Madhya Pradesh High Court
Ram Kumar Sharma vs The State Of Madhya Pradesh on 12 January, 2010
(1)
HIGH COURT OF MADHYA PRADESH : JABALPUR
W.P. No. 1584/2005
M/s Hardeo Motor Transport Company
Vs.
State of Madhya Pradesh and others
W.P. No. 4063/2005
Mariya Ashif
Vs.
State of Madhya Pradesh and others
W.P. No. 4330/2005
Umesh Kumar William
Vs.
State of Madhya Pradesh and others
W.P. No. 5260/2005
Mohammad Salim Sheikh
Vs.
State of Madhya Pradesh and others
W.P. No. 10871/2005
Santosh Kumar Gupta
Vs.
State of Madhya Pradesh and others
W.P. No. 11381/2005
M/s Chain Rai Ayai Das
Vs.
State of Madhya Pradesh and others
(2)
W.P. No. 14580/2005
Shiv Narayan Soni
Vs.
State of Madhya Pradesh and others
W.P. No. 1764/2006
Ravindra Singh
Vs.
State of Madhya Pradesh and others
W.P. No. 1892/2006
Aakash Gupta
Vs.
State of Madhya Pradesh and others
W.P. No. 5458/2006
Anil Kumar Sood
Vs.
State of Madhya Pradesh and others
W.P. No.7809 /2006
Firoj Ajameree
Vs.
State of Madhya Pradesh and others
W.P. No. 7810/2006
Yogendra Dev Pandey
Vs.
State of Madhya Pradesh and others
W.P. No. 7815/2006
Smt. Laxmi Mishra
Vs.
State of Madhya Pradesh and others
(3)
W.P. No. 7992/2006
Smt. Sarla Modi
Vs.
State of Madhya Pradesh and others
W.P. No. 7998/2006
Ajay Kumar Choubey
Vs.
State of Madhya Pradesh and others
W.P. No. 8817/2006
Sanjay Bus Service
Vs.
State of Madhya Pradesh and others
W.P. No. 8818/2006
Rajesh Verma
Vs.
State of Madhya Pradesh and others
W.P. No. 8829/2006
Ravindra Kumar Joshi
Vs.
State of Madhya Pradesh and others
W.P. No. 12267/2006
Purushottam Gupta
Vs.
State of Madhya Pradesh and others
W.P. No. 12719/2006
Rammulal Patel
Vs.
State of Madhya Pradesh and others
(4)
W.P. No. 12721/2006
Vivek Patel
Vs.
State of Madhya Pradesh and others
W.P. No. 17331/2006
Anoop Gupta
Vs.
State of Madhya Pradesh and others
W.P. No. 18326/2006
Mukesh Yadav
Vs.
State of Madhya Pradesh and others
W.P. No. 1055/2007
Sandeep Sahu
Vs.
State of Madhya Pradesh and others
W.P. No. 6286/2007
Ramesh Upadhyay
Vs.
State of Madhya Pradesh and others
W.P. No. 6287/2007
Ram Kumar Sharma
Vs.
State of Madhya Pradesh and others
W.P. No. 7197/2007
Mohammad Salim Khan
Vs.
State of Madhya Pradesh and others
(5)
W.P. No. 8134/2007
Rakesh Chhabra
Vs.
State of Madhya Pradesh and others
W.P. No. 8135/2007
Smt. Pramila Chhabra
Vs.
State of Madhya Pradesh and others
W.P. No. 10954/2007
Pramod Kumar Jain
Vs.
State of Madhya Pradesh and others
W.P. No. 10956/2007
Sheikh Rafizue
Vs.
State of Madhya Pradesh and others
W.P. No. 14852/2007
M/s Rajmal Mishrilal Jain
Vs.
State of Madhya Pradesh and others
W.P. No. 17623/2007
Lavkesh Kumar Deewan
Vs.
State of Madhya Pradesh and others
W.P. No. 7948/2008
Ramesh Patel
Vs.
State of Madhya Pradesh and others
(6)
W.P. No. 3161/2009
Karan Kumar Patel
Vs.
Secretary, State of Madhya Pradesh and others
W.P. No. 3344/2009
Pt. Ram Narayan Gautam
Vs.
Secretary, State of Madhya Pradesh and others
W.P. No. 7079/2009
Santosh Kumar Rai
Vs.
