# ARBIND KUMAR SINGH v. NAND KISHORE PRASAD & ORS

- **Citation:** [1968] 3 S.C.R. 322
- **Court:** Supreme Court of India
- **Decided:** 1968-02-26
- **Case number:** Civil Appeal No. 1943 of 1967
- **Bench:** J. C. Shah, V. Ramaswami, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arbind-kumar-singh-v-nand-kishore-prasad-ors-4379
- **Pages:** 8

## Headnote

Co11stitu1io11 of India, 1950, Art. 133-'Civil Proceeding', Scope of.
Motor Vehicles Act (4 of 1939), ss. 41, 48 and 64A-Scope of-'Pass
such further order as it thinks fit', Meaning of.
Natural Justice-Revising authority ca/Ung /or additional evidence-
. Duty to disclose to parties.
In 1950-51, the appellant was plying his motor buses in Bihar. Bibar
Act 17 of 1950 imposed a tax on passengers and goods carried by public
service motor vehicles.
As the imposition of the tax was found to '-
invalid the appellant did not pay the tax. In 1961, the tax was reimposed
by Act 17 of 1961 with effect from 1st April 1950 and the imposition was
found to be valid. Therefore, the appellant was liable to pay the transport
tax for 1950-51. This liability was outsanding on 15th January 1965, on
which date, the Regional Transport Authority ordered that a permit to ply
a stage carriage be granted to him on condition that he produced a clearance certificate of transport tax within one month from the date of the
·Order failing which the grant will stand automatically cancelled and the
permit will be granted to the first respondent. As the appellant failed to
.carry out the condition the permit was cancelled and given to the first respodent.
The order was confirmed by the Government, in 'revision, under
s. 64A of the Motor Vehicles Act, 1939, as amended by the Bihar Motor
Vehicles (Amendment) Act, 1950, after calling for and considering a report from the Dy. Commissioner of Commercial Taxes, that the. transport
tax was due from the appellant for 1950-51. The writ petition in the High
Court to quash the Government
order was
dismissed.
The appelJant
appealed to this Court with certificate granted by the High Court under
Art. 133 of the Constitution.
The respondent contended that the High Coult was not competent to
grant the certificate in proceedings under Art. 226; and the appellant con·
tended that : (I) on the date of the order granting the permit there was
no liability to pay the tax as there was no assessment; (2) the condition
regarding payment of tax was invalid; (3) the Minister of Transport who
dispo&ed of the revision to the Government had no right to call for any
additional evidence; and (4) the report of the Dy. Commissioner of Commercial Taxes should have been disclosed by the Minister to the aypellant.
HELD: (I) The words 'civil proceedings' in Art. 133 cover all proceedinS'l which directly affect civil rights, and therefore the High Court
was competent to grant the certificate in a proceeding under Art. 226 inVQ!ving civil rights. [324 E-F]
S. A. L. Narayan Row v. lshwar Lal Bhagwandas, [1966] 1 S.C.R. 190
. and Rcmesh v. Seth Genda/a/ Moti/a/ Patni, [1966] 3 S.C.R. 198, followed.
(2) Under the scheme of the Act the liability to pay tax arises by
statutory injunction and not from any order of assessment.
Therefore,
there was a liability to pay the transport tax outstanding, against the appd-
•Jant, on the date of the order granting him the permit and failure to
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ARBIND KUMAR V. NANO KISHORE (Shah, I.)
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produce the clearance certificate in reiipect of the tax disentitled him to·
the g'rant of a permit. [326 H; 327 CJ
Raipur Transport Co. (P.) v. M. P. Singh, A.I.R. 1968 M.P. 36 distinguished
(3) If it be held that the grant of a permit was to be ~bject only to·
such of the.matters specified under s. 47(1) (a) to (f) and to such of the
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conditions as may be prescnbed under s. 48, the order of the Regional
Transport Authority in the present case must be deemed to be an order
refusing the permit. and. tbe appellant should have challenged, by way
of appeal, the validity of the imposition of the condition relating to payment of tax; he could not ignore the conditi0n subject to which the permit
was aranted. [328 D-EI
c
( 4) The expression 'pass such order as it thinks fit' in s 64A, as amended by the Bihar Act, is not restricted to the passing of final orders. If for;
the purpose of doing complete justice between the

## Text

ARBIND KUMAR SINGH
v.
