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Judgment
B.M. Lal, C.J.—By this petition under Articles 226 and 227 of the Constitution of India, the petitioner which is a registered union under All India Motor Transport Congress bearing Registration No. B/2054, is carrying on business of transport styled as East Bihar Regional Bus Union, Bhagalpur, seeks an appropriate writ for quashing Schedule II framed under sub-section (2) of Section 5 of the Bihar Motor Vehicles Taxation Act, 1994, and for declaring the provisions of Sub-section (2) of Section 5 of Bihar Motor Vehicles Taxation Act, 1994 (hereinafter to be referred to as ''the Act'') ultra vires to the provisions of Articles 19(1)(g) and 14 of the Constitution of India.
Before dealing with the controversy in issue, it is necessary to give the genesis of the case so as to appreciate imposition of levy of tax by the State Government in exercise of its authority and powers u/s 5 of the Act, which envisages that every owner of a registered motor vehicle shall pay tax on such vehicle at the rate specified in Schedule I and according to Section 6, Sub-section (2) additional tax at the rate specified in Schedule II.
For the brevity sake, it is necessary to reproduce Schedules I and II, which are as under:
SCHEDULE I : PART C
Rate of Motor Vehicle tax
Sl. No Class of vehicles Annual rate of tax on Motor Vehicles
1 Carriage for invalid persons Rs. 17.50
Goods Carriages excluding trailers
(a) Upto 500 Kgs. registered laden weight Rs. 298.50
(b)
Exceeding 500 Kgs. but not exceeding 2000 Kgs. of registered laden weight
Rs. 298.50 + Rs. 34.00 for every additional 250 Kgs. or part thereof above 500 Kgs.
(c)
Exceeding 2000 Kgs. but not exceeding 4000 Kgs. of registered laden weight
Rs. 502.50 + Rs. 42.00 for every additional 250 Kgs. or part thereof above 2000 Kgs.
(d)
Exceeding 4000 Kgs, but not exceeding 8000 Kgs. of registered laden weight
Rs. 838.50 + Rs. 51.50 for every additional 250 Kgs. or part thereof above 4000 Kgs.
(e) Exceeding 8000 Kgs. registered laden weight
Rs. 1,662.50 + Rs. 136.50 for every additional 250 Kgs. or part thereof above 8000 Kgs.
Motor Cabs and omnibuses -
(a)
Seating (capacity) not more than 4 persons (exclusive of the driver)
(i) Three wheelers Rs. 352.00
(ii) Four wheelers Rs. 528.00
(b) Seating capacity more than four persons
Rs. 616.00 for five persons plus Rs. 105.50 for every additional persons beyond five persons.
4
Transport vehicles other than goods carriages, motor cabs and maxicabs exclusive of the driver and conductor -
(a)
Seating capacity not less than 13 persons and not more than 26 persons
Rs. 1,583.50 for 13 persons + Rs. 105.50 for every additional persons beyond 13 and upto 26 persons.
(b)
Seating capacity not less than 27 persons and not more than 32 persons
Rs. 3,036.00 for 27 persons + Rs. 79.00 for every additional persons beyond 27 persons upto 32 persons.
(c) Seating capacity 33 persons or more
Rs. 3,485.00 for 33 persons plus Rs. 53.00 for every additional persons beyond 33 persons.
Tractors Rs. 100.00
Trailers �
(a) Upto 500 Kgs. registered laden weight Rs. 253.00
(b)
Exceeding 500 Kgs. but not exceeding 2000 Kgs. of registered laden weight
Rs. 253.00 + Rs. 29.00 for every additional 255 Kgs. or part thereof above 500 Kgs.
(c)
Exceeding 2000 Kgs. but not exceeding 4000 Kgs. of registered laden weight
Rs. 432.00 + Rs. 40.00 for every additional 250 Kgs. or part thereof above 2000 Kgs.
(d)
Exceeding 4000 Kgs. but not exceeding 8000 Kgs. of registered laden weight
Rs. 760.00 + Rs. 49.50 for every additional 250 Kgs. or part thereof above 4000 Kgs.
(e) Exceeding 8000 Kgs. registered laden weight
Rs. 1,568.00 + Rs. 120.00 for every additional 250 Kgs. or part thereof above 8000 Kgs.
7.
