( 1 ) RULE. Ms. Amee Yajnik, Assistant Government pleader, waives service of Rule on behalf of the respondents.

( 2 ) WHEN this petition came up for hearing on 16-4-1998, Counsel appearing on either side wanted main petition itself heard and disposed of. Accordingly, as agreed to by Counsel, we heard arguments at length. We are disposing of the same by this judgment.

( 3 ) GUJARAT State Legislature amended the Bombay Motor Vehicles Tax Act, 1958 by Act 3 of 1992. As a result of the amendment, sub-S. (5) of S. 3a was substituted. It dealt with the cases of omnibuses. By sub-clause (a) to sub-S. (5), an owner of an omnibus is entitled to refund of the tax upto a maximum of three months in an year on proof of non-user. If refund is claimed for more than three months in any year, he must establish non-user of the omnibus for reasons beyond his control to the satisfaction of an Authorised Officer. The consequence is that on account of non-user of an omnibus, the owner or person having possession or control of the vehicle can get refund of the tax for a period of three months, if he shows that the omnibus has not been used or kept for use during that period. In case refund is claimed beyond three months, then the owner and person in possession or control has not only to prove that the vehicle was not used or kept for use, but also to establish to the satisfaction of the Authorised Officer that the non-user was for reasons beyond his control. Additional burden to prove that the vehicle was not used for reasons beyond the control of the owner or the person in possession of the vehicle is under challenge on the ground that no such additional proof can be insisted on by the State. In other words, the contention raised by the petitioners is that omnibuses, like any other class of vehicles, are not liable to pay tax for the period during which they were not used or put on road for the whole period of its non-user.

( 4 ) PETITIONER No. 1 is the owner of omnibus, bearing registration No. GRQ 8403. That vehicle was not put on road for the period from 1-7-1995 to 31-3-1996. He gave intimation of the non-user to the Motor Vehicle Inspector. The Inspector checked the vehicle and reported that the vehicle was not put to use during the above period. Petitioner claimed refund of the tax for the entire period from 1-7-1995 to 31-3-1996. The claim was not allowed, stating that refund of tax for three months on account of non-user alone can be permitted. According to the Authorities, since the petitioners have not established before the Authorised Officer that the vehicle was not used for reasons beyond the control of the owner, refund of tax for more than three months cannot be allowed in view of the amended provision contained in sub-S. (5) of S. 3a of the Act. This action of the respondents is under challenge. Petitioners also question the Constitutional validity of sub-S. (5) of S. 3a, wherein owner of an omnibus is required to prove non-user for reasons beyond his control for claiming refund of the tax for periods over three months in a year.

( 5 ) SECTION 3 of the Bombay Motor Vehicles Tax Act, 1958 imposes tax on motor vehicles used or kept for use in the State. The rate of tax as per this Section is to be fixed by the State Government by Notification in the Official Gazette. The tax so fixed should not exceed the maximum rate fixed in the First Schedule to the Act. Sub-S. (2) of S. 3 states that a motor vehicle, of which the certificate of registration is current, shall be deemed to have been used or kept for use in the state except during the period for which the taxation authority has certified that the vehicle was not used or kept for use. Section 3a provides for levy of additional tax on omnibuses, which are used or kept for use in the State as contract carriage. Those vehicles are to pay not only the tax contemplated by S. 3, but also the additional tax. Sub-S. (5) of S. 3a prior to its amendment by Act 3 of 1992 stated