Patna High Court
Bihar Motor Transport Federation And ... vs The State Of Bihar And Ors. on 17 July, 1992
Equivalent citations: 2(1993)ACC123
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. In this writ application, the petitioners inter alia have prayed for issuance of a writ of or in the nature of mandamus directing the respondent No. 2 to forebear from realising the enhanced road tax or additional road tax from the Public Service Motor Vehicles in compliance with the order of this Court dated 15.5.1992 passed in C.W.J.C. No. 5259 of 1992 as also for a direction not to realise the said enhanced road tax or additional road tax with effect from 1.5.1992.
2. The fact of the matter is as follows:
In terms of Bihar and Orissa Motor Vehicles Taxation Act, 1930 road tax was required to be paid by the owners of the motor vehicles including Public Service Motor Vehicles. In the year 1961 the Legislature of the State enacted another Act known 'Bihar Passengers and Goods Tax Act, 1961' whereby taxes upon passengers or goods were levied.
In the year 1982, however the aforementioned Act 1961 was repealed by reason of Bihar Finance Act, 1982, and additional tax was sought to be levied by making amendments in the aforementioned Bihar and Orissa Motor Vehicles Taxation Act, 1930.
3. In October, 1991 a proposal was made for ehancement of road tax and additional tax to the extent of 80%. A representation was made before the State Government on various grounds as mentioned in the writ petition, but despite the same, the Governor of Bihar promulgated an ordinance known 'Bihar Motor Vehicles Taxation (4th Amendment) Ordinance 1991' (Bihar Ordinance No. 8 of 1992), which came into force with effect from 31.1.1992.
4. The petitioners questioned the vires of the aforementioned ordinance in this Court by filing an application under Article 226 of the Constitution of India which was registered as CWJC No. 4259 of 1992. The said writ petition was disposed of by an order dated 15.5.1992 by a Division Bench of this Court in the following terms:
The short question which arises for consideration in this application is as to whether Bihar and Orissa Motor Vehicles Taxation (Fourth Amentment) Ordinance, 1991 (Bihar Ordinance No. 8 of 1992) has lost its force or not.
It is admitted by learned Counsel for the parties that Legislative Assembly and Legislative Council reassembled on 20th March, 1992. However, Legislative Assembly was prorouged on 27th March, 1992. Whereas Legislative Council was prorouged on 28th March, 1992. Evidently, therefore, the Ordinance as referred to above lost its force in view of Article 213(2)(a) of the Constitution of India on 1.5.1992. In this view of the matter, the question of this Court's considering the constitutionality of the said Ordinance does not arise. The question is merely an academic one.
Mr. Jain, however, submits that the said Ordinance has been repromulgated. The constitutionality of repromulgated Ordinance has not been questioned before us an therefore, we do not express any opinion on the constitutionality of the same.
This application is, accordingly, disposed of.
5. It is, therefore, evident that at that point of time the petitioner did not question the vires of the Bihar and Orissa Taxation (Amendment) Ordinance 1992 (Bihar Ordinance No. 13 of 1992) (hereinafter referred to as the said Ordinance) despite the fact that the same came into force on and from 1st May, 1990.
6. Mr. B.N. Singh, learned. Counsel appearing on behalf of the petitioner has principally raised three contentions in support of this application.
The learned Counsel firstly submitted that the said ordinance is ultra vires Article 213(1) of the Constitution of India inasmuch as, 'instruction' from the President of India was not obtained prior to the promulgation thereof.
7. The learned Counsel next contended that from a perusal of Annexure-8 to the writ application, it would appear that the Council of Ministers accorded its approval for advising the Governor in relation to the promulgation of the aforementioned Ordinance in its meeting dated 5th May, 1992 and thus promulgation thereof by the Governor on 1.5.1992 being evidently without the advise of the council of Ministers, the same is ultra vires.
8. It was next contended that as on 1.5.1992 the Governor had no jurisdiction to promulgate the said ordinance realisation of any road tax and additional road tax in pursuance thereof must be held to be wholly illegal and without jurisdiction.
