- (1.) THE Court : The petitioner in this WP under art.226 of the Constitution dated August 6, 2012 is seeking the following principal reliefs:- "a) A writ of Mandamus commanding the respondents their agents and/or their servants more particularly the respondent nos. 2, 3 and 4 to exempt the penalties of arrear Road Tax amounting to Rs.43,841.00 and any further penalty if any imposed and issue fit certificate and to allow the vehicle being WB NO.63/2925 to ply on the Road without any delay. b) A writ in the nature of Mandamus commanding the respondent their agents and/or their servants to set aside and quash the impugned Memo dated 15/12/2011 issued by the respondent no.2. "
(2.) THE second respondent in the WP is the following:- "The District Magistrate cum District Collector, Coach Behar, West Bengal; " and the memo dated December 15, 2011 referred to in prayer (b) is at p.23 of the WP. The relevant parts of the memo are quoted below:- "The undersigned is to inform her that the exemption from payment of penalties of arrear Road Tax amounting to Rs,43,841.00 (Rupees forty three thousand eight hundred forty one) only as sought for vide her prayer under reference has not been granted. She is, therefore, directed to deposit the outstanding amount without further delay. " The petitioner was liable to pay tax on a vehicle No.WB-63-2925 under s.3 of the West Bengal Motor Vehicles Tax Act, 1979. She did not pay tax and ascertained from the office of the Taxing Officer concerned that she incurred a liability to pay Rs.68,000 tax and penalty. She made an application dated September 30, 2011 for exempting her from payment of the penalty. In response the Taxing Officer wrote the memo dated December 15, 2011. The questions are whether the petitioner was entitled to apply for exemption of the penalty, and whether any Authority had power to decide the question of exemption. Referring to the provisions of sub-s.(3) of s.11A of the West Bengal Motor Vehicles Tax Act, 1979, Mr Roy appearing for the petitioner has submitted that the request for exemption of penalty was lawfully entertainable. Referring to the provisions of s.9 of the Act, Mr Deb Roy appearing for the State has submitted that since the memo is an order passed by the Taxing Officer under the Act, the petitioner 's remedy, if any, was an appeal to the appellate authority. His further submission is that since the petitioner did not appeal within the prescribed time, the WP is not maintainable. No provision of the West Bengal Motor Vehicles Tax Act, 1979 created any right of the petitioner to apply for exemption of penalty payable under s.11 thereof for non-payment of tax on the vehicle payable under s.3 of the Act; and no provision of the Act empowered any Authority to exempt penalty that the petitioner became liable to pay. It is only in certain cases and on an application under s.13 of the Act that the Taxing Officer can refund or remit a part of the tax for any period.
(3.) SECTION 11A of the Act has absolutely no manner of application to the petitioner 's case. Section 11A empowers the State Government to specify the rate of penalty for non-payment of tax under the Act payable on certain categories of vehicles. The petitioner 's vehicle does not fall in any one of those categories. Sub-section (3) of s.11A empowers the State Government to exempt, totally or partially, any motor vehicle from the payment of any fine imposed for non-payment of tax under the Act. The provisions of sub-s.(3) cannot be read out of context for the purposes of any section other than s.11A. They apply only to the categories of vehicles to which the provisions of sub-ss.(1) and (2) of s.11A apply. I am unable to appreciate the argument that the petitioner 's remedy, if any, was an appeal under s.9 of the Act. An appeal would have been entertainable only if the things stated in the memo dated December 15, 2011 constituted an order made by the Taxing Officer under any provision of the Act.;