MAJMUDAR - (1.)In this group petitions, common questions are involved and hence they were heard together and they are being disposed of by this common judgment. The petitioners in these petitions are carrying on passenger transport business. For that purpose, they run tourist vehicles. These tourist vehicles are registered with the transport authorities of outside State like Union Territory of Dadra and Nagar Hiveli and others. According to the petitioners, they have paid tax to these States and territories where their vehicles are registered. All these vehicles are covered by permits granted under Sec. 63(7) of the Motor Vehicles Act, 1939. Under that provision, the State Transport Authority may, for the purpose of promoting tourism, grant permits valid for the whole for any part of India, in respect of such number of tourist vehicles as the Central Government may, in respect of that State, specify in this behalf. Armed with these permits, the petitioners bring their tourist vehicles in the territories of Gujarat State and ply them as contract carriages. The petitioners' case is that because they have paid taxes to the outside Authorities operating in areas where their vehicles are registered they are not liable to for tax under the Bombay Motor Vehicles Tax Act, 1958 ('the Tax Act' for short) as applicable to this State. In order to support this case, three-fold contentions are canvassed for our consideration : (1) The petitioners' tourist vehicles are not liable to any tax as per Sec. 3(1) read with Sec. 3A of the Tax Act as the said provisions themselves are violative of Art. 14 of the Constitution of India. (2) Ira the alternative, it is contended that in any case, Sec. 3A of the Tax Act as substituted by Gujarat Act 20 of 1982 did not cover the petitioners' vehicles and subsequent retrospective amendment to Sec. 3A by Gujarat Act 2 of 1984 cannot be resorted to by the respondent authorities as such retrospective amendment adversely affects the petitioners who had managed their affairs in the light of unamended Sec. 3A as brought into force by earlier Amendment Act 20 of 1982. (3) ln any case, the exemption notification issued by the State of Gujarat in exercise of its powers under Sec. 13(0) on 4-1-1973 as later amended by amending notification of October 1974 should be made applicable to the vehicles owned by the petitioners ignoring the conditions embodied in the exemption notification on 4-1-1973 restricting the scope of exemption made available to various vehicles registered in any other State by subjecting it to the restrictive condition imposed therein which condition, according to the petitioners, is ultra vires Sec. 13(2) of the Tax Act and if this condition which is severable, according to the petitioners, is ignored, the exemption notification would cover the petitioners' vehicles at least for the period during which the said notification operated, that is, from 1-1-1973 till its rescission on 31-12-1983.
(2.)Having considered the rival contentions canvassed on these points by the learned Advocates of the petitioners we have reached the conclusion that there is no substance in any of these contentions. Our answers to these contentions are as under :- Contention No. 1 : Provisions of Sec. 3A read with Sec. 3(1) of the Tax Act are not violative of Art. 14 of the Constitution of India and are valid. Contention No. 2: Retrospective amendment of Sec. 3A by Gujarat Act 2 of 1984 is valid and operative in law and therefore covers the tourist vehicles belonging to the petitioners. Contention No. 3 : Notification dated 4-1-1973 at Annexure 'E' to Spl. C. A. 1513 of 1983 is valid and operative and does not contain any provision which is ultra vires Sec. 13(2) of the Tax Act and even otherwise, in the alternative, if such condition is held to be beyond scope of Sec. 13(2), as that condition is the essence of the exemption notification, the whole exemption notification would fail, with the result that the petitioners in any case get benefit of the said exemption notification for the relevant period for which the said benefit is claimed by them.
