Madhya Pradesh High Court
M.P. All India Tourist Permit Owners vs State Of M.P. And Ors. on 9 August, 2000
Equivalent citations: 2001(5)MPHT15
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. This order shall also decide the bunch of Writ Petitions i.e. W.P. Nos. : 2591/2000 (Raj Kumar Singh v. State of M.P. and Ors.); 2603/2000 (Firoz Khan v. State of M.P. and Ors.); 2639/2000 (Kanker Roadways and Ors. v. State of M.P. and Ors.) ; 2674/2000 (Damodar Prasad Asati v. State of M.P. and Ors.) ; 2728/2000 (Smt. Manju Sahu v. State of M.P. and Ors.) ; 2729/2000 (Hardeo Motor Transport Company v. State of M.P. and Ors.) ; 2730/2000 (Kailash Narayan Rai and Ors. v. State of M.P. and Ors.) ; 2741/2000 (Mahendra Kumar Jain and Ors. v. State of M.P. and Ors.) ; 2792/2000 (Ajinkya Air Bus Service v. State of M.P. and Ors.); 2846/2000 (Gajraj Singh Chouhan v. State of M.P. and Ors.); 2858/2000 (Smt. Sushila v. State of M.P. and Ors.); 2869/2000 (Amrik Singh Sidhu v. State of M.P. and Ors.); 2870/2000 (Sanjay Kumar Chourasia v. State of M.P. and Ors.); 2945/2000 (Ajay Kumar Jaiswal v. State of M.P. and Ors.); 2988/2000 (Jaiprakash Sharma v. State of M.P. and Ors.); 3016/2000 (Durga Bus Service v. State of M.P. and Ors.); 3034/2000 (Vinod Kumar Sood v. State of M.P. and Ors.); 3064/2000 (Mohd. Hasan Khan and Ors. v. State of M.P. and Ors.); 3094/2000 (Raju Pradhan v. State of M.P. and Ors.) ; 3383/2000 (Rajendra Prasad Garg v. State of M.P. and Ors.) ; 3703/2000 (Ashok Kumar Mishra v. State of M.P. and ors.) ; 3146/2000 (Janki Prasad Bisen v. State of M.P. and Ors.) ; 3250/2000 (Ramu Pawar v. State of M.P.) ; 2641/2000 (Umesh Kumar Pathak v. State of M.P. and Ors.) ; and 3634/2000 (Bachchu Rohani v. State of M.P. and Ors.).
2. The petitions are aimed to strike out the provisions of Sub-sections (6), (7) and (8) of Section 16 and Sections 20-A and 20-B of the Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 (hereinafter referred to as "the Act"), inserted by The Madhya Pradesh Motoryan Karadhan (Sanshodhan) Adhiniyam, 1999 (hereinafter referred to as "the Amendment Act 27 of 1999) published in Official Gazette dated 8th December, 1999, having received the assent of the Governor on 30th November, 1999. Under the newly incorporated Sub-section (6) of Section 16, if a vehicle is being plied without permit, the taxation authority, on receipt of report about seizure of the vehicle, has been empowered to confiscate the vehicle where he is satisfied that the owner has committed offence under Section 66 read with Section 192A of the Motor Vehicles Act. Sub-section (7) prescribes safeguards before order of confiscation is passed. Sub-section (8) of Section 16 further provides safeguard that no confiscation shall be made if it is proved to the satisfaction of the Taxation Authority that the vehicle was used under valid documents required under the Act. Sub-section (5) of Section 16 as inserted by the Amendment Act of 1999 puts an embargo on the Courts taking cognizance of the offence to release the vehicle which has been seized, and detained under Sub-section 3 of Section 16 of the Act. Clause (a) of Sub-section (7) of Section 16 provides for sending an intimation in the form prescribed about initiation of proceedings for confiscation of vehicle to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. On receipt of such an intimation in the prescribed form about initiation of proceedings for confiscation, Sub-section (5) of Section 16 comes into play and there is a bar on the Court to release such vehicle with respect to which confiscation proceeding has been initiated under Section 16, Sub-sections (5), (6), (7) and (8) of Section 16 incorporated by Amendment Act No. 27/99 are quoted hereunder:
"(5) Where a motor vehicle has been seized and detained under Sub-section (3), the Court taking cognizance of the offence shall not release such vehicle.
(6) Subject to the provisions of Sub-section (8), where, the taxation authority upon receipt of report about the seizure of the vehicle under Sub-section (3) is satisfied that the owner has committed offence under Section 66 read with Section 192A of the Motor Vehicles Act, 1988 of plying Vehicle without permit (and) he may by order in writing and for reasons to be recorded confiscate the vehicle seized under said sub-section. A copy of order of confiscation shall be forwarded without any undue delay to the Transport Commissioner.
(7) No order of confiscating any vehicle shall be made under Sub-section (6) unless the Taxation Authority,--
(a) sends an intimation in the form prescribed about intimation of proceedings for confiscation of vehicle to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made;
(b) issues a notice in writing to the person from whom the vehicle is seized and to the registered owner;
(c) affords an opportunity to the persons referred to in Clause (b) of making a representation within such reasonable time as may be specified in the notice against the proposed confiscation; and
(d) gives to the officer effecting the seizure and the persons or persons to whom notice has been issued under Clause (b), a hearing on date to be fixed for such purpose.
(8) No order of confiscation under Sub-section (6) of any vehicle shall be made if any person referred to in Clause (b) of Sub-section (7) proves to the satisfaction of the Taxation Authority that such vehicle was used under valid documents required under the Act."
3. Amendment in the M.P. Motoryan Karadhan Rules, 1991 has also been made vide Notification No. F. 8-6-99-VIII, dated 28th January, 2000 in exercise of the powers conferred by Section 24 of the M.P. Motoryan Karadhan Adhiniyam, 1991. By the said amendment, Sub-rule (4) and Sub-rule (5) have been inserted after Sub-rule (3) of Rule 17 of the 1991 Rules. The said amendment is to the following effect :-
"(1) After Sub-rule (3) of Rule 17, the following sub-rules shall be inserted, namely :-
(4) The detained vehicle shall not be released by the Officer or Taxation Authority seizing it if proceedings of confiscation under Sub-section (6) of Section 16 of the Act has been initiated by the Taxation Authority.
(5) The Taxation Authority shall send the intimation for initiation of proceedings for confiscation of vehicle under Clause (a) of Sub-section (7) of Section 16 of the Act in Form "X" to the Magistrate having jurisdiction to try the offence."
Thus, by inserting Sub-rule (4), the power of the officer seizing the vehicle or the Taxation Authority to release the detained vehicle has been taken away if proceedings of confiscation under Sub-section (6) of Section 16 of the Act have been initiated. Sub-rule (5) of Rule 17 prescribes the form in which an intimation as contemplated under Clause (a) of Sub-section (7) of Section 16 is to be sent to the Magistrate having jurisdiction to try the offence.
4. Under Section 20-A as amended by the Amendment Act of 1999, any person aggrieved by an order of confiscation may file an appeal within thirty days of the order or, if fact of such order has not been communicated to him, within thirty days of the date of knowledge of such order. On such appeal being filed, the appellate authority shall send a notice of the appeal to the Taxation Authority. The Appellate Authority may then pass such order of interim nature for custody or disposal, if necessary, of the confiscated vehicle as may appear to be just in the circumstances of the case. The Appellate Authority shall peruse the record and hear the parties to the appeal or their legal practitioner, as the case may be, and shall thereafter pass an order either confirming, or reversing or modifying the order of confiscation. Section 20-B provides for filing of a revision against the order of the appellate authority only on a point of law and such revision has to be filed within the Sessions division where the headquarter of the appellate authority situates.
5. Section 20-C re-inforces the mandate of newly inserted Sub-section (5) of Section 16 and provides a non-obstante clause that except in the case of Sub-section (3) of Section 20-A, no Court, Tribunal or Authority (other than the Taxation Authority) shall have jurisdiction to make order with regard to possession, delivery or disposal of vehicle regarding which proceedings for confiscation are initiated under Sub-section (6) of Section 16.
6. The newly inserted provisions of Sections 20-A, 20-B and 20-C read thus :-
"20-A. (1) Any person aggrieved by an order of confiscation, may within thirty days of the order or if fact of such order has not been communicated to him, within thirty days of the date of knowledge of such order, prefer an appeal in writing accompanied by such fee and payable in such form as may be prescribed, and by certified copy of order of confiscation to the Appellate Authority.
Explanation : The time requisite for obtaining certified copy of order of confiscation shall be excluded while computing period of thirty days referred to in the sub-section.
(2) The appellate authority shall send intimation in writing of lodging of appeal to the Taxation Authority.
(3) The Appellate Authority may pass such order of interim nature for custody, or disposal if necessary of the confiscated vehicle as may appear to be just in the circumstances of the case.
(4) On the date fixed for hearing of the appeal or on such date to which the hearing may be adjourned, the Appellate Authority shall peruse the record and hear the parties to the appeal if present in person, or through a legal practitioner and shall thereafter proceed to pass an order of confirmation, reversal or modification of the order of confiscation.
(5) The Appellate Authority may also pass such orders of consequential nature, as it may deem necessary.
(6) Copy of final order or of order of consequential nature, shall be sent to the Taxation Authority for compliance.
20-B. (1) If the owner of a vehicle is aggrieved by final order or by order of consequential nature passed by the Appellate Authority in respect of confiscated vehicle, he may within thirty days of the order sought to be impugned, submit a petition for revision to the Court of Session only on a point of law within the Session division where the headquarters of the Appellate Authority are situate.
Explanation - In computing the period of thirty days under this sub-section, the time requisite for obtaining certified copy of order of Appellate Authority shall be excluded.
(2) The court of Session may confirm, reverse or modify any final order or an order of consequential nature passed by the Appellate Authority.
(3) Copies of the order passed in revision shall be sent to the Appellate Authority and to the Taxation Authority for compliance or for taking such further action as may be directed by such Court.
(4) For entertaining, hearing and deciding a revision under this Section, the Court of Session shall, as far as may be, exercise the same powers and follow the same procedure as prescribed for hearing and deciding a revision under the Code of Criminal Procedure, 1973 (No. 2 of 1974).
20-C. Notwithstanding anything to the contrary contained in this Act or any law for the time being in force but subject to the provisions of Sub-section (3) of Section 20-A, no Court, Tribunal or Authority (other than the Taxation Authority) shall have jurisdiction to make order with regard to possession, delivery or disposal of vehicle regarding which proceedings for confiscation are initiated under Sub-section (6) of Section 16."
In Sub-section (2) of Section 24 of the Principal Act, after Clause (g) the following clause has been inserted, namely:--
"(g-i) the form of intimation to the Magistrate under Clause (a) of Sub-section (7) of Section 16".
7. The Government of Madhya Pradesh has appointed the Fifteenth February, 2000 as the date on which the aforesaid Act came into force in exercise of the powers conferred by Sub-section (2) of Section 1 of the Amendment Act.
