# Radhey Shyam Yadav v. State of U.P. and others

- **Citation:** (2005) 4 ILRA 1194
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-12-02
- **Case number:** Criminal Misc. Writ Petition No. 6435 of 2004
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-yadav-v-state-of-u-p-and-others-40597
- **Pages:** 5

## Headnote

Constitution
of
India
Art.
226-Writ
Petition-maintainability-controversy
of
conversion of private vehicle into maxi
cab-involve if the vehicle not convertedtransport authority has no jurisdiction to
imposed
the
tax-penalty
of
Rs.1,79,809/-
Quashed-Subject
to
Payment
of
Rs.10,000/-
penalty
as
provided in section 192 of M.V. Act.

Held: Para 13 & 15

So far as the question of maintainability
of this petition is concerned, in the
present case the controversy in respect
of the assessment of the taxes is not
involved
but
the
controversy
of
conversion of a private vehicle into a
maxi cab is involved. If the vehicle is not
legally converted into a maxi cab, the
taxes
imposed
by
the
Transport
authority are not permissible in the eyes
of law. Therefore, in this case it is not
required to approach the Transport
4 All] Radhey Shyam Yadav V. State of U.P. and others
1195
Commissioner
in
respect
of
the
assessment
of
tax,
therefore,
this
petition is maintainable.

But the vehicle of the petitioner was
intercepted by the transport authority
which was violating the provision of
section 66 of the Act because by that
time 12 passengers were carrying by
that vehicle, therefore, the petitioner is
liable to pay the penalty as provided by
section 207 of the Act. In the present
case it has come in evidence that prior
the present seizure of the vehicle, it was
intercepted
on
27.3.1998
also
and
penalty of Rs.3500/- was paid by the
petitioner and the vehicle was released
by the A.R.T.O. Ballia in his favour on
3.4.1998 with a warning. Therefore, the
petitioner is liable to pay the penalty i.e.
Rs.10,000/- as provided under section
192 A of Motor Vehicles Act, 1988.

## Text

1194 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
apprehended by the learned Standing
Counsel. But, circumstances must exist
which
would
indicate
that
the
Government
(or
the
appointment
authority) has itself applied its mind to
all the relevant material and was
satisfied
that
the
concerned
government servant has become a dead
wood and public interest would suffer
more by allowing him to continue to
perform the duties and functions of his
office till superannuation in the normal
course and that it is in public interest to
order compulsorily retirement and that
in taking such action it has not merely
acted on the basis of the report of the
Screening Committee. We have come to
the conclusion after giving out most
thoughtful consideration to the facts
and circumstances of the present case
that
the
impugned
order
of
compulsorily retirement has not been
passed by the State Government after
applying its mind to all the relevant
material on record. The impugned
order is, therefore, clearly arbitrary,
the requisite opinion having not been
formed in the requisite manner as
required by law, and it is liable to be
quashed."

15. With reference to aforesaid legal
principles enunciated, this Court is
satisfied, that the facts of the present case
the order of compulsorily retirement
passed by the District Magistrate dated
12.1.2004 is legally not justified as he as
not
exercised
his
jurisdiction
in
accordance with the Rule 56 (c) and,
therefore, is hereby quashed.

16. Petitioner shall be reinstated in
services with all consequently benefits. It
will be open to the appointment authority
to
take
a
fresh
decision
under
Fundamental Rule 56 (c) qua the
petitioner in accordance with law and the
observations made hereinabove. Writ
petition is allowed.
----------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2005

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Writ Petition No. 6435 of
2004

Radhey Shyam Yadav

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

Counsel for the Petitioner:
Sri A.K. Ray

Counsel for the Respondents:
A.G.A.

Constitution
of
India
Art.
226-Writ
Petition-maintainability-controversy
of
conversion of private vehicle into maxi
cab-involve if the vehicle not convertedtransport authority has no jurisdiction to
imposed
the
tax-penalty
of
Rs.1,79,809/-
Quashed-Subject
to
Payment
of
Rs.10,000/-
penalty
as
provided in section 192 of M.V. Act.

