Gujarat High Court
Natvarsinh Ramsinh Rathod And Anr. vs State Of Gujarat And Anr. on 1 April, 1992
Equivalent citations: (1992)2GLR1036
Author: S.B. Majmudar
Bench: S.B. Majmudar
JUDGMENT
S.B. Majmudar, Acting C.J.
1. In this group petitions, common questions are involved and hence they were heard together and they are being disposed of by this common judgment. The petitioners in these petitions are carrying on passenger transport business. For that purpose, they run tourist vehicles. These tourist vehicles are registered with the transport authorities of outside State like Union Territory of Dadra and Nagar Hiveli and others. According to the petitioners, they have paid tax to these States and territories where their vehicles are registered. All these vehicles are covered by permits granted under Section 63(7) of the Motor Vehicles Act, 1939. Under that provision, the State Transport Authority may, for the purpose of promoting tourism, grant permits valid for the whole for any part of India, in respect of such number of tourist vehicles as the Central Government may, in respect of that State, specify in this behalf. Armed with these permits, the petitioners bring their tourist vehicles in the territories of Gujarat State and ply them as contract carriages. The petitioners' case is that because they have paid taxes to the outside Authorities operating in areas where their vehicles are registered they are not liable to for tax under the Bombay Motor Vehicles Tax Act, 1958 ('the Tax Act' for short) as applicable to this State. In order to support this case, three-fold contentions are canvassed for our consideration:
(1) The petitioners' tourist vehicles are not liable to any tax as per Section 3(1) read with Section 3A of the Tax Act as the said provisions themselves are violative of Article 14 of the Constitution of India.
(2) Ira the alternative, it is contended that in any case, Section 3A of the Tax Act as substituted by Gujarat Act 20 of 1982 did not cover the petitioners' vehicles and subsequent retrospective amendment to Section 3A by Gujarat Act 2 of 1984 cannot be resorted to by the respondent authorities as such retrospective amendment adversely affects the petitioners who had managed their affairs in the light of unamended Section 3A as brought into force by earlier Amendment Act 20 of 1982.
(3) In any case, the exemption notification issued by the State of Gujarat in exercise of its powers under Section 13(0) on 4-1-1973 as later amended by amending notification of October 1974 should be made applicable to the vehicles owned by the petitioners ignoring the conditions embodied in the exemption notification on 4-1-1973 restricting the scope of exemption made available to various vehicles registered in any other State by subjecting it to the restrictive condition imposed therein which condition, according to the petitioners, is ultra vires Section 13(2) of the Tax Act and if this condition which is severable, according to the petitioners, is ignored, the exemption notification would cover the petitioners' vehicles at least for the period during which the said notification operated, that is, from 1-1-1973 till its rescission on 31-12-1983.
2. Having considered the rival contentions canvassed on these points by the learned Advocates of the petitioners we have reached the conclusion that there is no substance in any of these contentions. Our answers to these contentions are as under:
Contention No. 1: Provisions of Section 3A read with Section 3(1) of the Tax Act are not violative of Article 14 of the Constitution of India and are valid.
Contention No. 2: Retrospective amendment of Section 3A by Gujarat Act 2 of 1984 is valid and operative in law and therefore covers the tourist vehicles belonging to the petitioners.
Contention No. 3: Notification dated 4-1-1973 at Annexure 'E' to Spl. C.A. 1513 of 1983 is valid and operative and does not contain any provision which is ultra vires Section 13(2) of the Tax Act and even otherwise, in the alternative, if such condition is held to be beyond scope of Section 13(2), as that condition is the essence of the exemption notification, the whole exemption notification would fail, with the result that the petitioners in any case get benefit of the said exemption notification for the relevant period for which the said benefit is claimed by them.
3. Before dealing with these contentions, we may mention that in the prayer clause in the petitions, we do not find any prayer for declaring these provisions as ultra vires nor has notice gone to the learned Advocate General when such vires question is involved. However, when we were prima facie of the view that there is no substance in these petitions, we have permitted Mr. Patel to urge these contentions in the absence of such prayer by taking it to be merely a technical default. We would have permitted Mr. Patel to amend the petition and issued notice to the learned Advocate General if we were convinced that there was substance in the petitions. We, therefore, proceed to decide the aforesaid contentions on merits.
