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PETITIONER: M/s.  SAINIK MOTORS, JODHPUR AND OTHERS

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT: 28/03/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. AIYYAR, T.L. VENKATARAMA DAS, S.K. KAPUR, J.L. SHAH, J.C.

CITATION:  1961 AIR 1480            1962 SCR  (1) 517  CITATOR INFO :  R          1966 SC 764  (3)  R          1974 SC 436  (28)  R          1981 SC 774  (11)  F          1983 SC1283  (5)  RF         1984 SC 420  (15)  R          1990 SC1637  (48)

ACT: Tax-Levied on Passengers and goods carried by road in  motor vehicles-Lump sum in lieu of _tax optionally -payable  under the Act but mandatory under the Rules and notification   The word  "shall", if mandatory or directory-Discrimination,  if any  between operators using roads-Rajasthan Passengers  and Goods  Taxation Act, 1959 (18 of 1959), ss.  3,  4-Rajasthan Passengers  and  Goods  Taxation  Rules,  1959,  Yr.  8,8-A, Notification  issued under Y. 8-Constitution of India,  Sch. VII, State List, Entry 56.

HEADNOTE: The petitioners who were partners of a-registered firm hold- ing public carrier and stage carriage permits challenged the constutionality  of  certain  provisions  of  the  Rajasthan Passengers  and  Goods  Taxation Act,  1959,  the  Rajasthan Passengers and Goods Taxation Rules, 959, and a notification issued  under r. 8. The Act was passed for levying a tax  on passengers and goods 518 carried  by road in motor vehicles the power to enact  being derived from Entry 56 of the State List in Sch.  VII of  the Constitution.  Section 3(4) of the Act prescribed the method of  collection  of  the  tax and  provided  that  the  State Government  may  accept  a  lump sum  in  lieu  of  the  tax chargeable".  Rule 8(i) prescribed the method of payment and provided  that the tax "shall be paid in lump sum"  and  the notification in question prescribed the rates of the tax. Held, that the incidence of the tax was upon "passengers and goods"  and  not upon income of the petitioners  though  the amount  of the tax was measured by the fares  and  freights. The charging section, namely, s. 3 did not go outside  Entry

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56. Mathurai  v. State of Madras, I.L.R. (1954) Mad.  867,  Alma Ram  Budhia  v. State of Bihar, (1952) I.L.R. 31  Pat.  493, referred to. The tax did not offend Arts. 301 and 304 of the Constitution and  no  inter-State  trade,  commerce  or  intercourse  was affected  by it.  Although the tax fell upon passengers  and goods  proceeding  to or from an extra-State point,  it  was limited  only to the fare and freight proportionate  to  the route within the State. The word "shall" is ordinarily mandatory but it is sometimes interpreted  as directory, and in the present case the  word "shall" used in rr. 8 and 8A and the notification should  be interpreted  as directory as s. 4 of the Act from which  the Rules  and the notification derive their authority,  creates an  option  by using the words "may accept".  The  Act,  the Rules  and the notification must be read harmoniously.   The mandatory  language was used to fix peremptorily the  amount of the lump sum if paid in lieu of the tax. In Re Lord Thurlow Ex Parte Official Receiver, (1895) 1 Q.B. 724,  Mannikam Patter v. Nanchappa Chettiar,  (1928)  M.W.N. 441, In re Rustom, [1901] I.L.R. 26.8om. 369, jethaji Peraji Firm  v: Krishnayya, (1929) I.L.R. 52 Mad. 648  and  Burjore and Bhavant Pershad v. Mussumat Bhagana, (1883) L.R. II I.A. 7, followed. The  lump sum figure was based on averages and could not  be impeached by reference to a possibility that on some days no business might be done. Comparison  with Railways which is a union subject  was  not admissible.   There was no discrimination between  operators of  public  motor  vehicles using roads  all  of  whom  were affected  by the Act, There could be no  comparison  between persons  using  better kind of roads and those  using  roads which were not so good.  All operators using better kind  of roads   had   to  pay  heavier  tax,  and   there   was   no discrimination between them as a class.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 82 of 1959. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of Fundamental Rights. 519 S.   K.  Kapur, Jai Gopal Chagnani, K. K. Jain and B.   P. Maheshwari, for the petitioners. C.   K.   Daphtary,  Solicitor-General  of  India,   G.   C. Kasliwal, Advocate-General, Rajasthan and D. Gupta,’ for the respondent. 1961.  March 22.  The Judgment of the Court was delivered by HIDAYATULLAH,  J.-This  is a petition under Art. 32  of  the Constitution.   The  petitioners, who are seven  in  number, challenge  as  unconstitutional  and  ultra  vires   certain provisions  of the Rajasthan Passengers and  Goods  Taxation Act,  1959,  the  Rajasthan Passengers  and  Goods  Taxation Rules,  1959,  and  a notification issued under  R.  8.  For brevity, we will refer to them in this judgment, as the Act, the  Rules  and the notification  respectively.   The  first petitioner is a registered firm, petitioners Nos. 2 to 6 are the  partners  of  that firm, and petitioner No.  7  is  the General  Manager  of  the firm.  Petitioner No.  7  holds  a public  carrier  permit for the whole of  Rajasthan  in  his individual  name.   The  petitioners  also  hold  59   stage carriage  permits  from the  Regional  Transport  Authority, Jodhpur, for diverse routes over roads which have  different

