Kodandaramayya, J.:-
(1) The" impugned order in this writ petition is a demand notice dated 11 - 9 - 1984 issued by the regional transport officer, kurnool, levying a sum of rs. 8,280/ - towards tax and rs. 16,560/ - towards penalty in respect of the vehicle of the petitioner a. T. T. 2799.
(2) The case of the petitioner is that he is running a contract carriage alter obtaining special permit under section 63 (6) of the motor vehicles act as and when charted by tourists and pilgrims after paying the motor vehicles tax due to the state of karnataka. On 31 - 8 - 1984 he obtained a special permit from the secretary, regional transport authority, bangalore, to carry on a tourist party consisting of 35 members to various places in the state of karnataka and andhra pradesh as mentioned in the said permit according to the schedule of programme indicated therein between 1 - 9 - 1984 to 6 - 9 - 1984. On the last day of the programme, the regional transport authority stopped the vehicle and checked his vehicle and on finding that this vehicle is used as a stage carriage without permit and payment of tax to the state of andhra pradesh as a stage carriage, made the above demand which is challenged in this writ petition.
(3) The learned counsel initially tried to challenge the finding of the authority that the vehicle was used ss a stage carriage, but did not pursue that argument as it involves determination of questions of fact, but raised the following three questions. 1. As per the notification in g. O. Ms. No 570, tr, r and b (tr, ii) dated 28th december, 1983 issued under the a. P. Motor vehicles taxation act, 1963, (a. P. Act 5 of 1963) hereinafter referred to as 'the act', the petitioner is entitled to complete exemption all tax liability in the state under the said act and the only course open to the authorities in this state is to take a ction under the motor vehicles act. 2. As per g. O. Ms. No. 83 dated 26 - 3 - 1980 issued under section 9 of act 5 of 1963, he is liable to pay only a reduced rate of tax for one month and not for the entire quarter. 3. In any view, the levy of penalty under the eomposit order along with the levy of tax is illegal. We shall consider these submissions in seriatem.
(4) The notification under section 9 dated 28 - 12 - 1983 issued in g. O. Ms. No. 570 tr. R and b department reads as follows :
"in exercise of the powers conferred by
sub - section (1) of sec. 9 of a. P. Motor vehicles taxation act 1963 (a. P. Act 5 of 1983) the governor of andhra pradesh hereby directs that in respect of contract carriage vehicles of other states plying in the state of andhra pradesh displaying a special distinguishing mark in the form and manner specified by the central government on the strength of permits issued under
sub - section (6) of section 63 of the motor vehicles act, 1939 and those ah india tourist vehicles covered by the permits issued under
sub - section (7) of section 63 of the motor vehicles act, 1939 which intend to tour or transit through andhra pradesh state for short periods tax shall be paid at the rates specified below. Period rate of tax. Seven days or less at rs. 35/ - per seat provided that no tax need fee paid to this state in respect of contract carriage vehicles belonging to other states which have granted tax exemption to the vehicles of andhra pradesh state, for plying in their states on temporary permits issued by this state under
sub - section (6) of section 63 of the m. V. Act 1939 when they enter this state with permits issued by those states under
sub - section (6) of section 63 of the said act"
.
(5) It is seen that this notification gives a clear privilege to the operators to run the vehicle under special permit of other states and also secures exemption for the payment of tax leviable under act 5 of 1963. But once the condition of permit are violated and he is found using the vehicle as a stage carriage, the protection either under the said notification or under the permit is no longer available to him. The contention of the learned counsel is that even if the violated the terms of the permit or using his vehicle as a stage carriage in the state, the remedy of the state of andhra pradesh is to prosecute him under the provisions of the motor vehicles act but not levying the tax under act 5 of 1963. In support of this contention he also relied on a judgment of madhava reddy, j (as he then was) in wp. No. 4762 of 1975 dated 11 - 11 - 1976. It is a case where a contract carriage was found plying under the tourist permit from the state of karnataka, kerala and andhra pradesh and other places under the permit obtained under sec. 63 (6) of the motor vehicles act. The authorities have found that on a particular day contrary to the original route stipulated in the permit the vehicle was deviated from the authorised routes and plied in a different route and hence on that ground they demanded a tax of rs. 5390/ -. The amount was paid by the petitioner under protest and the said levy was challeaged in that writ petition. The learned judge found that the authorities have admitted. That the vehicle which was a contract carriage was not vised as a stage carriage, but the only charge is that it has only deviated from the authorised route, in other words, he plied the vehicle in unauthorised route. The question examined by the learned judge is whether such running of the vehicle in the unauthorised route attracts the tax liability treating it as a stage carriage, the learned judge consequently found that the running of the vehicle. Ia unauthorised route does not give any power to the authorities to impose a tax under the act. We see that no exception can be taken to that finding and the conclusion of the learned judge.