(3.)Before dealing with these contentions, we may mention that in the prayer clause in the petitions, we do not find any prayer for declaring these provisions as ultra vires nor has notice gone to the learned Advocate General when such vires question is involved. However, when we were prima facie of the view that there is no substance in these petitions, we have permitted Mr. Patel to urge these contentions in the absence of such prayer by taking it to be merely a technical default. We would have permitted Mr. Patel to amend the petition and issued notice to the learned Advocate General if we were convinced that there was substance in the petitions. We, therefore, proceed to decide the aforesaid contentions on merits. Contention No. 1 : Section 3 of the Tax Act lays down that subject to the other provisions of this Act, on and from the 1st day of April 1958, there shall be levied and collected on all motor vehicles used or kept for use in the State, as tax at the rates fixed by the State Government by notification in the official gazette but not exceeding the maximum rates specified in the first schedule. This section existed in that form prior to its substitution by Gujarat Act 17 of 1987 by which two more schedules were annexed to the Act. In the first schedule in Part IV, is found provision regarding motor vehicles (including tricycles) plying for hire and used for the carriage of passengers and different amounts of maximum annual rate of tax for different type of vehicles mentioned therein have been provided on a slab system. We fail to appreciate how the said provision can be said to be in any way arbitrary and violative of Art. 14 of the Constitution. When the said taxing provision is made, it is always open to the legislature to lay down the scheme of taxing and to classify different categories of vehicles for which different amounts of tax can be fixed. The submission of Mr. Patel for the petitioners was that motor vehicles like the contract carriages run by the petitioners even though plying for hire or used for hire and even though carrying passengers may not be frequently using Gujarat roads as motor vehicles plying for hire used for carriage of passengers by operators who are running them as stage carriages and, therefore, if for both these types of vehicles licensed to carry more than four passengers, uniform annual rate of tax is imposed, it would become discriminatory as unequals will be treated as equals. The said argument cannot be sustained for the simple reason that legislature is taxin he motor vehicles for the purpose of tax from the point of view of their capacity to carry passengers. All vehicles licensed to carry more than four passengers even though plying for hire have to pay the same amount of tax. It is by sheer coincidence that some vehicles may be using roads more frequently as compared toothers. It is not as if that in all cases, such stage carriages will use the roads more frequently as compared to contract carriages. On such a nabulous possibility, slab system of taxation uniformly laid down by the provision for vehicles fitted to carry different number of passengers cannot be faulted. Now remains the challenge to vires of Sec. 3A as brought on the statute book by Gujarat Act 20 of 1982 as further amended by Gujarat Act 2 of 1984. The said provision in its amended form reads as under :
"3A. (1) On and from the first day of April 1978, there shall be levied and collected, on all omnibuses which are used or kept for use in the State exclusively as contract carriages (hereinafter referred to as "the additional tax") in addition to the tax levied under Sec. 3, at the rates fixed by the State Government, by notification in the Official Gazette, but not exceeding the maximum rates specified in the table below: TABLE Description of an omnibus Maximum rate of additional tax. A. Ordinary omnibuses (i) Monthly rate of Rs. 240.00 per passenger to be carried. (ii) Weekly rate of Rs. 80.00 per passenger permitted to be carried. (iii) Daily rate of Rs. 16.00 per passenger permitted to be carried. B. Luxury or tourist omnibuses (i) Monthly rate of Rs. 360 per passenger permitted to be carried. (ii) Weekly rate of Rs. 120 per passenger permitted to be carried. (iii) Daily rate of Rs. 24 per passenger permitted to be carried. (2) The additional tax levied under sub-sec. (1) shall be paid in advance by every registered owner or any person having possession or control of the omnibus - (i) monthly at the rates specified in the table in sub-sec. (1), or (ii) for any period less than a month, weekly or daily at the rates specified in the table in sub-sec. (1). (3) Except as otherwise provided in sub-sees. (1) and (2), the provisions of this Act and the Rules made thereunder shall, so far as may be, apply in relation to the additional tax leviable under sub-sec. (1) as they apply in relation to the tax leviable under Sec. 3."
So far as this challenge is concerned argument of Mr. Patel was that it is violative of Art. 14 of the Constitution as it sought to impose maximum rate of additional tax by adopting different rates of daily rate, weekly rate and monthly rate per passenger permitted to be carried. It is difficult to appreciate how this type of provision in a taxing statute can be said to be arbitrary from any angle. Different yardsticks may by provided by the legislature for taxing different types of situations in which the petitioner's omnibuses are found to have operated. But even that apart, this contention is squarely covered by a decision of the Supreme Court in the case of Maharaja Tourists Service v. State of Gujarat, (reported in AIR 1991 SC 1650) in Writ Petition (Civil) No. 505 of 1990 with group of petitions decided by Ranganath Misra, C.J. sitting with Kuldip Singh, J. A copy of the said judgment is at Annexure 'D' to the affidavit in reply filed in Spl. C. A. No. 1511 of 1983. In terms, the Supreme Court held, considering the cases of owners of omnibuses plying under the tourist permits under Sec. 63(7) of the Motor Vehicles Act, 1939 that their challenge to vires of Sec. 3A was not justified. The Supreme Court has in terms referred to Sec. 3A in the said judgment and has upheld the vires thereof. It is true that the challenge before the Supreme Court against the said section was mounted on the question of alleged infraction of Ait. 301 read with 19(l)(g) of the Constitution and the challenge was not levelled in the light of Art.