Skip to content


Smt. Annapurna Parija Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1986CriLJ115
AppellantSmt. Annapurna Parija
RespondentState of Orissa and ors.
Excerpt:
.....by such executive orders or circulars or instructions nor can they replace statutory rules. - samantaray appearing for the petitioner raises only one contention that the tax for the period (sic) provided under section 13 of the act, no offence has been committed by the petitioner and as such the cognisance taken by the learned magistrate for an offence under section 20 of the act is bad in law. 13. penalty for failure to pay- (1) where the tax for any period in respect of a motor vehicle has not been paid as required by or under the provisions of this act and continues to remain unpaid for a period of fifteen days from the due date of payment, the taxing officer may in respect of such vehicle impose a penalty of an amount equal to the quarterly tax for the first quarter together..........indicating that the petitioner had violated the provisions of section 13 of the orissa motor vehicles taxation act, 1975 (hereinafter referred to as the 'act'). on the basis of the said prosecution report, the learned magistrate took cognisance and on receipt of summons from the magistrate, the petitioner entered appearance. the petitioner thereafter filed an application before the learned magistrate that the tax in question had been paid on 14-7-1981 and, therefore, no offence had been committed by her. it was further contended in the said application that the sub-divisional judicial magistrate had no jurisdiction to take cognisance of an offence under section 13 of the act. the learned sub-divisional judicial magistrate by his order dated 3-4-1984 came to hold that he had.....
Judgment:
ORDER

G.B. Patnaik, J.

1. Petitioner is the owner of a motor vehicle bearing registration number OHU 8052. The said vehicle while operating on the route Cuttack to Paradeep was checked by the Officer-in-Charge, Tirtol Police Station on 13-7-1981 and it was found that the tax for the quarter had not been paid. The Officer-in-Charge, Tirtol Police Station, submitted a prosecution report to the Sub-Divisional Judicial Magistrate, Jagatsinghpur, indicating that the petitioner had violated the provisions of Section 13 of the Orissa Motor Vehicles Taxation Act, 1975 (hereinafter referred to as the 'Act'). On the basis of the said prosecution report, the learned Magistrate took cognisance and on receipt of summons from the Magistrate, the petitioner entered appearance. The petitioner thereafter filed an application before the learned Magistrate that the tax in question had been paid on 14-7-1981 and, therefore, no offence had been committed by her. It was further contended in the said application that the Sub-Divisional Judicial Magistrate had no jurisdiction to take cognisance of an offence under Section 13 of the Act. The learned Sub-Divisional Judicial Magistrate by his order dated 3-4-1984 came to hold that he had no jurisdiction to take cognisance of an offence under Section 13 of the Act, but ultimately he exercised his suo motu power and took cognisance of the offence under Section 20 of the Act. The petitioner carried a revision before the learned Sessions Judge who had fixed the hearing of the case to 14-8-1984. On 14-8-1984 on account of 'Orissa Bundh', the petitioner's counsel could not be present in Court. On the next working day, i.e. on 16-8-1984, the petitioner's counsel came to learn that the Sessions Judge had decided the revision on merits in absence of the petitioner and her counsel and had dismissed the revision. The petitioner has, therefore, invoked the extraordinary jurisdiction of this Court to quash the cognisance and the criminal proceeding itself.

2. Mr. Samantaray appearing for the petitioner raises only one contention that the tax for the period (sic) provided under Section 13 of the Act, no offence has been committed by the petitioner and as such the cognisance taken by the learned Magistrate for an offence under Section 20 of the Act is bad in law. This contention of Mr. Samantaray is based upon the language used in Section 13 of the Act. For the sake of convenience, Section 13 is quoted herein below in extenso:

13. Penalty for failure to pay-

(1) Where the tax for any period in respect of a motor vehicle has not been paid as required by or under the provisions of this Act and continues to remain unpaid for a period of fifteen days from the due date of payment, the taxing officer may in respect of such vehicle impose a penalty of an amount equal to the quarterly tax for the first quarter together with twice the quarterly tax for every subsequent quarter as may be comprised within the said period.

