Full Judgment Text
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PETITIONER:
M/s. SAINIK MOTORS, JODHPUR AND OTHERS
Vs.
RESPONDENT:
THE STATE OF RAJASTHAN
DATE OF JUDGMENT:
28/03/1961
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
AIYYAR, T.L. VENKATARAMA
DAS, S.K.
KAPUR, J.L.
SHAH, J.C.
CITATION:
1961 AIR 1480 1962 SCR (1) 517
CITATOR INFO :
R 1966 SC 764 (3)
R 1974 SC 436 (28)
R 1981 SC 774 (11)
F 1983 SC1283 (5)
RF 1984 SC 420 (15)
R 1990 SC1637 (48)
ACT:
Tax-Levied on Passengers and goods carried by road in motor
vehicles-Lump sum in lieu of _tax optionally -payable under
the Act but mandatory under the Rules and notification The
word "shall", if mandatory or directory-Discrimination, if
any between operators using roads-Rajasthan Passengers and
Goods Taxation Act, 1959 (18 of 1959), ss. 3, 4-Rajasthan
Passengers and Goods Taxation Rules, 1959, Yr. 8,8-A,
Notification issued under Y. 8-Constitution of India, Sch.
VII, State List, Entry 56.
HEADNOTE:
The petitioners who were partners of a-registered firm hold-
ing public carrier and stage carriage permits challenged the
constutionality of certain provisions of the Rajasthan
Passengers and Goods Taxation Act, 1959, the Rajasthan
Passengers and Goods Taxation Rules, 959, and a notification
issued under r. 8. The Act was passed for levying a tax on
passengers and goods
518
carried by road in motor vehicles the power to enact being
derived from Entry 56 of the State List in Sch. VII of the
Constitution. Section 3(4) of the Act prescribed the method
of collection of the tax and provided that the State
Government may accept a lump sum in lieu of the tax
chargeable". Rule 8(i) prescribed the method of payment and
provided that the tax "shall be paid in lump sum" and the
notification in question prescribed the rates of the tax.
Held, that the incidence of the tax was upon "passengers and
goods" and not upon income of the petitioners though the
amount of the tax was measured by the fares and freights.
The charging section, namely, s. 3 did not go outside Entry
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56.
Mathurai v. State of Madras, I.L.R. (1954) Mad. 867, Alma
Ram Budhia v. State of Bihar, (1952) I.L.R. 31 Pat. 493,
referred to.
The tax did not offend Arts. 301 and 304 of the Constitution
and no inter-State trade, commerce or intercourse was
affected by it. Although the tax fell upon passengers and
goods proceeding to or from an extra-State point, it was
limited only to the fare and freight proportionate to the
route within the State.
The word "shall" is ordinarily mandatory but it is sometimes
interpreted as directory, and in the present case the word
"shall" used in rr. 8 and 8A and the notification should be
interpreted as directory as s. 4 of the Act from which the
Rules and the notification derive their authority, creates
an option by using the words "may accept". The Act, the
Rules and the notification must be read harmoniously. The
mandatory language was used to fix peremptorily the amount
of the lump sum if paid in lieu of the tax.
In Re Lord Thurlow Ex Parte Official Receiver, (1895) 1 Q.B.
724, Mannikam Patter v. Nanchappa Chettiar, (1928) M.W.N.
441, In re Rustom, [1901] I.L.R. 26.8om. 369, jethaji Peraji
Firm v: Krishnayya, (1929) I.L.R. 52 Mad. 648 and Burjore
and Bhavant Pershad v. Mussumat Bhagana, (1883) L.R. II I.A.
7, followed.
The lump sum figure was based on averages and could not be
impeached by reference to a possibility that on some days no
business might be done.
Comparison with Railways which is a union subject was not
admissible. There was no discrimination between operators
of public motor vehicles using roads all of whom were
affected by the Act, There could be no comparison between
persons using better kind of roads and those using roads
which were not so good. All operators using better kind of
roads had to pay heavier tax, and there was no
discrimination between them as a class.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 82 of 1959.
Petition under Art. 32 of the Constitution of India for
enforcement of Fundamental Rights.
