KAILASH CHANDRA BEHERA Vs. COLLECTOR AND ORS.

JUDGEMENT

(1.) SHORT point for consideration in this Second Appeal is the maintainability of the suit for declaration that the Plaintiff is not liable to pay tax for the period between 1 -7 -1970 and 31 -12 -1970 in respect of his vehicle ORB 724 and for injunction against the Defendants, State of Orissa, Regional Transport Officer, Balasore and the Special Certificate Officer, Bhadrak from taking steps for realisation of the a mount.

(2.) PLAINTIFF having intended not to use his vehicle for the aforesaid period intimated .the fact to the Taxing Officer (Defendant No. 2) with an undertaking as required under Section 9 -A (1) of the Bihar and Orissa Motor Vehicles (Taxation Act. 1930 (hereinafter referred to as 'the Taxing Act ') specifying the place where the vehicle was to be kept. On that basis, the fact was entered in the certificate of registration (Ext. 1). Receiving a report from the Motor Vehicles Inspector that the vehicle was not at the place where it was specified to be kept, the Taxing Officer acted to exercise of the power under Section 12 -A of the aforesaid Act and imposed penalty on the Plaintiff and demanded them to pay the tax and penalty for the period. When the amount was not paid Defendant No. 2 sent a requisition to the Defendant No. 3 for realisation of the tax as arrear of land revenue under the Orissa Public Demands Recovery Act, 1962, (in short 'the Recovery Act ') as provided in Section 13 -B of the Taxing Act. The certificate officer being satisfied that the demand is recoverable, signed the certificate and caused the same to be filed in his office under Section 5 of the Recovery Act. Thereupon, notice was served on the Plaintiff and the Plaintiff filed petition before Defendant No. 3 denying his liability ' under Section 8 of the Act. The same having been rejected, ' distress warrant and body warrant were issued. This has given the cause of action to the Plaintiff to file this suit. Trial Court held that the Defendants have not been able to prove that thus vehicle was not at the place specified in the intimation under Section 9 -A of the Taxation Act and accordingly, decreed the suit. In appeal by the Defendants, the learned Subordinate Judge held that the Plaintiff has not been able to prove that the vehicle was at the place where it was specified and dismissed the suit. Hence this appeal by the Plaintiff.

(3.) MR . A. K. Mohapatra, the learned Counsel for the Appellant submitted that in effect the suit is one for cancellation of the certificate as provided under Section 42 of the Recovery Act. Under suction 45, a general bar is provided for a civil suit except on the allegation of fraud. It reads as follows: