JUDGMENT Ravindra Singh, J.
1. Heard Sri Anil Kumar Ray, learned Counsel for the petitioner and the learned A.G.A.
2. This writ petition is filed on behalf of Radhey Shyam Yadav with a prayer that respondents be directed to release the Vehicle No. U.P. 60-A 0919 (Jeep) in favour of the petitioner.
3. The brief facts of this case are that the petitioner is the owner of a commander Jeep No. U.P. 60-A 0919 and he has paid one time road tax on, 13.10.1996. It is registered as a private vehicle. The aforesaid vehicle has been intercepted by the Assistant Regional Transport Officer, Ballia, respondent No. 2 on 24.12001 and the same was kept at the Police Station Phephna district Ballia. The petitioner has produced the registration certificate but the same has not been released by respondents 2 and 3. Thereafter the petitioner filed an application before the Chief Judicial Magistrate, Ballia with a prayer to release the vehicle in his favour but respondent No. 2 submitted a challan report in respect of the vehicle concerned on 26.2.2004 and respondent No. 2 submitted a report dated 15,3,2004 mentioning therein that the petitioner had moved an application to convert the registration of the vehicle concerned from private vehicle to public vehicle, its reply was given by the petitioner on 17.3.2004. The order dated 23.3.2004 was challenged by the petitioner by way of filing a criminal revision No. 139 of 2004 in the court of learned Sessions Judge, Ballia but the same was dismissed by the 4th Additional Sessions Judge, Ballia on 29.5.2004.
4. It is contended by the learned Counsel for the petitioner that it is an admitted fact that the vehicle concerned is registered vehicle in the name of the petitioner and the petitioner has applied for converting the same as a public vehicle but the same has not been converted and respondent No. 2 has illegally intercepted the vehicle of the petitioner and demanded tax and additional tax which is not leviable on the petitioner's vehicle.
5. It is further contended that the vehicle in question was never used as a public vehicle. It is used as a private vehicle and respondent No. 2 has submitted challan report after six months of the seizure of the petitioner's vehicle, which is a concocted document and the conduct of respondent No. 2 was fully malafide. In case there was any violation of the provisions of the Motor Vehicles Act, the petitioner was liable for fine only.
6. It is further contended that there is a prescribed procedure for converting a private vehicle into a public vehicle, but till now no procedure has been followed and without following any procedure the vehicle concerned has been converted into a maxi cab, which is illegal and it is manipulation in the record of the vehicle concerned kept in the office of the A.R.T.O. Therefore, no reliance can be placed on any report of such conversion.
7. It is further contended by the learned Counsel of the petitioner that according to Section 192A of the Motor Vehicles Act if a private vehicle is used for commercial purposes and it is used in contravention of the provisions of Sub-section 1 of Section 66 or in contravention of any condition of permit relating to the route on which or the purpose for which the vehicle may be used, shall be punishable for the first offence with fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than 3 months or with fine which may extend to ten thousand rupees but shall not be less than five-thousand rupees or with both.
8. It is further contended that in the present case the controversy in respect of tax is not involved but the controversy of conversion of the vehicle into a maxi cab is involved because after the deposition of all the usual charges for conversion, the vehicle in question was never taken by the transport authority for fitness purposes and without examining the vehicle and issuing of the fitness certificate no vehicle can be converted into a maxi cab. Only deposition of the usual charges for conversion purpose is not sufficient but it is a mere formality to convert the vehicle into a maxi cab. In the present case the vehicle of the petitioner has been seized and thereafter some entries were made in the record of the vehicle, which are manipulated entries.
9. It is opposed by the learned A.G.A. by submitting that the vehicle in question was registered in the name of the petitioner as a private vehicle which was intercepted by respondent No. 2 on 24.7.2003 because it was used for transportation of the passengers without paying the requisite taxes and it was plied without paying the taxes. In this regard tax and Additional tax upto 31.7.2004, totalling a sum of Rs. 1,79,809/- was due on the petitioner the same has not been paid by him, so the vehicle was seized and the petitioner without approaching the transport authority and in order to avoid the payment of taxes directly approached the court concerned. This vehicle was also intercepted by the Enforcement Officer Ballia on 27.3.1998 and thereafter the petitioner himself paid the penalty and applied for conversion and the same was converted into a maxi cab after obtaining the requisite fees etc. but it was plied by the petitioner without paying the dues/taxes, therefore, the vehicle in question was rightly seized by the Transport Officer because at that time it was transporting the passengers. Firstly the vehicle in question was intercepted on 27.3.1998 at that time it was carrying 12 passengers. Thereafter, the petitioner himself filed an application on 2.4.1998 before the A.R.T.O. with an explanation that at the time of seizure of the vehicle he was coming after cremation of a dead body from Mahavir Ghat. On that application a detailed report was prepared. A penalty of Rs. 3,500/- was assessed and the same was paid by the petitioner then the vehicle was released by the A.R.T.O. Ballia on 3.4.1998 in favour of the fpetitioner with a warning that he will not use the said, vehicle as maxi cab and if it is again intercepted in such condition full tax of maxi cab will be realised from him. Thereafter, he approached the A.R.T.O. concerned on 3.6.1998 for converting the vehicle into a maxi cab. On 4.6.1998 he deposited the required tax including conversion fee of Rs. 25,00/- and difference of tax from private to a commercial viz. Rs. 130/- in view of that the vehicle was converted as maxi cab on4.6.1998 by the A.R.T.O. Ballia. Therefore, the petitioner is laible to pay the tax with effect from 4.6.1998.