(6) However, the learned counsel relied on a sentence occurred in the above judgment wherein it is observed that
"under the andhra pradesh motor vehicles taxation act, there is no power vested in any authority to impose any additional tax by the state other than the one which has issued a special permit on vehicle which plies on a route not mentioned in the special permit"
this statement must be read along with the other findings of the learned judge who held that the provisions of the act cannot empower to impose - tax in respect 6f a contract carriage which is stated to have been plied on an unauthorised route. Thus it is seen the ratio of the case is that the running of a vehicle on an unauthorised route does not constitute running a vehicle as a stage carriage. It is not disputed that when the vehicle is not run as a stage carnage, the higher rate of tax payable for a stage carriage cannot be levied. No doubt the learned counsel relied on a judgment of ramanujulu naidu, j,. In w. P. No. 1718 of 1978 dated 9 - 7 - 1982 where the teamed judge extended the principle laid down by madhava reddy, j. , to a case where the vehicle was run as a stage carriage. With respect we dissent with the said view.
(7) It is pertinent to note that the very same contention urged before us by the learned counsel was urged before the full bench in y. Peda venkaiah vs. The regional transport officer, nellore contending that the act and rules made thereunder do not empower the authority to levy the difference of tax and penalty in the event of a contract carriage being used as a stage carriage and in such a case only proceedings under the motor vehicles act can be resorted to. This contention was rejected holding:
"there is no need for the act to provide - specifically that if there is a change in the class of vehicles, the authorities can levy tax afresh on that vehicle as belonging to that class. The power contained in
section 3 read with section 4 is sufficient to enable the government to levy the tax from time to time when the class of the vehicle is changed."
Jt is further observed :
". When it is found that a vehicle is being used as a stage carriage for the purpose of taxation and after hearing the aggrieved party the licensing officer comes to that conclusion that it is used as stage carriage and accordingly levies the tax on that footing. In our view, such a procedure is perfectly justified for levying the tax which the government is entitled to levy under the charging section"
.
(8) The only difference in this case is that the contract carriage found plying as stage carriage belongs to a different state. But that difference furnishes no distinction in law. Once a vehicle is used as a stage carriage to a public place in this state the liability under the act is attracted.
(9) In fact a later full bench of this court in v. Govindarajuke vs. The regional transport officer while examining the principle for determining the question whether the vehicle is used as a contract carriage or a stage carriage held, that the tax is levied on the user of the vehicle and action is taken under section 60 of the motor vehicles act for the breach of the conditions of permit and the two actions are quite different, it is observed, "one for the breach of the conditions of the permit, and the other for the user of the vehicle". Hence we have no hesitation to hold that once the contract carriage, which obtained the necessary permit from a sister state, used the roods of andhra pradesh state, as a stage carriage, the liability to pay, the tax under the act is attracted and the protection given under the notification no longer subsists.
(10) On the second question it is urged that the previous g. O. Which contained concession to the operators when the vehicle was run for a lesser period than a quarter is repealed and new g. O. Is issued in 1980 on 25 - 3 - 1980 and as per the provisions of the new g. O. An operator is liable to pay only for the period when he actually, fun the vehicle and the construction placed on the previous g:o. By the full bench is no ledger applicable in view of the difference in the language of the new g. O. Governing the subject". It is urged that the reference by the full bench to g. O. No. 2410 is a mistake but the correct g. O. Is g. O. No. 601 dated 27 - 3 - 1963, though the full bench correctly extracted the text of the g. O,
(11) The learned counsel, sri raghunath raj, himself an author of
"motor vehicles taxation law", gave the two g. Os. In his revised edition of 1986 pointing out the difference in the language in both the g. Os. It is uueful to refer the tabular form of both the g. Os. Which read as follows : g. O. 601 dt 27 - 3 - 1963". The governor of andhra pradesh hereby directs that in respect of motor. Vehicles which are intended' to be used in public 'places in andhra pradesh slate, only during the last two months of a quarter or only during the last month of a quarter,. Lax shall be paid at the reduced rates and subject to the, conditions specified below". G o 83 dt. 26 - 3 - 1980". The governor of andhra pradesh hereby reduces the tax payable in respect of a motor vehicle used or kept for use in a public place in the state of andhra pradesh after the expiry of the first month of a quarter, half year or a year as the case may be, to a sum calculated at one third of the quarterly rate of tax specified in the notification under section 3 for the time being in force, multiplied by the number of months in the quarter, the half year or the year, as the case may be, in which the motor vehicle is so used or kept for use".