Held: Para 13 & 15

So far as the question of maintainability
of this petition is concerned, in the
present case the controversy in respect
of the assessment of the taxes is not
involved
but
the
controversy
of
conversion of a private vehicle into a
maxi cab is involved. If the vehicle is not
legally converted into a maxi cab, the
taxes
imposed
by
the
Transport
authority are not permissible in the eyes
of law. Therefore, in this case it is not
required to approach the Transport
4 All] Radhey Shyam Yadav V. State of U.P. and others
1195
Commissioner
in
respect
of
the
assessment
of
tax,
therefore,
this
petition is maintainable.

But the vehicle of the petitioner was
intercepted by the transport authority
which was violating the provision of
section 66 of the Act because by that
time 12 passengers were carrying by
that vehicle, therefore, the petitioner is
liable to pay the penalty as provided by
section 207 of the Act. In the present
case it has come in evidence that prior
the present seizure of the vehicle, it was
intercepted
on
27.3.1998
also
and
penalty of Rs.3500/- was paid by the
petitioner and the vehicle was released
by the A.R.T.O. Ballia in his favour on
3.4.1998 with a warning. Therefore, the
petitioner is liable to pay the penalty i.e.
Rs.10,000/- as provided under section
192 A of Motor Vehicles Act, 1988.

(Delivered by Hon'ble Ravindra Singh, J.)

1. Heard Sri Anil Kumar Ray,
learned counsel for the petitioner and the
learned A.G.A.

2. This writ petition is filed on
behalf of Radhey Shyam Yadav with a
prayer that respondents be directed to
release the Vehicle No.U.P. 60-A0919
(Jeep) in favour of the petitioner.

3. The brief facts of this case are that
the
petitioner
is
the
owner
of
a
commander Jeep No. U.P. 60-A 0919 and
he has paid one time road tax on
13.10.1996. It is registered as a private
vehicle. The aforesaid vehicle has been
intercepted by the Assistant Regional
Officer, Ballia, respondent no.2 on
24.7.2003 and the same was kept at the
Police Station Phephna district Ballia. The
petitioner has produced the registration
certificate but the same has not bee
released
by
respondents
2
and
3.
Thereafter
the
petitioner
filed
an
application before the Chief Judicial
Magistrate, Ballia with a prayer to release
the vehicle in his favour but respondent
no.2 submitted a challan report in respect
of the vehicle concerned on 26.2.2004 and
respondent no. 2 submitted a report dated
15.03.2004 mentioning therein that the
petitioner had moved an application to
convert the registration of the vehicle
concerned from private vehicle to public
vehicle, it reply was given by the
petitioner by way of filing a criminal
revision no. 139 of 2004 in the court of
learned Sessions Judge, Ballia but the
same was dismissed by the 4th Additional
Sessions Judge, Ballia on 29.5.2004.

4. It is contended by the learned
counsel for the petitioner that it is an
admitted fact that the vehicle concerned is
registered vehicle in the name of the
petitioner and the petitioner has applied
for converting the same as a public
vehicle but the same has not been
converted and respondent no. 2 has
illegally intercepted the vehicle of the
petitioner
and
demanded
tax
and
additional tax which is not leviable on the
petitioner's vehicle.

5. It is further contended that the
vehicle in question was never used as a
public vehicle. It is used as a private
vehicle and respondent no.2 has submitted
challan report after six months of the
seizure of the petitioner's vehicle, which
is a concocted document and the conduct
of respondent no. 2 was fully malafide. In
case there was any violation of the
provisions of the Motor Vehicles Act, the
petitioner was liable for fine only.

6. It is further contended that there is
a prescribed procedure for converting a
1196 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
private vehicle into a public vehicle, but
till now no procedure has been followed
and without following any procedure the
vehicle concerned has been converted into
a maxi cab, which is illegal and it is
manipulation in the record of the vehicle
concerned kept in the office of the
A.R.T.O. Therefore, no reliance can be
placed on any report of suck conversion.

