1. This order will also govern Misc. Petitions Nos. 271, 301 and 320, all of 1962.

2. These are four petitions under Article 226 of the Constitution of India by private limited companies engaged in the business of plying stage carriages challenging the vires of Sections 2 and 4 of the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Amendment and Validation Act, 1962 (hereinafter referred to as the Validating Act). The petitioners seek a declaration that the said provisions are constitutionally invalid, ultra vires and unenforceable, and pray that a suitable direction be issued to the opponents forbearing them from giving effect to those provisions in any manner whatsoever.

3. The matter arises thus. In 1959 the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Act, 1959, (hereinafter referred to as the principal Act) was enacted. It came into force on 1st February 1961. By Section 3(1) of the principal Act, it was provided that on the commencement of that Act "there shall be levied and paid to the State Government a tax on all passengers carried by stage carriages at a rate equivalent to ten per cent, of the fare (inclusive of tax) payable to the operator of a stage carriage. section 4 of the principal act lays down that "Save as otherwise provided by this Act, no passenger shall be allowed to travel by the operator in a stage carriage unless he is issued a ticket in the prescribed form for the journey." The principal Act also contains provisions for the imposition of penalty if the whole or any portion of tax payable to the Government in respect of a stage carriage for any period has not been paid in time, for the recovery of the tax amount as arrears of land revenue from the operator, for the keeping and maintenance of accounts and registers in the prescribed form, by the operator in respect of stage carriages and the fares collected from passengers travelling therein, and for making an operator liable to punishment if he submits an incorrect or incomplete return or fails to submit one or if he fraudulently evades or allows to be evaded the payment of any tax due from him or fraudulently makes or allows to be made wrong entries or omissions in the accounts or registers maintained by him or if he wilfully contravenes any of the provisions of the principal Act or of any rules made thereunder.

4. The constitutionality of the principal Act was first challenged in this Court by a petition under Article 226 filed by the Mahamaya Motor Transport Company (M. P. No. 29 of 1961 decided on 26th September 1961) inter alia on the grounds that the said Act was invalid for vagueness and uncertainty, that it did not indicate with any definiteness as to who was liable to pay the tax, and that the tax imposed was on the operator and was repugnant to Articles 19(1)(g), 301 and 304(b) of the Constitution. All these contentions were rejected by a Division Bench of this Court and it was held that the tax imposed was one on passengers carried by road and fall within Entry-56 of List-II of the Seventh Schedule of the Constitution, and that the principal Act did not infringe Articles 19(1)(g), 301 and 304(b) See Mahamaya Motor Transport Co. v. State of M.P., 1962 MPLJ (SN) 79. In that case, while rejecting the contention that the burden of the tax would fall on the operator unless and until the maximum fares chargeable by the operator were revised under Section 43 of the Motor Vehicles Act, 1939, the Division Bench made the following observations:

"The contention that under Section 43 the maximum fares that could be charged had already been fixed and unless these were revised as provided in that section the operator could not be permitted to charge a higher fare, proceeds on a misreading of the section which, as amended, permits the State Government to issue directions to the State Transport Authority from time to time regarding the fixing of fares for stage carriages etc. The Regional Transport Authority, therefore can re-fix the fare table and so amend the permit as to permit the operations to charge amended fares inclusive of the passengers tax, which they were not liable to collect from the passengers as agents of the State"

The validity of the principal Act was challenged by the Madhya Pradesh Transport Co. (Pvt.) Ltd.. also by a separate petition under Article 226 on the same grounds that had been urged by the Mahamaya Motor Transport Company. The Division Bench hearing the petition filed by The Madhya Pradesh Transport Co. (Pvt.) Ltd., negatived the contention that the tax imposed was on the operators and that it offended Articles 19(1)(g), 301 and 304(b). The judgment of the Division Bench is reported in Madhya Pradesh Transport Co. (Pvt.) Ltd. v. State of Madhya Pradesh, 1962 MPLJ 633 : (AIR 1962 Madh Pra 108).

It was held by the Division Bench that the tax imposed was a percentage of the fare inclusive of tax payable to the operator; that the fare was payable by the passenger and consequently the liability for the payment of tax was on the passenger; that the operator only collected the tax from passengers in the shape of an extra amount added to the old fare; that though the passengers paid the extra amount qua fare, that did not alter the fact that the liability for the payment of the extra sum was on him; and that the extra sum was in reality the tax amount which after collection by operator was paid to the Government and not retained by the operator himself.

