M/S. DARRANG INDUSTRIAL CORPORATION, DARRANG, TEZP Vs. ASSAM BOARD OF REVENUE, GAUHATI AND OTHERS

JUDGEMENT

(1.) By this common judgment we propose to dispose of both Civil Rule Nos. 225/75 and 226/75 as they contain similar facts and identical questions of law.

(2.) Mr. J.P. Bhattacharjee, learned Advocate General, Nagaland, who appears on behalf of the petitioners in both the Civil Rules, has raised the following preliminary points and contends that he shall not burden this Court to go into the merits of the case as, in his opinion, a decision on the preliminary points will be enough for the purpose of this case.

(3.) Before we embark upon to consider the submission of the learned Counsel for the petitioners, it would be necessary to relate the facts of the case, in each Civil Rule. Civil Rule No. No. 225/75- Vehicles No. ASD 5448 bearing Engine No. JC-1077 and Chassis No. J 6 M 2-5-218631 was purchased by one Ram Suhasit Ojha under a hire-purchase agreement, the Hindusthan Motor Corporation Ltd. for short "the Corporation" cancelled the hire-purchase agreement and took possession of the said vehicle on 26.3.71 (Annexure-1 to the petition) that the vehicle was off-the-road and the same was lying in the garage of M/s Ashok Motors, Tezpur. The Corporation further informed that they could not submit the 'H' Form as the same could not be collected from the hirer. On 3.5.72, the Petitioner No. 1 purchased the said Engine and the Chassis from the Corporation as scarp materials. The District Transport Officer, Tezpur, Respondent No. 2. issued a demand Notice vide Memo No. DTO/3992/73 dated 7.11.73 (Annexure-II) to the petition calling upon it to pay the arrear dues of vehicle No. ASD 5448 amounting to Rs. 9,285.00 from 1.4.70 to 31.12.73 within 31.12.73. On receipt of the said notice, the petitioner No. 1 preferred an appeal before the Deputy Commissioner, Tezpur under section 17 of the Assam Motor Vehicles Taxation Act, 1936, for short "the Taxation Act" which was numbered as Misc. Appeal No. 25 of 1973. After registration of the appeal, the learned Deputy Commissioner called for the records of the case and also a report from the District Transport Office, Tezpur, Respondent No. 2. After hearing the appeal, the learned Deputy Commissioner by his order dated 4.2.74 allowed the appeal and set aside the order of the District Transport Officer, Tezpur. Thereafter, on 14.2.74, the District Transport Officer Tezpur, wrote a letter to the Commissioner of Transport, Assam intimating him about the result of the appeal and for taking further action in the matter. The Commissioner of Transport, Assam, Gauhati, Respondent No. 3 by the letter dated 5.3.74 (Annexure-IV to the petition) addressed to the Chairman, Assam Board of Revenue, Gauhati questioned the validity of the order passed by the Deputy Commissioner, Tezpur in the aforesaid appeal stating, inter alia, that the cases involved substantial amount of revenue by way of motor vehicle tax and requested him to set aside the order of the learned Deputy Commissioner alleging that the remission of taxes given by the learned Deputy Commissioner was without sufficient ground and also mentioned that the matter had evoked Public resentment and the same might be taken up suo-moto. The learned Board of Revenue treated the aforesaid letter of the Commissioner of Transport, Assam, Respondent No. 3, as a revision petition under section 17 of the Taxation Act and the learned Board by its order dated 11.3.74 (Annexure-V to the writ petition) called for the record of the case and issued notice upon the petitioner No. 1. Accordingly the learned Board of Revenue registered a revision case being case No. 2MVTA/74. The petitioner No. 1 duly appeared before the learned Board on receipt of the notice dated 19.6.75 and filed an affidavit contending inter alia that the petitioner was not liable to pay the arrear taxes and dues of the vehicle No. 5448 inasmuch as the said vehicle was purchased on 3.5.72 in an unserviceable and most dilapidated condition and that the said vehicle was under repair since the date of purchase and was not placed on the road for plying during the period for which the tax had been assessed. It was further contended that the assessment made by the District Transport Officer was arbitrary and based on conjectures and surmises. The learned Board of Revenue heard the revision application on 12.11.74 and by its judgment and order dated on 7.1.75 set aside the order of the Deputy Commissioner dated 4.2.74 and restored the order of the Respondent No. 2, District Transport Officer, Tezpur, dated 7.11.73. Civil Rule No. 226/75-The facts of the case in Civil Rule No. 226/75 are similar to that of Civil Rule No. 225/75, as stated above, except that the petitioner No. 1 purchased the vehicle No. ASD 5565 with the Engine No. JC 1439 and Chassis No. JSM 2-5-HM-218760 from the Hindustan Motor Corporation as scrap on 3.5.72 and at the time of the said purchase, the engine was in an unserviceable condition and the petitioner got the same re-assembled and made it serviceable. On 23.10.73, the vehicle was put on road in order to test its road-worthiness, while it was on test on 23.10.73, the Enforcement Inspector seized the vehicle and took the vehicle to the office of the Respondent No. 2, the District Transport Officer, Tezpur. On the very same date the petitioner No. 1 made a representation to the Deputy Commissioner, Tezpur for release of the vehicle and the learned Deputy Commissioner released the vehicle to the petitioner No. 1 on 25.10.73. On 2.11.73, the petitioner No. 1 applied for Form-E for registration of the vehicle after the vehicle in question became road-worthy. The District Transport Officer, on receipt of the said application, by his letter dated 7.11.73 bearing Memo No. DTO/3992/73 (Annexure-III to the writ petition) issued a Demand Notice calling upon it to pay the arrear dues of the vehicle from 1.1.70 to 31.12.73 amounting to Rs, 9, 896.00 within 31.12.73. The petitioner, thereafter, preferred an appeal before the learned Deputy Commissioner. Darrang at Tezpur under Sec. 17 of the Taxation Act against the aforesaid Demand Notice, who by his order dated 4.2.74 allowed the appeal by setting aside the order of the Respondent No. 2, District Transport Officer, holding that the demand of tax after 1.8.70 and prior to 30.9.73 was not valid. However, the petitioner was directed to pay the tax from the quarter commencing from 1.10.73 after which the ownership of the vehicle would be transferred formally in the name of the petitioner No. 1. On 14.2.74, as already stated in Civil Rule No. 225/75, the Respondent No. 2 addressed a letter to the Respondent No. 3 intimating the latter the result of the appeal and requesting him to take further action in the matter, who, in turn, addressed a letter dated 5.3.74 (Annexure-V to the writ petition) to the Chairman, Assam Board of Revenue making a similar request as has already been stated while narrating the case of Civil Rule No. 225/75 and accordingly the Revision petition No. 1 MVTA/74 was registered by the learned Board of Revenue. The petitioner No. 1 appeared before the learned Board of Revenue and filed affidavit. Both the revision petitions were heard together by the Board of Revenue and by its order dated 7.1.75 set aside the order of the learned Deputy Commissioner and restored the order passed by the Respondent No. 2, District Transport Officer. Both these orders have been impugned in this writ petitions by the petitioners.