B. A. JAYARAM AND OTHERS ETC. v. UNION OF INDIA AND OTHERS

Citation: [1983] 3 S.C.R. 624

Court: Supreme Court of India

Bench: D.A. DESAI, O. CHINNAPPA REDDY

Case summary

There was no ihought or Question of undertaking all India or interstate tours, aud out went the worthy object of sec. ) of the Motor Vehicles Act, provides that, except as may be otherwise prescribed, a permit granted by the regional transport authority of any.

Judgment text

( B. A. JAYARAM AND OTHERS ETC. v. UNION OF INDIA AND OTHERS. 1 August l! l, 1983 ' [D. ' A. DESAI AND o. CHINNAPPA REDDY, JJ. ] • Constitution ofIndia-Art. 301-Scope of-Compensatory Ond regzilatory taxes are outside the expanse ofArt. 301. Motor Vehicles Act, 1939~Sec. 63(7)-lntroduced by amending Act 56 of- , 1969-Does not affect State's power either to impose or exempt tax on motor vehicles. \ . Karnataka Motor Vehicles Taxation Act, 1957-A piece ofregulatory and compensatory legislation-Read with Entries 56 and 57 of List· 11 of SevenJh Schedule to the Constitution-Taxes levied on motor_ vehicles are reiulatory and compensatory-. Not within the vista ofArt. 301 ofth~ Constitution. ,- ,In order to promote all India- and inter-state tourist traffic, the Parliamcnt amended the Motor vehicles Act, 1939 ~Y introducing in it sec. 63(7) which enabled the State Transport Authority of every State to grant permits valid .

for the whole or any part of India, in respect of such number of tourist vehicles as may be specified by ,the Central Government. Later the Central Government notified that each State :rr3. nsport. Authority could issue 50 all- India pe~mits for tourist omnibuses. As each State had the eright, within its territory, to levy a tax on a motor vehicle, it was found that unless tourist vehicles with all-India permits were exempted from tax by other States than their home state the object of sec. 63(7) would be frustrated. TherCfore, the Central Governnient made a request in this behalf to all the State Governments. In pursuance of that. request the ·aovernment of Karnataka exempted tourist vehicles·hoiding permit's under sec. 63(7) from payment of tax, provided the tax payable to the State in which the vehicle was registered had already been paid and provided furthei: that similar exemption_ from payment oftax was granted in respect of similar veliicles to the State of Karnataka.

Many transpoz:t operators from big and. comparatively prosperous States floeked to some small and comparatively poor and less advanced States arid after getting all-India permits from them started . plying th_eir vehicles in other States like Karnataka and Maharas~tra inore or less as ·regular stage carriages. Having found that the. trarisport operators were misusing the a-11· India permits and indulging in certain malpractices, the GoVernment of Karnataka withdrew the exemption from payment of taX granted earlier. The petitioners, who were transport operators holdiqg all-India permits, challenged the withdrawal cf exen1ption as unconstitutional and bad in law. The peti· . ' tioners Submitted that sec. 63(7) of the Motor Vehicles Act was designed to vromote all Iμdia and ioter-state tourist traffic and thus to advance trade, B. A. JAYAl\AM V. UNION 625 commerce and inter-course throughout the terrHory of India. By withdrawing the exemption. the object of sec.

63(7) was defeated and therefor. e, . freedom of trade, Cominerce and inter-coi. lrse throughout the territory of India, guaranteed ·by Art. 301 of the Constitution was impaired. / Dismissing the petitions, HELD : By withdrawing the exemption there is no impairment Of the freedoip under Art. 301. [637 BJ ' Taxes of a compensatory and regulatory character are outside the expanse of Art. 301 of the Constitution. Regulatory measures and compensatory taxes far from impeding the free flow of. trade and commerce,-- often promote such free flow of trade and commerce by creating agreeable conditions 3. nd providing appropriate services. All that is necessary to uphold a tax which purports to be or is claimed to be a compensatory tax· is; the existence of specific, identiflabie object behind the levy and a nexus between subject and the object of a levy.

Once the nexus between the levy and service is seen, the levy must be upheld unless the Compensatory cha'racter is shown to be wholly' or partly a mere mockery and in truth a design which is destructive of the freedom of inter-state trade, commerce and inter-course. · [635 C-D, 636 A] ~ International Tourist Corporation v. State of Haryana, [1981] 2 S. C. R. 364. referred to. By virtue of fhe power givCn to them by Entries ·56 or 57 of List II every one of the States has the right to make its own 1egisJation to cQmpensate it for the services, benefits and facilities provided by it for motor vehicles operating within the territory of the. State. Taxes resulting from such legislative activity are by their very nativity and nature, cast and character, regulatory and compensatory and, are therefore, not withiri the· vista of Art. 301, unless the tax is a mere pretext designed to injure tbe freedom of inter-state trade, commerce and inter course.

The nexus between the levy and the service is so p~tent in the case of such taxes that one need say no. more about it. , The Karnataka. Motor Vehicles Taxation Act and the Motor Vehicles Taxation . Acts of other States are without doubt regulatory and compensatory legislation outside the range of Art. 301 of the Constitution. ·[636 B-D] -,Taxes on vehicles ..... suitable for use on roads' is a State legislative subject and it is for the State Legislature to impose a levy and to exempt fr~m , the Ievy. ·Entry 57 of the S_tate List is subject to Entry. 35 of the . Concurrent List and, it is iherefore. open. to t. he Parliament to Jay down the,principleson which taxes may be levied on mCchanically propelled vehicles. But the Parliament while enacting Sec. 63(7) of the Motor Vehicles Act refrained·from indicating any such principles, either expressly or by nece~sary implication.

The State's power to tax India Tourist permits have misused the Tourist Buses by running them as regular stage carriages, competing with theXSRTC buses and other private stage carriages within the. State. As a result of indiscriminate misue of the Vehicles as Stage Carriages-even though the permits were obtained under Section 63 (7) of lhe Central Act for Tourism, the State Government has suffered considerable loss in Revenue.. These· bnses actually made use of the passengers which would have normally gone to the KSRTC buses and other private carriages. The very object of obtaining permits under section 63(7) of the Central Act, which intended to promote tourism has been misued by these operators of the Tourists buses by plying their vehicles regularly as stage· carriages. Most of the permits obtained under Section 63 (7) of the Central Act in the States other than the State of Karnataka are made use of for the purported u·se of running the tourist buses.. ....

but actually the permits were misused to run the tourist . vehicle either as. stage carriages or as contraGt carriages. ". survey made by the Transport Commissioner of Maharashtra revealed' a similar state of affairs. The Transport Commissioner submitted a . report to the Government of Maharashtra, a copy of which has been made available to us. It is stated in the report, "Our estimate is that out of these J300 permits any- C· . thing between 300 to 400 buses are operating in Mahara-. shtra with Bombay as the main centre. Mast of these buses for all practical purposes operate a; stage carriage servi. l:es masquerading as contract carriages. In Maharashtra the ordinary passenger transport by stage carriages and contract carriages has been completely nationalised. The AU India- Tourist Buses on the other hand are e~ploiting the loopholes available in the law and operate point. to point passenger services on routes where the J volume of traffic is heavy viz..

routes like· Bombay- Kolhapur, Bombay Mangalore (Mangalore), Bombay-. Panaji, · Bombay. Belgitum, Bombay-Ahmedabad and E• Bombay-Indore ............................. ,....... :.. :..... ....... ..................... .. .... ... ... ...... ... ........ :.......... {............. .. ............. ······~· ................... ·········. "On 9/! 0th April 1983, the Transport Commissioner had personally visited the Charoti Check Naka which is 'our border check post' bordering Gujarat on the'Bombay Ahmedabad road. From the records of the'check'post he· found that as many as IJ5 All India Tourist Buses are regularly playing on this route:' After' making an analysis of these 115 All llldia Tourist Buses,'he found that 41 permits had been issued by the State' Transport Authority of · M'. anipur. 17 had been issued by State Transport Authority Nagar Haveli, 8 by the State Tran. sport Authority, Meghalaya and 5 by the State Transport Authority Nagaland.

