K. JAYARAJA BALLAL Vs. COMMISSIONER OF BOMBAY DIVISION

JUDGEMENT

(1.) The petitioner is a contract carriage operator on the Man -galore -Bombay route both ways. He had submitted returns in Form No. II prescribed under the Bombay Motor Vehicles (Taxation of Passengers) Rules, 1958 (hereinafter called 'the Rules') framed under Section 22 of the Bombay Motor Vehicles (Taxation of Passengers) Act, 1958 (hereinafter called 'the Act'), because he was running contract carriage services under contract carriage permits issued by the Transport Authority in the State of Karnataka. These returns were submitted by him under Section 4 of the Act. On receipt of these returns, respondent No. 2 -the Tax Officer issued notice to the petitioner calling upon him to establish the correctness and completeness of the returns submitted by him under Section 6(b) of the Act. It is alleged by the petitioner that on receipt of this notice, he produced accounts maintained by him. But respondent No. 2 -the Tax Officer refused to accept them and proceeded to assess the tax for the years 1969 -70, 1970 -71 and 1971 -72, and passed the order, exh. A, on July 24, 1973. The petitioner, aggrieved by the order, went in appeal to the Commissioner, Bombay Division, respondent No. 1, under Section 11 of the Act. In appeal, the petitioner contended firstly that the Tax Officer ought to have assessed the tax for each month or a portion thereof, and inasmuch as in the instant case, the tax was assessed on yearly basis, the assessment was not in accordance with the provisions of the Act. He also contended before the Commissioner that inasmuch as the order passed by respondent No. 2 was beyond the period of limitation of one year provided for under Section 7 of the Act, the assessment was barred by limitation. The Commissioner -respondent No. 1, however, negativing both these contentions, dismissed the appeal, subject to the modification only in one respect and that was that he found that so far as the assessment of tax for the month of April 1971 was concerned, it was barred by limitation. The order passed by the Commissioner is at exh. B. Being aggrieved by this order, the petitioner has come to this Court under Articles 226 and 227 of the Constitution of India. It may be stated here that admittedly, though against the order of dismissal of appeal by the Commissioner, the petitioner had a remedy of revision under Section 11A of the Act, he did not pursue this remedy and straightway came to this Court under Articles 226 and 227 of the Constitution of India.

(2.) BEFORE we proceed to deal with the points raised before us, it may be worthwhile to refer to a few facts which are not in dispute. The passenger tax, which the petitioner is alleged to be liable to pay, is in respect of motor vehicles Nos. MYX. 6277, 6357, 6677, 6737, 6797, 6887, 6927, 7097, 7247; MYX. 7517 -, 7547, 7637, 7647, 7847, 7897, 8037, 8367, 8387 for the financial year 1969 -70 and 1970 -71 and in respect of motor vehicles Nos. MYX. 7247, 7547, -7847, 7857, 7887, 7897, 8037, MYX. 8367, 8387, for the period from April 1, 1971 to January 31, 1972. The petitioner had submitted his returns under Section 4 of the Act in Forms II and IV prescribed under the Rules framed under the Act. After these returns were received, it appears that the Tax Officer found that these returns were neither correct nor complete and, therefore, he issued notices Nos. 1759/TPA/THR/11 -3 -1970, 6879/TPA/THR/ 7 -12 -1970, 8003/TPA/THR/30 -11 -1971, and 3198/TPA/THR/15 -5 -72. Thereafter, the order, exh. A, shows that the petitioner was called upon to attend the office of respondent No. 2 on March 26, 1970, April 28, 1970, December 21, 1970, first week of April 1971, December 20, 1971 and June 7, 1972 with his accounts, so that he should represent his case either in person or through his representative and establish that the returns submitted by him were both correct and complete. However, according to respondent No. 2, the petitioner failed to produce accounts for the period from April 1, 1969 to March 31, 1970 and from April 1, 1970 to March 31, 1971. He, however, produced ledger -books and four receipt -books pertaining to the period from April 1, 1971 to March 31, 1972, on June 7, 1972. It further appears from the order that the petitioner was also asked to produce certain other documents, books etc, which he did not produce. Respondent No. 2 -the Tax Officer, therefore, passed the following order: In view of above facts, I (Tax Officer and R.T.O., Thana), in exercise of the powers vested in me under the provisions of Section 6 of the B.M.V. (Taxation of Passengers) Act, 1958, to the best of knowledge and belief, hereby assess tax on passengers payable by you for the period from 1.4.69 to 31.3.70, 1.4.70 to 31.3.71, and 1.4.71 to 31.1.72 as shown in the Appendix A, B and C attached below. For any details, if required in respect of this assessment, you are requested to call at this Office on any working day before 3.00 p -m. You are, therefore, hereby requested to please remit difference in passenger tax shown at column No. 5 of the Appendix A, B and C within 15 days from the date of receipt of this, failing which I will be constrained 'to levy penalty in addition to P/tax and also to take further legal action. Please note that assessment order for the previous period i.e. for the year 66 -67, 67 -68, 68 -69 is being issued shortly. Then, we have the Appendices, A, B and C attached to this order, in which against each vehicle we find the assessment tax determined, amount paid and the difference payable by the petitioner for the years 1969 -70 (Appendix A), 1970 -71 (Appendix B) and 1971 -72 (Appendix C). It is not disputed before us that this assessment of tax was done by respondent No. 2 tinder Section 6(&) of the Act.