Secretary, State of Madhya Pradesh and others
W.P. No. 7771/2009
Saiyyad Ishaq Mohammad Shah
Vs.
Secretary, State of Madhya Pradesh and others
W.P. No. 4434/2006
Jyoti Constuctions Proprietor
Vs.
State of Madhya Pradesh and others
W.P. No. 12472/2006
Javed Khan
Vs.
State of Madhya Pradesh and others
W.P. No. 462/2008
Smt. Manorama Sharma
Vs.
State of Madhya Pradesh and others
(7)
DB : Hon. Arun Mishra & Hon. S.C. Sinho, JJ
Shri B.K. Rawat, Shri H.C. Kohli, Shri Subodh Pandey,
Shri Ashish Rawat, Shri Amod Gupta, Advocates for petitioners.
Shri Deepak Awasthi, Government Advocate for State.
Whether approved for reporting :
ORDER
(12.1.2010) As Per : Arun Mishra, J.
1. In these writ petitions the transporters have assailed the constitutional validity of the provision of Section 16(5) of M.P. Motoryan Karadhan Adhiniyam, 1991 (hereinafter referred to as Adhiniyam, 1991) as amended by Act No. 27 of 1999. Prayer has also been made to quash the seizure of the vehicle in question.
2. Facts are being referred from W.P. No. 1584/2005.
It is averred in the petition that petitioner carries on the Passengers Transport Business and is holding a regular All India Tourist Permit, which was valid from 3.1.2004 to 2.1.2009. Advance tax has been paid every month as per the provision of the Adhiniyam, 1991, which is required to be paid by 10th day of every month. After payment of tax, the certificate in Form J has also been issued by the Tax Officer, Seoni. No tax was due in respect of the the vehicle in question i.e. tourist bus. The bus was going from Seoni to Nagpur, Shegaon, Ajanta, Alora, Jalgaon, (8) Indore, Ujjain, Bhopal, Pachmadhi and Chhindwara. The bus was checked by respondent No. 3 Transport Sub Inspector and inspite of production of all the documents including the permit, he seized the vehicle under sections 66/192-A and 146/196 of the Motor Vehicles Act on the allegation of plying the vehicle without permit. In the seizure memo and Panchnama, Section 16(3) of the Adhiniyam, 1991 was mentioned. It has also been mentioned that no tax was due. Tourist vehicle was checked on 1.3.2005, on which date no tax was due nor any demand notice had been issued after due assessment, as contemplated under section 8(3)(4) of Adhiniyam, 1991. It is submitted that tax due means issuance of demand notice after due determination of the tax and in the instant case there was no such determination, hence it could not be said that tax was due. Under the prescribed form U-1, for demand notice, 7 days' time is precondition for detention of the vehicle under section 16(3) of the Adhiniyam, 1991. Vehicle could not have been seized invoking the provision of Section 16(3) of Adhiniyam, 1991. Seizure of the vehicle was patently illegal and without jurisdiction. Petitioner had filed an application before the concerned authority for releasing the vehicle, it was not released. An application was also filed before the CJM to release the vehicle on Supurdnama. The Magistrate rejected the application vide order (P-7) dated (9) 17.3.2005. It is submitted that registration certificate could have been seized not the vehicle. Reliance has been placed upon the decision of this Court in Nikhata Afros and others Vs. Union of India and others - AIR 1997 MP 41. It is submitted that section 16(5) has been added to the Adhiniyam, 1991 by which the Court's power has been curtailed which has been conferred upon the Court under sections 451 and 457 of Cr.P.C. The State legislature has no competence to curtail the powers of the Court, which can only be done by the Parliament. Thus, amendment is violative of Article 254(2) of the Constitution of India. The Magistrate ought to have exercised the power and ought to have examined the correctness of allegation about the tax due. Thus the amendment in subsection (5) of Section 16 of Adhiniyam, 1991 is ultra vires. The amendment made to section 16 about confiscation of the vehicle has already been quashed by the Apex Court in M.P. AIT Permit Owners Associatiion and another Vs. State of M.P. - 2004(1) SCC 320. Prayer has also been made to clarify the Full Bench decision of this Court in State of M.P. Vs Rakesh Kumar Gupta - 1998(2) MPLJ 249.
