1. Navakoti, the writ petitioner the appellant was accorded a temporary permit for the route Nellore to Jaldanki. The State-carriage A. P. N. No.7209 on that route is required to cross a Railway level crossing at Bitragunta Railway station. On 7-3-1974 the Motor Vehicles Inspector. Kavali checked A.P.N. No. 7209 at 7-55 p.m. at Konda Bitragunta level crossing and submitted report No.14271 to the authorities. A show cause notice was issued on 11-3-1974 to the petitioner, based on the facts of the report, as to why a difference of tax in Rs. 510/- and penalty of Rs. 1,020/- should not be collected. The petitioners averred in his explanation on 15-3-1974 the vehicle A.P.N. No.7209 with thirty passengers reached Bitragunta level crossing at 5-15 p.m. on its onward journey to Nellore. The level crossing gate was closed and remained closed upto 7-30 p.m. The Stage-carriage for a long time was thus detained. The passengers became 'restive' for the gate remained closed for two hours and more due '...... to Sri Venkateswara Yearly Festival at Bitragunta town proper causing sudden detention of trains by chain pulling............ to passengers in one tone insisted.......... to take them to Nellore by some other route so as to enable them to reach Nellore at least late in the night............Unable to convince them................any Conductor and Driver.........took the vehicle most unwillingly over the alleged unauthorised route.' A certificate from the Station Master, Bitragunta was tendered in the enquiry showing the gate at Bitragunta remained closed from 17-15 to 19-30 hours.
2. The Secretary R.T.A., Nellore at first imposed a 'compounding fee of Rs.100/-'. The state Transport Appellate Tribunal at Hyderabad in R.P. 97/74 dated 27-9-1974 set aside the order for in the order it is held the imposition was without the 'consent' of the operator.
3. In the impugned proceedings as to levy of tax in R. C. No. 4095/B2/74 dated 212 1974 the relevant part of the order reads as under :
'A show cause notice was issued to the Registered Owner as to why difference of tax of Rs. 510/- along with penalty of Rs. 1010.00 should not be collected. He has submitted the explanation along with the proceedings of the Regional Transport Authority held on 28-3-1974 and pleaded that it is pending in Revision petition. The judgment of Revision petition was Seen and in R. No. 3899/A4/74 the Honourable Judge gave the findings that the compounding fee was imposed without his consent and the Temporary permit expired and there is no ease to take action. Since the provisions of Taxation Act is quite different to that of M. V. Act, I levy tax of Rs. 510/- plus a penalty of Rs. 1020/- for the quarter ending 31-3-1974.'
The levy of tax and penalty was unsuccessfully challenged in Writ Petition No. 7184 of 1974 (20-7-1976). Hence the appeal.
4. The learned counsel for the appellant urged there was no power in the Transport Authorities to have levied a 'further tax' once a vehicle was equipped with a permit. In such case no additional tax can be levied is the first argument raised by the learned counsel for the appellant. In support of this extreme contention, the learned counsel relied on the judgment reported in Kesavaiah v. R. T. O., (1971) 2 An WR 241:(1971 Tax LR 1599). This contention, in our view, is without any legal basis.
5. Section 3 of the Andhra Pradesh Motor Vehicles Taxation Act (Act V of 1963) reads a under:
'(1) The Government may by notification from time to time, direct that a tax shall be levied on every motor vehicle used or kept for use, in a public place in the State.
(2) The notification issued under Sub-sec.(i) shah specify the class of motor vehicles on which, the rates for the periods at which, and the date from which the tax shall be levied.'
(Proviso is omitted).
6. The State Government issued G. O. Ms. No. 1121. Home (Transport II), dated 1-7-1467 published in A. P. Gazette, Part I Extraordinary dated 1-7-1967.
