Arbind Kumar Singh Vs. Nand Kishore
Prasad & Ors  INSC 50 (26 February 1968)
26/02/1968 SHAH, J.C.
CITATION: 1968 AIR 1227 1968 SCR (3) 322
RF 1986 SC1272 (100)
Constitution of India, 1950, Art. 133-'Civil
Proceeding', Scope of.
Motor Vehicles Act (4 of 1939), ss. 47, 48
and 64A-Scope ofPass ,such further order as it thinks fit', Meaning of.
Natural Justice-Revising authority calling
for additional evidence Duty to disclose to parties.
In 1950-51, the appellant was plying his
motor buses in Bihar. Bihar Act 17 of 1950 imposed a tax on passengers and
goods carried by public service motor vehicles. As the imposition of the tax
was found to be invalid the appellant did not pay the tax. In 1961, the tax was
reimposed by Act 17 of 1961 with effect from 1st April 1950 and the imposition
was found to be valid. Therefore, the appellant was liable to pay the transport
tax for 1950-51. This liability was outsanding on 15th January 1965, on which
date, the Regional Transport Authority ordered that a permit to ply a stage
carriage be granted to him on condition that he produced a clearance
certificate of transport tax within one month from the date of the order
failing which the grant will stand automatically cancelled and the permit will
be granted to the first respondent. As the appellant failed to carry out the
condition the permit was cancelled and given to the first respondent. The order
was confirmed by the Government, in revision, under s. 64A of the Motor
Vehicles Act, 1939, as amended by the Bihar Motor Vehicles (Amendment) Act,
1950, after calling for and considering a report from the Dy. Commissioner of
Commercial Taxes, that the transport tax was due from the appellant for
The writ petition in the High Court to quash
the Government order was dismissed. The appellant appealed to this Court with
certificate granted by the High Court under Art. 133 of the Constitution.
The respondent contended that the High Court
was not competent to grant the certificate in proceedings under Art.
226; and the appellant contended that : (1)
on the date of the order granting the permit there was no liability to pay the
tax as there was no assessment; (2) the condition regarding payment of tax was
invalid; (3) the Minister of Transport who disposed of the revision to the
Government had no right to call for any additional evidence; and (4) the report
of the Dy. Commissioner of Commercial Taxes should have been disclosed by the
Minister to the appellant.
HELD : (1) The words 'civil proceedings' in
Art. 133 cover all proceedings which directly affect civil rights, and
therefore the High Court was competent to grant the certificate in a proceeding
under Art. 226 involving civil rights. [324 E-F] S. A. L. Narayan Row v. Ishwar
Lal Bhagwandas,  1 S.C.R. 190 and Ramesh v. Seth Gendalal Motilal Patni, 
3 S.C.R. 198, followed.
(2) Under the scheme of the Act the liability
to pay tax arises by statutory injunction and not from any order of assessment.
Therefore, there was a liability to pay the transport tax outstanding, against
the appellant, on the date of the order granting him the permit and failure to
323 produce the clearance certificate in respect of the tax disentitled him to
the sant of a permit. [326 H; 327 C] Raipur Transport Co. (P.) v. M. P. Singh,
A.I.R. 1968 M.P.
36 distinguished (3) If it be held that the
grant of a permit was to be subject only to such of the matters specified under
s. 47(1) (a) to (f) and to such of the conditions as may be prescribed under s.
48, the order of the Regional Transport Authority in the present case must be
deemed to be an order refusing the permit, and, the appellant should have
challenged, by way of appeal, the validity of the imposition of the condition
relating to payment of tax; he could not ignore the condition subject to which
the permit was granted. [328 D-E] (4) The expression 'pass such order as it
thinks fit' in s 64A, as amended by the Bihar Act, is not restricted to the
passing of final orders. If for the purpose of doing complete justice between
the parties, the authority who hears the revision petition is satisfied that it
is necessary to call for additional evidence, he may do so.
There is no bar in the Act or the Rules
against an appellate or revising authority taking into consideration the
additional evidence brought on record. [328 G-H] (5) Such additional evidence
must undoubtedly be disclosed to the parties and they must be given an
opportunity to meet an inference that may arise from it. In the present case,
the High Court, on a consideration of the evidence came to the conclusion that
the additional evidence called for by the Minister of Transport was disclosed
by him, at the hearing, to the appellant's counsel and there was no reason for
this Court to disagree with that view. [329 A-B, H]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1943 of 1967.
Appeal from the judgment and order dated
October 24, 1967 of the Patna High Court in Civil Writ Jurisdiction Case No.
283 of 1966.
Basudev Prasad and S. N. Prasad, for the
M. C. Chagla, Saptmi Jha and B. P. Jha, for
respondent No. 1.