7. It is further contended by the
learned counsel of the petitioner that
according to section 192-A of the Motor
Vehicles Act if a private vehicle is used
for commercial purposes and it is used in
contravention of the provisions of subsection 1 of section 66 or in contravention
of any condition of permit relating to the
route on which or the purpose for which
the vehicle may be used, shall be
punishable for the first offence with a fine
which may extend to five thousand rupees
but shall not be less than two thousand
rupees and for any subsequent offence
with imprisonment which may extend to
one year but shall not be less than 3
months or with fine which may extend to
ten thousand rupees but shall not be less
than five thousand rupees or with both.

8. It is further contended that in the
present case the controversy in respect of
tax is not involved but the controversy of
conversion of the vehicle into a maxi cab
is involved because after the deposition of
all the usual charges for conversion, the
vehicle in question was never taken by the
transport authority for fitness purposes
and without examining the vehicle and
issuing of the fitness certificate no vehicle
can be converted into a maxi cab. Only
deposition of the usual charges for
conversion purpose is not sufficient but it
is a mere formality to convert the vehicle
into a maxi cab. In the present case the
vehicle of the petitioner has been seized
and thereafter some entries were made in
the record of the vehicle, which are
manipulated entries.

9. It is opposed by the learned
A.G.A. by submitting that the vehicle in
question was registered in the name of the
petitioner as a private vehicle which was
intercepted
by
respondent
no.2
on
24.7.2003 because it was used for
transportation of the passengers without
paying the requisite taxes and it was plied
without paying the taxes. In this regard
tax and Additional tax upto 31.7.2004,
totaling a sum of Rs.1,79,809/- was due
on the petitioner the same has not been
paid by him, so the vehicle was seized
and the petitioner without approaching the
transport authority and in order to avoid
the payment of taxes directly approached
the court concerned. This vehicle was also
intercepted by the Enforcement Officer
Ballia on 27.3.1998 and thereafter the
petitioner himself paid the penalty and
applied for conversion and the same was
converted into a maxi cab after obtaining
the requisite fees etc. but it was plied by
the
petitioner
without
paying
the
dues/taxes, therefore, the vehicle in
question was rightly seized by the
Transport Officer because at that time it
was transporting the passengers. Firstly
the vehicle in question was intercepted on
27.3.1998 at that time it was carrying 12
passengers. Thereafter, the petitioner
himself filed an application on 2.4.1998
before the A.R.T.O. with an explanation
that at the time of seizure of vehicle he
was coming after cremation of a dead
body from Mahavir Ghat. On that
application a detailed report was prepared.
A penalty of Rs.3,500/- was assessed and
the same was paid by the petitioner then
the vehicle was released by the A.R.T.O.
4 All] Radhey Shyam Yadav V. State of U.P. and others
1197
Ballia on 3.4.1998 in favour of the
petitioner with a warning that he will not
use the said vehicle as maxi cab and if it
is again intercepted in such condition full
tax of maxi cab will be realized from him.
Thereafter, he approached the A.R.T.O.
concerned on 3.6.1998 for converting the
vehicle into a maxi cab. On 4.6.1998 he
deposited the required tax including
conversion
fee
of
Rs.2,500/-
and
difference of tax from private to a
commercial viz. Rs.130/- in view of that
the vehicle was converted as maxi cab on
4.6.1998
by
the
A.R.T.O.
Ballia.
Therefore, the petitioner is liable to pay
the tax with effect from 4.6.1998.

10. It is further submitted that after
the order of conversion of the vehicle in
question, the petitioner never approached
the department by filing an application
and form No. S.R. 12 for fitness and
never applied for permit etc. and started
using the vehicle in question which is not
permissible in law because all the
formalities were not completed, which
were required for conversion.

11. It is further submitted by the
learned A.G.A. that the present writ
petition is not maintainable because the
petitioner has an alternative remedy by
way
of
approaching
the
transport
authority under the provisions of section
207 (2) of the Motor Vehicles Act.

12. It is further contended that
against the taxes under the U.P. Motor
Vehicle Taxation Act, 1997 a statutory
appeal is also provided under section 18
of the aforesaid Act and the petitioner can
approach the authority concerned i.e. the
Transport Commissioner, U.P. Lucknow
to which the petitioner has not yet
approached as such the present petition is
premature and is liable to be dismissed.

