SHYAMSUNDAR ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) In these two applications under Articles 226 and 277 of the Constitution the only question involved is as to whether Section 30 as well as the Third Sch. of the Bihar Finance Act, 1982, (Bihar Act 58 of 1982) (hereinafter referred to as 'the 19S2 Act'), is a valid piece of legislation or is ultra vires the various Constitutional provisions?

(2.) In the two applications, the petitioners are operators of motor vehicles of different types which have been purported to be subject to be taxed under the impugned Act. One of the petitioners in CWJC 768 of 1982 R (namely petitioner No. 3 thereof), is the New Chhoianagpur Bus Oweners Association a registered Association of some of such operators. We may make it plain at this very stage that no controversial question of fact is involved in these writ applications and we have to test the legality or otherwise of the 1982 Act with reference to facts which were on record before us until before the hearing was concluded. This we have indicated at the outset on account of the fact that, when the final hearing of C. W. J. C. 810 of 1982 (R) was concluded and the judgment deferred to today, Mr. Busudeo Prasad, learned counsel appearing in support of that writ application, has filed a supplementary affidavit by way of, we should say a rejoinder to the counter-affidavit filed on behalf of the State, which we have refused to entertain especially because the State would have no opportunity to controvert any of the new facts sought to be brought on record by way of such belated supplementary affidavit and/or rejoinder, apart from the deprecable practice being sought to be followed by filing supplementary affidavit/rejoinder after the close of arguments. Therefore, we proceed upon the facts, as they stood in the petitions and the counter-affidavits filed on behalf of the State until before the hearing of the case had begun,

(3.) A short legislative history needs to be set out here to show how the impugned Act of 1982 has been brought on the Statute Book. As far back as in the year 1930 the Bihar and Orissa Motor Vehicles Taxation Act 1930 (Act 2 of 1930 hereinafter called the 1930 Act) was enacted by the provincial legislators with the previous sanction of the Governor-General under Sub-s. (3) of Section 80A of the Government of India Act, 1915. The assent of the Govern-General to that Act was published in the Bihar and Orissa Gazette of the 3rd Sept. 1930. Section 6 of that Act provided for imposition of tax on Motor Vehicles in the then province of Bihar and Orissa. By Section 9 of that Act, a person was required to pay additional tax on his motor vehicle if such a vehicle was altered in such a manner as to cause the vehicle to become one in respect of which a higher rate of tax is payable, Then came a Central Act being the Motor Vehicles Act, 1939 (Act 4 of 1939) (hereinafter referred to as 'the 1939 Act') brought on the Statute Book to consolidate and amend the law relating to Motor Vehicles; Chap. III thereof laid down provisions for registration of Motor Vehicles in general and Chap. IV dealt with control of transport vehicles. Another State Act was passed in the year 1961 being the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 (Bihar Act 17 of 1961) (hereinafter referred to as 'the 1961 Act'). This Act received the assent of the President on the 23rd Sept 1961, and the assent was first published in the Bihar Gazette (Extraordinary issue) on the 25th Sept. 1961. Section 3 of this Act levied a tax on all passengers and goods carried by a public service motor vehicle at the prescribed rates of fares and freights payable to the owner of such vehicle. Sub-section (3) of Section 3 further provided for shifting of expenses of tax to the passengers and the owners of the goods which were sought to be transported but the mode of payment was by recovery from the Motor Vehicles Operators who used to carry passengers and goods. The 1982 Act, inter alia repealed the 1961 Act. The Finance Act, 1982, as a whole amended, repealed substituted and otherwise dealt with quite a number of State Acts. For instance, the Bihar Cess Ordinance, 1982, was converted into an Act after amending its provisions. The 1961 Act was repealed, Bihar Finance Act. 1981 (Bihar Act 5 of 1981), Bihar Health Cess Act, 1977 (Bihar Act 22 of 1977), Bihar Agriculturists Act, 1955 (Act 8 of 1955) Chotanagpur Tenancy Act, 1908 (Bengal Act 6 of 1908), Santhal parganas Tenancy (Supplementary Provisions) Act, 1949 (Bihar Act 14 of 1949). Bihar Entertainment Tax Act, 1948 (Bihar Act 35 of 1948). The Cess Act, 1880 (Bengal Act 9 of 1880) and Bihar and Orissa Motor Vehicles Taxation Act, 1930 (Bihar Act 2 of 1930) were amended. We are called upon in these cases to test the validity of only that part of the Act by which 1961 Act having been repealed additional taxes have been sought to be levied by amending the 1930 Act. That is specifically done by Section 30 of the 1982 Act by which Section 6 of 1930 Act has been amended and Section 6 (IA) read with the Third Schedule to it has been inserted.