KAUSHIKBHAI K PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Ms. Amee Yajnik, Assistant Government Pleader, waives service of Rule on behalf of the respondents.

(2.) When this petition came up for hearing on 16-4-1998, Counsel appearing on either side wanted main petition itself heard and disposed of. Accordingly, as agreed to by Counsel, we heard arguments at length. We are disposing of the same by this judgment.

(3.) Gujarat State Legislature amended the Bombay Motor Vehicles Tax Act, 1958 by Act 3 of 1992. As a result of the amendment, sub-S.(5) of S.3A was substituted. It dealt with the cases of omnibuses. By sub-clause (a) to sub-S. (5), an owner of an omnibus is entitled to refund of the tax upto a maximum of three months in an year on proof of non-user. If refund is claimed for more than three months in any year, he must establish non-user of the omnibus for reasons beyond his control to the satisfaction of an Authorised Officer. The consequence is that on account of non-user of an omnibus, the owner or person having possession or control of the vehicle can get refund of the tax for a period of three months, if he shows that the omnibus has not been used or kept for use during that period. In case refund is claimed beyond three months, then the owner and person in possession or control has not only to prove that the vehicle was not used or kept for use, but also to establish to the satisfaction of the Authorised Officer that the non-user was for reasons beyond his control. Additional burden to prove that the vehicle was not used for reasons beyond the control of the owner or the person in possession of the vehicle is under challenge on the ground that no such additional proof can be insisted on by the State. In other words, the contention raised by the petitioners is that omnibuses, like any other class of vehicles, are not liable to pay tax for the period during which they were not used or put on road for the whole period of its non-user.