8. The State Government has further inserted Rule 18-A in the Madhya Pradesh Karadhan Rules, 1991 providing the necessary particulars to be incorporated in the memorandum of appeal against the order of confiscation. The newly inserted Rule 18-A reads thus :-
"18-A. Appeal against the order of Confiscation.- (1) A memorandum of appeal against the order of confiscation under Sub-section (6) of Section 16 shall --
(a) be in writing;
(b) specify the name and address of the appellant;
(c) specify the date of the order against which it is preferred;
(d) specify the date on which the order was communicated to the appellant;
(e) contain a clear statement of facts;
(f) specify the ground on which the appeal is preferred without any argument or narrative and numbered consecutively;
(g) state precisely the relief prayed for; and
(h) be signed and verified by the appellant or an agent duly authorised by him in writing in this behalf in the following form, namely:-
I...........the appellant in the memorandum of appeal do hereby declare that what is stated therein is true to the best of my knowledge and belief.
.....................
Signature of the appellant (2) The memorandum of appeal shall be presented to the appellate authority by the appellant or his duly authorised agent personally.
(3) The memorandum of appeal shall be accompanied by a cash receipt or Treasury Challan of Rs. 50/- in token of the payment of fee."
9. The petitioners are mostly bus operators. Some of them ply jeep etc. Their vehicles Buses, Jeeps have been seized and proceedings for confiscation of the vehicles under Sub-section (6) of Section 16 of Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 have been initiated by the Taxation Authority.
10. We have heard at length Shri J.P. Gupta, Senior Advocate, and S/Shri B.K. Rawat, A.G. Dhande, M.S. Chouhan, S.L. Kochar and A.K. Jain Advocates for the petitioners and Shri V.K. Tankha, Advocate General with Shri S.K. Seth, Dy. A.G. for the State Government. M.P. State Road Transport Corporation has intervened in the matter represented by Shri Ravindra Shrivastava, Advocate with Shri Prem Francis, Advocate.
11. The submission raised by the learned counsel for the petitioners before us is mani-fold. Their submissions are -
(i) M.P. State Legislature has no legislative competence to enact Sub-sections (6), (7) & (8) of Section 16 and Sections 20-A, 20-B and 20-C as inserted by Amendment Act of 1999 (No. 27/99) as the Parliament has enacted under Entry 35, List III of Second Schedule to the Constitution of India the Motor Vehicles Act, 1988 which came into force w.e.f. 1st July, 1989. The Amendment Act (No. 27/99) deals with the subject of Motor Vehicles Act, 1988 which is the field already covered by the said Act. The provisions as inserted by the Amendment Act of 1999 (No. 27/99) are repugnant to the provisions of Section 66 read with Section 192A of Motor Vehicles Act, 1988 inasmuch as Section 192A provides a penalty against the person who drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of Section 66(1) or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used. The section provides that the persons so found guilty shall be punished for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees, and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both. Thus, provision for confiscation of the vehicle by the impugned amendment tantamounts to enhancing the penalty prescribed under the Motor Vehicles Act, 1988 and the amended provisions create repugnancy and, having not received the assent of the President to the extent of repugnancy, are void.
(ii) It is submitted that Motor Vehicles Act, 1988 is a complete code, hence Amendment Act No. 27/99 transgresses in field occupied by it. Special reference has been made to Sections 66, 192A, 207, 72, 74, 79, 69, 73, 74, 80, 81, 82, 87, 88 and 177 to 210 of Motor Vehicles Act, 1988.
(iii) It is further submitted that any tax due can be recovered as arrears of land revenue, hence provision for confiscation is unconstitutional.
12. On the other hand, learned counsel for the State submitted that the M.P. Motoryan Karadhan Adhiniyam, 1991 is a legislation as per Entry 56 and Entry 57 List II of Seventh Schedule to the Constitution of India and within the State legislative competence. It is submitted that the Motor Vehicles Act, 1988 does not provide for the taxation (Karadhan) the Parliament can lay down only the principles on which taxes on such vehicles are to be levied and not beyond that. It is urged alternatively that in any case, if the amendment relates to subject matter of Entry 35 List III of Seventh Schedule to the Constitution the State legislature is competent to enact the law even without the assent of President as it is not repugnant to any of the provisions of Motor Vehicles Act, 1988. However, Presidential assent came to be given to the Act of 1991 as the State legislature was superseded during Presidential Rule when the Act of M.P. Motoryan Karadhan Adhiniyam, 1991 was promulgated. Thus, the amendment by Act No. 27/99 which is supplemental in nature requires no further assent of the President.
13. The Madhya Pradesh Road Transport Corporation has intervened in the matter and submitted that various routes have been reserved in favour of the Corporation, but there is rampant plying of vehicles without permit by private bus operators resulting in huge loss to the State exchequer. Thus, private bus operators are plying illegally on the routes which are covered by permits granted to State Transport Corporation. The M.P.S.R.T.C. is established by the State Government and it is put to great loss of revenue by reason of plying of vehicles unauthorisedly as stage carriage in flagrant violation of the Karadhan Adhiniyam. Hence the impugned provision has been made in the interest of the revenue. It does not suffer from the vice of arbitrariness or repugnancy with the Central enactment i.e. Motor Vehicles Act, 1988.
POINTS FOR CONSIDERATION:
14. The points which arise for consideration in the case are :
(1) Whether Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 is an enactment under Entry 56 and Entry 57 List II of Seventh Schedule to the Constitution of India; whether the Amendment Act (No. 27/99) is within the purview of Entries 56 and 57 and the M.P. Motoryan Karadhan Adhiniyam, 1991 or under Entry 35, List III, Seventh Schedule to the Constitution of India; and whether the Amendment Act encroaches on any of the Central Enactment?
(2) Whether the Amendment Act (No. 27/99) encroaches upon the field occupied by the Motor Vehicles Act, 1988 and it creates repugnancy with the provisions of Motor Vehicles Act, 1988 and in order to save it from being ultra vires and void it required prior assent of the President?
(3) Whether the Amendment Act No. 27/99 is, arbitrary and/or otherwise unconstitutional?Point No. 1
15. The argument advanced on behalf of the petitioner at theu Bar is that the Sanshodhan Adhiniyam is within the purview of Entry 35 of List III which is the Concurrent List of Seventh Schedule to the Constitution of India whereas the submission of the learned counsel for the State is that keeping in view the aims of M.P. Motoryan Karadhan Adhiniyam, 1991 it is an enactment within the purview of Entry 56 and 57 of List II, Seventh Schedule to the Constitution of India. In order to ascertain the scope of the two Entries, it is useful to quote them :
"56. Taxes on goods and passengers carried by road or on inland waterways
57. Taxes on vehicles, whether mechanically propelled or not suitable if for use on roads including tramcars subject to the provisions of Entry 35 of List III"
Entry 35, List III, Seventh Schedule to the Constitution of India reads thus :-
"35. Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied."
16. Every Entry has to be given full play with respect to the field of legislative competence of enactment by the Parliament and the State legislature concerned. A bare reading of Entry 35, List III, Seventh Schedule to the Constitution of India which is in Concurrent List reflects that under, this Entry, it is competent for the Parliament and State legislature to make legislation about "mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied". Thus, under Entry 35 of Concurrent List the Parliament is competent to enact with respect to the principles on which taxes on mechanically propelled vehicles are to be levied. Similarly, State legislature is also competent to prescribe under this entry "principles on which tax on mechanically propelled vehicles are to be levied". The entry significantly deals laying down of principles on which tax on mechanically propelled vehicles are to be levied. In the entry use of the words "principles on which taxes are to be levied" is important as incident of taxation is specifically confined as a State subject in List II i.e. State List, Entry 57 of List II of Seventh Schedule. Entry 57 in its ambit covers all types of vehicles, whether mechanically propelled or not, suitable for use on roads including tramcars subject to the provisions of Entry 35 of List III. Thus, Entry 57, to a limited extent, has to operate subject to the provisions of Entry 35 of List III of Seventh Schedule. Entry 56 also empowers State legislature to impose tax on goods and passengers carried by road or inland waterways. While the matter of principles on which taxes on mechanically propelled vehicles are to be levied falls under Entry 35 of the Concurrent List, the power to levy tax on vehicles, whether mechanically propelled or not, is the exclusive domain of the State legislature under Entry 57 of List II, Schedule Seventh to the Constitution of India. If there is an existing law enacted by the Parliament laying down principles on which taxes on mechanically propelled vehicles should be levied, then any State legislation enacted under Entry 57 of List II must conform to those principles as laid down in the existing law, or the earlier law made by the Parliament, to the extent of repugnancy to such provision would be void until and unless reserved for the consideration of and assented to by the President.
17. Article 254 of the Constitution of India has also been pressed into service by the learned counsel for the petitioners. Article 254 is quoted thus :-
"254. (1) If any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to the matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
18. In our considered opinion, it follows that- (i) the State Legislature is not competent to enact a law repugnant to any provisions of law exclusively to be enacted by the Parliament; (ii) the existing enactment made by the Parliament with respect to one of the matters enumerated in the Concurrent List shall prevail and the State law to the extent of repugnancy be void, whether the State law has been passed before or after the law made by the Parliament, if it has not -received assent of President i.e. law made by the legislature of the State even if repugnant to the provisions of an earlier law or existing law made by the Parliament with respect to that matter shall prevail if it has been reserved and has received the assent of the President; and (iii) if there is no repugnancy with respect to a subject matter enacted by the State Legislature with the existing law or the earlier law made by the Parliament, there is no necessity of receiving the assent of the President with respect to the subject matter which the State legislature is competent, to enact under the concurrent list.
19. In order to examine the rival contentions, it is necessary to first dwell upon the object and ambit of M.P. Motoryan Karadhan Adhiniyam, 1991 and the provisions contained therein. The Act came into force w.e.f. 1st of January, 1992. Under Section 3, tax shall be levied on every motor vehicle used or kept for use in the State at the rate specified in the First Schedule. Under Section 5, the tax levied under the Act shall be paid in advance by the owner of the motor vehicle, at his choice, quarterly, half yearly or yearly on a token to be obtained by him. It is further provided that tax levied in respect of a stage carriage plying on a route other than a city route or a contract carriage other than a motor cab shall be paid in advance monthly, quarterly, half yearly or annually within ten days from the beginning of the month, quarter, half year or year, as the case may be. Local authorities have been barred to impose tax or enhance the tax, toll, or licence fee in respect of a motor vehicle under Section 6 of the Act. Section 16 deals with the power of entry, seizure and detention of motor vehicles in case of non-payment of tax. Sub-sections (1) to (4) of Section 16 run as under:
"16. Power of entry, seizure and detention of Motor Vehicles in case of non-payment of tax : (1) The Taxation Authority or any other officer, authorised by the State Government in this behalf, may at all reasonable time enter into and inspect any motor vehicle or premises where he has reason to believe that a motor vehicle is kept for the purpose of verifying whether the provisions of this Act or any rules made thereunder are being complied with:
Provided that no officer shall be authorised under this sub-section with respect to motor cycles and motor cars :
(2) Any person driving a motor vehicle in any public place shall, on being so required by the Taxation Authority or any officer authorised in this behalf by the State Government, produce--
(a) the certificate of registration;
(b) the token in evidence of the payment of tax ; and
(c) the certificate of insurance relating to the use of the vehicle and shall keep such vehicle stationary for such time as may be required by such authority or officer to satisfy himself that the tax in respect of such motor vehicle has been paid :
Provided that in the case of a motor vehicle other than a transport vehicle; the certificates so required shall be produced for inspection within such period and in such manner as may be prescribed under Sub-section (4) of Section 130 of the Motor Vehicles Act, 1988.
