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PETITIONER: ARBIND KUMAR SINGH

       Vs.

RESPONDENT: NAND KISHORE PRASAD & ORS.

DATE OF JUDGMENT: 26/02/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. MITTER, G.K.

CITATION:  1968 AIR 1227            1968 SCR  (3) 322  CITATOR INFO :  RF         1986 SC1272  (100)

ACT: Constitution  of India, 1950, Art.  133-’Civil  Proceeding’, Scope of. Motor Vehicles Act (4 of 1939), ss. 47, 48 and 64A-Scope of- Pass ,such further order as it thinks fit’, Meaning of. Natural  Justice-Revising authority calling  for  additional evidence Duty to disclose to parties.

HEADNOTE: In  1950-51,  the appellant was plying his  motor  buses  in Bihar.  Bihar Act 17 of 1950 imposed a tax on passengers and goods  carried  by public service motor  vehicles.   As  the imposition of the tax was found to be invalid the  appellant did not pay the tax.  In 1961, the tax was reimposed by  Act 17  of  1961  with  effect  from  1st  April  1950  and  the imposition was found to be valid.  Therefore, the  appellant was  liable  to  pay the transport tax  for  1950-51.   This liability  was  outsanding on 15th January  1965,  on  which date, the Regional Transport Authority ordered that a permit to ply a stage carriage be granted to him on condition  that he produced a clearance certificate of transport tax  within one month from the date of the order failing which the grant will  stand automatically cancelled and the permit  will  be granted to the first respondent.  As the appellant failed to carry  out the condition the permit was cancelled and  given to  the  first respondent.  The order was confirmed  by  the Government, in revision, under s. 64A of the Motor  Vehicles Act,   1939,  as  amended  by  the  Bihar   Motor   Vehicles (Amendment)  Act, 1950, after calling for and considering  a report from the Dy.  Commissioner of Commercial Taxes,  that the  transport tax was due from the appellant  for  1950-51. The writ petition in the High Court to quash the  Government order  was dismissed.  The appellant appealed to this  Court with certificate granted by the High COurt under Art. 133 of the Constitution. The  respondent  contended  that  the  High  Court  was  not competent to grant the certificate in proceedings under Art. 226;  and the appellant contended that : (1) on the date  of the order granting the permit there was no liability to  pay

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the  tax  as  there was no  assessment;  (2)  the  condition regarding  payment of tax was invalid; (3) the  Minister  of Transport who disposed of the revision to the Government had no  right to call for any additional evidence; and  (4)  the report  of the Dy.  Commissioner of Commercial Taxes  should have been disclosed by the Minister to the appellant. HELD  : (1) The words ’civil proceedings’ in Art. 133  cover all  proceedings  which directly affect  civil  rights,  and therefore  the  High  Court  was  competent  to  grant   the certificate  in a proceeding under Art. 226 involving  civil rights. [324 E-F] S.   A.  L. Narayan Row v. Ishwar Lal Bhagwandas,  [1966]  1 S.C.R. 190 and Ramesh v. Seth Gendalal Motilal Patni, [1966] 3 S.C.R. 198, followed. (2)  Under  the scheme of the Act the liability to  pay  tax arises  by  statutory injunction and not from any  order  of assessment.   Therefore,  there was a liability to  pay  the transport  tax  outstanding, against the appellant,  on  the date of the order granting him the permit and failure to 323 produce  the  clearance certificate in respect  of  the  tax disentitled him to the sant of a permit. [326 H; 327 C] Raipur  Transport Co. (P.) v. M. P. Singh, A.I.R. 1968  M.P. 36 distinguished (3)  If  it  be held that the grant of a permit  was  to  be subject only to such of the matters specified under s. 47(1) (a)  to  (f)  and  to  such of  the  conditions  as  may  be prescribed under s. 48, the order of the Regional  Transport Authority in the present case must be deemed to be an  order refusing   the  permit,  and,  the  appellant  should   have challenged, by way of appeal, the validity of the imposition of  the condition relating to payment of tax; he  could  not ignore  the  condition  subject  to  which  the  permit  was granted. [328 D-E] (4)  The expression ’pass such order as it thinks fit’ in  s 64A,  as amended by the Bihar Act, is not restricted to  the passing  of  final  orders.  If for  the  purpose  of  doing complete  justice  between the parties,  the  authority  who hears  the  revision  petition  is  satisfied  that  it   is necessary  to  call for additional evidence, he may  do  so. There is no bar in the Act or the Rules against an appellate or   revising  authority  taking  into   consideration   the additional evidence brought on record. [328 G-H] (5)  Such additional evidence must undoubtedly be  disclosed to the parties and they must be given an opportunity to meet an  inference that may arise from it.  In the present  case, the  High Court, on a consideration of the evidence came  to the  conclusion that the additional evidence called  for  by the  Minister  of  Transport was disclosed by  him,  at  the hearing, to the appellant’s counsel and there was no  reason for this Court to disagree with that view. [329 A-B, H]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1943 of 1967. Appeal from the judgment and order dated October 24, 1967 of the Patna High Court in Civil Writ Jurisdiction Case No. 283 of 1966. Basudev Prasad and S. N. Prasad, for the appellant. M.   C. Chagla, Saptmi Jha and B. P. Jha, for respondent No. 1. U. P. Singh, for respondent No. 2. The Judgment of the Court was delivered by Shah,  J.  On  January 15, 1965, the  South  Bihar  Regional

