(Prayer: Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus calling for the records of the 2nd respondent in Letter Na.Ka.No.19026/A1/2020 dated 03.11.2021 signed on 09.11.2021 (received by the petitioner on 15.11.2021) and to quash the same and further direct the respondents to grant permission for stoppage of the petitioners vehicles as prayed for.)
The prayer sought for herein is for a writ of certiorarified mandamus calling for the records of the 2nd respondent in Letter Na.Ka.No.19026/A1/2020 dated 03.11.2021 signed on 09.11.2021 (received by the petitioner on 15.11.2021) and to quash the same and further direct the respondents to grant permission for stoppage of the petitioner-s vehicles as prayed for.
2. The petitioner is a Contract Carriage Omni Bus Operator. The petitioner is running about 30 such Contract Carriage Omni Buses.
3. Due to Covid-19 first wave and second wave, since there was complete lock down and partial lock down, where, the vehicles i.e. Public Transport System as well as vehicles like the Contract Carriages had been stopped due to the notification issued in this regard by the State Government.
4. After the improvement of pandemic situation, on 22.09.2021 the State Government has issued a notification lifting the ban or lock down by permitting the Omni Buses / Contract Carriages to operate buses with 50% occupancy.
5. Further, notification was issued on 23.10.2021, where, permission was given to operate AC and Non AC buses with 100% occupancy except to the State of Kerala due to bird flu .
6. Though such relaxation has been given from the lock down permitting the Omni Bus / Contract Carriage Operators to ply the vehicle from 24.09.2021 with 50% occupancy, since all the Contract Carriage buses run by the petitioner are air conditioned buses and those buses were halted for nearly more than one year and more during the Covid-19 first wave and second wave, the AC machines as well as the engines and other spares of the vehicle have to be subjected to complete overhauling and moreover, it needs some replacement of spare parts as well as the tyres and in order to complete the said work, it requires some longer time for the petitioner. Therefore, the petitioner has made an application on 24.09.2021 for stoppage permission under Rule 172(6) of the Tamil Nadu Motor Vehicles Rules (in short -The Rules-).
7. The said application was made in respect of all the vehicles and in this regard, for the period between 01.10.2021 and 31.12.2021, since the petitioner sought for such a stoppage permission from the respondents for which such stoppage fee prescribed under Rule 279 of the Rules had also been paid in respect of all the vehicles, accordingly, the petitioner was waiting an order to be passed in this regard on the request of the petitioner for giving permission for stoppage.
8. However, the said application submitted by the petitioner was not immediately decided and it seems to have been decided on 03.11.2021 but was signed by the authority concerned on 09.11.2021 and served on the petitioner on 15.11.2021. In the said communication dated 03.11.2021 signed on 09.11.2021 served on the petitioner on 15.11.2021, the request of the petitioner has been rejected by stating the following:
9. Aggrieved over the said communication dated 03.11.2021 thereby the application of the petitioner for giving permission for stoppage was rejected, the petitioner moved this writ petition with the aforesaid prayer.
10. Heard Mrs.Radha Gopalan, learned Senior Counsel appearing for the petitioner who would submit that, under Rule 172(6), this kind of application can be made for seeking permission for stoppage and once such application is made, that should be quickly processed and decided and based on the reasons stated in the application for stoppage permission, normally permission would be granted initially for twenty days and thereafter depending upon the reasons to be adduced in this regard and on consideration of the same, further extension of stoppage permission would be granted by the authorities concerned, this is what in fact has been contemplated under sub-rule (6) of Section 172 of the Rules.
11. However, in the case of the petitioner, though the petitioner made an application at the earliest point of time i.e., immediately after the lifting of the lock down by notification issued on 22.09.2021, this application on 24.09.2021 was made, where, the clear intention of the petitioner to seek for such a stoppage permission has been mentioned for a period of three months from 01.10.2021 to 31.12.2021 and in this regard, the fee prescribed with penalty under Rule 279 also having been paid, the petitioner when was waiting for an order to be passed in this regard by the respondents, belatedly the rejection order, which is impugned herein dated 03.11.2021, has been passed and served on the petitioner on 15.11.2021.
