STATE OF GUJARAT Vs. AKHIL GUJARAT PRAVASI

JUDGEMENT

(1.) Civil Appeal Nos. 6462-64 of 2001 have been preferred by the State of Gujarat against the judgment and order dated 17-8-2001 of a Division Bench of the High Court, whereby Sec. 3A(1) and (2) of the Bombay Motor Vehicles Tax Act, 1958 and also Rule 5 of the Bombay Motor Vehicles Tax Rules, 1959 made vide notification dated 6-2-2001 were struck down and a writ of mandamus was issued to the State authorities not to recover any tax in pursuance thereto from the vehicles of the respondents herein (writ petitioners in the High Court) which were kept but were not being used. A further direction was issued to the respondent-State to grant refund of the tax already recovered from the respondents within three months from the date of receipt of copy of the judgment after examining their case regarding non-use of the vehicles. After the decision of the High Court, the Bombay Motor Vehicles Tax Act was amended by Gujarat Act 9 of 2002 in order to validate the imposition and collection of tax on designated omnibuses, which was published in the Gazette on 31-3-2002. Writ Petition Nos. 249 and 252 of 2002 have been filed in this Court challenging the amendments made by the aforesaid amending Act.

(2.) It will be convenient to reproduce relevant provisions of the statute which were subject-matter of challenge before the Gujarat High Court. The Bombay Motor Vehicles Tax Act, 1958 (hereinafter referred to as "the Act") was made applicable to the State of Gujarat by the Gujarat Adoption of Laws (State and Concurrent Subjects) Order, 1960. The Act was amended several times and lastly on 6-2-2001 by Gujarat Act 2 of 2001. Section 2 of this Act gives the definitions and sub-sec. (1) defines "certificate of taxation" and it means a certificate, issued under Sec. 5, indicating therein the rate at which the tax is leviable, and the periods for which the tax has been paid, sub-sec. (5) defines "registered owner" and it means the person in whose name a motor vehicle is registered under the Motor Vehicles Act, 1939 (or, as the case may be the Motor Vehicles Act, 1988) and sub-sec. (7) defines "taxation authority" or "authority" and it means such officer or authority as the State Government may by notification in the Official Gazette, appoint to be the taxation authority for the whole State or for any area or areas for the purposes of the Act, and the State Government may appoint more than one officer or authority as taxation authority for the whole State or for any area. The controversy here relates to Secs. 3 and 3A of the Act and the relevant parts thereof are being reproduced below :

(3.) The Bombay Motor Vehicles Tax Rules, 1959 (hereinafter referred to as "the Rules") were amended by the Bombay Motor Vehicles Tax (Gujarat Amendment) Rules, 2001 vide notification dated 6-2-2001 and after amendment Rule 5 reads as under :