(3) The Taxation Authority or any officer authorised by the State Government in this behalf may if he has reason to believe that a motor vehicle has been or is being used without payment of tax, penalty or interest due, seize and detain such motor vehicle and for this purpose take or cause to be taken any step as may be considered proper for the temporary safe custody of such motor vehicle and for the realisation of tax due.
(4) Where a motor vehicle has been seized and detained under Sub-section (3), the owner or the person incharge of such vehicle may apply to the Taxation Authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and if such authority or officer after verification of such documents, is satisfied that no amount of tax is due in respect of that vehicle, may by an order in writing release such vehicle."
By the Amendment Act of 1999 (No. 27/99), Sub-sections (5) to (8) have been further inserted. Sub-section (3) of Section 16 empowers the Taxation Authority or any officer authorised by the State, if he has reason to believe that a motor vehicle has been or is being used without payment of tax, penalty or interest due, to seize and detain such motor vehicle. Sub-section (4) gave the power to release the vehicle if such authority or officer, after verification of the documents, is satisfied that no amount of tax is due in respect of the vehicle.
20. Sub-section (1) of Section 3 of the Motoryan Karadhan (Sanshodhan) Adhiniyam, 1999 prescribes the rates at which tax is to be levied. The rates of tax depend upon the types of vehicles and the capacity of the vehicle to carry passengers and it has also necessary correlation with the licence. Public Service vehicles are required to pay taxes as mentioned in Entry IV to 1st Schedule. With respect to vehicles permitted to ply as deluxe or express service, tax is payable for every passenger which the vehicle is permitted to carry and it has relation with the distance permitted to be covered by the service in a day. Different rate of tax is prescribed for vehicles plying as contract carriage covered by All India Tourist Permit. Tax has also been prescribed in respect of vehicles of other States permitted to ply as ordinary service, deluxe or express service with reciprocal agreement or without reciprocal agreement. The Act also prescribes taxes for the vehicles having contract carriage licence to carry six or more passengers, as the case may be, covered by All India Tourist Permit, whether issued by other State or by M.P. State.
21. The different rates have been prescribed for stage carriage permit and contract carriage permit. Under sub-item (g) of Item IV, if a motor vehicle is plied without permit, the tax liability in respect of vehicle permitted to carry exceeding 3 but not exceeding 29 passengers has been prescribed to be Rs. 600/- per seat per month. That has correlation to the seating capacity and for vehicle permitted to carry more than 29 passengers, Rs. 1000/- is the rate prescribed. Explanation (7) to Schedule I defines the words "plying without permit" in Clause (g) of Item IV of First Schedule. The said Explanation reads thus:
"Explanation (7) The words "plying without permit" in Clause (g) shall include plying of a public service vehicle on an authorised route or making a trip not authorised by a permit granted under the Motor Vehicles Act, 1988 but shall not include the plying of a public service vehicle under circumstances laid down in Sub-section (3) of Section 66 of the Motor Vehicles Act, 1988."
Thus, Explanation (7) to Schedule I of M.P. Motoryan Karadhan Adhiniyam 1991 aims at putting a restriction on the public service vehicle plying without permit on an authorised route or making a trip not authorised by a permit granted under the Motor Vehicles Act, but the only exceptions are in the exigencies of the peculiar circumstances carved out under Sub-section (3) of Section 66 of the Motor Vehicles Act, 1988. Sub-section (1) of Section 66 of the Motor Vehicles Act provides that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. However, Sub-section (3) of Section 66 contains exceptions with respect to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise; any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes; any transport vehicle used solely for police, fire brigade or ambulance purposes, etc. as specified in Clauses (a) to (p).
22. Thus, Motoryan Karadhan Adhiniyam, 1991 aims at thwarting user of the vehicle not operated by permit, that is to say, using the permit in violation of its conditions subject to exceptions carved out in Section 66(3) of Motor Vehicles Act, 1988. It is necessary under the Karadhan Adhiniyam to pay the tax in advance for such user. Thus, plying of a vehicle having contract carriage permit as a stage carriage amounts to plying without a permit within the meaning of Explanation (7) of Schedule 1 of M.P. Motoryan Karadhan Adhiniyam, 1991. "Contract Carriage" is defined in Sub-section (7) of Section 2 of the Motor Vehicles Act, 1988 which reads thus :
"(7) 'contract carriage' means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum--
(a) on a time basis, whether or not with reference to any route of distance; or
(b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes--
(a) a maxi-cab; and
(b) a motor-cab notwithstanding that separate fares are charged for its passengers."
A contract carriage has to be used for hire or reward engaged under a contract. What is important is that the vehicle must have been contracted for hire or reward for use 'as a whole' for carriage of passengers. Further, the vehicle engaged under such contract, entered into by a person with a holder of a permit in relation to the vehicle or any person authorised by him, shall not stop to pick up or set down passengers not included in the contract anywhere during the journey, and includes a maxi-cab and a motor-cab. Thus, what is necessary is that such a vehicle must have been taken on hire or reward for use as a whole for carriage of passengers mentioned in the contract. It is not authorised to pick up or set down individual passengers not included in the contract. Thus, the very concept of contract carriage distinguishes it materially from 'stage carriage' which is defined in Sub-section (40) of Section 2 of the Motor Vehicles Act which reads as under :
"(40) 'stage carriage' means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey".
It is thus apparent that stage carriage is to carry passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey.
23. The Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 has different incidents of taxation to both category of vehicles i.e. for "contract carriage" and "stage carriage".
Chapter V of the Motor Vehicles Act, 1988 deals with control of transport vehicles. Section 66 of the said Act prohibits use of a motor vehicle as a transport vehicle in any public place save in accordance with the conditions of a permit issued in this behalf. Section provides for making of application for stage carriage permit. Section 72 deals with the grant of stage carriage permits. A motor vehicle can be used as a stage carriage on specified routes as contemplated in Section 2(40) of the Motor Vehicles Act.
24. Sections 73 and 74 of Motor Vehicles Act, 1988 deals with the application and grant of contract carriage. Contract carriage has been defined in Sub-section (7) of Section 2. Sub-section (9) of Section 88 of the Act envisages grant of permits in respect of tourist vehicle valid for the whole of India or in such contiguous States not being less than three in number. Sub-section (43), of Section 2 of the Motor Vehicles Act defines "tourist vehicle" as under:--
"(43) 'tourist vehicle' means a contract carriage constructed or adapted and equipped and maintained in ?" acccordance with such specifications as may be prescribed in this behalf."
25. No contract carriage can ply as tourist vehicle save in accordance with the conditions enumerated in Rule 85 and unless it conforms to the specifications as mentioned in Rule 19 of the Rules framed by the Central Government, namely, Central Motor Vehicles Rules, 1989. Rule 85 of the said Rules reads thus:
"85. Additional conditions of tourist permit.- The following shall be the additional conditions of every tourist permit granted to a tourist vehicle other than a motor cab under Sub-section (9) of Section 88, namely :--
(1) The permit holder shall cause to be prepared in respect of each trip a list in triplicate of tourist passengers to be carried in the vehicle, giving full particulars as under :-
(a) names of the passengers,
(b) addresses of the passengers,
(c) age of the passengers,
(d) starting point and the point of destination.
(2) One copy of the list referred to in Sub-rule (1) shall be carried in the tourist vehicle and shall be produced on demand by the officers authorised to demand production of documents by or under the provisions of the Act and the Rules, and the second copy shall be preserved by the permit holder;
(3) The tourist vehicle shall either commence its journey, or ends its journey, circular or otherwise, in the home State, subject to the condition that the vehicle shall not remain outside the home State for a period of more than three months. The permit holder shall see that every return of the tourist vehicle to the home state is reported to the authority which issued the permit:
Provided that where the contracted journey ends outside the home State, the vehicle shall not be offered for hire within that State or from that State to any other State except for the return journey to any point in the home State.
(4) The tourist vehicle may operate circular tours of places lying exclusively in home State or in the home State and outside the State if such circular tours are in the list approved by the tourist department of the home State to visit places of tourist, historical or religious importance and the tour is duly advertised before hand.
(5) The permit holder or his authorised agent shall issue a receipt to the hirer and the counterfoil of the same shall be kept available with him and produced on demand to the officers empowered to demand documents by or under the Act.
(6) The tourist vehicle shall not be parked on any bus-stand used by stage carriage and shall not operate from such bus-stand.
(7) The tourist vehicle shall be painted in white colour with a blue ribbon of five centimeters width at the centre of the exterior of the body and the word "Tourist" shall be inserted on two sides of the vehicle within a circle of sixty centimeters diameter.
(8) The permit holder shall display in the front top of the tourist vehicle a board in yellow with letters in black with the inscription "Tourist permit valid in State(s) of......." in English and Hindi and also, if he so prefers, in regional language of the home State.
(9) The permit holder shall not operate the tourist vehicle as a stage carriage.
(10) The permit holder shall maintain a day to day log-book indicating the name and address of the permit holder and the registration mark of the vehicle, name and address of the driver with the particulars of his driving licence and the starting and destination points of the journey with the time of departure and arrival and the name and address of the hirer.
(11) The permit holder shall furnish every 3 months the information contained in condition (10) to the State Transport Authority which granted the permit and the log-book shall be preserved for a period of 3 years and shall be made available to the said authority on demand along with the records, referred to in conditions (2) and (4).
Explanation--In this rule, "home State" means the State which has granted the permit under Sub-section (9) of Section 88.
85-A.-The following shall be the additional conditions of every tourist permit in respect of motor cabs.- (1) The words "Tourist Vehicle" shall be painted on both the sides of the vehicle within a circle of twenty-five centimeters diameter.
(2) A board with the inscription "Tourist Permit valid in the State(s) of........" in black letters in yellow background shall be displayed in the front of the vehicle above the registration number-plates :
Provided that this rule shall not apply to motor cabs covered under the 'Rent a Cab' Scheme, 1989.
26. The deviation between a vehicle covered by All India Tourist Service and an ordinary vehicle is that for the vehicle covered by an All India permit it is imperative to carry a list containing full particulars of each tourist. The State of Madhya Pradesh has also framed rules, namely, M.P. Motor Vehicles Rules, 1994. Under Sub-rule (4) of Rule 77, payment of tax in accordance with the provisions of M.P. Motoryan Karadhan Adhiniyam, 1991 is one of the essential conditions of a permit. Rule 77(4) of M.P. Motor Vehicles Rules, 1994 is to the following effect:--
"77 (4) It shall be a condition of every permit that taxes shall be paid in respect of the vehicle in accordance with the provisions of the Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 (No. 25 of 1991) and the rules made thereunder. When the Transport Authority has suspended a permit for non-payment of tax the order of suspension shall be in force as long as the tax remains unpaid and shall become inoperative immediately on payment of the tax due on the vehicle."