NAND KISHORE PRASAD & ORS.
February 26, 1968
[J. C. SHAH, V. RAMASWAMI AND G. K. MITTER, JJ.]
Co11stitu1io11 of India, 1950, Art. 133-'Civil Proceeding', Scope of.
Motor Vehicles Act (4 of 1939), ss. 41, 48 and 64A-Scope of-'Pass
such further order as it thinks fit', Meaning of.
Natural Justice-Revising authority ca/Ung /or additional evidence-
. Duty to disclose to parties.
In 1950-51, the appellant was plying his motor buses in Bihar. Bibar
Act 17 of 1950 imposed a tax on passengers and goods carried by public
service motor vehicles.
As the imposition of the tax was found to '-
invalid the appellant did not pay the tax. In 1961, the tax was reimposed
by Act 17 of 1961 with effect from 1st April 1950 and the imposition was
found to be valid. Therefore, the appellant was liable to pay the transport
tax for 1950-51. This liability was outsanding on 15th January 1965, on
which date, the Regional Transport Authority ordered that a permit to ply
a stage carriage be granted to him on condition that he produced a clearance certificate of transport tax within one month from the date of the
·Order failing which the grant will stand automatically cancelled and the
permit will be granted to the first respondent. As the appellant failed to
.carry out the condition the permit was cancelled and given to the first respodent.
The order was confirmed by the Government, in 'revision, under
s. 64A of the Motor Vehicles Act, 1939, as amended by the Bihar Motor
Vehicles (Amendment) Act, 1950, after calling for and considering a report from the Dy. Commissioner of Commercial Taxes, that the. transport
tax was due from the appellant for 1950-51. The writ petition in the High
Court to quash the Government
order was
dismissed.
The appelJant
appealed to this Court with certificate granted by the High Court under
Art. 133 of the Constitution.
The respondent contended that the High Coult was not competent to
grant the certificate in proceedings under Art. 226; and the appellant con·
tended that : (I) on the date of the order granting the permit there was
no liability to pay the tax as there was no assessment; (2) the condition
regarding payment of tax was invalid; (3) the Minister of Transport who
dispo&ed of the revision to the Government had no right to call for any
additional evidence; and (4) the report of the Dy. Commissioner of Commercial Taxes should have been disclosed by the Minister to the aypellant.
HELD: (I) The words 'civil proceedings' in Art. 133 cover all proceedinS'l which directly affect civil rights, and therefore the High Court
was competent to grant the certificate in a proceeding under Art. 226 inVQ!ving civil rights. [324 E-F]
S. A. L. Narayan Row v. lshwar Lal Bhagwandas, [1966] 1 S.C.R. 190
. and Rcmesh v. Seth Genda/a/ Moti/a/ Patni, [1966] 3 S.C.R. 198, followed.
(2) Under the scheme of the Act the liability to pay tax arises by
statutory injunction and not from any order of assessment.
Therefore,
there was a liability to pay the transport tax outstanding, against the appd-
•Jant, on the date of the order granting him the permit and failure to
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ARBIND KUMAR V. NANO KISHORE (Shah, I.)
