1. The petitioner is a licensee under the Bihar and Orissa Motor Vehicles Taxation Act, 1930, and by virtue of the license runs a truck bearing No. ORS 3059. The controversy in this case relates to the tax payable for the 4th quarter 1962, that is to say, the quarter from October to December, 1962. It is not disputed that under Section 12-A Explanation (1) the due date of payment of the tax for that quarter was 1st of October, 1962, and that the tax was paid on 16th of October, 1962, The view taken by the Motor Vehicle Department was that the petitioner. In making the payment of the tax on 16th October, 1962, was late by one day and therefore, as provided in Section 12-A, a penalty of Rs. 1000 has been imposed upon him, for which necessary proceeding has already been started under the Public Demands Recovery Act.
The grievance made by the petitioner is that the payment made on 16th of October 1962 was within time as contemplated by Section 12-A of the Bihar and Orissa Motor Vehicles Taxation Act, 1930. Section 12-A(1) provides that -
'(1) Without prejudice to any other liability that may be incurred under any of the provisions of this Act or the rules made thereunder the licensing officer may, on default in payment of the tax within fifteen days from the due date of payment, impose a penalty, on the person liable to pay the tax, of an amount equal to, in the case of a default for the first time, twice the amount of the tax remaining unpaid and in the case of any subsequent default, four times such tax: Provided that no such penalty shall be imposed without giving the party concerned a reasonable opportunity of being heard.'
The controversy in the present case rests on the construction of the phrase 'within fifteen days from the due date of payment' as used in that section. As already stated, it is not in controversy between the parties that the due date, as defined in Explanation (1) to the section, was, on the facts of this case, 1st of October, 1962. In that view of the matter, if 1st of October is excluded and the period of limitation, as provided in the body of Section 12-A is counted from the 2nd of October, it is not disputed by the learned Government Advocate appearing for the Department that the payment made on 16th of October is within time. But the view taken by the authority, who passed the order, is that the period of limitation, as provided in Section 12-A has to be counted from the due date of payment, that means, in this particular case from 1st of October, 1962. In our opinion this view taken by the Department is obviously wrong as is patent from the provision made in Section 9 of the Orissa General Clauses Act, 1937. It reads, --
'In any Orissa Act it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from' and, for the purpose of including the last in a series of days or any other period of time, to use the word 'to'.'
That means, under the provision made in the section, the date on which the period of limitation, as provided in Section 12-A of the Bihar and Orissa Motor Vehicles Taxation Act, 1930 begins has to be excluded for the purpose of counting the period of limitation provided therein. In other words, in the present case, the period of limitation, as given in Section 12-A of the aforesaid Act, has to be counted from 2nd of October and not from 1st of October. So counted, the period of limitation expired on 16th of October, and as such the payment made by the petitioner was within time.
If any authority is also necessary in support of this view, we may refer here to the decision in Padma Charan Mohapatra v. Supdt. of Police, Phulbani; 1964-30 Cut LT 271= (AIR 1965 Ori 71) In reply, however, the submission made by the learned Government Advocate is that though on principle the period of limitation, as held by us, has to be counted from 2nd of October 1962, but the petitioner in the present case has failed to exhaust the remedy of appeal as provided in Section 12-A (2) of the Eihar and Orissa Motor Vehicles Taxation Act. 1930, and therefore he is not entitled to the remedy under Article 226 of the Constitution, as claimed by him.
2. In our opinion this point has no substance. The averment made by the petitioner in the petition is that he had no knowledge of the order passed by the Department imposing penalty on him and that for the first time the petitioner came to know of it on 14-8-63 when the notice of the proceedings taken under the Public Demands Recovery Act was served on him. These facts have not been controverted on behalf of the Department and therefore we see no reason not to accept them as true statements of fact. That being so, the petitioner had no opportunity to prefer an appeal against the order passed against him imposing the penalty- Therefore this contention, as advanced by the learned Government Advocate, fails.
3. In the result, the application is allowed and the order passed by the Department imposing the aforesaid penalty on the petitioner is set aside as one without jurisdiction. The petitioner is entitled to costs. Hearing fee Rs. 100 (One hundred)
4. I agree.