ORIGINAL JURISDICTION: Writ Petition No. 505 of 1990 etc.etc.
(Under Article 32 of the Constitution of India)
R.N. Sachtey, S.K. Bhattacharya, S.C. Patel, Anip Sachthey, Mahabir Singh, R.K.. Agnihotri, R.K. Kapur, Ms. Anil Katyar, N.D, Garg, C.M. Nayar (NP), H.S. Munjral, V. B. Joshi, V.K. Verma, S.K. Agnihotri, Sakesh Kumar, N. Ganapathy, M. Veerappa, ,Mrs. Rani Chhabra, M.N. Shroff, Indra Makwana, Sushil Kumar Jain, S.N. Aggarwal, Ms. Vijay Lakshmi Menon, C.V.S Rao, Aruneshwar Gupta and Sushil Kumar for the appearing parties.
The Judgement of the Court was delivered by
RANGANATH MISHRA, CJ. These are applications under Article 32 of the Constitution on behalf of petitioners who hold All India Tourist Permits granted under section 63(7) of the Motor Vehicles Act, 1939. corresponding to section 88(9) of the Motor Vehicles Act, 1988. The respondentStates in these writ petitions are Haryana, Punjab, Gujarat, Rajasthan and Madhaya Pradesh . There is a common Act- the Punjab Motor Vehicles Taxation Act, 1924- which is applicable to the States Punjab and Haryana. In each of the other States there is a similar separate legislation. Under the taxing power in the several Act provision has been made for taxation as also for levy of additional tax. It is the contention of the petitioners that the demand of additional tax is neither compensatory nor regulatory and , therefore, the levy is violative of Article 10(1)(g) read with Article 301 of the Constitution. In regard to the State of Punjab and Haryana a special contention has been raised to effect that rule 8(v) of the Punjab Motor Vehicles Taxation Rules, 1925 provide total exemption from liability of tax if the vehicle is brought into Punjab and kept for use within the State for a period not exceeding 30 days in a year and it is the contention of the petitioners that since the vehicles registered outside the State of Punjab and Haryana are not kept within State for more than 30 days a year, the demand of tax in the face of rule 8(v) is contrary to law.
In the State of Gujarat, the Bombay Motor Vehicles Tax Act, 1958 has been amended, Section 3A of the Amending Act provides that:
"3A (1) On and from the first day of April 1982 there shall be levied and collected. on all ominibuses which are exclusively used or kept for use in the State as contract carriages (hereinafter in this section referred to as the omnibus) a tax (hereinafter referred to as " the additional tax") in addition to the tax levied under section 3, at the rates fixed by the State Government by notification in the official Gazettte but not exceeding the maximum rates specified in the table below:
Description of Maximum rate of
an omnibus additional tax.
A. ordinary (i) Monthly rate of Rs.
Omnibuses 240 per passenger
permitted to be carried.
(ii) Weekly rate of Rs. 80
per passenger permitted
(iii)Daily rate of Rs. 16 per
passenger permitteed to
be carried.
B. Luxury or tourist(i) Monthly rate of Rs. 360
Omnibuses per passenger permitted
(ii)Weekly rate of Rs. 120
per passanger permitted
(iii)Daily rate of Rs.
24 per passenger
permitted to be carried.
The validity of levy of this type came up for consideration before this Court in the case of the Automobile Transport (Rajasthan) Ltd.v. The State of Rajasthan and Ors., [1963] 1 S.C.R.491. Four learned Judges who constitued the ,majority held that the provisions of Rajasthan Motor Vehicles Taxation Act, 1951 did not violate the provisions of Article 301 of the Constitution and the taxes imposed under the Act were compensatory or regulatory in nature which did not hinder the freedom of trade, commerce and intercourse assured by that Article, At page 586 of the Report the following test was indicated:
"It seems to us that working test for
deciding whether a tax is compensatory or
not is to inquire whether the trades people
are having the use of certain facilities for
the better conduct of their business and
paying not patently much more than what is
required for providing the facilities . It
would be impossible to judge the compensatory
nature of a tax by meticulous test, and in the
nature of things that cannot be done.
