- (1.) THIS revision has been filed by the Motor owner Shri Haji Mulla Rasool Bhai under the proviso to sub-sec. (2) of sec. 14 of the Rajasthan Motor Vehicles Taxation Act, 1951 (hereinafter referred to as the Act), against an appellate order of the Director of Transport Rajasthan, Jaipur dated 26. 10. 1958.
(2.) THE relevants facts are that the petitioner is the motor owner and admittedly owned 12 vehicles (buses) for which recovery of tax is being made from him. It is also an admitted fact that he did not pay the tax due on these vehicles for the period under dispute. THE Taxation Officer Udaipur thereupon proceeded under sec. 13 of the Act and forwarded to the Collector, Udaipur, a certificate specifying the amount of tax due from the petitioner and requesting its recovery as if it were an arrear or land revenue. THE petitioner carried the matter in appeal before the Director of Transport. THE learned Director dismissed the appeal by his aforesaid Order and this revision has been filed against that order of the Director. Several grounds have been urged before us. In the first instance it is contended that the petitioner under sec. 13 of the Act has a right to refuse to pay the tax. It was then urged that both the Taxation Officer and the Director of the Transport were in error when they were trying to collect the tax which was not due. In support of this contention it was stated that the vehicles in respect of which tax was being recovered had no registration certificate or certificate of fitness current in respect to them. As such they cannot be treated as vehicles kept in Rajasthan for use. It was also urged that the Taxation Officer before forwarding the certificate to the Collector did not give an opportunity to the petitioner to satisfy him that no tax was due from the petitioner, and finally it was urged that the compounding fee of Rs. 50/- was imposed on the petitioner without a request from him that the case be compounded. We proceed to dispose of these points in the order they have been raised. We are afraid it cannot be a correct interpretation of sec. 13 that petitioner has a right under the provisions of that section to refuse to pay tax. On the contrary, such an action of the petitioner attracts sec. 13 which clearly provides in its terms that the Taxation Officer may proceed to recover the tax from a person refusing to pay tax on his vehicle by means of a certificate to be forwarded to the Collector to recover the tax as if it were an arrear of land revenue. This contention therefore has no force whatsoever and therefore we pass on to consider the next contention which is that the learned Taxation Officer did not give the petitioner an opportunity to satisfy him that no tax was due from the petitioner. We have carefully read sec. 13 of the Act and we cannot construe it as having the effect of casting a responsibility on the Taxation Officer to give an opportunity to a person to satisfy that he was not liable to pay the tax demanded from him. However, from the record we find that the Director of Transport has carefully examined the petitioner's contention that he was not keeping these vehicles for use in Rajasthan. He has found that the petitioner was keeping these vehicles for use in Rajasthan and obtained temporary permits for them. In this connection we have been referred to the decision of the Rajasthan High Court reported in RLW 1956 page 264 wherein the scheme of the entire Motor Vehicles Taxation Act has been examined and construing sec. 4 of the Act Mr. Justice Modi who delivered the above decision has observed "from the language of the section (sec. 4 of the Act) it clearly appears to us that the vehicle may not have been actually used, but if it was being kept for use in this State, then too the liability for tax would arise under this section. This intention seems to us to have been made further clear in the following words occurring at the end of sub-sec. (1) namely "such tax shall be payable annually notwithstanding that the motor venicle may from time to time cease to be used". It is true that in the second sub-section it is further provided that an owner who keeps a motor vehicle with respect to which the certificate of fitness and the certificate of registration are current, shall be presumed to keep such vehicle for use so far as the purposes of the present Act are concerned. It is not permissible, in our opinion, to argue from this that where a certificate of fitness or a certificate of registration may not have been granted or received, the vehicle should be held not to have been in use or kept for use in this State within the meaning of sec. 4 of the Act merely on this account. " It was further observed in the decision "we also wish to point out in this connection that the intendment of the Act having regard to the provisions set forth above appears to us to be that the liability to pay the tax arises as soon as the person becomes the owner of a vehicle which he uses or keeps for use in Rajasthan. The certificate of fitness or the certificate of registration to our mind have no essential connection with the liability to pay the tax under this Act. " In view of these clear observations of the Rajasthan High Court we can only hold that the learned Director of Transport took the correct view of the case before him and rightly held that the petitioner was liable to pay the tax. The Taxation Officer was also right in proceeding to recover the tax under sec. 13 of the Act. We have now been left with the contention that the compounding fee has been wrongly imposed. We find that the learned Director of Transport imposed this penalty under sub-sec. (2) of sec. 5 of the Act. This provision of law authorises an Officer empowered by the Government in this behalf to accept from the owner of a motor vehicle on which tax has not been paid in addition to the tax a penalty not exceeding Rs. 50/- for late payment of tax as mentioned in sub-clauses (a) and (b) of this sub-section. This penalty is to be in lieu of prosecution under sec. 11. The position therefore is that in this case the petitioner was liable to be prosecuted under sec. 11 of the Act and instead of being prosecuted the learned Director of Transport proceeded to impose this penalty of Rs. 50/- in each case for non-payment of tax. We are afraid the learned Director of Transport was in error here. He is authorised to accept a penalty by the law only when prosecution is given up and the implication appears to be that the request comes from the defaulter. It is the defaulter's choice to face prosecution or to pay this penalty. As the defaulter has not been given chance to choose between the two we feel that this penalty has been erroneously imposed upon him. In the result we accept this revision to the extent of modifying the impugned order to the effect that no penalty shall be charged from the petitioner until he himself agrees to pay the said penalty. It will, however, be open to the Taxation Officer to direct the prosecuting Officer in the event of his refusing to get the case so composed. The revision is rejected on all other points. .;