GOVINDA BHAT, J. - (1.) This petition under Art.226 of the Constitution of India is directed against the order of the first respondent made in Tax Appeal No.18./1960 on his file preferred against the order of the second respondent made on 11-5-1960 under the Motor Vehicles Taxation Act 1957 (Mysore Act 35 of 1957) hereinafter referred to as 'The Act'.
(2.) The petitioner is the registeed owner of a motor vehicle No.MYF 2615 which he was operating as a stage carriage on the route between Tayaloor and Chickballapur via Mulbagal under a permit issued by competent authority under the Motor Vehicles Act. S.3 read with S.4 of the Act makes the registered owner or person having possession or control of the motor vehicle kept in the State, liable to pay tax at the rates specified in Part A of the Schedule thereto for a quarter, half year or year at his choice. The rate of tax varies with the class of the vehicle. The petitioner paid tax on his vehicle at the rates applicable to motor vehicles plying for hire and used for the transport of passengers and in respect of which permits have been issued under the Motor Vehicles Act, as specified in Item 4 of Part A of the Schedule, up to the end of the quarter ended on 30-6-1959 but he failed to pay the tax for the quarters ended 30-9-1959 and 31-12-1959. On 5-2-1960 he paid tax for the months of February and March 1960. On 11-5-1960, he was called upon to pay a sum of Rs. 1,909 assessed as tax arrears for the period from 1-7-1959 to 5-2-1960 and a further sum of Rs.3,735 levied as penalty under S.12, by a notice of demand issued by the second respondent. Against the said order, the petitioner preferred Tax Appeal No. 18 of 1960 before the first respondent contending that the imposition of penalty, as also the demand for tax, are illegal on the grounds inter alia, that owing to mechanical trouble he had kept his vehicle not for use but for repairs at Madanapalli in Andhra Pradesh on 30-6-1959, that commencing from 1-7-1959 till 5-2-1960 he did not use the vehicle on any road in the Mysore State, that the fitness certificate in respect of the said vehicle had expired on 30-6-1959 and was renewed only on 5-2-1960 and that on 1-7-1959 he had surrendered the Registration Certificate to the 2nd respondent after intimating his intention not to operate the vehicle. In support of the facts on which he relied, he filed an affidavit along with his memorandum of appeal. The first respondent did not enquire into the facts relied on by the petitioner in support of his contention nor deal with them. He held the petitioner liable to pay tax on the sole ground that the certificate of registration of his vehicle was current and the petitioner did not satisfy the conditions prescribed either for refund under Rule 23 or for grant of exemption under S.16 Notification. However, he reduced the penalty to Rs.1,500. Aggrieved by the said order, the petitioner has preferred the above writ petition and has urged the same grounds as were urged before the first respondent.
(3.) The first question that arises for our consideration is whether the imposition of penalty under S.12 of the Act by the second respondent is legal.; In Chamundi Construction Co. v. State of Mysore, 1961 Mys.L.J. 341, this Court held that, the penalty which can be imposed under Sec.12 of the Act is really in the nature of a fine, that it is only after a person is tried and convicted that the fine may be imposed on him and that S.12 does not confer any jurisdiction on the RTO. to impose the fine. In view of the said decision, it is not contended by the learned Government Pleader appearing for the respondent that the penalty imposed on the petitioner is legal. Following the said decision, we hold that the levy of penalty of the sum of Rs.1,500 on the petitioner is without jurisdiction and therefore, liable to be quashed.;