Dismissed

Niharika Sahoo v. State of Odisha

Orissa HC15 Nov 2023WP(C)/11528/2022

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Niharika Sahoo Vs State of Odisha — Property and Title | Orissa HC (2023)

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2023 13:14:27

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 11528 of 2022 Niharika Sahoo and others …. Petitioners

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…. Petitioners

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Mr. Susanta Kumar Baral, Advocate

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-versus-

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State of Odisha and others

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…. Opp. Parties Mr. Pravakar Behera, Standing Counsel (For Transport Department)

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

15.11.2023

This matter is taken up through hybrid mode.

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Order dated 15^th September, 2021 (Annexure-4 series) is under challenge in this writ petition, whereby rejecting the representation of the Petitioners, the Principal Secretary, Commerce and Transport Department, Govt. of Odisha held that the owners of Biju Gaon Gadi owners have to pay road tax after completion of period of five years for renewal of permits. The Petitioners also pray for a direction to set aside the demand notices under Annexure-5 series levied for non-payment of the MV tax in time.

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Mr. Baral, learned counsel submits that the Petitioners are the owners of different stage carriages. The State Government floated a Scheme, namely, Biju Gaon Gadi Yojana (for short ‘the Scheme’), wherein the Petitioners had engaged their vehicles bearing Registration Nos.OD-10-C-2664, OD-10C-2442, OD-10-A-9644, OD-10-A-9622 and OD-10-B-9494. The scheme was for a period of five years commencing from

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2023 13:14:27

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25^th September, 2013. It is submitted by learned counsel for the Petitioners that there was a clause in the said Scheme that vehicles having more than seven years of age shall not be covered under the Scheme. Hence, the Petitioners had to purchase new vehicles and engaged those in the Scheme. Thus, after completion of five years, they had a reasonable expectation of extension of operation of their vehicles under the Scheme. But, their applications were not taken into consideration. After completion of the Scheme, the vehicles of the Petitioners remained idle and are not in use.

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Mr. Baral, learned counsel for the Petitioners relying upon the provision under Section 3 of the Odisha Motor Vehicles Taxation Act, 1975 (for short ‘the Act’), submitted that since the vehicles were not kept for use, they are not entitled to pay the MV tax for the aforesaid period. Further, they made online application in the year, 2020 to declare the vehicles offroad. Those applications were also not considered. However, the demand notice under Annexure-5 series was issued. Hence, the Petitioners finding no other alternative have filed this writ petition.

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4.1. It is his submission that the R.T.O., Koraput has categorically admitted in the reply affidavit filed by him that online applications were received on 27^th November, 2020 and 28^th November, 2020. But, those were not considered. Since the applications of the Petitioners for off-road were kept pending, they are not liable to pay either the MV Tax or the penalty thereon for the said period. He, therefore, prays for setting aside the impugned order under Annexures-4 and 5 series.

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2023 13:14:27

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Mr. Behera, learned Standing Counsel for the Transport Department submits that in order to make an application for offroad of the vehicles, up-to-date MV tax of the vehicles should have been paid. In the instant case, admittedly, up-to-date MV tax was not paid in respect of the aforesaid vehicles. Hence, their applications could not have been entertained. Since there is no provision under the Scheme for extension of its operation, the applications, if any, of the Petitioners are meaningless. He also referred to Section 10(3) of the Act and submitted that in absence of any undertaking delivered under Sub-section (1) of Section 10 of the Act, every motor vehicle liable to tax under the said Act, shall be deemed to have been used or kept for use within the State. Since no such undertaking is delivered, the vehicles are deemed to be kept for use. As such, the Petitioners are liable to pay the MV tax and penalty thereon as per demand notices under Annexure-5 series. Hence, he prays for dismissal of the writ petition.

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Taking into consideration the submissions made by learned counsel for the parties, it is apparent that the aforesaid vehicles of the Petitioners were operating under the Scheme. The Scheme was operational till 2018. Thereafter, the Petitioners were free to use their vehicles as per the permit. Admittedly up-to-date MV tax of those vehicles was not paid. However, the Petitioners made online application for off-road of the vehicles on 27^th November, 2020 and 28^th November, 2020. Since up-to-date MV tax was not paid in respect of the said vehicles, applications for off-road could not have been considered by the R.T.O., Koraput.

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2023 13:14:27

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Argument was advanced by Mr. Baral, learned counsel to the effect that the Petitioners are not liable to pay the MV tax as the vehicles were not kept for use. He also refers to Section 3 of the Act, which reads as under:

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“3. Levy of tax – (1) Subject to the other provisions of this Act, there shall be levied on every motor vehicle used or kept for use within the State a tax at the rate specified in [Schedule-I] [Schedule-III];

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(2) The State Government may be notification from time to time, increase the rate of tax specified in [ScheduleI] [Schedule-III];

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Provided that such increase shall not exceed fifty percent of the rate specified in [Schedule-I] [ScheduleIII];

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(3) All references made in this Act to [ScheduleI] [Schedule-III]; shall be construed as references to [Schedule-I] [Schedule-III]; as for the time being amended in exercise of the powers conferred by this section.”

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However, Section 10(3) of the said Act, reads as under:

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“ 10. Prior intimation of temporary discontinuance of use of a vehicle:-

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xxx xxx xxx

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(3) In the absence of any undertaking delivered under Sub-section (1) every motor vehicle liable to tax under this Act shall be deemed to have been used or kept for use within the State .”

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In view of the above, it is crystal clear that every motor vehicle for which undertaking is not delivered, is deemed to have been used or kept for use in the State. In such view of the matter, the vehicles of the Petitioners are deemed to have been kept for use. Thus, the Petitioners are liable to pay the outstanding MV tax in respect of the aforesaid vehicles for issue of permit.

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Nov-2023 13:14:27

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Accordingly, I find no merit in the submission of Mr. Baral, learned counsel for the Petitioners. Thus, the writ petition is disposed of with a direction that if the Petitioners pay the upto-date MV tax in respect of the said vehicles within a period of four weeks hence and file an undertaking to the effect that they will prefer appeal assailing the demand of penalty, it shall be accepted and their applications for conversion of the vehicles for general use, if any, shall be considered in accordance with law.

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Urgent certified copy of this order be granted on proper

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application.

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(K.R. Mohapatra)
Judge

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Page 5 of 5

Niharika Sahoo v. State of Odisha

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Niharika Sahoo v. State of Odisha

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