12. By virtue of this rejection order, now the petitioner has been put in an unenviable situation, where the petitioner has to pay the tax for the quarter commencing from 01.10.2021 to 31.12.2021 knowing well that, none of the vehicle belongs to the petitioner is in operation. This kind of outright rejection made by the respondents through the impugned communication without assigning any plausible reason except to state that, the notification has been issued by the Government permitting the AC buses also to ply with 50% occupancy from 24.09.2021, the impugned order does not meet the requirement of process as contemplated under sub-rule (6) of Rule 172 where under the first proviso, it has been mentioned that, normally upto twenty days this kind of permission would be granted and only for extension exceeding twenty days at a time, the second proviso made it clear that, it may be extended for such period or periods as the Transport Authority thinks fit.
13. When such a procedure is contemplated under Rule 172(6), the same should have been invoked and the request of the petitioner ought to have been accepted and the permission for stoppage should have been given. However, without any plausible reason since the same has been rejected, the petitioner seeks indulgence of this Court to quash the said order and to give a consequential direction to the respondents to give such permission for stoppage for the period of 3 months, she contended.
14. On the other hand, Mrs.V.Yamuna Devi, learned Special Government Pleader appearing for the respondents has relied upon the following averments made in the counter affidavit:
6. It is further submitted that, the Government in its letter dated 22.09.2021, in Letter No.30794/D.M. IV(1)/2021-2, have permitted plying of the vehicles within in District as well as intra State and inter State public transport to Andra Pradesh, Karnataka, Pudhucherry, with 50% seating with air conditioning facility by following the Standard Operating Procedures. The Government of Tamil Nadu has also extended the payment of tax for the Q.E.:30.09.2021 for the period up to 30.09.2021 considering the pandemic situation in view of Public interest.
7. It is further submitted that with regard to the averments made in paragraph 4 to 11 of the affidavit, it is submitted that various Omni bus operators have submitted their stoppage applications due to non operation of their vehicles on road and the petitioner is one among them. It is submitted that the Government of Tamil Nadu have allowed the operation of the Public Transport with AC facility with occupancy of 50% of the passengers in Government Letter No.30794/D.M.IV(1)/2021-2 dated 22.09.2021. It is further submitted that, the Government of Tamil Nadu vide their press relase dated 23.10.2021 have allowed for the operation of Non AC and AC Buses of inter and intra state permits with 100% occupancy except the State of Kerala due to bird flu.
8. It is submitted that, the representation dated 24.09.2021 submitted by the writ petitioner was scrutinized and processed. It is submitted that, a detailed reply was sent to the petitioner in Lr.No.19026/A1/2020 dated 3.11.2021 by the Joint Transport Commissioner (Rules). According to the said reply, the fee for stoppage of Application under Motor Vehicles Rules was not paid as required by the said Rules and also it has to be paid under the caption “Non-use intimation”. According to the said Rule the fee should be paid for every twenty days of stoppage, whereas the writ petitioner paid the said fee cumulatively on 26.08.2021 under the caption “Miscellaneous”rather than “Non-use intimation”which is violative of the said rule. It is submitted that, due to considerable reduction in the spread of the Corona Virus in the State of Tamil Nadu, the Government of Tamil Naduhave allowed all types of operation of the stage carriages and Omni Buses with effect from 22.09.2021 with 50% occupancy. It is submitted that, the writ petitioner in their representation has stated that the vehicles for which they have applied for stoppages are all AC Coaches and since their vehicles have stopped for the longer period, the engine and AC need to be overhauled. The tyres of the buses needed for replacement and it involves more than 2 lakhs to 3 lakhs investment in the maintenance of their vehicles. Hence, the writ petitioner has sought further period of three months on the subject of stoppage of their vehicles and nil assessment of tax.