10. It is further submitted that after the order of conversion of the vehicle in question, the petitioner never approached the department by filing an application and form No. S.R. 12 for fitness and never applied for permit etc. and started using the vehicle in question which is not permissible in law because all the formalities were not completed, which were required for conversion.
11. It is further submitted by the learned A.G.A. that the present writ petition is not maintainable because the petitioner has an alternative remedy by way of approaching the transport authority under the provisions of Section 207(2) of the Motor Vehicles Act
12. It is further contended that against the taxes under the U.P. Motor Vehicles Taxation Act, 1997 a statutory appeal is also provided under Section 18 of the aforesaid Act and the petitioner can approach the authority concerned i.e. the Transport Commissioner, U.P, Lucknow to which the petitioner has not yet approached as such the present petition is premature and is liable to be dismissed.
13. From the perusal of the record, it appears that in the present case the petitioner has deposited the required fees of conversion including the difference of tax as demanded by the department concerned but deposition of the required charges is not sufficient to convert a private vehicle into a maxi cab because before passing the order of conversion fitness of the vehicle is essentially required by the provisions of law but in the present case all the necessary formalities for converting the private vehicle into a maxi cab have not been done by the transport authority. The provision for conversion is specifically given in the Motor Vehicles Act but the same has not been followed in such a condition the assessed taxes and dues on the petitioner is not proper because the vehicle in question was not in fact converted into a maxi cab. In respect of conversion the initiation was made by the petitioner and for the same required charges were deposited by him but other formalities were not done by the transport authorities even the fitness certificate was not given by the transport authority and it is admitted Case that after deposit of the charges of conversion the petitioner never approached the transport authority. It also shows that the vehicle in question was never examined for fitness purpose. If any entry has been made in the papers of the vehicle maintained at the office of the A.R.T.O., the same is not reliable and by these entries it cannot be said that the vehicle was,in fact, converted into a maxi cab. Therefore, the assessment of the taxes made by the transport authority is illegal for which the petitioner is not liable to pay the same. So far as the question of maintainability of this petition is concemed, in the present case the controversy in respect of the assessment of the taxes is not involved but the controversy of conversion of a private vehicle into a maxi cab is involved. If the vehicle is not legally converted into a maxi cab, the taxes imposed by the Transport authority are not permissible in the eyes of law. Therefore, in this case it is not required to approach the Transport Commissioner in respect of the assessment of the tax, therefore, this petition is maintainable.
14. In view of the above discussion the impugned order dated 23.3.2004 passed by the learned Additional C.J.M. -I Ballia and the Judgment and order dated 29.5.2004 passed by the IVth Additional Sessions Judge, Ballia in Criminal Revision No. 139 of 2004 are not perfect orders as they have not been passed after considering the main controversy of conversion of the vehicle into a maxi cab. Therefore, the impugned orders are hereby set aside and assessment of taxes as Rs. 1,79,809/- shall not be realised from the petitioner.
15. But the vehicle of the petitioner was intercepted by the transport authority which was violating the provision of Section 66 of the Act because by that time 12 passengers were carrying by that vehicle, therefore, the petitioner is liable to pay the penalty as provided by Section 207 of the Act. In the present case it has come in evidence that prior the present seizure of the vehicle, it was intercepted on 27.3.1998 also and penalty of Rs. 3500/- was paid by the petitioner and the vehicle was released by the A.R.T.O. Ballia in his favour on 3.4.1998 with a warning. Therefore, the petitioner is liable to pay the penalty i.e. Rs. 10,000/- as provided under Section 192A of Motor Vehicles Act, 1988.
16. Therefore, it is directed that the petitioner shall deposit a sum of Rs. 10,000/- as penalty at the office of A.R.T.O. Ballia, in case above penalty is deposited, the vehicle in question i.e. commander jeep bearing registration no. U.P. 60-A/0919 shall be released in favour of the petitioner forthwith.
17. Accordingly this petition is allowed.