B. A. JAY ARAM AND OTHERS ETC. v. UNION OF INDIA AND OTHERS.

H The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. Prior to 1969 there was no coneept of what may be termed as 'An All India' permit which would be valid

ii.A. JAYARAM v. UNION (Chinrldppa Reddy, J.) 621-

for the whole of India and which would. enable the holder of the· permit to ply his contract carriage throughout India. Section 63 (!) A of the Motor Vehicles Act, provides that, except as may be otherwise prescribed, a permit granted by the regional transport authority of any.one region shall not be valid in 'any other region, unless the permit has been counter signed by the regional transport authority of that other region, and a permit granted in any one state shall not be valid in any other state unless counter-signed by the State Transport Authority of that other state or by the regional transport authority concerned. The procedure prescribed for obtai!Jing tbe counter-signature of the transport authorities of other regions and states was cumbersome and was- not conducive to the development of all India or iner-state tourist traffic. In order to remedy the ·c ,-__; situation and promote all India and inter-state tourist traffic, the· Parliament amended the Motor Vehicles Act and introduced sec. 63 (7) by ani_ending Act 56 of 1969. This new· provision enables the State Transport Authority of every state to grant permits valid for the. whole or any part of India, in respect of such number of tourist vehicles as the_ Central 'Government may, in respect of that state specify in that behalf. Preference is to be given, to applications for · permits from the India Tourism Developmeht Corporation, a State Tourism Development Corporation, a State Tourist -Department and such oprators and tourist cars or such. travel agents as may be approved in that behalf by the Central Government. This was but the first basic step towards e_n~ouraging all India or inter-state tourist traffic. There were other hurdles to be cleared before any scheme for grant of all India permits could be effectively imple· mented. One of tbe hurdles was this : Under Entry 57 of List II of the Seventh Schedule to the Constitution, the State Legislature is empowered to levy "Taxes on vehides, whether mechanically propel· F l_ed or 1)-0t, suitable for use on roads, including tramcars· subject to the provisions of entry 35 of list III". Entry 35 of list III reads: "Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied". A coherent reading of Entry 57 of list II and Entry 35 of list III makes it abundantly clear that the power to levy taxes on vehicles suitable for use on •roads vests solely in the State Legislature though it may 'be open to the Parliament to lay down the principles on which taxes may be levied .on mechanically propelled vehicles. In other words the Parliament may lay down the guide lines for the levy of· taxes on mechanically propelled vehicles but the right to levy such :axes vests solely in the

628 SUPREME COURT REPORTS (19831 3 s.c.R., State Legislature. Now there are twenty two States and nine Union A Territories in India, specified in the first schedule to the Constitution. Each of the States has the right, withiu its territory. to levy a tax on motor vehicles. Ifa tourist vehicle holding an 'All India Permit' under sec. 63 (7) of the Motor 'Vehicles Act chooses to visit half a dozen states in the course of a ·round trip from, say, Delhi to· B Kanyakumari or Srinagar to Hyderabad tax will ordinarily have .to be paid in all the half a dozen or so States. The burden will surely be intolerable and the whole object of sec. 63 (7), namely promotion of all India or inter-state tourist traffic will be frustrated.· The Central Government was alive to the problem and referred the matte.r to the Transport Development Council for its . a\ivice. The • T(ansport c· Development Council is a non-statutory ,body constituted by the · Central Government and consists of the representatives of the Governments of all the. States. . The Transport . Advisory Council advised the Central Government that there· should be a single-state taxation on tourist vehicles holding permits under sec. 63 (7), that is, tax should be paid in the 'home state' and the vehicle shouid be exempted from payment of tax in states other than the home staie. This could be done by the respective State Governments issuing notificatfons under their taxation legislation exempting tourist vehicles regi~tered in other states from payment of tax, if tax has already i been paid in the home state. The Government of India accepted the suggestion and requested the State Governments - and Union Administrations to issue necessary.notifications. The suggestion ran into trouble right from the start. While the Governments of Andhra Prapesh, Bihar, Goa, Daman and Diu, ·Maharashtra, Nagaland and Uttar Pradesh readily agreed to issue such notifications on the basis of ~eciprocity, there was no such ready response · from some other states. The Government ofKarnafaka was in particular opposed to the grant of any such ·exemption. Finally, the ·Government of• Karnataka and the .Governments of other states too were persuaded to a'gree to issue such notifications. In'the meanwhile the Govern- ment ~f India, in exer~ise of its power under sec. 63 (7) of the G Motor Vehicles Act, issued notifications specifying the number and. class of tourist vehicles ill, respect of which each of the State Transport authorities of the States could grant All India ·permits. The last of the notifications specified that each State Transport authority could issue 50 permits for tourist omnibuses. H Pursuant to the request of the Central Government to which all the State Oovernmeuts finally agreed, notifiQations .were issued