Contention No. 1: Section 3 of the Tax Act lays down that 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, as 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. This section existed in that form prior to its substitution by Gujarat Act 17 of 1987 by which two more schedules were annexed to the Act. In the first schedule in Part IV, is found provision regarding motor vehicles (including tricycles) plying for hire and used for the carriage of passengers and different amounts of maximum annual rate of tax for different type of vehicles mentioned therein have been provided on a slab system. We fail to appreciate how the said provision can be said to be in any way arbitrary and violative of Article 14 of the Constitution. When the said taxing provision is made, it is always open to the legislature to lay down the scheme of taxing and to classify different categories of vehicles for which different amounts of tax can be fixed. The submission of Mr. Patel for the petitioners was that motor vehicles like the contract carriages run by the petitioners even though plying for hire or used for hire and even though carrying passengers may not be frequently using Gujarat roads as motor vehicles plying for hire used for carriage of passengers by operators who are running them as stage carriages and, therefore, if for both these types of vehicles licensed to carry more than four passengers, uniform annual rate of tax is imposed, it would become discriminatory as unequals will be treated as equals. The said argument cannot be sustained for the simple reason that legislature is taxin he motor vehicles for the purpose of tax from the point of view of their capacity to carry passengers. All vehicles licensed to carry more than four passengers even though plying for hire have to pay the same amount of tax. It is by sheer coincidence that some vehicles may be using roads more frequently as compared toothers. It is not as if that in all cases, such stage carriages will use the roads more frequently as compared to contract carriages. On such a nabulous possibility, slab system of taxation uniformly laid down by the provision for vehicles fitted to carry different number of passengers cannot be faulted.
Now remains the challenge to vires of Section 3A as brought on the statute book by Gujarat Act 20 of 1982 as further amended by Gujarat Act 2 of 1984. The said provision in its amended form reads as under:
3A. (1) On and from the first day of April 1978, there shall be levied and collected, on all omnibuses which are used or kept for use in the State exclusively as contract carriages (hereinafter referred to as "the additional tax") in addition to the tax levied under Section 3, at the rates fixed by the State Government, by notification in the Official Gazette, but not exceeding the maximum rates specified in the table below.
TABLE _____________________________________________________________________________ Description of an omnibus Maximum rate of additional tax.
_____________________________________________________________________________ A. Ordinary omnibuses i) Monthly rate of Rs. 240/- per passenger to be carried.
ii) Weekly rate of Rs. 80/- per passenger permitted to be carried.
iii) Daily rate of Rs. 16/- per passenger permitted to be carried.
B. Luxury or tourist omnibuses (i) Monthly rate of Rs. 360 per passenger permitted to be carried.
ii) Weekly rate of Rs. 120 per passenger permitted to be carried.
iii) Daily rate of Rs. 24 per passenger permitted to be carried.
____________________________________________________________________________ (2) The additional tax levied under Sub-section (1) shall be paid in advance by every registered owner or any person having possession or control of the omnibus.
(i) monthly at the rates specified in the table in Sub-section (1), or
(ii) for any period less than a month, weekly or daily at the rates specified in the table in Sub-section (1).
(3) Except as otherwise provided in Sub-sections (1) and (2), the provisions of this Act and the Rules made thereunder shall, so far as may be, apply in relation to the additional tax leviable under Sub-section (1) as they apply in relation to the tax leviable under Section 3.
