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Judgment
P.V. Dixit, C.J.—This order will also govern the disposal of Misc. Petition No. 268 of 1965.
By these two applications under Articles 226 and 227 of the Constitution, three private limited companies and one co-operative society, engaged in the business of plying stage carriages, challenge the legality of the proceedings initiated against them for recovery as arrears of land revenue of passenger tax due from them under the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Act, 1959 (hereinafter referred to as the Act) for certain periods before 7th May 1962. The tax amount sought to be recovered from the M. P. Transport Company (Private) Ltd., Raipur (Petitioner in M. P. No. 179 of 1965) is for March 1961. The tax amount against the three petitioners in M. P. No. 268 of 1965, namely, the Durg Roadways (Pvt.) Ltd., the Rajnandgaon Roadways (Pvt.) Ltd,, and the Durg Zila Motor Kamgar Co-operative Transport Society Ltd., is respectively for the periods from February 1961 to 6th May 1962, from 8th August 1961 to 28th March 1962, and from 1st February 1962 to 6th May 1962. The petitioners pray that the notices of demand issued to them in respect of the aforesaid periods be quashed and the opponents be restrained from recovering the tax amounts for those periods as arrears of land revenue.
Before stating the submissions of the petitioners, it is necessary to refer to the decisions of this Court in which the validity of the Act and of the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Amendment and Validation Act, 1962, has been considered. The Madhya Pradesh Motor Vehicles (Taxation of Passengers) Act, 1959, came into force on 1st February 1961. The validity of this Act was upheld by this Court in Mahamaya Motor Transport Co. v. State of M. P. (1962 M P L J 79) : Misc. Petn. No. 29 of 1961 decided on 26-9-1961 and Madhya Pradesh Transport Co. Private Ltd. Vs. State of Madhya Pradesh and Others, . In the latter case, it was held by us that in order to make imposition of a tax in reality and practice a tax on passengers, it was essential first to revise u/s 43 of the Motor Vehicles Act, 1939, the maximum rate of fares in respect of stage carriages so as to include the amount of tax chargeable u/s 3 of the Act in the fare and give to the operator the right to recover the amount of tax as extra fare, and that unless and until the fare-table was so revised, the Act could not become operative in relation to the operator concerned, and till then the operator could not be made liable for collection and payment of the tax. It was also pointed out by us in that case that an operator could not be penalised under the penal provisions of the Act unless a legal obligation was imposed on him in the matter of collection and payment of tax and the maintenance and keeping of accounts; and that this legal obligation could not arise till fare tables were revised under the Motor Vehicles Act, 1939.
After the pronouncement of the judgment in Madhya Pradesh Transport Co. Private Ltd. Vs. State of Madhya Pradesh and Others, , an Ordinance called the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Amendment and Validation Ordinance, 1962, was promulgated on 7th May 1962, This Ordinance was repealed by the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Amendment and Validation Act, 1962. The Ordinance as well as the Validating Act of 1962 inserted a new sub-section (1-A) in section 3 of the Act purporting to give to an operator authority to collect the tax under sub-section (1) in addition to the fares as fixed and in force under a notification for the time being in force u/s 43 of the Motor Vehicles Act, 1939. By section 2 (2) of the Validating Act, it was provided that the new sub-section (1-A) would be deemed to have come into force on 1st February 1961, that is from the date on which the Act itself came into force.
The validity of sections 2 and 4 of the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Amendment and Validation Act, 1962, was unsuccessfully challenged by the Madhya Pradesh Transport Co. (Private) Ltd., Raipur and other operators in M. P. Transport Co. v. State of M. P. 1963 MP L J 605, and it was held by this Court that those provisions were constitutionally valid and enforceable. One of the contentions advanced in that case was that the new sub-section (1-A) of section 3 had been given retrospective effect from 1st February 1961 in violation of Article 20(1) of the Constitution and was therefore, invalid. This contention was rejected by us by making the following observations-
"In our opinion, this contention is unsubstantial. It is no doubt true that the words ''law in force'' used in Article 20(1) of the Constitution mean the law in fact in existence and operation at the time of the commission of the act charged as an offence, and do not include a law ''deemed to be in force'' by virtue of the power of the Legislature to pass retrospective laws [See Shiv Bahadur Singh v. State of V. P. A I R 1955 S C 394]. If an operator could not be penalised for an act or omission of his for want of legal authority in him, at the time of the act or omission, to collect the tax from passengers as extra fare, than clearly he cannot be punished for those acts and omissions with the aid of the deeming provision with regard to the giving of authority in sub-section (1-A) of section 3 of the principal Act and section 2 (2) of the Validating Act. In such a case Article 20(1) would nullify the prosecution but not sub-section (1-A) of section 3 of the principal Act or section 2 (2) of the Validating Act. The reason is that those provisions do not directly provide for any penal provision of a retrospective nature and do not make any act or omission of an operator before the passing of the validating law, which could not be penalised when done or committed, criminal and punishable. If any operator is prosecuted on the supposed retrospective effect of the Validating Act with respect to penal provisions in the principal Act, Article 20(1) would immediately come to his rescue and he can always claim the protection of that Article. As sub-section (1-A) of section 3 of the principal Act and section 2 (2) of the Validating Act nowhere directly provide for any retrospective penalisation of the operators for their acts and omissions, there is no: question of those provisions themselves being bit by Article 20(1) of the Constitution. The argument, therefore, that these provisions are repugnant to Article 20(1) of the Constitution must fail."