3. In the return filed by the respondents in W.P. No. 8818/2006, which has been adopted in all cases, it is contended that it is within the competence of State Legislature to enact the provisions like Section 16(5) of (10) Adhiniyam, 1991. The said provision is not violative of Article 254(2) of the Constitution. Property has not been produced before the Criminal Court as such Sections 451 and 457 of Cr.P.C. 1973 are not applicable. The provision of Section 16(5) of Adhiniyam, 1991 is not repugnant to Sections 66 and 192-A of the Motor Vehicles Act. It is further submitted that section 16 of the Adhiniyam, 1991 makes a provision regarding power of entry, seizure and detention of motor vehicle in case of non payment of tax. Section 16(3) provides that the Taxation Authority or any other officer authorized by the State Government in this behalf may, if it or he has reason to believe that a motor vehicle has been or is being used without payment of tax, penalty or interest due, seize and detain such motor vehicle and for the purpose take or cause to be taken any step as may be considered proper for the temporary safe custody of such motor vehicle and for the realization of tax due. Section 16(3) is intended as a step for recovery of the tax, penalty or interest due and the vehicle is detained until such time as such tax or other liabilities are realized. Vehicle has been seized for that purpose, by itself will not result in confiscation of the vehicle. Provision cannot be said to be penal. Provision does not encroach upon the judicial power of the Court taking cognizance of the offence. There are two categories of motor vehicles viz contract carriages and state carriages, for which different (11) rates of taxation is applicable and unless such tax has been paid in respect of usage no permit is available and operation of vehicle is without such permit and no tax due to the State has been paid. It is to curb this evasion that the provisions of Section 16(3) and 16(5) have been introduced. Same cannot be said to be beyond the legislative competence of the State. Other facts have also been denied. Merely by the fact that Sections 16(6), 16(7) and 16(8) of Adhiniyam, 1991 have been declared ultra vires by the Apex Court, does not affect the validity of provision of Section 16(5) of Adhiniyam, 1991.
4. Sarva Shri B.K. Rawat, H.C. Kohli, Subodh Pandey, Ashish Rawat,, learned counsel appearing for the petitioners have submitted that once Apex Court has declared the provisions of Sections 16(6), 16(7) and 16(8) of Adhiniyam, 1991 as ultra vires, on the same analogy provision of Section 16(5) deserves to be declared ultra vires which creates unconstitutional embargo on the power of the Court to make judicial review of the action. Reliance has been placed on the decision of Nikhata Afros and others Vs. Union of India and others (supra) to submit that only the registration certificate ought to have been seized not the vehicle before assessment is made, as apparent from Form U-1 and U-2 prescribed under Rule 17 of M.P. Motoryan Karadhan Rules read with section 16(3) of the Adhiniyam, 1991. (12) Since assessment has not been done earlier in point of time, drawing of Panchnama and seizure of the vehicle was impermissible act. Without due opportunity, vehicle cannot be seized. Reliance has also been placed upon the provision of Section 130(3) of the Motor Vehicles Act. It is also submitted that provision of Section 16(5) of Adhiniyam, 1991 is extremely harsh and vehicle of 10-20 lakhs was seized for a paltry amount of tax, which may ultimately be found due. The provision is not being followed in true spirit , is being grossly misabused and at the same time it takes away power of the Court to look into the matter, thus, it deserves to be declared arbitrary being violative of Article 14. Reliance has been placed on a decision of Apex Court in Hardev Motor Transport Vs. State of M.P. & others - (2006) 8 SCC 613 and other decisions to be referred later.
5. Shri Deepak Awasthi, learned Government Advocate appearing on behalf of the State has supported the vires of the provision of Section 16(5) of Adhiniyam, 1991. He has submitted that Section 16(3) of Adhiniyam, 1991 provides for seizure of the vehicle in the case of default of payment of tax. Said provision has not been assailed. Adhiniyam, 1991 which contains aforesaid provision has received assent of the President. Even before enactment of Section 16(5) of Adhiniyam, 1991, Full Bench of this Court in State of M.P. Vs Rakesh Kumar Gupta (supra) (13) has held that provision of section 451 and 457 are not applicable in such cases where property has not been produced before the Criminal Court. Thus even in the absence of provision of section 16(5) the Full Bench of this Court has opined that once vehicle has been seized, it can be released only by the authorities or in the writ jurisdiction by this Court. Criminal Court has no power to release the vehicle under section 451 and 457 of Cr.P.C. Thus introduction of section 16(5) of Adhiniyam, 1991 has not made any change in the position, which was existing before amendment was incorporated. Even otherwise when the Apex Court has dealt with the question in Hardev Motor Transport Vs. State of M.P. & others (supra) , it has been observed by the Apex Court that even taking away of the Court's power under section 16, cannot be said to be repugnant to Article 14 of the Constitution. Thus counsel has submitted that the submission raised as to the legality of the action taken, cannot be a ground to declare the provision as ultra vires. The relevant document must accompany the vehicle in question at the time when it is intercepted. In case documents are not accompanying the vehicle in question, there may be a reason for formation of belief as contemplated under section 16(3) of the Motor Vehicles Act. On that basis only, Panchnama is drawn and notice is issued. It is not that assessment has to be made after intercepting the (14) vehicle first and thereafter notice has to be issued for the purpose of seizure of the vehicle, that will make the provision impracticable and inefficacious.
