Judgment :- A.H. Joshi, J. 1] Public Interest Litigation No.32/2011 is filed by association of Contract Carriage Bus Operators. Its members own bus or buses and they run those for carrying passengers between fixed destinations after availing permit. In this petition, one Shri Rakesh Omprakash Agrawal, who is shown to be Chief Secretary, represents the petitioner. This petition is drafted in vernacular (Marathi) and is argued in Marathi by him. 2] Main prayer in the petition is aimed at challenge to taxation of the buses owned by the members of the petitioner association and classifying the same in the category of Item No. VII of First Schedule attached to Bombay Motor Vehicles Tax Act, 1958. 3] Rule has been issued and reply has been filed. 4] In the midst of hearing, in order to narrow down exact challenge, this Court had permitted Shri Rakesh Omprakash Agrawal representing the petitioner to reformulate and place on record description of exact scope and the compass of challenge. This Court had also formulated certain questions and called upon the State to explain to us as to whether there is double taxation. The points which ultimately arise for consideration are culled out for convenience and summarized as follows:- [i] Does the act of the State in recovering tax on the Public Transport Vehicle Buses owned by the members of the petitioner, by the very fact of registration of the Bus under Entry No. VII (as amended from time to time) violate Constitutional guarantee of freedom to do business under Article 19(1)(g) of the Constitution of India? [ii] Should the special contract carriage buses carry only one tax i.e. leviable under Entry No. IV(4) of Schedule I of the Bombay Motor Vehicles Act during the period whenever the contract carriage permit is actually sought by the bus owner, and that there shall be no tax for the duration for which the owner and Bus do not hold any permit ? [iii] Does levy and recovery of tax under Entry No. VII, amount to double taxation, when tax is leviable under Entry No. IV(4) whenever Bus is run on permit and whether this would amount to violation of fundamental right to do business under Article 19(1)(g) of the Constitution of India? 5] It would be necessary to assort undisputed facts in order to be able to focus on legal position. 5] It would be necessary to assort undisputed facts in order to be able to focus on legal position. 6] The petitioner association represents a category or class of businessmen who are owners of buses. Each amongst these buses fall in various definitions at one and the same time, namely, - [a] "Heavy Passenger Motor Vehicles" (as defined in Section 2(7) of the Motor Vehicles Act, 1988); [b] "Omnibus" (as defined in Section 2(29); [c] "Public Service Vehicle" (as defined in Section 2(35); [d] "Contract Carriage Permit" (as defined in Section 2(7) of the Motor Vehicles Act, 1988, and; [e] Eligible qualified to apply and avail a "Permit" (as defined in Section 2(31). 7] The scheme of the law relating to motor vehicles can be classified as follows:- [a] The regulation of motor vehicle as a device of transport to be run on the roads from all facets except taxation on running, is controlled and governed by tax related laws enacted by the State legislatures. [b] The tax on motor vehicles is a matter of competence of the State legislature. The Bombay Motor Vehicles Tax Act, 1958, governs this aspect within the territory of State of Maharashtra. [c] The levy of tax by the State is authorized by Section 3 of the Bombay Motor Vehicles Tax Act for vehicles used or kept for use in the State. [d] Entry Nos. I to VII define distinctly classes or categories of vehicles and different rates thereto. [e] The Schedule I of the Bombay Motor Vehicles Tax Act prescribes different rates of tax and various categories of motor vehicles. [f] The vehicle which does not fall in category covered by Entry Nos. I to VI of Schedule One, shall carry the levy of tax under Entry No. VII. The entry No. VII operates as a residuary or anomalous category to cover the vehicle which may not fall in any one amongst the categories I to VI wherever the vehicle is being "used or is "kept for use" in the State of Maharashtra. [g] The vehicles owned by the petitioner as described in para no.5 fall in the category of a public transport bus, an omnibus entitled to run on contract carriage permit. [h] Any motor vehicle which is allowed by law i.e. Central legislation to run only on permit, can be actually "used" whenever the owner possesses a "permit". [g] The vehicles owned by the petitioner as described in para no.5 fall in the category of a public transport bus, an omnibus entitled to run on contract carriage permit. [h] Any motor vehicle which is allowed by law i.e. Central legislation to run only on permit, can be actually "used" whenever the owner possesses a "permit". Whenever vehicle is registered but does not own a "permit", such a vehicle is classified by respondents to fall in Entry No. VII. [i] Whenever such vehicle secures a "permit", it will fall in the category of Entry No. IV(4) i.e. the contract carriage, Public Transport Vehicle an Omnibus. [j] If a vehicle is described as a public transport