519
S. K. Kapur, Jai Gopal Chagnani, K. K. Jain and B. P.
Maheshwari, for the petitioners.
C. K. Daphtary, Solicitor-General of India, G. C.
Kasliwal, Advocate-General, Rajasthan and D. Gupta,’ for the
respondent.
1961. March 22. The Judgment of the Court was delivered by
HIDAYATULLAH, J.-This is a petition under Art. 32 of the
Constitution. The petitioners, who are seven in number,
challenge as unconstitutional and ultra vires certain
provisions of the Rajasthan Passengers and Goods Taxation
Act, 1959, the Rajasthan Passengers and Goods Taxation
Rules, 1959, and a notification issued under R. 8. For
brevity, we will refer to them in this judgment, as the Act,
the Rules and the notification respectively. The first
petitioner is a registered firm, petitioners Nos. 2 to 6 are
the partners of that firm, and petitioner No. 7 is the
General Manager of the firm. Petitioner No. 7 holds a
public carrier permit for the whole of Rajasthan in his
individual name. The petitioners also hold 59 stage
carriage permits from the Regional Transport Authority,
Jodhpur, for diverse routes over roads which have different
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kinds of surfaces, some being sandy or katcha and others,
metalled., tarred, etc.
The Act was passed in 1959 for levying a tax on passengers
and goods carried by road in motor vehicles. The power to
enact the Act purports to be derived from Entry No. 56 of
the State List in Sch. VII to the Constitution, which
reads:
"156. Taxes on goods and passengers carried by road or on
inland waterways."
The Act received the assent of the President on April 27,
19.59, and was published in the Rajasthan Gazette on April
30, 1959. The same day, the Rules framed in exercise of the
powers conferred by s. 21 of the Act were also published,
and the notification was also issued. The Rules were
subsequently amended, and we are concerned with the Rules,
as amended.
Before we deal with the case further, it is convenient to
see how the Act is constructed and what the
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Rules and the notification provide. The Act, which consists
of 21, sections, came into force in the whole of the State
of Rajasthan on May 1, 1959. The Act contains the usual
provisions to be found in all taxing statutes about appeals,
revision, offences and penalties, power to compound
offences, recovery of tax as arrears of land revenue, bar of
proceedings, exclusion of the jurisdiction of Civil Courts,
refunds and power to make rules, to which detailed reference
need not be made.’ We are only concerned with the imposition
of the tax and the mode of its recovery, and will refer to-
those provisions which are relevant. Section 3 is the
charging section, and s. 4 deals with the method of
collection of the tax. Since these sections are the main
subject of attack, we quote them in full:
"3. Levy of tax.-(1) There’ shall be levied,
charged and paid to the State Government, a
tax on all fares and freights in respect of
all passengers carried and goods transported
by motor vehicles ’at such rate not exceeding
one-eighth of the value of the fare or
freight, in the case of cemented, tarred,
asphalted, metalled, gravel and kankar roads
and not exceeding one-twelfth of such value in
other cases, as may be notified by the State
Government from time to time subject to a
minimum of one naya paisa in any one case, the
amount of tax being calculated to the nearest
nays paisa.
Explanation.-When passengers are carried and
goods are transported by a motor vehicle, and
no fare or freight has been charged, the tax
shall be levied and paid as if such passengers
were carried or goods transported at the
normal rate prevalent on the route.
(2) Where any fare or freight charged is a lump sum paid by
a person on account of a season ticket or as subscription or
contribution for any privilege, right or facility which is
combined. with the right of such person being carried or his
goods transported by a motor vehicle without any further
payment or at a reduced charge, the tax shall be levied on
the amount of such lump sum or on such amount as appears to
the prescribed authority to be fair and
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equitable having regard to the fare or freight fixed by a
competent authority under the Motor Vehicles Act,
1939(Central Act 4 of 1939).
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(3) Where passengers are carried or goods transported by a
motor vehicle from any place outside the State to any place
within the State, or from any place within the State to any
place outside the State, the tax shall be payable in respect
of the distance covered within the State at the-rate laid
down in sub-section (1) and shall be calculated on such
amount as distance covered in the State bears to
the total distance of the journey:
Provided that where passengers are carried or goods
transported by a motor vehicle from any place within the
State to any other place within the State through the
intervening territory of another State, the tax shall be
levied on the full amount of the fare or freight payable for
the entire journey and the owner shall issue a single ticket
or receipt, as the case may be, accordingly.