After pointing out that the proceedings or acts saved or validated by section 4 of the Validating Act were those taken in connection with the civil liability of the operator for the levy, assessment and collection of the tax, it was expressly stated in the case of M. P. Motor Transport Co. v. State of M. P. 1963 M P L J 605 that-
"The question how this civil liability of the operator for the payment of tax in respect of passengers travelling before the Validating Act came into force can be effectively and promptly enforced when the Validating Act cannot be given retrospective effect with respect to penal provisions of the principal Act does not arise for consideration in these cases "
It was argued by Shri Dharmadhikari, learned counsel for the petitioners, that the applicants had submitted to the tax officer the returns that were required of them u/s 5 of the Act in respect of the periods for which the tax was now being recovered from them; that they no doubt did not pay with the returns the amount of tax but the tax could not be recovered u/s 10 of the Act as arrears of land revenue as the said section applied only when the operator failed to pay a tax amount in compliance with a notice of demand issued u/s 7 or 8 or 9 of the Act; and that the tax amount which was attempted to be recovered from the petitioners as arrears of land revenue was one which they should have deposited u/s 6 of the Act along with their returns and was not one which they were required to pay pursuant to a notice of demand issued u/s 7 or 8 or 9 of the Act. It was also said that the recovery of a tax amount as arrears of land revenue amounted to a penalty within the meaning of Article 20(1) of the Constitution, and, as pointed out by this Court in M. P. Motor Transport Co. v. State of M. P. 1963 M P L J 605, this penalty could not be imposed in respect of a tax amount for a period before 7th May 1962.
These contentions are without any merit and must be rejected. Under sections 5 and 6 of the Act, an operator is required to deliver to the tax officer a return in the prescribed form and manner either daily or at such intervals as may be prescribed and also to pay into the Treasury the tax amount due from him according to the return. Section 7 gives to the tax officer the power to determine the tax amount payable by an operator when no returns are submitted by the operator or when the returns submitted by him appear to the tax officer to be incorrect or incomplete. Section 8 deals with escaped assessment. Section 9 empowers the tax officer to impose penalty when the whole or any portion of the tax payable in respect of any stage carriage for any month or portion thereof in pursuance of sections 6, 7 and 8 has not been paid in time. Section 10 runs as follows:-
"10 (1) In the cases referred to in sections 7, 8 and 9 the Tax Officer shall serve on the operator a notice of demand for the sums pay able; to the State Government and the earns specified in such notice may be recovered from the operator as arrears of land revenue.
(2) The tax shall be a first charge on the stage carriage in respect of which it is due as also on its accessories and such stage cariage and the accessories thereof may be attached and sold for the recovery of the tax under the appropriate law relating to the recovery of arrears of land revenue."
