SUDARSHAN SHARMA Vs. STATE

JUDGEMENT

(1.) THIS application filed under Article 226 of the Constitution of India has come up for admission. It has been filed for a direction to the respondents not to collect Additional Motor Vehicles Tax prescribed for transport vehicles vide notification dated 17th July, 2002 which is not applicable to the vehicle of the petitioner which is a Maruti Van bearing registration no. B.R. -1P -8304.

(2.) THE petitioner has contended that the vehicle in question was purchased by one Nageshwar Prasad Roy and the present petitioner has purchased it from him. According to paragraph 4 of the petition the type of the body of the vehicle has been described as Saloon and its seating capacity has been stated as 8 persons. The petitioner has purchased this vehicle for personal use and its seating capacity was reduced to 5 persons only by fixation of seats. Annexure -3 will show that the department had described this vehicle as Car and had accepted the tax accordingly, When, however, the petitioner went to the office of respondent no. 4 (District Transport Officer) to pay the tax from 22.3.2003 to 21.3.2004 and excess amount of Rs. 2062.70 was charged which was far in excess to the lawful tax. It is against this alleged arbitrary taxation that the present application has been filed.

(3.) A counter affidavit has been filed on behalf of respondent no. 4 in which it has been stated that section 2(26) of the Motor Vehicle Act, 1988 (hereinafter called as 1988 Act) has defined motor car which is a vehicle other than omni -bus. Section 2(29) has defined omni -bus as a motor vehicle adapted to carry more than six persons excluding the driver. Section 2 (47) has defined a transport vehicle which also includes a private service vehicle. It has further been contended in the counter affidavit that the petitioners vehicle is 8 seater vehicle and can not be called a personalised vehicle which has been defined in section 2(h) to mean a motor car with seating capacity of more that three but not exceeding five which are solely used for personal purposes. Respondent no. 4 has contended that the petitioners vehicle is an omni -bus and undisputedly a transport vehicle in accordance with the Notification No. S.O.451(E) dated 19.6.1992 the Bihar Moter Vehicle Taxation Act, 1994 (hereinafter called 1994 Act) has provided that for the purpose of imposing tax the vehicle having seating capacity of not more than five persons can be defined as personalised vehicle and as per this definition the vehicle of the petitioner can not be said to be a personalised vehicle. It is a transport vehicle for which a separate rate of tax has been provided through Bihar Finance Act, 2001. As such it has been submitted that the petitioner is liable to pay the motor vehicle taxes under part -C of schedule I and also liable to pay additional motor vehicle tax under schedule II of 1994 Act as amended by Bihar Finance Act, 2001 . The petitioner has claimed to have changed the seating capacity of his vehicle which is not authorised to do in view of 1988 Act and also 1994 Act. On these grounds it has been submitted that the writ petition is devoid of any merit and fit to be dismissed.