9. It is submitted that, it is the liability of the writ petitioner to bear the expenses to run the buses on road and the respondents are no way connected with this. It is submitted that, as per section 3 of Tamil Nadu Motor Vehicle Taxation Act, 1974 every Motor Vehicles deemed to be used or kept for use in the State of Tamil Nadu have to pay the tax under the schedules of the said act. It is submitted that, the Omni buses are contract carriages as defined under section 2(7) of the Motor Vehicle Act, 1988 is reproduced as follows:-
Contract carriage”means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorized by him in this behalf on a fixed or an agreed rate or sum –(a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another, and in either case, without stopping to pick up or setdown passengers not included in the contract anywhere during the journey, and includes –(i) a maxi cab; and (ii) a motor cab notwithstanding that separate fares are charged for its passengers.
It is submitted that, the writ petitioner has submitted a vague representation to escape from the payment of tax accrued on 01.10.2021 for the Q.E.: 31.12.2021. The representation of the writ petitioner was analyzed in the light of prevailing situation in the State of Tamil Nadu and also in the light of provisions of Tamil Nadu Motor Vehicle Taxation Act, 1974 and it was rejected under due process of law. If the demand of the writ petitioner is accepted even after the Government of Tamilnadu permitted to ply the vehicles, it would cause great loss to the Exchequer besides causing great difficulty for the public. The demand of the writ petitioner is aimed at illegal gain at the cost of the Government and back door method to circumvent the Motor Vehicles Rules.”
15. By relying upon these averments, the learned Special Government Pleader would submit that, since the lock down was lifted and a notification was issued by the State Government on 22.09.2021 thereby all the private bus operators including the petitioner since had been permitted to ply the vehicle from 24.09.2021 with 50% occupancy including the AC buses, there was no impediment for the petitioner to ply their vehicle.
16. Moreover, at the time of making the application by the petitioner on 24.09.2021 seeking for stoppage permission, the petitioner should have paid the non-use intimation fee under the caption -Non- use intimation- only for a period of twenty days. However, cumulatively on 26.08.2021 since the petitioner had paid the fee for the entire 3 months on miscellaneous head, that itself makes it clear that the application has not been properly filed with proper fee paid by the petitioner.
17. That apart, insofar as the reasons stated by the petitioner that, the petitioner requires these period for overhauling the vehicle, because these vehicles are air conditioned which has to overhaul where some spare parts, tyres have also to be replaced for the said periods, the petitioner has to spent 2 or 3 lakhs in respect of each of the bus and if all the buses run by the petitioner is taken into account which will run to Crores of rupees to be invested, that could not be invested by the petitioner immediately is concerned, it is the contention of the respondents that, it is the look after the petitioner to mobilise fund and to overhaul the vehicle to make them fit to ply. Therefore, because of this kind of inconvenience which is projected by the petitioner, the respondents cannot be expected to waive the tax for the quarter from 01.10.2021 to 31.12.2021.
18. Moreover, if the petitioner-s request is considered and granted for stoppage permission for 3 months period, because it is made to avoid the tax payable for the quarter from 01.10.2021 to 31.12.2021, all other similarly placed persons like the petitioner who were also plying the Omni bus / Contract Carriage vehicle, will make a similar request to the Government and in that case, since 1200 Omni Buses are plying in the State of Tamil Nadu, if all of them have come forward to make such a request, then, there will be a huge revenue loss to the Government to the extent of Rs.1296 lakhs per quarter. Therefore, for that reason also, the request made by the petitioner has been rejected, the learned Special Government Pleader contended.
19. I have considered the said submissions made by the learned counsel for the parties and have perused the materials placed before this Court.
