Hon'ble Aditya Nath Mittal,J.
We have heard Shri B.P. Singh, learned counsel for the petitioner. Shri A.C. Tripathi, Standing Counsel appears for the respondents.
The petitioner is owner of vehicle no.U.P.75A-7437 (Bus). The permit of the vehicle is valid upto 17th January, 2030. The fitness certificate expired on 31.10.2010 and there are dues of tax under the U.P. Motor Vehicle Taxation Act, 1997 of Rs.95,400/- on which penalty amount has been imposed. The petitioner has also not paid the advance tax.
The petitioner applied for fitness certificate without paying the arrears of tax and advance tax, on which the Asstt. Regional Transport Officer (Admn.), Fatehpur has informed him by letter dated 18.5.2012 that he may deposit the arrears of tax, penalty and advance tax as well as the fitness fees of Rs.920/- and obtained fitness certificate.
By this writ petition the petitioner has prayed for grant/ issue of certificate of fitness in respect of vehicle, under Section 56 of the Motor Vehicle Act, 1988 read with Rule 39 of the Motor Vehicle Rules, 1998 without payment of the full amount of tax. He has also prayed for quashing the letter dated 18.5.2012, by which he has been informed by the A.R.T.O. to obtain fitness certificate after depositing the tax, advance tax and fitness fees.
Learned counsel for the petitioner has relied upon the Division Bench judgment of this Court in Sushil Kumar v. The Regional Transport Authority, Lucknow, AIR 1983 Allahabad 178 in which it was held that endorsement of renewal on permit cannot be withheld on the ground of arrears of tax. The Court held that there is separate procedure for realisation of tax and which is not connected or correlated with the renewal of permit and allowed the prayer for endorsement on the permit leaving it open to the department to realise the tax.
The petitioner has also relied upon State of Orissa & Ors. v. Bijaya C. Tripathy, AIR 2005 SC 1431, in which it was held that Section 66 prevents the use of vehicle as transport vehicle without a permit. It does not, however, prohibit driving of such vehicle on public road. Even in the absence of a valid permit the vehicle remains a transport vehicle, which is capable of being used on road so long as vehicle has valid certificate of fitness and valid registration certificate.
Shri A.C. Tripathi, learned counsel appearing for the State submits that the registration under Section 39 and the award of fitness certificate under Section 56 are correlated to each other. The transport vehicle shall not be deemed to be validly registered for the purposes of section 39, unless it carries the certificate of fitness. He submits that tax under the U.P. Motor Vehicle Taxation Act, 1997, in respect of stage carriage has to be paid under Section 4 (2A), which provides for imposition of tax in advance. The owner of the vehicle has an option to pay instead of monthly tax in advance a quarterly or yearly tax at such rate as may be notified by the State Government. Under Section 20 the Taxation Officer has powers to recover the tax, which includes arrears of tax or additional tax or penalty as land revenue. Under sub-section (2) the tax, additional tax and penalty is the first charge on the motor vehicle including its accessories in respect whereof it is due. Under Section 22 the transport vehicle can be detained by an officer authorised by the State Government, if it is used by a person without payment of tax, additional tax or penalty. The vehicle may be seized and detained for the purposes subject to such steps as may be considered necessary for safe custody of the motor vehicle for non-payment of the tax. The vehicle can be taken to nearest police station or any other place specified by him with report of seizure within 48 hours to the concerned Taxation Officer. The vehicle shall be released by Taxing Officer immediately on payment of tax, additional tax, penalty or other amount due.
Rule 67 of the U.P. Motor Vehicle Rules, 1998 made under the Motor Vehicles Act, 1998 provides for conditions of grant of permit. Clause (ii) of Rule 67 provides that vehicle covered of such permit shall in no case be used in any public place until tax levied by the State Government and payable in respect thereof has been duly paid and if such tax is not duly paid within such period as may be specified in the U.P. Motor Vehicle Taxation Act, 1997.
A combined reading of these provisions would show that the provisions for obtaining registration under Section 39; certificate of fitness under Section 56; necessity of obtaining of permit under Section 66 and conditions thereof in Section 67 of the U.P. Motor Vehicle Rules; and payment of tax under the U.P. Motor Vehicle Taxation Act, 1997, are interrelated. The judgment in Sushil Kumar's case (Supra) was rendered under the old Act in which the provisions of obtaining permit and the condition of permit under Section 66 of the Motor Vehicle Act and Rule 67 of the U.P. Motor Vehicle Rules were not considered.
In State of Orissa & Ors. v. Bijaya C. Tripathy (Supra) the Supreme Court held that it cannot be said that transport vehicle cannot be plied on public road without a permit. What is prohibited by Section 66 of the Motor Vehicle Act is that the vehicle cannot be used as a transport vehicle in any public place without a permit. The vehicle can be, if the owner so desires, used for the purposes other than transport vehicle such as vehicle for use of the family on public road.
The petitioner has neither pleaded nor taken a stand that he wants to use the vehicle for his personal use and does not intend to use the vehicle as stage carriage.
The necessity of obtaining the fitness certificate cannot be overemphasised. A vehicle cannot be plied on road unless it is roadworthy. In order to protect the conditions of the roads and to prevent accidents, the legislature has under Section 56 provided for certificate of fitness to be mandatory. Section 56 further provides that unless vehicle carries fitness certificate, it cannot be deemed to be validly registered for the purposes of Section 39.
The registration of the vehicle is necessary for obtaining permits as well as the fitness certificate. The provisions of the U.P. Motor Vehicle Taxation Act, 1997 empowers an officer authorised by the State Government to seize the vehicle if it is being plied on the road without payment of notified tax. The tax in respect of stage carriage are to be paid in advance under Section 4 (2A), failing which the vehicle may be seized and detained until taxes are paid.