5. The further contention that was urged and accepted by us in the petition filed by the M. P.

Transport Co., was that in order to make the imposition of tax in reality and practice a tax on passengers it was essential first to revise under Section 43 of the Motor Vehicles Act the maximum rate of fares in respect of stage carriages so as to include the amount of tax chargeable under section 3 of the principal act in the fare and give to the operator the right to recover the amount of tax as extra-fare. The stand taken on this point by the State was that it was not necessary to revise the fare tables fixed under the Motor Vehicles Act and there was no necessity of conferring any powers on the operator for collection of the tax amount as extra-faro from the passengers, but that the operators were expected to collect the tax from the passengers.

We said :--

"We must confess that the position taken by the respondents in the returns filed on their behalf is based on a total misconception of the effect of the provisions of the Act and about the conditions necessary for the effectiveness of the Act in relation to an operator as defined in Sections 2(3) and 4 of the Act. The 'executive' construction put by the respondents is not in accord with the provisions of the impugned Act and Section 43 of the Motor Vehicles' Act, 1939. If the construction were to be acted upon by the executive uniformity and persistently, then they would be administering a valid law so as to render it invalid. Learned Additional Government Advocate, however, realised this and stated before us that instructions would be issued to all the Regional Transport Authorities for a revision of fare tables under Section 43 of the Motor Vehicles Act, 1939, so as to enable the operators to recover the tax amount from the passengers as extra fare. The issue of instructions is no doubt a step in the right direction. But what needs to be emphasized is that unless and until the fare tables in respect of stage carriages are revised under Section 43 so as to give authority to the operator to recover from the passengers the amount of the tax payable under section 3 of the impugned act as an extra fare, the Act cannot become operative in relation to the operator concerned and till then the operator cannot be made liable for collection and payment of the tax."

We then emphasized the position that the principal Act was valid and was not rendered void because of the reluctance of the State to revise fare tables but the effectiveness of that Act in relation to any operator depended on a revision of fare tables. In paragraph 10 of our judgment in 1962 MPLJ 633: (AIR 1962 Madh Pra 108) (supra), we pointed out that an operator could not be penalised under the penal provisions of the principal Act unless a legal obligation was imposed on him in the matter of collection, payment of tax, maintenance and keeping of accounts and that this legal obligation 'could not arise till fare tables were revised under the Motor Vehicles Act and an obligation was cast on the passenger to pay the tax amount as extra-fare and on the operator to so recover it. On this view, the respondent-State was restrained from enforcing the provisions of the principal Act as against the M. P. Transport Company and others who were petitioners in 1962 MPLJ 633 : (AIR 1962 Madh Pra 108) (supra), till the revision of fare tables under Section 43 of the Motor Vehicles Act in respect of their stage carriages.

6. After the pronouncement of the judgment in 1962 MPLJ 633 : (AIR J962 Madh Pra 108) (supra), the opponents made an attempt for a revision of fare tables under Section 43 of the Motor Vehicles Act, 1939. That attempt was, however, given up later on, and on 7th May 1962 an ordinance called the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Amendment and Validation Ordinance 1962, was promulgated. This Ordinance was repealed by the validating Act. The validating Act is styled as an Act

"to amend the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Act, 1959, and to validate levy, assessment and collection of tax on passengers carried by stage carriages."

(3) It also contains a provision purporting to validate the levy, assessment and collection of passenger tax in pursuance of Section 3(1) of the principal Act. The material provisions of the validating act are sections 2 and 4(1), which are as follows:

"2. (1) In Section 3 of the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Act, 1959 (17 of 1959) (hereinafter referred to as the principal Act):

(i) in Sub-section (1) for the words, brackets and figures, beginning with "On the commencement of this Act" and ending with 'ten per cent of the fare', the words There shall be levied and paid to the State Government a tax on all passengers carried by stage carriages at a rate equivalent to fifteen per cent of the fare', shall be substituted;

(ii) after Sub-section (1), the following subsection shall be inserted, namely:

'(1-A) Notwithstanding anything contained in the Motor Vehicles Act, 1939 (IV of 1939), an operator shall be, and shall be deemed always to have been entitled to collect the tax under Sub-section (1) in addition to the fares as fixed and in force from time to time for a stage carriage under a notification under Section 43 of the Motor Vehicles Act, 1939 (IV of 1939).

(1-B) The tax shall be collected by the operator of a stage carriage and paid to the State Government in accordance with the provisions of this Act.

(iii) In Sub-section (2) for the words 'nearest naya Paisa', the words 'nearest even naya Paisa' shall be substituted.

(2) The amendment made by Clause (1) of Section (1) shall come into force on such date as the State Government may by notification, appoint and the amendment made by Clause (ii) in so far as it relates to insertion of Sub-section (1-A) shall be deemed to have come into force on the 1st day of February 1961."

