JUDGMENT K.N. Sinha, J.
1. Heard learned Counsel for the petitioner and learned A.G.A.
2. The present petition has been filed for quashing of the order dated 9.3.2006 passed by Additional Sessions Judge, Mau and order dated 22.12.2005 passed by Chief Judicial Magistrate, Mau.
3. The brief facts of the case are that the petitioner is owner of the vehicle bearing registration No. U.P.-54/B-6559 which was registered before respondent No. 2 and one time road tax was duly paid. The copy of the registration certificate and tax receiving are annexure-1 to this writ petition. On 19.9.2005 the petitioner had gone to Mau for treatment of newly born baby, the vehicle was seized by respondent No. 2. The false dues and taxes have been imposed by respondent No. 2 against the petitioner amounting to Rs. 1,10,000/-. The petitioner moved an application for release of vehicle before the Chief Judicial Magistrate, Mau, who rejected the same on 22.12.2005. The petitioner filed a criminal revision No. 3 of 2006 against the order of Magistrate which was also rejected on 9.3.2006.
4. The A.R.T.O. was called and present before this Court in person and filed his affidavit by way of counter affidavit. It was alleged in the counter affidavit that the vehicle was seized on 19.9.2005 under Section 207(1) of the Motor Vehicles Act, 1988. The driver could not show the valid licence as required under Section 190(2) of Motor Vehicle Act nor there was pollution certificate under Section 196. There is also no valid insurance. Para-6 of the counter affidavit is important. It has been submitted that initially the vehicle was registered in Maxi Cab bearing sitting capacity with 9+1 but later on it was converted Into a private vehicle, Even if it was converted into private vehicle, it was plying on the road carrying passengers on hire basis. The statement of one Subhash was also recorded. In view of the Motor Vehicle Taxation Rules, 1998, the additional taxes have to be paid for such vehicle. In total tax of Rs. 1,10,000/- has been shown including the additional tax of 33 months at the rate of Rs. 3300/- per month- Rs. 5335/- as tax already due. Because it was a case of tax evasion, hence rightly challaned under Section 207 of the Motor Vehicle Act, A rejoinder affidavit was also filed on the ground that the respondent No. 2 has cooked up a false story and the vehicle was not carrying the passengers. The respondent No. 2 taking the advantage of the petitioner being lady seized the vehicle. The petitioner has not flouted any order.
On these grounds the order of the Magistrate and that of revisional court refusing the release of vehicle was challenged.
5. The learned Counsel for the petitioner has made only submission that at the relevant time it was being plied as a private vehicle as the petitioner was going to doctor for treatment of infant baby. The copy of the treatment slip issued by doctor has been filed as annexure-2 to the writ petition. The said annexure-2 does not appear to have been controverted. The only question for consideration remains whether at the relevant time it was being plied as private vehicle or commercial vehicle,(Maxi cab). This fact shall be decided during the trial of the said case which has been challenged. The said court if found guilty for such offence or if it was found that it was being used as Maxi Cab only then the tax and penalty become due, In this connection the petitioner has relied upon a judgement of this Court in the case of Radhey Shyam Yadav v. State of U.P. and Ors. 2006(54) ACC 948.
6. In view of the above discussion, the writ petition is allowed and the impugned order dated 22.12.2005 passed by Chief Judicial Magistrate, Mau and order dated 9.3.2006 passed by Additional Sessions Judge, court No. 2, Mau, are set aside. The amount of Rs. 1,10,000/- as tax assessment shall not be realized by the petitioner at present but after the matter has been finally decided by the Magistrate a fresh order can be passed according to rules.
7. It is directed that the aforesaid vehicle No. U.P.-54/B-6559 in question shall be released in favour of petitioner on his production of registration certificate and also insurance on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the concerned court. The petitioner shall also undertake that till the decision of the case by the Magistrate, the petitioner shall not ply the vehicle on the road except for personal and private purpose.