27. None of the provisions of Motor Vehicles Act, 1988 nor the rules framed thereunder prescribes actual levy of tax on goods and passengers or tax on vehicle suitable for use on road. Entries 56 and 57 of State List (II) of Seventh Schedule to the Constitution of India reserve power to levy tax exclusively with the State. We are of the considered opinion that M.P. Motoryan Karadhan Adhiniyam, 1991 has been enacted within the purview of Entries 56 and 57 of List II of Seventh Schedule (State List) to the Constitution of India. The State legislature cannot be denied its competence of enacting the Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991. Though it was sheer coincidence that said Act received the President's assent as at the relevant time the State Legislature owing to the imposition of Presidential Rule was not in existence, otherwise the assent of the President to the M.P. Motoryan Karadhan Adhiniyam, 1991 was not required.
28. The question still to be examined as tried to be bisected at the Bar is that the amendment, as a matter of fact, deals with the subject covered under Parliament legislation i.e. Motor Vehicles Act, 1988 and is repugnant to Section 192A and other provisions of the said Act which provides a complete code in itself and the amendment is within the purview of Entry 35, List III of Seventh Schedule to the Constitution of India.
29. The main plank of submission raised by the petitioners is based on Sections 66, 192A, 200, 207 and 208 of the Motor Vehicles Act, 1988. Section 66 deals with the necessity for permits by providing that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. Stage carriage permit, subject to the conditions, can authorise the use of the vehicle as a contract carriage or goods carriage either when carrying passengers or not. A goods carriage can be allowed to be used for the drawing of any trailer or semi-trailer under Sub-section (2) of Section 66. Under Sub-section (3) certain vehicles are exempted from the rigour of Sub-section (1) of Section 66. Sub-section (1) which is relevant for our purpose reads thus:
"66. Necessity for permits.- (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:
Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not: Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.
30. An application has to be made for permit under Section 69. Sections 70 and 71 deal with the applications for stage carriage permit and procedure to be adopted by Regional Transport Authority in considering the application for stage carriage permit. Section 72 deals with the grant of stage carriage permits.
31. Contract carriage permit application has to be moved by giving the particulars mentioned in Section 72 and has to be dealt with in accordance with the provisions of Section 74 of the Motor Vehicles Act. Section 75 deals with the Scheme for renting of motor cabs. Section 76 deals with the application for private service vehicle permit. Section 84 provides the general conditions attaching to all permits. Section 86 deals with cancellation and suspension of permits for breach of any condition specified in Section 84 or of any condition contained in the permit, or in case of unauthorised use of possession or ownership of the vehicle, or if the holder of the permit ceases to own the vehicle, or if the permit has been obtained by fraud or misrepresentation or the vehicle has not been used for the purpose for which the permit was granted, or if the holder of the permit acquires the citizenship of any foreign country.
32. Section 192A of the Motor Vehicles Act, 1988 provides for the penalty for using a vehicle without permit. Section 192A may be usefully quoted:
"192A. Using vehicle without permit.-- (1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Sub-section (1) of Section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both: Provided that Court may for reasons to be recorded, impose a lesser punishment.
(2) Nothing contained in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injury or for the transport of material for repair or for the transport of food or materials to relieve distress or of medical supplies for a like purpose:
Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use.
(3) The Court to which an appeal lies from any conviction in respect of an offence of the nature specified in Sub-section (1), may set aside or vary any order made by the Court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made."
33. Section 192A provides for penalty on a person who drives a motor vehicle or the person allowing or causes to allow the motor vehicle to be used in contravention of the provisions of Sub-section (1) of Section 66 or in contravention of any condition or a permit relating to area or the purpose for which a vehicle may be used. But this penalty is clearly with respect to use of a vehicle without permit or contravention of any condition of a permit. Section 192A prescribes penalty against a person whereas under the M.P. Motoryan Karadhan Adhiniyam a vehicle is subjected to tax, and if it is plied without proper payment of tax and requisite permit then it is plying without permit within the Explanation (7) of First Schedule to M.P. Motoryan Karadhan Adhiniyam, 1991. Thus, the Madhya Pradesh Motoryan Karadhan Adhiniyam has a different field to operate i.e. incident of taxation which is not dealt with by the Motor Vehicles Act, 1988.
34. Further, Section 200 of the Motor Vehicles Act, 1988 deals with the compounding of certain offences punishable under Sections 177, 178, 179, 180, 181, 182 and other sections mentioned therein. Section 208 contains the procedure for disposal of cases as summary trial.
35. On behalf of the petitioners it has been urged that both the enactments i.e. the Motor Vehicles Act, 1988 and the Madhya Pradesh Motoryan Karadhan Adhiniyam, Amendment Act (No. 27/99) deal with the "same matter".
Learned counsel for the petitioners pressed into service the decision in Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752, wherein scope of Article 254(2) of the Constitution of India came up for consideration. It is held that Article 254(2) of the Constitution has enlarged the powers of Parliament as compared to Govt. of India Act. Parliament can do what the Central Legislature could not under Section 107(2) of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the State when it relates to a matter mentioned in the Concurrent List. Even if the Parliament has not repealed the State law, the State law will be wiped of under that provision if it conflicts with the later "law with respect to the same matter" that may be enacted by Parliament. The important aspect to consider with reference to this provision is whether the legislation is "in respect of the same matter". If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character then Article 254(2) will have no application. Thus, State legislature is competent to enact a law of a cognate and allied character and that would not be in violation of Article 254(2). The essense of Article 254 is that when there is a legislation covering the same ground both by the Centre and by the State, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.
36. Incident of taxation is a State subject and it is for non-payment of tax when vehicle is being plied without a permit. Under Sub-section (6) of Section 16 of M.P. Motoryan Karadhan Adhiniyam the vehicle is liable for confiscation simpliciter as it is violation of condition contained in Section 66 of the Motor Vehicles Act, 1988 while committing an offence within the purview of Section 66(1) and Section 192A, a vehicle can still be liable for taxation under Item (g), Entry IV, Schedule I of Motoryan Karadhan Adhiniyam, 1991 and for violation of it and plying without permit as contemplated in Explanation (7) to First Schedule of the Karadhan Adhiniyam, 1991, a vehicle can be detained and seized and if it is without permit it can be subjected to confiscation.
37. In the case of Zaverbhai Amaidas (supra), the Bombay Act No. 36 of 1947 came up for consideration. Its preamble recites that it was to provide for the enhancement of penalties for contravention of orders made under the Act of 1946. There were subsequent legislations in 1949 and 1950 when Act No. 52 of 1950 came into force. As per Section 7(1) of the Essential Supplies (Temporary Powers) Act, 1946, maximum punishment was prescribed. It was held that Section 7 is a comprehensive code covering the entire field of punishment for offences under the Act, graded according to the commodities and the character of the offence. Enhancement of punishment was also dealt with in Act No. 52/1950. Hence it was laid down that Act No. 52 of 1950 is a legislation in respect of the same matter as Act No. 36 of 1947. Such situation is not obtainable in the instant case. Motor Vehicles Act, 1988 and M.P. Motoryan Karadhan Adhiniyam are two different enactments. Taxes are prescribed under the M.P. Motoryan Karadhan Adhiniyam whereas under the Motor Vehicles Act conditions of permits on which vehicle can ply are prescribed. Motor Vehicles Act, 1988 is an enactment under Entry 35, List III, Schedule VII. Thus, the two enactments have totally different fields to operate. Holding of permit is cognate matter and there is no encroachment made on Motor Vehicles Act, 1988 by M.P. Motoryan Karadhan Adhiniyam, 1991 including the Amendment Act of 1999 (No. 27/1999) for the several reasons which are to be dealt with hereinafter.
38. The learned counsel for the petitioners further placed reliance on Supreme Court decision in Tika Ramji v. State of U.P., AIR 1956 SC 676. In the said case, the question of repugnancy had arisen for reason of both Parliament and State legislations having operated in the same field in respect of a matter listed in Entry 52 of List I. The three tests for determining repugnancy or inconsistency were noted in paras 27 and 28. The learned counsel have also pressed into service the decision in Deep Chand v. State of U.P., AIR 1959 SC 648, in which the Apex Court laid down three tests following the decision in Tika Ramji (supra) to ascertain the repugnancy between two laws on the basis of principles - (i) Whether there is direct conflict between the two provisions; (ii) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature; (iii) Whether the law made by Parliament and law made by the State Legislature occupy the same field.
39. Another decision relied upon by the learned counsel for the petitioner is Vijay Kumar Sharma v. State of Karnataka, AIR 1990 SC 2072. In the said decision, the question came up for consideration was whether Section 20 of the Karnataka Act has become void with the enforcement of Motor Vehicles Act, 1988. The applications for grant of contract carriage permits were not entertained by the concerned transport authorities under the provisions of Motor Vehicles Act, 1988. The Karnataka Contract Carriages (Acquisition) Act (21 of 1976) received the assent of the President on 11th of March, 1976. The said Act was promulgated with a view to prevent misuse of the public service vehicles detrimental and prejudicial to the public interest. The Motor Vehicles Act, 1988 has liberalised the provisions relating to grant of permits of contract carriages. The vires of the Karnataka Act was upheld holding that the said Act was an Act within the ambit of the Concurrent List in Seventh Schedule to the Constitution. The Court took note of the fact that even though it may have had some incidental impact on inter-State trade or commerce it did not suffer from any lacuna on that account. Since the Act had been reserved for Presidential assent, to the extent Section 20 of the said Act made provisions contrary to those in the Motor Vehicles Act of 1939, was taken to be valid under Article 254(2) of the Constitution. The Apex Court while considering the scope of Article 254 of the Constitution, in paragraph 10 has laid down that repugnancy can arise only with reference to a legislation falling under the Concurrent List. There is no repugnancy if the competing legislations are not in respect of one of the matters enumerated in the Concurrent List within the purview of Article 254. Articles 254(1) and 254(2) though apply to different situations, but in one sense both the clauses operate on a similar level though in dissimilar context. Emphasis was laid on the following observations in Zaverbhai Amaidas's case (supra) :-
"The important thing to consider with reference to this provision is whether the legislation is 'in respect of the same matter'. If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct, matters though of a cognate and, allied character, then Article 254(2) will have no application."