(4) Method of collection of tax.-The tax shall be collected
by the owner of the motor vehicle and paid to the State
Government in the prescribed manner:
Provided that in case of public carriers the State
Government may accept a lump sum in lieu of the tax
chargeable on freight in the manner prescribed:
Provided further that in case of contract carriages the
State Government may accept a lump sum in lieu of the tax
chargeable on fare in the manner prescribed."
Section 5 lays down the method of levy, and enjoins the
issuance of a ticket showing the tax paid of a receipt
showing the freight charged and the tax paid. It includes a
proviso that in the case of passengers the tax becomes
chargeable only on entry in the State, if the journey began
outside the State. Section 6 requires the owner to keep
accounts and to submit periodic returns and provides for
levy of penal ties in case of failure, which penalties are
laid down in s. 8. Section 7 deals with the appointment of
taxing authorities, and a. 12 gives the power of entry the
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officers into vehicles, garages, and offices for inspection
and checking. Section 10 enjoins upon the owners the duty
of furnishing tables of fares and freights, time-tables,,
etc. Section 9 enables the State Government to grant to any
person or class of persons,. exemption from all or any of
the provisions of the Act.
The Rules prescribe those matters which are required under
the Act to be prescribed by the Rules. It is not necessary
to refer to them beyond Rules 8 and 8-A, which have been
challenged. Rule 8(i) prescribes the method of payment of
tax by means of stamps to be affixed to the tickets, and the
second proviso is to the following effect:
"Provided further that the tax payable under
the Act on fare by the owner of a motor-cycle,
rickshaw or a motor cab shall be paid to the
State Government in lump sum, of which the
amount shall be fixed by the State Government
from time to time by, Notification in this
behalf."
Rule 8(ii) then provides:
"The owner of a public carrier shall pay to
the State Government a lump sum in lieu of the
tax ,chargeable under the Act on freight and
the amount of such lump sum shall be fixed by
the State Government from time to time by
Notification in this behalf."
Rule 8-A, in so far as material to this case,
reads:
"Provisions for payment of lump sum in lieu of
tax on fare or freight.((1) In cases covered
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by the second. proviso to sub-rule (1) of
rule 8 and by subrule (ii) of that rule the
lump sum fixed by the State Government as
payable in lieu of the tax on fare or freight,
as the case may be, shall be deposited in cash
into a Government Treasury or a Sub-Treasury
in equal quarterly instalments payable within
15 days from the 31st day of March, the 30th
day of June, the 30th day of September and the
31st day of December every year; and in case
of such vehicles not registered in Rajasthan
to the incharge of the check post or barrier
at the time of their entry into the State of
Rajasthan or to the officer of the Excise and
Taxation Department nearest to the point of
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entry into the State and having jurisdiction over that area:
Provided that-
Provided that
(a) for the quarter ending on the 30th day of June’, 1959,
such payment shall be made for the months of May and June,
1959, at the rate of 1/12 of the said sum for each month,
(b) where the owner has not plied his vehicle for the
entire quarter immediately preceding any of the aforesaid
dates a proportionate decrease in the amount due for that
quarter may be made,
(c) if the owner ceases to ply his vehicle on a date
preceding any of the aforesaid dates, the proportionate
amount for the quarter shall be paid by him immediately upon
such cessation, and
(d) where the owner has not plied his vehicle for a
continuous period of not less than three months and produces
a certificate from the authority competent under the
Rajasthan Motor Vehicles Taxation Act, 1951, or the rules
made thereunder to the effect that he has been refunded the
tax for that period under section 7 of the said Act, no
amount by way of tax under the Act shall be payable for such
period.
(2) The owner shall inform the Assessing Authority as soon
as his vehicle goes out of use. When the vehicle is again
put on the road, an intimation to that effect shall be sent
to the Assessing Authority immediately."
