# Deep Kumar Tewari v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 1048
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-25
- **Case number:** Civil Misc. Writ Petition No. 922 of 2012
- **Bench:** Sunil Ambwani, Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deep-kumar-tewari-v-state-of-u-p-and-others-42291
- **Pages:** 6

## Headnote

Constitution of India, Article 226-fitness
certificate
of
vehicle-without
paying
arrear of Road Tax-argument both are
distinct one-hence petitioner can not be
compelled to deposit Road Tax-heldprovisions of Section 39, 56 and 66 of
Motor
Vehicle
Act
1988
read
with
section-4 (2) (A) of U.P. Motor Vehicle
Taxation Act 1997 are mandatory-each
and every conditions are necessary for
state carriage on transport vehicle to
play on public road-no such relief can be
granted-petition dismissed.

Held: Para 14

he interdependence of the provisions of
Section 39, 56 and 66 of Motor Vehicle
Act, 1988 and the provisions of the U.P.
Motor Vehicle Taxation Act, 1997, are for
the purposes of maintaining the strict
regime
of
regulations
to
allow
a
transport vehicle or stage carriage to ply
on the road. Each of the conditions is
necessary for plying the vehicle and thus
it cannot be said that the vehicle may be
subjected
to
fitness
certificate,
2 All] Deep Kumar Tewari V. State of U.P. and others
1049
independent of payment of tax/ advance
tax.
Case law discussed:
AIR 1983 Allahabad 178; AIR 2005 SC 1431

## Text

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21. Even if it is assumed that services
on the post of Assistant Teacher were
vacant, the same were to be filled up by
promotion or by direct recruitment in the
manner prescribed in the Recruitment Rule.
The case of the petitioners is not that they
had taken their benefit under the dying in
harness rules for the first time as benefits of
employee of Government Servant who had
died in harness. Therefore, they had no right
to be re-appointed for a second time, afresh,
as Assistant Teacher under the U.P.
Dependents of Government Servants Dying
in Harness Rules, particularly when they
had taken their option and exhausted it
earlier.

22. For all the reasons stated above
the appointment of the petitioners as
Assistant Teacher which was rightly
cancelled. It may be that the respondent no.
2 had by his letter dated 27.06.1995,
recommended the appointment of the
petitioners but that recommendation could
not have been given weight as the case of
the petitioners on the post of Assistant
Teacher was not governed by appointment
under dying in harness rules particularly
after having availed the benefits of
appointment on compassionate ground
under the U.P. Dependants Governemtn
Servant Dying in Harness Rules earlier.

23. For all the reasons stated above,
the writ petition is dismissed.

24. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2012

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE ADITYA NATH MITTAL, J.

Civil Misc. Writ Petition No. 922 of 2012

Deep Kumar Tewari

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.P. Singh
Sri Ghaus Beg

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-fitness
certificate
of
vehicle-without
paying
arrear of Road Tax-argument both are
distinct one-hence petitioner can not be
compelled to deposit Road Tax-heldprovisions of Section 39, 56 and 66 of
Motor
Vehicle
Act
1988
read
with
section-4 (2) (A) of U.P. Motor Vehicle
Taxation Act 1997 are mandatory-each
and every conditions are necessary for
state carriage on transport vehicle to
play on public road-no such relief can be
granted-petition dismissed.

Held: Para 14

he interdependence of the provisions of
Section 39, 56 and 66 of Motor Vehicle
Act, 1988 and the provisions of the U.P.
Motor Vehicle Taxation Act, 1997, are for
the purposes of maintaining the strict
regime
of
regulations
to
allow
a
transport vehicle or stage carriage to ply
on the road. Each of the conditions is
necessary for plying the vehicle and thus
it cannot be said that the vehicle may be
subjected
to
fitness
certificate,
2 All] Deep Kumar Tewari V. State of U.P. and others
1049
independent of payment of tax/ advance
tax.
Case law discussed:
AIR 1983 Allahabad 178; AIR 2005 SC 1431

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri B.P. Singh,
learned counsel for the petitioner. Shri A.C.
Tripathi, Standing Counsel appears for the
respondents.

2. The petitioner is owner of vehicle
no.U.P.75A-7437 (Bus). The permit of the
vehicle is valid upto 17th January, 2030.
The
fitness
certificate
expired
on
31.10.2010 and there are dues of tax under
the U.P. Motor Vehicle Taxation Act, 1997
of Rs.95,400/- on which penalty amount has
been imposed. The petitioner has also not
paid the advance tax.