The interdependence of the provisions of Section 39, 56 and 66 of Motor Vehicle Act, 1988 and the provisions of the U.P. Motor Vehicle Taxation Act, 1997, are for the purposes of maintaining the strict regime of regulations to allow a transport vehicle or stage carriage to ply on the road. Each of the conditions is necessary for plying the vehicle and thus it cannot be said that the vehicle may be subjected to fitness certificate, independent of payment of tax/ advance tax.
Rule 73 of the Central Motor Vehicle Rules, 1989 provides a tax clearance certificate to be submitted to the authorised testing station for grant or renewal of certificate of fitness. Rule 39 of these Rules, provides for grant of certificate of fitness on an application on Form SR-12 to the registering authority on the authorised testing station. The form provides for enclosures of certificate. Similar clearance certificate is required under Rule 73 of these rules, which provides for payment of tax to the State Government as condition of grant of fitness certificate. Rule 73 of the Central Motor Vehicle Rules, 1989; Rule 39 of the U.P. Motor Vehicle Rules, 1998 and Form SR-12 are quoted as below:-
"39. Certificate of fitness-Grant and issue- (1) For the purpose of Section 56, the prescribed authority shall be the registering authority. An application for the issue of a certificate of fitness, shall be made in Form SR-12 to the registering authority or the authorised testing station in whose functional area the vehicle is kept or whose functional area includes the major portion of the route or area to which the permit relating to the vehicle extends.
(2) The registering authority or the authorised testing station, by whom certificate of fitness was issued, may endorse thereon the date, appointed for the next inspection of the vehicle and the owner shall cause the vehicle to be produced for inspection accordingly.
(3) If the certificate has not been endorsed as provided in sub-rule (2) the owner shall, not less than one month before the date of expiry of the certificate, make an application in Form SR-13 and cause the vehicle to be produced for inspection on such date and at such time and place as the registering authority may thereafter, upon reasonable notice, appoint.
(4) If the owner fails to produce the vehicle on the date appointed under sub-rule (2) or on the date, time and place appointed under sub-rule (3) he shall be liable to pay an amount equivalent to and in addition to the amount of fee specified at Serial 11 of the Table of Rule 81 of the Central Rules.
(5) There shall not be more than one certificate of fitness in respect of any vehicle.
(6) If, owing to mechanical breakdown or other cause, a vehicle is, after the expiry of the certificate of fitness, outside the functional area of the registering authority by whom the certificate of fitness is tobe issued, the registering authority may without prejudice to any penalty, to which the owner or the driver may have become liable, if the vehicle is, in his opinion, fit for use, by endorsement in Form SR-14 and subject to such conditions as he may specify, authorise its use for such time as may reasonably be necessary for the vehicle to return to the area of the registering authority by whom the certificate of fitness is to be issued, and the vehicle may be driven to such area in accordance with such endorsement, but shall not be used after return to that area until the certificate of fitness has been issued:
Provided that no authorised testing station situated outside the area of jurisdiction in which the owner should have obtained the certificate of fitness, shall issue such authorisation to any vehicle under this sub-rule.
(7) If a vehicle is damaged at any time so as to be unfit for ordinary use and may in the opinion of any registering authority safely be driven at a reduced speed to a place of repairs, and if the registering authority is satisfied that it is necessary that the vehicle should be so driven, any registering authority may by endorsement in Form SR-15 specify the time within which and the conditions, including speed limit, subject to which the vehicle may be driven to a specified destination for the purpose of repairs.
(8) Where a prescribed authority cancels a certificate of fitness under sub-section (4) of Section 56, it shall-
(a) supply to the owner or the person in charge of the vehicle reasons in writing for such cancellation;
(b) issue to the said owner or the person temporary authorisation for the removal of the motor vehicle in Form SR-16 specifying the time and the conditions subject to which the vehicle may be driven to a specified destination for the purpose of repairs.
Form SR-12 [See Rule 39 (1)] Application for certificate of fitness grant/ renewal PART A (To be filled in by the appellant) To, The Registering Authority/Authorised Testing Station.........
I hereby apply for the issue/ renewal of certificate of fitness as required by Section 56 of the Motor Vehicles Act, 1988 of the vehicle described below:
Registration mark of vehicle..................
Name of owner................
Place where the vehicle is ordinarily kept...................
Name of Manufacturer of vehicle.....................
Manufacturer's model, or if not knowledge wheel base.................
Type of vehicle................
Chassis number......................
Engine number............................
Particulars of any previous certificate of fitness granted in respect of vehicle...................................
Authority by which granted/ renewed.........................
Date when certificate of fitness ceased to be valid...................
Reasons for cessation of validity.......................
I enclose herewith tax clearance certificate required under Rule 73 of the Central Rules.
Dates:.........................
Signature or thumb-
impression of applicant.
73. Tax clearance certificate to be submitted to the testing station- No authorised testing station shall accept an application for the grant or renewal of a certificate of fitness unless the same is accompanied by a tax clearance certificate in such form as may be specified by the State Government, from the Regional Transport Officer or motor vehicle inspector having jurisdiction in the area to the effect that the vehicle is not in arrears of motor vehicle tax or any compounding fee referred to in sub-sections (5) and (6) of Section 86."
In the end the petitioner prayed for an order to allow him to deposit half arrears of tax for obtaining fitness certificate. We do not find any good ground to entertain the prayer as the tax is payable as soon as the incident of payment of tax in the charging section falls. In the present case the taxes are paid in advance. There is no provisions under the Act or the Rules to defer the liability of payment of tax.
The writ petition is dismissed.
Order Date :- 25.7.2012 SP/