The notification which was issued under R. 8 prescribing
lump sum rates, is as follows:
"Jaipur, April 30, 1959
No. F. 15(5) E & T/59. III-.-In pursuance of rule 8 of the
Rajasthan Passengers and Goods Taxation Rules, 1959, the
Government of Rajasthan hereby directs that the tax
chargeable on fare or freight in respect of the following
cl. was of Motor Vehicles, shall be paid in lump sum of
which the amount is mentioned opposite each such class:-
3. Public carriers (Goods Vehicles):-
(a) Holding a general permit under the Motor Vehicles Act,
1939, to use all roads in Rajasthan;-
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(i) Load carrying capacity below 5 Tons Rs.
420 per annum.
(ii) Load carrying capacity 5 Tons and
above ... Rs. 540 per annum.
(b) Holding a permit under the Motor
Vehicles Act, 1939, for plying within the
limits of any region or on fixed routes in any
one region:-
(i)Load carrying capacity below 5 Tons ... Rs.
360 per annum.
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(ii) Load carrying capacity 5 Tons and above
Rs. 480 per annum.
"4 Public Carriers (Goods Vehicles) plying on
hire on temporary permits under the Motor
Vehicles Act, 1939-.-
(b) Public Carriers (Goods Vehicles)--
d(i) Load carrying capacity below 5 Tons ...
Rs. 2 for each calendar day
(ii) Load carrying capacity 5 Tons and
above... Rs. 4 for each calendar day
This shall have effect on and from the 1st
May, 1959"
The petitioners challenged the Act, the Rules and the
notification from many angles, in the petition; but at the
hearing before us, the arguments were more restrained. The
main objection to the Act is that the tax has not been laid
upon "passengers and goods" as authorised by Entry No. 56
but upon "fares and freights", which are different entities,
and in support of the contention that there is a difference,
reference is made to Entry No. 89 of the Union List, where
power is conferred to tax "fares and freights". It is
submitted that a tax on fares and freights being a different
tax, cannot be levied under the Entry, and thus, the tax is
without authority of law.
The Act and the Rules are further challenged on the grounds
that they are repugnant to Arts. 301 and 304 as being a
restriction upon inter-State trade, commerce and
intercourse, to Art. 19 as involving an unreasonable
restriction upon the business of the petitioners, and also
to Art. 14 as discriminating between this mode of transport
and the Railways. The Act is further challenged on the
ground that it concedes to the State
525
Government the power to fix the amount of lump sum payment
without guidance. The rates and lump sum payment are
challenged because they involve discrimination between
routes involving roads of different surfaces. Rules 8 and
8-A and the notification are challenged as, it is submitted,
they go beyond the Act by making the lump sum payment
compulsory, even though under the Act it is optional, and
involve payment of tax even when no passengers or goods are
transported. Lastly, it is said that by making tax payable
even though the route between two intra-State point passes
outside the State, the Act has an extra-territorial
operation which is ultra vires the legislature.
The first-and the ’Main-contention is that the Act in the
guise of taxing passengers and goods, taxes really the
income of the petitioners, or, at any rate, fares and
freights, and is thus unconstitutional. It is argued that
the tax is borne by the operators because of competition
with the Railways. That the petitioners are required to
bear the tax themselves to stand competition with the
Railways is a matter of policy’, which the petitioners
follow and is not something which flows inevitably from the
provisions of the Act. We do not agree that the Act, in its
pith, and substance, lays the tax upon income and not upon
passengers and goods. Section 3, in terms, speaks of the
charge of the tax "in respect of all passengers carried and
goods transported by motor vehicles", and though the measure
of the tax is furnished by the amount of fare and freight
charged. it does not cease to be a tax on passengers and
goods. The Explanation to s. 3(1) lays down that even if
passengers are carried or goods transported without the
charge of fare or freight,, the’ tax has to be paid as if
fare or freight has been charged. This clearly shows that
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the incidence of the tax is upon passengers and goods,
though the amount of the. tax is measured by the fares and
freights. A similar argument was not accepted by the Madras
High Court in Mathurai v. State of Madras (1), and the same
view was expressed in Atma Ram Budhia v. State of Bihar (2).
In our opinion, the charging section does
(1) I.L.R. [1954] Mad. 867. (2) (1952) I.L.R- 31 Pat- 493
(S.B.).
