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1995 DIGILAW 416 (CAL)

State of West Bengal v. Kishore Kumar Mohapatra

1995-11-27

MUKUL GOPAL MUKHERJEE, PRABIR KUMAR SAMANTA

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JUDGMENT The judgment of the Court was as follows :–– Mukherji, J.: The appellant impugn in the present appeal an order dated 15.9.93 passed by a learned Single Judge of our Court in C. O. No. 15546(W) of 1995. By the order impugned the learned Single Judge on an writ application being filed by the respondent, Kishore Kr. Mohapatra directed the appellants to realise the additional tax on Motor Vehicle at the rate of Rs. 6,000/- per annum per bus in lieu of Rs. 746/- per seat per annum in respect of the vehicle belonging to the writ petitioner/respondent pending the hearing of the writ application. 2. It is contended by the appellants that the learned Single Judge has failed to consider that the matter related to the State revenue and restriction on actual amount of Additional Tax would effect badly the State exchequer. It is contended further that imposition of Additional Tax is a source of State revenue to be utilised for the purpose of maintenance and construction of the roads. The basis of the levy as Additional Tax at the prescribed rate is quite reasonable and realisation of actual amount of such Additional Tax ought not to be restrained pending the hearing of the writ application. 3. Mr. Nurul Islam Khan the learned Advocate for the appellants further contended that the learned Trial Judge failed to consider that the State is entitled to make classification amongst the tax payers. The State Government has competence and authority to impose the burden of Additional Tax at the different rates in case of different states with which the State of West Bengal has a reciprocal transport agreement, considering the tax structure, etc. made of plying of the vehicles of other states. The learned Single Judge failed to appreciate that the State Government, in exercise of its powers conferred under the proviso to schedule-I, para 2 of the West Bengal Additional Tax and one time Tax on Motor Vehicle Act, 1989 us it stood amended by the Motor Vehicles (amendment) Act, 1992, decided to fix the rates of Additional Tax vide notification No. 5494-WT dated 22.5.92 in case of Omniouses in respect of which permits have been issued by the State Transport Authority/Regional Transport Authority in the State of Orissa. 4. Mr. 4. Mr. Nurul Islam Khan further submitted that the learned Single Judge failed to appreciate that the Additional Tax could not be imposed at the same rate on the vehicles in respect of which permits have been issued by the State Transport Authority/Regional Transport Authority of different states other than West Bengal under the reciprocal agreement. The learned Single Judge erred in law in passing the order in an arbitrary manner without making any provision to realise the actual amount of Additional Tax from the writ petitioner/respondent but directed the State Government to realise Additional Tax at a very low rate compared to actual rate as applicable. 5. Last but not least, Mr. Nurul Islam Khan learned Advocate for the appellants contended that the learned Trial Judge failed to appreciate that the matter involved realisation of State revenue and in such matters the writ Court should be very slow in passing a restraint order on the State Government in realisation of the State Government Revenue. The Writ Court had no power to remit a part of the State revenue in a writ proceeding and in the event of the failure on the part of the writ petitioner in obtaining ultimate success in the writ application, it would be very much difficult for the State Government to realise its arrear dues. 6. The learned Advocate for the writ petitioner/respondent, however, contended that there could not be any discrimination in between the vehicles which had the registration with the State Transport Authority or Regional Transport Authority of other States which ply in West Bengal and those which had their registration in Orissa. In between such vehicles of different states inter so there could not be any discrimination. If that be so the writ petitioner/respondent had a good case to challenge the imposition of a higher rate of Additional Tax on a reciprocal basis in respect of vehicles which had the registration from STA/RTA in the State of Orissa. 7. It was held in (1) Sarat Ch. Samanta & Others v. State of West Bengal & Others, F.M.A.Y. 1180 of 1994, a Division Bench Judgment decided by the Hon'ble Chief Justice K. C. Agarwal and Subas Chandra Sen, J. that the State is entitled to make classification amongst the tax payers. Unless the classification could be shown as unreasonable, there is no case of interference made out. 8. Unless the classification could be shown as unreasonable, there is no case of interference made out. 8. The discretionary powers of legislature to make classification in laws dealing with taxation matters is much wider than other laws. The Courts have recognised the inherent complexity of fiscal adjustment of diverse elements and in that view of the matter, has permitted a larger discretion to the legislature in the matter of classification, so long as it adheres to the fundamental principles underlying the said doctrine. The power of legislature to classify is of wide amplitude and flexibility so that it can adjust the system of taxation in all proper and reasonable ways. It is true that the power of taxation cannot transcend the fundamental rights conferred by Part-III of the constitution. If the aforesaid principles which have been laid down by the Supreme Court in a number of cases are kept in view, there is no difficulty in the present case. The principle has also been upheld in the (2) State of Maharastra and Others v. Madhukar Palkrishna Baidya and Others reported in AIR 1988 SC 2062 . 