Leave to amend the date of seizure.
Heard learned advocate for the petitioner and Ms. Asmita Patel, learned AGP, on advance copy.
The petitioner by way of this petition under Article 226 of the Constitution of India has approached this Court with following prayers;
(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent no.2 to release forthwith the aforesaid vehicle/crane of the petitioner, description of which is shown in the Certificate of Registration (R.C. Book) at Annexure - "A" hereto and further be pleased to hold and declare that the action of seizing the aforesaid vehicle / crane of the petitioner on 01st May, 2012 is absolutely illegal, illogical, arbitrary, without any right and/or authority and contrary to the principles of natural justice;
(B) During the pendency and final disposal of the present petition Your Lordships may be pleased to direct the respondent no.2 to release forthwith the aforesaid vehicle / crane of the petitioner, description of which is shown in the Certificate of Registration (R.C. Book) at Annexure - "A" hereto, so that it can be put to use and the loaded piping construction materials meant for its destination to the concerned construction site at Panipat in the State of Haryana can be delivered at the earliest without any further delay;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.
Facts in brief, as could be culled out from the memo of petition deserve to be set out as under.
The petitioner is owning a Hydraulic Mobile Crane produced in the year 1993, as submitted by the petitioner (hereinafter referred to as 'the Crane' for the sake of brevity). With the help of Crane, petitioner is carrying his business in piping construction materials. The petitioner was plying this Crane at various places through out the country. The certificate of registration of the vehicle contains an endorsement in handwriting "life time" and accordingly petitioner was right from 1993 till the vehicle was seized on 02.05.2012, enjoyed the vehicle and used the same without payment of any tax, which is levyable on such type of vehicles periodically. The petitioner's vehicle was seized on 02.05.2012, as the petitioner's driver could not produced any documents indicating that the tax levyable on the vehicle, i.e. motor vehicle tax under the Bombay Motor Vehicles Tax Act, 1958 (hereinafter referred to as the "Bombay Vehicles Act for the sake of brevity), is paid. Therefore, in exercise of power conferred under the provisions of the Bombay Vehicles Act, the vehicle is detained and petitioner is called upon vide memo and communication dated 05.05.2012, that the petitioner is liable to pay tax from 01.07.1993 till the date in respect of vehicle in question and hence he should pay the tax with penalty and have the vehicle be released. Being aggrieved and dissatisfied with this action of the respondent, the petitioner approached this Court under Article 226 of the Constitution of India on the grounds mentioned in the memo of petition and urged at the time of hearing.
Learned advocate for the petitioner contended that action of the respondent is in gross violation of petitioner's right to be heard before detaining the vehicle of the petitioner, as the respondents themselves have admitted in the communication dated 05.05.2012 that the mentioning of "life time" was through mistake and, therefore, on the part of the mistake committed by the Officer of the department petitioner cannot be made to suffer.
Learned advocate for the petitioner contended that the vehicle in question if required to be detained, then there ought to have been demand notice. In absence of demand notice, the same cannot be detained, therefore, the action of detaining vehicle is contrary to provision of law and, therefore, the same is required to be quashed and set aside.
Learned advocate for the petitioner further contended that the petitioner is called upon to pay vehicle tax since 01.07.1993 till date, which is unreasonable delay and, therefore, on this count also, the petition is required to be allowed.
Learned AGP, on advance copy, submitted that petitioner cannot be said to be an illiterate person who would not understand a simple duty cast upon the citizen on vehicle owner to abide by provision of law and carrying out his business in accordance with law. The petitioner is owning a Crane, which is absolutely a commercial vehicle and, therefore, owner of the commercial vehicle cannot be acceptance of the ignorance of the fact the this vehicle is not covered under the vehicle which have been exempted from paying regular tax, as they are to be exigible on "life time" tax. This vehicle being a commercial vehicle is admittedly not covered under the "life time" tax policy as per the statute and this vehicle is, therefore, required to be subjected to periodical tax. Unfortunately, learned advocate for the petitioner has also not contended anywhere that "life time" tax is not required to be paid. Therefore, all these factors would go to show that the petitioner was dishonestly plying the vehicle or using the vehicle without there being any substance of misunderstanding on his part. In other words, it is a sheer case of dishonest evading of tax on the part of the petitioner and, therefore, the Court may not interfere with the action in exercise of power under Article 226 of the Constitution of India, which is purely discretionary power and discretion in his favour. This type of power petitioner cannot be exercised, as it amounts to permit the petitioner to earn premium upon his dishonesty and avoidance of tax payment liability.