526
not go outside Entry No. 56. The tax is still on passengers
and goods, though what it is to be is deter,mined by the
amount of fare or freight. It is clear that if the tax were
laid on passengers irrespective of the distance travelled by
them, it would lead to anomalies if the amount charged be
the same in every case. This if; additionally clear in the
case of goods where the weight, bulk or nature of the goods
may be different, and a scale of payments must inevitably be
devised. Though the tax is laid on passengers and goods,
the amount varies in the case of passengers according to the
distance travelled, and in the case of goods because the
freight must necessarily differ on account of weight, bulk
and nature of the goods transported. The tax, however, is
still a tax on passengers and goods, and the argument that
it is not so, is not
sound.
We are also of opinion that no inter-State trade, commerce
or intercourse is affected. The tax is for purposes of
State, and falls upon passengers and goods carried by motor
vehicles within the State. No doubt, it falls upon
passengers and goods proceeding to or from an extra-State
point but it is limited only to the fare and freight
proportionate to the route within the State. For this
purpose, there is an elaborate scheme in R. 8-A to avoid a
charge of tax on that portion of the route which lies
outside the State. There is thus no tax on fares and
freights attributable to routes outside the State except in
one instance which is contemplated by the proviso to sub-a.
(3) of s. 3 and to which reference will be made separately.
In our opinion, the levy of tax cannot be said to offend
Arts. 301 and 304 of the Constitution.
The next contention is that the Act allows an option to pay
a lump sum in lieu of the tax, but Rules 8 and 8-A and the
notification make the payment of the lump sum compulsory.
There is no doubt that ex facie the two provisos to a. 4
employ language which is permissive, while the two Rules and
the notification employ language which is imperative. The
two provisos to a. 4 are enabling, and thereby authorise the
State Government to accept a lump sum payment in lieu of the
tax actually chargeable. The
527
word "accept" shows that the election to pay a lump sum is
with the taxpayer, who may choose one method of payment or
the other. The inclusion of such a provision is designed to
promote easy observance of the Act and also its easy
enforcement. The charge of tax calculated on fares and
freights involves difficulties for the operators who have to
keep accounts and also difficulties for the taxing
authorities, who have to maintain constant checks and
inspections. The lump sum payment is a convenient mode by
which an amount is payable per year irrespective of whether
the tax would be more or less if calculated on actual fares
or freights. The operators pay the lump sum if they so
choose, to avoid having to maintain accounts and to file
returns, and the Government accepts it to avoid having to
inspect accounts and to keep a check. The rates which are
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prescribed for a lump sum payment per year are for those who
wish to avail of them.
It is, however, contended that though the section creates an
option, the Rules and the notification make the payment
compulsory, and attention is drawn to the word "shall" used
both in Rules 8 and 8-A and the notification, whereas the
words in the two provisos to s. 4 are "may accept". The
word "shall" is ordinarily mandatory, but it is sometimes
not so interpreted if the context or the intention otherwise
demands. In re Lord Thurlow Ex Parte Official Receiver (1),
Lord Esher, M. R., observed at p. 729 that "the word ’shall’
is not always obligatory. It may be directory", and Lopes
L. J., at p. 731 added:
"It is clear that the word ’shall’ is not
always used in a mandatory sense. There is
abundance of authority to the contrary in
cases where it has been held to be directory
only".
It was thus that the word ’shall’ was held to be directory
only, in that case, by Coutts Trotter, C. J., in Manikkam
Pattar v. Nanchappa Chettiar (2), by Russel, J., in In re
Rustom (3), by Venkatasubba Rao, J.,
(1) (1895) 1 Q.B- 724-
(2) (1928) M.W.N. 441.
(3) (1901) I.L.R. 26 Bom. 396; 3 Bom. L.R 653.
528
in Jethaji Peraji Firm v. Krishnayya (1) and by the Judicial
Committee in Burjore and Bhavani Pershad V. Mussumat Bhagana
(2).
