JUDGMENT 1. - These are two writ petitions involving similar questions of law and at the request of learned counsel for respective parties both the writ petitions are being decided by this common order. 2. The writ petition No. 1065/2003 is filed by Stone Crusher Association and another writ petition bearing No. 7066/2002 is filed by Rajasthan Half Body Truck Union & Anr. 3. The facts of the writ petition No. 1065/2003 are taken as leading case. 4. In the writ petition No. 1065/2003 the petitioner is an Association of stone crushers working at Jaipur and they are involved in the manufacture of grit by crushing stone in their crushing plants. The association is duly registered under the Trade Unions Act, 1926 and Shri Madan Gopal Goyal is the President of the Association and has been duly authorised to file the present writ petition. 5. In the aforesaid writ petition the petitioner is challenging the notification which are issued under Section 9(1), Rajasthan Sales Tax Act, 1994 by which the State has fixed the rate of tax payable in respect of certain gods mentioned thereunder on the basis of weight. 6. Mr. K.K. Sharma and Mr. Devendra Kumar submits that Section 4 of the Act is the charging Section which provides that the tax payable by a dealer under the Act, shall be at single point in the series of sales by successive dealers, as may be prescribed and shall be at such rates not exceeding fifty per cent on the taxable turnover, as may be notified by the State Government in the Official Gazette. 7. Learned counsel for the petitioner further submits that the State Government has issued a notification under Section 4 by which it has fixed the rate of tax for various items under the powers conferred to it by Section 4. 8. He referred notifications dated 22.3.2002, 29.3.2001 and 30.3.2000. In all the aforesaid notifications the State Government has provided the rate of tax on minerals excluding marble, granite and dolomite was 12%. 9. By way of referring the aforesaid notifications the petitioner wants to make out the case that from the very beginning the rate of tax providing for minerals was also on percentage basis. 10. The petitioner has challenged the validity of the notifications dated 27.9.2002 and 15.1.2003. 9. By way of referring the aforesaid notifications the petitioner wants to make out the case that from the very beginning the rate of tax providing for minerals was also on percentage basis. 10. The petitioner has challenged the validity of the notifications dated 27.9.2002 and 15.1.2003. The notification dated 27.9.2002 has been issued by the respondents while exercising power of sub-section (1) Section 9 Rajasthan Sales Tax Act, 1994 in prescribing the rate of tax Patta and on the same day another notification was also issued by the respondents in exercising the power under Section 15, Rajasthan Sales tax Act, 1994 which provides the exemption fee per truck. More particularly the petitioner challenged the notification dated 27.9.2002 issued under Section 15 Rajasthan Sales Tax Act, 1994 on the ground that the exemption which was granted under this notification is contrary to the provisions of Motor Vehicles Act as the maximum weight which could be transported has been fixed under the provisions of Motor Vehicles Act, 1988 and the Rules made thereunder as 9 tons. It is not permissible to carry any commodity in excess of the aforesaid limit. But by way of notification dated 27.9.2002, which has been issued under Section 15 of the Act, the State Government has exempted from payment of tax individual goods under sub-section (1) of Section 4 on the condition of payment of exemption fees, which has been fixed by the State Government. Meaning thereby that if a person pays exemption fee per truck as notified by notification, he would not be liable to pay any tax and he could transport as much commodity by weight as he may like even beyond the permissible capacity. 11. Learned counsel for the petitioner referred the provisions of sub-section (1) of Section 9, which reads as under: "Notwithstanding anything contained in Sections 3 and 4, the State Government may fix the amount of tax payable on the sale or purchase of certain commodities on the basis of weight, volume or measurement, as may be notified in the Official Gazette." 12. He also referred Sections 3, 4 and 15 which reads as under: "3. Incidence of tax. He also referred Sections 3, 4 and 15 which reads as under: "3. Incidence of tax. (1) Subject to the provisions of this Act if the turnover of a dealer in any year exceeds rupees fifty thousand in case he is an importer or a manufacturer and Rupees one lac in other case, he shall be liable to get registration under the Act, and shall be liable to pay tax from the date from which the certificate of registration is granted to him. (2) Notwithstanding anything contained in sub-section (1), a dealer (a) dealing exclusively in generally exempted goods shall not be required to get registered. (b) dealing exclusively in tax paid goods, or partly in tax paid goods and partly in generally exempted goods, shall be required to get registered if his turnover in a year exceeds rupees fifteen lakhs. 