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produce the clearance certificate in reiipect of the tax disentitled him to·
the g'rant of a permit. [326 H; 327 CJ
Raipur Transport Co. (P.) v. M. P. Singh, A.I.R. 1968 M.P. 36 distinguished
(3) If it be held that the grant of a permit was to be ~bject only to·
such of the.matters specified under s. 47(1) (a) to (f) and to such of the
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conditions as may be prescnbed under s. 48, the order of the Regional
Transport Authority in the present case must be deemed to be an order
refusing the permit. and. tbe appellant should have challenged, by way
of appeal, the validity of the imposition of the condition relating to payment of tax; he could not ignore the conditi0n subject to which the permit
was aranted. [328 D-EI
c
( 4) The expression 'pass such order as it thinks fit' in s 64A, as amended by the Bihar Act, is not restricted to the passing of final orders. If for;
the purpose of doing complete justice between the parties, the authority who
hears the revision petition is satisfied that it is necessary to call for additional evidence, he may do so. There is no bar in the Act or the Rules
aa:ainst an appellate or revising authority taking into consideration the·
additional evidence brou)tht on rncord. [328 G-HJ
(5) Such additional evidence must undoubtedly be disclosed to the
parties and they must be given an opportunity to meet an inference that
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may arise from it. In the present case. the High Court, on a c<insideration
of the evidence came to the conclusion that the additional evidence called
for by the Minister of Transport was disclosed by him, at the hearing, to
the appellant's counsel and there was no reason for this Court to disagreo
with that view. [329 A-B. HJ
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1943 of
1967;
Appeal from the judgment and order dated October 24, 1967'
of the Patna High Court in Civil Writ Jllrisdiclion Case· No. 283
of 1966.
Basudev Prasad and S. N. Prasad, for the appellant.
F
M. C. Chagla, Saptmi Iha and B. P. Iha, . for respondent'
No. 1.
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·u. P. Singh, for respondent No. 2.
The Judgment of the Court was delivered by
Shah, J. On January 15, 1965, the South Bihar Regional·
Transport Authority, Patna, ordered that a permit to ply a stage·
carriage on Dehri-Bhabua route be granted to Arbirid Knmar
Singh-hereinafter called 'the appellant'-"on p~duction of all
valid documents of 1964 model bus alone: with clearance certificate
of transport tax within one month from the date of order; failing
which the sanction of permit in his favour would stand automatically revoked, and permit will then be given to the ~
deserving
candidate Nand Kishore Prasad ........ ".
On application
submitted by Nand Kisbore Prasad-who will hereinafter be
referred to as 'the respondent'-that the appellant had failed to·
324
SUPREME COURT .IEPORTS
[1968] 3 s:c.R.
carcy out the condition relating to the grant of permit, the Chair·
man of the Regional Transport Authority by order dated February 20, 1965, cancelled the permit and directed that a permit
be given to the respondent.
The order of the Chairman was
reversed in appeal by the Appellate Board. In the view of the
Board "the clearance certificate" filed by the appellant showed that
all the taxes due hy him were paid.
The respondent then moved the State Government of Bihar
under s. 64-A of the Motor Vehicles Act, 1939 as amended by
the Bihar Motor Vehicles (Amendment) Act l7 of 1950.
The
Minister of Transport who heard the petition reversed the order
of the Appellate Board, h9lding that the appellant had failed to
carry out the conditions subject to which the Regional Transport
Authority had ordered that the permit be given to him.
A petition
un.der Art. 226 of the Constitution moved by the appellant in the
High Court of Patna against the order of the Minister of Trans.
port was dismissed. The appellant has appealed to this Court with
certificate granted by the High Court.
The plea raised by counsel for the respondent that the appeal
was liable to be dismissed because the High Court_ w.as incompetent
to grant a .certificate of fitness under Art. 133 ( 1 )(a) or Art.
133(1)(b) of the Constitution against the judgment of the High
Court exercising extraordinary original jurisdiction under Art. 226
of the Constitution is without substance. This Court has held in
S. A. L. Narayan Row & Anr.
v.
/shwarlal Bhagwandas &
Anr.(') that the words "civil proceeding" used in Art. 133 of the
Constitution cover all proceedings which directly affect civil rights.
A proceeding under Art. 226 of the Constitution for a writ to bring
up a proceeding for consideration concerning civil rights is there·
fore a civil proceeding. This Court has further held in Ramesh
and Anr. v. Seth Genda/al Moll1al Patni and Ors.(') that the High
Court is competent to certify on appeal against an order passed by
a Division Bench of a High Court in exercise of extraordinacy
original jurisdiction under Art. 226 of the Constitution if the dis.
pute decided thereby concerns civil rights of the parties. Hidaya-
·tullah, J., speaking for the Court observed at p. 203 :
"Mr. Gupta's contention that under that article
(Art. 133) an appeal can on1y lie in respect of a judg-
·ment or decree or final order passed in the exercise of
appellate or ordinary original civil jurisdiction but not
of extraordinacy original civil jurisdiction, is. not right.