So far as this challenge is concerned argument of Mr. Patel was that it is violative of Article 14 of the Constitution as it sought to impose maximum rate of additional tax by adopting different rates of daily rate, weekly rate and monthly rate per passenger permitted to be carried. It is difficult to appreciate how this type of provision in a taxing statute can be said to be arbitrary from any angle. Different yardsticks may by provided by the legislature for taxing different types of situations in which the petitioner's omnibuses are found to have operated. But even that apart, this contention is squarely covered by a decision of the Supreme Court in the case of Maharaja Tourists Service v. State of Gujarat, ( in Writ Petition (Civil) No. 505 of 1990 with group of petitions decided by Ranganath Misra, C.J. sitting with Kuldip Singh, J. A copy of the said judgment is at Annexure 'D' to the affidavit in reply filed in Spl. C.A. No. 1511 of 1983. In terms, the Supreme Court held, considering the cases of owners of omnibuses plying under the tourist permits under Section 63(7) of the Motor Vehicles Act, 1939 that their challenge to vires of Section 3A was not justified. The Supreme Court has in terms referred to Section 3A in the said judgment and has upheld the vires thereof. It is true that the challenge before the Supreme Court against the said section was mounted on the question of alleged infraction of Ait. 301 read with 19(1)(g) of the Constitution and the challenge was not levelled in the light of Article 14. But that would make no difference. Once the Supreme Court has held the said provision as legal, valid and Constitutional, the said decision would remain binding to this Court under Article 141 of the Constitution and it cannot be tried to be reopened before the High Court on the ground that Article 14 challenge was not pressed before the Supreme Court. This aspect of the matter is also well settled. We may refer to a Full Bench decision of this Court in the case of Sarjubhaiya v. Dy. Commissioner of Police [1984 (1)] XXV (1) GLR 538, wherein the Full Bench consisting of P.S. Poti, C.J., one of us (S.B. Majmudar, J.) and I.C. Bhatt, J., had to consider the question whether the petitioners could urge before the High Court that Sections 56, 59 and 60 of the Bombay Police Act were ultra vires Article 21 of the Constitution. These sections were upheld by the Supreme Court in its previous decision rendered in the light of challenge to these provisions under Article 14. It was held that even though challenge before the Supreme Court on these provisions was not based on Article 21 such a new contention cannot be urged before the High Court as the decision of the Supreme Court remained binding under Article 141 on the constitutional validity of the said provisions. In para 18 of the judgment of the Full Bench, considering decisions of the Supreme Court on the point, it was held that a new ground of challange even on the basis of approach made in a later decisions of the Supreme Court may not be available before the High Court to the petitioner. For coming this conclusion, the Supreme Court decision in the case of B.M. Lakhani v. Malkapur Municipality was pressed in service. It was ruled therein that the decision of the Supreme Court was binding on the High Court and the High Court could not ignore it because they thought that the relevant provisions were not brought to the notice of the Court. Same is the position here. Mr. Patel submitted that even though the Supreme Court has upheld vires of Section 3A, Article 14 was not pressed in service before the Supreme Court for attacking the said provision. This is neither here nor there. The Supreme Court decision upholding vires of the provisions would remain binding to this Court under Article 141 of the Constitution. Even otherwise, as discussed earlier, on merits also, there is no substance in the said challenge. Contention No. 1, therefore, fails and is rejected.
Contention No. 2: So far as this contention is concerned, Section 3A as was amended by Gujarat Act 20 of 1982 provided as under:
3A(1) On and from the first day of 1982 there shall be levied and collected, on all omnibuses which are exclusively used or kept for use in the State as contract carriages (hereinafter in this section referred to as "the omnibus") a tax (hereinafter referred to as "the additional tax") in addition to the tax levied under Section 3 at the rates fixed by the State Government, by notification in the Official Gazette.