4. Levy of tax and its rate. (1) Subject to the other provisions of this Act and the provisions of the Central Sales Tax Act, 1956 (Central Act 74 of 1956), the tax payable by a dealer under this Act, shall be at single point in the series of sales by successive dealers, as may be prescribed and shall be levied at such rates not exceeding fifty per cent on the taxable turnover, as may be notified by the State Government in the Official Gazette. (2) Where any goods are sold packed in some material, whether charged for separately or not, notwithstanding anything contained in sub-section (1), the tax liability of and the rate of tax on the packing material shall be according to the tax liability of and the rate of tax on the goods packed therein. 15. Exemption of tax. Notwithstanding anything contained in this Act, where the State Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette, exempt fully or partially, whether prospectively or retrospectively from tax the sale or purchase of any goods or class of goods or any person or class of persons; without any condition or with such condition as may be specified in the notification. 13. 13. By referring the provisions of aforesaid Sections learned counsel for the petitioner try to make out their case that the action of the State Government in issuing the notification dated 27.9.2002 and 15.1.2003 is absolutely illegal and arbitrary apart from being ultra vires the provisions of the Rajasthan Sales Tax Act, 1994 and Article 265 of the Constitution. 14. Section 9 of the Act authorises the State Government to fix the amount of tax payable on the basis of weight, volume or measurement in respect of such commodities, which have been notified in the Official Gazette. It is also given out that the alleged notification did not cover grit which is a product manufactured by crushing masonry stone in a crusher plant to the required size and dimensions. But by way of notifications dated 27.9.2002 and 15.1.2003 the State Government has included the grit for the purposes of tax on the basis of weight. 15. He particularly mentioned that the notification dated 27.9.2002 did not provide any tax on the commodity masonry stone or building stone to be charged on the basis of weight and it was only by notification dated 15.1.2003 that building stone has been added. It is further submitted that building stone and masonry stone are two different items. Even by notification dated 15.1.2003 the State Government has not included masonry stone for the purposes of charging tax by weight, and therefore, the State is not entitled to enforce the payment of tax on masonry stone on the basis of weight and the same should be continued to be charged on the basis of rate prescribed under Section 4 of the Act. Similarly, in respect of building stone also, the notification dated 27.9.2002 did not provide for tax to be charged on the basis of weight and building stone has been added for the first time vide notification dated 15.1.2003. 16. The main thrust to challenge the notification which has been prescribed the tax on the basis of weight and measures as already stated herein above, both the learned counsels for the petitioner submits that the fixing the rate on the basis of weight and measure is contrary to the provisions of Motor Vehicles Act. 16. The main thrust to challenge the notification which has been prescribed the tax on the basis of weight and measures as already stated herein above, both the learned counsels for the petitioner submits that the fixing the rate on the basis of weight and measure is contrary to the provisions of Motor Vehicles Act. After referring Section 4 and Section 9 learned counsel for the petitioner submits that the notification, which are issued and under challenge are contrary to the spirit of the provisions of the aforesaid Sections. 17. Learned counsel for the petitioner Mr. Devendra Kumar in support of his submissions placed reliance on the judgments Govind Saran Ganga Saran v. Commissioner of Sales Tax & ors. reported in 1985 (60) STC 1 , Maharajah of Pithapuram v. Commissioner of Income Tax, Madras, AIR 1945 Privy Council 89 , Chhatturam Horilram Ltd. v. Commissioner of Income Tax, Bihar and Orissa, AIR 1955 Supreme Court 619 , Commissioner of Sales Tax, U.P. v. Agra Belting Works, (2001) 121 STC 396 , Sir Shadi Lal Enterprises Ltd. v. Commissioner of Trade Tax, U.P. 1998 (108) STC 399 , Sri Kamla Dal Mills Vs. State of U.P. & anr. 1966 (28) STC 204 . 