3. The petitioner applied for fitness
certificate without paying the arrears of tax
and advance tax, on which the Asstt.
Regional
Transport
Officer
(Admn.),
Fatehpur has informed him by letter dated
18.5.2012 that he may deposit the arrears of
tax, penalty and advance tax as well as the
fitness fees of Rs.920/- and obtained fitness
certificate.

4. By this writ petition the petitioner
has prayed for grant/ issue of certificate of
fitness in respect of vehicle, under Section
56 of the Motor Vehicle Act, 1988 read
with Rule 39 of the Motor Vehicle Rules,
1998 without payment of the full amount of
tax. He has also prayed for quashing the
letter dated 18.5.2012, by which he has
been informed by the A.R.T.O. to obtain
fitness certificate after depositing the tax,
advance tax and fitness fees.

5. Learned counsel for the petitioner
has relied upon the Division Bench
judgment of this Court in Sushil Kumar v.
The
Regional
Transport
Authority,
Lucknow, AIR 1983 Allahabad 178 in
which it was held that endorsement of
renewal on permit cannot be withheld on
the ground of arrears of tax. The Court held
that there is separate procedure for
realisation of tax and which is not
connected or correlated with the renewal of
permit
and
allowed
the
prayer
for
endorsement on the permit leaving it open
to the department to realise the tax.

6. The petitioner has also relied upon
State of Orissa & Ors. v. Bijaya C.
Tripathy, AIR 2005 SC 1431, in which it
was held that Section 66 prevents the use of
vehicle as transport vehicle without a
permit. It does not, however, prohibit
driving of such vehicle on public road. Even
in the absence of a valid permit the vehicle
remains a transport vehicle, which is
capable of being used on road so long as
vehicle has valid certificate of fitness and
valid registration certificate.

7. Shri A.C. Tripathi, learned counsel
appearing for the State submits that the
registration under Section 39 and the award
of fitness certificate under Section 56 are
correlated to each other. The transport
vehicle shall not be deemed to be validly
registered for the purposes of section 39,
unless it carries the certificate of fitness. He
submits that tax under the U.P. Motor
Vehicle Taxation Act, 1997, in respect of
stage carriage has to be paid under Section 4
(2A), which provides for imposition of tax
in advance. The owner of the vehicle has an
option to pay instead of monthly tax in
advance a quarterly or yearly tax at such
rate as may be notified by the State
Government.
Under
Section
20
the
Taxation Officer has powers to recover the
tax, which includes arrears of tax or
1050 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
additional tax or penalty as land revenue.
Under sub-section (2) the tax, additional tax
and penalty is the first charge on the motor
vehicle including its accessories in respect
whereof it is due. Under Section 22 the
transport vehicle can be detained by an
officer authorised by the State Government,
if it is used by a person without payment of
tax, additional tax or penalty. The vehicle
may be seized and detained for the purposes
subject to such steps as may be considered
necessary for safe custody of the motor
vehicle for non-payment of the tax. The
vehicle can be taken to nearest police station
or any other place specified by him with
report of seizure within 48 hours to the
concerned Taxation Officer. The vehicle
shall be released by Taxing Officer
immediately on payment of tax, additional
tax, penalty or other amount due.

8. Rule 67 of the U.P. Motor Vehicle
Rules, 1998 made under the Motor Vehicles
Act, 1998 provides for conditions of grant
of permit. Clause (ii) of Rule 67 provides
that vehicle covered of such permit shall in
no case be used in any public place until tax
levied by the State Government and payable
in respect thereof has been duly paid and if
such tax is not duly paid within such period
as may be specified in the U.P. Motor
Vehicle Taxation Act, 1997.

9. A combined reading of these
provisions would show that the provisions
for obtaining registration under Section 39;
certificate of fitness under Section 56;
necessity of obtaining of permit under
Section 66 and conditions thereof in Section
67 of the U.P. Motor Vehicle Rules; and
payment of tax under the U.P. Motor
Vehicle
Taxation
Act,
1997,
are
interrelated. The judgment in Sushil
Kumar's case (Supra) was rendered under
the old Act in which the provisions of
obtaining permit and the condition of permit
under Section 66 of the Motor Vehicle Act
and Rule 67 of the U.P. Motor Vehicle
Rules were not considered.

