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Bhupinder Singh and Etc. Vs. State of Himachal Pradesh and Etc. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtHimachal Pradesh High Court
Decided On
Case NumberC.W.P. Nos. 342 and 343 of 1975 and 55 and 56 of 1978
Judge
Reported inAIR1986HP33
ActsConstitution of India - Articles 13, 14, 226 and 265; ;Motor Vehicles Act - Section 63(7); ;Himachal Pradesh Passengers and Goods Taxation Act, 1955; ;Punjab Passengers and Goods Taxation Act, 1952 - Section 10; ;Himachal Pradesh Passengers and Goods Taxation (Amendment and Extension) Act, 1968 - Section 10
AppellantBhupinder Singh and Etc.
RespondentState of Himachal Pradesh and Etc.
Appellant Advocate M.S. Sethi,; Rajan Lakhanpal and; Deepak Gupta, Advs
Respondent Advocate M.S. Guleria, Asstt. Adv. General
DispositionPetitions allowed
Cases Referred(Om Parkash v. State of Punjab
Excerpt:
- .....the substance of the claim of the petitioners is that the tourists carried by them in their tourist vehicles between shimla and kalka are not liable to pay the passenger tax (hereinafter referred to as 'the tax') under the himachal pradesh passengers and goods taxation act, 1955 (hereinafter referred to as the 'act of 1955'). the petitioners contend that the authorities under 'the act of 1955' in himachal pradesh, are demanding the tax from the petitioners and under the pretext of this demand they are harassing them unnecessarily.3. mr. m. s. sethi, learned counsel for the petitioners, contends that by virtue of the notification (annexure-d1), issued by the governor of punjab on feb. 11, 1960, the tourists travelling in tourist vehicles have been exempted from the payment of the.....
Judgment:
ORDER

H.S. Thakur, J.

1. Since common questions of law and facts are involved in these writ petitions, they can conveniently be disposed of by a common judgment.

2. The substance of the claim of the petitioners is that the tourists carried by them in their tourist vehicles between Shimla and Kalka are not liable to pay the passenger tax (hereinafter referred to as 'the tax') under the Himachal Pradesh Passengers and Goods Taxation Act, 1955 (hereinafter referred to as the 'Act of 1955'). The petitioners contend that the authorities under 'the Act of 1955' in Himachal Pradesh, are demanding the tax from the petitioners and under the pretext of this demand they are harassing them unnecessarily.

3. Mr. M. S. Sethi, learned counsel for the petitioners, contends that by virtue of the notification (Annexure-D1), issued by the Governor of Punjab on Feb. 11, 1960, the tourists travelling in tourist vehicles have been exempted from the payment of the passenger tax. It is desirable to reproduce the said notification which reads as under :

'Chandigarh dated the 11th Feb., 1960 N-5745-E and T(IV)-59/592.

In exercise of the powers conferred by Section 10 of the Punjab Passengers and Goods Taxation Act, 1952, the Governor of Punjab is pleased to exempt the bona fide tourists carried by the tourist taxi-cars from the operation of the Section 3 of the said Act,

Sd/-

(V. P. Gautam)

Deputy Secretary to Govt.

Punjab, Revenue Department.'

It is also contended by Mr. Sethi that the exemption given to the tourists in terms of the notification has conferred a right on them and the said right is not taken away by the Himachal Pradesh Passengers and Goods Taxation (Amendment and Extension) Act, 1968. He has referred to Section 10 of the said Amendment Act which is reproduced hereinunder for a ready reference :

'10. Repeal and Savings.-- The Punjab Passengersand Goods Taxation Act, 1952(16 of 1952) as applicable to the territories added to Himachal Pradesh under Section 5 of the Punjab Reorganisation Act, 1966 (31 of 1968) and all rules, notifications, and orders made, directions or instructions issued, thereunder, shall upon the commencement of this Act, save as otherwise expressly provided in this Act, stand repealed :

Provided that such repeal shall not affect --

(a) the previous operation of the Act so repealed or anything duly done or suffered thereunder, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the Act so repealed,

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed.

Provided further that anything done or any action taken under the Act so repealed shall be deemed to have been done or taken under the Act extended by Section 9 and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the Act so extended.'