ii.A, JAYARAM v. UNION (Chinnappa ;tleddy, J.) 62~

exempting tourist vehicles holding permits under sec. 63 (7! from payment of tax, if tax had been paid in the home state. We are A particularly concerned in these cases with the notifications issued from iime to time by the Government of Karnataka, since that is where the trouble started. The first of the notifications issued by the Government of Karnataka was on September 18, 1972 and· it exempted, from payment of taxes payable under the Karnataka M_otor B Vehicles Taxation Act 1957, tourist . motor Cabs and tourist omnibuses registered in the States other than the State of Karnatal!;a and plying in the State of Karnataka under permits which were valid without counter signature in the state of Karnataka, provided that the tax payable in respect of such vehicles had been paid to the State .in which the vehicles were registered and provided further that the c ·--' said State granted similar exemption to tourist motor cabs ~nd tourist omnibuses whose permits were endorsed in the State of Karnataka under Rule 123-A of the Karnataka Motor Vehicles Rules. On July 15, 1976, the Government of Karnataka issued a notification reduc- ing the tax payab)e unger the Motor Vehicles Taxation Act, 1957, in respect of tourist vehicles for which permits had been issued under D sec. 63 (7) or endorsement granted under Rule 123-A of the - Kar~ataka Motor Vehicles Rules. On December 20, 1976, a further notification was issued in partial modification of the earlier notifica- tion dated September 18, 1972. Exemption from payment of tax was ·given to tourist motorcabs and . tourist omnibuses registered in E States other than the State of Karnataka and plying in the State of Karnataka under the authority of a permit granted under-sec. 63 (7), 'provided that the tax payable in respect of the vehicle to the State in which it was registered had already been paid and provided further that similar exemption from payment of tax was granted in respect ·of similar vehicles of the State of Karriataka.

This scheme for the gran~ of' All India Permits', designed as it was to promote all India and inter-state tourist traffic, soon fell into abuse at the hands of sch.eming transport operators. Within the scheme itself lay the seeds for abuse. The scheme enabled the State Transport Authority of each State, to . issue fifty all India permits, uniformly, irrespective of the size. o.f the State, its resources, its accessibility, its communications, its facilities, the availability of transport services and operators . in the State with the necessary expertise, experience and finance to operate all-India tourist servi~es and a host of such other factors. Apparently it was thought undesirable to make a distinction between ~tate and State on what · were perhaps thought to be elusive criteria and possibly the scheme

630 SUPREME COURT REPORTS [19S3J 3 s.C.R. was expected to give a boost to the transport b.usiness in · the smaller and less advanced States. And, of course, it was necessary to obtain the agreement and cooperation of all the States. ·But, the result was that transport operators from big and comparatively prosperous and advanced States, well versed in the intricacies of the transport · business very. soon flocked to small and comparatively poor and less advanced States like Manipur and Nagaland to apply for and , obtain all-India permits from the State 'Transport Authorities of these States. It is conceded before us that a large number of. persons holding all-India permits from some of these small Siates do not belong to these States at all, but are transport operators coming c from far off States. Another factor which appears to have influenced the flocking of transpod operators from other States to States lilre Nagaland arid Manipur is the nationalisation of contract carriage service in States like Karnataka. Once the permits were obtained and the vehicles were registered, these small States saw the. last of the . operators. Having obtained the permits, the operators with their D vehicles flocked back to the parent State of the operators (not of the vehicles) or to a State like Karnataka where all contract carriages having been nationalised no private contract carriage was available and there was therefore a great' opportunity to ply the vehicles as . contract carriages within the State. E States like Karnataka ivere swamped by tourist vehicles from all over the country, registered in other States. These tourist vehicles practically 'colonised' Karnataka and like States and started operating more or less as stage carriages within the particular State, ·never and.· rarely if ever, ·moving out of the State. There was no ihought or F Question of undertaking all India or interstate tours, aud out went the worthy object of sec. 63(7). Quick and easy money with the least . trouble ~nd iiJ. the shortest time, by whatever method, was the only object. In the counter-affidavit filed on behalf of the State of Karnataka in some of the Writ Petitions, it is stated. G "Though the vehicles were registered outside the State of Karnataka, they have been permanently §tationed in the State of Karnataka and particularly at Bang.alore, and the vehicles were all being plied as Stage Carriages. Though All India Tourist Permits were obtained by the H residents of other states, the permits were used by taking the vehicles and keeping them in the State of Karnataka. The operators run their t.ourist buses at fixed timings

