- (1.) PETITIONER, the owner of a Motor Vehicle bearing No. URB 4123, which he has been plying on the basis of regular, contract Carriage permit granted by the Transport Authority. The passenger Tax Officer, Bulandshahr, it is alleged, passed an ex pane assessment order there by levying passenger tax amounting to Rs. 39,780 for the period from 24-4-1995 to 10-9-1996 and, it is in consequence of the said order that a recovery certificate dated 9-5-1999 came to be issued by the Pas senger Tax Officer, Bulandshahr. Copy of the assessment order has not been filed and it is alleged that the assessment order was ex parte and an application dated 30-7-1999 has been filed by the petitioner for setting aside the ex parte assessment order. The relief claimed herein is that the respondents be adjured to decide the ap plication/objection dated 30-7-1999 and assess the passenger tax afresh after afford ing opportunity of hearing to the petitioner and not to give effect to the ex pane assessment order as well as the recovery certificate dated 9-5-1992.
(2.) SRI K. M. Sahai, learned Standing Counsel appearing for the respondents canvassed by way of preliminary objection that the petitioner has an alternative remedy of appeal under Section 13 of the Motor Gari Yatrik Adhiniyam, 1962 (hereinafter referred to as Adhiniyam' ). The learned Standing Counsel further pressed into service the submission that the Adhiniyam does not provide any remedy for setting aside the ex pane assess ment order passed under the provisions of the Adhiniyam apart from the remedy of appeal but such applications could be entertained in accordance with the decisions of this Court. We have gone into the tenability of the respective submissions made across the Bar. With a view to appreciating the question, reference may be made to the relevant provisions of the Adhiniyam bearing on the controversy involved in this petition. Section 3 of the Adhiniyam provides for levy of taxes on passenger carried by stage carriages. Section 4 of the Adhiniyam empowers the State Govern ment to grant exemption and Section 5 envisages the method of collection of tax. Section 6 of the Adhiniyam casts an obliga tion on the part of an operator to submit or cause to be submitted to the Tax Officer or the Prescribed Authority a return in the prescribed form and manner at such inter val as may be prescribed. If the operator fails without reasonable cause, to submit a return within the time allowed by or under the Act, the Tax Officer, it is further provided in Section 6, may direct that such operator shall by way of penalty pay in addition to the amount of tax payable by him, a sum not exceeding ten rupees in respect of each stage carriage for everyday during which the default continues provided that the penalty so directed to be paid shall not exceed one hundred rupees per stage carriage. Section 8 provides the procedure for assessment in the absence of return or when return is incorrect or in complete. It is laid down therein that where no returns have been submitted by the operator in respect of any stage carriage for any month or portion thereof or where the returns submitted appear to the Tax Officer to be incorrect or incomplete, he shall, after giving the operator a reasonable opportunity, in the former case, of making his representation, and in the latter case, of establishing the correct ness and completeness of the returns, determine the sum payable to the State Government by the Operator byway of tax for such month or portion thereof. Section 10 provides for penalty for non- payment of tax and Section 11 provides for recovery of arrears of tax, and penalty as arrears of land revenue. Section 13 provides for ap peal. The Adhiniyam and the Rules made thereunder admittedly do not provide for setting aside an ex pane assessment order. The learned Counsel for the petitioner, however, submitted that although provision providing for a remedy of setting aside an ex pane assessment order is con spicuous by its absence in the Adhiniyam and the Rules made thereunder, the pas senger tax officer has incidental and ancillary powers to set aside an ex pane assess ment order on good and sufficient cause being shown for setting aside an ex pane order. In this connection, reference may be made to Grindlays Bank v. Central Govern ment Industrial Tribunal, AIR 1981 SC 606. That was a case where an application had been made for setting aside an ex pane award given under the Industrial Disputes Act. The question arose whether in the absence of a specific provision for set ting aside an ex pane award it was open to the officer concerned to set it aside. It was held: "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 a 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 law laid down in the above decision was reiterated by the Supreme Court in Satnam Varma v. Union of India, AIR 1985 SC294. In Jyotsna Arvind Kumar Shah and Others. v. Bombay Hospital Trust, JT1999 (5) SC 228, a question arose as to whether Consumer Disputes Redressal Commis sion, Maharashtra (In short the 'state Commission') had the power to set aside ex pane reasoned Order passed by it on merits. The facts of the case were that the State Commission passed ex pane order on merits awarding compensation. The Bombay Hospital Trust filed writ petition