- (1.) ARUN Tandon, J. This writ petition has been filed challenging the vires of the amendment made to the U. P. Motor Vehicles Taxation Act, 1997 by the U. P. Motor Vehicles Taxation (Amendment) Act, 2007 (U. P Act No. 24 of 2007) to the extent to which the said amendment imposes additional tax liability for a minimum of 10 days per month in addition to the already existing monthly tax liability where a vehicle adopted to carry more than nine persons, excluding the driver, is kept for use without a permit under Section 66 of the Motor Vehicles and Act, 1988 (called the Central Act hereafter), whether it is actually used or not. It also challenges the imposition of further additional tax of Rs. 1, 000/- per seat, if such vehicle is found plying without permit. This additional tax of Rs. 1, 000/- per seat apparently appears to be chargeable each time the vehicle is detected ply ing and it is imposable per seat in the vehicle whether that seat at that relevant point of time, is found occupied or unoccupied.
(2.) SRI G. K, Malviya, learned Counsel for the petitioners has submitted that whereas the Central Act has been enacted by the Parliament under Entry'35 of the List III (concurrent list) of the VIIth Schedule", the U. P. Motor Vehicles Taxation Act, 1997 has been enacted under Entry 57 of the List II (State List) of the VIIth Schedule of the Constitution of India and the said entry 57 entitles a State Legis lature to impose a compensatory tax only as held in Bo/am Ores Ltd. v. State of Orissa, (1974) 2 SCC 777. It has been submitted that a compensatory tax means a tax whereby the State if entitled to reimburse itself for the services rendered. It has been argued that the vehicle plying without permit under Section 66 of the Central Act does not consume any additional resources of the State as compared to a similar vehicle plying with permit and in any case it does not consume additional resources of the State to the extent to which additional tax liability has been imposed by the said amending Act. Reliance has been placed by the petitioner's side on Hardev Motor Transports. State of M. P, (2006) 8 SCC 613. It has further been submitted by Sri Malviya that penalty for violating Sec tion 66 of the Central Act is provided in Section 192-A of the Central Act. The additional tax liability imposed under the U. P. Act transgresses the compensa tory nature and assumes the character of a penalty and in that view of the matter it transgress into a field occupied by Section 192-A of the Central Act under the Concurrent List, which cannot be done without the Presidential assent being given to the State Act. Reliance has been placed by the petitioner's side on M. P. AIT Permit Owners Assn. v. State of M. P, (2004) 1 SCC 320. Sri S. P. Kesarwani, learned Standing Counsel has raised the preliminary objection regarding maintainability of the writ petition contending that there are five petitioners having different vehicles. No factual foundation has been laid any where in the entire petition to show that any cause of action has arisen to any of the petitioners to approach this Court. It is nobody's case that the vehicle belong ing to any of the petitioners had ever been intercepted or seized in exercise of power under Section 207 of U. P. Motor Vehicles Act, 1988 or any penalty has been imposed. Thus unless the petitioners suffer adversely from the alleged law, the question of entertaining the writ petition does not arise. The petition being pre emptive is liable to be dismissed.
(3.) IN reply, Sri D. K. Malviya, learned Counsel for the petitioners has submit ted that large number of identical petitions are pending and almost in all of them interim orders had been passed. Therefore, this Court is bound to maintain the parity and entertain the petition and grant interim relief. We have considered the rival submissions made by learned Counsel for the parties and perused the record.;