- (1.) Civil Appeal Nos. 6462-64 of 2001 have been preferred by the State of Gujarat against the judgment and order dated 17-8-2001 of a Division Bench of the High Court, whereby Sec. 3A(1) and (2) of the Bombay Motor Vehicles Tax Act, 1958 and also Rule 5 of the Bombay Motor Vehicles Tax Rules, 1959 made vide notification dated 6-2-2001 were struck down and a writ of mandamus was issued to the State authorities not to recover any tax in pursuance thereto from the vehicles of the respondents herein (writ petitioners in the High Court) which were kept but were not being used. A further direction was issued to the respondent-State to grant refund of the tax already recovered from the respondents within three months from the date of receipt of copy of the judgment after examining their case regarding non-use of the vehicles. After the decision of the High Court, the Bombay Motor Vehicles Tax Act was amended by Gujarat Act 9 of 2002 in order to validate the imposition and collection of tax on designated omnibuses, which was published in the Gazette on 31-3-2002. Writ Petition Nos. 249 and 252 of 2002 have been filed in this Court challenging the amendments made by the aforesaid amending Act.
(2.) It will be convenient to reproduce relevant provisions of the statute which were subject-matter of challenge before the Gujarat High Court. The Bombay Motor Vehicles Tax Act, 1958 (hereinafter referred to as "the Act") was made applicable to the State of Gujarat by the Gujarat Adoption of Laws (State and Concurrent Subjects) Order, 1960. The Act was amended several times and lastly on 6-2-2001 by Gujarat Act 2 of 2001. Section 2 of this Act gives the definitions and sub-sec. (1) defines "certificate of taxation" and it means a certificate, issued under Sec. 5, indicating therein the rate at which the tax is leviable, and the periods for which the tax has been paid, sub-sec. (5) defines "registered owner" and it means the person in whose name a motor vehicle is registered under the Motor Vehicles Act, 1939 (or, as the case may be the Motor Vehicles Act, 1988) and sub-sec. (7) defines "taxation authority" or "authority" and it means such officer or authority as the State Government may by notification in the Official Gazette, appoint to be the taxation authority for the whole State or for any area or areas for the purposes of the Act, and the State Government may appoint more than one officer or authority as taxation authority for the whole State or for any area. The controversy here relates to Secs. 3 and 3A of the Act and the relevant parts thereof are being reproduced below : "3. (1) 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, a 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, Second, Third, Fourth, Fifth, Sixth and Seventh Schedules : Provided................ (Omitted as not relevant) Provided further..... (Omitted as not relevant) (2) Except, during any period for which the taxation authority has, in the prescribed manner, certified that a motor vehicle was not used or kept for use in the State, the registered owner, or any person having possession or control, of a motor vehicle of which the certificate of registration is current, shall, for the purposes of this Act, be deemed to use or keep such vehicle for use in the State. (3) No tax shall be leviable under sub-sec. (1) on motor vehicles on which tax is leviable under sub-sec. (1) of Sec. 3A. 3A. (1) On and from the 1st day of April, 1991, there shall be levied and collected on all omnibuses which are used or kept for use in the State exclusively as contract carriages (hereinafter in this Section and sub-sec. (1A) of Sec. 4 referred to as 'the designated omnibuses') a tax at the rates specified in the Table below : Description of designated omnibuses Annual rate of tax l.(a) Ordinary designated omnibuses permitted to be carried not more than twenty passengers. Rs. 2700 per passenger permitted to be carried. (b) Ordinary designated omnibuses permitted to be carried more than twenty passengers. Rs. 4050 per to be carried. passenger permitted 2.(a) Luxury or tourist designated omnibuses permitted to be carried not more than twenty passengers. Rs. 4050 per to be carried. passenger permitted (b) Luxury or tourist designated omnibuses permitted to be carried more than twenty passengers. Rs. 6000 per to be carried. passenger permitted Provided that in the case of the designated omnibuses used solely for the purpose of transporting students of educational institutions in the State in connection with any of the activities of such educational institutions a tax shall be levied and collected under sub-sec. (1) of Sec. 3, and not under this sub-section. (2) (a) The tax leviable under sub-sec. (1) shall be paid in advance by every registered owner or any person having possession or control of the designated omnibuses either annually at the annual rate specified in the Table appearing in sub-sec. (1) or in monthly instalments of one-twelfth of the annual rate. (b) The annual payment of tax or the payment of monthly instalment of tax shall be made within such period and in such manner as may be prescribed. (3)-(4) * * * * (Omitted as not relevant) (5)(a) Where the registered owner or any person having possession or control of a designated omnibus has paid tax under this Section proves to the satisfaction of the taxation