Ii.A, i1-YARAM v. UNION (Chinnappa Reddy, J.) 6~1

from particular place like the Stage carriages operated by the Katnataka State Road Trausport Corporation (herein- A after called the K.S.R.T.C.) and other private state carriage/ operators. On checking of the vehicles and verification of the passengers, it was found that the passengers found in the vehicle were not genuine tourists and the driv.ers or the persons incharge of the vehicles were not in a position to produce the trip sheet, name list with whom they en- B tered .into contract. It was also found that the passengers found ·in the vehicles had boarded the buses from one point without any contract or otherwise and without they being tourists. The passengers found in the tourist buses are regular passengers going from one place to another. c - for purposes other than tourism. These vehicles were found catering to the needs of general travellers who can make use of the Stage Carriages operated by the K.S.R.T.C., or other private stage carriage operators. The· respondent produces herewith statements as ANNEXURES . 1 to 9 showing the clandestine operation of. the vehicles D· covered by All India Tourist Permits, the remarks and irregularities noticed by the Motor Vehicles Inspectors while checking the vehicles covered by All India Tourist permit, the frequent detection of these vehicles running as Stage Carriages by collecting individual fares and picking E passengers from one point and setting down them at another p.oint and bringing different passengers in the return journey. From the statements enclosed, it is clear that the operators of the tourist buses coyered by All > India Tourist permits have misused the Tourist Buses by running them as regular stage carriages, competing with F theXSRTC buses and other private stage carriages within the. State. As a result of indiscriminate misue of the Vehicles as Stage Carriages-even though the permits were obtained under Section 63 (7) of lhe Central Act for Tourism, the State Government has suffered considerable loss in Revenue .. These· bnses actually made use of the passengers which would have normally gone to the KSRTC buses and other private carriages. The very object of obtaining permits under section 63(7) of the Central Act, which intended to promote tourism has been misued by these operators of the Tourists buses by plying their vehicles regularly as stage· carriages. Most of the

SUPREME COURT REPORTS it983} 3 s.c.R. permits obtained under Section 63 (7) of the Central Act A in the States other than the State of Karnataka are made use of for the purported u·se of running the tourist buses .. ... . but actually the permits were misused to run the tourist . vehicle either as.stage carriages or as contraGt carriages.".

A survey made by the Transport Commissioner of Maharashtra B revealed' a similar state of affairs. The Transport Commissioner submitted a .report to the Government of Maharashtra, a copy of which has been made available to us. It is stated in the report,

"Our estimate is that out of these J300 permits any- C· . thing between 300 to 400 buses are operating in Mahara-. shtra with Bombay as the main centre. Mast of these - buses for all practical purposes operate a; stage carriage servi.l:es masquerading as contract carriages. In Mahara- shtra the ordinary passenger transport by stage carriages and contract carriages has been completely nationalised. D The AU India- Tourist Buses on the other hand are e~ploiting the loopholes available in the law and operate point. to point passenger services on routes where the J