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kinds  of surfaces, some being sandy or katcha  and  others, metalled., tarred, etc. The  Act was passed in 1959 for levying a tax on  passengers and  goods carried by road in motor vehicles.  The power  to enact  the Act purports to be derived from Entry No.  56  of the  State  List  in Sch.  VII to  the  Constitution,  which reads: "156.   Taxes on goods and passengers carried by road or  on inland waterways." The  Act received the assent of the President on  April  27, 19.59,  and was published in the Rajasthan Gazette on  April 30, 1959.  The same day, the Rules framed in exercise of the powers  conferred by s. 21 of the Act were  also  published, and  the  notification  was also  issued.   The  Rules  were subsequently  amended, and we are concerned with the  Rules, as amended. Before  we deal with the case further, it is  convenient  to see how the Act is constructed and what the 520 Rules and the notification provide.  The Act, which consists of 21, sections, came into force in the whole of  the  State of  Rajasthan  on May 1, 1959.  The Act contains  the  usual provisions to be found in all taxing statutes about appeals, revision,   offences  and  penalties,  power   to   compound offences, recovery of tax as arrears of land revenue, bar of proceedings, exclusion of the jurisdiction of Civil  Courts, refunds and power to make rules, to which detailed reference need not be made.’ We are only concerned with the imposition of the tax and the mode of its recovery, and will refer  to- those  provisions  which  are relevant.  Section  3  is  the charging  section,  and  s.  4  deals  with  the  method  of collection  of the tax.  Since these sections are  the  main subject of attack, we quote them in full:               "3.  Levy of tax.-(1) There’ shall be  levied,               charged  and paid to the State  Government,  a               tax  on all fares and freights in  respect  of               all  passengers carried and goods  transported               by motor vehicles ’at such rate not  exceeding               one-eighth  of  the  value  of  the  fare   or               freight,  in  the case  of  cemented,  tarred,               asphalted,  metalled, gravel and kankar  roads               and not exceeding one-twelfth of such value in               other  cases, as may be notified by the  State               Government  from  time to time  subject  to  a               minimum of one naya paisa in any one case, the               amount of tax being calculated to the  nearest               nays paisa.               Explanation.-When  passengers are carried  and               goods are transported by a motor vehicle,  and               no  fare or freight has been charged, the  tax               shall be levied and paid as if such passengers               were  carried  or  goods  transported  at  the               normal rate prevalent on the route. (2)  Where any fare or freight charged is a lump sum paid by a person on account of a season ticket or as subscription or contribution  for any privilege, right or facility which  is combined. with the right of such person being carried or his goods  transported  by a motor vehicle without  any  further payment  or at a reduced charge, the tax shall be levied  on the amount of such lump sum or on such amount as appears  to the prescribed authority to be fair and 521 equitable  having regard to the fare or freight fixed  by  a competent   authority   under  the   Motor   Vehicles   Act, 1939(Central Act 4 of 1939).

