The power of taxation under Entry 57 of List II of the Seventh Schedule to the Constitution is limited to vehicles that actually use public roads.

The petitioner which is a public limited company in this writ application under Articles 226 and 227 of the Constitution of India, as originally filed, prayed for quashing of Annexure 2, a notice, from the Certificate Officer, Dhalbhum, Jamshedpur (respondent no. 3) demanding from the General Manager of the petitioner a sum of Rs. 580021.20 P. as arrears of road tax for dupers and tippers and also for a declaration that Section 6 of the Bihar and Orissa Motor Vehicles Taxation Act, 1930 (hereinafter referred to as ‘the Act’) was ultra vires if it authorises imposition or levy of pond tax for the transportation of vehicles such as built-up chassis, dumpers, tippers etc. A further prayer was made for a writ in the nature of mandamus commanding respondent no. 2, the District Transport Officer, Jamshedpur, Bihar to register the vehicles of the petitioner mentioned in paragraph 1 of the petition, such as commercial vehicles, earth removing machines; industrial shunters, particularly built-up chassis, dumpers, tippers and coal carriers without payment of any road tax leviable under Section 6 of the Act. It appeals that after the writ application was admitted respondent no. 1, the State of Bihar, by Ordinance No. 84 of 1976 amended Section 6 and 8 of the Act providing for payment of tax annually by every owner and person having possession or control of the motor vehicle. The petitioner company challenged the vires of that Ordinance by an amendment petition which was filed on 28th of July, 1976. This amendment petition was allowed by ORDER :dated 6th of August, 1976. That Ordinance lapsed by efflux of time and respondent no. 1 went on replacing it by Ordinances of similar nature the last one being Ordinance No. 230 of 1977 (hereinafter referred to as ‘the Ordinance') as stated in the petition filed on behalf of the petitioner on 28th of February 1978. By this petition which purports to be one under Section 151 read with ORDER :6, Rule 17 of the Code of Civil Procedure, the petitioner company bas again prayed for amendment of the writ application challenging the vires of Sections 3(b), 3(c) and 5 thereof by which Sections 6 and 8 of the Act have been amended. By ORDER :dated 4th of April, 1978, the Bench before which this petition was put up directed that it would be considered at the time of hearing of the writ petition itself and it would be open to the respondents to file any affidavit in reply to the amendment petition if they so liked. Another petition under Section 151 of the Code of Civil Procedure was also filed on behalf of the petitioner which was put up for ORDER :s on 30th of June, 1978, but learned counsel for the petitioner Mr. Chunni Lal, stated that he did Dot press that petition and it wag accordingly dismissed for non-prosecution.

2. Mr. Lal Narain Sinha who has appeared for the petitioner company has advanced only two arguments, viz. (i) that the amendments introduced by Sections 3(b), 3(c) and 5 of the Ordinance to Sections 6 and 8 of the Act are ultra vires as they were not within the legislative competence of the State Legislature; and (ii) that the dumpers tippers etc. in respect of which demand for tax has been made are not covered by the schedule of the Act and hence the demand is illegal. Learned Advocate-General appearing for the respondents has taken a preliminary objection as to the maintainability of the writ application itself. According to him, as these objections could be raised before the Certificate Officer under Section 9 of the Bihar and Orissa Public Demands Recovery Act. this Court cannot go into the questions in view of the provisions of Article 226 of the Constitution as it stands amended by 42nd Amendment of the Constitution. Me. Lal Narain Sinha conceded that the question whether the vehicles in respect of which tax was demanded were covered by the schedule of the Act or not was a question which could be raised before the Certificate Officer and did not press his second argument excep