Explanation - For purpose of this sub-section-

(a) any fraction of a quarter comprised within the period shall be reckoned as one quarter;

(b) due date of payment shall be the date of expiry of the period for which tax had been last paid, and in cases where no such tax had previously been paid, the date of acquisition of the vehicle.

(2) The penalty imposed under Sub-section (1) shall be without prejudice to the liability, if any, that may be incurred under any of the other provisions of this Act or the Rules made thereunder but no such penalty shall be imposed without giving the party concerned a reasonable opportunity of being heard.

Section 13, in my opinion, is the provision for levy of penalty for failure to pay. It is a self-contained provision, independent of other provisions of the Act dealing with the situation when a penalty can be levied as well as the rate of penalty to be levied. There can be no manner of doubt that penalty contemplated under Section 13 cannot be levied unless the tax remains unpaid for a period of fifteen days from the due date of payment. The term 'due date of payment' has been defined in the Explanation to the said section to mean, the date of expiry of the period for which tax had been last paid. But the said provision will not obliterate if any offence is committed under any other provisions of the Act. It is necessary, therefore, to examine the other provisions of the Act to find out whether any offence is made out when tax is not paid and a vehicle is used on road.

3. Under Section 3 of the Act tax is leviable on every motor vehicle used or kept for use within the State at the rate specified in the schedule. Thus, under Section 3, an owner of a motor vehicle is liable to pay tax even if the vehicle is not actually used on the road. Section 4 of the Act provides that the tax shall be paid in advance within such time and in such manner as may be prescribed, by the owner of a vehicle. Thus, payment of tax for a motor vehicle is in the nature of an advance tax. Section 10 of the Act provides that when any motor vehicle is intended not to be used for any period, then the owner of the vehicle must give prior intimation of discontinuance of use of the vehicle to the Taxing Officer in the form of an undertaking duly signed by him and Sub-section (2) thereof provides that if during such period, the vehicle is found being used or kept at a place in contravention of the undertaking, then for the purposes of the Act, it must be deemed to have been used throughout the said period. Section 17 of the Act authorises a police officer not below the rank of a Sub-Inspector or an officer of the motor vehicles department not below the rank of Junior Inspector of Motor Vehicles or any other officer specially authorised by the Transport Commissioner in that behalf, to stop any vehicle in any public place and to cause it to remain so long as necessary for the purpose of satisfying himself that the amount of tax in respect of such vehicle has been paid. Sub-sec (2) of Section 17 authorises the concerned officer proceeding under Sub-section (1) to seize the vehicle and detain the same in case tax has not been paid in accordance with the provisions of the Act. Section 20 of the Act provides that whoever uses a motor vehicle or keeps a motor vehicle for use without having paid the tax in respect of such vehicle, is liable to be convicted and shall be punished with fine, as provided in the said section. A combined reading of all these provisions referred to earlier makes it absolutely clear that if a vehicle is used or kept for use without payment of tax, then an offence is committed by the person who uses the said vehicle, within the meaning, of Section 20 of the Act. The grace period provided for in Section 13 to pay tax within fifteen days from the due date of payment is only relevant for the purpose of levy of penalty, that is, no penalty can be levied within that period of fifteen days even if tax has not been paid on the due date of payment, but that does not mean that no offence is committed during that period. An offence is committed under the Act the moment a vehicle is used or kept for use without payment of any tax by the due date of payment. Obviously, therefore, on 13-7-1981, the vehicle in question having been found to have been used without payment of tax, an offence has been committed and, therefore, the learned Magistrate was fully within his jurisdiction to take cognisance of the offence under Section 20 of the Act.

4. In the result, therefore, I do not find any merit in this miscellaneous case which is accordingly dismissed. The interim order passed by this Court on 28-9-1984 is hereby vacated.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //