SUCHET SINGH Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner who is the president of the Jammu R. S. Pora Bus Union which runs its buses on Jammu Ranbirsingh Pura and Jammu -Bishnah routes has moved this court under Article 32 (2 -A) of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir seeking a writ of certiorari quashing notification No. SRO -42 dated 24 -2 -1964 exempting persons carried in City Buses mentioned in the said notification from the operation of the Jammu and Kashmir Passenger Taxation Act of 1963 (Act No. XII of 1963) (which hereinafter will be referred to as the Act).

(2.) THE notification has been challenged by the petitioner alleging inter alia that the State of Jammu and Kashmir also maintains and plies City Bus Services upto Kalu Chak (Ismail Pur), Camp Rehari (Bori) and other places in Jammu and Shalimar, Harwan, Batwara Soura, Naseem Bagh and other places in Srinagar, that the buses plied by Jammu -Ranbirsingh Pura Bus Union also pass through some of the routes mentioned in this impugned Notification, that the Act authorises the levy of passenger tax on all fares in respect of all passengers carried by Motor Vehicles at rate not exceeding 30 percent of the value of the fare as may be notified by the Government from time to time in this behalf subject to a minimum of 2 piase, that section 10 of the Act authorises the Government to grant exemption to any person or class of persons from the operation of all or any of the provision of the Act if in its opinion such exemption would be expedient in public interest, that the Government has in exercise of the powers conferred on it by the aforesaid section of the Act issued the impugned notification exempting from the operation of the Act persons carried in the City Buses, mentioned in the notification and that , whereas persons traveling by the buses maintained and plied by the Jammu -Ranbirsinghpura Bus Union of the routes in the notification are subject to payment of the tax the passengers travelling in the City Buses mentioned in the impugned notification have not in consequence thereof to pay any such tax.

(3.) THE ground on which the petition is based and which have been pressed before me by the petitioners learned counsel are that whole of the Act is ultra vires of the powers of the Legislature in as much as the imposition of the tax contemplated by it (i.e. the Act) amounts to a restriction on trade and commerce of the petitioner and could not have been passed by the State Legislature without fulfilling the requirements of Art. 304 (b) of the Constitution that section 10 of the Act is invalid as it confers an unfettered and unbridled power on the executive Government to exempt any person or class of persons from the operation of all or any of the provisions of the Act without laying down the guiding principles as to what would be deemed to be public interest, within the meaning of the provision, that even assuming that the expression public interest occurring in the aforesaid section of the Act amounts to laying down the guiding principle, it is vague and susceptible of so many meanings that the whims and caprice of the Government is likely to extend the meaning of the expression to an abnoxinus limit and this leaves considerable room for arbitrary exercise of power, that in any case the notification is violative of Article 14 of the Constitution as persons similarly situated have been treated differently, that there is no rational basis or intelligent differently between persons carried by the City buses and those carried by private buses particularly when the stations like Kalu Chak, Harwan are beyond the Municipal limits of Jammu and Srinagar respectively, that when the State enters the arena of trade and commerce open to competition by private enterprise it cannot place itself in a better and more advantageous position than private individuals concerns and competitors and that in consequence of the exemption granted to the passengers carried in the City Buses not only has the petitioners transport business in carrying passengers on the routes specified in the notification been very adversly affected but at the same time the petitioner as a passenger has been placed in a disadvantageous position as compared to those travelling in City buses covered by the impugned notification.