It is true that the tax amount, which is now being recovered from the petitioners, is one which they should have deposited in the Treasury when they filed the returns and is not a tax amount determined against them either u/s 7 or 8 or the amount of a penalty imposed on them u/s 9. But from the wording of sub-section (2) of section 10, it is plain that the method of recovery of the tax amount as arrears of land revenue is not confined only to the amount of tax determined u/s 7 or 8 or to the amount of penalty u/s 9. It will be seen that the first sub-section speaks of a notice of demand for the sum payable being served on the operator in cases falling under sections 7, 8 and 9, and further says that the sum specified in such notice may be recovered from the operator as arrears of land revenue. But the operation of the second sub-section is not confined to the tax determined u/s 7 or 8 or the penalty amount imposed u/s 9. That sub-section says that "The tax shall be a first charge on the stage carriage in respect of which it is due as also on its accessories and such stage carriage and the accessories thereof may be attached and sold for the recovery of the tax under the appropriate law relating to the recovery of arrears of land revenue." The expression "tax" has been defined by section 2 (6) of the Act as meaning the tax referred to in section 3. A tax amount which an operator is required to deposit in the Treasury along with his return is clearly the amount of tax levied u/s 3. It follows, therefore, that though for the recovery of the amount of tax, which an operator should have paid u/s 6 of the Act, the first sub-section of section 10 is not attracted, jet that tax amount by virtue of the provisions of sub-section (2) can be recovered by the sale of the stage carriage or carriages in respect of which it was due and the accessories thereof, and the attachment and sale of the carriages and the accessories can be under the appropriate law relating to the recovery of arrears of land revenue. Thus there is no bar to the recovery of the tax amount as arrears of land revenue from the petitioners at least by the attachment and sale of the stage carriage or carriages and the accessories thereof in respect of which it was due. The amount cannot, however, be recovered from the petitioners as arrears of land revenue by attachment and sale of their other property.
The contention that the recovery of the tax amount for a period prior to 7th May 1962 as arrears of land revenue offends Article 20(1) of the Constitution is altogether untenable. The observations made in Madhya Pradesh Transport Co. Private Ltd. Vs. State of Madhya Pradesh and Others, were with reference to offences and penalties prescribed by sections 16, 17 and 18 of the Act. The recovery of tax amount as arrears of land revenue cannot in any sense be equated with proceedings for the commission of an offence or for the imposition of a penalty coming within the purview of Article 20(1) of the Constitution. The first part of Article 20(1) bars the conviction, and the second part relates to the punishment or sentence that may be inflicted upon such conviction. The availability of the remedy of recovery of the tax amount'' as arrears of land revenue does not depend on the conviction of the operator for any offence. The recovery of the tax amount as arrears of land revenue is not a penalty following any conviction. That being so, it cannot be argued with any degree of force that the recovery of tax amount as arrears of land revenue is a penalty falling within the purview of Article 20(1) of the Constitution.
Learned counsel pressed in aid certain observations made by us in M. P. No. 143 of 1963 (M. P. Transport Co. Pvt. Ltd. v. State of M. P.) which was summarily rejected by us on 1st May 1963. Apart from the fact that in view of the decision of this Court in Kanglu v. Chief Executive, Officer, Janapada Sabha, Durg A I R 1955 Nag. 49 : I L R 1954 Nag. 875 the order passed by us on 1st May 1963 rejecting M. P. No. 143 of 1963 at preliminary hearing is not binding on us, the observations made in our order dated the 1st May 1963 are of no assistance to the applicants. What we have held by our order dated the 1st May 1963 was that no notice of demand asking any operator to pay any amount of tax for a period before 7th May 1962 on the pain of various penalties prescribed in the Act for default of submission of returns, and payment of tax, or any other similar coercive process could be issued. The ''coercive process'' to which we referred did not clearly include the process of recovery of tax amount as arrears of land revenue but a process involving the imposition of a penalty. We no doubt made an observation in our order dated the 1st May 1963 to the effect that prompt recovery of passenger tax from any operator for a period prior to 7th May 1962 would become difficult when a notice of demand for the payment of that amount could not be enforced by any penalty or coercive action and when "the only remedy that the authorities would have, if any operator refused to pay is one of filing a suit for the recovery of that amount of the passenger tax that the operator might have collected and received". As the question whether the recovery of the tax amount for a period before 7th May 1962 could be made as arrears of land revenue was not before us for determination at the time of the making of the order in M. P. No. 143 of 1963, our observation that the only remedy for recovery of this tax amount was by filing a suit cannot be regarded as concluding the matter and holding once for all that the recovery of such a tax could not be made as arrears of land revenue. That observation needs modification in the light of the view expressed by us in this case, and we have no hesitation in saying that a tax amount for a period prior to 7th May 1962 can be recovered by filing a suit as well as arrears of land revenue by the sale of stage carriages and their accessories by virtue of section 10 (2) of the Act.
For the foregoing reasons, both these petitions fail and are dismissed with costs. Counsel''s fee in each case is fixed at Rs. 150. The outstanding amount of security deposit, if any after deduction of costs, shall be refunded to the petitioners in each case.