According to the learned counsel, in terms of the proviso, any right, privilege, obligation or liability acquired, accrued or incurred, still survives in terms of the -notification Annexure P-1, reproduced earlier above. It is emphasised by him that at the time when the notification Annexure P-1 was issued, Kalka-Shimla road was within the territory of erstwhile Punjab State except for certain tracts in between. It is further asserted by Mr. Sethi that under the notification dt. July 19, 1975, issued by the Governor of Himachal Pradesh (Annexure P-2), the exemption in the tax is not confined to the tourists carried in the tourist vehicles registered 'in such other State' but is also applicable to the tourists carried in the tourist vehicles registered in Himachal Pradesh as well, under Section 63(7) of the Motor Vehicles Act. For a ready reference, the notification Annexure P-2 is reproduced :

'Government of Himachal Pradesh Excise and Taxation Department,

No. 19-8/71-E & T-Sectt. dt. Simla-2, the 19th July, 1975,

NOTIFICATION.

In exercise of the powers conferred by Section 10 of the Himachal Pradesh Passengers and Goods Taxation Act, 1955 (Act No. 15of 1955), the Governor of Himachal Pradesh is pleased to exempt the passengers carried in the tourist vehicles registered in any other State in India (hereinafter referred to 'such other State') chartered by tourists in such other State and visiting this State under the authority of a permit granted under Sub-section (7) of Section 63 of the Motor Vehicles Act, 1939 (No, 4 of 1939) by the State Transport Authority of such other State, from payment of tax leviable under the said Himachal Pradesh Passengers and Goods Taxation Act, 1955, provided similar exemption is granted in such other State in respect of passengers carried in tourist vehicles registered in Himachal Pradesh and in respect of which similar permits have been granted by the State Transport Authority, Himachal Pradesh under the said Sub-section (7) of Section 63.

By Order

Sd/-

(P. K. Mattoo)

Secretary to the Government of

Himachal Pradesh.'

It is contended by Mr. Sethi that assuming without conceding that the exemption in terms of Annexure P-2 is limited to the tourists carried in tourist taxies registered 'in such other State', the same is discriminatory in character and accordingly in violation of Articles 13 and 14 of the Constitution.

4. Mr. M. S. Guleria, learned Assistant Advocate General, who appears for the respondents, has raised only three contentions before me. His first contention is that the exemption given under the Act of 1955 by notification Annexure P-2 is limited to the tourists who travel by tourist vehicles in 'such other States' as Haryana, Punjab and the Union Territory of Chandigarh and not to the tourists who are carried in the tourist 'vehicles registered in Himachal Pradesh. The next contention of Mr. Guleria is that the writ petitions are premature for the reason that the authorities under the Act of 1955 have only issued notices to the petitioners for depositing the tax but final orders have not been passed so far. It is further contended by him that the petitioners have not exhausted the alternative remedies available to them under the 'Act of 1955'. As such, it is asserted that the writ petitions are premature and deserve to be dismissed. The last contention of Mr. Guleria is that the exemption given under the notification Annexure P-2 is confined only to the tourists travelling by the tourist vehicles registered in 'such other State', is not discriminatory in character but is reasonable one.

5. It is not disputed that the taxies owned by the petitioners are tourist vehicles in terms of Sub-section (7) of Section 63 of the Motor Vehicles Act. It is convenient to extract the said provision :

'63(7). Notwithstanding anything contained in Sub-section (1) but subject to any rules that may be made under this Act, any State Transport Authority may, for the purpose of promoting tourism, grant permits valid for the whole or any part of India, in respect of such number of tourist vehicles as the Central Government may in respect of that State, specify in this behalf, and the provisions of Sections 39, 50, 51, 57, 58, 59, 59-A, 60, 61 and 64 shall, as far as may be apply in relation to such permits :

Provided that preference shall be given to applications for permits from--

(i) the Indian Tourism Development Corporation;

(ii) A State Tourism Development Corporation;

(iii) A State Tourism Department;

(iv) Such operators of tourist cars, or such travels agents, as may be approved in this behalf by the Ministry of the Central Government dealing in tourism.'

6. It is not disputed by the learned counsel for the parties that the tourist taxies operated by the owners are registered either in Haryana or in Himachal Pradesh. It is further not disputed that while the tourists are carried in such tourist vehicles-within-the State of Punjab and Haryana and also the Union Territory of Chandigarh, the passenger tax is not charged from the tourists. It is also not disputed that while the tourists travel by the tourist vehicles registered in Haryana within the territory of Himachal Pradesh, the tourists are not liable to pay the tax in Himachal Pradesh as well, but if the tourists are carried in tourist vehicles registered in Himachal Pradesh, the tax is demanded and claimed from them.

7. On the basis of the relevant facts briefly stated above, I shall deal with the contentions of the learned counsel for the parties.

8. The contention of the learned counsel for the petitioners that by virtue of the notification issued by the Governor of Punjab (Annexure P-i), the right of exemption from the payment of the tax continues has not been seriously pressed. He has, however, seriously pressed his contention that in the first instance the exemption given in terms of Annexure P-2, is equally available to the tourists carried in tourist motor cars registered in Himachal Pradesh and in the alternative even if assuming that the exemption is not so given, the action is prima facie discriminatory in nature and violative of the provisions contained in Arts. 13 and 14 of the Constitution.