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Transport  Authority, Patna, ordered that a permit to ply  a stage  carriage on Dehri Bhabua route be granted  to  Arbind Kumar Singh-hereinafter called ’the appellant on  production of  all  valid  documents  of  1964  model  bus  along  with clearance certificate of transport tax within one month from the  date of order, failing which the sanction of permit  in his  favour  would stand automatically revoked,  and  permit will  then  be given to the next  deserving  candidate  Nand Kishore  Prasad........... On application submitted by  Nand Kishore Prasad-who will . hereinafter be referred to as ’the respondent that the appellant had failed to 324 carry out the condition relating to the grant of permit, the Chairman of the Regional Transport Authority by order  dated February 20, 1965, cancelled the permit and directed that  a permit  be  given  to  the respondent.   The  order  of  the Chairman was reversed in appeal by the Appellate Board.   In the  view of the Board "the clearance certificate" filed  by the  appellant  showed that all the taxes due  by  him  were paid. The  respondent  then moved the State  Government  of  Bihar under s. 64-A of the Motor Vehicles Act, 1939 as amended  by the  Bihar Motor Vehicles (Amendment) Act 17 of  1950.   The Minister  of Transport who heard the petition  reversed  the order of the Appellate Board, holding that the appellant had failed  to  carry out the conditions subject  to  which  the Regional Transport Authority had ordered that the permit  be given to him.  A petition under Art. 226 of the Constitution moved  by the appellant in the High Court of  Patna  against the  order of the Minister of Transport was dismissed.   The appellant  has  appealed  to  this  Court  with  certificate granted by the High Court. The  plea  raised  by counsel for the  respondent  that  the appeal  was  liable to be dismissed because the  High  Court was incompetent to grant a certificate of fitness under Art. 133(1)(a)  or  Art.  1 3 3 ( 1 )  (b)  of  the  Constitution against   the   judgment  of  the  High   Court   exercising extraordinary  original jurisdiction under Art. 226  of  the Constitution  is without substance.  This Court has held  in S. A. L.  Narayan Row & Anr. v. Ishwarlal Bhagwandas &  Anr. (1)  that the words "civil proceeding" used in Art.  133  of the Constitution cover all proceedings which directly affect civil   rights.   A  proceeding  under  Art.  226   of   the Constitution  for  a  writ  to bring  up  a  proceeding  for consideration  concerning civil rights is therefore a  civil proceeding.  This Court has further held in Ramesh and A nr. v.  Seth Gendalal Motilal Patni and Ors. (2) that  the  High Court  is  competent to certify on appeal against  an  order passed  by a Division Bench of a High Court in  exercise  of extraordinary  original jurisdiction under Art. 226  of  the Constitution  if the dispute decided thereby concerns  civil rights  of the parties.  Hidayatullah, J., speaking for  the Court observed at p. 203               "Mr.   Gupta’s  contention  that  under   that               article  (Art. 133) an appeal can only lie  in               respect of a judgment or decree or final order               passed   in  the  exercise  of  appellate   or               ordinary  original civil jurisdiction but  not               of extraordinary original civil  jurisdiction,               is  not  right.  . . . Article  133  not  only               discards the distinction between appellate and               original  jurisdiction but  deliberately  used               words which are as wide as language can               (1) [1966] 1 S.C.R. 190.               (2) [1966]3 S.C.R. 198