authority that the designated omnibus in respect of which the tax has been paid, has not been used or kept for use for a continuous period of not less than one month, he shall be entitled to the refund of an amount equal to one-twelfth of the annual rate of tax paid in respect of such omnibus for each complete month of the period for which the tax has been paid so however that except as otherwise provided in clause (b) the total amount of a refund in a year shall not exceed - (i) six hundred seventy-five rupees per passenger permitted to be carried, in the case of an ordinary designated omnibus permitted to be carried not more than twenty passengers. (ii) one thousand twelve rupees per passenger permitted to be carried, in the case of an ordinary designated omnibus permitted to be carried more than twenty passengers. (iii) one thousand one handred twenty-five rupees per passenger permitted to be carried, in the case of a luxury or tourist designated omnibus permitted to be carried not more than twenty passengers. (iv) one thousand five hundred rupees per passenger permitted to be carried, in the case of a luxury or tourist designated omnibus permitted to be carried more than twenty passengers : Provided that for the purpose of determining the amount of refund under this clause, only such of the period in which a designated omnibus has not been used or kept for use shall be taken into account as comprises of complete months. (b) Where a registered owner or a person having possession or control of a designated omnibus, who has paid tax under this Section proves to the satisfaction of the State Government or such officer not below the rank of the Director of Transport, Gujarat State, as may, by notification in the Official Gazette, be authorised in this behalf by the State Government that the designated omnibus in respect of which tax has been paid, has not been used or kept for use for a continuous period of not less than one month but exceeding three months in a year, he shall be entitled to the refund of an amount equal to one-twelfth of the annual rate of the tax paid in respect of such month of the period of which the tax has been paid : Provided that for the purpose of determining the amount of refund under this clause only such of the period in which a designated omnibus has not been used or kept for use shall be taken into account as comprises of complete months. (6) * * * (Omitted as not relevant)" 2.1 Section 4(1) provides that the tax leviable under Sec. 3 in respect of a motor vehicle specified in the First Schedule shall be paid in advance by every registered owner, or any person having possession or control, of such motor vehicles to which sub-sec. (1A) does not apply.
(3.) The Bombay Motor Vehicles Tax Rules, 1959 (hereinafter referred to as "the Rules") were amended by the Bombay Motor Vehicles Tax (Gujarat Amendment) Rules, 2001 vide notification dated 6-2-2001 and after amendment Rule 5 reads as under : "5. (1) A registered owner or any person who has possession or control of a motor vehicle in respect of which tax is paid in advance, not intending to use or keep for use such vehicle in the State and desiring to claim refund of tax on that account shall before the commencement of the period for which the refund of tax is to be claimed, make a declaration in Form 'N.T.' for any specified period not exceeding beyond the period for which the tax is paid in advance to the taxation authority in whose jurisdiction such vehicle is to be kept under non-use along with the certificate of taxation as well as certificate of fitness in case of transport vehicles and a fee of rupees ten : Provided that where a vehicle is rendered incapable of being used or kept for use on account of an accident, mechanical defect or any other sufficient cause, which makes it impossible to give an advance declaration as aforesaid then such declaration shall be given within a period of seven days from the date of occurrence of such accident, mechanical defect or such other cause, either in person or by registered post acknowledgement due. (2) If the taxation authority is satisfied that the motor vehicle, in respect of which a declaration in Form 'N.T.' has been made, has not been used, or kept for use for the whole or part of the period mentioned in the declaration, it shall certify that the motor vehicle has not been used or kept for use for the whole or part of such period as the case may be by making an endorsement in the certificate of taxation to that effect : Provided that nothing contained in this sub-rule shall affect the right of the taxation authority to recover the tax and penalty due for the period of non-use so certified if, at any time, it is found that the vehicle was actually used or kept for use in the State during such period. * * * (3) The declaration in Form 'N.T.' given under the proviso to sub-rule (1) shall be accompanied by the certificate of taxation and documentary evidence, if any, or any other proof evidencing such non-use of the vehicle and the period thereof. Where the appropriate taxation authority, on considering the evidence adduced, if any, and on making such inquiries as it deems fit, refuses to admit the declaration of non-use or to certify the period of non-use, it shall record in writing its reasons therefor and communicate to the applicant.";