6. First we refer to the provision of Section 16 of Adhiniyam, 1991. Section 16 of Adhiniyam, 1991 is quoted below :-
16. Power of entry, seizure and detention of Motor Vehicle in case of nonpayment of tax.- (1) The Taxation Authority or any other officer, authorized by the State Government in this behalf, may at all reasonable time enter into and inspect any motor vehicle or premises where he has reason to believe that a motor vehicle is kept for the purpose of verifying whether the provisions of this Act or any rules made thereunder are being complied with.
Provided that no officer shall be authorised under this sub-section with respect to motor cycles and motor cars. (2) Any person driving a motor vehicle in any public place shall, on being so required by the Taxation Authority or any officer authorised in this behalf by the State Government, produce -
(a) the certificate of registration
(b) the token in evidence of the payment of tax; and (c ) the certificate of insurance relating to the use of the vehicle and shall keep such vehicle stationary for such time as may be required by such authority or officer to satisfy himself that the tax in respect of such motor vehicle has been paid:
Provided that in the case of a motor vehicle other than a transport vehicle, the certificates so required shall be produced for inspection within such period and in such manner as may be prescribed under sub-section (4) of section 130 of the Motor Vehicles Act. 1988.
(3) The Taxation Authority or any officer authorised by the State Government in this behalf may if it/he has reason to (15) believe that a motor vehicle has been or is being used without payment of tax, penalty or interest due, seize and detain such motor vehicle and for this purpose take or cause to be taken any step as may be considered proper for the temporary safe custody of such motor vehicle and for the realisation of tax due.
(4) Where a motor vehicle has been seized and detained under sub-section (3), the owner or the person incharge of such vehicle may apply to the Taxation Authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and if such authority or officer, after verification of such documents, is satisfied that no amount of tax is due in respect of that vehicle, may by an order in writing release such vehicle.
(5) Where a motor vehicle has been seized and detained under sub-section (3), the Court taking cognizance of the offence shall not release such vehicle. (6) Subject to the provisions of sub-
section (8), where, the taxation authority upon receipt of report about the seizure of the vehicle under sub-section (3) is satisfied that the owner has committed offence under Section 66 read with Section 192-A of that Motor Vehicles Act, 1988 of plying vehicle without permit and he may by order in writing and for reasons to be recorded confiscate the vehicle seized under said sub-section. A copy of order of confiscation shall be forwarded without any undue delay to the Transport Commissioner.
(7) No order of confiscating any vehicle shall be made under sub-section (6) unless the Taxation Authority :-
(a) sends an intimation in the form prescribed about initiation of proceedings for confiscation of vehicle to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made;
(b) issues a notice in writing to the person from whom the vehicle is seized and to the registered owner;
(16)
(c ) affords an opportunity to the persons referred to in clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation; and
(d) gives to the officer effecting the seizure and the person or the persons to whom notice has been issued under clause (b), a hearing on due date to be fixed for such purpose.
(8) No order of confiscation, under sub- section (6), of any vehicle shall be made if any person referred to in clause (b) of sub-section (7) proves to the satisfaction of the Taxation Authority that such vehicle was used under valid documents required under the Act.
7. Provisions of Sections 16(6), 16(7) and 16(8) of Adhiniyam, 1991 have been declared ultra vires by the Apex Court in M.P. AIT Permit Owners Associatiion and another Vs. State of M.P. (supra). In Hardev Singh Vs. State of M.P. And others (supra) entry IV (g) of Sch. I read with Expln.(7) of Sch. I has been declared to be unconstitutional.