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             325               make  them.   The  intention is  not  only  to               include  all  judgments,  decrees  and  orders               passed  in  the  exercise  of  appellate   and               ordinary original civil jurisdiction but  also               to  make  the language wide  enough  to  cover               other  jurisdictions under which civil  rights               would   come   before  the  High   Court   for               decision." The plea raised by counsel for the respondent that the  High Court  was  not  competent to  grant  the  certificate  must therefore be rejected. The Bihar Legislature enacted Bihar Act 17 of 1950, imposing tax on passengers and goods carried by public service  motor vehicles in Bihar.  Validity of this levy was upheld by  the High Court of Patna. But after the decision of this Court in Atiabari  Tea  Co. Ltd. v. State of  Assam(1),  the  appeals filed by the operators who challenged the levy were  allowed by  this Court.  The State of Bihar thereafter issued  Bihar Ordinance  11 of 1961 which was replaced by Bihar Act 17  of 1961 By that Act the tax was reimposed with effect from  the 1st  day of April, 1950.  That imposition of tax  was  again challenged in writ petitions filed before the High Court  of Patna, but without success, and the order of the High  Court was  confirmed by this Court in Rai Ramkrishna and  Ors.  v. State of Bihar(1).  Section 1(3) of Act 17 of 1961  declares that the Act shall be deemed to have come into forced on the first  day  of  April, 1950.  By s.  2(i)  ’tax’  means  tax payable  under  the  Act  and  includes  the  fixed   amount determined under s. 8. By s. 3 charge of tax is imposed.  It provides by sub-s. (1)  :               "On  and  from the date on which this  Act  is               deemed  to  have come into  force  under  sub-               section  (3)  of  section 1,  there  shall  be               levied and paid to the State Government a  tax               on  all  passengers  and goods  carried  by  a               public  service motor vehicle; such tax  shall               be levied and paid at the rate of twelve and a               half  per  centum of the  fares  and  freights               payable to the owner of such vehicles               Provided............." Section  6  requires  the  owner  of  the  vehicle  to  make prescribed  return to the prescribed authority  within  such period  as  may  be prescribed.  Section  7  prescribes  the machinery for assessment of tax.  Section 9(1) provides that the  amount of tax or penalty. if any, payable by  an  owner under  the  Act  shall be paid  in  the  manner  hereinafter provided.  Sub-section (2) of s. 9 provides that before  any owner  furnishes any return under the Act he shall.  in  the prescribed manner pay into the Government Treasury the  full amount  of tax due from him under the Act according to  such return  and  shall furnish along with the return  a  receipt from the (1) [1961] 1 S.C.R. 809. (2) A.I.R. 19463 S.C. 1667. 326 treasury showing payment of the said amount.  By s. 22 power is  conferred  upon the State Government to make  rules  not inconsistent with the Act for all matters expressly required or  allowed  by the Act to be prescribed and  generally  for carrying  out  the purposes of The Act  and  regulating  the procedure to be followed, forms to be adopted and fees to be paid  in connection with proceedings under the Act  and  all other matters ancillary or incidental thereto.  In  exercise of  the  power conferred by s. 22, the State  of  Bihar  has