In exercise of the powers conferred by Section 3 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963 (Andhra Pradesh Act S of 1963), and in suppression of Notification No I issued under S. 3 of the Act, and published at pages 1-4 of Part I, Extraordinary of the A.P. Gazette dated the 27th March 1963 at subsequently amended, the Governor of Andhra Pradesh hereby directs that with effect from the quarter commencing on the 1st July, 1967, a tax for a quarter shall be levied on every motor vehicle used or kept for use, in a public place in the State, all the rates specified in column (2) of the Schedule below in respect of the classes of motor vehicles, specified in column (1) thereof..................
(Schedule and Explanation I are omitted).
Explanation II:-- The distance permitted to be covered by a vehicle on a day, shall:-
(i) in the case of a motor vehicle in respect of which a permit is granted under the Motor vehicles Act. 1939 be the distance authorised to be covered according to the permit : and (ii) in the case of a motor vehicle plying without a permit granted under Motor Vehicle Act, 1939 be reckoned as above (320 K. M.),
(Explanation III is omitted)
7. Sub-clause (ii) of Expln. II in the notification empowers the taxing authorities to levy the tax if vehicle is found plying without the necessary 'permit' under Act IV of 1939. A Permit obtained for one route is not a licence for plying the Vehicle on routes other than the one prescribed in the permit. Therefore, we consider the contention raised in this regard is far-fetched and without any legal basis. The learned counsel argued the contention raised by him is supported by the observations made in the judgment of the case in.* We can not countenance such a contention. before we advert to the case* It is necessary to refer to few clauses in the notification.
8. The causes in the Expln. contemplate two different contingencies Sub-clause (i) deals with the Power to levy tax where a permit is granted and CI. (ii) deals with the user of a vehicle without a permit. The operator of a vehicle cannot treat the permit obtained for one route as licence for an the routes in the State either under the conditions of a single permit or under the provisions of Act IV of 1939. The dicta in case* expressly does not support the extreme contention but we do see in some respects the observations in that case lend support to the contention. In that decision we see the notification in G. O. Ms. No. 1121 was not even adverted to. Having regard to the provisions of the Act V of 1963 and the notification G. O. Ms. No. 1121, hold the decision into does not state the correctly. Therefore we overrule the case.
9. It was next contended plying of a vehicle on unauthorised route is an 'offence' under S.60 of Act IV of 1939 therefore the transport authorities can take action only under Act IV of 1939 and no other i.e.. no action can be taken under Act V of 1963. This contention is no more res integra for it was rejected by this Court a decade back and the decisions of this Court are collected in para 9 of the case (1971) 2 An WR 241:1971 Tax LR 1599. In the earliest of the decisions the contention was rejected and observed:
'A breach of the conditions of the permit may attract the consequences referred to in S. 60; but that circumstance cannot absolve the operator from liability to tax.'
Therefore the contention fails.
10. Next it was urged that if in a solitary instance (solitary with reference to the facts) on a single day if a vehicle is found plying on unauthorised route, the argument is, transport authorities cannot levy tax for the full quarter on a vehicle. The scant in the contention is more an 'propriety' rather on the power. Such a contention was rejected by this Court in Ramakrishna v. State of A. P., : AIR1965AP420 and was held that a stage-carriage if it was found to have been used as a stage-carriage on unauthorised route even for a 'casual user' was considered sufficient to attract the tax liability. The user of the vehicle without a permit under the Motor Vehicles Act IV of 1939 transgresses the legislative mandate in the Act and is considered 'offence'. One of the consequences of such transgression is tax liability, therefore the demand of tax for the full quarter and penalty have in origin and genesis relation to punishment. Therefore the transport authorities do not overstep their authority even in a 'solitary instance' case when they make the demand of tax for full quarter.
11. Lastly it is urged having regard to the Circumstances of the case explained by the operator on 15-3-1974 and the facts in the re port in 14271 it is argued the vehicle has not been used illegally and cannot be held to have been piled on unauthorised route.