40. Reliance has also been placed on the decision in M. Karunanidhi v. Union of India, AIR 1979 SC 898, wherein it has been held that so far as Clause (1) of Article 254 is concerned, it clearly lays down that where there is a direct collision between a provision of a law made by the State and that made by the Parliament with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Clause (2), the State law would be void to the extent of the repugnancy. The Parliament law being prior in point of time will prevail and consequently the State Act will have to yield to the Central Act. Regarding the matters contained in List I, i.e. the Union List to the Seventh Schedule, Parliament alone is empowered to legislate and the State Legislatures have no authority to make any law in respect of the Entries contained in List I. Secondly, so far as the Concurrent List is concerned, both Parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but subject to the condition laid down by Article 254(1) discussed above. Thirdly, so far as the matters in List II, i.e. the State List are concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions Parliament can do so. Repugnancy may arise where the provisions of a Central Act and a State Act are fully inconsistent and are absolutely irreconcilable. In such situation, the Central Act will prevail and the State Act will become void in view of the repugnancy. In case the State Act is repugnant and has received the assent of the President, it would prevail over the law enacted by the Parliament with respect to subject covered under the Concurrent List i.e. List III, Seventh Schedule to the Constitution of India. Further, where a law passed by the State Legislature while being substantially within the scope of the Entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.
41. It was laid down in paragraph 17 of the decision in Vijay Kumar Sharma's case (supra) that the Karnataka State Act intended to eliminate private operators from the State in regard to contract carriages acquired under the existing permits, vehicle and ancillary property and with a view to giving effect to a monopoly situation for the State undertaking made provisions in Section 20 for excluding the private operators. The 1988 Act does not purport to make any provision in regard to acquisition of contract carriage permits which formed the dominant theme or the core of the State Act. Nor the Motor Vehicles Act, 1988 under Sections 73 and 74 indicates as to who the applicant shall be while laying down how an application for a contract carriage permit shall be made and how such a permit shall be granted. Section 80 of the 1988 Act does not contain a liberalised provision in the matter of grant of permits but here again it has to be pointed out that the ancillary provision contained in Section 20 of the Acquisition Act does not directly run counter to the 1988 Act provision. In para 18 the Supreme Court has observed thus :
"18. Section 20 of the State Act creates a monopoly situation in favour of the State undertaking qua contract carriages by keeping all private operators out of the field. Since Sections 73, 74 and 80 of the 1988 Act do not contain any provision relating to who the applicants for contract carriages can or should be, and those Sections can be applied without any difficulty to the applications of the State undertakings, and there does not appear to be any repugnancy between the two Acts for invoking Article 254 of the Constitution. A provision in the State excluding a particular class of people for operating contract carriages or laying down qualifications for them, would not run counter to the relevant provisions of the 1988 Act."
42. The learned counsel for the petitioners has further laid emphasis on the law enunciated by the Apex Court in State of Orissa v. M.A. Tulloch & Co., AIR 1964 SC 1284, in paragraph 15 which may be reproduced:
"15. But even if the matter was res integra, the argument cannot be accepted. Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the constitution expressly or by necessary implication provides that the enactment of one legislature has superiority over the other then to the extent of repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for, if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation and intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. In the present case having regard to the terms of Section 18 (1) it appears clear to us that the intention of Parliament was to cover the entire field and thus to leave no scope for the argument that until rules were framed, there was no inconsistency and no supersession, of the State Act."
43. In order to buttress their submission, petitioners have further relied on the decision in case of State of Assam v. Horizon Union, AIR 1967 SC 442. In the said case, the question for consideration was appointment of Presiding Officer of Industrial Tribunal and the qualifications prescribed under Section 7A(3)(aa) of the Industrial Disputes Act, 1947 as inserted by Assam Act No. 8 of 1962 and the I.D. Act, 1947 as amended by Central Act No. 36 of 1964. The Supreme Court set aside the decision of the Assam High Court observing that insertion of Clause (aa) by Central Act No. 36/64 impliedly repealed Clause (aa) inserted by the Assam Act. The Central Act now occupies the field, hence to the extent of repugnancy, the Assam Act was void.
44. Another decision cited on behalf of the petitioners is Dr. A.K. Sabhapathy v. State of Kerala, AIR 1992 SC 1310, wherein notification issued under the Travancore-Cochin Medical Practitioners' Act came up for consideration. Proviso to Section 38 of the said Act empowered the State Government to permit a person to practise allopathic system of medicine even though he does not possess recognised medical qualifications for that system of medicine. It was held to be repugnant to the provisions of All India Medicine Central Council Act and void to the extent of repugnancy. Sections 15 and 21 read with Sections 11 & 14 of the Indian Medical Council Act, 1956 made the recognised medical qualifications necessary to practise that system of medicine. To that extent the qualification for that system of medicine prescribed under the State Act which permitted a person to practise allopathic system of medicine even though he does not possess recognised medical qualifications as prescribed by the Central Act was held to be void. Thus, in the said case there was a direct conflict between the qualifications prescribed under the State Act and the Central Act.
45. The Entries in the Seventh Schedule to the Constitution of India must be given full play and must receive widest cannotation. Considering the Entry 56 of the IInd List (State list) in Schedule VII which refers to taxes on goods and passengers carried by road or inland waterways, the tax can be imposed on goods and passengers carried by road or inland waterways under Entry 56. "Carried by road or inland waterways" is an adjectible clause qualifying goods and passengers. The goods as such cannot pay taxes and so taxes levied on goods has to be recovered from some persons and these persons must have direct connection before they can be called upon to pay the tax in respect of carried goods. Similarly, it would be inexpedient, if not impossible to recover the tax directly from the passengers. Hence it is competent for legislature to provide for the recovery of said tax by requiring bus owners to pay the said tax. Similarly, in Entry 57 "suitable for use on roads" is an adjectible clause qualifying the vehicles irrespective of the fact that they are mechanically propelled or not. Thus, on all types of vehicles suitable for use on roads tax can be imposed under Entry 57 and that has obviously to be paid by a man. Under this Entry 57, the State Legislature has exclusive power to impose tax on all vehicles suitable for use on roads and such tax imposed must have some nexus with the vehicles using public roads of the State because it is of a compensatory nature as laid down in Bolani v. State of Orissa, AIR 1975 SC 17.
46. Entry 57, List II, Seventh Schedule clearly contemplates that if there is an existing law made by the Parliament laying down the principles on which the taxes are to be levied, then any other legislation in regard to that entry must conform to those principles as laid down in the distinct law or the earlier law made by the Parliament. If, however, Parliament while enacting a law relating to motor vehicles refrains from indicating any principles relating to their taxation, the State's power to tax such vehicles or to grant exemption would remain uninhibited.
47. Motor vehicles taxation Acts of the States are regulatory and compensatory legislations outside the range of Article 301 of the Constitution. Article 301 provides that trade, commerce and intercourse throughout the territory of India shall be free. Every State has the right to make its own legislation to compensate it for the services, benefits and facilities provided by it for motor vehicles operating within the territory of the State. Taxes resulting from such legislative activity are by their very nativity and nature, cast and character, regulatory and compensatory and, therefore, not within the vista of Article 301. It cannot be said that Madhya Pradesh Motoryan Karadhan Adhiniyam is a mere pretext designed to injure the freedom of inter-state trade, commerce and intercourse. Thus, Motor Vehicles Act is outside the range of Article 301 of the Constitution. This in our opinion finds support from the law laid down in B.A. Jairam v. Union of India, AIR 1983 SC 1005.
48. It is not disputed at the Bar that the Parliament while enacting a law relating to motor vehicles did not lay down any principle relating to their taxation. Hence, Madhya Pradesh Motoryan Karadhan Adhiniyam cannot be said to violate principles of law enacted by Parliament as to taxation as envisaged in Entry 35, List III, Seventh Schedule to the Constitution of India.
49. Entry 35 in List III and Entry 57 in List II of Seventh Schedule deal with two different matters though allied ones. One deals with taxes on vehicles and the other the principles on which such taxes are to be levied. It has been laid down in the context of these very entries by the Apex Court in the case of State of Assam and Ors. v. Labanya Probha, AIR 1967 SC 1575, that when two entries in the Constitution, whether in the same List or different Lists, deal with two subjects, if possible, an attempt shall be made to harmonize them rather than to bring them into conflict. Taxes on vehicles in their ordinary meaning can note the liability to pay taxes at the rates at which the taxes are to be levied. On the other hand, the expression "principles of taxation" denotes rules of guidance in the matter of taxation.
50. While adjudging the constitutional validity of the impugned Amendment Act (No. 27/99) it has also to be borne in mind that the incident of tax is intrinsically connected with the issue of permit. Thus plying with a permit on payment of the requisite tax, that is to say, having a valid permit for the purpose, is the sine qua non of incident of tax under the Karadhan Adhiniyam, 1991. Holding of a permit is pith and substance of the incident of taxation under the M.P. Motoryan Karadhan Adhiniyam. If a person is plying without permit he is essentially avoiding the taxation which is the pith of the permit. Permit is intrinsically connected with the taxation. Applying the test of pith and substance, the Amendment Act is within the ken of Entry 57 List II, Seventh Schedule. It is not rendered invalid, assuming it incidentally touches upon matters reserved for federal legislature as per law laid down in Prafulla Kumar v. Bank of Commerce, AIR 1947 PC 60. It has been laid down thus :
"It is not possible to make a clean cut between the powers of the Federal and Provincial Legislatures. They are bound to overlap and where they do the question to be considered is what is the pith and substance of the impugned enactment and in what list is its true nature and character to be found. The extent of invasion by the provinces into subjects in Federal List is an important matter not because the validity of a Provincial Act can be determined by discriminating between degrees of invasion but for determining the pith and substance of the impugned Act. The question is not has it trespassed more or less but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not a Provincial matter but a Federal matter. Once that is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true import."
51. The doctrine of pith and substance while considering the legislative competence to enact was construed in the case of Chaturbhai M. Patel v. Union of India, AIR 1960 SC 424. It has been laid down that in every case where the legislative competence of a legislature in regard to a particular enactment is challenged with reference to the entries in the various lists it is necessary to examine the pith and substance of the Act and if the matter comes substantially within an item in the Central List it is not deemed to come within an entry in the Provincial list even though the classes of subjects looked at singly overlap in many respects. It is within the competence of the Central legislature to provide for matters which otherwise fall within the competence of the provincial legislature if they are necessarily incidental to effective legislation by the Central legislature on a subject of legislation expressly within its power. In Chaturbhai (supra) reliance was placed by Apex Court on Attorney General for Canada v. Attorney General for British Columbia, 1930 AC. 111 at page 118, and Attorney General for Canada v. Attorney General for Quebec, 1947 AC. 33 at page 43. In Gallagher v. Lynn., 1937 AC. 863, it was held that if the true nature and character of an Act is to protect the health of the inhabitants then even though it may incidentally affect trade, it is not enacted in respect of trade. Moreover, it is a fundamental principle of Constitutional law that everything necessary to the exercise of a power is included in the grant of the power. Reliance was further placed on Edward Mills Co. Ltd. v. The State of Ajmer, AIR 1955 SC 25 at p. 32.