· A large number of All India Tourist Buses operating with their base in Bombay appear to have been issued \ by Manipur Nagaland and . the Union Territory of Dadra Nagar Haveli''. fl. A.. iAYARAM v. UNION (Chinnappa Reddy, J. ) 633 The petitioners, who are transport operators holding all-India permits, deny that any of them was guilty of any malpractice or J11isuse of the permits held by them. But, notwithstanding the petitioners' denial we do not have the slightest doubt that the allegations of misuse and malpractice made in the counter-affidavit, filed on behalf of the Karnataka Government, are generally and substantially correct. Complaints about the abuse·ofthe scheme appear to have been· made 8 to the Central Gov·ernment and the Transport Advisory Council also. . we are also told that the question of meeting the challenge posed by these abuses is receiving the attention ofthe Central Goyernment. The Government of Karnataka, apparently the worst sufferer, reacted sharply.

The concession given to the holders of all India · . permits by way of exempting the all India tourist Vehicles, registered in other States. from p'ayment of the Karnataka Tax, if tax had already been paid in the home State was withdrawn by a notificatfon dated 31st March, 81. It is this notification and the consequences of the notification that are in question in these several Writ Petitions. We are informed· that the State of Andhra Pradesh has also issued a notification similar to that of the State of Karnataka . withdrawing the. exemption which it had granted earlier to vehicles operating on permits issued under sec. 63 (7) and registered in other States. Other states have not withdrawn the exemption previously granted by them to vehicles registered in other. states and operating on permits issued under sec. 63(7).

But as the exemption ·granted by most of them is on a reciprocal basis, 'the withdrawal of exemption by the States of Karnataka and Andhra Pradesh has the effect of making vehicles registered in Karnataka and Andhra Pradesh, immediately subject to payment of tax in every one of those States through which they pass. The collection of tax by the other States is also resisted in these writ petitions. The power of the State Legis- lature to levy the particuar tax, the power of the State Government to grant exemption from payment oftax ·under the authority delegated to it by the Legislature a. nd the implied power of the State Govern• ment to withdraw an exemption granted by it are conceded. Yet number of ingenious . and platitudinous submissions have been though we must confess that many of them have only to be stated to be rejected.

Some of them served no better purpose than occupy the time of the Court, time which has become dear and precious because of tl;te mountainous arrears of cases awaiting the decision of this Court. We do wish it is remembered that the Supreme Court is the . highest Court in the land and its time is not to be frittered away in listening to hopeless arguments advanced just for the, sake of argument. The time has come for judges and lawyers to make a determined effort to chop certain arguments and prune certain others- -.. ( judgments following suit. In fairness to the counsel who appeared in the cases before us, we must say that everyone was brief and none over -stated his case. It was submitted that see. 63 (7) of the Motor Vehicles Act was designed to promote All India and inter-state tour ist traffic and thus to advance trade, Co~merce and inter-course throughout the territory of India. It was implicit in sec.

63 (7) that the States would exercise their power of taxation in such a way as not to impose an additional burden on tourist vehicles registered in other states -and plying on permits issued under sec. 63(7), over and above the tax paid in the home State. In other words, it was implicit that all the States would exempt from taxation tourist vehicles registered in other State's and plying on permits issued under sec. 67 (7) was withdrawing the exemption, the object of sec. 63 (7) was defeated and'therefore, freedom of trade, Commerce and inter-course throughout the territory of India, guaranteed by Art. 301 of the Constitution 1 was impaired. The -withdrawal of exemption was, therefore, unconstitutional and bad in law. The transport _operators of Karnataka who were not. directly hit by the withdrawal of the. exemption by the Government of Karnataka advanced a subtler argument and sugg,sted that they were in fact the worst hit.