12. Bitragunta Railway station is on the schedule route for which A.P.N. 7209 was equipped with a temporary permit. The level crossing gate, it is averred was closed on 7-3-1974 between 17-15 and 19-30 hours. The deviation made by the vehicle was in the circumstances for carrying the passengers to their destination. In such circumstances the learned counsel posed the question could it be said the operator violated the permit conditions. The answer, if it is in the negative, it is argued sub-clause (ii) of Expln. II in the notification is not attracted for eligibility of tax and penalty from the operator.
13. The respondents in this context relied in CI. (m) to S.42 of the Motor Vehicles Act (act IV of 1939) which is as under:
''to any transport vehicle which owing to flood, earthquake or any other natural calamity. Is required to be diverted through any other route whether within or outside the State view to enabling it to reach its destination. '
and urged except in the case of floods, earth quake or natural calamity 'diversion' in any other contingency even 'with a view to reach destination' on the part of the operator at tracts the taxation provision under sub-cl. (ii) of the Expln. II.
14. A 'permit' with reference to the route enables the operator to ply a vehicle. Often the highways are under repairs and at the point of repair deviations are indicated and if a stage-carriage follows the deviation indicated, could it be said the stage-carriage 'violated' the Permit condition and plied the vehicle on unauthorised route. Take also the illustration where a bridge on a highway has given way. A 'deviation' to cross the bridge, by, stage-carriage in such circumstances, can it be said results in unauthorised plying of the vehicle?. In the two instances of the illustrations there is no 'natural calamity' within the meaning of S. 42 of the Act IV of 1939. The difference between expressions 'highway' and 'route' helps in this regard in appreciating the distinction. A route 'is an abstract conception of a line of travel between one terminus and another.' (Kelani Valley Motor Transit Co. Ltd. v. Colombo Ratanpura Omnibus Co. Ltd.. 1946 AC 338, 340) while a highway is the mere physical track. Whether the user of a vehicle is unauthorised or 'deviation' raises' the issue and the determination of the question requires to decide whether the vehicle in the commercial sense was used for hire or for reward. It is a familiar proverb that necessity knows no law. Necessitas non habet legem. Necessities however do not mean always inevitable. If the vehicle. If the vehicle cannot reach its destination and deviation is inevitable or as to which there is no choice and if the deviation is not deliberate the operator in such exigencies cannot be understood to have plied the vehicle for hire or reward or abused the route permit.
15. In the instant caste whether the petitioner had 'deviation' from the course of the route and plied the vehicle in inevitable circumstances is a question of fact and we should not be understood to have expressed any opinion. The vehicle was found at Konda Bitragunta Railway level crossing at a point which is not within the prescribed route. The explanation submitted is with reference to 'facts' that transpired at Railway Station Bitragunta. The stage carriage was detained for unduly long time for more than two hours. The passengers became 'restive'. Whether it is true, whether in the circumstances intentionally and deliberately the operator 'deviation' is a fact to be determined by the taxing authorities on the facts of the case. That fact on the record in the impugned order has not been determined. The R T.O. Nellore (in para 4 of the counter affidavit) averred:
'Since the offence is held moved by the fact the petitioner had neither denied the offence nor the charge was held illegal by the State Transport Appellate Tribunal, Hyderabad the Demand notice was issued to pay difference of tax of Rs. 510/- each, penalty of Rs. 1,020/-was levied for failure to pay the difference of tan within the stipulated time allowed in the show cause notice.'
There is no finding recorded in the order.(The relevant portion of the order is extracted earlier). This aspect of the issue we consider is germane and vital and was not argued before the learned single Judge and hence was not adverted in the judgment under appeal.
16. Therefore we let aside the impugned order and direct the R. T. O. Nellore to consider in view of the explanation of the operator on 15-3.1974 whether A. P. N. 7209 was plied in 'unauthorised' manner and pees appropriate orders. The appeal is allowed No order as to costs. Advocate's fee Rs.150/-.
17. Case remanded.