9. This matter was placed under the heading for admission on 7.7.1992 on which date Mr. K.N. Jain, learned Additional Advocate General No. 2 stated that necessary records would be placed on 8.7.1992.
On 8th July, 1992, the learned Additional Advocate General produced before us a copy of the opinion of the Deputy Secretary of the Parliamentary Affairs Department who opined that in relation to the repromulgation of an Ordinance which is identical to the earlier Ordinance and in relation whereof no amendment is required to be made, a fresh advice of the Council of the Minister is not required to be obtained we however, expressed our view that the State should place all other records as we are not bound by the opinion of a Deputy Secretary.
10. Mr. Jain sought for a days adjournment and the matter was heard again on 9th July, 1992.
On 9th July, 1992, Mr. Jain produced before us a memorandum dated 4.1.1992 for consideration of the Council of Ministers, Clause 3 whereof reads as follows:
Yeh bhi prasthaw hai ke Rajya me lagu kisi adhyadesh ke bina kisi sansodhan ka punparkayan hetu mantriparishad ke swakriti ke awysakata nahi hogi. Kintu was haadhyadeshme, isme kisi sansodhan ke awysakata ho, sambandh vibhag dwara mantriparishad ke swakriti prapt kar lena aniwarya hoga.
11. The aforementioned memorandum came up for consideration of the Council of the Ministers in its meeting dated 7th January, 1992 and all the proposals made therein including the item No. 3 as quoted hereinbefore were approved by the Councils of Ministers.
12. According to Mr. Jain, therefore, in view of the fact that Ordinance No. 8 of 1992 and Ordinance No. 13 of 1992 are absolutely indentical, it was not necessary to place the said matter before the Council of Ministers against and evidently the then agenda before the Council of Minister was wrongly meeting dated 5th May, 1992.
13. Mr. Jain has further submitted that prior to re-promulgation of the Ordinance the approval of the Minister of the department concerned had been obtained.
14. Mr. Jain has also placed on records a letter dated 8th January, 1992 issued by the Deputy Secretary of the Parliamentary Affairs of the State of Bihar to the Secretary of Law Department that no further approval of the Council of Ministers was required for repromulgation of the any Ordinance but advice of the Council of the Ministers was necessary only when some amendment is made therein and thus the Law Department was directed to take immediate steps to place such ordinances before the Governor of Bihar for their repromulgation.
15. Mr. B.N. Singh, learned Counsel appearing on behalf of the petitioners submitted that in terms of Article 213 of the Constitution of India, the Governor has jurisdiction to promulgate an ordinance only upon receipt of advice of the Council of Ministers and as in this case the said advice was rendered on 5th May, 1992. Ordinance No. 13 of 1992 which was promulgated on 1st May, 1992, must be held to be ultra vires Article 213(1) of the Constitution of India. It was submitted that advice of one minister in this regard does not fulfil the requirement of law.
16. Learned Counsel in this connection has placed strong reliance upon a Full Bench decision of this Court in Lalit Narayan Mishra, Institute v. State of Bihar reported in 1986 PLJR 1067 as also decision of the Madras High Court in D. Srinivasan v. Governor of Tamil Nadu reported in 1985 Madras 187.
17. Re-contention No. 1 : Article 213(1) of the Constitution of India confers a Legislative power upon the Governer. The promulgation of an Ordinance is made by the Governor as a constitutional head on the cabinet's advice and not in his personal capacity.
18. Clause (2), Article 163 of the Constitution of India creates the advice tendered by the cabinet to the Governor constitutionally privileged beyond any probe and thus the question of testing the satisfaction of the Governor Judicially does not arise.
The satisfaction of the Governor is subjective.
An Ordinance making power is clothed with all the attributes of a legislative Act and this carries with it all the incidents, immunities and limitations attached thereto and the same cannot be questioned on the ground of non application of mind or violation of principles of natural justice.