vehicle with special contract carriage, it does not attract double taxation since it is an admitted fact that whenever the bus operator avails a "permit", the tax paid under Entry No. VII is given a setoff or credit while paying the tax on availment of permit. [k] The passenger vehicles owned by the petitioner have to be run on special permit and tax as prescribed in entry No. IV(4) is leviable. [l] Prior to amendment of 2010 to the Schedule of the Bombay Motor Vehicles Tax Act, the tax leviable under entry No. IV(3)(a) was higher in rate than the tax leviable on the vehicles covered by residuary entry No. VII. [m) The practice in vogue was to calculate per day tax payable on the vehicle to be run on the basis of permit and calculate the tax for the duration of days of permit and recover the differential amount from the applicant who applies for permit. Only the difference of per day rate of tax, which was higher than the per day rate of tax paid under the residuary entry for the vehicle for which permit is applied for, used to be recovered. [n] Thus, no sooner the Bus owned by the petitioner is registered and kept for use in the State of Maharashtra, the tax under residuary clause i.e. entry No. VII is levied and is payable in advance except the days on which owner is having a permit and has to pay tax for running the Bus on permit. [o] Whenever there is permit, the vehicle would attract tax only under entry No. IV (4) after adjustment of tax already paid under Entry No. VII. [o] Whenever there is permit, the vehicle would attract tax only under entry No. IV (4) after adjustment of tax already paid under Entry No. VII. 8] Though the petition was argued on the foundation that there is double taxation, considering that there is no double taxation, but taxation under different entries for different spells of time, the petitioner has narrowed down the compass of challenge. Now the restricted challenge which is agitated before us is namely Whenever a public service vehicle does not have contract for transport and is unable to apply for a permit, he is unable to legally operate the vehicle, therefore, the tax for barely owning and of keeping the vehicle for use should not be levied. 9] The rationale and reasoning put forward in support of this submission is seen to be the following:- A vehicle which does not have authority in law to run on the road in absence of permit is liable to be deemed to be exempt from the tax. The motor vehicle tax is construed to be a tax in the nature of 'compensation' and hence when in absence of actual use of the vehicle on road in the State, nothing is liable to be compensated, there cannot be any levy as a tax too. 10] In order to support the plea, with the assistance of Advocate Shri Umakant Patil, who had appeared for petitioner in Writ Petition No.2551/2007, the party in person as well as Advocate Shri Patil have placed reliance on various judgments. Those are noted below with the proposition for which those are relied upon:- [1] 2003 Law Suit (SC) 966 Jindal Strips Ltd. V/s State of Haryana. AND [2] 2006 AIR (SC) 2550 Jindal Stainless Ltd. & another V/s State of Haryana (FB). Proposition: A motor vehicle which is run in restricted premises such as mining areas and the vehicles which are incapable of being road worthy because of the class and category of vehicle and are, therefore, not likely to be "used" or "kept for use", capable of use and though are motor vehicles only for the purposes of the "regulation" under the Central Act, would not attract tax under the State Law. The whole philosophy is that the Motor Vehicles Tax Act falls in the sub category of taxation which is distinct. The whole philosophy is that the Motor Vehicles Tax Act falls in the sub category of taxation which is distinct. Though such tax is not fee in disguise, yet it involves a component of compensation to the State for services which are impliedly rendered though not rendered personally to the tax payer, and though the doctrine of "quid pro quo" does not have application. [3] 2010 (Supp.) Bom.C.R. 886 Tata Motors Ltd. V/s Dy. Regional Transport Officer & others. Proposition: The vehicles which were kept in the premises of company exclusively for internal operation for which exemption was granted by the State Government. The concept of "used" or "kept for use" would not apply and the tax on such vehicles, which are operated within the premises of company, was not leviable. [4] AIR 2007 SC 839 Hardeo Motor Transport V/s State of M.P. & others. Proposition: The vehicles which were paying the tax as stage carriage vehicles for which rate of levy was higher in magnitude than the rate of levy chargeable to contract carriage on account of the deficiency in the permit and failure to pay tax under the head of contract carriage, the detention of vehicle was held illegal. However, the Court declined to go into the question of Constitutional validity of the law providing for separate levy. 11] Learned AGP opposed the petition urging that : [a] Section 3 of the Bombay Motor Vehicles Tax Act, 1958, authorizes the levy of tax on the vehicles used or kept for use in the State of Maharashtra. Vehicles belonging to members