9. In the notification Annexure P-2, exemption from the payment of the tax is specifically given to the tourists carried in the tourist vehicles registered in 'any other State' referred to as 'such other State' but there is no specific mention in the said notification that the exemption in respect of the tourist vehicles registered in Himachal Pradesh, carrying tourists therein will not be given. Without expressing any opinion on the interpretation of this notification regarding exemption, I proceed with the assumption that the same is not specifically given to the tourist vehicles registered in Himachal Pradesh. The real question, however, that requires the determination is whether such exemption is discriminatory in character or not,

10. The object of Sub-section (7) of Section 63 is to promote tourism in the country and to achieve this end a separate category of permits of vehicles for this purpose has been carved out. Before a permit is issued for the said purpose, certain conditions have been laid down under Sub-sections (7), (8), (9) and (10) of Section 63 of the Motor Vehicles Act. It may be pointed out that the exemption from the payment of the tax has been given, to the tourists and not to the vehicle-operators. It is not disputed before me that the tax is liable to be paid by a passenger and not by a vehicle-operator though the tax is to be collected by the operator of a vehicle and, is to be paid either in the shape of stamps or in cash. It is on this account that the authorities under the 'Act of 1955' are claiming the payment of the tax, from the petitioners. The tourist vehicles registered in Himachal Pradesh are given registration numbers with the words 'HPY' and 'HPZ' whereas for similar tourist tax'ies registered in Haryana the registration numbers are given with the words 'HRY' and 'HRZ'. It is an admitted case of the parties that according to the reciprocal arrangement between the States of Haryana and Himachal Pradesh', the tax on tourists, carried in tourist taxies, within Haryana whether registered in Himachal Pradesh or in Haryana is exempted. However, on the contrary, if the tourists are carried in a tourist vehicle, registered in Himachal Pradesh, the tax is payable by them, within the territory of Himachal Pradesh.

11. Keeping in view the above position, suppose a group of tourists reaches a starting point, to travel within Himachal Pradesh, half of the members of the group travel in a tourist vehicle registered in Haryana and the other half in a tourist vehicle registered in Himachal Pradesh, the first half would be exempted from the payment of the tax whereas the remaining half would be liable to pay the same. I am of the view that such a discrimination is not warranted under Articles 13 and 14 of the Constitution.

12. Reference may be made to a decision of the Supreme Court in K.T. Moopil Nair v. State of Kerala, AIR 1961 SC 552. Para 7 of the judgment may be extracted for a ready reference :

'The most important question that arises for consideration in these cases, in view of the stand taken by the State of Kerala is whether Article 265 of the Constitution is a complete answer to the attack against the constitutionality of the Act. It is, therefore, necessary to consider the scope and effect of that Article. Article 265 imposes a limitation on the taxing power of the State in so far as it provides that the State shall not levy or collect a tax, except by authority of law, that is to say, a tax cannot be levied or collected by a mere executive fiat. It has to be done by authority of law, which must mean valid law. In order that the law may be valid, the tax proposed to be levied must be within the legislative competence of the Legislature imposing a tax and authorising the collection thereof and, secondly, the tax must be subject to the conditions laid down in Article 13 of the Constitution. One of such conditions envisaged by Article 13(2) is that the Legislature shall not make any law which takes away or abridges the equality clause in Article 14, which enjoins the State not to deny to any person equality before the law or the equal protection of the laws of the country. It cannot be disputed that if the Act infringes the provisions of Article 14 of the Constitution, it must be struck down as unconstitutional. For the purpose of these cases, we shall assume that the State Legislature had the necessary competence to enact the law, though the petitioners have seriously challenged such a competence. The guarantee of equal protection of the laws must extend even to taxing statutes. It has not been contended otherwise. It does not mean that every person should be taxed equally. But it does mean that if property of the same character has to be taxed, the taxation must be by the same standard, so that the burden of taxation may fall equally on all persons holding that kind and extent of property. If the taxation, generally speaking, imposes a similar burden on every one with reference to that particular kind and extent of property, on the same basis of taxation, the law shall not be open to attack on the ground of inequality, even though the result of the taxation may be that the total burden on different persons may be unequal. Hence, if the Legislature has classified persons of properties into different categories, which are subjected to different rates of taxation with reference to income or property, such a classification would not be open to the attack of inequality on the ground that the total burden resulting from such a classification is unequal. Similarly, different kinds of property may be subjected to different rates of taxation, but so long as there is a rational basis for the classification, Article 14 will not be in the way of such a classification resulting in unequal burdens on different classes of properties. But if the same class of property similarly situated is subjected to an incidence of taxation, which results in inequality, the law may be struck down as creating an inequality amongst holders of the same kind of property. It must, therefore, be held that a taxing statute is not wholly immune from attack on the ground that it infringes the equality clause in Article 14 though the Courts are not concerned with the policy underlying a taxing statute or whether a particular tax could not have been imposed in a different way or in a way that the Court might think more just and equitable. The Act has, therefore, to be examined with reference to the attack based on Article 14 of the Constitution.'

