- (1.) THIS batch of 124 writ petitions raise common questions and, therefore, are disposed of by this common order.
(2.) THE petitioners who provide transport facilities by running stage carriages, challenged the constitutional validity of the third proviso to sub rule (1) of rule 8 of the Rajasthan Passengers and Goods Taxation Rules, 1959 (herein after referred to as 'the Rules'), and Notification No. S. O. 21 dated 2-9-71, issued by the State Government thereunder, which provides for the manner in which the sax chargeable under sec. 3 of the Rajasthan Passengers and Goods Taxation Act, 1959 (hereinafter referred to as 'the Act'), shall be paid, by affixing stamps on the tickets for fare to be issued to the passengers, as violative of their fundamental rights guaranteed under Articles 14 and 19 (1) (g) and as infringing Articles 301 and 304 of the Constitution. THE matters were accordingly placed before a Full Bench of 5 Judges as required by Article 228a of of the Constitution on 10-8-77. At the hearing before the Full Bench, learned counsel appearing for the petitioners conceded that there was no question of vires involved and, therefore, the petitions have now been placed for hearing on merits before the Division Bench. The petitions give rise to two important questions, namely; (i) Whether the third proviso to sub rule (1) of rule 8 of the Rules is ultra vires the State Government as it is contrary to the charging provisions contained in sec. 3 and the scheme of the Act ? (ii) Whether, on a proper construction of rule 8d (3) of the Rules, the letter 't' in the formula Fxtxr=ml means the number of one way trips allowed or expected to be made by the stage carriage on the route during the period for which a lump-sum is calculated or means both way trips from one termini of the route to the other i. e. both coming and going for the purposes of determination of a lump sum payable in lieu of the tax chargeable on fare in case of stage carriages ? At the very outset, we must reject all the writ petitions mentioned above except D B. Civil Writ Petitions No 31 to 33, 63 to 6?, 75 to 91, 101, 102. 142. 157. 159, 173, 196. 199, of 1972 and 2034/71, 200/72, 219/72, 321/72, 387 to 389 of 1972, 456/72 and 1637 of 1971, on the ground that the petitioners have not availed of the alternative remedy of an appeal provided by sec 28 of the Act. These petitions have directly been filed against the orders of assessment passed by the assessing authority. Article 226 (3), as substituted by sec. 38 of the Constitution (Forty Second Amendment) Act, 1976, interdicts the Court from entertaining any petition under Article 226 of the Consitution if the petitioner has an alternative remedy provided by law for the redress of any injury referred to in sub-clause (b) and sub-clause (c) of clause (1) of Article 226, Even on general principles, we decline to entertain these writ petitions as the petitioners have an alternative remedy by way of an appeal. These writ petitions must accordingly fail on that ground alone That apart, even on merits, these petitions must also fail for reasons we shall presently state. Section 3 of the Act provides that there shall be levied, charged and paid to the State Government a tax on all passengers and goods carried by Motor Vehicles, at such rate not exceeding 30% of the value of the fare or freight etc. Section 4 of the Act, which provides for the method of collection of tax reads, - "4. Method of collection of taxt: - The tax shall be collected by the owner of the motor vehicle and paid to the State Government in the prescribed manner; Provided that in case of public goods vehicles the State Govenment may accept a lumpsum in lieu of the tax chargeable in on freight in the manner prescribed; Provided further that in case of Stage carriages or contract carriages the State Government may accept a lump-sum in lieu of the tax chargeable on fare in the manner prescribed. "
(3.) RULE 8 of the RULEs, so far as material, reads as follows: - "8. Method of payment of tax - (1) The tax chargeable under the Act shall be paid in the manner provided for in sub-rules (2) and (3) of rule of 10. Provided xxx xxx xxx Provided xxx xxx xxx Provided further that the State Govenment may by nmotification direct that such class of owners as may be specified in the notification, shall pay tax by affixing to the ticket or goods receipts in the manner provided in these RULEs or notified by the State Government a stamp or stamps of the appropriate value issued by the State Government for the purposes of the Act; Provided also that the owner of stage carriage may at his option pay tax in lump-sum in accordance with the provisions of rule 8-D. xxxx xxxx xxxx xxxx xxxx. The relevant provisions of rule 8d which lay down the method for prymentofa lump-sum in lieu of the tax chargeable on fare in case of stage carriages lead as follows: - "8 D. Lump-Sum in lieu of tax on stage carriages - A lump-sum in lieu of the tax chargeable on fare in case of stage carriages may be accepted by the State Government in the following manner:- (1) An application for acceptance of lump-sum in lieu of the amount of tax shall be made to the Assessing Authority concerned in Form RPGT 19, duly supported by an affidavit twenty days in advance of the period for which agreement is to be made. (2) Subject to the provisions of clause (II) and agreement to accept a lump-sum in respect of any future period shall be for a period of one year or for the unexpired period of the currency of the permit, whichever is less. (3) The maximum lump-sum shall be determined according to the following formula, namely:- Fxtxr=ml Explanations - In this formula - (i) 'f' means the total fare normally payable in respect of one way trip on the entire route for the full seating capacity of passengers and fifty percent of the standing capacity thereof, if any allowed: (ii) 't' means the number of one way trips allowed or expected to be made by the stage on the route during the period for which the lump-sum is calculated; (iii) 'r' means the rate of tax levied under sec. 3 to be expressed in the form of a fraction such as when the rate of tax is 25% of the fare 'r' would mean: '25'/100; and (iv) 'ml' means maximum amount of lump-sum to be accepted shall be determined by the Assessing Authority keeping in view the estimated amount of tax to be received as determined under clause (3); Provided that sub-lump-sum shall not be more than the amount determined in accordance with clause (3) and shall not be less than 65 thereof: Provided further that the actual amount of lumpsum to be fixed shall not, notwithstanding anything in the preceding proviso, be less than the tax assessed in respect of the Vehicle in the preceding year and if no assessment has been made such tax as is shown as is shown ass payable in the returns for that year. xxxx xxxx xxxx xxxx xxxx xxxx xxxx Shri Chhangani learned counsel for the petitioners contends that the third proviso to sub-rule (l) of rule 8 of the Rules is ultra vires the State Government, as it makes it obligatory for the stage carriage operators to buy the stamps before the collection of the fare from the passengers and the impugned notification makes the requirements of the said proviso mandatory and, therefore, the stage carriage operators have no option but to purchase stamps for affixing them on the tickets to be issued to the passengers. It is urged that the method of payment of tax, as provided by section 4 of the Act, is wholly reversed by framing rule 8 (1) of the Rules read with the third proviso thereof. It is further urged that the rule-making power of the State Government under sec. 21 of the Act must be consistent with the provisions of the Act It is also urged that rule 8 (1) read with the third proviso changes the entire character of the levy of tax under the Act i. e. it shifts the incidence of the tax from passangers on to the operators of stage carriages which entails a heavy and unreasonable burden on them, as they have to invest their money which is required to be paid by them in purchase of stamps in advance and which may not be realised from the passengers who are the real tax payers under the Act and, therefore, it imposes an unreasonable restriction on the freedom of trade guaranteed under Articles 19 (1) (g) and 304 (b) of the Constitution. We are afraid, none of these contentions can be accepted. The petitioners having abandoned their contention regarding the alleged constitutional validity of the third proviso to sub-rule (J) of rule 8 before the Full Bench, cannot be permitted to raise the contention now. Besides, the contention is, in our opinion, wholly devoid of substance. ;