10. In State of Orissa & Ors. v. Bijaya
C. Tripathy (Supra) the Supreme Court held
that it cannot be said that transport vehicle
cannot be plied on public road without a
permit. What is prohibited by Section 66 of
the Motor Vehicle Act is that the vehicle
cannot be used as a transport vehicle in any
public place without a permit. The vehicle
can be, if the owner so desires, used for the
purposes other than transport vehicle such
as vehicle for use of the family on public
road.

11. The petitioner has neither pleaded
nor taken a stand that he wants to use the
vehicle for his personal use and does not
intend to use the vehicle as stage carriage.

12. The necessity of obtaining the
fitness
certificate
cannot
be
overemphasised. A vehicle cannot be plied
on road unless it is roadworthy. In order to
protect the conditions of the roads and to
prevent accidents, the legislature has under
Section 56 provided for certificate of fitness
to be mandatory. Section 56 further
provides that unless vehicle carries fitness
certificate, it cannot be deemed to be validly
registered for the purposes of Section 39.

13. The registration of the vehicle is
necessary for obtaining permits as well as
the fitness certificate. The provisions of the
U.P. Motor Vehicle Taxation Act, 1997
empowers an officer authorised by the State
Government to seize the vehicle if it is
being plied on the road without payment of
notified tax. The tax in respect of stage
carriage are to be paid in advance under
Section 4 (2A), failing which the vehicle
2 All] Deep Kumar Tewari V. State of U.P. and others
1051
may be seized and detained until taxes are
paid.

14. The interdependence of the
provisions of Section 39, 56 and 66 of
Motor Vehicle Act, 1988 and the provisions
of the U.P. Motor Vehicle Taxation Act,
1997, are for the purposes of maintaining
the strict regime of regulations to allow a
transport vehicle or stage carriage to ply on
the road. Each of the conditions is necessary
for plying the vehicle and thus it cannot be
said that the vehicle may be subjected to
fitness certificate, independent of payment
of tax/ advance tax.

15. Rule 73 of the Central Motor
Vehicle Rules, 1989 provides a tax
clearance certificate to be submitted to the
authorised testing station for grant or
renewal of certificate of fitness. Rule 39 of
these Rules, provides for grant of certificate
of fitness on an application on Form SR-12
to the registering authority on the authorised
testing station. The form provides for
enclosures of certificate. Similar clearance
certificate is required under Rule 73 of these
rules, which provides for payment of tax to
the State Government as condition of grant
of fitness certificate. Rule 73 of the Central
Motor Vehicle Rules, 1989; Rule 39 of the
U.P. Motor Vehicle Rules, 1998 and Form
SR-12 are quoted as below:-

"39. Certificate of fitness-Grant and
issue- (1) For the purpose of Section 56,
the prescribed authority shall be the
registering authority. An application for
the issue of a certificate of fitness, shall
be made in Form SR-12 to the registering
authority or the authorised testing station
in whose functional area the vehicle is
kept or whose functional area includes the
major portion of the route or area to
which the permit relating to the vehicle
extends.

(2) The registering authority or the
authorised testing station, by whom
certificate of fitness was issued, may
endorse thereon the date, appointed for
the next inspection of the vehicle and the
owner shall cause the vehicle to be
produced for inspection accordingly.

(3) If the certificate has not been
endorsed as provided in sub-rule (2) the
owner shall, not less than one month
before the date of expiry of the certificate,
make an application in Form SR-13 and
cause the vehicle to be produced for
inspection on such date and at such time
and place as the registering authority may
thereafter,
upon
reasonable
notice,
appoint.

(4) If the owner fails to produce the
vehicle on the date appointed under subrule (2) or on the date, time and place
appointed under sub-rule (3) he shall be
liable to pay an amount equivalent to and
in addition to the amount of fee specified
at Serial 11 of the Table of Rule 81 of the
Central Rules.

(5) There shall not be more than one
certificate of fitness in respect of any
vehicle.

(6)
If,
owing
to
mechanical
breakdown or other cause, a vehicle is,
after the expiry of the certificate of fitness,
outside the functional area of the
registering
authority
by
whom
the
certificate of fitness is tobe issued, the
registering
authority
may
without
prejudice to any penalty, to which the
owner or the driver may have become
liable, if the vehicle is, in his opinion, fit
for use, by endorsement in Form SR-14
1052 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
and subject to such conditions as he may
specify, authorise its use for such time as
may reasonably be necessary for the
vehicle to return to the area of the
registering
authority
by
whom
the
certificate of fitness is to be issued, and
the vehicle may be driven to such area in
accordance with such endorsement, but
shall not be used after return to that area
until the certificate of fitness has been
issued:

Provided that no authorised testing
station situated outside the area of
jurisdiction in which the owner should
have obtained the certificate of fitness,
shall issue such authorisation to any
vehicle under this sub-rule.