volume of traffic is heavy viz.. routes like· Bombay- Kolhapur, Bombay Mangalore (Mangalore), Bombay-. E• Panaji, · Bombay.Belgitum, Bombay-Ahmedabad and Bombay-Indore ............................. , ....... :.. :..... ...... . ..................... .. .... ... ... ... ............. ...... ........ : .......... { ............. ······~· ................... ·········. . "On 9/!0th April 1983, the Transport Commissioner F had personally visited the Charoti Check Naka which is 'our border check post' bordering Gujarat on the'Bombay Ahmedabad road. From the records of the'check'post he· found that as many as I J 5 All India Tourist Buses are regularly playing on this route:' After' making an analysis of these 115 All llldia Tourist Buses,'he found that 41 per- mits had been issued by the State' Transport Authority of · M'.anipur. 17 had been issued by State Transport Authority Nagar Haveli, 8 by the State Tran.sport Authority, Meghalaya and 5 by the State Transport Authority Naga- land. · A large number of All India Tourist Buses operat- ing with their base in Bombay appear to have been issued \ by Manipur Nagaland and .the Union Territory of Dadra Nagar Haveli''.

fl.A.. iAYARAM v. UNION (Chinnappa Reddy, J.) 633 The petitioners, who are transport operators holding all-India per- mits, deny that any of them was guilty of any malpractice or J11isuse A of the permits held by them. But, notwithstanding the petitioners' denial we do not have the slightest doubt that the allegations of misuse and malpractice made in the counter-affidavit, filed on behalf of the Karnataka Government, are generally and substantially correct. Complaints about the abuse·ofthe scheme appear to have been· made 8 to the Central Gov·ernment and the Transport Advisory Council also . .we are also told that the question of meeting the challenge posed by these abuses is receiving the attention of the Central Goyernment.

The Government of Karnataka, apparently the worst sufferer, reacted sharply. The concession given to the holders of all India c · . permits by way of exempting the all India tourist Vehicles, registered in other States. from p'ayment of the Karnataka Tax, if tax had already been paid in the home State was withdrawn by a notificatfon dated 31st March, 81. It is this notification and the consequences of the notification that are in question in these several Writ Petitions. D We are informed· that the State of Andhra Pradesh has also issued a notification similar to that of the State of Karnataka .withdrawing the. exemption which it had granted earlier to vehicles operating on permits issued under sec. 63 (7) and registered in other States. Other states have not withdrawn the exemption E previously granted by them to vehicles registered in other. states and operating on permits issued under sec. 63(7). But as the exemption ·granted by most of them is on a reciprocal basis, 'the withdrawal of exemption by the States of Karnataka and Andhra Pradesh has the effect of making vehicles registered in Karnataka and Andhra Pradesh, immediately subject to payment of tax in every one of those States F through which they pass. The collection of tax by the other States is also resisted in these writ petitions. The power of the State Legis- - lature to levy the particuar tax, the power of the State Government to grant exemption from payment of tax ·under the authority delegated to it by the Legislature a.nd the implied power of the State Govern• ment to withdraw an exemption granted by it are conceded. Yet a G number of ingenious .and platitudinous submissions have been though we must confess that many of them have only to be stated to be rejected. Some of them served no better purpose than occupy the time of the Court, time which has become dear and precious because of tl;te mountainous arrears of cases awaiting the decision of this H Court. We do wish it is remembered that the Supreme Court is the . highest Court in the land and its time is not to be frittered away in

li34 SUPREME COURT REPORTS (!983) 2 S.C.R.