.
.
. Article 133 not only discards the distinction
between appellate and original jurisdiction but deliberately used words which are as wide as language can
{I) (1966) l S.C.R. 19J.
(2) [1966) 3 S.C.R. 198
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ARB!ND KUMAR V. NANO KISHORE (Shah, /.)
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make them.
The intention is not only to include all
judgments, decrees. and\ orders passed in the exercise of
appellate and ordinary original civil jurisdiction but also
to make the language wide enough to cover other jurisdictions under which civil rights would come before the
High Court for decision."
The plea raised by counsel for the respondent that the High Court
was not competent to grant the certificate must therefore be
rejected.
The Bihar Legislature enacted Bihar Act 17 of 1950, imposing·
tax on passengers and goods carried by public service motor vehicles in Bihar. Validity of this levy was upheld by the High Court
of Patna. But after the decision of this Court in Atiabari Tea Co.
Ltd. v. State of Assam('), the appeals filed by the operators who
challenged the levy were allowed by this Court.
The State of
Bihar thereafter issued Bihar Ordinance II of 1961 which was
replaced by Bihar Act 17 of 1961. By that Act the tax was reimposed with effect from the 1st day of April, 1950. That imposition of tax was again challenged in writ petitions filed before
the High Court of Patna, but without success, and the order of the
High Court was confirmed by this Court in Rai Ramkrishna and
Ors. v. State of Bihar('). Section 1(3) of Act 17of1961 declares that the Act shall be deemed to have come into force on
the first day of April, 1950. By s. 2(i) 'tax' means tax payable
under the Act and includes the fixed amount determined under
s. 8.
By s. 3 charge of tax is imposed. It provides by sub-s.
(1) :
"On and from the date on which this Act is deemed
to have come into force under sub-section ( 3) of section
1, there shall be levied and paid to the State Government a tax on all passengers and goods carried by a
public service motor vehicle; such tax shall be levied and
paid at the rate of twelve and a half per cenrum of the
fares and freights payable to the owner of such vehicles :
Provided • .
"
Section 6 requires the owner of the vehicle to make prescribed
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return to the prescribed authority within such period as may be
prescribed. Section 7 prescribes the machinery for assessment of
tax. . Section 9 (1) provides that the amount of tax or penalty.
if any, payable by an owner under the Act shall be paid in the
manner hereinafter provided.
Sub-section (2) of s. 9 provides"
that before any owner furnishes any return under the Act he shall,
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in the prescribed manner pay into the Government Treasury the
full amount of tax due ftom him under the Act according to such
return and shall furnish along with the return a receipt from the
(t) (1961] l S.C.R. 809.
(2) A.I.R. 1963 S.C. 1667.
326
SUPllEMl! COtJiT l.BPOll.TS
[1968) 3 S.C.R.
treasury showing payment of the said amount By s. 22 power is
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conferred upon the State Government to make rules not inconsistent with the Act for all matters expressly required or allowed
by the Act to be prescribed and generally for c;arrying out the
purposes of the Act and regulating the procedure· to be followed,
forms to be adopted and fees to be paid in connection with proceedings under the Act and all other matters ancillary or inclB
dental thereto. In exercise .of the power conferred by s. 22, the
State of Bihar has framed the Bihar Taxation on Passengers and
Goods (Carried by Public Service Motor Vehicles) Rules, 1966.
Rule 11 provided that every owner shall furnish to. the authority
presc1ibed in r. 16, a monthly return, in Form V within a period
of fifteen days of the close of the month to which such return
relates. Rule 18 provides that where any sum is payable by an
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owner under the Act or the rules or any amount due. for which
a notice is to.be given under sub-section (4) of s. 9, the authority
prescribed in r. 16 shall serve notice in Form XI, and shall also
fix a date by which the owner shall produce a receipted challan
in proof of such payment. It is clear from the scheme of the Act
and the rules that by s. 3 a charge is imposed upon an owner of
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the vehicle to pay tax to the State 'Government on all passengers
and goods carried by a public service motor vehicle at the rates
fixed by the statute and the owner must make monthly returns
within fifteen days from the expiry of the month to which the
return relates.