52. It appears that in order to provide teeth to the provisions of the existing Karadhan Adhiniyam, it was decided by the State legislature to incorporate therein Sub-sections (5) to (8) of Section 16, and Sections 20-A, 20-B and 20-C as confiscation is necessary for effective exercise of power under the Karadhan Adhiniyam, 1991 so as to prevent misuse of the provisions. Their Lordships of the Supreme Court in Chaturbhai's case (supra) observed that while interpreting the scope of the Entries, the widest possible amplituade must be given to the words used and each general word must be held to extend to ancillary or subsidiary matters which can fairly be said to be comprehended in it. Apex Court also referred to United Provinces v. Mst. Atiqa Begum, AIR 1941 FC 16, Navinchandra Mafatlal v. Commissioner of Income-tax, AIR 1955 SC 58, and State of Madras v. Cannon Dunkerley and Co., AIR 1958 SC 560. Thus, the Karadhan Amendment Act in question clearly deals with the ancillary or subsidiary matter within the purview of Entries 56 and 57 of list IInd, Seventh Schedule to Constitution of India.
53. The Motoryan Karadhan Adhiniyam, 1991 provides for forfeiture. The power of forfeiture is incidental to the incident of taxation. In the case of State of Orissa v. Orissa Cement Limited, AIR 1986 SC 178, wherein a provision directing the trader to 'cough up' collections wrongly made by him from the purchasers otherwise than in accordance with the provisions of the Orissa Sales Tax Act and to make over the same to the Government as also further obliging the State to refund the amounts so collected to the person or persons from whom these had been collected, were challenged. It was laid down that the said provisions fall within the incidental and ancillary powers of the State Legislature while enacting a taxing statute under Entry 54, List II of the Seventh Schedule. In para 3 of the said decision, the Apex Court observed :-
"The crux of the question raised in all these decisions was whether a provision directing the trader to 'cough up' collections wrongly made by him from the purchasers otherwise than in accordance with the provisions of the Act and to make over the same to the Government as also the further provisions obliging the State to refund the amounts so collected to the person or persons from whom these had been collected would fall within the incidental and ancillary powers of the State Legislature while enacting a taxing statute under Entry 54, List II of the Seventh Schedule, and the final decision of the Constitution Bench has answered the question in the affirmative upholding the validity of such provisions. While doing so the Constitution Bench disagreed with the view taken in Ashoka Marketing Co.'s case (supra). As regards Abdul Quader's case this Court felt that the crucial ration of the decision was to be found in the following significant observations made in that judgment : "it (the law) does not provide for a penalty for collecting the amount wrongly by way of tax from purchasers which may have been justified as a penalty for the purpose of carrying out the objects of the taxing legislation" and the Constitution Bench observed that this significant observation demarcated the constitutional watershed between merely laying hands upon collections by way of tax by traders although they were not exigible from traders and the policing by penalizing, including forfeiting illegal exactions, the working of a taxing statute and inhibiting injury to the public and since the Maharashtra Act as applicable to the State of Gujarat contained a prohibition against collecting such amounts from purchasers, a penalty and forfeiture the impugned provisions were valid inasmuch as these properly fell within ancillary and incidental powers ancillary and incidental to the power to levy a tax under Entry 54, List II."
It has been further observed, relying on AIR 1977 SC 2279, that in strict legality once the money is forfeited to the State, there is no obligation to make over to the purchaser. Thus, power of forfeiture was upheld in a different context with respect to Entry 54 of List II of Seventh Schedule.
54. Respectfully following the law laid down in the above quoted Apex Court decisions, on testing the Amendment Act No. 27/99 amending the M.P. Motoryan Karadhan Adhiniyam inserting Sub-sections (5) to (8) and Sections 20-A, 20-B and 20-C and its irreconcilability with Section 66 of Motor Vehicles Act, 1988 Section 192A and other provisions, it becomes crystal clear that there is no entrenchment for the reason that the matters covered by the M.P. Motoryan Karadhan Adhiniyam, 1991 and Motor Karadhan (Sanshodhan) Adhiniyam, 1999 (Act No. 27/99) are not subject matters covered by Entry 35. List III (Concurrent List), Schedule VII to the Constitution of India. Hence, Article 254 has no application to the instant case as under Entry 56/57, State List II, Schedule VII to Constitution of India State Legislature is competent to provide complete machinery with respect to taxation, consequences of plying vehicle without payment of taxes prescribed for contract carriages or tourist vehicles or the stage carriage, as the case may be. The State Legislature is fully competent to enact law providing consequences for plying without a permit, which necessarily means without payment of requisite tax. Explanation (7) to Schedule I of Karadhan Adhiniyam makes it clear that vehicles "plying without permit" include plying of a vehicle on an unauthorised route or making a trip not authorised by a permit granted under the Motor Vehicles Act, 1988. That is also an offence under Section 66 read with Section 192A of the Motor Vehicles Act, 1988 but for purposes of Karadhan the State Legislature is empowered to lay down tax and the consequences of evasion of tax on such a permit within the purview of Entry 57 of List II of Seventh Schedule to the Constitution of India which field cannot be said to be covered by the Motor Vehicles Act, 1988 which is an enactment under Entry 35, List III of Seventh Schedule nor the Amendment Act in question can be said to be a law with respect to the same subject. It deals with incident of taxation. Its evasion and plying without permit are necessarily violation of the provisions of M.P. Motoryan Karadhan Adhiniyam, 1991. We have no hesitation to hold that Motoryan Karadhan Amendment Act (No. 27/99) does not overlap the provisions contained in the Motor Vehicles Act, 1988. We find no conflict between the provisions of Section 192A of the Motor Vehicles Act and Sub-section (6) of Section 16 of the Karadhan Adhiniyam, 1991. The Motor Vehicles Act though prescribes for a permit cannot be said to be a Code with respect to the incident of taxation, much less an exhaustive code in that regard. The Entry 35 under which the Act of 1988 has been enacted or the said Act does not deal with the actual incident of taxation and consequences of its non-compliance. Thus, the law of State Legislature under M.R. Motoryan Karadhan Adhiniyam and the Motor Vehicles Act, 1988 do not occupy the same field.
55. Incidentally, it may also be noticed that this Court has upheld the validity of unamended M.P. Motoryan Karadhan Adhiniyam, 1991 in the case of Jabalpur Bus Operators Association v. Union of India, 1993 (2) MPJR 373. It was held in the said case that the Act is intra vires the Constitution and is not a colourable piece of legislation. It was observed that it is the duty of the Court to make the statute operative and unless it is impossible to make it operative, it is not permissible to declare the statute unworkable because a statute is designed to be workable and, therefore, the interpretation thereof by a Court should be to secure that object. It was further held that the liability for payment of tax is dependent on the permit issued of the vehicle owned and possessed by the owner and not on the basis of passengers carried in the vehicle on a particular day. When liability for payment of tax is dependent on the permit, then it cannot be said that the State Legislature while enacting Amendment Act (No. 27/99) dealing with the question of plying without a permit has exceeded its competence to legislate. Explanation (7) to Schedule I, Item 4, Clause (g) of M.P. Motoryan Karadhan Adhiniyam, 1991 as amended by Act No. 26/99 has clarified the meaning of the words "plying without permit" to include plying of a public service vehicle on an authorised route or making a trip unauthorisedly. The purpose of Explanation (8) is to clarify that owner is liable to pay tax leviable under Clause (g) irrespective of the fact whether he has been prosecuted or not and where he has been prosecuted irrespective whether the case is pending or has been decided. The intention of the Explanation is to ensure that tax is paid irrespective whether the owner is prosecuted and, if prosecuted, his prosecution is pending or is over and tax is leviable even if the vehicle is a public service vehicle. Explanations (7) and (8), which aimed at clarification of the fact that tax under Clause (g) is leviable on vehicles including public service vehicle either in the absence of criminal prosecution or during pendency of criminal prosecution, were held to be not violative of Article 14 of the Constitution by a Division Bench, this Court in the case of Naveen v. State of M.P. (1994 MPLJ 681).
56. The Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 does not prohibit the free flow of trade and commerce. It only provides the conditions subject to which a vehicle can ply. It only imposes a rider and intends to get rid of vehicles plying without permit or using the permits in an unauthorised way avoiding the incident of taxation. In Nirmala Jagdischandra Kabra v. The Transport Commissioner and Ors., AIR 1997 SC 1405, the question arose about detention of vehicle for violation of contract carriage permit by taking passengers other than those mentioned in list enclosed to permit from one destination to another, even without picking up or setting down on route. It was held that the necessary consequence of such use of the vehicle would be that the vehicle has been or is being used as a stage carriage and not a contract carriage. Under those circumstances, detention of the vehicle was held to be proper.
57. Confiscation which is contemplated under the Karadhan Adhiniyam has correlation with the incident of taxation and confiscation is ancillary to the incident of taxation and not holding of permit. Entries 56 and 57, List II, Seventh Schedule to the Constitution deal with matters under which the M.P. Motoryan Karadhan Adhiniyam, 1991 has been enacted by the State Legislature.
Point No. 2.
58. Now, we advert to alternative submission to test 'repugnancy'. Even if it is held that Amendment Act No. 27/99 of Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 deals with respect to the subject matter of Entry 35, List III (Concurrent List), Seventh Schedule to the Constitution of India, does it create any repugnancy with Motor Vehicles Act, 1988 within meaning of Article 254 of Constitution of India. Though we have already dealt with it to limited extent, before we proceed to consider the difference between the two provisions i.e. Section 192A of the Motor Vehicle Act and Section 16 (6) of the Karadhan Adhiniyam, it would be apt to note down the law laid down by the Apex Court while considering the question of repugnancy. In M. Karunanidhi v. Union of India, AIR 1979 SC 898, the Apex Court has laid down that repugnance between a law made by a State and the Parliament may result from the following circumstances:
(1) Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
(2) Where however if law passed by the State comes into collision with a law passed by Parliament in an entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with Clause (2) of Article 254.
(3) Where a law passed by the State Legislature while being substantially within the scope of the entries in the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.
(4) Where, however, a law made by the State Legislature on a subject covered by Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affair will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254."
After carving out the circumstances in which repugnancy within Article 254 may arise, it has been further considered by their Lordships how to determine the repugnancy. The tests which have been laid down are :
(1) In order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.
(2) There can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
(3) Where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without corning into collision with each other, no repugnancy results.
(4) Where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field."
Relying on the decision in Shyamakant Lal v. Rambhajan Singh, AIR 1939 EC. 74, the Supreme Court further observed :
"When the question is whether a Provincial legislation is repugnant to an existing Indian law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other, and care should be taken to see whether the two do not really operate in different fields without encroachment. Further, repugnancy must exist in fact, and not depend merely on a possibility."
59. In the case of Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019, their Lordships have laid down that the question of repugnancy under Article 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurent List, and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy, become void. Further, in para 69 it has been observed thus :
"There was a controversy at one time as to whether the succeeding words "with respect to one of the matters enumerated in the Concurrent List" govern both (a) and (b) or (b) alone. It is now settled that the words "with respect to" qualify both the clauses in Article 254(1) viz. a law made by Parliament which Parliament is competent to enact as well as any provisions of an existing law. The underlying principle is that the question of repugnancy arises only when both the Legislatures are competent to legislate in the same field i.e. with respect to one of the matters enumerated in the Concurrent List. Hence, Article 254(1) cannot apply unless both the Union and the State laws relate to a subject specified in the Concurrent List, and they occupy the same field."