The argument was that though despite the withdrawal of the exemption, they were paying no more tax to the State of Karnataka than they were paying hitherto, the withdrawal of the exemption had created a , situation which denied them the benefit of exemption granted by the Governments of all others States, since those exemptions were reciprocal in condi:ion. The situation indirectly created -by the action of the Government of Karnataka imposed an intolerable burden on them by compelling them to pay taxes in every State other th~n , Karnataka through which their vehicles passed and thus virtually denied to them the freedom of trade, Commerce and inter-course throughout the territory of India guaranteed By Art. 30I of the Constitution. We are wholly -unable to . see any force in these sub\llissions. The learned counsel for the parties on either side _·invited our atten· • B. A. JAYARAM v. UNION (Chinnappa Reddy, J. ) 635. tion to the Automobile Transport (Rajasthan) Ltd. v.

The State of Rajasthan & Ors. (1), Boiani· Ores Ltd. v.. State ofOrissa('), G. K. 9 Krishnan v. State of Tamil Nadu( ) International Tourist. Corporation v. State·ofHaryana(') and Malwa Bus Service Pvt. Ltd. v. State of 6 Punjab( ) to explain the extent and the limits of the freedom of trade, commerce and intercourse throughout the. territo,ry ofIndia proclaimed by Art. 301 of the Constitution. Wedo not propose to. refer to any of these cases since the law appears to us to be well-settled : Taxes of a compen~atory and regulatory character are outside the expanse of Art. 301 of the Constitution. · Regulatory measures and compensatory taxes far . from impeding the free flow of trade and commerce, often promote suchJree flow of trade and commerce by creating agreeable conditions and providing appropriate services.

All that is necessary to uphold a tax which purports to be or is claim· ed to be a compensatory tax is "the existence of a specific, identifiable object behind the ·levy and a nexus between subject and the object of a levy". (") "If the object behind the levy is identifiable and if there is sufficient nexus between the subject and the object of the levy, it is not necessary that the money realised by the levy should be put into a separate fund or that the levy should be proportionate to the expenditure. There can be no bar to an inter-mingling of the' revenue realised from regulatory and compensatory taxes and from the taxes of a general nature nor can there be any objection to more or less expenditure being incurred on the object behind the compensatory and regulatory levy than the realisation from the levy". (") It should be patent that "it would ordinarily.

be well·nlgh impossible to identify and measure with any exactitude the benefits received and the expenditure incurred and levy the tax according to the benefits received and the expenditure incurred". Nor is the court to interpose itself by assuming the role of a cost accountant and attempt to balance meticulously the cost of the services, benefits and facilities against the realisation from the levy. And, if the levy as a whole is justified by the need generally, it does not have to be separately justified with reference to every group of persons claiming . (1) [1963) l S. C. R. 491. (2) [1975) 2 S. C. R. 138. (3) [1975) 2 S. C. R. 715. (4) [1981] 3 S. C. R. 364. (5) A. I. R. 1983 S. C. 637. (6) [19811 2 S,C. R. 364, \ - (1983) 3 S. C. R. to require and receive less service than others. Once the nexus A.

between the levy and service is seen, the hivy must be upheld unless the compensatory character is shown to be wholly or partly, a mere mockery and in truth a design which is destructive of the freedom of inter-state trade, commerce and inter-course. · By vi~tue of the power given·to them by Entries 56 and 57 of IJst II every one of the States has the right to make its own· legislation to compensate it for the services, benefits and facilities provided by it for motor vehicles operating \vithfo. the territory ·of the State. · Taxes resulting from such legislative activity are by their very nativity and nature, cast and character, regulatory and compensatory and, are therefore, not within the vista of Art. 301, unless, as we said, the tax is a mere pretext designed to injure the freedom. of interstate trade, commerce and intercoune.. The nexus between the levy and the service is so patent in the case of such taxes that we need say no more about it.

