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2003 DIGILAW 248 (HP)

BEENA DEVI v. STATE OF H. P.

2003-08-26

R.L.KHURANA, V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, CJ.—Without challenging the vires, or the legality of Notification dated 16.9.1989, the petitioners have prayed for a mandamus directing the respondents to pay them an amount of Rs. 50,000/- each by way of ex-gratia payment as per the Scheme known as the "Payment of Ex-gratia Grant to the Passengers Scheme" as framed under Section 3-A of the H.P. Passengers and Goods Taxation Act, 1955. 2. In the H.P. Passengers and Goods Taxation Act, 1955 (1955 Act, for short) Section 3-A was introduced vide H.P. Passengers and Goods Taxation (Amendment) Ordinance, 1977. As per the newly introduced Section 3-A, a further levy, in addition to the passenger tax leviable under Section 3 of the 1955 Act, was imposed as being payable to the State Government by way of a surcharge on the tax as payable under Section 3 (supra) by every passenger carried by a Stage Carriage or a Contract Carriage for each journey at the rate specified in Section 3-A itself, for the purpose of payment of ex-gratia grant to a passenger under the Scheme to be prepared and notified by the State Government in the official Gazette. It is pursuant to the aforesaid mandate contained in Section 3-A (supra) that the aforesaid Scheme was prepared by the State Government. Para 2 of the Scheme created an obligation upon the Government to cover the risk of ex-gratia payment as laid down in the schedule appended to the scheme. Para 2 for ready reference is reproduced hereinbelow:— "The Government shall cover the risk to the ex-gratia payment as laid down in the Schedule for death or disablement of the bona fide passenger travelling in stage carriage or contract carriage registered and/or licensed in the State of Himachal Pradesh to carry passengers for hire or reward and whose originating or destination point is in the State of Himachal Pradesh, and who have paid the fare, passenger tax and insurance surcharge and on whose behalf the said payments have been made and who are covered under the Scheme for the victims if; the accidents and arising out of and directly or solely from the accidents of the stage carriage or contract carriage as hereinabove mentioned are being plied to carry passengers for hire or reward. All bona fide passengers travelling in the stage carriage or contract carriage as hereinabove mentioned and whose destination or staring point fall within the State of Himachal Pradesh shall be entitled to the ex-gratia payment for death or disablement caused in an accident within the territory of Himachal Pradesh and as laid down in the Schedule." 3. Section 10 of 1955 Act permits the State Government to exempt any person or class of persons from the operation of any provision of 1955 Act. Apparently, in exercise of this power, Notification dated 16.9.1989 was issued by the State Government whereby the owners of taxis and tourist cars were exempted from the operation or purview of Section 3-A (supra) in public interest. The effect of exempting the owners of taxis and tourist cars from the operation of Section 3-A (supra) undoubtedly was to take these vehicles out of the ambit and purview of Section 3-A and hence corresponding liability of paying the surcharge as was levied under Section 3-A, (supra) and resultantly and of course inevitably, the passengers carried in these vehicles were also deprived of the benefit of ex-gratia payment. 4. Since the petitioners have not challenged the vires of the Notification dated 16.9.1989, we may not necessarily have to go into the legality of that Notification but suffice it to say that a bare reading of para 2 of the Scheme clearly suggests to us that only such passengers would be entitled to be covered the risk of ex-gratia payment who have paid the fare, passenger tax and the surcharge in question and on whose behalf the said three elements of payment, namely, the fare, the passenger tax and surcharge have been made. Since the exemption Notification dated 16.9.1989 takes the taxi owners out of the purview of Section 3-A (supra), undoubtedly the passengers carried in these taxis are not liable to pay the surcharge and, therefore, because of para 2 of the Scheme, they are thus excluded from their entitlement of receiving any ex-gratia payment. By way of a passing reference, we may, however, without any hesitation also hold that the issuance of the Notification dated 16.9.1989 by the State Government does not seem to be an act contrary to 1955 Act inasmuch as Section 10 of 1955 Act permits the Government to issue such a Notification. By way of a passing reference, we may, however, without any hesitation also hold that the issuance of the Notification dated 16.9.1989 by the State Government does not seem to be an act contrary to 1955 Act inasmuch as Section 10 of 1955 Act permits the Government to issue such a Notification. A reference to the reply filed by the respondents to the writ petition informs us that perhaps the exemption Notification dated 16.9.1989 was issued by the respondent-State because of the fact that under the Rules relating to the payment of passenger tax in terms of Section 3 of 1955 Act, since the taxis and tourist Cars were paying lump sum passenger tax, it was not possible for the Government to collect surcharge from individual passengers travelling in taxis, also because the originating and arriving designations were also uncertain in their cases. 5. For the foregoing reasons, we find no merit in these writ petitions. The writ petitions are dismissed but without any order as to costs. W.P. dismissed.