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2015 DIGILAW 244 (JK)

Subash Chand v. State of J & K

2015-05-14

HASNAIN MASSODI, JANAK RAJ KOTWAL

body2015
JUDGMENT : 1. The appellants 2, 4, 6, 11,13,14, 15 to 20, 22, 25, 26, 28, 31 and 34 are unemployed uneducated youth and retired ex-serviceman and the appellants 1, 3, 7, 8, 12, 24, 33 and 35 are daily commuters, who as passengers use the mini buses run by other appellants from Udhampur to Rambal. They have with the help of different financial institutions purchased mini buses and operate these buses on Udhampur-Rambal route. 2. Appellants aggrieved with the decision taken by respondents to burden them with the passenger tax @ Rs. 200/- per annum per seat, approached the Writ Court with writ petition being SWP No. 145/2000. Their case was that the decision taken by the State Government arid its functionaries to levy passenger tax at the aforementioned rate was discriminatory in character and in violation of principles of natural justice. They maintained that in terms of SRO No. 120 of 1999, dated 01.04.1999 "all types of buses" plying on City and Mufassil routes throughout the State were to pay passenger tax in lump-sum amount of Rs. 600/- per annum; that tax structure so prescribed was arbitrarily restricted to the mini buses plying on city routes within municipal limits of Jammu and Srinagar Districts and no corresponding provision was made for the mini buses plying on Mufassil routes. It was pleaded that in terms of Notification SRO No. 342 of 1999, dated 13.08.1999, the appellants were burdened with passenger tax at the rate applicable to "all types of buses". The appellants' case was that a mini bus having 20 passengers seating capacity, was asked to pay passenger tax @ Rs. 4,000/- per annum as against Rs. 600/- per annum levied under SRO No. 120 of 1999, dated 01.04.1999 read with SRO No. 342 of 1999, dated 13.08.1999 levied on mini buses plying in Municipal limits of Jammu and Srinagar. The respondents were said to be keen to make seven times increase in the passenger tax levied on mini buses plying on the Mufassil routes. Such recourse, according to the appellants' was not available to the respondents. 3. The cause pleaded did not find favour with the Writ Court. The writ petition was dismissed vide its judgment dated 22.11.2001. The Writ Court held that the passenger tax @ Rs. Such recourse, according to the appellants' was not available to the respondents. 3. The cause pleaded did not find favour with the Writ Court. The writ petition was dismissed vide its judgment dated 22.11.2001. The Writ Court held that the passenger tax @ Rs. 200/- per seat per annum was not excessive or arbitrary and a person travelling by a mini bus had to pay a meager sum of Rs. 0.65 on account of passenger tax. 4. It was opined that Article 14 of the Constitution of India could not be attracted in tax matters and in any case that decision taken shown not be faulted only because in case of appellants different tax structure was provided by the respondents. 5. The Writ Court judgment is questioned in the Letter Patents Appeal on hand, on the grounds set out in the memo of appeal. The appellants reiterate that not only mini buses, plying on Mufassil routes are being justifiably clubbed with the buses in the matter of levy of passenger tax but the appellants and other similarly circumstanced mini buses operators/owners have not been heard in the matter. 6. We have gone through the appeal, Writ Court judgment as also the writ record. We have heard learned counsel for the parties at length. 7. Section 3 of the J&K Passengers Taxation Act, 1963 empowers the Government to levy and determine the rate of passenger tax or a lump-sum amount in lieu of the passenger tax. Section 10 of the Act confers power on the Govt., to grant exemption from paying passenger tax to passengers travelling vehicles on a particular route/routes, or in a particular class of vehicles. 8. The State Government vide SRO No. 220 of 1968, dated 25.06.1968 exempted persons travelling in the buses (government and private) on Udhampur to Rambal route, from the operation of the provisions of J&K Passengers Taxation Act, 1963. This notification was however, rescinded by notification SRO No. 358 of 1999, dated 16.08.1999. In other words, with effect from 16.08.1999, the persons travelling in buses on Udhampur to Rambal route were to pay passenger tax at prescribed rate. Such rate obviously was to be paid as per SRO No. 120 of 1999, dated 01.04.1999 in force, on the date SRO No. 220 of 1968, dated 25.06.1968 was rescinded by SRO No. 358 of 1999, dated 16.08.1999. 9. Such rate obviously was to be paid as per SRO No. 120 of 1999, dated 01.04.1999 in force, on the date SRO No. 220 of 1968, dated 25.06.1968 was rescinded by SRO No. 358 of 1999, dated 16.08.1999. 9. In other words, mini buses plying from Udhampur to Rambal, were to pay tax @ Rs. 600/- per annum. The owners of the mini buses in same case were to recover passenger tax after working out per passenger tax levied on the lump-sum tax per annum. 