In M.P. AIT Permit Owners Association and another Vs. State of M.P. (supra) the Apex Court has dealt with the offence under section 66 read with Section 192-A of the Motor Vehicles Act which provides for fine as well as imprisonment. Additional punishment of confiscation of the vehicle prescribed under section 16(6) of the Adhiniyam, 1991 for the same offence was held to be repugnant to the Central Act. It was also observed that in the absence of assent of the President, aforesaid provisions of the Adhiniyam, 1991 are invalid and liable to (17) be quashed. The Apex Court in Hardev Motor Transport Vs. State of M.P. & others (supra) has observed thus :-
19. The power of the State of Madhya Pradesh to seize a vehicle in terms of Section 16(6) of the 1991 Act came up for consideration before this Court in M.P. AIT Permit Owners Assn. v. State of M.P. -
(2004) 1 SCC 320. The question which arose for consideration therein was that having regard to the fact that the parliamentary Act provides for a lesser penalty as specified in Section 192-A thereof, can the State by reason of the taxing statute impose a higher penalty? It was held: (SCC pp. 325-26,para 9) "9. Section 192-A of the MV Act provides that if a motor vehicle is driven in contravention of Section 66(1), that is, if a vehicle is driven or caused to be driven as a transport vehicle without permit, or in contravention of any condition thereof relating to the route on which or the area in which or the purpose for which the vehicle may be used, the user is punishable with fine for the first offence and imprisonment for the subsequent offence but this section does not provide for confiscation of the vehicle. Section 16(6) of the Act provides that subject to the provisions of sub-section (8), where upon receipt of report about the seizure of the vehicle under sub-section (3), the taxation authority is satisfied that the owner has committed offence under Section 66 read with Section 192-A of the MV Act of plying vehicle without permit and he may by order in writing and for reasons to be recorded confiscate the vehicle seized under the said provision. Under Section 16(3) of the Act, a vehicle seized for non-payment of tax or other dues is liable to be returned on showing that tax has been paid. Thus, if tax with regard to the seized vehicle is paid that vehicle has got to be released. So far as the link that is sought to be established with taxation procedures is concerned, it snaps the moment tax is paid and vehicle is (18) released. In such an even also motor vehicle can be confiscated on a report that such vehicle has been seized. The cause or basis for confiscation of motor vehicle is driving such vehicle contrary to Section 66 of the MV Act read with Section 192-A of the MV Act and a report of seizure under Section 16(3) of the Act."
20. The said decision, however, was rendered on the premise that the State Act is repugnant to the Central Act.
21.It is, however, not in dispute that the 1991 Act has received the assent of the President of India. While considering the question of constitutionality of the provisions of the 1991 Act, therefore, Article 254 (2) of the Constitution of India may not have any role to play.
It is apparent from the aforesaid decision that Adhiniyam, 1991 has received the assent of the President of India and while considering the question of constitutionality of the provisions of the Adhiniyam, 1991, Article 254 (2) of the Constitution of India may not have any role to play.
8. With respect to the provisions of Section 16, in Hardev Motor Transport Vs. State of M.P. & others (supra) the Apex Court has observed that even the power of the Court has been taken away to release the vehicle unless tax is paid, and the court can satisfy itself as to whether a tax is paid or not only on the receipt of the certificate issued by the transport authorities of the State. Merely because a wide power has been conferred on the authorities, the same by itself would not lead to a presumption that the same is capable of misuse or on that count alone the (19) provisions of Article 14 of the Constitution of India would be attracted. But, when a statute confers a wide power upon a statutory authority, a closer scrutiny would be required. The Apex Court has laid down thus :-
35. The transport authorities of the State indisputably have a power to check a vehicle so as to ascertain whether payment of tax is being evaded. They have been conferred with the power to detain a vehicle.
They can release the vehicle only when tax as demanded is paid. Even the power of the court to release the vehicle has been taken away unless tax is paid and the court can satisfy itself as to whether a tax is paid or not only on the receipt of the certificate issued by the transport authorities of the State. The power of the transport authorities, therefore, is very wide. We, however, do not mean to suggest that only because a wide power has been conferred the same by itself would lead to a presumption that the same is capable of misuse or on that count alone the provisions of Article 14 of the Constitution of India would be attracted. But, when a statute confers a wide power upon a statutory authority, a closer scrutiny would be required.