13. From the perusal of the record, it
appears that in the present case the
petitioner has deposited the required fees
of conversion including the difference of
tax as demanded by the department
concerned but deposition of the required
charges is not sufficient to convert a
private vehicle into a maxi cab because
before passing the order of conversion
fitness of the vehicle is essentially
required by the provisions of law but in
the present case all the necessary
formalities for converting the private
vehicle into a maxi cab have not been
done by the transport authority. The
provision for conversion is specifically
given in the Motor Vehicles Act but the
same has not been followed in such a
condition the assessed taxes and dues on
the petitioner is not proper because the
vehicle in question was not in fact
converted into a maxi cab. In respect of
conversion the initiation was made by the
petitioner and for the same required
charges were deposited by him but other
formalities were not done by the transport
authorities even the fitness certificate was
not given by the transport authority and it
is admitted case that after deposit of the
charges of conversion the petitioner never
approached the transport authority. It also
shows that the vehicle in question was
never examined for fitness purpose. If any
entry has been made in the papers of the
vehicle maintained at the office of the
A.R.T.O., the same is not reliable and by
these entries it cannot be said that the
vehicle was, in fact, converted into a maxi
cab. Therefore, the assessment of the
taxes made by the transport authority is
illegal for which the petitioner is not
liable to pay the same. So far as the
1198 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
question of maintainability of this petition
is concerned, in the present case the
controversy in respect of the assessment
of the taxes is not involved but the
controversy of conversion of a private
vehicle into a maxi cab is involved. If the
vehicle is not legally converted into a
maxi cab, the taxes imposed by the
Transport authority are not permissible in
the eyes of law. Therefore, in this case it
is not required to approach the Transport
Commissioner
in
respect
of
the
assessment of tax, therefore, this petition
is maintainable.

14. In view of the above discussion
the impugned order dated 23.3.2004
passed by the learned Additional C.J.M. -
I Ballia and the judgment and order dated
29.5.2004 passed by the IVth Additional
Sessions
Judge,
Ballia
in
Criminal
Revision No. 139 of 2004 are not perfect
orders as they have not been passed after
considering the main controversy of
conversion of the vehicle into a maxi cab.
Therefore, the impugned orders are
hereby set aside and assessment of taxes
as Rs.1,79,809/- shall not be realized from
the petitioner.

15. But the vehicle of the petitioner
was intercepted by the transport authority
which was violating the provision of
section 66 of the Act because by that time
12 passengers were carrying by that
vehicle, therefore, the petitioner is liable
to pay the penalty as provided by section
207 of the Act. In the present case it has
come in evidence that prior the present
seizure of the vehicle, it was intercepted
on 27.3.1998 also and penalty of
Rs.3500/- was paid by the petitioner and
the vehicle was released by the A.R.T.O.
Ballia in his favour on 3.4.1998 with a
warning. Therefore, the petitioner is liable
to pay the penalty i.e. Rs.10,000/- as
provided under section 192 A of Motor
Vehicles Act, 1988.

16. Thereafter, it is directed that the
petitioner
shall
deposit
a
sum
of
Rs.10,000/- as penalty at the office of
A.R.T.O. Ballia, in case above penalty is
deposited, the vehicle in question i.e.
commander jeep bearing registration no.
U.P. 60-A/0919 shall be released in
favour of the petitioner forthwith.

Accordingly this petition is allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No. 1808 of
2000

Rajdhar

...Applicants
Versus
State of U.P. and others...Opp. Parties

Counsel for the Applicants:
Sri A.K. Srivastava

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section-319Evidence rendered during trail of casecan not be treated as evidence collected
during enquiring or trail-after recording
statements of two witness-three accused
named in FIR acquitted-but by the same
order learned session judge summond
the other-named accused including the
applicant-held-summoning
order
absolutely proper but the acquittal can
be recorded after the prosecution's
evidence
is
completed-hearing
of
prosecution and the defence completedaccordingly
the
order
of