30.03.2009 and 12.12.2010 to 09.02.2011, the period for which the vehicle bearing Bus No.JH 13 A 2737 was with the possession of the financer
company and for the period from 31.03.2009 to 11.12.2010 on the ground that the said vehicle was in possession of police in connection with a
criminal case pertaining to Simaria PS Case No.24 of 2009 but refused to grant exemption for the period from 09.05.2007 to 30.03.2009 and
12.12.2010 to 09.02.2011, the period for which the vehicle was taken by the financer company.
2. It is the case of the petitioner that vehicle in question has been purchased on high purchase agreement basis and was registered on 10.08.2005
within the jurisdiction of the District Transport Officer, Chatra and was being used for public but on account of the involvement of the said vehicle in a
criminal case being Simaria PS Case No.24 of 2009 registered for the offences under Sections 323/364/379/406/506 and 34 of Indian Penal Code
corresponding to GR Case No.156 of 2009 and the vehicle was seized which prompted the petitioner to make an application for release of the said
vehicle by filing a petition before the court of Chief Judicial Magistrate, Chatra but was rejected against which criminal revision No.623 of 2010 has
been filed which was decided on 23.09.2010 wherein the vehicle was directed to be released temporarily in course of pendency of the criminal case
after verifying the ownership and other necessary documents on certain conditions and the vehicle was released in pursuance to the aforesaid order
passed by this Court but thereafter the vehicle was taken by the financer Bank namely, Bank of India of Simaria branch and remained in possession
of the financer for the aforesaid period which led the petitioner to approach before the District Transport Officer, Chatra for granting exemption but
when the same was not decided, a writ petition was filed before this Court being W.P.(C) No.2573 of 2012 which was disposed of by directing the
Secretary-cum-Transport Commissioner, Jharkhand to consider and dispose of the petitioner’s representation and in pursuance thereto, the
representation has been decided by passing the aforesaid order which is impugned in this writ petition.
3. Learned counsel for the petitioner Mr. A.K. Rashidi, in assailing the aforesaid order has taken reliance of the provision of Section 17(1) of the
Bihar Motor Vehicles Taxation Act, 1994 as also Section 19 thereof and submitted that the aforesaid provision of law confers power upon the
transport authority to pass an order of exemption even for the period for which the vehicle has not been plied by the petitioner and was kept in the
possession of the financer.
4. Mr. Akash Bhushan, learned AC to Sr. SC-I AC has submitted by taking aid of the counter affidavit has vehemently opposed the submission and
ground agitated by the petitioner that there is no infirmity in the impugned order since the authority while deciding the application made by the
petitioner has taken into consideration the period for which the vehicle was kept in police custody but the period for which the vehicle was in the
possession of the financer no exemption order has been passed reason being that the petitioner has failed to substantiate with respect to the fact as to
whether the vehicle in question was plied over the road or not, therefore, no exemption has been passed for the aforesaid period.
He further submits that the provision of Section 17(1) or Section 19 of the Act, 1994 is not applicable in the facts and circumstances of the case.
5. Having heard the learned counsel for the parties and on perusal of their rival submissions, this Court before entering into the merit of the issues,
deem it fit and proper to refer the provision of Section 17(1) as also Section 19 of the Act, 1994 which reads hereunder as:
“17.(1) Whenever any motor vehicle becomes incapable of use due to disability caused by mechanical breakdown or litigation [or natural calamities
or compelling personal reasons] or due to other causes prescribed by State Government for any period more than a month, the owner shall, on or
before the date of expiry of the term for which the tax has been paid, furnish to the taxing officer an undertaking duly signed and verified in the
prescribed form and specifying the period aforesaid and the place where the motor vehicle is to be kept along with the current registration certificate,
fitness certificate, and tax token, and such other particulars as may be prescribed and shall from time to time by furnishing, further undertaking give
prior intimation to the concerned taxing officer of the extention, if any, of the said period and the changes, if any of the place where the motor vehicle
shall be kept. The owner shall also surrender the permit of the vehicle to the Transport Authority which has granted permit to it with intimation to the
taxing officer;
Provided that no such undertaking shall relate to a period exceeding six months at a time.â€
“19. Exemption and write off taxes. â€" If an undertaking has been delivered under sub-section (1) of Section 17 in respect of a Motor Vehicle and
the period specified in the said undertaking comprises of any period for which tax has not been paid, the owner of a vehicle shall file an application
along with necessary papers before the taxing officer on or before the date the tax was last paid, and the taxing officer shall conduct due enquiry as