This provision was amended by Gujarat Act 2 of 1984 and in the amended form, it has now stood as seen hereinabove. Mr. Patel submitted that during the time Section 3A stood as originally enacted by Gujarat Act 20 of 1982, additional tax under Section 3A could be attracted on omnibuses which were exclusively used or kept for use in the State as contract carriages. Therefore, the said section cannot apply to omnibuses which were used as contract carriers if they were not exclusively used or kept for use as contract carriage in the Gujarat State, meaning thereby that if omnibus was used as a contract carriage but it was not exclusively used as such in Gujarat State but it was taken out of Gujarat State under contract and was being used not only in Gujarat but even outside the State, such omnibus was outside the scope of Section 3A as it originally stood under Gujarat Act 20 of 1982. But the said provision was retrospectively amended in the present from by Gujarat Act 2 of 1984 and in the present form as it stand, additional tax would be leviable on omnibuses which are used or kept for use in the State exclusively as contract carriage, meaning thereby that in the amended form, the section provides that if omnibus is exclusively used as contract carriage or kept for use for contract carriage, even though it may not have been exclusively used or kept for use as contrct carriage in Gujarat State and even though it was also being-used as contract carriage outside the Gujarat State, still, such omnibuses would be covered by the sweep of Section 3A. The contention of Mr. Patel was that such retrospective amendment in Section 3A with effect from 1-4-1982 as brought about by Gujarat Act 2 of 1984 is discriminatory and it affected the vested rights of omnibus owners like the petitioners whose omnibuses would have otherwise remained outside the sweep of Section 3A as it stood under Gujarat Act 20 of 1982 and only because of the retrospective amendment by Act 2 of 1984, they are brought within the sweep of Section 3A. It is difficult to appreciate this contention. It is well settled that there cannot be any estoppel against a legislature act nor can it be alleged that any promise held out to them by Gujarat Legislature that Section 3A would not be amended in future with any retrospective effect. Even that apart, the legislature has certainly powers to amend any provision retrospectively and if it is within the legislative competence to do so, hardships of tax payers would be irrelevant. Consequently, there is no substance even in this contention canvassed by Mr. Patel for the petitioners. Section 3A as amended by Gujarat Act 2 of 1984 is made retrospective from 1-4-1982 from which day, earlier Section 3A as brought on the statute book by Gujarat Act 20 of 1982 had operated. Consequently, Section 3A in amended form as amended by Gujarat Act 2 of 1984 can be said to have existed from its inception, viz., from 1-4-1982. All the omnibuses which were covered by the sweep of the said provision were liable to bear the additional tax with effect from 1-4-1982 and not special treatment can be given to these omnibus owners for escaping from additional tax during the intervening period which elapsed between enactment of Gujarat Act 20 of 1982 and its subsequent retrospective amendment by Gujarat Act 2 of 1984. The second contention, therefore, is totally devoid of any substance and stands rejected.
Contention No. 3: Ultimately, Mr. Patel heavily relied upon this contention for our consideration. He submitted that the State of Gujarat in exercise of powers under Section 13(2) has granted total exemption to tourist vehicles registered in any other State in India chartered by tourist in such other State and visiting the State of Gujarat under the authority of permit granted under Sub-section (7) of Section 63 of the Motor Vehicles Act, 1939 by the State Transport Authority of such other States from payment of tax leviable under the Tax Act. The said notification was issued on 4-1-1973 and after its amendment by the Home Department notification dated 19-10-1974 with which we are not concerned, it remained in operation till it was rescinded on 31-12-1983 with effect from 1-1-1984. Mr. Patel's submission is that omnibuses run as contract carriages by the petitioners are entitled to this benefit of total exemption of tax under notification dated 4-1-1973 till 31-12-1983 in any case. This submission is put forward on the ground that even though ex-fade it will not specify the condition laid down in the said exemption notification, the condition imposed in the notification being ultra vires Section 13(2) of the Tax Act, the condition may be ignored and de hors that condition, total exemption may be made available to the petitioners' vehicles. In order to appreciate this contention, it is necessary to note that under Section 13(2), the State Government is given power, subject to the provisions of any Rules made in that behalf, by notification in the Official Gazette, to exempt either totally or partially any class of motor vehicles other than those falling under Sub-section (1) or any motor vehicles belonging to any class of persons, from the payment of the tax. Sub-section (1) of Section 13 deals with all motor vehicles designed and used solely for agricultural operations on farms or farm lands. Under Sub-section (3) of Section 13, all notifications issued under Sub-section (2) shall be laid for not less than thirty days before the State Legislature as soon as possible after they are made, and shall be subject to rescission by the legislature or to such modifications as the State Legislature may make during the session in which they are so laid or that session immediately following. As per