19. There cannot, however, be any doubt that in terms of Article 213 of the Constitution of India, the power of the Governor can be exercised only on the fulfillment of the conditions mentioned therein, one of them being that the same may be exercised with the aid and advice of Minister.
Reference in this connection may be made to R. C. Cooper v. Union of India 1970 S.C.564.
20. Mr. Singh, has not been able to show that the said Ordinance comes within the purview of proviso to Clause 1 of Article 213 of the Constitution of India. The proviso appended to Clause (1), Article 213 of the Constitution of India is an eviction to the main rule.
21. The legislative power of imposition of tax on the motor vehicles lies within the domain of the State Legislature (See Bolani Ores Ltd. v. The State of Orissa 1975 S.C. 17).
22. It has been held in Bolani Ors. (supra) that the taxing powers of the State comes within the purview of Entry No. 57 List II of the Seventh Schedule of the Constitution of India.
23. It has not been and could not be contended that the State has no legislative competence to enact the subject matter of the Ordinance in question.
24. A Division Bench of this Court in Shyamsundar Roy and Ors. v. The State of Bihar 1983 BLT 16, has upheld the Constitutionality of the Motor Vehicles Taxation Amendment Act, 1982 as introduced by the Finance Act, 1992. It is also accepted at the Bar that the Supreme Court refused to grant Special Leave to appeal as against the aforementioned judgment.
25. Thus, there cannot be any doubt whatsoever that in view of the fact that the State Legislature was competent to impose road tax and additional road tax on Public Service Motor Vehicles, it is within the legislative competbnce to enhance the rate of tax and thus in terms of Clause 2 of Articles 213 of the Constitution of India, an Ordinance also could be promulgated touching the same subject-matter.
26. As the State has the legislative competence to make amendment in the Bihar and Orissa Motor Vehicles Taxation Act, 1930 without obtaining previous sanction of the President for the introduction thereof before the Legislature; the question of obtaining instruction from the President of India prior to promulgation of the said Ordinance does not arise.
27. Re-contention No. 2 : Clause 3 of Article 163 of the Constitution of India reads as follows:
(3) The question whether any, and if so what advice was tendered by Ministers to the Governor shall not be inquired into in any Court.
28. From a bare perusal of the aforementioned provision it is evident that the question as to whether any advice was tendered to the Governor by the Minisers cannot be enquired into by any Court nor the question what advice was tendered to the Governor can be subject matter of a judicial enquiry.
29. There cannot be any doubt that in terms of Article 213 of the Constitution of India as well as item No. 13 of Third Schedule of the Rules of Executive Business, before an ordinances is placed before the Governor for its promulgation, the same must be approved by the Council of Ministers.
30. However, in this case, as noticed hereinbefore, the Council of Ministers themselves resolved in its meeting dated 7th January, 1992 that the matter need not be placed again before it in the matter of repromulgation of an ordinance unless any amendment is required to be made. Thus, in my opinion, the aforementioned resolution of the Council of Ministers satisfies the requirements of Clause 1 Article 213 of the Constitution of India read with Article 163 thereof.
31. It is true that the matter was placed before the Council of Ministers in its meeting dated 5th May, 1992, and in that meeting also a proposal of promulgation of the Ordinance in question was approved but the same might have been done ex-majori cantela and or by way of mistake.
In any event, in view of its earlier resolution dated 7.1.1992, the resolution of the Council of Ministers adopted in its meeting dated 5th May, 1992 was redundant.
32. In this view of the matter, in my opinion, it cannot be said that the Governor had no jurisdiction to promulgate the Ordinance in question. The promulgation of the said Ordinance on 1.5.1992, therefore must be held to be Constitutional and valid.
33. Re-contention No. 3 : In view of my findings aformentioned, it has to be held by way of a logical corollary that the state has power to realise road tax and additional tax in terms of an Ordinance No. 13 of 1992 with effect from 1.5.1992.
34. For the reasons aforementioned, there is no merit in this application which is accordingly dismissed.
35. However, in the facts and circumstances of the case, there will be no order as to costs.