18. Per contra learned Advocate General submits that the Stone Crusher Association has filed the writ petition in representative capacity on behalf of the industries, which are said to be small scale industries. In the affidavit submitted in support of the writ petition it has not been stated by the deponent that he has authorisation by all the members of association to submit the present writ petition. 19. Learned Advocate General further submits that the writ petitioner has not submitted any document to demonstrate the number of its members, their names and addresses as also resolution by the members deciding to submit the present writ petition. Therefore, petitioner is not duly authorised to file the present writ petition. 20. He further submits that the petitioner-association has challenged different notifications issued by the State Government under Section 9(1) of Rajasthan Sales Tax Act, 1994. The details of notifications issued from time to time are given as under : S. No. Date of Notification Annex. No. 1. 27.9.2002 Anex. 2 2. 27.9.2002 Anex. 3 3. 15.1.2003 Anex. 4 4. 15.1.2003 Anex. 5 21. The details of notifications issued from time to time are given as under : S. No. Date of Notification Annex. No. 1. 27.9.2002 Anex. 2 2. 27.9.2002 Anex. 3 3. 15.1.2003 Anex. 4 4. 15.1.2003 Anex. 5 21. All these notifications have been challenged on the ground that they are ultra vires of the provisions of the Act of 1994 and Article 265 of the Constitution of India. Learned Advocate General referred Article 265 of Constitution, Section 4 and Section 9. After referring the aforesaid provisions he submits that Section 9 of the Act of 1994 sufficiently established that Section 9 is independent of Section 4 and it contains a 'non-obstente clause'. The provisions contained in Section 9 are not curtailed or subjected to the provisions contained in Section 4 of the Act of 1994. By referring Section 4 Mr. Agrawal, AG submits that Section 4(1) of the Act of 1994 is a general provision and it provides that tax shall be at single point if there are series of sales and tax leviable shall not exceed 50% of the taxable turnover. To this effect the State Government has issued certain notifications details of which are given as under : "(1) Notification dated 22.3.2002 : Item No.121-All minerals excluding marble, granite & dolomite @ 12%, Item No. 136-Building minerals except marble, granite & cement; building stone, bricks and lime also @ 12% (2) Notification dated 29.3.2001 : Item No. 119, 134-rate is 12% for mineral as above (3) Notification dated 30.3.2000 : Item No 112 rate of tax on mineral excluding marble, granite and dolomite was 12%, Item No. 128 rate of tax on building material except marble, granite and cement; building stones, bricks & lime is also @ 12%." 22. With regard to the submissions made on behalf of the petitioner that grit is not included in the notification, learned Advocate General submits that though the 'grit' was not required to be included in the aforesaid list particularly for the reason that 'girt' is a type of 'gitty' (ballast). As a matter of fact, at when a stone is crushed, it is converted into 'gitty'. 'Grit' is a form of 'gitty (ballast). The 'grit' is a smaller portion of the stone, 'gitty' is a wider item which includes 'grit'. To this effect the Addl. As a matter of fact, at when a stone is crushed, it is converted into 'gitty'. 'Grit' is a form of 'gitty (ballast). The 'grit' is a smaller portion of the stone, 'gitty' is a wider item which includes 'grit'. To this effect the Addl. Commissioner, Government of Rajasthan issued clarification order in this regard on 9.10.2002 wherein it has been clarified that the 'grit' is wider term inclusive of hand-broken and crusher broken stones of varying sizes mentioned in chapter-2. The order dated 9.10.2002 is also placed along with the reply as Annex.R/1. Therefore, the 'grit' is subsequently added in the notification dated 15.1.2003 and nothing wrong has been committed. 23. Learned Advocate General also referred the definition of 'taxable turnover' as defined under Section 2(42), which reads as under : 'Taxable turnover refers to the aggregate amount of the proceeds of sale of goods which comes after deducting proceeds from items which are not taxable or which are exempted or a sale which is subsequent sale to the sale by dealer as provided under the definition." 24. By referring these provisions he has submitted that the aforesaid Sections 9 and 4 are not being violated by way of issuing the notification, which are under challenge in this writ petition. 