S. M. JAIN, J. - (1.) IN these writ petitions, filed under Article 226 of the Constitution, the petitioners have challenged the validity of the Circular dated October 5, 1987, issued by the Additional Transport Commissioner (Taxation) Rajasthan, Jaipur, directing the District Transport Officers and the Regional Transport Officer to recover tax from the owners of motor vehicles holding temporary permits according to the rate fixed under item No. II of Part II of the Schedule to the Rajasthan Motor Vehicles Taxation Act, 1951 hereinafter referred to as the Act.
(2.) THE petitioners are owners of motor vehicle and claim to hold temporary permits granted to them under the provisions of the Motor Vehicles Act 1939. their case is that they have already paid the tax on their vehicles under item I of Part II of the Schedule and the demand raised against them by the respondents now to pay the difference of the tax payable as per item II and the one already deposited under item I is wholly illegal and without jurisdiction It is allege that the vehicles plied on temporary permits which are issued under the various sections of the Motor Vehicles Act, namely. Sections 62 (1) 62 (2) 68f (1 A), 68f (1c) and proviso to Section 68 FF fall under item I, and not under item II of Part II of the Schedule. THE petitioners have prayed that the Circular issued by the Additional Transport Commissioner (Taxation), Rajasthan and the consequential notices of demand issued by the District Transport Officers be quashed and that they may further be restrained from recovering from the petitioners the tax as per item II. A declaration has further been sought that item II pertaining to the Daily Tax in part II of the Schedule is not applicable to the vehicles run on regular temporary permits granted under section 62 (1) 62 (2), 68f (1-A), 68f (1-C) and proviso to Section 68 FF of the Motor Vehicles Act. Reply to the writ petitions has been filed in Writ Petition No. 103 of 1988 Mahalaxmi Transport Co. v. The State of Rajasthan and the Additional Government Advocate Dr. S. S. Bhandawat, has submitted that this may be treated as a reply in all the writ petitions. Counsel for the petitioners have not objected to this. The Additional Government Advocate and the counsel for the petitioners are further agreed that all the writ petitions comprising this group may be heard and finally decided. , irrespective of the stage the same are pending in this Court. In all the petitions, a common question whether the tax on motor transport vehicles plied on temporary permits would fall under item I or item II of the Schedule is involved and the answer to this would depend on the true interpretation of these two items in the light of the provisions contained in this Act. All the writ petitions, irrespective of their stage, were therefore, heard together and are being decided by this judgment. In the reply filed in writ petition No. 103 of 1988 (Mahalaxmi Transport Co) the respondents have submitted that the tax was being levied under the provisions of Section 4 of the Act and rule 34 of the Rajasthan Motor Vehicles Taxation Rules, 1951 hereinafter referred to as the Rules. It is submitted that the daily tax, evisaged by Part II of item II of the Schedule was leviable on the temporary permits granted under Section 62 of the Motor Vehicles Act. It was further submitted that as per the rules, the tax was payable in advance at the time of making the applications for temporary permits but as the temporary permits were being granted by the authorities, without following the provisions of the Rules, the Additional Transport Commissioner (Taxation) had to issue the instructions to the District Transport Officer and the Regional Transport Officer to comply with the provisions of rule 34 at the time of issuing the permits. According to the respondents, the Circular dated October 5, 1987 contained guide lines to the taxing authorities to recover tax as per the provisions of the Act and Rules. It was further alleged that the owner and the person in charge of the vehicle were obliged under rule 34 to pay the tax as per item II of part II in advance at the time of making the application for the grant of temporary permit. In short, the submission of the respondents is that the holders of temporary permit were liable to pay tax as per the rate specified in item II and not item I, of part II of the Schedule. The question for consideration in this group of writ petitions, therefore, is whether the tax leviable on motor transport vehicles, plied under the authority of temporary permits issued under the provisions of the Motor Vehicles Act, will be governed by item I or item II of part II of the Schedule. Shri Vyas, counsel for the petitioners, has urged that in all the writ petitions in this group, the petitioners are paying road tax under item I and Special Road Tax under Section 4-B after filing the returns and getting the tax duly assessed. If they are now requires to pay tax as per item II, the incidence upon them would be too heavy and it could not be the intention of the Legislature. The tax liability of a vehicle with a sitting capacity of 25 seats, under item I is Rs. 1250/- for the entire financial year but if it is assessed as per item II for three consecutive periods of four months each, for which temporary permits were granted pending renewal or under section 68f (1-C) the tax liability would be as high as Rs 7,300/- for that year. In most of the cases, submit learned counsel, the duration of the temporary permits has been for more than a year, in some even upto five years. According to Mr. Vyas, if the two entries are construed hermoniously, all vehicles, which are being plied for hire or reward, would fall under item I and not item No. II, which would be attracted only in cases where the vehicles are not being plied for hire or reward. And this would be so, irrespective of the period for which the vehicle is put to use and also, the nature of the permit, on which it is plied. Inviting reference to rule 27 read with the rule 28 to 30 learned counsel have argued that item I would not cover the case of vehicles in respect of which tax has already been paid under item I, irrespective of the fact whether they are plied on temporary permits or otherwise. Learned counsel have further submitted that item II would be attracted only in those cases where the vehicles are exempted from paying the road tax under item I. They have further urged that the present petitioners are paying tax as per item I and also the Special Road Tax under Section 4-B and as such they cannot be made to pay tax under item II, which is a daily tax and in respect of such vehicles for which daily tax is being paid, the Special Road Tax is not leviable.