20. Insofar as the permission sought for by the petitioner for stoppage of the vehicle is concerned, the Rule 172(6) of the Rules reads thus:
(6) It shall be a condition of the permit of every transport vehicle that the vehicle will be so maintained as to be available for the service for which the permit was granted for the entire period of currency of the permit and that the permit is liable to be suspended or cancelled, after due notice to permit holder if the vehicle has not been used for the purpose for which the permit was granted for a continuous period of more than ten days during the period for which the permit authorise the use of the vehicle on the road, unless the holder of the permit had obtained in writing the prior permission of the Transport Authority to suspend the service of the vehicle for a specific period exceeding ten days:
Provided that no holder of a permit shall ordinarily be granted permission to suspend the service of the vehicle for a continuous period exceeding twenty days at a time:
Provided further that the period may be extended by such further period or periods, as the Transport Authority thinks fit:
Provided also that the holder of a permit shall pay the fee prescribed in the Table under rule 279.”
21. As per sub-rule (6) of Rule 172, as quoted herein above, such kind of application can be made for getting permission for stoppage of the vehicle for a specific period exceeding ten days. First proviso to sub-rule (6) says, no holder of a permit shall ordinarily be granted to suspend the service of the vehicle for a continuous period exceeding twenty days at a time. Provided, the second proviso says, for a further period, it may be extended by such further period or periods, as the Transport Authority thinks fit. Therefore, in the normal course, whenever such application is made for seeking stoppage permission, that would normally be given for a period of twenty days at a time. After giving such twenty days stoppage permission, if further period is to be extended, on the request of the permit holder, then, it would be considered and decided whether has to be extended or not by the Transport Authority as they think fit.
22. Therefore, the grant of such permission for stoppage is a normal and routine process, of course for a period of twenty days. But, here in the case in hand, though the application was made on 24.09.2021, which was considered and rejected by order dated 03.11.2021 signed on 09.11.2021 and served on the petitioner on 15.11.2021 within which the twenty days period was over, where, there has been a rejection order passed stating the reason that, the vehicles could be plied from 24.09.2021 with 50% occupancy.
23. Absolutely, there is no quarrel that the Government lifted the lock down by permitting the Bus Operator to ply the vehicle from 24.09.2021 with 50% occupancy. However, the fact remains that, these kind of vehicles fitted with air condition since have been halted for nearly about a year or more, it become imperative that, it requires a complete overhauling of the vehicle. For the said purpose, two factors are to be noted. One is that the time consumption, the second one is that the expenses to be incurred by the operator.
24. Insofar as the expenses to be incurred by the operator is concerned, as stated by the respondents, it is the look after of the petitioner for the expenses to be incurred by the operator, for which, the respondents have no role to play. However, the time consumption is concerned, what is a reasonable time has to be given, if the buses in respect of the AC buses run by the petitioner to get overhauling the vehicle, then only the vehicle will be put in public use in the road, otherwise, it will be a dangerous exercise if the respondents permitted the operator like the petitioner to ply the vehicle i.e., from 24.09.2021 without even overhauling the vehicle, as that will be endangering to the passengers who occupy the vehicle.
25. Therefore, these aspects should have been borne in mind by the respondents while considering the application made in this regard by the petitioner. However, these kind of consideration seems to have not been shown by the respondents before deciding the application of the petitioner, as has been reflected in the content of the impugned order.
26. Moreover, the petitioner also has paid the necessary fee as contemplated under Rule 279 along with penalty.
27. However, the defence taken by the respondents is that the fee should have been paid only for twenty days in a particular head called -Non-use intimation-, but it was paid cumulatively on 26.08.2021 for the whole period of three months.
28. This may be a technical error. Moreover, normally if a lower fees is paid, the respondents can take an excuse saying that the necessary fee has not been paid by the applicant. If at all any excess fee paid, only for the period of twenty days what are all fees can be utilised that could have been utilised by the respondents to give such permission for stoppage of the vehicle for the initial period of twenty days, which is contemplated under sub-rule (6) of Rule 172, but no such exercise has been taken.
29. These reasons would cumulatively show that, the respondents before passing the order impugned has not considered the relevant factors, especially in the context of Rule 172(6) and therefore, for the said reason, this Court feels that the impugned order is vitiated.
