Judgment :- C.N. Ramachandran Nair, J. The petitioners who are either Associations of vehicle owners or individuals operating contract carriages trucks, mini buses, etc. with National, inter-State or State permits, are challenging notification SRO 584/2003 issued by the Government of Kerala under 5.3(2) of the Kerala Motor Vehicles Taxation Act, 1976 (hereinafter called "the Act") where under rates of motor vehicle tax payable for vehicles covered by Entries 3 to 13 of the Schedule to the Act have been increased by around 50% of the existing tax with effect from 1.7.2003. While all the petitioners challenge the validity of above referred notification on the ground that increase of tax is excessive, arbitrary and impermissible, petitioner in W.P.C.No. 22083 of 2003 is challenging the constitutional validity of 53(2) of the Act on the ground that the authority conferred on Government suffers from excessive delegation or delegation of essential legislative power which is violative of Art. 265 of the Constitution of India. 2. I have heard counsel appearing for the petitioners and Advocate General appearing for the State. It is seen from the impugned notification that except in the case of few types of vehicles, the increase in tax is fifty per cent of the tax existing prior to revision, which is the maximum limit permissible under S.3(2) of the Act. For example, the quarterly tax payable by a contract carriage prior to revision of tax was Rs.680/- per passenger per quarter which is increased to Rs.1,000/- per passenger per quarter. Therefore the annual tax payable for a contract carriage having a seating capacity of 50 has gone up from the pre-revised rate of Rs.1,36,000/- to Rs.2 lakhs. It is pertinent to note that when the Writ Petitions came up for admission, this Court passed interim orders granting stay against recovery of increased tax on the vehicle owners remitting along with pre-revised tax twenty five per cent thereof. In fact some of the contract carriage operators complied with the interim order of this Court by making remittance of tax. In fact some of the contract carriage operators complied with the interim order of this Court by making remittance of tax. Since there was threat of strike by truck operators to pressurise the Government to withdraw the notification even after filing of the Writ Petitions in this Court challenging the notification this Court in the interim orders specifically mentioned that the benefit of stay order should be extended to truck operators only if they withdraw the strike and remit tax in terms of the interim order. However, it is conceded by Government in Court that the truck operators instead of complying with the interim orders proceeded with strike and Government decided not to collect revised tax under the impugned notification for the time being. In fact judgment in the matter was withheld because Government wanted time to take a decision. The Court is now given a communication from Government dated 27.12.2004 to the effect that Govt. has decided not to implement the enhanced rates under the impugned notification. Even though the Government has not revoked the impugned notification it is clear from the above communication produced in court that the Government at least does not propose to implement the enhanced rates under the impugned notification. It is not known whether the Government wants to effect revision of motor vehicle tax if any required by modifying the impugned notification or by issuing altogether fresh notification. In any case, since the Government has communicated it''s decision not to implement the impugned notification, petitioners cannot have any grievance and therefore there is no need to go into the validity of the impugned notification. However, it is, noticed by this Court that on account of indifferent issuance of the notification and later decision not to implement it have caused public injury. Some of the contract carriage operators who approached this Court and obtained interim orders made part payment of the increased tax in terms of the court order and it was reported that they immediately jacked up the fares for the passengers and others followed. Obviously public have suffered the burden of increased tax without any corresponding gain to the Government. Therefore injustice is already done to the public on account of increase of tax, which the Government has now conceded as unfair and unenforceable. Obviously public have suffered the burden of increased tax without any corresponding gain to the Government. Therefore injustice is already done to the public on account of increase of tax, which the Government has now conceded as unfair and unenforceable. Therefore I feel this Court should express it''s views for guidance to the Government to prevent injustice to the public at least for future. 3. Petitioners have pointed out that increase of tax is effected by the impugned notification for all contract carriages and goods carriage vehicles. The increase of tax except in few categories of such vehicles is fifty per cent of the existing tax, which is the maximum rate of increase permissible under S.3(2) of the Act. Even though the Government all through enjoyed the power to increase tax upto fifty per cent, it is pointed out that the Government has never before made any such increase in tax on a massive scale for categories of vehicles at a time. On the other hand, when revision of tax even within the limits of S.3(2) was made on previous occasions, particularly in 1997, it was done by introducing amendment to the Schedule to the Act. Motor vehicle tax, whether it be on goods carriage vehicles or on contract carriages, is indirectly met by public as the vehicle owners pass on the same to the public. Therefore any major increase in tax should be made keeping in mind public interest. In other words, it is essentially a policy matter and needless to mention that Legislature should deal with it. Delegated power under S.3(2) is not intended to be exercised indiscreetly or arbitrarily to effect revision of tax at the maximum permissible limit for all categories of vehicles which amounts to virtual legislation. So far as motor vehicle tax legislation is concerned, the essence of it is the rate of tax, and when provided in the Schedule to the Act, It is the expression of the will of the legislature. The increase of tax made” by the impugned notification, which amounts to virtual substitution of the schedule to the Act is colorable legislation which is impermissible under delegation legislation in exercise of powers vested in Govt. under S.3(2) of the Act. The increase of tax made” by the impugned notification, which amounts to virtual substitution of the schedule to the Act is colorable legislation which is impermissible under delegation legislation in exercise of powers vested in Govt. under S.3(2) of the Act. The power conferred on Government under S.3(2) is to make minor changes to keep up tax rates current along with changes taking place but does not enable the Government to make massive change in the tax structure. In fact the last major change in the revision of tax for various categories of vehicles though not in excess of fifty per cent was done through amendment to the Kerala Motor Vehicles Taxation Act by Finance Act 1997 and the Government did not choose to increase tax in exercise of it''s power under S.3(2). It is strange that Government this time did not trust the legislature and went ahead with issuing executive order effecting massive revision of tax and did not show the will to enforce the order or even the condition in the interim order of this Court. I feel the kind of increase of tax on massive scale as is done now could be done only through a statutory amendment as was done in the past, particularly in 1997. 4. So far as the challenge against the constitutional validity of S.3(2) of the Act is concerned, it does not suffer from any infirmity if the Government exercises restraint and does not act against the letter and spirit of the Act, which obviously does not contemplate the kind of revision introduced by the impugned notification. Even though S.3(2) of the Act is in the statute from the very beginning the Government has not so far misused it''s authority by increasing tax on a massive scale except now under the impugned notification which is not enforced. A statutory provision need not be struck down merely because it is capable of abuse by the executive. However, it will be open to the petitioners to challenge the constitutional validity of the Section if the Government again exercises the power arbitrarily. Therefore the challenge against constitutional validity of S.3(2) is left open. 5. A statutory provision need not be struck down merely because it is capable of abuse by the executive. However, it will be open to the petitioners to challenge the constitutional validity of the Section if the Government again exercises the power arbitrarily. Therefore the challenge against constitutional validity of S.3(2) is left open. 5. So far as petitioners, who have paid part, of the revised tax in terms of the interim orders of this Court, are concerned, there will be direction to the RTO concerned to adjust the payments so made, towards next quarterly tax payable after production of a copy of this judgment. W.Ps. are disposed of as above.