The decision of the Maclhya Pradesh High Court in Raipur
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Transport Co., Private Ltd., Raipur v. M. P. Singh and Ors.(') on
which reliance was placed by counsel for the appellant has, in
our judgment, no bearing on the question which falls to be determined in this appeal.
Section 10 of the Mo!-0r V chicles (Taxation of Passengers) Act, 1959, passed by the State of Madhya
Pradesh provided ·that in cases referred to in ss. 7, 8 and 9, the
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Tax Officer shall serve on the operator a notiee of demand for
the sums payable to the State Government. ·That in the view of
the High Court pre-supposes that an order of assessment has been
made under the earlier provisions of the Ac{, and therefore an
order of assessment was necessary not only for the validity of the
notice of demand, but also for enabling the appellate authority
to see whether the tax had been correctly assessed or not and the
demand made against the operator was or was not justified. We
are in the present case not concerned to determine the validity
of a notice of demand. The liability to pay tax under Bihar Act
17 of 1961 clearly arises by statutory injunction and not from
the order of assessment.
In terms s. 3 says that there shall be
levied and paid to the State Government a tax on all passengers
and goods carried by a public service motor vehicle. ·
(I) A.l.R. 1968 M.P. 36.
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The appellant plied his motor buses in 1950-51 and on the
plea that the tax was invalid did not pay the tax levied under
Act 17 of 1950. After the reimposition of the tax by Act 17 of
J 961, there survived no ground on which the liability to pay tax
could be resisted.
On January 15, 1965, a condition had been
imposed upon the appellant that a permit would be granted to him
8
provided he produced a clearance certificate.
Liability to pay
transport (ax amounting to Rs. 1,675/- was outstanding against
the appellant for nearly fifteen years and that liability was discharged by payment on March 5, 1965. It cannot, in the circumstances, be contended that there was no liability to pay transport
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tax outstanding against the appellant on the date of the order
granting him the permit. Failure ro produce the clearance certi5cate in respect of the transport tax clearly disentitled the appellant to the grant of a permit.
Counsel for the appellant, however, contended that the imposition of a condition that the appellant shall produce a ,clearance
certificate in respect of the transport tax was invalid 'and the
condition was liable to be ignored py the appellant. Section 4 7 (1 )
of the Motor Vehicles Act, 1939, insofar as
it is material
provides:
"A Regional Transport Authority shall, in consider·
ing an application for a stage carriage permit, have
regard to the following matters, namely :-
(a) the interests of the public generally;
(b 1 the advantages to the public of the service to be
provided, including the saving of time likely to
be effected thereby and any convenience arising
from journeys not being broken;
( c) the adequacy of other passenger transport services
operating or likely to operate in the near future,
whether by road or other m~ans, between the
places to be served;
( d) the benefit to any particular locality or localities
likely to be afforded by the serviee;
( e) the operation by the applicant of other transport
se:Vi!:7s, includin~ those in r~spect of which appllcatmns from him for permits are pending;
(f) the condition of the roads included in the proposed route or area;
and shall also talce into consideration any representation
ma~~ . by persons already providing passenger transport
facilities by any means along or near the proposed route
L6Sup. Cl/68-8
328
SUPREME COURT REPORTS
[1968] 3 S.C.R.
or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any
local authority or police authority within whose jurisdiction any part of the proposed route or area lies :
Provided
"
Sub-section (2) of s. 47 sets out the conditions under which the
Regional Transport Authority may refuse to grant a stage carriage
permit; and sub-s. (3) provides for the conditions in which, having
regard to the matters specified in sub-s. ( 1), the Regional Transport Authority may limit the number of stage carriages generally
or of any specified type for which stage carriage permit may be
granted in the region or in any specified area or on any specified
route within the region.
