Anshuman Singh, J. - (1.) -By means; of the present petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 26-2-1992 passed by the respondent no. 1 rejecting the application for setting aside the ex parte assessment order
(2.) WE have heard Sri A. R. Dubey, learned counsel for the petitioner and the learned Standing Counsel, who represents all the respondents. Since there is no private party and with the consent of the counsel for the parties and also as provided under the second proviso to rule 2 of Chapter XXII of the rules of the court, the petition is being disposed of finally at the admission stage. Facts giving rise to the present petition briefly stated are that the petitioner is the owner of vehicle no. U.T.N. 4793 which was being plied on the basis of permanent stage carriage permit no. S.T. 781 on the Varanasi- Dharauli via Bein-Chandauli route which falls within the region of the Regional Transport Authority, Varanasi- Petit;oner has been paying passenger tax and road tax on lump sum basis; as contemplated under rule 5 of the U. P. Motor Gadi (Yatri Kar) Niyamwawali, 1962 and according to him no default was made in payment of the same. It has further been alleged that the petitioners' permits was renewed till 1984 and thereafter temporary permits were issued from time to time pending disposal of the renewal application. It is alleged that since the petitioner was granted no temporary permit after 20th March, 1989 he surrendered the entire papers and according to the petitioner he did not ply his vehicle during the period 20-3-1989 to 4-5- 1990 and 5-5-1990 to 3-9-1990. It has further been alleged that during the aforesaid period, no complaint was made for plying the vehicle by the Transport department. It has been alleged that without any intimation/notice to the petitioner, an ex parte assessment order appears to have been passed against the petitioner under which a liability of Rs. 55,246 00 for the period 20-3-1989 to 4-5-1990 and 5-5-1990 to 3-9-1990 has been created. It has also been alleged that inspite of the repeated requests made by the petitioner, the copy of ex parte assessment order which was passed without any opportunity to the petitioner was not supplied by the respondents to the petitioner. Since the ex parte assessment order was passed without any opportunity to the petitioner and he 'was never afforded any opportunity to contest the assessment proceedings and after coming to know about the ex parte assessment order, he made application dated 26-2-1992 before the respondent no 1 for setting aside the ex parte assessment order, a copy of which has been filed as Annexure 1 to the writ petition. The said application filed by the petitioner dated 26-2-1992 was rejected by the respondent no 1 on the same day on the ground that there was no provision for review under the Act, a copy of the order has been annexed as Annexure "2" to the writ petition Mr. A. R. Dubey, learned counsel for the petitioner contended that in view of the decision of this court in the case of Shyam Behari Tewari v. Goods Tax Officer, Allahabad, 1985 UPTC 638, the passenger Tax Officer, Varanasi, respondent no. 1 was bound to entertain the application for setting aside the ex parte assessment order which was passed without affording any opportunity of hearing to the petitioner and the order dated 26-2-1992 refusing to reopen the assessment order is wholly illegal, arbitrary and liable to be quashed.
(3.) IT would not be out of place t? refer to certain facts of the case of Shyam Behari Tewari (supra). In title said case an ex parte order of assessment was passed by the Goods Tax Officer which was sought to be quashed in exercise of writ jurisdiction under Article 226 of the Constitution of India. A Division Bench of this court declined to Interfere in the said case on the ground of alternative remedy as the ex parte order passed by the Goods Tax Officer was appeallable order under section 18 (2) (b) of the U. P. Motor Gadi (Mai Kar) Adhiniyam, 1964. However, the question which arose for consideration in the said case was, whether inspite of the fact that there being no provision for malting an application for setting aside the ex parte order under the Act and whether an application wis maintainable and the authorities had jurisdiction to re hear the matter. Reliance was placed on the decision of Supreme Court in the case of Grindlays Bank v Central Govt. Industrial Tribunal, AIR. 1981 SC 606, in which it was held that the application for setting aside the ex parte order was maintainable inspite of the fact that there was no such provision under the Act. Laying down the aforesaid law the reliance was placed on the following observations made in the case of Grindlays Bank by the Supreme Court : "IT is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there, are indications to the contrary." The view taken by the Supreme Court in the Grindlays Bank (supra) was again reiterated in the case of Satnam Varma v. Union of India, AIR 1985 SC 294. From the aforesaid, it is abundantly clear that in view of the decision of this court in Shyam Behari Tewari (supra), the application for setting aside an ex parte assessment order passed by the Passenger Tax Officer, Varanasi against the petitioner was legally maintainable and the same could not have been rejected on the ground that there was no such provision under the Act- Therefore, the order passed by the respondent no. 1, a copy of which is Annexure-2 to the writ petition cannot be sustained and deserves to be quashed.;