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framed  the Bihar Taxation on Passengers and Goods  (Carried by  Public  Service Motor Vehicles) Rules,  1966.   Rule  11 provided  that  every owner shall furnish to  the  authority prescribed  in r. 16, a monthly return, in Form V  within  a period  of fifteen days of the close of the month  to  which such return relates.  Rule 18 provides that where any sum is payable by an owner under the Act or the rules or any amount due for which a notice is to be given under sub-section  (4) of  s.  9,  the authority prescribed in r.  16  shall  serve notice  in Form XI, and shall also fix a date by  which  the owner  shall  produce a receipted challan in proof  of  such payment.   It  is clear from the scheme of the Act  and  the rules that by s. 3 a charge is imposed upon an owner of  the vehicle to pay tax to the State Government on all passengers and  goods carried by a public service motor vehicle at  the rates  fixed by the statute and the owner must make  monthly returns within fifteen days from the expiry of the month  to which the return relates The  decision  of the Madhya Pradesh High  Court  in  Raipur Transport Co., Private Ltd., Raipur v. M. P. Singh and  Ors. (1)  on  which  reliance  was  placed  by  counsel  for  the appellant  has, in our judgment, no bearing on the  question which falls to be determined in this appeal.  Section 10  of the  Motor  Vehicles  (Taxation of  Passengers)  Act,  1959, passed by the State of Madhya Pradesh provided that in cases referred  to in ss. 7, 8 and 9, the Tax Officer shall  serve on  the operator a notice of demand for the sums payable  to the  State Government.  That in the view of the  High  Court pre-supposes that an order of assessment has been made under the earlier provisions of the Act, and therefore an order of assessment  was necessary not only for the validity  of  the notice  of  demand,  but also  for  enabling  the  appellate authority to see whether the tax had been correctly assessed or  not and the demand made against the operator was or  was not justified.  We are in the present case not concerned  to determine the validity of a notice of demand.  The liability to  pay  tax under Bihar Act 17 of 1961  clearly  arises  by statutory  injunction and not from the order of  assessment. In  terms s. 3 says that there shall be levied and  paid  to the  State  Government  a tax on all  passengers  and  goods carried by a public service motor vehicle. (1)  A.I.R. 1968 M.P. 36. 327 The  appellant plied his motor buses in 1950-51 and  on  the plea  that  the tax was invalid did not pay the  tax  levied under Act 17 of 1950.  After the reimposition of the tax  by Act  17  of  1961, there survived no  ground  on  which  the liability  to  pay tax could be resisted.   On  January  15, 1965, a condition had been imposed upon the appellant that a permit  would  be  granted to him  provided  he  produced  a clearance  certificate.   Liability  to  pay  transport  tax amounting  to  Rs.  1,675/-  was  outstanding  against   the appellant  for nearly fifteen years and that  liability  was discharged  by payment on March 5, 1965. it cannot,  in  the circumstances,  be contended that there was no liability  to pay  transport tax outstanding against the appellant on  the date  of  the  order granting him the  permit.   Failure  to produce   the  clearance  certificate  in  respect  of   the transport tax clearly disentitled the appellant to the grant of a permit. Counsel for the appellant, however, contended that the impo- sition  of  a condition that the appellant shall  produce  a clearance  certificate in respect of the transport  tax  was invalid  and the condition was liable to be ignored  by  the appellant.   Section 47(1) of the Motor Vehicles Act,  1939,

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insofar as it is material provides :               "A  Regional  Transport  Authority  shall,  in               considering   an  application  for   a   stage               carriage permit, have regard to the  following               matters, namely :-               (a)   the interests of the public generally;               (b)   the  advantages  to the  public  of  the               service  to be provided, including the  saving               of time likely to be effected thereby and  any               convenience  arising, from journeys not  being               broken;               (c)   the   adequacy   of   other    passenger               transport  services  operating  or  likely  to               operate in the near future, whether by road or               other means, between the places to be served;               (d)   the  benefit to any particular  locality               or  localities  likely to be afforded  by  the               service;               (e)   the operation by the applicant of  other               transport services, including those in respect               of which applications from him for permits are               pending;               (f)   the  condition of the roads included  in               the proposed route or area; and  shall also take into consideration  any  representation made  by  persons  already  providing  passenger   transport facilities by any means along or near the proposed route sup. Cl/68-8 328 or  area, or by any association representing  persons  inte- rested in the provision of road transport facilities  recog- nised  in  this behalf by the State Government,  or  by  any local  authority  or police authority  within  whose  juris- diction any part of the proposed route or area lies Provided..........................." Sub-section (2) of s. 47 sets out the conditions under which the Regional Transport Authority may refuse to grant a stage carriage permit; and sub-s. (3) provides for the  conditions in  which, having regard to the matters specified in  sub-s. (1),  the Regional Transport Authority may limit the  number of  stage carriages generally or of any specified  type  for which stage carriage permit may be granted in the region  or in  any specified area or on any specified route within  the region.   It  was  urged  that  under  s.  47  the  Regional Transport  Authority is bound to consider only  the  matters which  are specified in cls. (a) to (f) of sub-s. (1) of  s. 47, Ind if the applicant is found qualified for a permit  no conditions   may  be  imposed  by  the  Regional   Transport Authority.  We need express no opinion on that argument.  If the  argument  raised by counsel for the appellant  has  any substance,  and if it be held that the grant of a permit  is to  be  subject  only to such of the conditions  as  may  be prescribed  under  s.  48, the order made  by  the  Regional Transport  Authority must be deemed to be an order  refusing the  permit.   The  appellant could,  if  so  advised,  have challenged  the validity of the imposition of the  condition relating to the payment of tax, but he could not ignore  the conditions subject to which the permit was granted. Finally,  it was urged that the Minister of Transport  acted illegally  in taking into account evidence which was not  on the   record  of  the  Regional  Transport  Authority,   and alternatively,  that the Minister violated  the  fundamental rules  of  natural justice in basin,, his  judgment  upon  a document   received   from  the  Deputy   Commmissioner   of Commercial Taxes, intimating that the transport tax was  due