Sub-section (4) of Section 13, any rescission or modification so made by the State Legislature shall be published in the Official Gazette and shall thereupon take effect. The aforesaid provision clearly shows that the State Government as a delegate of legislature has been given power to exempt partly or fully any class of motor vehicles from tax or any motor vehicles belonging to any class of persons from such tax and such exercise has to be ultimately ratified by the legislature. In the present case, it is nobody's case that any rescission or modification was made by the State Legislature. On the contrary, in the affidavit-in-reply, it has beenpointedout that procedure laid down by Section 13 was followed. Hence,the notification has stood ratified by the State Legislature. There is no dispute on this aspect. However, Mr. Patel's submission is different. He contends that total exmption from tax is provided by the exemption notification dated 4-1-1973 is only to tourist vehicles registered in any other State in India, meaning thereby, they must have been registered by any State outside the State of Gujarat. That petitioners tourist vehicles are also registered by authorities outside Gujarat State, viz., in Dadra Nagar Haveli and by other competent authorities of different States. Hence, the first requirement of exemption notification is satisfied. His grievance centered round the second requirement for exemption viz., such tourist vehicles registered outside must be chartered by tourists in such other State and must be visiting the State of Gujarat under the authority of permit granted under Sub-section (7) of Section 63 of the Motor Vehicles Act. When we turn to the said Section 63(7), we find that any State Transport Authority may, for the purpose of promoting tourisim 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 this behalf. It is not in dispute that all the tourist vehicles plied by different petitioners in these petitions are armed with such general permits as per Section 63(7) and they are registered by the authorities outside State of Gujarat. But merely because they are so registered and that they are visiting Gujarat State under such permit under Section 63(7), they would not earn exemption as the basic requirement of exemption notification is that such vehicles to earn exemption must have been chartered by tourists in such other States, meaning thereby, those contract carriages must have been requisitioned by tourists by contract of charter with their owners in such other States from which they originate and where they are registered as contract carriages. This provision for earning exemption appears to have been made with a view to seeing that these vehicles remain genuine contract carriages registered in other States and are not converted into contract carriages for carrying tourists within the State of Gujarat when their journey, begins in the State and ends in this very State, it becomes clear that such exemption is granted subject to the aforesaid qualification that tourist vehicles registered outside the State and covered by permit under Section 63(7) must carry passengers from outside State who visit this State by utilizing such vehicles. This type of provision is obviously made with a view to ensuring that these contract carriages registered in outside States are hot converted into and used as contract carriages wholly within the State. If they are used as such, they stand on same footing as contract carriages registered within the State and must bear the same incidence of tax. Mr. Patel heavily relied upon Sub-section (10) of Section 2 of the Tax Act which lays down that other words and expressions used, but not defined, in this Act shall have the meanings respectively assigned to them in the Motor Vehicles Act, 1939. He submitted that for the purpose of Section 13(2) delegation of the legislative power by the legislature for the purpose of exemption has to be confined to the purpose of grant of total exemption or partial exemption to any class of motor vehicles other than those falling under Sub-section (1) or any motor vehicles belonging to any class of persons from the payment of tax. That classes of vehicles are not defined by the Tax Act and, therefore, by virtue of Sub-section (10) of Section 2, we can turn to the dictionary meaning provided by the Motor Vehicles Act, 1939. Mr. Patel took us to Section 2(18) of the M.V. Act which defines 'motor vehicle'. The petitioners' vehicles are such motor vehicles. He then took us to Section 2(18A) which defines 'omnibus'. This is also a type of a motor vehicle and then to the defn'tion of 'stage carriage' found in Section 2(29) and definition of 'tourist vehicle' found in Section 2(29A) and Section 2(3) which defines 'contract carriage.' There is no dispute that the petitioners' vehicles are omnibuses which are contract carriages and they are registered as such in outside States and they are also often visiting Gujarat State under the permits granted to them by other State authorities under Section 63(7) of the M.V. Act. But the moot question is whether only because all these conditions are satisfied, they are entitled to earn exemption granted by notification dated 4-1-1973 which had continued upto 31-12-1983. The learned Advocates of the petitioners submitted that while granting such exemption to tourist vehicles registered in other States and which are visiting Gujarat State under the permits granted to them under Section 63(7) of the M.V. Act by the concerned transport authorities of other States, the State could not have created a mini classification of such tourist vehicles for the purpose of granting exemption by laying down that only those vehicles which are chartered by tourists in other