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(3)  Where passengers are carried or goods transported by  a motor vehicle from any place outside the State to any  place within the State, or from any place within the State to  any place outside the State, the tax shall be payable in respect of  the distance covered within the State at  the-rate  laid down  in  sub-section (1) and shall be  calculated  on  such amount as distance covered in the State bears to the total distance of the journey: Provided   that  where  passengers  are  carried  or   goods transported  by  a motor vehicle from any place  within  the State  to  any  other place within  the  State  through  the intervening  territory  of another State, the tax  shall  be levied on the full amount of the fare or freight payable for the entire journey and the owner shall issue a single ticket or receipt, as the case may be, accordingly. (4)  Method of collection of tax.-The tax shall be collected by  the  owner of the motor vehicle and paid  to  the  State Government in the prescribed manner: Provided   that  in  case  of  public  carriers  the   State Government  may  accept  a  lump sum  in  lieu  of  the  tax chargeable on freight in the manner prescribed: Provided  further  that in case of  contract  carriages  the State  Government may accept a lump sum in lieu of  the  tax chargeable on fare in the manner prescribed." Section  5  lays down the method of levy,  and  enjoins  the issuance  of  a  ticket showing the tax paid  of  a  receipt showing the freight charged and the tax paid.  It includes a proviso  that  in  the case of passengers  the  tax  becomes chargeable only on entry in the State, if the journey  began outside  the  State.  Section 6 requires the owner  to  keep accounts  and  to submit periodic returns and  provides  for levy  of penal ties in case of failure, which penalties  are laid  down in s. 8. Section 7 deals with the appointment  of taxing authorities, and a. 12 gives the power of entry the 522 officers into vehicles, garages, and offices for  inspection and  checking.  Section 10 enjoins upon the owners the  duty of  furnishing tables of fares and  freights,  time-tables,, etc.  Section 9 enables the State Government to grant to any person  or class of persons,. exemption from all or  any  of the provisions of the Act. The  Rules prescribe those matters which are required  under the Act to be prescribed by the Rules.  It is not  necessary to  refer  to them beyond Rules 8 and 8-A, which  have  been challenged.   Rule 8(i) prescribes the method of payment  of tax by means of stamps to be affixed to the tickets, and the second proviso is to the following effect:               "Provided  further that the tax payable  under               the Act on fare by the owner of a motor-cycle,               rickshaw  or a motor cab shall be paid to  the               State  Government  in lump sum, of  which  the               amount shall be fixed by the State  Government               from  time  to time by, Notification  in  this               behalf."               Rule 8(ii) then provides:               "The  owner of a public carrier shall  pay  to               the State Government a lump sum in lieu of the               tax  ,chargeable under the Act on freight  and               the amount of such lump sum shall be fixed  by               the  State  Government from time  to  time  by               Notification in this behalf."               Rule 8-A, in so far as material to this  case,               reads:               "Provisions for payment of lump sum in lieu of               tax  on fare or freight.((1) In cases  covered