13. Mr. Sethi has also referred to a Division Bench judgment of Punjab and Haryana High Court in Civil Writ Petn. No. 3133 of 1978 (Om Parkash v. State of Punjab), in support of his contention. The relevant observations from the said judgment may be extracted :

'.....,............................ As regards the State of Himachal Pradesh, notification dt. 19th July, 1975, has been issued by the State in exercise of powers conferred under Section 10 of the 1955 Act, granting exemption to passengers carried in the tourist vehicles registered in any other State in India chartered by tourists in such other State and visiting the State of Himachal Pradesh under the authority of a permit granted under Section 63(7) of the Motor Vehicles Act, from payment of passenger tax under Act No. 15 of 1955 provided similar exemption is granted in such other State in respect of the passengers carried in tourist vehicles registered in the State of Himachal Pradesh having similar permits. A copy of this notification is annexed as P-3.

Because of the aforesaid notification, the stand of the States of Punjab and Haryana and the Union Territory of Chandigarh is that the petitioner's tourist taxi cars which have been registered in the State of Himachal Pradesh would not be liable to pay passenger tax in these three States provided they carry bona fide tourists but in case they would carry passengers then such exemption would not apply. Whether passengers would be included within the definition of bona fide tourists, was the main question in Nirmal Singh's case (supra), wherein it was held as follows :

'From the aforesaid definition, it would become clear that the word 'tourist' as such cannot be made synonymous with the word 'passenger'. Any and every passenger in a vehicle travelling particularly for work or business cannot on the aforesaid definition be labelled as a tourist. Learned counsel for the petitioner, as an argument of last resort, has, however, attempted to argue that herein the words 'passengers' and 'tourist' have been used as interchangeable terms and even a person specifically travelling to his place of work should be deemed within the ambit of the word 'tourist'. I find no warrant for such a proposition, which on the face of it is unacceptable. Once it is held, as it must inevitably be that every passenger in a vehicle cannot without exception be labelled as a tourist, then it follows that for the purpose of the passenger tax and the exemption therefrom it has to be determined whether the person carried in the vehicle is just an ordinary passenger or is a bona fide tourist. It is significant to note that the exemption has been given not even to all tourists as such, but the word has been further qualified by laying down that he must be bona fide tourist. The intent and the purpose of the authorities thus appear to be manifest.' Therefore, it is manifest that the petitioners' tourist taxi cars would be exempt from payment of passenger tax in the States of Punjab and Haryana and the Union Territory of Chandigarh only when they would carry bona fide tourists and not otherwise.'

14. On the basis of the above discussion and decisions, I am satisfied that no discrimination can be made in the exemption of the tax between the tourists carried in tourist vehicles registered in Himachal Pradesh and the tourists carried in tourist vehicles registered in Haryana. As such, the tourists carried in tourist vehicles registered in Himachal Pradesh are equally entitled to the exemption from the payment of the tax. It may, however, be pointed out that bona fide tourists only are exempt and not other passengers, who are not tourists.

15. The contention of Mr. Guleria that the petitions are premature for the reasons advanced by him cannot be sustained and is rejected on the short ground that the questions of interpretation of Articles 13 and 14 of the Constitution being involved in these writ petitions can appropriately be determined by filing a writ petition. At the same time, if is a speedy and efficacious remedy available to the petitioners.

16. The result of the above discussion is that the benefit of the exemption from the payment of 'the tax' as contained in the notification Annexure P-2 is equally available to bona fide tourists carried in tourist vehicles, registered in Himachal Pradesh, as available to bona fide tourists carried in tourist vehicles registered in Haryana.

17. As such, the respondents are directed not to charge 'the passenger tax' from bona fide tourists carried in tourist vehicles registered in Himachal Pradesh, within the territory of Himachal Pradesh as well. It may, however, be clarified that the authorities under the 'Act of 1955' are not debarred from taking. appropriate action under the 'Act of 1955' and the Rules framed thereunder for the imposition and collection of the passenger tax from the passengers carried in such vehicles, other than bona fide tourists.

18. The writ petitions are accordingly allowed, but with no order as to costs.


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