It was urged that under s. 47 the Regional Transport Authority is bound to consider only the matters
which are specified in els. (a) to (f) of sub-s. (1) of s. 47, and
if the applicant is found qualified for a permit no conditions may
be imposed by the Regional Transport Authority. We need express no opinion on that argument. If the argument raised by
counsel for the appellant has any substance, and if it be held that
the grant of a permit is to be subject only to such of the conditions
as may be prescribed under s. 48, the order made by the Regional
Transport Authority must be deemed to be an order refusing the
permit.
The appellant could, if so advised, hav~ challenged the
validity of the imposition of the condition relating to the payment
of tax, but he could not ignore the conditions subject to which
the permit was granted.
Finally, it was urged that the Minister of Transport acted illegally in taking into account evidence which was not on the record
of the Regional Transport Authority, and alternatively, that the
Minister violated the fundamental rules of natural justice in basing
his judgment upon a document received from the Deputy Commissioner of Commercial Taxes, intimating that the transport tax
was due by the appellant without. bringing it to the notice of the
appellant and calling for an explanation.
Section 64-A of the
Motor Vehicles Act, 1939, as amended .by Bihar Act 17 of 1950
authorises the State Government to call for, in the course of any
proceedings taken under the Chapter, from any authority or officer
subordinate to it, the records of such proceedings, and after examining such records pass such order as it thinks fit. The expression
"pass such order as it thinks fit" is not restricted to the passing
of orders which are final in character. If for the purposes of
doing complete justice between the parties, the authority who hears
the reviSion petition is satisfied that it is necessary to call for additional evidence, he may call for such evidence. There is no bar
in the Act or the rules against an appellate or the revising authority
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ARBIND KUMAR V. NAND KISHORE (Shah, J.)
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taking into consideration additional evidence brought
on the
record, if the authority requires additional evidence to be brought
on the record or allows it to be brough1: on the record to do complete justice between the parties. The evidence must undoubtedly
be disclosed to the parties and they must be given an opportunity
to meet an inference that may arise from such additional evidence.
We are unable to hold that the Minister of Transport in taking
into consideration the report received from the Deputy Commissioner of Commercial Taxes, Intelligence Branch, that an amount
of Rs.1,675/- was outstanding on February 16, 1965, against the
appellant in respect of the two buses plied in th,e year 1950..51
acted in violation of the rules of natural justice. The circumstances
in which this document was brought on the file of the Minister are
not clear on the record.
But, as stated by the Minister, the document was disclosed to counsel for the appellant and counsel was
asked to give a reply thereto. The Minister also recorded in his
judgment that counsel for the appellant explained that since there
was no demand for payment of the dues, it was not correct to
say that the amount of Rs. 1,675/- was due against the appellant
on February 16, 1965. The Minister of Transport rejected that
argument. Before us it was contended that the document was
never shown to the appellant's counsel and he was never asked
.to render his explanation in that behalf. If this were true, the
appellant would, we have no doubt, have approached the Minister
who was exercising quasi-judicial functions, and would have asked
him to review his order. This admittedly has not been done.
Again, if the grievance now raised were true, the averments made
in ·paragraph-19 of the petition before the Higli Court would not
have taken the form which they have taken. In paragraph-19 it
.is stated that "the so-called report of the Deputy Commissioner,
Commercial Taxes, Intelligence Branch, Patna, under Memo No.
8527 dated 24-7-1965 was never shown to the petitioner and the
petitioner had no opportunity to meet the said report." Whereas
the Minister of Transport had recorded that the report of the
Deputy Commissioner, Commercial Taxes, was shown to counsel
for the appellant and the counsel had given certain information
the petition before the High Court merely stated that the appellant
was not shown the report of the Deputy Commissioner.
The High Court on a consideration of the evidence has come
to the conclusion that the claim made by the appellant that the
document was not disclosed at the hearing before the Minister of
Transport, and the Minister acted upon that document withoi•t
infonning the appellant, cannot be accepted, and we do not see any
reason to disagree with the view expressed by the High Court.
The appeal fails and is dismissed with costs.
V.P.S.
Appeal dismissed.