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             by  the  second. proviso to sub-rule  (1)  of               rule  8 and by subrule (ii) of that  rule  the               lump  sum  fixed by the  State  Government  as               payable in lieu of the tax on fare or freight,               as the case may be, shall be deposited in cash               into  a Government Treasury or a  Sub-Treasury               in equal quarterly instalments payable  within               15  days from the 31st day of March, the  30th               day of June, the 30th day of September and the               31st  day of December every year; and in  case               of  such vehicles not registered in  Rajasthan               to  the incharge of the check post or  barrier               at  the time of their entry into the State  of               Rajasthan or to the officer of the Excise  and               Taxation Department nearest to the point of 523 entry into the State and having jurisdiction over that area: Provided that- Provided that (a)  for the quarter ending on the 30th day of June’,  1959, such  payment shall be made for the months of May and  June, 1959, at the rate of 1/12 of the said sum for each month, (b)  where  the  owner  has not plied his  vehicle  for  the entire  quarter immediately preceding any of  the  aforesaid dates  a proportionate decrease in the amount due  for  that quarter may be made, (c)  if  the  owner  ceases to ply his  vehicle  on  a  date preceding  any  of the aforesaid  dates,  the  proportionate amount for the quarter shall be paid by him immediately upon such cessation, and (d)  where  the  owner  has  not plied  his  vehicle  for  a continuous period of not less than three months and produces a  certificate  from  the  authority  competent  under   the Rajasthan  Motor Vehicles Taxation Act, 1951, or  the  rules made thereunder to the effect that he has been refunded  the tax  for  that period under section 7 of the  said  Act,  no amount by way of tax under the Act shall be payable for such period. (2)  The owner shall inform the Assessing Authority as  soon as  his vehicle goes out of use.  When the vehicle is  again put on the road, an intimation to that effect shall be  sent to the Assessing Authority immediately." The  notification  which was issued under R.  8  prescribing lump sum rates, is as follows: "Jaipur, April 30, 1959 No. F. 15(5) E & T/59.  III-.-In pursuance of rule 8 of  the Rajasthan  Passengers  and Goods Taxation Rules,  1959,  the Government   of  Rajasthan  hereby  directs  that  the   tax chargeable  on fare or freight in respect of  the  following cl.  was  of Motor Vehicles, shall be paid in  lump  sum  of which the amount is mentioned opposite each such class:- 3.   Public carriers (Goods Vehicles):- (a)  Holding a general permit under the Motor Vehicles  Act, 1939, to use all roads in Rajasthan;- 524                (i)  Load carrying capacity below 5 Tons  Rs.               420 per annum.  (ii)  Load  carrying  capacity  5  Tons   and               above ... Rs. 540 per annum.               (b)   Holding   a  permit  under   the   Motor               Vehicles  Act,  1939, for  plying  within  the               limits of any region or on fixed routes in any               one region:-               (i)Load carrying capacity below 5 Tons ... Rs.               360 per annum.