(3.) THE learned Additional Government Pleader, however, has drawn our attention to a decision of the Supreme Court reported in Baburam v. Zilla Parishad : [1969]1SCR518 in which their Lordships of the Supreme Court have held that when an alternative and equally efficacious remedy is open to a, litigant, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. However, they have also held that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, and where such a remedy exists, it would be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self -imposed limitation, a rule of policy, and discretion rather than a rule of law and the Court may, therefore, in exceptional cases issue a writ such as a writ of certiorari, notwithstanding the fact that the statutory remedies have not been exhausted. The real question, therefore, is whether the present case is such an exceptional case in which even though the petitioner has not pursued his alternative remedy of revision under Section 11A of the Act the present petition should be entertained under Articles 226 and 227 of the Constitution of India. In this connection, the learned Counsel Mr. Hegde for the petitioner has urged before us that the proposition he wants to canvass in this petition is regarding the interpretation of Sections 6 and 7 of the Act. The proposition is that if the assessment of tax is one under Section 6 of the Act, the bar of limitation provided for by Section 7 is read in Section 6, and secondly, if Section 7 is read in Section 6 of the Act, on the interpretation of Section 7, the assessment made under Section 6 must be not only initiated within one year from the expiry of the month for which tax leviable has escaped assessment, but it must also be completed and sum determined within one year. Surely, whatever our ultimate decision regarding the proposition placed before us for our consideration by the learned Counsel may be, the State Government, under the powers conferred on it under Section 11A of the Act, would not have been a proper forum for correctly interpreting Sections 6 and 7 of the Act, particularly when as the learned Counsel has pointed out to us, there are certain observations made by this Court in the unreported decision in The Canara Public Conveyance Co. Ltd. v. V.G. More, which go against the interpretation which he seeks to put on Sections 6 and 7 of the Act. In such a case, the pursuit of a remedy of revision under Section 11A of the Act would have been a futile exercise. In this connection, we may also point out that when the petitioner filed the present petition, the remedy by way of revision under Section 11A of the Act was within limitation, and even then he approached this Court under Articles 226 and 227 of the Constitution of India. It is not as if that he has come to this Court under extraordinary jurisdiction because the remedy by way of revision under Section 11A of the Act was barred by limitation on the day he filed the present petition. 'We are, therefore, of the opinion that this is one of those cases where the alternative remedy by way of revision under Section 11A of the Act would certainly not have been equally adequate and efficacious remedy. We therefore, proceed to consider this petition on merits.