(7) If a vehicle is damaged at any
time so as to be unfit for ordinary use and
may in the opinion of any registering
authority safely be driven at a reduced
speed to a place of repairs, and if the
registering authority is satisfied that it is
necessary that the vehicle should be so
driven, any registering authority may by
endorsement in Form SR-15 specify the
time within which and the conditions,
including speed limit, subject to which the
vehicle may be driven to a specified
destination for the purpose of repairs.

(8) Where a prescribed authority
cancels a certificate of fitness under subsection (4) of Section 56, it shall-

(a) supply to the owner or the person
in charge of the vehicle reasons in writing
for such cancellation;

(b) issue to the said owner or the
person temporary authorisation for the
removal of the motor vehicle in Form SR16 specifying the time and the conditions
subject to which the vehicle may be driven
to a specified destination for the purpose
of repairs.

Form SR-12
[See Rule 39 (1)]
Application for certificate of fitness grant/
renewal
PART A
(To be filled in by the appellant)

To,

The Registering Authority/Authorised
Testing Station.........

I hereby apply for the issue/ renewal of
certificate of fitness as required by Section
56 of the Motor Vehicles Act, 1988 of the
vehicle described below:

Registration mark of vehicle..................

Name of owner................

Place where the vehicle is ordinarily
kept...................

Name
of
Manufacturer
of
vehicle.....................

Manufacturer's model, or if not
knowledge wheel base.................

Type of vehicle................

Chassis number......................

Engine number............................

Particulars of any previous certificate
of
fitness
granted
in
respect
of
vehicle...................................
2 All] Jai Singh V. State of U.P.Thorugh Collector Barabanki
1053

Authority
by
which
granted/
renewed.........................

Date when certificate of fitness ceased
to be valid...................

Reasons
for
cessation
of
validity.......................

I enclose herewith tax clearance
certificate required under Rule 73 of the
Central Rules.

Dates:.........................

Signature or thumb-

impression of applicant.

73. Tax clearance certificate to be
submitted to the testing station- No
authorised testing station shall accept an
application for the grant or renewal of a
certificate of fitness unless the same is
accompanied by a tax clearance certificate
in such form as may be specified by the
State Government, from the Regional
Transport
Officer
or
motor
vehicle
inspector having jurisdiction in the area to
the effect that the vehicle is not in arrears of
motor vehicle tax or any compounding fee
referred to in sub-sections (5) and (6) of
Section 86."

16. In the end the petitioner prayed for
an order to allow him to deposit half arrears
of tax for obtaining fitness certificate. We
do not find any good ground to entertain the
prayer as the tax is payable as soon as the
incident of payment of tax in the charging
section falls. In the present case the taxes
are paid in advance. There is no provisions
under the Act or the Rules to defer the
liability of payment of tax.

17. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.07.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Misc. Single No. - 4192 of 2009

Jai Singh

 ...Petitioner
Versus
State of U.P.Thorugh Collector Barabanki

 ...Respondent

Counsel for the Petitioner:
Sri Abdul Rasheed

Counsel for the Respondents:
C.S.C.
A.S.G.
Sri Alka Saxena
Sri Sharad Tewari

U.P. Agricultural Credit Act 1973-Section
11-A- Recovery of Agricultural duespetitioner borrowed Rs. 2 Lacs for
purchase of Tractor-committed some
default in payment of installments-under
Agricultural Debt relief scheme, 2008amount of Rs. 2,21017/ waived as such
on 01.04.2008. only Rs. 47059 plus
interest-found due against petitioneragainst that Bank issued R.C. For Rs.
2,11,534/- and recovered Rs. 2 Lacs by
putting
the
Tractor
as
well
other
immovable property on auction salewithout asking the petitioner to deposit
balance amount of Rs. 47059/ nor
followed the procedure for auction sale
Respondents
not
proceeded
on
Transparent, valid and just manner-no
due date fixed for deposit of balance
amount
held-not
only
recovery
certificate
but
all
subsequent
proceeding-nullity-causing
serious
harassment, embarrassment-amount to
depriving from constitutional right of
Art. 21 and 300-A of Constitution-