DHARAM PAL SINGH Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an application by the petitioner who is a firm carrying on the business of sale of timber under the name and style of Sayal Bros, having its office at the Canal Road, Jammu. Petitioner 2 is a representative of all the merchants of Jammu. By virtue of this petition which has been filed under Art. 32(2 -A) of the Constitution of India and S. 103 of the State Constitution the petitioners seek to challenge the constitutional validity of the levy of toll tax under the Levy of Tolls Act, 1995 (1938 A.D.) being Act No. VIII of 1995 (hereinafter referred to as the Act) and particularly S. 3 of the Act which is the charging section. The challenge to the Act is based on the following grounds: - (1) (a) That S. 3 contains excessive delegation of powers inasmuch as the legislature has completely effaced itself and left the entire range and field of taxation to the Government, (b) That the Act does not contain any guidelines nor any principles nor has the Act placed any ceiling on the limit of taxation to be imposed by the Government. It is submitted that on account of the aforesaid infirmities the Act is ultravires and violative of Art. 14 of the Constitution of India. (2) That the Government exercising powers under S. 3 of the Act has acted in such a way so as to select the petitioners for hostile discrimination as against other traders equally circumstanced. (3) That the levy of tax under S. 3 of the Act is in direct violation of the provisions of Art. 301 of the Constitution of India and amounts to a serious infraction of the freedom of inter -State trade enjoyed by the traders under Art. 301.

(2.) THE State and other respondents have filed their objections rebutting all the allegations made by tb.2 petitioners and have sought to support the Act on the ground that it contains sufficient guideless to enable the Government to levy taxes from time to time. It was also contended that in matters of taxation the legislature has a very wide discretion and it can always leave the task of selecting objects, articles and rates of taxation to the Government. Lastly it was contended the there is absolutely no discrimination made by the Government in the levy imposed on the petitioners, because their case is clearly distinguishable from the case of other trader, who ply on the road. Finally it has been averred that so far as Art. 301 is concerned, it does not come into play because the Act impugned is a pre -existing law within the meaning of the Art. 305 of the Constitution of India.

(3.) WE have heard counsel for the parties and we are of the opinion that the contentions raised by the learned counsel for the petitioners are devoid of substance. We shall take up the first contention raised by the counsel relating to the question of the Act being bad as it suffers from the vice of excessive delegation of powers. Before, however, examining this argument it may be necessary to quote S. 3 in extenso; which runs as follows: - (1) The Government may from time to time prescribe annul or alter rates of tolls to be levied upon any road, ferry or bridge (in the State) and may place the collection of such tolls under such management as may appear to it proper, and all persons employed in the management and collection of such tolls shall be liable to the same responsibilities as would belong to them if employed in the collection of the (Excise) Revenue under the Jammu and Kashmir (Excise) Act, 1958. (2) The rates prescribed to be levied at the commencement of this Act, shall be the rates mentioned in the first Schedule thereto annexed. The rates shall continue to be levied till they are annulled or altered in accordance with the provisions of this Section. (3) The power to annual or alter the rates vested in the Government under the foregoing provisions of this section may be exercised from time to time after publication in the Government Gazette. The amendment and alteration shall have the same force and effect as if they had been contained in the first schedule. (4) The persons under whose management the to is are levied at the commencement of this Act shall levy the tolls prescribed and shall be held to have been appointed for collection of tolls under the provisions of this Act."