The Karnataka Motor Vehicles Taxation Act and ·the Motor Vehicles Taxation Acts of other States are without doubt regulatory and ·compensatory legislations outside the range of Art. 301 of the Constitution. . . It is true that the object of enacting sec. 63 (7) by the Parliament was to promote all-India and inter-state tourist traffic. But 'taxes on vehicles ....... ,..... suitable for use on roads' is a State legislative subject and it is for the State Legislature to impose a levy and to exempt from the levy.. True again, Entry 57 ofthe State List is subject to Entry 35 of the Concurrent List and, as explained by us at the outset, it is therefore open to the Parliament to lay down the • principles on which taxes may be levied on mechanically propelled vehicles. · But the Parliament while enacting S. 63 (7) of the Motor Vehicles Act refrained from indicating any suc\l. principles, either express! )!. or by necessuy implication.

The State's power to tax and to exempt was left uninhibited. It may be that a a State legislation, plenary or subordinate, which exempts "non-home-state tourist vehicles" from tax would be advancing the object of sec. 63 (7) of the Motor Vehicles Act and accelerating inter-state trade, commerce and intercourse. But merely by Parliament legisiating sec. 63 (7), the State Legislatures are not obliged to fall in 1ine and to so arrange their tax laws as to advance the object of sec. 63 (7), be it ever so desirable. The. State is obliged neither to grant an .. exemption nor to perpetuate an exemption once granted. , Tl;tere is no question of impairing the freedom under Art. 301 by refusing to B. A. JAYARAM v UNION (Chirmappa Reddy, J. ) _637 exempt or by withdrawing an exemption. Not to pat on the back is not to stab in the back. True, straw by straw, the burden of taxa-. tion on tourist vehicles increases as each 'State adds its bit of straw, but, then, each State is concerned with its.

coffers and has the right to tax vehicles using its· roads; and, the contribution which a tourist' carriage is required to make to its treasury 'is no more than what other contract carriages are required to make. We are firinly of the view that there is no impairment. of the freedom under Art. 301. The special submission on behalf of the 'Karn'ataka Operators' that th'e withdrawal by the Karnataka Government of the exemption granted ·to 'outsiders' has resulted in the Karnataka Operators having to pay tax in every State in the country and, therefore, the withdrawal has impaired th~ freedom under Art. 301 is but the same general sub- · mission, seen through gla'sses of a difftrent tint. It does not even have the merit that the withdrawal . of the Karnataka exemption affects them directly. The submission is rejected. / One of the sumbissions niade to us was that if there was misuse of the all-India permits, the remedy was to punish the.

wrong doers by taking appropriate action against the wrong-doers by cancelling the permit, if necessary, but not to withdraw the benefit of the exemption altogether, even in the case of honest operators. 'l:hat is · a matter for the Legislature and its delegate to decide but not for the court. If the situation had becom~ so malignant that 'drastic action was called for, it is not for the court to substitute its judgment to say that the object could perhaps be well achieved by adopting a less drastic procedure. It was submitted that all-India tourist vehicles do not use the roads of the State as much as the contract carriages operating in the State and therefo~e, the State was wrong in. treating them alike. It was said that treatment of unequals as equals had resulted in an infringment of Art. ·14 of the Constitution. It was also submitted that vehicles holding inter-State permits under inter-state agreements were still exempt from tax and thfa was also a violation of Art.

14 of the Constitution. Another contention raised was that there was some sort of promissory estoppel which prevented the State Government from withdrawing the exemption. Yet another argument was that the withdrawal of the exemption was arbitrary and therefore, judicial review was necessary. These and other like submissions which were inade to us, in our·opinion, fall in the category of arguments which, we mentioned earlier, have only to be stated to be rejected. The A answers are self-evident. The submissions are totally without merit and we see no justification for increasing the length of our judgment by further futile discussion. All the Writ petitions are dismissed · 'with costs and the interim orders are vacated. B' H. S. K. · Petitions dismissed. t / +