9. The Apex Court n Hardev Motor Transport Vs. State of M.P. & others (supra) has further held that the appellants have paid tax, they have paid tax as specified for in permits granted in their favour as a contract carriage. The rate of tax payable by a contract carriage is higher than the rate of tax imposed on a stage carriage. For non-payment of tax or for payment of tax for a wrong purpose, a penalty can be imposed but it is difficult to (20) conceive that a different rate of tax which is not contemplated under section 3 of 1991 Act can be imposed by way of penalty. The executive while fixing a rate of duty cannot be permitted to usurp the legislative power and make a provision which would be inconsistent with the substantive provision of the statute. In other words, the provisions contained in the Schedule must be in consonance with the substantive provisions in the main Act. It must be in conformity with the charging section. As in terms of Section 3 of the 1991 Act, the legislature directed that the tax can be levied on motor vehicles subject to the rates fixed; by taking recourse to Explanation (7), firstly no new definition could be introduced and, secondly, an owner of a vehicle having one kind of permit could not have been treated as having no permit at all only because the transport authorities have reasons to believe that the conditions of permit have been violated. For the aforesaid reasons, clause (g) of Entry IV of the First Schedule of the Adhiniyam of 1991 as amended by M.P. Motoryan (Sanshodhan) Adhiniyam, 2004 read with Explanation (7) of the First Schedule has been declared to be unconstitutional.
10. In the instant case the provision which has been inserted of Section 16(5), cannot be said to be repugnant to the main section. The provision of Section 16(3) of Adhiniyam, 1991 is clear. It clearly provides that the (21) Taxation Authority or any officer authorised by the State Government in this behalf may if it/he has reason to believe that a motor vehicle has been or is being used without payment of tax, penalty or interest due, seize and detain such motor vehicle and for this purpose take or cause to be taken any step as may be considered proper for the temporary safe custody of such motor vehicle and for the realisation of tax due. Vires of provision of Section 16(3) has not been assailed. In Section 16(5) only an additional rider has been added that the Court taking cognizance of the offence, shall not release such vehicle.
11. In State of M.P. Vs. Rakesh Kumar Gupta - 1998(2) MPLJ 249, on question being referred to larger Bench whether Criminal Court can exercise the power under sections 451 and 457 of Cr.P.C in view of the provision of Sections 16(3) and 16(4) of Adhiniyam, 1991, the Full Bench of this Court considering rules 16 and 17 of M.P. Motoryan Karadhan Rules, has laid down thus:-
26. What thus, emerges can be summed up as under :-
(a) Taxation Authority or any officer authorised by state Government in this behalf can seize and detain a motor vehicle on "reason to believe" that there is fault or default in payment of amount of tax under section 16(3) of Adhiniyam. Even authorised officer, be it a Police Officer, has to operate under Adhiniyam and not Code.
Applicability of certain provisions of the Code for search or seizure is a matter of manner and procedure and (22) does not render section 451/457 of the Code operative in such cases.
(b) Application for release of the vehicle when seized and detained, lies to aforesaid authority and such authority is empowered to release on satisfaction that no tax is due in terms of section 16(4) of the Adhiniyam. The "Object of Tax" is not liable to be frustrated.
(c ) Aggrieved person can file an appeal under section 20 of the Adhiniyam on deposit of amount in question. (d) Except sections 451 and 457 of
the Code, no other provision is shown to exist for the purpose. But section 451 of the Code gets attracted only "when property is produced before any Criminal Court during any inquiry or trial" and is concerned with "proper custody of such property pending conclusion of the inquiry or trial". Section 457 of the Code comes into play when seizure is by a Police Officer who reports to a Magistrate under the Code. It empowers the Magistrate to make an order respecting disposal or delivery "to the person entitled to the possession thereof". On seizure under section 16(3), section 451 is inapplicable till stage of inquiry or trial in a Criminal Court and section 457 of the Code cannot be invoked unless seizure is by a police officer and is reported under the Code and some one is "entitled".
Person in arrear and in error is not prima facie "entitled". These two sections, thus, do not apply till requisite conditions are shown to be satisfied. At the infant stage, recourse to Criminal Court is impermissible.
Hence, only section 16(4) and section 20 of Adhiniyam held to be efficacious are applicable. This power cannot be usurped by any Criminal Court.
(23)
(e) "Statutory Forums" have to be approached. Resort to section 451 or 457 of the Code is thus, impermissible. The Criminal Court thus, does not possess jurisdiction to entertain prayer for interim release of the vehicle and grant relief under the Code. Section 19 or Rules do not indicate existence of jurisdiction of Criminal Court in case of action under section 16(3) of the Adhiniyam.