Motor Vehicles other than those liable to pay tax under the foregoing provisionsof this schedule
(a) Upto 500 Kgs. of registered unladen weight Rs. 120.00
(b)
Exceeding 500 Kgs. but not exceeding 2000 Kgs. of registered unladen weight
Rs. 240,00
(c)
Exceeding 2000 Kgs. but not exceeding 4000 Kgs. of registered unladen weight.
Rs. 480.00
(d)
Exceeding 4000 Kgs. but not exceeding 8000 Kgs. of registered unladen weight.
Rs. 960.00
(e)
Exceeding 8000 Kgs. of registered unladen weight
Rs. 960,00 for 8000 Kgs. + Rs. 120.00 for every additional 1000 Kgs. or part thereof
SCHEDULE III
(Sub-section (2) of Section 5)
Additional Motor Vehicles Tax on Transport Vehicles.
Sl. No Class of Vehicles Annual rate of Additional Motor Vehicles Tax
Goods carrige excluding trailers
(a) Upto 500 Kgs. of registered laden weight Rs. 310.00
(b)
exceeding 500 Kgs. of registered laden weight
Rs. 310.00 + Rs. 232.50 for every additional 500 Kgs. or part thereof above 500 Kgs.
Rebate - A rebate of twenty five percent, ofthe additional motor vehicle tax will he allowed to vehicles of more than five years old but not more than ten years old and a rebate of thirty per cent, of the additional motor vehicles lax will be allowed to vehicles of more than ten years old.
2.
Motor cabs (with sealing capacity upto 6 persons exclusive of the driver)
(a) Three wheelers (auto rickshaw and tempos) Rs. 640.00
(b) Four wheelers Rs. 1,600.00
3.
Transport vehicles excluding goods carriage and motor cabs.
(a)
with seating capacity more than 6 but not exceeding 15 persons exclusive of the driver
Rs. 240.00 for every seat.
(b)
with seating capacity more than 15 but not exceeding 32 persons exclusive of the driver and conductor
Rs. 320.00 per seat
(c)
with seating capacity more than 32 persons exclusive of the driver and conductor.
Rs. 416.00 per seat.
Rebate -- A rebate of 10 per cent, ol the additional motor vehicles lax will be allowed to contract carriage or stage carriage of more than 5 years old but not more than ten years old and a rebate of 15 per cent, of the additional vehicle tax will be allowed to such vehicles of more than ten years old
Trailer
(a) Upto 5000 Kgs. registered laden weight Rs. 1,440.00
(b)
Exceeding 5000 Kgs. registered laden weight.
Rs. 1,440.00 plus Rs.160.00 for every additional 1,000 Kgs. and part thereof above 5000 Kgs.
It is so happened that prior to 1982 in the State of Bihar, owners of commercial vehicles including buses and trucks were paying sales tax to the Sales Tax Department of the State of Bihar and road tax to the Transport Department of the State Government. Much difficulty was felt by the transporters in paying sales tax and road tax separately with two departments as it consumed a lot of time apart from causing great inconvenience to the business activities of the transporters. Therefore, the matter was agitated with the State Government whereupon it was decided by the State Government to merge the sales tax into road tax and, accordingly, the Act which was prevalent at that time, was amended suitably with effect from 1st April, 1983 and registered owners of the vehicles were required to pay tax at the rate as specified in Schedule III of that Act.
However, it appears that the said Act was repealed by an Ordinance which has ultimately taken the shape of Act and is known as "Motor Vehicles Taxation Act, 1994" whereby according to provision of Section 5 each and every owner is required to pay tax at the rate specified in Schedule I and also to pay additional tax according to the provisions of Section 6, Sub-section (2) of the said Act at the rate as specified in Schedule II of Sub-section (2) of Section 5 of Act, which is under challenge.
Learned counsel contended that the imposition of levy of tax is discriminator in nature and also creates hindrance in free trade; and commerce resulting in encroaching upon the fundamental rights guaranteed to the citizen under Article 19(1)(g) of the Constitution of India whereby citizen rights have been protected to practise any profession or to carry on any occupation, trade or business. It is contended that levy of lax is based on seating capacity of the vehicles creating discrimination amongst the owners of the vehicles attracting Article 14 of the Constitution as the vehicles of different seating capacities are plied on the road. Thus there is no rational behind fixing the tax on the basis of seating capacity rather on the other hand levy of tax should be on the vehicle as a whole and not on the basis of seating capacity. Therefore, Schedule II of Sect ion 5 is discriminatory in nature and, so the same is liable to be quashed.