States can earn exemption. Mr. Patel submitted that under valid permits granted under Section 63(7), when the petitioners' vehicles registered outside State of Gujarat visit this State, there is no rhyme or reason why such vehicles cannot be permitted to be chartered by tourists in this State for earning such exemption and there is no reason why such condition should be imposed for earning exemption that such tourist vehicles registered outside the State should be chartered by tourists of such other State. We have already shown earlier the rationable underlying the imposition of such condition. It has also to be stated that Mr. Patel did not submit that this condition for availing of exemption is violative of Article 14 of the Constitution. His grievance was a limited one. He stated that such condition cannot be imposed by the Executive while exercising powers under Section 13(2). We will, therefore, have to examine this limited challenge. It must be kept in view that to get exemption from taxing provision is no one's right. Exemption can be granted under circumstances and conditions which may be laid down by the authorities entitled to grant such exemption. Even this aspect of the matter was not challenged by Mr. Patel and he fairly stated that the State could have refused to grant such exemption and could have withdrawn the exemption notification at any time. But his grievance was that while granting such exemption, such condition about chartering of tourist vehicles only outside the State and not within the State could not have been imposed under Section 13(2). This challenge was based on the ground that under Section 13(2), it is not provided that the State may, subject to such conditions as may be required may grant exemption, and it has been provided that consideration of such exemption may be subject to the provisions of any Rules made in that behalf and nothing more. So far as Rules are concerned, Rule 16A was pressed in service. It lays down "principle for exemption under Section 13. The State Government may, under Sub-section (2) of Section 13. exempt, if it considers it necessary to do so (i) any class of motor vehicle or any motor vehicle belonging to any class of person if such vehicles are used or kept for use in furtherance of any educational, medical or other charitable or religious object...". Our attention was also drawn to Sub-rule (4) thereof which indicates the class of vehicles which would be entitled to such exemption if it is a vehicle, other than transport vehicles, in respect of which tax has been paid in any other State or Union Territory and which are kept in the State of Gujarat during any part of a quarter in respect of which the tax has been paid in such State or Union Territory. So far as Sub-rule (4) is concerned, it deals with entirely a different contingency. It enables the State Government to exempt from tax motor vehicles which have paid the tax in any other State or Union Territory and which are kept in the State of Gujarat during any part of a quarter in respect of which the tax has been paid in such State or Union Territory. The present grievance is not covered by this provision and even if the petitioners' vehicles could have been covered by the said category, it is still optional for the State to exercise powers of exemption under Section 13(2) as it is well settled that exemption is nobody's right. Consequently, it cannot be contended by Mr. Patel that merely because tourist vehicles which are other than transport vehicles have paid tax in other State, ipso facto, they should be exempted from tax by the Gujarat State under Section 13(2). When the said provision, being enabling, provision is out of picture, we are left with the parent provision of Section 13(2). It lays down that subject to the provisions of any rules made in that behalf, meaning thereby, if such rules apply, then subject to the scheme of such rules, the State is entitled to exempt. But even that apart, exemption power is conferred upon the State under the parent provision of Section 13(2). la exercise of that power, the present exemption is granted. So far as that provision is concerned, the State can exempt either wholly or partially any class of motor vehicles other than those falling under Sub-section (1) or any motor vehicles belonging to any class of persons. It cannot be disputed that tourist vehicles registered in any other State in India and covered by the permit under Section 63(7) as issued by the State authority of other Slate, would form one class of motor vehicles. It is not as if that definition of class of motor vehicles as given by the M.V. Act from the only class of motor vehicles which can be covered by Section 13(2) either wholly or not at all. The petitioners' contract carriages are certainly motor vehicles as defined by the relevant provisions of the M.V. Act. Out of that class, for the purpose of exemption, the State Government has selected sub-class of a only those tourist vehicles registered in any other State in India which are chartered by tourists in such other States. These qualifying words found in the exemption notification clearly indicates sub-classification of a class of motor vehicles as defined by the M.V. Act and this sub-class is clearly covered by the sweep of Section 13(2) as it would be a class of motor vehicles of its own. The emphasis tried to be placed by Mr. Patel for this argument on Section 9(2) of the Act is totally besides the point. Section 9 of the Tax Act deals with refund and lays down that a person claiming refund, on an application made in that behalf and subject to such conditions as the State Government may notify in this behalf in the Official Gazette, shall be entitled to refund. Therefore, claim