Relying on Tika Ramji's case, AIR 1956 SC 676, it was observed that no question of repugnancy under Article 254 of the Constitution could not arise where Parliamentary legislation and State legislation occupy different fields and deal with separate and distinct matters even though of a cognate and allied character. The test of repugnancy would be whether Parliament and State Legislature, in legislating on an entry in the Concurrent List, exercised their power over the same subject-matter or whether the laws enacted by parliament were intended to be exhausted as to cover the entire field. Pith and substance argument cannot be imported here for the simple reason that, when both the Centre as well as the State Legislatures were operating in the concurrent field, there was no question of any trespass upon the exclusive jurisdiction of the Centre under Entry 52 of List I, the only question which survived being whether put in both the pieces of legislation enacted by the Centre and the State Legislature, there was any such repugnancy.
60. To adjudge the question of repugnancy on principles laid down by Apex Court, we find that under Sub-section (6) of Section 16, of impugned amended Karadhan Adhiniyam, confiscation will be by taxation authority. The criminal prosecution of person initiated under Motor Vehicles Act. Section 192A is not an alternative to confiscation proceedings. Confiscation proceedings and criminal prosecution have their own purpose and ends. The object of the confiscation proceedings under Karadhan Adhiniyam is to prevent evasion of the taxes and is directed against the vehicle and the means used for committing the violation of the provisions of the Act. The object of the prosecution under Section 192A is to punish the offender. The plea raised that the two proceedings are for the same purpose is wholly untenable and is not acceptable. They have distinct purposes and cover different areas. A person would be punished under the Motor Vehicles Act 1988 whereas under M.P. Motoryan Karadhan Adhiniyam for plying without a permit i.e. for violating the provisions of the Adhiniyam it is the vehicle which is subjected to confiscation. The proceedings for confiscation cannot be said to be arbitrary or otherwise unconstitutional. It has its own purpose and does not put any unreasonable bar on the free flow of traffic. It is regulatory and aims at strict compliance of the Karadhan Adhiniyam. Incident of taxation is directly and intrinsically connected with the permit. The Motor Vehicles Act does not provide for confiscation of the vehicle, hence there is no question of any repugnance created by Section 16 (6) of the Amendment Act No. 27/99 amending the Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991. The scheme of the Act contains adequate safeguards. Firstly, taxation authority has to satisfy that the offence of plying without permit has been committed. Such an authority is required to record in writing the reasons before any order of confiscation is passed and prior to such an order of confiscation is passed Section 16 (7) and (8) requires sending of information to Magistrate having jurisdiction to try the offence of plying without a permit. Show cause notice is required to be given under Section 16 (7) (b) not only to the registered owner but also to the person from whom the vehicle has been seized. Opportunity of making representation is also guaranteed under Section 16 (7) (c) before any order of confiscation is passed and for that reasonable time is ensured. That opportunity is not to be an eye-wash. Not only opportunity of representation, but hearing on a date to be fixed for the purpose is also mandated before any valid order of confiscation is passed. Such opportunity of hearing has to be given to the officer effecting the seizure and also to the person from whom the vehicle is seized and to the registered owner, as the case may Sub-section (8) of Section 16 further ensures against any arbitrariness. The authority, if it is proved that such vehicle was used under valid documents required under the Act, i.e. the Motoryan Karadhan Adhiniyam, 1991, no order of confiscation can be passed and the vehicle has to be released. Section 16 (3) contains a provision for seizure and retention of a vehicle and that can be done by taxation authority or any other authority authorised by State Government in this behalf and such power of retention has been upheld in the context of Motor Vehicles Act by their Lordships of the Apex Court in the case of Nirmala Jagdishchandra Kabra (supra). The expression 'hearing' is one of broad import. It includes opportunity to adduce evidence also. Further, from Clause (8) of Sub-section (7) it is clear that documents are also to be considered. Though seizure can be made by a person authorised by the government, but power of confiscation has been given to the taxation officer which is Regional Transport Authority.
61. The Karadhan Adhiniyam provides further safeguards in the matter of confiscation. Under amended Section 20-A of M.P. Motoryan Karadhan Adhiniyam, 1991, appeal against the order of confiscation lies to the Transport Commissioner who is the head of the transport department in the State and further, in the appeal he is empowered by Section 28 to pass just orders of interim nature of custody or disposal, if necessary, of the confiscated vehicle, of course, with due regard to the circumstances of the case. In the appeal, a date has to be fixed for hearing. The appellate authority is required to peruse the record. Not only that, at the time of hearing the appeal parties can be represented by an Advocate/legal practitioner of their choice and the parties are also free to appear in person. It is only after perusing the documents and hearing the parties as aforementioned that appellate authority is required to pass an order of confirmation, reversal or modification. The appellate authority is also empowered to pass such order of consequential nature as it deems necessary. The intimation of the filing of appeal as well as the final order has to be sent to the taxation authority for compliance.
62. Further, under Section 20-B inserted by Amendment Act No. 27/99 in the Karadhan Adhiniyam, 1991 owner of the vehicle may prefer revision against the order of confiscation to the Court of Sessions on a question of law within the sessions division where the headquarter of the Appellate Authority situate. The Court of Sessions is given the same powers as are available to it under the Code of Criminal Procedure and it has to follow the same procedure for hearing and deciding a revision under the Code of Criminal Procedure, 1973. The Appellate Authority and the Taxation Authority are bound to comply with the order passed in revision.
63. Section 20-C of the Adhiniyam provides that where proceedings for confiscation are initiated under Sub-section (6) of Section 16, no Court, Tribunal or Authority (other than the Taxation Authority) shall have jurisdiction to make order with regard to possession, delivery or disposal of the vehicle. Thus, Taxation Authority has the jurisdiction to make orders with regard to possession, delivery or disposal of the vehicle regarding which proceedings for confiscation are initiated. However, when an order has been passed by the Appellate Authority under Section 20-A and a revision is preferred under Section 20-B, the revisional Court under Sub-section (4) of Section 20-B is empowered to exercise powers under the Code of Criminal Procedure while deciding the revision. Thus, the revisional Court is empowered to pass orders of interim nature, if necessary for custody or disposal, as may be necessary during the pendency of revision. The bar indicated by Section 20-C is with respect to the period when the proceedings are pending before the taxation authority for confiscation. Thus, adequate safeguards are provided and there is no possibility of denial of justice. Thus, the provisions cannot be said to be creating repugnancy with Section 192A of the Motor Vehicles Act, 1988. The provisions cannot be said to be arbitrary nor that the seizing officer has been given uncanalised discretion. The Taxing Authority cannot be said to be Judge in his own cause. The doctrine of bias can have no application particularly when hierarchy of proceedings and adequate safeguards are made. Seizing officer normally is officer subordinate to Taxing Authority.
64. As already stated, the provision for confiscation of the vehicle in M.P. Motoryan Karadhan Adhiniyam, 1991 is not introduced to punish the offender or its operator or the registered owner or hirer, etc. but to ensure strict compliance of the Karadhan Adhiniyam whereas Section 192A of the Motor Vehicles Act is to punish the offender for using the vehicle without permit which amounts to violation of the provisions of the said Act. Once confiscation proceedings are initiated the confiscation officer has a legal custody over the property concerned. In the case of Kailash Chand v. State of M.P., AIR 1995 MP 1, while considering the validity of a similar provision under the Forest Act where prosecution for the offence before the Court and confiscation before the authorised officer are provided, this Court has upheld the constitutional validity of the provision.
65. It may further be seen that the Supreme Court in D.F.O. and Ors. v. G.V. Sudhaker Rao and Ors. AIR 1986 SC 328, considered provisions contained in the Andhra Pradesh Forest Act, 1967. The question arose in the said case was regarding confiscation proceedings till the disposal of a criminal case. The Supreme Court took the view that the change in the law was brought about with a view to prevent the growing menace of ruthless exploitation of Government Forest by illicit felling of teak and other forest produce by unscrupulous traders, particularly from Reserved Forests by providing for a machinery for confiscation of illegally felled trees or forest produce by forest authorities. There was no provision in the Act enabling the Forest Officers to confiscate such timber or forest produce and implements etc. used for committing forest offences even in a case where he was satisfied that a forest offence had been committed. In view of this the Forest Department was finding it difficult to curb the forest offences effectively and quickly in spite of the fact that large scale smuggling of forest produce was on the increase.
Hence, it was thought necessary to empower officials of the Forest Department seizing to confiscate any property instead of making a report of seizure to the Magistrate. Therefore, the proceedings for confiscation were held to be not in conflict with the jurisdiction of the Magistrate. Rejecting the contention that there may be conflict of jurisdiction of the authorised officer and the Magistrate, the Apex Court observed :--
"It would, therefore, appear that there can be no conflict of jurisdiction between the authorised officer acting under Sub-section 2-A of Section 44 of the Act to direct confiscation of the property seized under Sub-section (1) on his being satisfied that a forest offence has been committed and the Magistrate making an order for confiscation of the property so seized on conviction of an accused for a forest offence under Section 45. The power of confiscation conferred on the authorised officer under Sub-section (2A) of Section 44 of the Act is separate and distinct from the power of the Magistrate to direct confiscation on conviction of an accused under Section 45."
Thus, it can safely be culled out from aforesaid discussion that power of confiscation with the competent officer/authority can co-exist with power to prosecute offender with Magistrate and such powers do not conflict with each other in the situation obtaining in the present case.
66. The contention raised at Bar that under the Code of Criminal Procedure, the Court is having the power for disposal of the property and the same could not be curtailed is also answered by the Supreme Court in the case of D.F.O. and Anr. v. G.V. Sudhaker Rao (supra) wherein the decision of the Andhra Pradesh High Court in State of A.P v. P.K. Mohammed, (1978) 1 APLJ 391 was approved and it was observed that the general provisions of Sections 452 and 457 of Cr.P.C. must necessarily yield where a statute makes a special provision with regard to forfeiture of the property and its disposal. In our opinion, standard of proof required for proving an offence under the Motor Vehicles Act is higher as compared to the proceedings for confiscation under the Karadhan Adhiniyam, 1991 and as such mere acquittal of the accused in the criminal trial due to paucity of evidence or otherwise would not necessarily nullify the order of confiscation of the seized vehicle. Our conclusion in this regard is supported by the decision of the Hon'ble Supreme Court in D.F.O.'s case (supra). There is no room to entertain the submission that confiscation should proceed after conviction by a Criminal Court.