Before embarking upon the issue involved, it is to be seen as to whether the imposition of levy of tax on the basis of seating capacity is oppressive in nature resulting in, and- causing great hardship to the transporters and whether, indecded the same is not permissible within the four corners of the Act and further whether the same is beyond the powers of the State to levy tax, which power, in fact, is an incident of its sovereignty and covered by legislative competence in Entry 57 of List II of the 7th Schedule and Entry 35, List III of the 7th Schedule of the Constitution.
Thus in the light of legislative competence, validity of Section 5(2) of the Act and Schedule, II framed thereunder is to be examined as to whether imposition of levy of tax is a regulatory measure for facilitating freedom of trade commerce and intercourse or is hit by or violative of Articles 19(1)(g) 14 and 301 of the Constitution.
In this regard reference is made by the learned counsel to the provisions of Section 67 of the Motor Vehicles Act, 1988, contending that the State Government has fixed the rate to be charged by the transporters from the passengers as 14 paisc per passenger per kilometre in ordinary bus, 17 Paise per passenger per Kilometre in express bus and 22 Paise per passenger per Kilometre in Delux bus and submitted that applying this yardstick the additional tax should have been charged in the same manner as the fare chargable from the passengers.
Now coming to the controversy in issue, we may observe that it is not that this question is being raised for the first time. On several earlier occasions the Courts were in seisin of such matters and it has been held that neither it is confiscatory in nature nor oppressive. On the other hand, it has been held that imposition of levy of tax is supported by legislative intent by virtue of Entry 57 of List II of 7th Schedule of the Constitution which empowers the State legislature to tax on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of Entry 35 of List III. Entry 35 of List III of the 7th Schedule says mechanically propelled vehicle including the principles on which taxes on such vehicles are to be levied.
Thus by virtue of above referred entries, the relevant provisions of the Act with respect to the imposition of levy of tax are not suffering from legislative incompetence, then how it can be said that the provisions of Section 5 or A of the Act and Schedule It thereof are confiscatory or oppressive in nature.
The mode of charging tax on the basis of seating capacity appears to be regulatory in nature just like rules of traffic, which facilitate the freedom of trade and commerce. Thus charging of tax on the basis of seating capacity of the bus, in our view, docs not create any barrier or hindrance to the free trade guaranteed to the bus owners or transporters under Part XIII of the Constitution.
Here it will not he out of place to mention that the alleged tax is being charged from the transporters because they are using public road and, therefore, it is compensatory and not exproprietory in character and thus it being a compensatory tax cannot operate as or create unreasonable restriction to the fundamental rights guaranteed under Article 19(1)(g) of the Constitution and is also not discriminatory in nature because the seating capacity of a vehicle is a class in itself and it is the seating capacity which is being treated alike.
Learned counsel appearing for the petitioner has failed to point out that the vehicles of similar nature having the same scating capacity are being charged differently so as to attract Article 14 of the Constitution and if it is not so then how Article 14 is attracted, we fail to understand.
A similar point arose for consideration in the case of the Malwa Bus Service (Private) Limited and Others Vs. State of Punjab and Others, and the Apex Court held that levy of different rates of tax on stage carriages and public carriers on the basis of seating capacity does not suffer from the vice of hostile discrimination. Paras 6 and 21 of the judgment in this regard are emphatic.
This Court in the case of Shyamsundar Roy and Others Vs. State of Bihar and Others, dealing with the similar situation has held that, where the classification made under Sections 6 and 6(1A) of the repealed Bihar and Orissa Motor Vehicles Taxation Act for imposition of additional tax in respect of motor bus operators is based upon seating capacity of different transport and concerning public transport carriers on the basis of tonnage or registered laden weight and thus similarly treating all persons coming within one group the classification would not be discriminatory as violating Article 14.
Thus to bring a case within the ambit of Article 14 of the Constitution, if there is a discrimination within a class itself, indeed that discrimination may result in violation of Article 14 of the Constitution; but, in the instant case scating capacity is treated as one class and nothing has been brought on the record to suggest that for similar seating capacity bus, tax is being charged by different tax slab. Therefore, it cannot be said to be discriminatory.
In view of foregoing discussions, this writ petition has no merit and the same is, accordingly, dismissed.
S.K. Singh, J.
I agree.