listening to hopeless arguments advanced just for the, sake of argu- A ment. The time has come for judges and lawyers to make a determined effort to chop certain arguments and prune certain others- -..( judgments following suit. In fairness to the counsel who appeared in the cases before us, we must say that everyone was brief and none over -stated his case. B It was submitted that see. 63 (7) of the Motor Vehicles Act was designed to promote All India and inter-state tour ist traffic and thus to advance trade, Co~merce and inter-course throughout the territory of India. It was implicit in sec. 63 (7) that the States would exercise their power of taxation in such a way as not to impose an additional burden on tourist vehicles registered in other states -and plying on permits issued under sec. 63(7), over and above the tax paid in the home State. In other words, it was implicit that all the States would exempt from taxation tourist vehicles registered in other State's and plying on permits issued under sec. 67 (7) was D withdrawing the exemption, the object of sec. 63 (7) was defeated and'therefore, freedom of trade, Commerce and inter-course through- out the territory of India, guaranteed by Art. 301 of the Constitution 1 was impaired. The -withdrawal of exemption was, therefore, unconstitutional and bad in law. The transport _operators of E Karnataka who were not. directly hit by the withdrawal of the. exemption by the Government of Karnataka advanced a subtler argument and sugg,sted that they were in fact the worst hit. The argument was that though despite the withdrawal of the exemption, they were paying no more tax to the State of Karnataka than they were paying hitherto, the withdrawal of the exemption had created a , situation which denied them the benefit of exemption granted by the Governments of all others States, since those exemptions were reci- procal in condi:ion. The situation indirectly created -by the action of the Government of Karnataka imposed an intolerable burden on them by compelling them to pay taxes in every State other th~n G , Karnataka through which their vehicles passed and thus virtually denied to them the freedom of trade, Commerce and inter-course throughout the territory of India guaranteed By Art. 30 I of the Constitution.

H We are wholly -unable to .see any force in these sub\llissions. The learned counsel for the parties on either side _·invited our atten·

• B.A. JAYARAM v. UNION (Chinnappa Reddy, J.) 635.

tion to the Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan & Ors.(1), Boiani· Ores Ltd. v .. State ofOrissa('), G. K. A Krishnan v. State of Tamil Nadu( 9) International Tourist. Corporation v. State· of Haryana(') and Malwa Bus Service Pvt. Ltd. v. State of Punjab(6 ) to explain the extent and the limits of the freedom of trade, commerce and intercourse throughout the .territo,ry of India proclaimed by Art. 301 of the Constitution. Wedo not propose to.refer to any B of these cases since the law appears to us to be well-settled :

Taxes of a compen~atory and regulatory character are outside the expanse of Art. 301 of the Constitution. · Regulatory measures and compensatory taxes far .from impeding the free flow of trade and commerce, often promote suchJree flow of trade and commerce c by creating agreeable conditions and providing appropriate services. All that is necessary to uphold a tax which purports to be or is claim· ed to be a compensatory tax is "the existence of a specific, identifi- able object behind the ·levy and a nexus between subject and the object of a levy".(") "If the object behind the levy is identifiable and if there is sufficient nexus between the subject and the object of the levy, it is not necessary that the money realised by the levy should be put into a separate fund or that the levy should be proportionate to the expenditure. There can be no bar to an inter-mingling of the' revenue realised from regulatory and compensatory taxes and from the taxes of a general nature nor can there be any objection to more or less expenditure being incurred on the object behind the compensatory and regulatory levy than the realisation from the levy".(") It should be patent that "it would ordinarily. be well·nlgh impossible to identify and measure with any exactitude the benefits received and the expenditure incurred and levy the tax according to the benefits received and the expenditure incurred". Nor is the court to interpose itself by assuming the role of a cost accountant and attempt to balance meticulously the cost of the services, benefits and facilities against the realisation from the levy. And, if the levy as a whole is justified by the need generally, it does not have to be separately justified with reference to every group of persons claiming G

. (1) [1963) l S.C.R. 491. (2) [1975) 2 S.C.R. 138. (3) [1975) 2 S.C.R. 715. H (4) [1981] 3 S.C.R. 364. (5) A.I.R. 1983 S.C. 637. (6) [19811 2 S,C.R. 364,

636 - SUPREME COURT REPORTS (1983) 3 S.C.R.

to require and receive less service than others. Once the nexus A. between the levy and service is seen, the hivy must be upheld unless the compensatory character is shown to be wholly or partly, a mere mockery and in truth a design which is destructive of the freedom of inter-state trade, commerce and inter-course.

B · By vi~tue of the power given ·to them by Entries 56 and 57 of IJst II every one of the States has the right to make its own· legis- lation to compensate it for the services, benefits and facilities provided by it for motor vehicles operating \vithfo. the territory ·of the State.· Taxes resulting from such legislative activity are by their very c nativity and nature, cast and character, regulatory and compensatory and, are therefore, not within the vista of Art. 301, unless, as we said, the tax is a mere pretext designed to injure the freedom. of interstate trade, commerce and intercoune.. The nexus between the levy and the service is so patent in the case of such taxes that we need say no more about it. The Karnataka Motor Vehicles Taxation Act and D ·the Motor Vehicles Taxation Acts of other States are without doubt regulatory and ·compensatory legislations outside the range of Art. 301 of the Constitution. . .