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             (ii)  Load carrying capacity 5 Tons and  above               Rs. 480 per annum.               "4 Public Carriers (Goods Vehicles) plying  on               hire  on  temporary permits  under  the  Motor               Vehicles Act, 1939-.-               (b)   Public Carriers (Goods Vehicles)--               d(i)  Load carrying capacity below 5 Tons  ...               Rs. 2 for each calendar day               (ii)  Load   carrying  capacity  5  Tons   and               above... Rs. 4 for each calendar day                This  shall have effect on and from  the  1st               May, 1959" The  petitioners  challenged  the Act,  the  Rules  and  the notification  from many angles, in the petition; but at  the hearing before us, the arguments were more restrained.   The main objection to the Act is that the tax has not been  laid upon  "passengers and goods" as authorised by Entry  No.  56 but upon "fares and freights", which are different entities, and in support of the contention that there is a difference, reference  is made to Entry No. 89 of the Union List,  where power  is  conferred  to tax "fares and  freights".   It  is submitted that a tax on fares and freights being a different tax, cannot be levied under the Entry, and thus, the tax  is without authority of law. The Act and the Rules are further challenged on the  grounds that  they  are repugnant to Arts. 301 and 304  as  being  a restriction    upon   inter-State   trade,   commerce    and intercourse,  to  Art.  19  as  involving  an   unreasonable restriction  upon the business of the petitioners, and  also to Art. 14 as discriminating between this mode of  transport and  the  Railways.  The Act is further  challenged  on  the ground that it concedes to the State 525 Government  the power to fix the amount of lump sum  payment without  guidance.   The  rates and  lump  sum  payment  are challenged  because  they  involve  discrimination   between routes  involving roads of different surfaces.  Rules 8  and 8-A and the notification are challenged as, it is submitted, they  go  beyond  the Act by making  the  lump  sum  payment compulsory,  even though under the Act it is  optional,  and involve payment of tax even when no passengers or goods  are transported.  Lastly, it is said that by making tax  payable even  though the route between two intra-State point  passes outside   the  State,  the  Act  has  an   extra-territorial operation which is ultra vires the legislature. The  first-and the ’Main-contention is that the Act  in  the guise  of  taxing  passengers and goods,  taxes  really  the income  of  the  petitioners, or, at  any  rate,  fares  and freights,  and is thus unconstitutional.  It is argued  that the  tax  is borne by the operators because  of  competition with  the  Railways.  That the petitioners are  required  to bear  the  tax  themselves to  stand  competition  with  the Railways  is  a  matter of policy’,  which  the  petitioners follow and is not something which flows inevitably from  the provisions of the Act.  We do not agree that the Act, in its pith,  and substance, lays the tax upon income and not  upon passengers  and goods.  Section 3, in terms, speaks  of  the charge of the tax "in respect of all passengers carried  and goods transported by motor vehicles", and though the measure of  the tax is furnished by the amount of fare  and  freight charged.  it  does not cease to be a tax on  passengers  and goods.   The Explanation to s. 3(1) lays down that  even  if passengers  are  carried or goods  transported  without  the charge  of fare or freight,, the’ tax has to be paid  as  if fare  or freight has been charged.  This clearly shows  that

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the  incidence  of  the tax is upon  passengers  and  goods, though  the amount of the. tax is measured by the fares  and freights.  A similar argument was not accepted by the Madras High Court in Mathurai v. State of Madras (1), and the  same view was expressed in Atma Ram Budhia v. State of Bihar (2). In our opinion, the charging section does (1)  I.L.R. [1954] Mad. 867.  (2) (1952) I.L.R- 31 Pat-  493 (S.B.). 526 not go outside Entry No. 56.  The tax is still on passengers and  goods,  though what it is to be is deter,mined  by  the amount of fare or freight.  It is clear that if the tax were laid on passengers irrespective of the distance travelled by them,  it would lead to anomalies if the amount  charged  be the same in every case.  This if; additionally clear in  the case of goods where the weight, bulk or nature of the  goods may be different, and a scale of payments must inevitably be devised.   Though the tax is laid on passengers  and  goods, the amount varies in the case of passengers according to the distance  travelled,  and in the case of goods  because  the freight  must necessarily differ on account of weight,  bulk and  nature of the goods transported.  The tax, however,  is still  a tax on passengers and goods, and the argument  that it is not so, is not sound. We  are also of opinion that no inter-State trade,  commerce or  intercourse  is affected.  The tax is  for  purposes  of State, and falls upon passengers and goods carried by  motor vehicles  within  the  State.   No  doubt,  it  falls   upon passengers  and goods proceeding to or from  an  extra-State point  but  it  is  limited only to  the  fare  and  freight proportionate  to  the  route within the  State.   For  this purpose,  there is an elaborate scheme in R. 8-A to avoid  a charge  of  tax  on that portion of  the  route  which  lies outside  the  State.   There is thus no  tax  on  fares  and freights attributable to routes outside the State except  in one instance which is contemplated by the proviso to  sub-a. (3) of s. 3 and to which reference will be made  separately. In  our  opinion, the levy of tax cannot be said  to  offend Arts. 301 and 304 of the Constitution. The next contention is that the Act allows an option to  pay a  lump sum in lieu of the tax, but Rules 8 and 8-A and  the notification  make the payment of the lump  sum  compulsory. There  is  no doubt that ex facie the two provisos to  a.  4 employ language which is permissive, while the two Rules and the  notification employ language which is imperative.   The two provisos to a. 4 are enabling, and thereby authorise the State Government to accept a lump sum payment in lieu of the tax actually chargeable.  The 527 word  "accept" shows that the election to pay a lump sum  is with  the taxpayer, who may choose one method of payment  or the other.  The inclusion of such a provision is designed to promote  easy  observance  of  the Act  and  also  its  easy enforcement.   The  charge of tax calculated  on  fares  and freights involves difficulties for the operators who have to keep   accounts  and  also  difficulties  for   the   taxing authorities,  who  have  to  maintain  constant  checks  and inspections.   The lump sum payment is a convenient mode  by which an amount is payable per year irrespective of  whether the tax would be more or less if calculated on actual  fares or  freights.   The operators pay the lump sum  if  they  so choose,  to  avoid having to maintain accounts and  to  file returns,  and the Government accepts it to avoid  having  to inspect  accounts and to keep a check.  The rates which  are