U. P. Singh, for respondent No. 2.
The Judgment of the Court was delivered by
Shah, J. On January 15, 1965, the South Bihar Regional Transport Authority,
Patna, ordered that a permit to ply a stage carriage on Dehri Bhabua route be
granted to Arbind Kumar Singh-hereinafter called 'the appellant on production
of all valid documents of 1964 model bus along with clearance certificate of
transport tax within one month from the date of order, failing which the
sanction of permit in his favour would stand automatically revoked, and permit
will then be given to the next deserving candidate Nand Kishore
Prasad........... On application submitted by Nand Kishore Prasad-who will .
hereinafter be referred to as 'the respondent that the appellant had failed to
324 carry out the condition relating to the grant of permit, the Chairman of
the Regional Transport Authority by order dated February 20, 1965, cancelled
the permit and directed that a permit be given to the respondent. The order of
the Chairman was reversed in appeal by the Appellate Board. In the view of the
Board "the clearance certificate" filed by the appellant showed that
all the taxes due by him were paid.
The respondent then moved the State
Government of Bihar under s. 64-A of the Motor Vehicles Act, 1939 as amended by
the Bihar Motor Vehicles (Amendment) Act 17 of 1950. The Minister of Transport
who heard the petition reversed the order of the Appellate Board, holding that
the appellant had failed to carry out the conditions subject to which the
Regional Transport Authority had ordered that the permit be given to him. A
petition under Art. 226 of the Constitution moved by the appellant in the High
Court of Patna against the order of the Minister of Transport was dismissed.
The appellant has appealed to this Court with certificate granted by the High
The plea raised by counsel for the respondent
that the appeal was liable to be dismissed because the High Court was incompetent
to grant a certificate of fitness under Art.
133(1)(a) or Art. 1 3 3 ( 1 ) (b) of the
Constitution against the judgment of the High Court exercising extraordinary
original jurisdiction under Art. 226 of the Constitution is without substance.
This Court has held in S. A. L. Narayan Row & Anr. v. Ishwarlal Bhagwandas
(1) that the words "civil
proceeding" used in Art. 133 of the Constitution cover all proceedings
which directly affect civil rights. A proceeding under Art. 226 of the
Constitution for a writ to bring up a proceeding for consideration concerning
civil rights is therefore a civil proceeding. This Court has further held in
Ramesh and Anr. v. Seth Gendalal Motilal Patni and Ors. (2) that the High Court
is competent to certify on appeal against an order passed by a Division Bench
of a High Court in exercise of extraordinary original jurisdiction under Art.
226 of the Constitution if the dispute decided thereby concerns civil rights of
the parties. Hidayatullah, J., speaking for the Court observed at p. 203
"Mr. Gupta's contention that under that article (Art. 133) an appeal can
only lie in respect of a judgment or decree or final order passed in the
exercise of appellate or ordinary original civil jurisdiction but not of
extraordinary original civil jurisdiction, is not right. . . . Article 133 not
only discards the distinction between appellate and original jurisdiction but
deliberately used words which are as wide as language can (1)  1 S.C.R.
(2) 3 S.C.R. 198 325 make them. The
intention is not only to include all judgments, decrees and orders passed in
the exercise of appellate and ordinary original civil jurisdiction but also to
make the language wide enough to cover other jurisdictions under which civil
rights would come before the High Court for decision." The plea raised by
counsel for the respondent that the High Court was not competent to grant the
certificate must therefore be rejected.
The Bihar Legislature enacted Bihar Act 17 of
1950, imposing tax on passengers and goods carried by public service motor
vehicles in Bihar. Validity of this levy was upheld by the High Court of Patna.
But after the decision of this Court in Atiabari Tea Co. Ltd. v. State of
Assam(1), the appeals filed by the operators who challenged the levy were
allowed by this Court. The State of Bihar thereafter issued Bihar Ordinance 11
of 1961 which was replaced by Bihar Act 17 of 1961 By that Act the tax was
reimposed with effect from the 1st day of April, 1950. That imposition of tax
was again challenged in writ petitions filed before the High Court of Patna,
but without success, and the order of the High Court was confirmed by this
Court in Rai Ramkrishna and Ors. v.