The Full Bench of this Court has laid down that Sections 451 and 457 of Cr.P.C. cannot be said to be operative in the matter of search and seizure under the provision of Section 16(3) of Adhiniyam, 1991. It has also been laid down that when a vehicle has been seized and detained, it is for the authority to release on satisfaction that "no tax is due" in terms of section 16(4) of the Adhiniyam, 1991. The object to tax is not liable to be frustrated. Aggrieved person can file an appeal under Section 20 of Adhiniyam, 1991 on deposit of amount in question. Section 451 of CrPC is not attracted nor Section 457 of CrPC is attracted in such cases. Thus even before introduction of Section 16(5) of Adhiniyam, 1991 by way of amendment, the Full Bench has opined that provisions of Section 451 and 457 of CrPC are not applicable. Thus, the position remained the same. Now there is statutory introduction of provision, otherwise also provisions of Sections 16(3) and 16(4) which existed prior to insertion of Section 16(5), have been interpreted to mean that the Criminal Court will not have the power to release the (24) vehicle under sections 451 and 457 of CrPC. The Apex Court in Hardev Motor Transport Vs. State of M.P. & others (supra) has considered the aforesaid aspect and has observed in Para-35 that if power of Court has been taken away, that cannot be said to be violative of Article 14 of the Constitution of India. Reliance has been placed on a decision of this Court in Nikhata Afros and others Vs. Union of India and others (supra) in which Division Bench of this Court has considered the provision of Section 207 of the Motor Vehicles Act and as provided in the section itself, has observed that in the case of violation when a vehicle has been used without registration certificate, permit etc., vehicle may be seized. Discretion has also been given to the authority, for said violation instead of seizing the vehicle, to seize the certificate of registration of vehicle and shall issue acknowledgment in respect thereof. But in the case of non payment of tax, aforesaid provision is not attracted, provisions of sections 16(3) and 16(4) of Adhiniyam, 1991 are applicable, vires of which has not been assailed in the instant petitions, thus we find that the aforesaid observation made by this Court is in the context of Section 207 of Motor Vehicles Act, thus it cannot be laid down that seizure of registration particulars would enough when on requisite satisfaction the authority under section 16(3) of Adhiniyam, 1991 is empowered to seize and detain the (25) vehicle till such time tax is paid. Decision in Sunderbhai Ambalal Desai Vs. State of Gujarat - (2002) 10 SCC 283 has also been relied upon. Said decision was not rendered in the context of Adhiniyam, 1991. Motor vehicle was involved in the criminal case under various provisions of IPC, in that context Apex Court has laid down the principles to be observed for exercising the discretion under sections 451 and 457 of CrPC. There is no dispute with the aforesaid principles, however, question involved in the present petitions is whether provision of Section 16(5) is ultra vires, which in our considered opinion, cannot be said to be constitutionally invalid in any manner.
12. It was also submitted by the counsel for the petitioners relying upon Rule 17 of M.P. Motoryan Karadhan Rules and Form U-1 and U-2 that assessment has to be made first, thereafter Panchnama regarding seizure can be drawn. We are not ready to accept the aforesaid submission. Satisfaction has to be reached under section 16(3) on the basis of documents which are available at the time when the search and seizure is made and if the authority or authorised officer has the reason to believe that there is evasion of tax and tax has not been paid is enough to seize the vehicle, no doubt, reasons have to be culled out as prescribed in the form for reaching the satisfaction while recording the Panchnama. Provision of (26) Rules and prescribed form has to be complied with. However, such power has to be exercised after making close scrutiny of the case. As wide power has been given to the authority, it should be exercised fully in consonance with the provisions of Adhiniyam and the rules. Vehicles have already been released by interim order passed by this Court. In the cases where assessment has not been finalized so far, respondents are directed to finalize the assessment. In case petitioners are aggrieved by the same, they can prefer the appeal under section 20 of Adhiniyam.
13. Resultantly, we hold that provision of Section 16(5) is intra vires . Challenge to the constitutional validity of the provision stands repelled. Provision cannot be said to be violative of Article 14 of the Constitution of India. Writ petitions being devoid of merit, are hereby dismissed. Parties to bear their own costs as incurred of these petitions.
(Arun Mishra) (S.C.Sinho)
Judge Judge
PB