10. SRO No. 358 of 1999, dated 16.08.1999 while rescinding SRO No. 220 of 1968, dated 25.06.1968 did not lay down the rate at which passenger tax was to be paid by a person travelling by mini bus from Udhampur to Rambal. It is pertinent to point out that in terms of SRO No. 120 of 1999, dated 01.04.1999, from 05.04.1999 all mini buses plying on city and Mufassil routes throughout the state were to pay a lump-sum amount of Rs. 600/- per annum. However, the aforementioned SRO was amended vide SRO No. 342 of 1999, dated 13.08.1999 and the tax structure of Rs. 600/- per annum restricted to mini buses plying in the municipal areas of Jammu and Kashmir Districts. This notification, did not prescribe the rate of passenger tax or a lump-sum amount to be paid by the mini buses plying in Mufassil areas of the State. 11. In the said background, rate of passenger tax at a lump-sum amount payable by the appellants after earlier SRO granting exemption to them was rescinded and was not in place on 16.08.1999 was nowhere laid down. To clear the ambiguity, the respondents without suitable change in the tax structure, were adamant to bracket the mini buses run by the appellants with "all types of buses". 12. The respondents while issuing SRO No. 358 of 1999, dated 16.08.1999 ought to have prescribed the tax rate for the mini buses plying in Mufassil areas of the State. Mere withdrawal of the exemption granted in 1968, would not suffice and pave way for recovery of passenger tax on a particular rate, unless and until tax rate applicable to such mini buses was prescribed. Mere withdrawal of the exemption granted in 1968, would not suffice and pave way for recovery of passenger tax on a particular rate, unless and until tax rate applicable to such mini buses was prescribed. The respondents could not and cannot fill up the lacuna by arbitrarily including the mini buses plying from Udhampur to Rambal route or for that matter other Mufassil areas of the State with "all types of buses". Mini buses and "all types of buses" are two different classes and these cannot be clubbed in absence of the prescribed passenger tax rate, under Section 3-A of the J&K Passengers Taxation Act, 1963. 13. One of the options available to the respondents was to lay down in notification SRO No. 358 of 1999, dated 16.08.1999 that mini buses plying in rural areas of the State would be included in "all types of buses" for the purpose of passenger tax. This admittedly has not been done. The authorities under the Act, therefore, cannot arbitrarily and in absence of any legal sanction club the mini buses plying in Mufassil areas with "all types of buses" and levy the passenger tax as recoverable from "all types of buses," from the appellants. 14. Learned Writ Court, as a closer look at the judgment impugned would reveal, has not dealt with this aspect of the case. It is instead embarked on the exercise to find out whether the passenger tax recovered from mini buses plying in Mufassil was just and proper and concluded that it was just and fair, as only Rs. 0.65 were levied per passenger. This aspect of the case was not subject matter of the enquiry. The matter agitated before the Writ Court was that the appellants' vehicles were unjustifiably clubbed with a different class not permissible under the provisions of passenger tax. This was a case of treating unequals as equals i.e. "mini buses" as "buses" without any legal or statutory sanction. 15. The above conclusion find support from Notification SRO No. 466 of 2010, dated 16.12.2010. It appears that the respondents realising that they while issuing notification of SRO No. 358 of 1999, dated 16.08.1999 had failed to prescribe tax rate for the mini buses plying for Mufassil areas of the State, now prescribed the tax rate for "all types of mini buses" as Rs. 2,000/- per annum. It appears that the respondents realising that they while issuing notification of SRO No. 358 of 1999, dated 16.08.1999 had failed to prescribe tax rate for the mini buses plying for Mufassil areas of the State, now prescribed the tax rate for "all types of mini buses" as Rs. 2,000/- per annum. The appellants, therefore, with effect from 01.01.2011 are to pay passenger tax @ Rs. 2,000/- per annum. Notification SRO No. 466 of 2010, dated 16.12.2010 removes all doubts about the tax structure in question w.e.f. 01.01.2011. However, the controversy as regards the liability on part of the appellants to pay passenger tax with effect from 16.08.1999 till 01.01.2011 remains unresolved. 16. Having regard to the discussion made, the appellants are to pay passenger tax @Rs. 600/- per annum for the period 16.08.1999 to 01.01.2011, as SRO No. 120 of 1999, dated 01.04.1999 was in force on 16.08.1999 and superseded by SRO No. 466 of 2010, dated 16.12.2010, which came upto force from 01.01.2011. 17. Viewed thus, the Letters Patent Appeal succeeds and is accordingly allowed. The Writ Court judgment dated 22.11.2000 is set aside and the mini bus plying on Mufassil routes the State including appellant held liable to pay passenger tax at a lump-sum amount of Rs. 600/- per annum on account of passenger tax with effect from 16.08.1999 to 01.01.2011.