REGIONAL TRANSPORT OFFICER Vs. N.V.MOTOR SERVICE

JUDGEMENT

(1.) Though the High Court is vested with jurisdiction to call for the records of a case decided by any subordinate Court suo motu, it is not often that this power is exercised since, generally, it is left to the parties to resort to the appellate Court or the revisional Court on their initiative. But this Court has, in these proceedings, taken up in revision suo motu, the orders of the Court below passed on interim applications moved before that Court when this Court was moved by C. M. P. No. 13513 of 1972 to transfer four cases pending in the Court of Munsiff, Kozhikode - 1 to the file of this Court. This motion was made by the Regional Transport Officer, Kozhikode under certain peculiar circumstances and I think it is profitable to state those circumstances here to understand the background of the suits in which the interim applications were filed.

(2.) The Kerala Motor Vehicles (Taxation of Passengers and Goods) Act 25 of 1963 (hereinafter called as "the Act") came into force on 1-7-1963. That Act levied a tax on all passengers, luggage and goods carried by stage carriages and goods transported by public carriages. Ever since the passing of this enactment, it has been subjected to repeated attacks in this Court on the ground of constitutional invalidity. A good number of operators approached this Court by means of petitions under Art.226 of the Constitution of India and obtained stay of collection of tax with the result in the case of such operators the tax under the Act is due for several years and in the case of some from the commencement of the Act itself. Ultimately the matter was considered by this Court in Thomman & Others v. Regional Transport Officer, Ernakulam. It was held by this Court that the incidence of tax under the enactment was not on the operators but on the passengers and goods and that was well within the competence of the State Legislature. The contention that the statute infringed Art.14 and 19 of the Constitution of India was rejected by this Court. But the Court directed that provision must be made for the collection of the tax from the passenger as tax specifying the quantum calculated and computed on the basis of the provisions in the Act. The Government was directed that this should be done as expeditiously as possible. Thereafter Government issued a notification dated 29-4-1968 in a draft form purporting to give directions to the State Transput Authority. That draft notification purported to clarify that the fare rate fixed from 1-7-1963 was inclusive of tax and that such tax is collected from the passengers. That notification was attacked in this Court. But this Court dismissed the petitions challenging the notification on the assurance given by the Government that enforcement of tax will not be made pursuant to it. Act 34 of 1971 which amended the parent Act purported to remedy the situation. That again was attacked before this Court by a good number of operators and this Court, in the decision in Mayilvahanam Motor Service v. State of Kerala and Others ( 1972 KLT 564 ) dismissed the petitions. It is said that there are some appeals pending in the Supreme Court against these dismissals. It is also said that the Supreme Court was moved by some of the operators for stay. It also appears that when the authorities moved to collect the tax from the operators after all these proceedings, that naturally met with opposition from the operators, who, by this time, had heavy arrears to pay. They adopted an agitational approach to the problem. That forced the Government to consider the question of giving some relief in the matter of payment. S.4 of the Act provides for composition of the tax payable by an operator and the conditions under which such composition is to be allowed are specified in the schedule to the Act. Clause.3 of the schedule specifies the method of composition and Clause.4 which was added to the Original schedule by notification dated 16th April, 1968 provides that Government may, if in its opinion, it is necessary in the public interest so to do, by notification in Government Gazette, grant extension of time for payment of the composition fee in relation to any quarter and in respect of any vehicle. Purporting to exercise powers under this clause of the schedule, the Government granted relief to all the operators by permitting them to pay the amount due from them as arrears of tax in several instalments and many operators, it is said, have taken advantage of this.

(3.) The plaintiffs in the four Suits in the Court of the Munsiff, Kozhikode 1 are all operators of vehicles which attract tax under the Act. All the suits are similar in character and the allegations in all the suits are identical. The suits are for permanent injunction restraining the defendant in the suits, the Regional Transport Officer, Kozhikode, and persons acting under his directions from assessing tax otherwise than in accordance with the provisions of the Act and from taking or continuing any steps under the Revenue Recovery Act or by prosecution or by any other method to realise any amount from the plaintiffs as tax under the Act. The plaints appear to be quite simple. The relevant averments in the plaint are that the plaintiff has not applied to the officer for composition under S.4 of the Act, which alone give jurisdiction to impose the fees due by way of composition, the prescribed Officer has not taken any steps to assess or recover any tax, that the defendant has directed to produce registration certificate of the stage carriage owned by the plaintiff and when they were produced, endorsements were made therein stating that certain amounts were due as tax and that act of endorsement is not within the power of the officer concerned. These are the only relevant averments in the plaint and it is on these that the Court has been approached to stay recovery of tax. Interim orders were passed by the Court staying the collection of tax. Thereupon the respondent appeared and filed counter affidavits in these cases stating that the plaintiffs in the suits have filed compounding applications under S.4 of the Act, that these applications were considered and pursuant to the provisions in the Schedule to the Act tax was levied in accordance with the compounding applications and such tax is now sought to be recovered. Therefore, according to the respondent, there is no scope for any injunction. The respondent also moved a petition in all the cases praying that the plaint may be rejected under the provisions of O.7 R.11(d) of the Code of Civil Procedure. It was contended that on the facts disclosed and averments made the suit must be found to be barred by the provision in S.80 of the Civil Procedure Code. It was an act of a public officer carried out in his official capacity that was impugned in the suit and no notice under S.80 of the Code of Civil Procedure was served in accordance with the, section prior to the filing of the suit which was contended to be mandatory. The Court below, by a common order, dismissed the applications for rejection of the plaints and made the injunction order absolute. This is the order which is taken up in revision by this Court and that was so taken up when the petition for transfer A of cases came up before this Court.