MANGLA LPG CARRIERS v. S J PATEL & 1

========================================================= MANGLA LPG CARRIERS - Petitioner(s) Versus S J PATEL & 1 - Respondent(s) ========================================================= Appearance : MR BR GUPTA for Petitioner(s) : 1, MS. MAITHILI D. MEHTA AGP for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 02/12/2008 ORAL JUDGMENT

1. The petitioner states that the petitioner is engaged in the business of transport of Liquified Petroleum Gas and for the said purpose maintains a SCA/1554/2000 JUDGMENT fleet of tankers in accordance with a contract with Indian Oil Corporation. The petitioner undertook to transport 17.200 metric tons of liquified petroleum gas from Jamnagar to Haridwar in the State of Uttar Pradesh. While the tanker was on road near Amran village on 1st March 2000, respondent No.1 intercepted the vehicle and issued a checking report of even date. The said report has noted down the details of offences in the following words:

1. Chassi No.& Eng. No. of Hourse found OK. but Trailer's No. plate not found on trailer's chassi. So, M.V. detained at Pragati Petrol Pump, Amran village on risk of driver and owner for Tax verification and chassi No. verification.

2. So driver ask to produced documents of trailer attached with hours & to produce proof of taxes paid for Guj. State.”

2. According to the petitioner, the driver of the vehicle produced the original licence permitting transportation of compressed gas issued by the Joint Chief Controller of Explosives, North Circle, Faridabad (Hariyana) in respect of the tanker of the petitioner which contained various details asked for SCA/1554/2000 JUDGMENT in the checking report. In so far as the requirement of production of proof of tax paid for Gujarat State, the driver of the vehicle furnished a copy of the authorization issued by the Regional Transport Authority, Faridabad for the period from 1.4.1999 to

31.3.2000. It is the say of the petitioner that despite having produced the relevant documents respondent authority was not releasing the vehicle and hence the petition was preferred praying for following reliefs: (a) to issue appropriate writ, direction and order holding and declaring the respondent's impugned action of detention and seizure of the petitioner's LPG tanker No.HR-22-9972 on 1.3.2000 and its continued detention thereafter as thoroughly arbitrary, discriminatory, unauthorized, illegal ad unconstitutional; (b) by way of interim relief, be pleased to order and direct the respondent to forthwith release the petitioner's LPG tanker No.HR-22- 9972 loaded with 17.200 MT of LPG Gas subject to the result of this petition; (c) to grant such other and further reliefs as may be deemed just and proper in the premises.”

3. On 22.3.2000, the following order came to be made by the Court: SCA/1554/2000 JUDGMENT “Mr. Gupta submits that the notices were served way back on 18.3.2000. Mr. A.J. Desai, learned A.G.P. pleads no instructions. Mr. Gupta has pointed out that the entire due amount of the tax has already been paid as per the Demand Drafts dated 19.3.99 and as per the Certificate of payment of composite fee/taxes, the copy of which has been enclosed with the petition as Annexure 'C' at pages 12- 13. In the facts and circumstances of this case, it is directed that in case no tax is outstanding in respect of the vehicle in question i.e. LPG Tanker bearing No.HR-22-9972 loaded with 17.200 MT. of LPG Gas, the same shall be released forthwith alongwith original documents. Direct service is permitted. Respondents will be at liberty to apply for vacation/modification of this order at any time.”

4. It appears that on 24.3.2000 a notice styled as show cause notice was issued by the Commissioner of Transport and the subject matter of the notice is to initiate action in accordance with the provisions of Section 86 of the Motor Vehicles Act, 1988. In the said notice various facts are stated and thereafter the petitioner has been informed to make payment of a sum of Rs.1,00,040/- It is further stated that upon such payment necessary process for releasing the vehicle shall be undertaken. The petitioner forwarded reply dated 27.3.2000 and also made payment of the amount under protest. In the reply dated 27.3.2000 a SCA/1554/2000 JUDGMENT reference Notification No.G/G/97/46/MTA/2093/3115/KH dated 27.3.1997 issued by the Government of Gujarat to contend that the petitioner is only required to pay the composite sum of Rs.5,000/- per year and no other amount is due.

5. The petitioner thereafter amended the petition after obtaining order from the Court in Civil Application No. 7015 of 2000 and the additional prayer reads as under: “9 (bb) to order the Transport Commissioner, Gujarat State, Ahmedabad to forthwith refund a sum of Rs.1,00,040/- which the petitioner was coerced into paying on 27.3.2000 contrary to notification dtd.27.3.1997 at Annexure-II and as a condition precedent for release of the petitioner's vehicle in question alongwith its original documents; alongwith interest at commercial rate of 18% per annum thereon till payment thereof.”

6. Heard the learned advocate for the petitioner and the learned AGP for the respondent authorities.

7. It is apparent that the petition was only for the purposes of challenging the action of detention of the vehicle in question and release thereof. The SCA/1554/2000 JUDGMENT amendment to the petition in relation to the notice dated 24.3.2000 has no relevance with the subject matter of the petition except to the extent of the last sentence wherein it is stated that the vehicle shall be released upon payment of the sum computed in the notice. In the circumstances, it is not necessary to adjudicate on the validity of the notice. It will be open to the petitioner to respond to the said notice if the petitioner so desires. The communication dated 27.3.2000 which has been produced in response to the notice by the petitioner refers to the notification issued by the State Government for contesting the claim of tax made by the respondent authorities. A perusal of the notification states in the opening portion itself that the amount of composite tax fixed therein is subject to the conditions that follow thereafter. It will be open to the petitioner to satisfy the authority that the conditions are fulfilled, more particularly condition No.8 of the notification.

8. Though the notice in question seeks to be a show cause notice in fact the petitioner has not been SCA/1554/2000 JUDGMENT called upon to show cause as to any particular violation of the provisions. Similarly, whether Section 86 of the Motor Vehicles Act, 1988 is applicable in the facts and circumstances of the case is doubtful. It will be open to the respondent authority, in the circumstances to issue a fresh notice in accordance with law if the facts so warrant.

9. It is an accepted position between the parties that in compliance of the order dated 22.3.2000 and upon payment of the sum of Rs.1,00,040/- under protest, the vehicle has already been released by the respondent authority. In the event the respondent authority does not choose to issue a fresh notice in accordance with law within a period of a fortnight from today, the amount collected under notice dated

24.3.2000 shall be refunded forthwith to the petitioner. The petition stands disposed of accordingly. Rule is made absolute to the aforesaid extent. No order as to costs. (D.A. Mehta, J.) SCA/1554/2000 (karan) ... JUDGMENT