(12) It is urged that the true effect of g. O. No. 83 read with rute 12 a is that irrespective of the. Fact whether the petitioner run the vehicle as a stage carriage after obtaining the permission initially for a contract. Carriage, the liability is confined to the period to which the vehicle was found running. This contention, involves determination of the true effect of g. O. No. 83 and also the. Second proviso to rule 12 - a. It is not necessary to extract the lengthy rule 12 - a. But it is enough if we extract upto the second proviso of the said rule :
"12 - a. Liability for payment of tax in respect of motor vehicles kept for use. For the purpose of sgction 3 of the act, a motor'vehicle shall be deemed. To be kept for use and is liable to tax untless the registered -. Owner or 'the person having possession or control of the motor vehicle 'intimates in waiting"
to the licensing officer before the commendement of the quarter for which tax is due that the motor vehicle shall not be used after expiry of the period for which tax has already been paid. The licensing officer shall, on receipt of the intimation, acknowledge its receipt. Provided that in the case of non - transport vehicles, if the owner of the vehicle fails to submit the stoppage report within the period specified above, but subsequently gives an affidavit with full details tp the effect that the vehicle was not in existence or that it was already disposed of to another person and that he is no more in possession of it or that the tax in respect of the vehicle was paid elsewhere in the same state or in some other state and as such he is not liabte for payment of tax in the jurisdiction of that licensing officer or proves to the satisfaction of the licensing officer that the vehicle has tot been used, it may be deemed that the vehicle has not been kept for use. Provided further that in the cjse of transport vehicle, if the vehicle is not covered by a valid fitness certificate or a valid perrmit, it may be deemed that the vehicle is not kept for use as a, transport vehicle and is dot taxable as such. Xx xx xx
(13) First of all when we compare the previous g. O. Ms. No. 601 with the new g. O. Ms. 83 the only material difference we find is that the previous expressed "intended to be used" ,was substituted for the words "used or kept for use" ,and the expression "used or kept for use" was again reiterated at the end of the g. O. We think that this expression "used or kept for use" is rightly embodied in the new g. O. As it is consistent with the" charging section 3 which used the expression "motor vehicle used or kept for use". Now this rule 12 - a clarified the meaning of the words 'kept for use and gave a concession under trie secorid proviso raising a prescription.
(14) The learned counsel. Took us through the judgment of the: full bench on this question and urged that the dicta of the full bench in reda venkaiah's case is no longer applicable in view. Of. The change in ,the language of the new g. O. We are not persuaded. To accept this contention. First of all, the material change in. The g. O. As already stated is only - the expression "used or kept for use" is substituted for the words' "intended to be used" it is seen that a close reading of the g. O. Itself establishes that its application is confined to the cases where an operator obtains a licence for a period when a portion of a quarter already expired. This is made clear in view of the proviso added to g. O. Ms. No. 83 as no licence shall be granted earlier than the last day of the month preceding the month for which the motor vehicle is intended to be - used or kept for use: - the - tax is paid as per section 4 in advance. Hence we are of the opinion that the g. O. Itself ha; no application where a vehicle is found running without obtaining a. Licence after paying the tax, but it is intended to govern the case where the operator seeks a licence for a shorter period in a quarter where some period has already expired.
(15) The second limb of the argument on this question relates to the interpretation to the second proviso to rule 12 - a. It isjiirged that when the vehicle is not covered valid fitness certificate or valid permit it. Must -. Pe deemed to be a vehicle not kept for use. This interpretation placed by the learned counsel on this proviso cannot be accepted. In our view the proviso raises a presumption in respect of the non - user of the vehicle. But if the vehicle is found using a public place in the state of andhra pradesh, the presumption has no application. If not it is placing a premium on the vehicle using a public, place without a valid permit or without a valid fitness certificate. This interpretation is accepted by a division bench of this court in w. A. No. 97 of 1971 dated 23 11 - 1971 which is approved by,. - the full bcbteh. We see no valid reason,to reopen this question again either in prin - ciple ,or on authority, atw liebce we hold that the second proviso10 r - ule 12 - a it not attracted when the vcjikle is found usiug'u public place in this state,
(16) On the last question we are inclined to accept the contention of the learned counsel. The dicta of the full bench in peda venkaiah's case clearly supports his contention. It is also a similar case where a demand was raised for both tax and also for penalty when a contract carnage is found to have been run as a stage carriage. The full beach ruled that unless the tax has become due before the date on which the penalty is levied, the levy of penalty is illegal. It is clear that the tax must be due before the penally is levied. This position is clarified in a subsequent judgment of a bivision of this court in p. Srinivasulu naidu vs. Regional transport officer, cuddapahl where in respect of a stage carriage when the tax is due, the demand of tax and also the penalty made a composite order is upheld distinguishing the principle laid down in the full bench case. 17. In this case, admittedly the vehicle was run initially as a contract carriage, but when it is found to have run as a stage carriage, the liability has arisen to pay the tax treating it as a stage carriage. In such an event the composite demand for the tax and the penalty simultaneously is clearly hit by the principle laid down by the full bench. Accordingly the demand notice so far as it purport to levy the penalty ot rs. 16,560/ - is quashed and the demand for the tax of rs. 8. 280/ - shall stand. 18. The writ petition is allowed accordingly to the extent indicated above. We make no order as to costs. Advocate's fee rs. 150/ -.