of refund is made subject to conditions notified by the State Government. That scheme is entirely different from the scheme of exemption envisaged by Section 13(2). In fact, the provision about exemption of tourist vehicle registered in other State and chartered by tourists in such other State as found in the notification dated 4-1-1973 is not a condition imposed while granting exemption but it is a qualifying description of the class of motor vehicles for which exemption is contemplated by Section 13(2). It lays down a provision for qualification for exemption and not a condition of exemption as tried to be submitted by Mr. Patel. But even assuming that it is a condition for exemption, as exemption is no one's right, if conditional exemption is granted, it cannot be said that it is dehors the provision of Section 13(2) especially when the condition seeks to delimit the class of motor vehicles for which this exemption is granted and does not impose any restrictive condition dehors the selected class. Reliance placed by Mr. Patel on a decision of this Court in the case of Habib Nasir Khanji v. State, reported in (1970) XI GLR 307 is also of no assistance to him as in that case, the question of power to record additional evidence was on the anvil. It was found that in view of the well settled distinction between the appellate power and the revisional power it cannot be said that Section 209 which refers to the appellate authority also includes the revisional authority and, therefore, different phraseology used by the legislature for both these authorities exhibited different legislative intention in connection with power or record additional evidence. We fail to appreciate how this judgment can be pressed in service. Right to get refund under Section 9 represents a different scheme as compared to exemption from tax which can be granted by the State Government under Section 13(2). It is, therefore, held that description of class of tourist vehicles for the purpose of granting exemption under Section 13(2) as found in notification dated 4-1-1973 is in no way beyond the scope of Section 13(2) nor it is ultra vires the said provision. The third contention, therefore, is also found to be devoid of any substance.
5. However, one aspect of the matter requires to be noted at this stage. Even assuming that Mr. Patel is right in his contention and the following phrase used in the exemption notification 'chartered by tourist in such other State' is found to be beyond the scope of Section 13(2), even then, there is no case of Mr. Patel. The State of Gujarat in its discretion decided to exempt only limited class of tourist vehicles registered outside the State and covered by permit under Section 63(7) of the M.V. Act and visiting the State as contract carriages, from tax leviable by the Gujarat State in exercise of its powers under Section 13(2). That exemption was a fettered exemption subject to the condition that they should have been chartered by tourists in such other State. The State of Gujarat was not inclined to grant exemption to tourist vehicles of that class save and except as fulfilling the aforesaid requirement. If this condition is deleted from the notification, the very heart of the notification would get extinct and as this is the very basis of the notification, this term is not severable as tried to be suggested by Mr. Patel. If the notification is to be given effect to, devoid of this impugned term or condition regarding chartering of these vehicles by tourists in such other State, it would amount to rewriting the notification which is not open to Court. In our view, the condition that the concerned tourist vehicle registered in any other State and covered by permit under Section 63(7) must be chartered by tourists in such other State while entering the Gujarat State, is the very heart and essence of the exemption scheme. If this condition is absent, the entire exercise of exemption would fail. If Mr. Patel's contention is accepted, it will require us to redraft the notification devoid of essential term on which only the State of Gujarat wanted to grant exemption.
6. In our view, the said term was the foundation of the exemption notification and is not a term which is severable and which can be deleted without doing any violence to the very scheme of exemption notification dated 4-1-1973. The exemption notification may stand as a whole or without that condition it would fall as a whole, but there is no via media. Consequently, no such judicial surgery is permissible on the facts of the present case as tried to be suggested by Mr. Patel. Hence, even if Mr. Patel's contention even on merits was found to have any substance, it would have been totally meaningless and would be of no legal effect. Once this aspect of the matter is kept in view and once the exemption notification operates as a whole, nothing is left for the petitioners to hang on for demanding that from 1-1-1973 till the date the said notification was rescinded, i.e., 31-12-1983, they should be exempted from tax pursuant to the very notification which would become a still-born one if Mr. Patel's contention was accepted. This additional aspect also negates the contention of Mr. Patel and makes it substanceless. This contention also, therefore, fails and stands rejected.
7. As a result of the aforesaid discussion, this group of petitions is found to be devoid of any merits with the inevitable result that all these petitions fail and they are dismissed. Rules issued in these petitions are therefore discharged. There will be no order as to costs in each one of them. Interim relief granted will stand vacated forthwith. Civil Applications for vacating stay would not survive and they are get disposed of.