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by  the appellant without bringing it to the notice  of  the appellant  and calling for an explanation.  Section 64-A  of the Motor Vehicles Act, 1939, as amended by Bihar Act 17  of 195(  authorises  the State Government to call for,  in  the course of any proceedings taken under the Chapter, from  any authority or office) subordinate to it, the records of  such proceedings,  and after exa, mining such records  pass  such order as it thinks fit.  The expressior "pass such order  as it  thinks fit" is not restricted to the passini  of  orders which are final in character.  If for the purposes of. doing complete  justice  between the parties,  the  authority  who heare  the  revision  petition  is  satisfied  that  it   is necessary to call for addi tional evidence, he may call  for such  evidence.   There, is no bar in the Act or  the  rules against an appellate or the revising authority 329 taking into consideration additional evidence brouaht on the record, if the authority requires additional evidence to  be brought  on  the record or allows it to be  brought  on  the record  to  do complete. justice between the  parties.   The evidence  must undoubtedly be disclosed to the  parties  and they must be given an opportunity to meet an inference  that may  arise from such additional evidence.  We are unable  to hold   that  the  Minister  of  Transport  in  taking   into consideration  the  report received from the  Deputy  Commi- sioner  of  Commercial Taxes, Intelligence Branch,  that  an amount of Rs. 1,675/- was outstanding on February 16,  1965, against  the appellant in respect of the two buses plied  in the year 1950-51 acted in violation of the rules of  natural justice.   The  circumstance,-, in which this  document  was brought  on  the file of the Minister are not clear  on  the record.   But, as stated by the Minister, the  document  was disclosed to counsel for the appellant and counsel was asked to give a reply thereto.  The Minister also recorded in  his judgment that counsel for the appellant explained that since there  was  no demand for payment of the dues,  it  was  not correct  to  say  that the amount of  Rs.  1,675/-  was  due against the appellant on February 16, 1965.  The Minister of Transport   rejected  that  argument.   Before  us  it   was contended   that  the  document  was  never  shown  to   the appellant’s  counsel  and he was never asked to  render  his explanation  in  that  behalf.   If  this  were  true,   the appellant  would,  we  have no doubt,  have  approached  the Minister  who was exercising quasi-judicial  functions,  and would  have asked him to review his order.  This  admittedly has not been done.  Again, if the grievance now raised  were true,  the  averments made in paragraph-19 of  the  petition before  the High Court would not have taken the  form  which they have taken.  In paragraph-19 it is stated that "the so- called report of the Deputy Commissioner, Commercial  Taxes, Intelligence Branch, Patna, under Memo No. 8527 dated  24-7- 1965  was never shown to the petitioner and  the  petitioner had  no  opportunity to meet the said report."  Whereas  the Minister  of Transport had recorded that the report  of  the Deputy Commissioner, Commercial Taxes, was shown to  counsel for  the  appellant  and  the  counsel  had  given   certain information the petition before the High Court merely stated that  the appellant was not shown the report of  the  Deputy Commissioner. The  High Court on a consideration of the evidence has  come to the conclusion that the claim made by the appellant  that the  document  was not disclosed at the hearing  before  the Minister  of  Transport, and the Minister  acted  upon  that document   without  informing  the  appellant,   cannot   be accepted, and we do not see any reason to disagree with  the

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view expressed by the High Court. The appeal fails and is dismissed with costs. V.P.S.                    Appeal dismissed. 330