30. However, in passing the order since they have taken 1 months and thereafter, since the order has been challenged before this Court, in the meanwhile, the quarter i.e., 3 months period from 01.10.2021 to 31.12.2021 is almost over as we are in the end of the quarter period, during this period, assuming that, if twenty days stoppage permission is granted to the petitioner, for the remaining period, the petitioner has to pay the tax, provided if the petitioner was able to run the vehicle. However, the fact remains that, the petitioner could not ply the vehicle for the reasons stated above and moreover, since the rejection order itself is under challenge in this writ petition, the vehicle altogether have not been plied till date.
31. Therefore, under these circumstances, whether the petitioner can be directed to pay the tax for the quarter ending 31.12.2021 or the petitioner can be permitted to seek waiver of the tax for any other ground, regarding which, this Court feels that, the only ground available for the petitioner is to surrender the permit, if the petitioner is not able to overhaul the vehicles till date and ply these vehicles atleast from today.
32. For that arrangement, during the course of argument, when a specific question was posed by this Court, Mrs.Radha Gopalan, learned Senior Counsel appearing for the petitioner, on instant instructions from the petitioner, has submitted that, the petitioner since is not in a position to complete the overhauling for all these reasons, the petitioner has come forward to surrender the permit for the time being and therefore, if at all any application to surrender the permit is made by the petitioner, the respondents shall not demand the tax for the quarter for the period from 01.10.2021 to 31.12.2021. With that condition, the petitioner is ready to surrender the permit, she contended.
33. In respect of this suggestion made across the Bar, Mrs.V.Yamuna Devi, learned Special Government Pleader, on instructions, would submit that, if this is accepted, this should only be a case pertaining to the petitioner in view of the peculiar facts and circumstances, therefore, this cannot be treated as a precedent, otherwise all such similarly placed Omni Bus Operators in the State would come forward before the respondent Authority to surrender the permit and in that case, it would be a great loss to the exchequer of the State especially during these period of pandemic time, by which the State is already struggling to meet both ends.
Please Login To View The Full Judgment!
34. These aspects also have been taken into account by this Court and in order to resolve this issue to balance both sides, this Court feels that, insofar as the petitioner-s plea is concerned, for stoppage of the vehicles and stoppage permission is concerned, though the said issue can be resolved, it could be a temporary relief for the petitioner only for twenty days and if the remaining period since the petitioner has to pay the tax, even if the vehicles even though not plied. Hence, in order to give a quietus to the issue, this Court feels that, the petitioner-s suggestion to surrender the permit can be accepted by the respondents, provided, the petitioner pay the tax for any other period other than the period from 24.09.2021 till 31.12.2021 and after they come forward to make an application in the prescribed format with necessary fee within a shortest possible time from today. 35. In that view of the matter and based on the aforestated discussions, this Court is inclined to dispose of this writ petition with the following orders: (i) That the petitioner is hereby permitted to make an application under Rule 204 of the Rules in format ACC to the concerned authority viz., Secretary of the Transport Authority within one week from today in respect of each of the vehicle, for which, the petitioner wants to surrender their permit. (ii) On receipt of such applications along with necessary fee to be paid by the petitioner for such surrender as contemplated under Rule 279, the respondents/concerned authority shall process the same and accept the said surrender without insisting any NOC or demand with regard to the payment of tax for the quarter from 01.10.2021 till 31.12.2021, which includes the one week period from 24.09.2021 till 30.09.2021 also. It is further made clear that, since the period between 24.09.2021 and 30.09.2021 is covered by the exemption period already given by the Government due to Covid-19 first wave and second wave, such kind of waiver does not arise. However, insofar as the quarter from 01.10.2021 to 31.12.2021, no tax shall be demanded from the petitioner without which the application to be submitted by the petitioner, as indicated above, under Rule 204, shall be processed and the surrender permission shall be accepted by the respondents. 36. With these directions, this Writ Petition is disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.