in the High Court of Bombay. While dis missing the writ petition, the High Court observed that an application could be made before the State Commission for setting aside the ex pane order "if permis sible under the law". Consequently, Misc. application was made before the State Commission. The application for setting aside the ex pane order was allowed by the State Commission and the National Com mission rejected the revision preferred against such order. The Supreme Court held as under: "the State Commission, however, fell into an error in not bearing in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex pane reasoned order. It is also seen from the order of the State Commission that it was influenced by the concluding portion of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the appellate authority Or make an appropriate ap plication before the- State Commission for set ting aside the ex pane order, if permissible under the law. Here again, the State Commis sion failed to appreciate that the observation of the High Court would help the respondent if permissible under the law. If the law does not permit the respondent to move the application for setting aside the ex. parte order, which ap pears to be the position, the order of the State Commission setting aside the ex parte order cannot be sustained. As stated earlier, there is no dispute that there is no provision in the Act enabling the State Commission to set aside an ex parte order. "
(3.) A similar question in connection with the powers of the revising authority under the U. P. Sales Tax Act came up for consideration before a Division Bench of this Court in M. P. Poddar and Co. v. Addi tional Judge, 1982 U. P. Tax Cases 117. It was held that notwithstanding no provision being contained in the U. P. Sales Tax Act for setting aside an ex parte order passed by the revising authority, the revising authority had jurisdiction to set aside an ex parte order. In Shyam Bihari Tiwari v. Goods Tax Officer, All. 1985 UPTC 638, a Division Bench of this Court applied the principles laid down by the Supreme Court in Grindley Bank v. Central Govern ment Industrial Tribunal as reiterated in Satnam Varma v. Union of India, in Motor Vehicle Tax Act and held that although the Adhiniyam and the Rules made there under did not expressly provide for an ex. parte assessment order being set aside on good cause being shown, yet the Tax Of ficer would be deemed to have incidental and ancillary powers to set aside an ex parte order of assessment on application being made in that behalf and on good and sufficient cause being shown for non-ap pearance. The Legislature in its wisdom has not provided, unlike the provisions contained in other statutes e. g. Section 101 of the U. P. Land Revenue Act, 1901, the remedy for setting aside an ex pane order of assessment on proof of sufficient cause' for non-appearance and on show ing that the applicant has 'suffered sub stantial prejudice'. Instead, remedy of ap peal has been provided under Section 13 of the Adhiniyam which invests the Appel late Authority will wide powers to "pass orders as it thinks fit" and as provided in Rule 11 of the Motor Gari Yatri Kar Niyamawali, 1962, the appellate Court is clothed with the power of "hold such en quiry as may appear to it to be necessary or it may direct such enquiry to beheld by the officer against whose decision, the appeal has been filed". The appellate authority, it might be observed, is also equipped with the power, by virtue of proviso to sub-sec tion (3) of Section 13 of the Adhiniyam, to extend the 60 days' period of limitation prescribed therein for filing the appeal "for good cause shown" for not filing ap peal within the prescribed period. The Supreme Court decision in Grindley Bank reiterated in Satnam Verma (supra) was a case under the Industrial Disputes Act and the proposition laid down therein were formulated in the context of the Act and the Rules referred to there in regard being had to the nature and scope of powers of the Tribunal. It need hardly be said that an award given by the Industrial Tribunal is not appealable and in the circumstances of the case, the Supreme Court held that the Tribunal should be considered as invested with 'incidental' or 'ancillary' power to set aside an ex pane award "for the purposes of doing justice between the parties". The view so taken by the Apex Court in the cases referred to above, is to be read in the context of the provisions contained in the Adhiniyam and the Rules we are con cerned with in the present case wherein an effective remedy of appeal has been provided with wide power vested in the appellate Court to "pass such order as it thinks fit". The decision in Jyotsna Arvind Kumar Shah (supra) has been rendered by a two Judge Bench of the Apex Court and so were the decisions rendered in Grindley Bank and Satnam Varma (supra ). In the above conspectus, we would have stirred a middle way of referring the matter to a larger Bench but reckoning into con sideration that the petitioner has an effec tive alternative remedy of appeal we do not feel pursuaded to entertain this peti tion as was done by the Division Bench in Shyam Bihari Tiwari (supra), even though it held that an application for setting aside an ex parte order of assessment would be maintainable.;