prescribed and if the undertaking has not been found false till the expiry of period for which exemption of payment for tax is claimed, he shall after
being satisfied dispose of the claim in the prescribed manner :
Provided that the taxing officer shall be competent to write off the arrears of the tax upto a maximum amount which may be prescribed by the State
Government in case the arrears exceed the prescribed amount he may refer the matter along with necessary records, to the State Transport
Commissioner or to any officer authorised by the State Government.â€
It is evident from the provision of Section 17(1) wherein it has been provided regarding prior intimation of a temporary discontinuance of use of a
vehicle in a case whenever any motor vehicle becomes incapable of use due to disability caused by mechanical breakdown or litigation or due to other
causes prescribed by State Government for any period more than a month, the owner shall, on or before the date of expiry of the term for which the
tax has been paid, furnish to the taxing officer an undertaking duly signed and verified in the prescribed form and specifying the period aforesaid and
the place where the motor vehicle is to be kept along with the current registration certificate, fitness certificate, and tax token, and such other
particulars as may be prescribed and shall from time to time by furnishing, further undertaking give prior intimation to the concerned taxing officer of
the extention, if any, of the said period and the changes, if any of the place where the motor vehicle shall be kept.
The said provision thus provides that it is onus upon the owner of the vehicle to make an application before the taxing officer in case of not using the
said motor vehicle due to disability caused by mechanical breakdown or litigation or due to other causes prescribed by State Government for any
period more than a month.
Section 19 provides the provision of exemption and write off taxes in a case on the basis of an undertaking as has been delivered under sub-section (1)
of Section 17 in respect of a Motor Vehicle and the period specified in the said undertaking comprises of any period for which tax has not been paid,
the owner of a vehicle shall file an application along with necessary papers before the taxing officer on or before the date the tax was last paid, and
the taxing officer shall conduct due enquiry as prescribed and if the undertaking has not been found false till the expiry of period for which exemption
of payment for tax is claimed, he shall after being satisfied dispose of the claim in the prescribed manner, meaning thereby, if the eventuality if so
arises as stipulated under the provision of sub-section (1) of Section 17, decision is required to be taken by the authority under Section 19 for
exemption and write off taxes.
6. The facts of the case herein is that the vehicle in question has been subjected to a criminal case which resulted into seizure of the said vehicle and
kept in police custody for the period from 31.03.2009 to 11.12.2010.
The other period for which the exemption has been sought for is the period from 09.05.2007 to 30.03.2009 and 12.12.2010 to 09.02.2011, the period
for which the vehicle has been kept in possession of the financer company.
The petitioner admittedly has made an application for exemption for the aforesaid period.
7. The State Transport Commissioner has bifurcated two period first pertaining to vehicle remained the police custody and therefore going through the
records about involvement of the said vehicle in the police case, decision has been taken for exemption of the tax for the period for which the vehicle
was seized in connection with the aforesaid criminal case but the period for which the petitioner is claiming exemption for the period for which the
vehicle was in possession of the financer company, exemption has been refused to be extended.
8. As would appear from simultaneous reading of the provision of Sections 17(1) and 19 of the Act, 1994 which does suggest that exemption is
required to be granted subject to fulfillment of the condition as stipulated under Section 17 (1) of the Act, 1994 i.e., if the vehicle has been subjected to
any mechanical breakdown or litigation or natural calamities or due to other causes prescribed by State Government for any period more than a
month.
9. Learned counsel for the petitioner contends that even for the period for which the vehicle has been kept in the possession of the financer,
exemption is required to be granted in view of the condition stipulated under Section 17 (1) under the category “due to other causes prescribed by
State Governmentâ€, therefore, the sole contention is that even for the period for which the vehicle has been purchased on high purchase agreement
and in case of non-payment of the installment of the loan if the vehicle would be taken into custody by the financer, the same would be said to be a
condition prescribed for applicability of exemption as provided under Section 17 (1) of the Act, 1994.
10. This Court is not in agreement with the aforesaid submission for the reason that the other causes prescribed by State Government cannot be a
ground if the vehicle is in the possession of the financer due to non-payment of the loan amount on the basis of the terms and conditions of the high
purchase agreement.