25. So far as the notifications, which are said to be in contravention of the provisions contained in the Motor Vehicles Act, 1988, learned Advocate General submits that to enforce the provisions of the Act of 1988 separate machinery is provided under law. If a motor vehicle cannot carry weight more than 9 tons, it may be a violation of the Act of 1988 for which appropriate lawful action can be taken under the M.V. Act, 1988 but it does not mean that a person will never carry less or more than 9 tons weight. Since a person can carry more or less than the prescribed weight under the M.V. Act, 1988, therefore, tax on the actual weight is the appropriate yardstick for levying sales tax. 26. Pursuant to the direction issued by this Court the State has also filed additional affidavit to show the rate of the items permissible on the goods and chart has been given, which is as under: Bill No. Name of the Commodity Quantity Weight Value Price Per ton Tax per ton under notification dated 15.1.2003. 26. Pursuant to the direction issued by this Court the State has also filed additional affidavit to show the rate of the items permissible on the goods and chart has been given, which is as under: Bill No. Name of the Commodity Quantity Weight Value Price Per ton Tax per ton under notification dated 15.1.2003. 1 2 3 4 5 6 7 4378/ Stone 300 C. ft. 12 ton Rs. Rs. Rs. 20 11.7.2003 grit 1200 100 2654/ -do- -do- -do- Rs. Rs. -do- 22.9.2003 1350 112.50 2653 -do- -do- -do- -do- -do- -do- 2804/ Ballast 250 C. ft. 10 ton Rs. Rs. 75 Rs. 12.50 11.7.2003 750 390/ -do- 300 C.Ft. 12 ton Rs. -do- -do- 11.7.2003 900 41142/ Stone -do- -do- Rs. Rs. 30 Rs. 12 14.10.2003 360 50770/ -do- -do- -do- -do- -do- -do- 14.9.2003 50771/ -do-- -do- -do- -do- -do- 14.9.2003 27. By giving the chart learned Advocate General demonstrate that the rate fixed by the notification dated 15.1.2003 cannot be said to be contrary to the provisions of law. 28. Heard rival submissions of the respective parties. To resolve the aforesaid controversy first I like to deal with the provisions of Rajasthan Sales Tax Act, 1994. In Section 2 sub-section 39 the sale price is defined. "Sale price" means the amount paid or payable to a dealer as consideration for the sale less any sum allowed by way of any kind of discount or rebate according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof. As per Section 2 sub-section 42 taxable turnover' is defined. The 'taxable turnover' means that part of turnover which remains after deducting therefrom the aggregate amount of the proceeds of sale of goods on which no tax is leviable under this Act. As per Section 2 sub-section 44 turnover' means the aggregate amount received or receivable by a dealer for sales as referred to in clause (38) including the purchase price of the goods which are subject to purchase tax under Section 11 of the Act. 29. Two notifications are under challenge. The notification dated 27.9.2002 is issued under sub-section (1) of Section 9 of Rajasthan Sales Tax Act, 1994 and another under Section 15, Rajasthan Sales Tax Act, 1994. 30. 29. Two notifications are under challenge. The notification dated 27.9.2002 is issued under sub-section (1) of Section 9 of Rajasthan Sales Tax Act, 1994 and another under Section 15, Rajasthan Sales Tax Act, 1994. 30. I like to deal with the first notification dated 27.9.2002 issued under sub-section (1) Section 9 by which the State has fixed the rate of tax per tonne Sub-section (1) of Section 9 provides the power to the State to levy of tax by weight, volume or measurement on certain commodities. Notwithstanding anything contained in Sections 3 and 4, the State Government may fix the amount of tax payable on the sale or purchase of certain commodities on the basis of weight, volume or measurement, as may be notified in the Official Gazette meaning thereby the Government has power to issue notification under Section 9, which shall not be in contravention of Sections 3 and 4. 31. Section 3 being incidence of tax reads as under : (1) Subject to the provisions of this Act if the turnover of a dealer in any year exceeds Rupees fifty thousand in case he is an importer or a manufacturer and Rupees one lac in other case, he shall be liable to get registration under the Act, and shall be liable to pay tax from the date from which the certificate of registration is granted to him. (2) Notwithstanding anything contained in sub-section (1), a dealer (a) dealing exclusively in generally exempted goods, shall not be required to get registered, (b) dealing exclusively in tax paid goods, or partly in tax paid goods and partly in generally exempted goods, shall be required to get registered if his turnover in a year exceeds rupees fifteen lakhs. 