9. The learned Advocate for the writ petitioner/respondent contended inter alia that it has now been decided that in the case of Inter-State permits issued by the RTA/STA of Bihar/Assam/Orissa such Additional Tax is to be collected at the rate of Rs 6,000/- only per annum or 1/52nd part thereof for every seat as the case may be per Omnibus during the validity of the permit in the State until further orders. It is contended that from the State Government notification it is absolutely clear that the vehicles which are plying under Inter-State agreement with the State of Orissa have to pay Additional Tax in terms of the notification being No. 5494-WT dated 22.5.92 whereas vehicles plying under the Inter-State agreement with the State of Bihar and Assam are required to pay Additional Tax in terms of the notification No. 4936-WT dated 11.5.92 which is equivalent to the amount that are being paid by the vehicles which are plying in the Inter-State route in which the permits have been granted by the Transport Authorities in West Bengal. 10. 10. It was contended by the writ petitioner-respondent that the vehicles which are plying by virtue of Inter State agreement with the State of Bihar, Assam and Orissa belong to the same class and accordingly the authorities cannot discriminate as regards to the collection of Additional Tax in respect of the said vehicles in which the permit granting authorities are the State Transport Authorities other than the Transport Authorities in West Bengal. Accordingly the impugned imposition of Additional Tax by virtue of notification No. 5494-WT dated 22.5.92 which is applicable in respect of Inter-State vehicles which have the registration of STA/RTA of Orissa and are plying in West Bengal seems to be violative of Article 14 of the Constitution of India. In the original Act of 1989 the payment of Additional Tax in respect of the vehicles which plying in the Inter-State route under Inter-State permits, either permanent or temporary issued by RTA/STA of States other than West Bengal, the payment of Additional Tax was Rs. 5,000/- per annum. In the Amendment Ordinance of 1991 the amount has been increased to Rs. 1,000/- per seat per annum and under the Amendment Act of 1992 the amount has been increased to Rs. 2,000/- per seat per annum. There was thus no classification between the permit holders of Orissa, Bihar and Assam. However, by virtue of the aforesaid two notifications an artificial distinction has been made between the permit holders of Orissa on the one hand and the permit holders of Bihar and Assam on the other which has no rational consideration and that apart the classification amongst the operators of different states did not have any reasonable basis whatsoever. Accordingly the imposition of Additional Tax upon the operators of the State of Orissa seems to be in complete violation of Article 14 and Article 19(1) (g) of the Constitution of India. 11. Accordingly the imposition of Additional Tax upon the operators of the State of Orissa seems to be in complete violation of Article 14 and Article 19(1) (g) of the Constitution of India. 11. The learned Advocate for the writ petitioner-respondent further submitted that no classification could be made between the permit holders in the same route in question in which the permit had been granted by the Transport Authority in the State of West Bengal and by the various Transport Authorities other than the Transport Authorities of the State of West Bengal by virtue of an Inter-State agreement but in this case the discriminatory attitude is manifest enough from the State Authorities taking a different attitude by way of reciprocal agreement in respect of vehicles registered from Orissa plying in the State of West Bengal in comparison to the vehicles registered from Bihar/Assam which ply in the State of West Bengal. It is contended that this attitude on the part of the respondent authorities is against the provisions of the right to equality as conferred by the Constitution. 12. Giving the matter our anxious consideration, we find that Orissa and West Bengal have a reciprocal arrangement in between those states and a vehicle registered in West Bengal plying in Orissa has to pay the same quantum of burden of Additional Motor Vehicles Tax while plying in Orissa. In that view of the matter by virtue of the reciprocal arrangement in between the two States and a parity having been maintained in between the two States as regard West Bengal Vehicles plying in Orissa and Orissa Vehicles plying in West Bengal. We cannot prima facie find any justifiable distinction in so far as vehicles registered in Bihar and Assam plying in West Bengal and West Bengal Vehicles plying in Bihar and Assam. In matters of realisation of State revenue the writ Court should be very much reluctant to pass an injunction order inasmuch as it might be very much difficult for the State Government to realise the arrears of additional revenue from the transport operators at a future date. The Hon'ble Supreme Court time again has struck a warning note on the writ Courts not to pass injunction orders in a casual manner. The Hon'ble Supreme Court time again has struck a warning note on the writ Courts not to pass injunction orders in a casual manner. In the facts and circumstances of the present case we would direct an expeditious hearing of the writ application by the Trial Judge after setting aside the impugned order regarding payment of Additional Tax at a reduced rate and direct the writ petitioner/respondent to go paying Additional Motor Vehicles Tax at a scheduled rate till the disposal of the writ application. In case it is found at a final hearing that the State Government has no authority or entitlement to impose Additional Motor Vehicles Tax in respect of such Motor Vehicles having reciprocal arrangement with the State of Orissa that is in respect of vehicles registered with STA/RTA of Orissa plying in West Bengal, the amount in excess so realised by the State of West Bengal would be liable to be reimbursed by the State of West Bengal to the writ petitioner-respondent. The order impugned relating to the direction as passed by the learned Single Judge in the shape of a direction to the State Government to realize Additional Tax at the rate of Rs. 6,000/- per annum per bus instead of Rs. 746/- per seat per annum stands set aside and the writ petitioner-respondent is directed on the other hand during the pendency of the writ application to go on paying at the rate as imposed by the State of West Bengal in accordance with law. In the result the appeal stands allowed and the application for stay is disposed of along with the appeal in the manner as directed hereinbefore. There will be no order as to costs. Samanta, J.: I agree.