67. It is thus clear that the nature of proceedings before the Taxation Authority under Section 16 (6) of the Karadhan Adhiniyam, 1991 and before the Criminal Court under Section 192A of the Motor Vehicles Act, 1988 are distinct and both have different objects to achieve. If the exigency arises to initiate the confiscation proceedings as contemplated under Sub-section (6) of Section 16 of the Karadhan Adhiniyam, Taxation Authority is bound to initiate confiscation proceedings subject to the other provisions. The discretion conferred is not arbitrary. It is from this point of view that there is no repugnancy in Section 16 (6) to 16 (8) of Karadhan Adhiniyam with Section 66/192A of Motor Vehicles Act, 1988 nor the provisions are arbitrary. Even if the amendment incorporated in Karadhan Adhiniyam, 1991 by Act No. 27/99 is said to be covering field contemplated under Entry 35, List III of Seventh Schedule to the Constitution of India, there is no repugnancy created by M.P. Motoryan Karadhan (Sanshodhan) Adhiniyam, 1999, Sub-sections (5) to (8) of Section 16 and Section 20-A, 20-B or 20-C with Section 192A of the Motor Vehicles Act, 1988 or any other provision thereof. Thus, the impugned enactment even if is held to touching subject of concurrent list having not created repugnancy can still survive and hold the field without there being any requirement of being reserved for consideration and assent of the President. It was only in the event of there being any repugnancy created by the Sanshodhan Adhiniyam that the assent of the President was required and not otherwise as to prevent it from being void. As the subject matter of Entry 35 is in the Concurrent List, even under that provision, the Amendment Act survives as the Central Act i.e. Motor Vehicles Act, 1988 still holds the field with efficacy and there is no repugnancy created by the operation of the Amendment Act (No. 27/99) to the Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991. Thus, the Amendment Act is valid and within the State Legislative competence even if held to be enacted within the purview of Entry 35 of the Concurrent List III of Seventh Schedule to the Constitution of India.
68. We are of the considered opinion that the Amendment Act in question does not cause any dent in the existing Motor Vehicles Act of 1988 and is not repugnant to it. No provision of the Motor Vehicles Act, 1988 has been violated nor it can be said that punishment prescribed for an offence under Section 192A has been enhanced. As a matter of fact, the Central Act does not travel in the field of confiscation if a vehicle is being plied in violation of the Karadhan Adhiniyam. As punishment under the Motor Vehicles Act applies to an offender where a vehicle is being plied without a permit. The Motor Vehicles Act survives with full efficacy. The permit is intrinsically connected with the incident of taxation. Hence the provisions of Amendment Act No. 27/99 to Motoryan Karadhan Adhiniyam do not require assent of the President in order to survive even if it is held that the same touches power of legislation with respect to matter of entry 35 List III (Concurrent List) Seventh Schedule to Constitution of India.
69. It has been urged on behalf of the petitioners that Section 72 of Motor Vehicles Act provides for the conditions which can be incorporated in the permit. These conditions from Clause (i) to (xxiii) of Sub-section (2) are specific and Clause (xiv) is residual clause which mentions "any other conditions which may be prescribed". These provisions relate to stage carriage permit, hence, it is submitted that violation of condition of a permit is a field totally occupied by the Motor Vehicles Act. It is further submitted that Section 74 of Motor Vehicles Act related to conditions which could be incorporated in a permit regarding contract carriage wherein also Clauses (i) to (xii) of Sub-section (2) are specific conditions and Clause (xiii) reads - "any other conditions which may be prescribed". Similarly, Section 73 deals with application for contract carriage permit. In our opinion, this submission is devoid of substance. The scope and intendment of Motor Vehicles Act and Motoryan Karadhan Adhiniyam are different and therefore even if ancilliary or incidental provision is there in one, that cannot create repugnancy being in different Lists. On a comparative study we find that there is no repugnancy at all. For incident of taxation and consequences of violation of Motor Vehicles Act cannot be said to be complete code in itself. We find no counter indication in Motor Vehicles Act to prevent the confiscation of a vehicle under the Karadhan Adhiniyam. Rule 77 of the M.P. Motor Vehicles Rules which ensures that provisions of M.P. Motoryan Karadhan Adhiniyam has to be complied with rather than supporting the petitioner's submission it makes it imperative that it shall be condition of every permit that tax shall be paid in respect of the vehicle in accordance with the provisions of M.P. Motoryan Karadhan Adhiniyam, 1991 and the Rules framed thereunder. Thus, it is clear from the said provision that the pith and substance of Karadhan Adhiniyam is that tax should be paid under a permit and permit and tax are intrinsically intermixed. Therefore, it cannot be said that any encroachment has been made on the provisions of the Motor Vehicles Act by the Motoryan Karadhan Adhiniyam, 1991. Both the Acts and their provisions can co-exist without one adversely affecting operation and efficacy of the other.
70. The petitioners have also relied on a decision of the Andhra Pradesh High Court in W.P. No. 23003 of 1995, decided on 27-12-1995. In the said case, the petition was filed by All India Tourist and Contract Carriers Permit Holders. The question raised was of constitutional validity of certain rules contained in the Motor Vehicles Rules, 1989. In the said decision, the Central Rules with respect to the "same subject matter" were already in force and hence it was held that it was not competent for the State Legislature to enact separate rules. Thus, the decision is distinguishable and is of no assistance to the petitioners.
Point No. 3.
71. It has also been submitted on behalf of the petitioners that there is provision for recovery of tax as arrears of land revenue if it is found that tax is not being paid. It is submitted that when tax can be recovered as arrears of land revenue, confiscation should not have been provided and such a provision is, therefore, arbitrary. The intendment of the Karadhan Adhiniyam is that no vehicle should be allowed to ply without payment of the tax. Authorities were unable to check the exploitation of routes reserved for stage carriage permit on the State roads in an illegal manner and under the garb of a contract carriage or tourist permit or other permit. The vehicles are being plied as stage carriage without payment of requisite tax for that purpose. Whatever that may be, even otherwise, such use of vehicle has to be treated as without permit under Explanation (7) to Schedule I of the Karadhan Adhiniyam, 1991. Provision of recovery of tax as arrear of land revenue cannot come in the way of State to make provision for confiscation as liability to pay tax is distinct from consequence of its non-payment.
72. It has been submitted OB behalf of the petitioners that in view of the decision of the Full Bench of this Court in Madhukar Rao v. State of M.R., 2000(2) M.P.H.T 445 (FB) = 2000(1) MPLJ 289, it should be held by this Court that power given to the Taxation Authority is ultra vires and encroachment on the fundamental right guaranteed under Article 19(1)(g) of the Constitution to carry on business. In the case of Madhukar Rao, the provisions of Section 39, Section 50(1)(c) and Section 50(4) of the Wild Life Protection Act, 1972 and also powers under Sections 451 and 452 of a Court trying an offence came up for consideration. Section 39 of the Wild Life Protection Act provides that Wild animals, etc., to be government property including vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been used under the provisions of the Act. Section 39(1)(d) which is relevant for our purpose reads thus :--
"39. Wild animals, etc. to be Government property.-- Every --
(a) ..................................
(b)..................................
(c ) .................................
(d) Vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act, shall be the property of the State Government, and, where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal, or any animal article, trophy, uncured trophy or meat derived from such animal or any vehicle, vessel, weapon, trap or tool used in such hunting shall be the property of the Central Government."
Section 50 of the Wild Life Protection Act provides for prevention and detection of the offences. The powers of entry, search, arrest and detention in Section 50, Sub-section (1), Clauses (a), (b) and (c) deals with the said aspects. Sub-section (2) of Section 50 was omitted by Amendment Act No. 44/91 which enabled any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or Wild Life Warden, who or whose subordinate, has seized any trap, tool, vehicle, vessel or weapon under Clause (c) of Sub-section (1), may release the same, on the execution by the owner thereof of a bond for the production of the property so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Original Sub-section (2) of Section 50 was with respect to the powers of the officer under Wild Life Protection Act to make interim relief of release of vehicle etc. before the offence is tried by the Magistrate. If a person is convicted under the Wild Life Protection Act by a Magistrate, Section 51(2) provides that trap, tool, vehicle, vessel, weapon, etc. shall be forfeited to the State Government. Thus, Section 39 was interpreted harmoniously with Section 51(2) as there is no power of confiscation given to any officer or authority such as Assistant Director of Wild Life Preservation or Wild Life Warden, etc. to pass an order of forfeiture. The scheme of Wild Life Protection Act is totally different hence it was held by this Court that merely on seizure property would not vest in the State Government. There has to be adjudication for confiscation, which is provided, by an order of Magistrate as apparent, from the conjoint reading of Sections 39, 50 and 51 of Wild Life Protection Act. Thus, the case of Madhukar Rao (supra) is totally distinguishable. It is true that merely by seizure property cannot stand automatically forfeited to State Government. There has to be proof of violation of relevant provisions of the Act which in the present case is provided under Sections 16 (6) and 16 (7) of the Karadhan Adhiniyam. Safeguards are provided which oust element of arbitrary action under the said provision. The authority empowered to pass order of confiscation has to act in a quasi-judicial manner. Hence it cannot be said that there is any encroachment made on a fundamental right of citizen guaranteed under Article 19(1)(g) of the [Constitution as M.P. Motoryan Karadhan Adhiniyam provides for adjudication by Taxation Authority, and then appeal to the Appellate Authority and thereafter revision to the Court of Sessions. A similar provision was upheld by the Apex Court in G.V. Sudhakar Rao's case (supra).
73. The learned counsel for the State has also submitted that the M.P. Motoryan Karadhan Adhiniyam, 1991 was accorded approval by the President as there was imposition of Presidential rule at the relevant time under Article 356 of the Constitution, and once the Presidential assent has been accorded, it was not necessary to obtain further assent of the President. For this submission, he placed reliance on the decision in the case of Jabalpur Bus Operators Association v. State of M.P., 1993 (2) MPJR 479. In the said decision it was held that if the Amendment Act does not travel beyond the scope of parent Act for which assent was given, there is no invalidity if further assent was not taken. M.P. Motoryan Karadhan Adhiniyam, 1991 and its amendment are under Entries 56/57 of List II of Seventh Schedule, whereas Motor Vehicles Act, 1988 is an enactment under Entry 35, List II of Seventh Schedule to the Constitution of India. In view of our findings recorded above, that the two legislations namely, Motor Vehicles Act, 1988 and M.P. Motoryan Karadhan Adhiniyam, 1991 are enacted under different entries, have different fields to operate and merely touching of incidental or ancillary matters would not invalidate the Amendment Act (No. 27/99) and our further view that even if Amendment Act is held to be with respect to a subject under Entry 35, List III of Seventh Schedule to the Constitution, there is no repugnancy created by the Amendment Act (No. 27/99) amending the M.P. Motoryan Karadhan Adhiniyam, 1991 with Motor Vehicles Act, 1988, both can co-exist at the same time without affecting operational efficacy and without derogation to each other.
74. It has also been urged by the petitioners that their cases should be examined on merits by this Court as availability of alternative remedy is no bar to challenge the seizure of the vehicle. But we are of the opinion that complete machinery is provided under the Act and we direct the concerned Taxation Authorities before whom confiscation proceedings are pending in the cases of the petitioners, or in case the order of confiscation has been passed and appeal is pending, the Appellate Authority, to decide the matter expeditiously within a period of one month from the date of communication of this order.
75. In the result, we hold that the provisions of Section 16 (5), 16 (6), 16 (7) and 16 (8) and Sections 20-A, 20-B and 20-C of the Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 as inserted by Amendment Act No. 27/99 are not ultra vires. The petitions are dismissed. Parties are directed to bear their own costs as incurred.