State of Bihar(1). Section 1(3) of Act 17 of
1961 declares that the Act shall be deemed to have come into forced on the
first day of April, 1950. By s. 2(i) 'tax' means tax payable under the Act and
includes the fixed amount determined under s. 8. By s. 3 charge of tax is
imposed. It provides by sub-s. (1) :
"On and from the date on which this Act
is deemed to have come into force under subsection (3) of section 1, there
shall be levied and paid to the State Government a tax on all passengers and
goods carried by a public service motor vehicle; such tax shall be levied and
paid at the rate of twelve and a half per centum of the fares and freights
payable to the owner of such vehicles Provided............." Section 6
requires the owner of the vehicle to make prescribed return to the prescribed
authority within such period as may be prescribed. Section 7 prescribes the
machinery for assessment of tax. Section 9(1) provides that the amount of tax
or penalty. if any, payable by an owner under the Act shall be paid in the
manner hereinafter provided. Sub-section (2) of s. 9 provides that before any
owner furnishes any return under the Act he shall. in the prescribed manner pay
into the Government Treasury the full amount of tax due from him under the Act
according to such return and shall furnish along with the return a receipt from
the (1)  1 S.C.R. 809.
(2) A.I.R. 19463 S.C. 1667.
326 treasury showing payment of the said
amount. By s. 22 power is conferred upon the State Government to make rules not
inconsistent with the Act for all matters expressly required or allowed by the
Act to be prescribed and generally for carrying out the purposes of The Act and
regulating the procedure to be followed, forms to be adopted and fees to be
paid in connection with proceedings under the Act and all other matters
ancillary or incidental thereto. In exercise of the power conferred by s. 22,
the State of Bihar has framed the Bihar Taxation on Passengers and Goods
(Carried by Public Service Motor Vehicles) Rules, 1966. Rule 11 provided that
every owner shall furnish to the authority prescribed in r. 16, a monthly
return, in Form V within a period of fifteen days of the close of the month to
which such return relates. Rule 18 provides that where any sum is payable by an
owner under the Act or the rules or any amount due for which a notice is to be
given under sub-section (4) of s. 9, the authority prescribed in r. 16 shall
serve notice in Form XI, and shall also fix a date by which the owner shall
produce a receipted challan in proof of such payment. It is clear from the
scheme of the Act and the rules that by s. 3 a charge is imposed upon an owner
of the vehicle to pay tax to the State Government on all passengers and goods
carried by a public service motor vehicle at the rates fixed by the statute and
the owner must make monthly returns within fifteen days from the expiry of the
month to which the return relates The decision of the Madhya Pradesh High Court
in Raipur Transport Co., Private Ltd., Raipur v. M. P. Singh and Ors.
(1) on which reliance was placed by counsel
for the appellant has, in our judgment, no bearing on the question which falls
to be determined in this appeal. Section 10 of the Motor Vehicles (Taxation of
Passengers) Act, 1959, passed by the State of Madhya Pradesh provided that in
cases referred to in ss. 7, 8 and 9, the Tax Officer shall serve on the
operator a notice of demand for the sums payable to the State Government. That
in the view of the High Court pre-supposes that an order of assessment has been
made under the earlier provisions of the Act, and therefore an order of
assessment was necessary not only for the validity of the notice of demand, but
also for enabling the appellate authority to see whether the tax had been
correctly assessed or not and the demand made against the operator was or was
not justified. We are in the present case not concerned to determine the
validity of a notice of demand. The liability to pay tax under Bihar Act 17 of
1961 clearly arises by statutory injunction and not from the order of
In terms s. 3 says that there shall be levied
and paid to the State Government a tax on all passengers and goods carried by a
public service motor vehicle.
(1) A.I.R. 1968 M.P. 36.
327 The appellant plied his motor buses in
1950-51 and on the plea that the tax was invalid did not pay the tax levied
under Act 17 of 1950. After the reimposition of the tax by Act 17 of 1961,
there survived no ground on which the liability to pay tax could be resisted.
On January 15, 1965, a condition had been imposed upon the appellant that a
permit would be granted to him provided he produced a clearance certificate.
Liability to pay transport tax amounting to Rs. 1,675/was outstanding against
the appellant for nearly fifteen years and that liability was discharged by
payment on March 5, 1965. it cannot, in the circumstances, be contended that
there was no liability to pay transport tax outstanding against the appellant
on the date of the order granting him the permit. Failure to produce the
clearance certificate in respect of the transport tax clearly disentitled the
appellant to the grant of a permit.
Counsel for the appellant, however, contended
that the imposition of a condition that the appellant shall produce a clearance
certificate in respect of the transport tax was invalid and the condition was
liable to be ignored by the appellant. Section 47(1) of the Motor Vehicles Act,
1939, insofar as it is material provides :
"A Regional Transport Authority shall,
in considering an application for a stage carriage permit, have regard to the
following matters, namely :(a) the interests of the public generally;
(b) the advantages to the public of the
service to be provided, including the saving of time likely to be effected
thereby and any convenience arising, from journeys not being broken;
(c) the adequacy of other passenger transport
services operating or likely to operate in the near future, whether by road or
other means, between the places to be served;
(d) the benefit to any particular locality or
localities likely to be afforded by the service;
(e) the operation by the applicant of other
transport services, including those in respect of which applications from him
for permits are pending;
(f) the condition of the roads included in
the proposed route or area;
and shall also take into consideration any
representation made by persons already providing passenger transport facilities
by any means along or near the proposed route sup. Cl/68-8 328 or area, or by
any association representing persons interested in the provision of road
transport facilities recognised in this behalf by the State Government, or by
any local authority or police authority within whose jurisdiction any part of
the proposed route or area lies Provided..........................."