4. (1) Notwithstanding anything contained in any judgment, decree or order of any Court, tax levied, assessed or collected or purporting to have been levied, assessed or collected in pursuance of the provisions contained in Sub-section (1) of Section 3 of the principal Act, shall for all purposes be deemed to be, and to have always been, validly levied, assessed or collected and accordingly :

(a) all acts, proceedings or things done or taken by the Government or by any officer of Government or by any other authority in connection with the levy, assessment or collection of such tax shall for all purposes be deemed to be, and to have always been, done or taken in accordance with law:

(b) no suit or other proceeding shall be maintained or continued in any Court against the Government of any person or authority whatsoever for the refund of any tax so paid;

(c) no Court shall enforce any decree or order directing the refund of any tax so paid.

* * * * *

7. It will be seen that the amendment effected in Section 3(1) of the principal Act does not alter the structure of that provision. It only raises the rate of passenger tax from ten per cent to fifteen per cent of the fare inclusive of tax. The enhancement of the rate is made effective from the date the Government may appoint for coming into force of the amendment in Section 3(1). The new sub-section (i-a) inserted in section 3, which under Section 2(2) of the validating Act is deemed to have come into force on 1st February 1961, purports to give to an operator authority to collect the tax under Sub-section (1) in addition to the fares as fixed and in force under a notification for the time being in force under Section 43 of the Motor Vehicles Act, 1939.

8. It was argued by Shri Phadke, learned counsel appearing for the petitioners, that Sections 2 and 4 of the validating Act in so far as they purport to validate and permit the levy, assessment and collection of the tax under Section 3(1) of the principal Act without a revision of fare tables under Section 43 of the Motor Vehicles Act, 1939, are based on a total misconception of the effect of the decision of this Court in 1962 MPLJ 633 : (AIR 1962 Madh Pra 108) (supra); that the validating Act does not "reach the decision or get over its effect"; that neither the amendment made in Section 3(1) nor the new Sub-section (1-A) gives to the operator the authority to collect the tax amount qua tax from the passengers; that it only entitles the operator to collect "the tax under Sub-section (1)" of Section 3, that is to say, extra fare equivalent to the amount of tax; and that the reference in the earlier part of the new Sub-section (1-A) to the Motor Vehicles Act, 1939, is wholly irrelevant to the question of authority for the collection of the tax. Learned counsel pressed into service the last statement in paragraph 8 of our judgment in 1962 MPLJ 633: (AIR 1962 Madh Pra 108) (supra), namely, ".....unless and until the fare tables in respect of stage carriages are revised under Section 43 so as to give authority to the operator to recover from the passengers the amount of the tax payable under section 3 of the impugned act as an extra fare, the Act cannot become operative in relation to the operator concerned.....".

It was further submitted that if the new subsection (1-A) gave to the operator the authority to collect the amount of tax from passengers, then the provision was invalid inasmuch as by giving retrospective effect to it from 1st February 1961 it made punishable certain acts or omissions on the part of the operator, which, according to the decision in the case of M. P. Transport Co., were not punishable in the absence of a revision of fare tables under the Motor Vehicles Act and thus violated Article 20(1) of the Constitution.

9. We are unable to accede to this contention advanced on behalf of the petitioners. It is quite true that the amendment made in Section 3(1) of the principal Act by Section 2(l)(i) of the Validating Act does not substantially alter the structure of that provision. But the amendment does not make the tax imposed by the principal Act, as amended, an imposition on the operators. The tax continues to be one levied on passengers albeit at the rate of fifteen per cent of the fare (inclusive of the tax) instead of the original rate of ten per cent of the fare (inclusive of tax). As we said in paragraph 6 of our judgment in 1962 MPLJ 633 : (AIR 1962 Madh Pra 108) (supra), as the liability to pay fare is on the passenger and as the fare includes the amount of tax, it necessarily follows that liability for the payment of tax is also on the passenger. The operator remains, as before the amendment, the collector of the tax from the passengers in the shape of an extra amount added to the fare. It was also pointed out by us in paragraph 6 that the passenger no doubt pays the extra amount qua fare but that does not alter the fact that the liability for payment of the extra sum is on the passenger and that the extra sum paid by him is in reality the tax amount which after collection by the operator is paid to the Govern ment and not retained by the operator himself The tax being on passengers even after the amendment in Section 30), the objection raised by the petitioners in their applications that the amendment in Section 3(1) makes the levy of the tax one on operators and is beyond the legislative competence and repugnant to Articles 19(1)(g), 301 and 304 of the Constitution must, therefore, fail for the reasons stated in 1962 MPLJ (SN) 79 and 1962 MPLJ 633 : (AIR 1962 Madh Pra 108). (supra).