The same question came up for consideration before
a Two-Judge Bench in M/s. International Tourist
Corporation and Ors. v. State of Haryana and Ors,.,
[1981] 2 SCC 318. This Court followed the decision
referred to above of the larger group and observed:
"There cannot be the slightest doubt that the
State of Haryana incurs considerable
expenditure for the maintanance of roads and
providing facilities for the transport of
goods and passengers within the State of
Haryana . The maintenance of highways other
than the National Highways is exclusively the
responsibility of the State Government. While
the maintenance of National Highwauyys is the
responsibility of the Union Government, under
section 5 of the National Highways Act, that
very provision empowers the Central Government
to direct that any function in relation to the
developement and maintenance of a National
Highway shall also be exercisable by the
concerened State Government. Section 6 further
empowers the Central Government to give
directions to the State Government as to the
carrying out of the provisions of the Act and
section 8 authorises the Central Government to
enter into an agreement with the State
Government in relation to the developement
and maintenance of the whole or part of a
National Highway situated within the State
including a provision for sharing of
expenditure. Therefore, the State government
is not altogether devoid of responsibility in
the matter of developement maintenance of
National Highway, though the primary
responsibility is that of the Union
Government. It is under a statutory obligation
to obey the directions given by the Central
government with respect to the development
and maintenance of National Highways and may
enter into an agreement to share the
expenditure. That part of the Highway which
is within a municipal area is excluded from
the definition of a National
highway and therfore, the responsibility for
the development and maintenace of that part of
the Highway is certainly on the State
Government and the Municipal Committee
concerned. Since the development and
maintenance of the part of the Highway which
is within a municipal area is equally
inportant for the smooth flow of passengers
and goods along the National Highway it has to
be said that in developing and maintaining
the Highway which is within a municipal area,
the State Government is surely facilitating
the flow of passengers and goods along the
National Highway. Apart from this , other
facilities provided by State Government along
all Highways including National Highways, such
as lighting, traffic control, amenities for
passengers, halting places for buses and
trucks are available for use by everyone
including those travelling along the National
Highways . It cannot, therfore, be said that
the State Government confers no benefits and
renders no service in connection with traffic
moving along National Highways and is,
therfore, not entitled to levy a compensatory
and regulatory tax on passengers and goods
carried on National Highways.We are satisfied
that there is sufficient nexus between the
tax and passengers and goods carried on
National Highways to justify the imposition."
This view has been appoved in B.A. Jayaram and Ors.v. Union of India and Ors.,[1984] 1 S.C.C. 168. That case also relates to permit holders under section 63(7) of the Motor Vehicles Act, 1939, and challenge of the present type was negatived in the case. Law is settled that uphold levy of a tax of this type, what is necessary is existence of a nexus between the subject and the object of the levy and it is not necessary to show that the whole or substantial part of the tax collected is utilised. We are, therefore, satisfied that the demand of tax is not open to challenge and the plea raised against the levy, whether of tax or additional tax, is not justified.under the taxing provision a statutory outer limit has been provided and the actual amount is left to be determined by the State Government by notification. Obviously, discretion is left with the State Government to demand at a rate which in a given situation would be justified. Once it is held that the tax is either compensatory or regulatory that forms the guideline for the State Government to keep in view to determine the rate at which within the upper limit fixed by law the demand has to be made.
The second contention which has been raised is applicable to the State of punjab and Haryana and that depends upon the scope of rule 8(v) of the Punjab Motor Vehicles Taxation Rules,1925. We note that the provision perscribes that a motor vehicle temporarily brought into Punjab and kept for use therein for a period not exceeding 30 days is entitled to total exemption and that is not in dispute before us. Nor is it in dispute that the rule applies to Haryana . The words ’Kept for use’ came up for consideration in the case of International Tourist Corporation (supra) where this Court held that once a vehicle is used within the State the Taxable event occured and it must be taken for use. In State of Mysore and Ors.v. M/s. T.V. Sundaram Iyengar & Sons(P) Ltd., (1980) 1 S.C.C. 66 the meaning of ’kept’was examined at length and this Court held that vehicle in transit through the State of Mysore, or even making a necessary halt for a short interval, during transit , cannot be said to be a vehicle ’kept’ for use on roads in the State of Mysore. The word ’kept’ has not been defined in the Act. It must , tharefore, be interpreted in its ordinary popular sense consistent with the context. The ordinary dictionary meaning of the word ’kept’ is ’to retain’, ’to maintain’ or ’cause to stay or remain in place’ or ’to detrain’ or ’to stay or continue in specified condition, position etc.’ It is something different from a mere state of transit or a course of journey through the State. It is something more than a mere stoppage or halt for rest, food or refreshment, etc. in the course of transit through the territory of the State. That being the position rule 8(v) which uses the terms ’kept for use’ may not cover a case of bare transit and in terms of the rule exemption is available for vehicle kept upto 30 days in a year. In that view of the matter tourist vehicles registered outside the State of Punjab and Haryana when brought into these two States for regular use and not by way of transit and when used for more than 30 days in a year would attract taxability otherwise the exemption provision in rule 8(v) would be available . We have settled the legal position and we leave it to the individual taxing authorities as also the operators of tourist vehilces to work out their respective rights.
We would , therefore , like to clarify that the first aspect being a challenge against the taxing provision whether by way of tax or additional tax is rejected and the question of exigibility of tax in the States of Punjab and Haryana with reference to rule 8(v) of the Punjab Motor Vehicles Taxation rules, 1925 is left to be determined in individual cases as and when raised. There would be no order as to costs. G.N. Petitions deposed of.