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prescribed for a lump sum payment per year are for those who wish to avail of them. It is, however, contended that though the section creates an option,  the  Rules and the notification  make  the  payment compulsory, and attention is drawn to the word "shall"  used both  in Rules 8 and 8-A and the notification,  whereas  the words  in  the two provisos to s. 4 are "may  accept".   The word  "shall" is ordinarily mandatory, but it  is  sometimes not so interpreted if the context or the intention otherwise demands.  In re Lord Thurlow Ex Parte Official Receiver (1), Lord Esher, M. R., observed at p. 729 that "the word ’shall’ is  not always obligatory.  It may be directory", and  Lopes L. J., at p. 731 added:               "It  is  clear that the word  ’shall’  is  not               always  used in a mandatory sense.   There  is               abundance  of  authority to  the  contrary  in               cases  where it has been held to be  directory               only". It  was thus that the word ’shall’ was held to be  directory only,  in that case, by Coutts Trotter, C. J.,  in  Manikkam Pattar v. Nanchappa  Chettiar (2), by Russel, J., in In  re Rustom (3), by Venkatasubba Rao, J., (1)  (1895) 1 Q.B- 724- (2)  (1928) M.W.N. 441. (3)  (1901) I.L.R. 26 Bom. 396; 3 Bom.  L.R 653. 528 in Jethaji Peraji Firm v. Krishnayya (1) and by the Judicial Committee in Burjore and Bhavani Pershad V. Mussumat Bhagana (2). Now, Rules 8 and 8-A and the notification only lay down what lump  sum payment has to be in each case, if a lump  sum  is being   paid.   The  mandatory  language  is  used  to   fix peremptorily  the amount of the lump sum.  Rules 8  and  8-A and the notification cannot be said to overreach the section to which they are subordinate and from which they must  take their colour and meaning.  If the Act creates an option,  it cannot  be  negatived by the Rules.  The Act and  the  Rules must be read harmoniously, and reading them so, it is  plain that  the apparent mandatory language of the Rules  and  the notification  still retains the permissive character of  the section, but only lays down what the amount of the lump  sum must  be, if lump sum payment is made in lieu of payment  of the tax calculated on actual fares and freights.  If the two Rules  and  the  notification  are read  in  this  way,  the mandatory language is limited to the prescribing of the lump sum   rates.   In  our  opinion,  the  two  Rules  and   the notification are not void and contradictory of the Act. It  is contended that the power to fix lump sums in lieu  of tax has been conferred upon Government without guidance, and is, therefore, unconstitutional.  It is also urged that  the levy  of  a  lump  sum leads to  the  result  that  even  if passengers  or goods are not transported, the tax  is  still payable.   These  arguments,  in  our  opinion,  cannot   be -accepted.   The learned Advocate-General pointed  out  that the  lump  sum  rates work out at a  very  low  figure,  the minimum being less than Re. 1/- per day and the maximum, Rs. 1.50  nP. per day.  The rates are no doubt very  reasonable, but  this  hardly  meets the argument  of  the  petitioners. There are, however, good reasons for upholding the  fixation of  lump  sums.   The  payment  of  the  lump  sum  is   not obligatory, and a person can elect to pay tax calculated  on actual fares and freights. (1)  (1929) I.L.R- 52 Mad. 648, 656. (2)  (1883) L.R. 11 I. A. 7. 529