of the petitioner are public service vehicles registered as such and are kept for use in the State of Maharashtra, and attract levy of tax under entry No. VII Schedule One of the Bombay Motor Vehicles Tax Act. [b] In present case, "contract carriage" is a nature of business selected and elected by the members of petitioner. The issue of permit is to be done by the authority upon compliance of the regulations under Central Act, and it is done upon payment of tax under the State Act. [c] A fact that the State does not levy double tax is admitted by the petitioner. The issue of permit is to be done by the authority upon compliance of the regulations under Central Act, and it is done upon payment of tax under the State Act. [c] A fact that the State does not levy double tax is admitted by the petitioner. It is also admitted that at the time of recovery of tax for issue of permit, the credit or adjustment is given in favour of registered owner towards the amount of tax paid under Entry No. VII, by calculating on the per day basis the tax actually paid, for the period of permit. [d] The amount which is recovered at the time of permit is only thus difference in figure of rate and not independent. [e] Petitioner's grievance appears to be that there should be no tax while the vehicle is not being actually put to use, though kept for use, because the petitioner does not have the opportunity to do business because he does not have a contract or is unable to perform any contract for whatever reason. [f] The ground put forward by the petitioner that when the petitioner does not have business or is for any reason unable to do the business, that there should be no tax, is in the nature of demand. [g] This demand is argued as a challenge. The petitioner has failed to spell out and formulate as to how or on what grounds such a levy is arbitrary and of such nature and to extent that it imposes a restriction or a bar on right of doing business or profession as guaranteed under Article 19(1)(g) of the Constitution of India. [h] The State finds lack of honesty, rather sees a positive malice in object behind this petition. The foundation of this opinion is the background that in numerous cases, it is found that the petitioner's members and like Bus owners have operated the vehicles on contract carriage without availing permit. There is large number of such Buses. The number of motor vehicles registered in total in the State of Maharashtra, is over 1.9 crores in number. [i] It is impossible to monitor and physically verify each and every motor vehicle to verify and ensure that the tax on each and every vehicle applicable to permit as may be needed in law is every time recovered. The number of motor vehicles registered in total in the State of Maharashtra, is over 1.9 crores in number. [i] It is impossible to monitor and physically verify each and every motor vehicle to verify and ensure that the tax on each and every vehicle applicable to permit as may be needed in law is every time recovered. This practical constraint requires that to enforce Section 3 of the Bombay Motor Vehicles Tax Act directly, no vehicle is left out of the sphere of levy of tax. Therefore, Entry No. VII applies to vehicles which are not covered by earlier entries. [j] The petitioner is not claiming lack of legislative competence to levy the tax by or under the Bombay Motor Vehicles Tax Act. Petitioner's grievance appears to be against compulsion to pay the tax which may be rendering the business partly unviable or less economic. 12] Learned AGP has placed reliance on various citations. The citations and propositions are as noted below:- [1] 2004 (2) Bom.C.R. 607 Vikram Ispat V/s State of Maharashtra & others; [2] AIR 1992 SC 1376 Union of India & others V/s Chowgule & Co.Pvt. Ltd.; [3] 1996 DGLS (Soft) 1464 SC Chief General Manager, Jagannath Area V/s State of Orissa; [4] AIR 2004 SC 3894 State of Gujarat & others V/s Akhil Gujarat Pravasi V.S. Mahamandal & others; Proposition: The tax is leviable when the vehicle is used or kept for use in the State. Though the motor vehicle tax is described by Hon'ble Apex Court to be a tax in the nature of compensation, yet it is a matter of classical analysis. It is not laid down as to when it is pure tax and when it is compensation. In any case, the tax on motor vehicles is not liable to be tested with the doctrine of "quid pro quo". Whenever the vehicle is used or kept for use and it is covered by any of the taxing provisions, such vehicle attracts the tax. 13] We have given peaceful consideration to the submissions of both the sides. The authority to levy tax emerges from Section 3 of the Bombay Motor Vehicles Act. Whenever the vehicle is used or kept for use and it is covered by any of the taxing provisions, such vehicle attracts the tax. 13] We have given peaceful consideration to the submissions of both the sides. The authority to levy tax emerges from Section 3 of the Bombay Motor Vehicles Act. Subsection (1) of Section 3 thereof, reads as follows:- "3(1) Subject to the other provisions of this Act, on and from the 1st day of April, 1958, there shall be levied and collected on all motor vehicles used or kept for use in the State, a tax at the rates fixed by the State Government, by notification in the Official Gazette, but not exceeding the maximum rates specified in the First Schedule." Provisos to Section 3(1) and remaining sub-sections are not quoted, not being relevant to the present case. 14] The tax leviable in First Schedule attracted in the present case is primarily a residual clause i.e. entry No. VII. 15] As we see, the tax contemplated by entry No. VII is for use of the vehicle or keeping the vehicle for use in the State of Maharashtra and when the use of the vehicle in the State of Maharashtra is done on the basis of special permit or for the purpose for which permit is imperative, the tax under entry No. IV(4) is attracted. 