10. Before considering the effect of the new Sub-section (1-A) inserted in Section 3 it is necessary to emphasize that the decision in the case of M. P. Transport Co., 1962 MPLJ 633 : (AIR 1962 Madh Pra 108) (supra) did not declare the principal Act as invalid. That Act was held to be valid. The necessity for a revision under Section 43 Motor Vehicles Act of the maximum rate of fares in respect of stage carriages was stressed for the purpose of showing that in order to make the imposition of the tax in reality and practice a tax on passengers it was necessary that the operators should have the legal authority to recover from the passengers the amount of tax payable under section 3 of the principal act as extra fare and that the passengers should be under a liability to pay the extra amount of fare. If the operator had no such legal sanction, then he would have no authority to collect the extra fare and the passenger would be under no liability to pay the fare, and the burden of tax would fall on the operator to pay the amount of the tax from his own pocket. It was pointedly observed in 1962 MPLJ 633 : (AIR 1962 Madh Pra 108) (supra) that the Act, which was a valid law, could not be administered in a manner so as to render it invalid. As the Act itself did not give any authority to the operator to collect from the passengers the tax amount by way of extra fare, and as in the absence of any machinery in the Act itself for a revision of fare tables a revision of the fare tables could only be done in conformity with the provisions of the Motor Vehicles Act, 1939, it was held in 1962 MPLJ 633 : (AIR 1962 Madh Pra 108) (supra) that a revision of the fare tables under Section 43 of the Motor Vehicles Act, 1939, was necessary so as to give authority to the operator to recover from the passengers the amount of the tax payable under Section 3(1) as an extra fare and the Act took effect in relation to individual operator only on a revision of the fare tables of his stage carriages. The revision of fare tables under Section 43 of the Motor Vehicles Act, 1939, was held to be necessary in the case of M. P. Transport Co. for the purpose of authorising the operators to recover the tax amount from passengers under Section 3(1) of the Act as extra fare. It is obvious from the decision that if the Act itself had given this authority to the operators and thrown on the passengers the liability to pay the extra amount of tax as extra fare in addition to the fares operative when the Act came into force, then the necessity for a revision of fare tables in conformity with Section 43 of the Motor Vehicles Act, 1939, would not have arisen.

11. The first question, therefore, that arises for determination in connection with the validity and effectiveness of the new Sub-section (1-A) is whether it gives to the operators the authority to collect the tax amount from passengers as extra fare and whether it does so in a valid manner. Now, the language of Sub-section (1-A) of Section 3 is straightforward and clear. The provision therein that "an operator shall be, and shall be deemed always to have been, entitled to collect the tax tinder Sub-section (1) in addition to the fares as fixed and in force from time to time" plainly gives to the operators the legal authority to collect the tax under Sub-section (1), that is to say, the tax which is levied on all passengers carried by stage carriages at a rate equivalent to fifteen per cent of the fare (inclusive of tax). The words "collect the tax" occurring in Sub-section (1-A) only emphasize the position that the tax levied is on passengers and not on any operator who only collects the tax from passengers. The operator is given the authority to collect the tax as an addition to the fare that is for the time being payable by a passenger for a journey. The tax recovered is thus, so far as the passenger is concerned, a part of the fare. That being so, the reference in the non obstante opening words of Sub-section (1-A) to the Motor Vehicles Act, 1939, is not irrelevant. The relevance of the reference to Motor Vehicles Act is because of the fact that the collection of the tax amount by the operator from the passenger is as an addition to the fare. It must be noted that it is immaterial whether the legal authority to collect the tax amount as all extra fare is given by the Act itself or by revision of the fare tables under Section 43 of the Motor Vehicles Act, 1939. What is important is that the operator must have that authority. If the Act itself gives that authority, then resort to Section 43 is rendered unnecessary and the addition of the tax amount in the fare is, notwithstanding the provisions of the Motor Vehicles Act, relating to revision of fare tables. In our judgment, Sub-section (1-A) fully and effectively removes the defect of the absence of legal authority to the operator to recover from the passenger the amount of tax as extra fare by reason of which the principal Act was held to be effective in relation to individual operators only on the revision of fare tables of their stage carriages.

