Bachatarsing Hardayalsing Ghai v. The State of Maharashtra & Anr.

... Shri S.V. Gangapurwala, Advocate for Petitioner. Shri K.J. Ghute Patil, A.G.P. for RespondentS. ... CORAM : S.S. SHINDE, J. DATE : 10th AUGUST, 2009. PER COURT:

This petition is filed challenging the order dated 4lth August, 2008 passed by the Deputy Secretary (Transport), Home Department, Maharashtra State in Revision Application No.MTA-1208/Sr.nO. 37/PR-3, and the order dated 19.12.2007 passed by the Commissioner of Transport, Maharashtra State, Mumbai thereby rejecting the application of the petitioner for exemption from tax on the ground that the vehicle of the petitioner was not in use from 25.5.1999 to 31.12.2007.

It is not necessary to go into the facts of the case since the matter is extensively dealt by the authorities below. 2

The learned Counsel for the petitioner submitted that the order passed in revision was ex parte and the same deserves to be quashed and set aside. The learned Counsel further submits that under Section 3(3) of the Bombay Motor Vehicles Tax Act, 1958 (hereinafter referred to as the said Act) even though the application is filed subsequently, the authority can consider the same. However, in the instant case, by order at Exh.B (Page 20) the application filed by the present petitioner came to be rejected. The said order is non speaking order and therefore, it is required to be interfered. The learned Counsel further submitted that the flying squad of respondent State had given report that the vehicle is lying idle. He invited my attention to pages no.14, 18 and 19 of the compilation and submitted that once that report was there, there was no reason for the authorities to reject petitioner's application. The learned Counsel further submitted that even the revisional authority has not properly considered his contention and erroneously rejected the application. Therefore, the learned Counsel submitted that looking to the hardship faced by the petitioner, this Court may interfere in the impugned judgment and order and grant relief as prayed for by the petitioner.

The learned A.G.P. invited my attention to the affidavit-in-reply filed at pages 32 to 42 of the compilation and submitted that the State was perfectly justified in levying the tax of Rs. 43,523/- and interest of Rs. 38,444/- which comes to Rs.81,967/- and the same is correct, as per the provisions of law. It is further submitted that as per the existing 3 provisions, the petitioner should have filed an application intimating that his vehicle is not plying and therefore, no tax be levied and such application should have been filed before the vehicle was stopped plying on the road. The learned A.G.P. submits that for the first time, the petitioner had filed application in 2007 which was hopelessly time barred. The authorities, after taking recourse to the relevant provisions of the said Act, came to the conclusion that the petitioner is liable to pay tax. The learned A.G.P. further submitted that the Transport Commissioner, being not satisfied with the case made out in the application, has rejected the application. In revision, the revisional authority, after appreciating the contentions of the petitioner, has rejected the revision. It is further submitted that though hearing of the revision was fixed on 9th May, 2008 and 29th May, 2008, and the petitioner was duly informed accordingly, he did not remain present. The next date of hearing was fixed on 26th June, 2008 on the request of the petitioner, and therefore, now it is not possible to accept the submission of the petitioner that the order in revision is passed ex parte. Therefore, the learned A.G.P. submitted that the petition is devoid of any merits and the same deserves to be rejected.

After hearing the learned Counsel for the petitioner and the learned A.G.P. for the respondents and after perusal of the reply filed by the respondents and the provisions of Section 3(3) of the said Act, I am of the considered view that the application of the petitioner was hopelessly time barred and for the first time, it was filed in 2007. In fact, the 4 petitioner has prayed not to levy tax for the period from 25th May, 1999 to 31st December, 2007. In fact, his application should have been on record before 25th May, 1999. However, it was an admitted position that the application was filed by the petitioner for the first time in 2007. It is true that the authority has power to consider even the subsequent application under Section 3(3) of the said Act but, it is on satisfaction of the said authority on the given facts of the case to entertain the application. In the instant case, the Transport Commissioner has considered the application under Section 3(3) of the said Act and rejected the same on 19th December, 2007. In revision proceedings, the petitioner did not remain present for hearing though particular date was fixed on his request. Apart from that, on perusal of the order passed in revision, I do not find any infirmity to calling interference under Article 227 of the Constitution of India.