16] There is no law which would prohibit additional tax, yet the State has adopted a practice that when higher rate of tax applies by the rate prescribed for any category in Entry No. VI, the recovery of tax is done by giving appropriate credit for the tax under Entry No. VII paid, if any, in relation to the same vehicle. 17] Therefore, present is a simple case of plurality of categorization depending on the registration and use of vehicle. It, therefore, does not amount from any perspective to double taxation. 18] The vehicles owned by members of the petitioner are not shown to be eligible to enjoy immunity as found on facts by the Hon'ble Apex Court in the Bolani Ores Ltd. or Jindal Strips Ltd. cases (supra). It, therefore, does not amount from any perspective to double taxation. 18] The vehicles owned by members of the petitioner are not shown to be eligible to enjoy immunity as found on facts by the Hon'ble Apex Court in the Bolani Ores Ltd. or Jindal Strips Ltd. cases (supra). 19] In the words of Hon'ble Supreme Court in Jindal Strips Ltd. case, the vehicles were certified by the State Government not only as unroad-worthy by certain notifications, but hazardous to the roads and hence not to be used on the public roads in general, rather on uncertified roads worthy for those vehicles. 20] There is difference of a diagonal dimension in a vehicle being wholly unworthy of being brought and used on the roads being confined to a class of use and a vehicle which is a common public carriage vehicle, but that is allowed to run on permit and its inability to run is in no manner attributable to the Government. The cases of Bolani Ores Ltd. or Jindal Strips Ltd. (supra) refer to the categories of vehicles which are carved out as a class apart and were incapable for use of roads and class to which levy of tax could apply. 21] It is the business contingency that the petitioner does not have business and is unable to have business and hence have not applied for permit and, therefore, they cannot run. This contingency does not bring the vehicles outside sphere of the term "kept for use in the State". 22] This Court had to exert to understand the challenge in this petition. We have noticed the challenge after some exertion. The challenge is to the levy of tax on the vehicle "kept for use". 23] Buying the vehicle, registering it, and keeping it for use awaiting a contract carriage business is a business eventuality. For any owner to be eligible to apply for permit for contract carriage, the vehicle has to be road worthy and ready to be "kept for use". Therefore, taxing such a vehicle is as natural as a postulate. There is no element of violation of fundamental right creeping therein. 24] A passing reference is made in the midst of arguments, to the manner in which amendments are made to the Schedule I of the Bombay Motor Vehicles Tax Act, by which rates have been enhanced. Therefore, taxing such a vehicle is as natural as a postulate. There is no element of violation of fundamental right creeping therein. 24] A passing reference is made in the midst of arguments, to the manner in which amendments are made to the Schedule I of the Bombay Motor Vehicles Tax Act, by which rates have been enhanced. We perceive that these submissions are not seriously pressed. The point argued is that the President's assent is not secured to these amendments. As the Bombay Motor Vehicles Tax Act has been duly enacted and assent of the President given on 23.8.1958, the variation in the rate of levy of tax by amending the Schedule, rate of tax prescribed therein does not require fresh assent of the President of India. The amendment in Schedule cannot be assailed as ultra vires on this ground. 25] While the basic legislative action of passing the enactment has already received the assent of the President, the amendment in the Schedule as to levy is left to the subordinate legislation within the power of executive. It would be too imaginative and strange to urge that the power of the executive to vary the levy of rate of tax prescribed in the Schedule would every time require assent of the President. This challenge which we have dealt with is not based on the ground that any mandatory provision of law or Constitution or Constitutional principle is violated and, therefore, the challenge does not have any substance whatsoever. 26] The PIL has no merit and is, therefore, dismissed. Rule is discharged. Parties shall bear their own costs.