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The  fares  and freights are fixed  by  competent  authority under  the Motor Vehicles Act, and that takes  into  account the  average  earnings,  and the lump sum  is  fixed  as  an average  of  what  tax would be realised  if  calculated  on actual  fares and freights.  There is no compulsion for  any operator to elect to pay a lump sum if he does not choose to do  so.   Nor  is the argument that  there  may  be.  vacant periods when no passengers or goods are transported but  the tax  is payable, is of any force, because there may be  days when the business done might result in tax in excess of  the lump sum payable.  The lump sum figure is based on averages, and  cannot be impeached by reference to a possibility  that on some days no business might be done. The  next  contention that there is  discrimination  between road  transport  and rail transport is also  without  force. The  entry  in  the  State  List is  limited  to  a  tax  on passengers   and  goods  transported  by  road   or   inland waterways., The comparison with Railways is not  admissible, because  tax  on  railway  fares and  freights  is  a  Union subject,  and  is not available to  the  State  Legislature. There   is   thus  a  clear  classification  made   by   the Constitution itself.  No discrimination between operators of public motor vehicles using roads has been pointed out,  and all operators are equally affected by the, Act.  Some manner of support for the argument was sought from s. 9, where  the State  Government is empowered to grant exemption  from  the Act  by general or specific order to any person or class  of persons.   But we were informed that no exemption  has  been granted except to hospitals or charities. It is next urged that the imposition of a higher rate of tax for cemented, tarred, asphalted, metalled, gravel and kankar roads  than  that  for  other  roads  discriminates  between operator,   This  argument  overlooks the  very  object  and purpose  of a tax.  As is well known, taxes are  burdens  or charges  imposed  by  legislative  power  upon  persons   or property  to raise money for public purposes.  The power  to tax is thus 67 530 indispensable to any good government, and the imposition  of the  tax is justified on the assumption of a return  in  the shape of conveniences.  If this be the true import of a tax, it  is  but natural that taxes will be graded  according  as they  involve more or less of such conveniences.  They  will be  heavy in case of roads requiring greater expenditure  to construct  and  to  maintain,  than in  case  of  roads  not requiring such expenditure.  All operators using the  better kind  of roads have to pay the heavier tax, and there is  no discrimination between them as a class.  Discrimination  can only  be  found  if  it  exists  between  persons  who   are comparable, and there is no comparison between persons using the  better kind of roads and those who use roads which  are not so good.  It is the cost of construction and maintenance which  makes  the  difference in the tax,  and  no  case  of discrimination can be said to be made out. The last contention is that the proviso to sub-s. (3) of  s. 3  is extra territorial in nature, because it makes the  tax payable on fares and freights attributable to the  territory of  another  State  when  the  route  passes  through   such territory,  even  though  the journey  starts  and  ends  in Rajasthan.   We  were informed that now there  are  no  such routes,  but  even otherwise, such portions must  have  been very  short and negligible.  No affidavit was sworn to  show how  many  such routes were involved and what  their  extent was,  and  in view of lack of adequate  averments,  we  must

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reject the contention. In  the  result, the petition fails, and is  dismissed  with costs. Petition dismissed. 531