12. Sub-section (1-A) has no doubt been given retrospective effect from 1st February 1961. But it cannot be contended with any degree of force that it is for that reason invalid and unconstitutional. It is now firmly established that subject only to any limitation imposed by the Constitution, Parliament and the State Legislatures can give to their laws, otherwise valid, retrospective or prospective operation (Union Of India v. Madan Gopal Kabra., AIR 1954 SC 158 : 1954 SCR 541, Sundararamier and Co. v. State of Andhra Pradesh, AIR 1958 SC 468 : 1958 SCR 1422 and J. K. Jute Mills Co. v. State of U. P., AIR 1961 SC 1534 1962 (2) SCR 1). In all these cases, the Supreme Court has held that laws imposing tax can be given retrospective operation if the legislature chooses to do so. Learned counsel for the petitioners did not dispute that the Legislature could give to the operators authority to collect the tax from a past date. What he contended was that the principal Act contained certain penal provisions and the result of giving to the operators legal authority to collect the tax as from a past date was that they would be liable to punishment for certain acts done and omissions committed before the validating Act came into force and for which they could not be punished in the absence of any legal authority to collect the tax as an extra fare as pointed out in paragraph 10 of the judgment in M. P, Transport Co.'s case, 1962 MPLJ 633: (AIR 1962 Madh Pra 108) (supra) and that this would be against Article 20(1) of the Constitution.

13. In our opinion, this contention is unsubstantial. It is no doubt true that the words 'law in force' used in Article 20(1) of the Constitution mean the law in fact in existence and operation at the time of the commission of the act charged as an offence, and do not include a law 'deemed to be in force' by virtue of the power of the legislature to pass retrospective laws (see Shiv Bahadur Singh v. State of V.P., AIR 1953 SC 394 : 1953 SCR 1188). If an operator could not be penalised for an act or omission of his for want of legal authority in him, at the time of the act or omission, to collect the tax from passengers as extra fare, then clearly he cannot be punished for those acts and omissions with the aid of the deeming provision with regard to the giving of authority in Sub-section (1-A) of Section 3 of the principal Act and Section 2(2) of the Validating Act. In such a case Article 20(1) would nullify the prosecution but not Sub-section (1-A) of Section 3 of the principal Act or Section 2(2) of the Validating Act. The reason is that those provisions do not directly provide for any penal provision of a retrospective nature and do riot make any act or omission of an operator before the passing of the validating law, which could not be penalised when done or committed, criminal and punishable. If any operator is prosecuted on the supposed retrospective effect of the Validating Act with respect to penal provisions in the principal Act, Article 20(1) would immediately come to his rescue and he can always claim the protection of that article. As Sub-section (1-A) of Section 3 of the principal Act and Section 2(2) of the Validating Act nowhere directly provide for any retrospective penalisation of the operators for their acts and omissions, there is no question of those provisions themselves being hit by Article 20(1) of the Constitution. The argument, therefore, that these provisions are repugnant to Article 20(1) of the Constitution must fail.

14. On the question of the validity of Section 4 of the Validating Act, very little need be said. If, as we think, the new Sub-section (1-A) of Section 3 of the principal Act and Section 2(2) of the Validating Act validly cure the want of legal authority in the operators to recover from passengers the amount of tax as extra fare, then it follows that section 4 of the validadting act is in order. The operation of that provision is, however, controlled by Article 20(1) of the Constitution. It does not directly save or validate penal proceedings against any operator for his any act or omission before the passing of the Validating Act when he had no legal authority to collect the amount of tax from the passengers as extra fare. It cannot be construed so as to save and validate such proceedings and nullify Article 20(1). The proceedings or acts saved and validated by Section 4 are those taken in connection with the civil liability of the operator for the levy, assessment and collection of the tax. The question how this civil liability of the operator for the payment of tax in respect of passengers travelling before the Validating Act came into force can be effectively and promptly enforced when the Validating Act cannot be given retrospective effect with respect to penal provisions of the principal Act does not arise for consideration in these cases.

Learned counsel for the petitioners also faintly touched the question of the validity of Section 3 of the Validating Act. Ultimately he reserved that question for being raised later in an appropriate case. The petitioners also challenged the validity of certain notices of demand issued to them for payment of passenger tax on the ground that the Validating Act was ultra vires. If, as we are of the view, the Validadting Act, is valid, then the notices of demand cannot clearly be questioned on that ground. It is no doubt open to the petitioners to challenge the correctness and legality of the notices of demand on other grounds in appropriate proceedings, if they are so inclined.

15. For all these reasons, our conclusion is that challenge to the validity of Sections 2 and 4 of the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Amendment and Validation Act, 1962, fails. All these petitions are, therefore, dismissed with costs. Counsel's fee in Misc. Petition No. 292 of 1962 filed by nine limited companies is fixed at Rs. 900/-. In other cases, it is fixed at Rs. 100/-each. The outstanding amount of security deposit, after dedudction of costs, shall be refunded to the petitioners.