(3.) THE Additional Government Advocate has, on the other hand, sub-mitted that all motor transport vehicles plied under the temporary permits granted under the Motor Vehicles Act would be governed by item II of Part II of the Schedule and not under item I thereof. The Act came into force on April 3, 1951. The object of the Act is to impose tax on motor vehicles in the State of Rajasthan. Section 4, which is the charging section, is set out below: - 4 "imposition OF TAX (1) Save as otherwise provided by this Act or by the rules made thereunder or any other law for the time being in force, there shall be levied and collected on all motor vehicles used or kept for use in the State- (a) a tax, in the case of such vehicles for which nothing has been specifi-ed in column No. 5 of part I of the Schedule. (b) a onetime tax, in the case of such vehicles, not being transport vehicles, for which maximum rates have been specified in column No. 5 of part I of the Schedu!e:- as such rate not exceeding that specified in the Schedule, as may be fixed by the State Government by Notification in the Official Gazette; Provided that, in addition to one time tax, there shall be paid by the owner or person having possession or control of a motor vehicle on which one time tax is payable any tax or penalty as was payable under this Act for any period prior to the coming into force of the provisions of Chapter IV of the Rajasthan Finance Act, 1986 at such rates as were applicable to such vehicles from time to time, " and " (1-A) where the quarterly or monthly rates of tax are not fixed by the States Government by Notification in the Official Gazette, the amount of tax for a quarter or a month, if permissible to be paid quarterly or monthly, shall be the amount equivalent to the one fourth or the one twelfth respectively of the annual rate of tax. " " (2) Tax shall be payable under this section by the owner of the Motor Vehicle except for the period during which the owner surrenders the certificate of registration to the Taxation Officer in the prescribed manner or satisfies the Taxation Officer that the vehicle has remained out of use for such reasons as may be prescribed; Provided that the period of such surrenderor the period of such non use, as the case may be, shall be for a period not less than three months; " Provided further that if the vehicle is found plying after the certificate of registration has been surrendered, the owner, shall pay the tax for the entire period during which the certificate of registration remained surrendered. " Section 3 empowers the State Government to exempt wholly or partially any motor vehicle from the payment of tax. Section 4-A levies a sur-charge of 10 per cent from November 5, 1974 and Section 4-B provides for the levy of Special Road Tax. Section 5 lays down the procedure for payment of tax. It reads as under: - "section 5-payment of tax- (1) Save as otherwise provided by or under this Act and subject to the provisions of sub-section (5), the tax leviable under section 4 and section 4-B shall be paid in advance by every owner or by the person having possession or control of a motor vehicle:- (a) In the form of one time tax, or (b) annually, or (c) for one or more quarters of a financial year at the rates fixed by the State Government under section 4 and Section 4-B. The annual tax, other than that payable on a stage carriage shall be payable on or before the thirtieth day of April in each financial year and the quarterly tax shall be payable on or before the fifteenth day of April, July, October and January in each financial year and the additional tax shall be paid within the time allowed by or under this Act; Provided that the State Government may, if it is satisfied that there are sufficient reasons for doing so, by notification in the Official Gazette, extend whether prospectively or retrospectively the time-limit for payment of tax in case of a particular class or classes of vehicles or persons liable to pay tax under this Act. (3) The one time tax payable under clause (b) of sub section (i ). of Section 4 shall be payable,- (a) Where the motor vehicle is purchased or brought into the State for use or is kept for use on or after the coming into force of the provisions of Chapter IV of the Rajasthan Financial Act, 1986 within thirty days of the date of such purchase or of being as so brought or on the date of registration or assignment of such vehicle in the State, whichever is earlier, or (b) where the motor vehicle has been used or kept for use in the State before the coming into force of the provisions of Chapter IV of the Rajasthan Finance Act, 1986 within sixty days of such coming into force. (4) The tax payable under section 4-B on a stage carriage or a contract carriage- (a) plying exclusively within the municipal or city limits shall be paid in advance monthly or quarterly, as the case may be, on or before such date as may be prescribed; and (b) other than those specified in clause (a) shall be paid monthly or quarterly in advance or otherwise on or before such date as may be prescribed. (5) Where the tax on any motor vehicle becomes payable, otherwise than as one time tax, for the first time after the commencement of a financial year, the tax payable shall be onethird of the quarterly rate for each calender month or part of a calender month where quarterly rate is prescribed and in other cases one twelfth of the annual rate in respect of which tax has become payable. Provided that the State Government may prescribe annual rate of payment of tax for any class or category of motor vehicles. (6) Where a motor vehicle is found plying even after the* deposit or surrender of the certificate of Registration or the permit, the tax on such vehicle shall be payable for forthwith for the entire period for which such Certificate or permit was deposited or surrendered. " ;