Learned AGP further submitted that the discretion even on a technical ground of lack of principle of natural justice, if available is not to be exercised in such gross case where a businessman like petitioner is successful in avoiding payment of tax since 1993. Such an avoidance of tax with immunity cannot be permitted to perpetuate in any manner by interference under Article 226 of the Constitution of India.
Learned AGP further submitted that the plain reading of provision of Section 12(b) of the Bombay Vehicles Act clearly indicate that there exists authority, power or rather duty upon the officer to detain the vehicle, if the person in charge fails to produce documentary evidence that the tax is paid. In the instant case, it is admitted fact that the tax is not paid since 01.07.1993, as no documents could have been produced and the petitioner was using the vehicle in all these years by avoiding payment of tax and, therefore, this petition may be dismissed with cost.
Shri Majmudar, learned advocate for the petitioner, at this stage sought permission of the Court to make submission on the dishonesty canvassed by learned AGP and has submitted that it is a mistake of R.T.O. Officer who has mentioned the word "life time". For that mistake, petitioner cannot be termed to be dishonest. Had the petitioner been called upon to pay earlier, petitioner would have surely paid like a good citizen, as petitioner never intended to avoid or evade tax.
This Court has heard learned advocate appearing for the parties and perused the memo. The Court is of the considered view that this petition is hopelessly meritless and, therefore, it is required to be dismissed in limine for the following reasons namely;
(i) The petitioner has chosen to file this petition under Article 226 of the Constitution of India and invoked Article 19 (1) (g) for granting prayers in his favour. It is indeed unfortunate that a citizen in this country who has been successful in avoiding or rather evading tax on the vehicle since 1993, has approached this Court seeking relief and avoiding payment of tax on that basis. The Article 226 of the Constitution of India is not meant for persons who have been avoiding tax or evading tax for no reason, as there cannot be any reason for avoiding or evading tax in such a fashion. The petitioner is admittedly not an illiterate and he is claiming himself to be a businessman owning a Crane, which is being used through out country. Such a businessman cannot be expected to not understand that. He is liable to pay tax on the subject vehicle, as provided under the Bombay Vehicles Act. The mentioning of "life time" word in the RC Book on the contrary could have been questioned by the petitioner himself. Assuming for the sake of examining without holding that the petitioner might have missed this type of endorsement, but as a citizen he was definitely expected of paying the tax on the vehicle, as it is levyable. It is unfortunately not pleaded for the learned advocate for the petitioner that the vehicle is not exigible to periodical motor vehicle tax and it surely not covered under the "life time" tax exemption. Therefore, in such a situation a question arises as to whether can petitioner be said to be a person who has approached the Court with clean hands. The answer would be an emphatic 'no'.
(ii) The concept of approaching the Court with clean hands takes into its sweep a fact that person who has no justifiable or plausible explanation for his own conduct can surely not be permitted to take a stand which may amount to sheer technicality for justifying his omission which is not legal at all. Clean hands means bona fide litigation and this cannot be called upon to bona fide issue.
(iii) The omission to pay tax is not inadvertent or happening out a sheer ignorance as it is stated hereinabove. Therefore, the aspect of non raising of demand is also of no avail to the petitioner, as the petitioner has no answer as to why the tax was not paid since 1993. Mere shelter under the word "life time" occurred in the RC Book is not an answer, much less the convincing for evading payment of tax for all these years. Such a citizen cannot be permitted to even urge those lofty principle of natural justice, as in this case the action of detaining vehicle is absolutely just and proper and in accordance with law. The petitioner cannot say that he was not knowing that if the vehicle tax is not paid his vehicle is not liable to be permitted to be on the road. The detention of the vehicle is rather duty case upon the officer which he has performed. For such a duty performed, no deprecation is required or rather it is the petitioner who needs to be deprecated on account of his conduct. Therefore, this Court is of the considered view that the petition is hopelessly meritless and it is required to be dismissed.
(iv) There exists no requirement of issuing demand notice in the peculiar facts and circumstances of the case and the communication dated 05.05.2012 is nothing, but a demand notice, as the tax is settled position. There is no rampant on the tax, as it is prescribed under the schedule and, therefore, a man of the petitioner's stature was required to go straight to the office of R.T.O, obtain order for payment of tax and should have plied his vehicle free by adopting this procedure. It is unfortunate that Article 226 is pressed into service at the behest of such petitioner who has been successfully avoiding payment of motor vehicle tax since 1993.
The petition is, therefore, required to be dismissed and it is dismissed with cost.
(S.R.BRAHMBHATT, J.) Pankaj Top