It is true that the object of enacting sec. 63 (7) by the E Parliament was to promote all-India and inter-state tourist traffic. But 'taxes on vehicles ....... , ..... suitable for use on roads' is a State legislative subject and it is for the State Legislature to impose a levy and to exempt from the levy.. True again, Entry 57 ofthe State List is subject to Entry 35 of the Concurrent List and, as explained by us at the outset, it is therefore open to the Parliament to lay down the • F principles on which taxes may be levied on mechanically propelled vehicles. · But the Parliament while enacting S. 63 (7) of the Motor Vehicles Act refrained from indicating any suc\l. principles, either express!)!. or by necessuy implication. The State's power to tax and to exempt was left uninhibited. It may be that a a State legislation, plenary or subordinate, which exempts "non-home-state tourist vehicles" from tax would be advancing the object of sec. 63 (7) of the Motor Vehicles Act and accelerating inter-state trade, commerce and intercourse. But merely by Parliament legisiating sec. 63 (7), the State Legislatures are not obliged to fall in 1ine and to so arrange their tax laws as to advance the object of sec. 63 (7), be it ever so desirable. The. State is obliged neither to grant an exemption nor to perpetuate an exemption once granted., Tl;tere is . no question of impairing the freedom under Art. 301 by refusing to

B.A. JAYARAM v UNION (Chirmappa Reddy, J.) _637

exempt or by withdrawing an exemption. Not to pat on the back is not to stab in the back. True, straw by straw, the burden of taxa-. tion on tourist vehicles increases as each 'State adds its bit of straw, but, then, each State is concerned with its.coffers and has the right to tax vehicles using its· roads; and, the contribution which a tourist' carriage is required to make to its treasury 'is no more than what other contract carriages are required to make. We are firinly of the B view that there is no impairment. of the freedom under Art. 301. The special submission on behalf of the 'Karn'ataka Operators' that th'e withdrawal by the Karnataka Government of the exemption granted ·to 'outsiders' has resulted in the Karnataka Operators having to pay tax in every State in the country and, therefore, the withdrawal has impaired th~ freedom under Art. 301 is but the same general sub- · c mission, seen through gla'sses of a difftrent tint. It does not even have the merit that the withdrawal .of the Karnataka exemption affects them directly. The submission is rejected.

/ One of the sumbissions niade to us was that if there was a D misuse of the all-India permits, the remedy was to punish the. wrong doers by taking appropriate action against the wrong-doers by can- celling the permit, if necessary, but not to withdraw the benefit of the exemption altogether, even in the case of honest operators. 'l:hat is · a matter for the Legislature and its delegate to decide but not for E the court. If the situation had becom~ so malignant that 'drastic action was called for, it is not for the court to substitute its judg- ment to say that the object could perhaps be well achieved by adopting a less drastic procedure.

F It was submitted that all-India tourist vehicles do not use the roads of the State as much as the contract carriages operating in the State and therefo~e, the State was wrong in. treating them alike. It was said that treatment of unequals as equals had resulted in an infringment of Art. ·14 of the Constitution. It was also submitted that vehicles holding inter-State permits under inter-state agreements were still exempt from tax and thfa was also a violation of Art. 14 of the Constitution. Another contention raised was that there was some sort of promissory estoppel which prevented the State Government from withdrawing the exemption. Yet another argument was that the withdrawal of the exemption was arbitrary and therefore, judicial review was necessary. These and other like submissions which were inade to us, in our· opinion, fall in the category of arguments which,

p. 638 Copy page pinpoint

we mentioned earlier, have only to be stated to be rejected. The A answers are self-evident. The submissions are totally without merit and we see no justification for increasing the length of our judgment by further futile discussion. All the Writ petitions are dismissed · 'with costs and the interim orders are vacated.

B' H.S.K.· Petitions dismissed.