BHOLAKI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN all these writ petitions, common point is involved and therefore, they are being disposed of by this common judgment and for convenient disposal of these writ petitions, facts of S. B. Civil Writ Petition No. 6999/2003 are taken.

(2.) THE facts in nut-shell are that the petitioner applied for grant of permit to ply his vehicle on public road for which petitioner submitted an application under Rule 5. 5 of the Rajasthan Motor Vehicles Rule, 1990. THE permit was granted to the petitioner treating the route in question as falling in the category `a' as described in the explanation (1) appended to sub- rule (3) of Rule 5. 5 of the Rules of 1990. THE petitioner was granted permit in the various years, much before the year 2002. According to petitioner, the petitioner came to know that the route in question was falling in the category `c', when he noticed the order of the State Government dated 2. 05. 2002 (Annex. 1 ). When petitioner came to know about the above order of the State Government dated 2. 05. 2002, he submitted an application for rebate in the tax and requested that since the route in question was falling in the category `c' and petitioner paid the tax treating the route as category `a', therefore, the petitioner, who was entitled for the rebate to the extent of 20%, is now seeking the relief of that rebate and requested that the amount may be either refunded or it may be adjusted towards the tax liability of the petitioner in future years. According to petitioner, the refund and adjustment is permissible under Rule 26 of the Rajasthan Motor Vehicles Tax Rule, 1951, which provides that if the taxation officer satisfied with the payment of tax made by the owner of the vehicle is in excess of the tax due then the taxation officer is required to pass an order for refund of the amount and for that purpose he is required to issue a refund order in form MTK. THE proviso appended to sub-rule (1) of Rule 26 of Rules of 1951 provides that if owner desires the adjustment against any amount payment by him, the taxation officer shall issue the adjustment order on his application in form MTF. THE petitioner's application for the above benefit in the tax and consequently refund of the tax was rejected by the District Transport Officer and Taxation Officer, Pali vide order dated 28. 07. 2003. According to petitioner, the said order was passed by the DTO, Pali without giving an opportunity of hearing to the petitioner.

(3.) I considered the submissions of learned counsel for the parties and perused the record. It will be worthwhile to mention here that for obtaining a permit to ply the vehicle on public road, one is required to apply under the Rajasthan Motor Vehicles Rules, 1990 by submitting an application as provided under rule 5. 5. The relevant portion of sub-rule (1), (2) and (3) alongwith explanation (1) and (2) of rule 5. 5. are as under:- " 5. 5. Application for Grant of Permit.- (1) Every application for a permit in respect of Transport Vehicle shall be in one of the following forms, namely:- (i) In respect of a particular Stage Carriage in Form R. S. 5. 1; (ii) In respect of service of Stage Carriage in Form R. S. 5. 2; (iii) In respect of a particular Contract Carriage in Form R. S. 5. 3; (iv) In respect of a Casual Contract Carriage in Form R. S. 5. 4; (v) In respect of a Contract Carriage to be used for Private hire in Form R. S. 5. 5; (vi) In respect of a Private Service Vehicle in Form R. S. 5. 6; (vii) In respect of Goods Vehicle in Form R. S. 5. 7; (viii) In respect of All India Permit u/s 88 (8)-in Form prescribed by the Central Government. (ix) In respect of National Permit u/s 88 (9) in Form prescribed by the Central Government; and (x) In respect of temporary permit in Form R. S. 5. 8 (2) The application alongwith a passport size photograph of applicant affixed thereon and three additional photographs, which shall be used for affixing on permit register, and on permit part `a' and `b' shall be addressed to the State Transport Authority or the Regional Transport Authority, as the case may be, and submitted in the office of the Secretary/executive Officer and accompanied by- (i) proof of residence in the manners mentioned in rule 4 of the Central Motor Vehicles Rules, 1989; (ii) proof regarding belonging to S. C. Or S. T. from a competent authority. Where reservation of permit under sub- section (4) of Section 71; (iii) A self-addressed envelope for intimation; (iv) Prescribed fee; (3) In case of a stage carriage permit.-The application shall also be accompanied by:- (a) Blue print of the proposed route showing all via- villages/town/cities with population. (b) Length class or classes of the proposed routes i. e. , A,b,c. Explanation I.-for the purpose of this sub-rule A class route means: A route cemented, tarred, asphalted or metalled. B class route means Gravelled or Kankar route. C class route means all Tracks and Fair whether and other routes not included in `a' and `b' class routes. Explanation II.-Duly verified by competent authority of P. W. D. of Tehsildar of the concerned district. In case the applicant does not give the proof regarding length of route than the Regional Transport Officer shall have a survey report regarding length and nature of the route from the District Transport Officer concerned. "