32. Section 4 deals with the levy of tax and its rate. As per sub-section (1) of Section 4 the tax payable by a dealer under this Act, shall be at single point in the series of sales by successive dealers, as may be prescribed and shall be levied at such rates not exceeding fifty per cent on the taxable turnover, as may be notified by the State Government in the Official Gazette. While fixing the rate on levying tax by weight, volume or measurement should not exceed the limit prescribed under sub-section (1) of Section 4 more than 50% or as may be notified by the State Government in the official gaxtte. While fixing the rate on levying tax by weight, volume or measurement should not exceed the limit prescribed under sub-section (1) of Section 4 more than 50% or as may be notified by the State Government in the official gaxtte. 33. Learned counsel for both the parties placed reliance on the previous notification issued under sub-section (1) of Section 4, which provides 12% of the taxable turnover. 34. Learned counsel for the petitioner are not able to make out their case to show that rate which has been prescribed by the notification dated 27.9.2002 issued under sub-section (1) of Section 9 is beyond the limit prescribed under Section 4 or beyond the limit prescribed by way of notification issued by the Government from time to time. 35. In view of the facts and in view of the observations made herein above, I do not agree with the submissions made on behalf of the petitioner that the notification dated 27.9.2002 issued under sub-section (1) of Section 9 is contrary to the provisions of sub-section (1) of Section 4. 36. With regard to another notification issued on the same day under Section 15, Rajasthan Sales Tax Act, 1994, as per Section 15 of the Act, which is reproduced hereunder the State Government has power to give exemption of tax. Section 15 reads as under : "Notwithstanding anything contained in this Act, where the State Government is of the opinion that it is necessary or expedient in the public interest so to do, it may by notification in the Official Gazette, exempt fully or partially, whether prospectively or retrospectively from tax the sale or purchase of any goods or class of goods or any person or class of persons, without any condition or with such condition as may be specified in the notification. 37. By bare perusal of Section 15 reveals that the State Government by way of notification in the official gazette exempt fully or partially, prospectively or retrospectively from tax the sale or purchase of any goods or class of goods or any person without any condition or with such condition as may be specified in the notification. 38. By way of this notification the State Government has exempted by fixing exemption fee per truck under the different categories as per the list appended along with the notification dated 27.9.2002. 38. By way of this notification the State Government has exempted by fixing exemption fee per truck under the different categories as per the list appended along with the notification dated 27.9.2002. In any case if anybody wants to seek exemption from tax after paying the exemption fee per truck can get the exemption of tax. The aforesaid notification, which has been issued under Section 15 of the Act is optional not compulsory. 39. If the petitioners are aggrieved by this notification to avail the facilities provided under this notification they may pay the tax under the notification, which was issued under sub-section (1) of Section 9 on the basis of weight and measure as per the rate of per truck. 40. Considering the arguments, I also gave thoughtful consideration, made on behalf of the petitioner that this notification issued under Section 15 dated 27.9.2002 is contrary to the provisions of motor vehicles Act, as already discussed herein above, authorities to take the appropriate action in case it is found that the goods, which are carried by the truck are contrary to the provisions of Motor Vehicles Act. On the basis of apprehension this notification cannot be said to be illegal or ultra vires. 41. Subsequent notification dated 15.1.2003 issued by the State under Section 15 only includes certain articles, which were not included in earlier notification. 42. Learned counsel for the petitioner submits that masonry stone is not included in this Act and they are charging the fee on the masonry stone. It is of course that by bare perusal of the notification building stone is included. I am not impressed with the submission that building stone and masonry stone are altogether different. Building stone includes masonry stone. Therefore, the notification dated 15.1.2003 is nothing but addition of certain commodities, which were not included in the notification dated 27.9.2002. 43. Upon perusal of the judgments referred before me passed by the Hon'ble Supreme Court, various High Courts and Privy Council, the judgments, which are referred before me are not applicable to the present controversy. 44. In view of the aforesaid observations, both the writ petitions fail and are herewith dismissed. Consequently, the interim order granted by this Court on 6.8.2003 also stands vacated.Petition dismissed. *******