Now, Rules 8 and 8-A and the notification only lay down what
lump sum payment has to be in each case, if a lump sum is
being paid. The mandatory language is used to fix
peremptorily the amount of the lump sum. Rules 8 and 8-A
and the notification cannot be said to overreach the section
to which they are subordinate and from which they must take
their colour and meaning. If the Act creates an option, it
cannot be negatived by the Rules. The Act and the Rules
must be read harmoniously, and reading them so, it is plain
that the apparent mandatory language of the Rules and the
notification still retains the permissive character of the
section, but only lays down what the amount of the lump sum
must be, if lump sum payment is made in lieu of payment of
the tax calculated on actual fares and freights. If the two
Rules and the notification are read in this way, the
mandatory language is limited to the prescribing of the lump
sum rates. In our opinion, the two Rules and the
notification are not void and contradictory of the Act.
It is contended that the power to fix lump sums in lieu of
tax has been conferred upon Government without guidance, and
is, therefore, unconstitutional. It is also urged that the
levy of a lump sum leads to the result that even if
passengers or goods are not transported, the tax is still
payable. These arguments, in our opinion, cannot be
-accepted. The learned Advocate-General pointed out that
the lump sum rates work out at a very low figure, the
minimum being less than Re. 1/- per day and the maximum, Rs.
1.50 nP. per day. The rates are no doubt very reasonable,
but this hardly meets the argument of the petitioners.
There are, however, good reasons for upholding the fixation
of lump sums. The payment of the lump sum is not
obligatory, and a person can elect to pay tax calculated on
actual fares and freights.
(1) (1929) I.L.R- 52 Mad. 648, 656.
(2) (1883) L.R. 11 I. A. 7.
529
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The fares and freights are fixed by competent authority
under the Motor Vehicles Act, and that takes into account
the average earnings, and the lump sum is fixed as an
average of what tax would be realised if calculated on
actual fares and freights. There is no compulsion for any
operator to elect to pay a lump sum if he does not choose to
do so. Nor is the argument that there may be. vacant
periods when no passengers or goods are transported but the
tax is payable, is of any force, because there may be days
when the business done might result in tax in excess of the
lump sum payable. The lump sum figure is based on averages,
and cannot be impeached by reference to a possibility that
on some days no business might be done.
The next contention that there is discrimination between
road transport and rail transport is also without force.
The entry in the State List is limited to a tax on
passengers and goods transported by road or inland
waterways., The comparison with Railways is not admissible,
because tax on railway fares and freights is a Union
subject, and is not available to the State Legislature.
There is thus a clear classification made by the
Constitution itself. No discrimination between operators of
public motor vehicles using roads has been pointed out, and
all operators are equally affected by the, Act. Some manner
of support for the argument was sought from s. 9, where the
State Government is empowered to grant exemption from the
Act by general or specific order to any person or class of
persons. But we were informed that no exemption has been
granted except to hospitals or charities.
It is next urged that the imposition of a higher rate of tax
for cemented, tarred, asphalted, metalled, gravel and kankar
roads than that for other roads discriminates between
operator, This argument overlooks the very object and
purpose of a tax. As is well known, taxes are burdens or
charges imposed by legislative power upon persons or
property to raise money for public purposes. The power to
tax is thus
67
530
indispensable to any good government, and the imposition of
the tax is justified on the assumption of a return in the
shape of conveniences. If this be the true import of a tax,
it is but natural that taxes will be graded according as
they involve more or less of such conveniences. They will
be heavy in case of roads requiring greater expenditure to
construct and to maintain, than in case of roads not
requiring such expenditure. All operators using the better
kind of roads have to pay the heavier tax, and there is no
discrimination between them as a class. Discrimination can
only be found if it exists between persons who are
comparable, and there is no comparison between persons using
the better kind of roads and those who use roads which are
not so good. It is the cost of construction and maintenance
which makes the difference in the tax, and no case of
discrimination can be said to be made out.
The last contention is that the proviso to sub-s. (3) of s.
3 is extra territorial in nature, because it makes the tax
payable on fares and freights attributable to the territory
of another State when the route passes through such
territory, even though the journey starts and ends in
Rajasthan. We were informed that now there are no such
routes, but even otherwise, such portions must have been
very short and negligible. No affidavit was sworn to show
how many such routes were involved and what their extent
was, and in view of lack of adequate averments, we must
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reject the contention.
In the result, the petition fails, and is dismissed with
costs.
Petition dismissed.
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