Sub-section (2) of s. 47 sets out the conditions under which the Regional
Transport Authority may refuse to grant a stage carriage permit; and sub-s. (3)
provides for the conditions in which, having regard to the matters specified in
(1), the Regional Transport Authority may
limit the number of stage carriages generally or of any specified type for
which stage carriage permit may be granted in the region or in any specified
area or on any specified route within the region. It was urged that under s. 47
the Regional Transport Authority is bound to consider only the matters which
are specified in cls. (a) to (f) of sub-s. (1) of s.
47, Ind if the applicant is found qualified
for a permit no conditions may be imposed by the Regional Transport Authority.
We need express no opinion on that argument. If the argument raised by counsel
for the appellant has any substance, and if it be held that the grant of a
permit is to be subject only to such of the conditions as may be prescribed
under s. 48, the order made by the Regional Transport Authority must be deemed
to be an order refusing the permit. The appellant could, if so advised, have
challenged the validity of the imposition of the condition relating to the
payment of tax, but he could not ignore the conditions subject to which the
permit was granted.
Finally, it was urged that the Minister of
Transport acted illegally in taking into account evidence which was not on the
record of the Regional Transport Authority, and alternatively, that the
Minister violated the fundamental rules of natural justice in basin,, his
judgment upon a document received from the Deputy Commissioner of Commercial
Taxes, intimating that the transport tax was due by the appellant without
bringing it to the notice of the appellant and calling for an explanation.
Section 64-A of the Motor Vehicles Act, 1939, as amended by Bihar Act 17 of
195( authorises the State Government to call for, in the course of any
proceedings taken under the Chapter, from any authority or office) subordinate
to it, the records of such proceedings, and after exa, mining such records pass
such order as it thinks fit. The expressior "pass such order as it thinks
fit" is not restricted to the passini of orders which are final in
character. If for the purposes of. doing complete justice between the parties,
the authority who heare the revision petition is satisfied that it is necessary
to call for additional evidence, he may call for such evidence. There, is no
bar in the Act or the rules against an appellate or the revising authority 329
taking into consideration additional evidence brouaht on the record, if the
authority requires additional evidence to be brought on the record or allows it
to be brought on the record to do complete. justice between the parties. The
evidence must undoubtedly be disclosed to the parties and they must be given an
opportunity to meet an inference that may arise from such additional evidence.
We are unable to hold that the Minister of Transport in taking into
consideration the report received from the Deputy Commissioner of Commercial
Taxes, Intelligence Branch, that an amount of Rs. 1,675/was outstanding on
February 16, 1965, against the appellant in respect of the two buses plied in
the year 1950-51 acted in violation of the rules of natural justice. The
circumstance,-, in which this document was brought on the file of the Minister
are not clear on the record. But, as stated by the Minister, the document was
disclosed to counsel for the appellant and counsel was asked to give a reply
thereto. The Minister also recorded in his judgment that counsel for the
appellant explained that since there was no demand for payment of the dues, it
was not correct to say that the amount of Rs. 1,675/was due against the
appellant on February 16, 1965. The Minister of Transport rejected that
argument. Before us it was contended that the document was never shown to the
appellant's counsel and he was never asked to render his explanation in that
behalf. If this were true, the appellant would, we have no doubt, have
approached the Minister who was exercising quasi-judicial functions, and would
have asked him to review his order. This admittedly has not been done. Again, if
the grievance now raised were true, the averments made in paragraph-19 of the
petition before the High Court would not have taken the form which they have
taken. In paragraph-19 it is stated that "the socalled report of the
Deputy Commissioner, Commercial Taxes, Intelligence Branch, Patna, under Memo
No. 8527 dated 24-71965 was never shown to the petitioner and the petitioner
had no opportunity to meet the said report." Whereas the Minister of
Transport had recorded that the report of the Deputy Commissioner, Commercial
Taxes, was shown to counsel for the appellant and the counsel had given certain
information the petition before the High Court merely stated that the appellant
was not shown the report of the Deputy Commissioner.
The High Court on a consideration of the
evidence has come to the conclusion that the claim made by the appellant that
the document was not disclosed at the hearing before the Minister of Transport,
and the Minister acted upon that document without informing the appellant, cannot
be accepted, and we do not see any reason to disagree with the view expressed
by the High Court.
The appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.