If the party is entering into a high purchase agreement it depends upon certain terms and conditions and in case of breach of the said terms and
conditions the person concerned which is bound himself from the terms and conditions stipulated therein cannot come forward and seek exemption by
putting liability of the tax upon the financer and if that would be allowed to happen the interest of the financer would be jeopardized in two fields i.e.,
he is not getting the installment against the repayment of the loan amount side by side the liability by making payment of the tax will also be casted
upon the it and therefore, the same cannot be said to be under the category of “due to other causes prescribed by State Governmentâ€.
11. This Court after going across the impugned order has found that the period when the vehicle was kept in police custody has been exempted but
the period for which the vehicle was kept in possession of the financer has been declined to be considered for exemption from making payment of the
tax on the basis of the reason assigned therein that the petitioner has failed to substantiate by not placing any evidence of the vehicle having not been
plied over the road.
12. This Court, therefore, is of the view that since the petitioner is seeking quashing of the decision taken by the authority dated 18.10.2012 by issuing
writ of certiorari and it is settled position of law that the writ of certiorari can be issued by the High Court having its limited jurisdiction i.e., if there is
any perversity in the findings which appears from the face of the order or there is any jurisdictional error or there is any infringement of fundamental
right, as has been settled by Hon’ble Apex Court in the case of Syed Yakoob Vrs. Radhakrishnan reported in A.I.R. 1964 477 Supreme Court
wherein at paragraph no.7 their Lordships have been pleased to held as follows:-
“The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this
Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by
inferior courts or tribunals :
these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise
jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for
instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing
with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory
jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the
inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is
apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of
fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to
admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a
finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this
category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a
writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the
impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the
exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred
on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1
SCR 1104 : ((S) AIR 1955 SC 233;) Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398 )and Kaushalya Devi v.
Bachittar Singh, AIR 1960 SC 1168.
Reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court in the case of Hari Vishnu Vs. Ahmad Ishaque
and Ors. reported in 1955 Supreme Court 233 wherein at Paragraph-21, which is quoted hereinbelow :-
“With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be
taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or
in excess of it, or fails to exercise it.
(2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides
without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in
exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the
inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to
decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its
purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari.â€
In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh Vrs. State of Punjab reported in (1976) 2 SCC 868 their Lordships while
discussing the power of writ under Article 226 for issuance of writ of certiorari has been please to hold at paragraph nos.12 and 13 as under:
“12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the
certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be
issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under
Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra).
13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has
acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all,
because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or
tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the
exercise of their jurisdiction causing grave miscarriage of justice.â€
In another judgment rendered by Hon'ble Supreme Court in the case of Heinz India (P) Ltd. Vrs. State of U.P. Reported in (2012) 5 SCC 443 their
Lordhsips have been please to hold at paragraph no.66 and 67 as under:-
“66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or
their agents as to matters within the province of either, and that the court does not supplant “the feel of the expert†by its own review, is also
fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a
reasonable basis on evidence and whether such findings are consistent with the laws of the land.
67. In Dharangahara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has
jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported
by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not
generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed.â€
In the case of Thansingh Vrs. Supdt. of Taxes reported in A.I.R. 1964 1419 Supreme Court, Hon'ble Supreme Court has been pleased to hold that the
High Court does not jointly determine question which requires elaborate examination of evidence to establish the right to enforce for which the writ is
claimed.
In another judgment rendered by Hon'ble Apex Court in the case of Pepsico India Holding (P) Ltd. Vrs. Krishna Kant Pandey reported in (2015) 4
SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of
the tribunal has been please to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S.
Guram reported in (1986) 4 SCC 447 at para 17 has held as under:-
“17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be
made to the observations of this Court in Bathutmal Raichand Oswal V. Laxmibai R. Tarta where this Court observed that the High Court could not in
the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal.
The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J, as
the learned Chief Justice then was, observed at page 1301 of the report as follows:
…...... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be
exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for
correcting mere errors.
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it
was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not
greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extent to quashing an impugned order
on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking
that the tribunal functions within the limits of its authority.â€
13. This Court after taking into consideration the ratio laid down by the Hon’ble Apex Court as referred hereinabove and going through the
impugned order has found that the petitioner has failed to make out a case of perversity in the findings as has been recorded by the authority while
passing the impugned order and certainly the petitioner has not canvased argument of infringement of fundamental right.
14. In view thereof, the writ petition fails and is dismissed.
