Visheshwar Nath Khare and Markandey Katju, JJ. - (1.) PETITIONER is owner of motor vehicle No. UTM 1715 which is duly registered with the Regional Transport Authority under the provisions of the Motor Vehicle Act. It is alleged that the aforesaid vehicle was stolen on 1 -4 -1987 and subsequently the said vehicle was found parked within the premises of the police station Civil Lines, Etawah in the year 1992. On coming to know, the petitioner made an inquiry in that regard and subsequently moved an application before the IInd. Additional Chief Judicial Magistrate, Etawah for release of the said vehicle. The IInd Addl. Chief Judicial Magistrate, Etawah by an order dated 18 -12 -1992 directed to release the said vehicle in favour of the petitioner. It is further alleged that after the vehicle was released, the petitioner submitted an application to the Assistant Regional Transport Officer (Administration) Mainpuri who is the Taxation Officer under the U.P. Motor Vehicle Taxation Act, 1935 (hereinafter referred to as the Act) for writing off the road tax for the period beginning from 1 -4 -1987 to 30th September, 1993 under Rule 35 of the U.P. Motor Vehicle Taxation Rules (hereinafter referred to as the Rules) framed under the Act. The Taxation Officer written off tax for the period beginning from 11th of June, 1989 to 18th December, 1992. However he directed for payment of road tax for the period namely 1 -4 -1987 to 10 -6 -1989 and 19 -12 -1992 to 30 -9 -1993 amounting to Rs. 13,012/ -. The Assistant Regional Transport Officer further directed the petitioner to pay compensation at the rate of Rs. 10/ - per week by his order dated 18th August, 1993. It is against this order that the petitioner has come to this Court by means of this petition under Article 226 of the Constitution. Learned counsel for the petitioner urged that since the amount of arrears of tax for which the petitioner has applied for writing off was over and above Rs. 3,000/ - and as such the Taxation Officer ought to have referred the matter to the Transport Commissioner and as such the order to the extent, the Taxation Officer disallowed the exemption is without jurisdiction. For appreciating the argument of learned counsel for the petitioner it is necessary to quote relevant R.35 of the Rules, which is as under: 35. Write off of tax - -(1) Where the Taxation Officer is, on an application of the owner of motor vehicle or otherwise, satisfied after such inquiries as may be prescribed by the Transport Commissioner that a motor vehicle has not been used in Uttar Pradesh for a continuous period of not less than three months since the tax or the installment of tax was last paid, he may exempt the owner of motor vehicles from payment of arrears of tax and write off the amount of such arrears upto a maximum of Rs. 3,000/ - under intimation to the Transport Commissioner and where the amount of arrears of tax exceeds rupees three thousand refer the matter to the Transport Commissioner or the Deputy Transport Commissioner (Administration) ....... ....... A perusal of the aforesaid rule shows that if the Taxation Officer is satisfied that a motor vehicle has not been used for particular period of time he may exempt the owner of the vehicle from payment of arrears of tax and write -off the amount of such arrears upto maximum of Rs. 3,000/ - and where the amount of arrears of tax exceeds Rs. 3,000/ - he may refer the matter to the Transport Commissioner. In the present case the Taxation Officer by the impugned order has written -off the arrears of road tax for the period beginning from 11 -6 -1989 to 18 -12 -1992 which is much more than above Rs. 3,000/ - and the extent Rs. 13,012/ -. From this it would be seen that the Taxation Officer had no jurisdiction under the Rules to write off the amount of arrears of road tax for the period 11 -6 -1989 to 18 -12 -1992 which was above to Rs. 3,000/ -. Thus, the order passed by the Taxation Officer exempting the petitioner from the payment of arrears of tax which was above to Rs. 3,000/ - was without jurisdiction. And further the order rejecting the claim of the petitioner which was above Rs. 3,000/ - was also without jurisdiction. In both the cases, he ought to have referred the matter to the Transport Commissioner for writing off the amount of arrears of tax which was admittedly over and above Rs. 3,000/ -. Under these circumstances the question which arises for consideration is whether a person, who is beneficiary under an order, which is totally without jurisdiction, can challenge the order to the extent it disallowed the exemption. In fact the impugned order is one and the whole order has to be set -aside as being without jurisdiction. But the petitioner prays for quashing only that part of the order which disallowed the exemption of arrears of tax, it is well recognised principle that the jurisdiction of the High Court under Article 226 of the Constitution is equitable jurisdiction and no person is entitled to invoke it unless he has case in equity. Where a person has been benefited by an order cannot assail the said order as without jurisdiction to the extent it refuses relief to him. In view of this it is not a fit case which call for interference in writ jurisdiction under Article 226 of the Constitution
(2.) LEARNED counsel for the petitioner then urged that under section 13 of the Act, a Taxation Officer has no power to impose penalty which is more than Rs. three hundred, therefore, the impugned order to the extent it directs the petitioner to deposit compensation at the rate of Rs. 10/ - per week is without jurisdiction. This argument has also no merit Under Section 5 of the Act in case there is any delay in payment of tax it is open to the Taxation Officer to impose compensation to the extent of hundred per cent. In the present case what has been awarded is compensation under section 5 of the Act and not awarded under section 13 of the Act. Thus, we find that this part of the order does not suffer from any infirmity. Lastly, learned counsel for the petitioner urged that the petitioner has not plied the vehicle for over six years and as such is not in position to pay the entire arrears of tax immediately. It is prayed that the petitioner may be permitted to pay entire arrears of tax in two installments. It is well recognised principle that no order in the nature of interim order can be passed while disposing of a writ petition However, seeing the special facts and circumstances of this case, we feel that the petitioner may be permitted to deposit ensure arrears of tax in two equal installments to which learned standing counsel has no objection. We accordingly direct that the proceedings for realisation of impugned arrears of tax shall remain stayed for period of four months from today and the petitioner shall deposit entire arrears of tax in two equal installments The first installment shall be payable within six week from the date of receipt of certified copy of this order and second installment shall be payable by him on or before 21st of January, 1994. In case the amount is not paid within stipulated period this order staying the recovery proceeding for period of four months shall stand automatically vacated and it will be open to the respondent to realise the entire outstanding dues as arrears of land revenue in accordance with law With the above directions, the pennon is dismissed;