M.R. Shah, J.

1. As common question of law and facts arise in this group of petitions, all these petitions are heard, decided and disposed of together by this common judgment and order.

1.1 In all these petitions under Article 226 of the Constitution of India, the respective petitioners have prayed to declare sub-section (1A) of section 3 of the Bombay Motor Vehicles Tax Act, 1958 (hereinafter referred to as "Act, 1958") as ultra vires.

1.2 For the sake of convenience, Special Civil Application No. 4157/2012, which has been preferred by the petitioner-Ahmedabad Used Car Dealers' Welfare Association, be treated as a lead matter.

2. That sub-section (1A) of Section 3 of the Act, 1958 has been enacted by the Gujarat Act No. 5 of 2010 which has come into force with effect from 01.04.2010. That by the said provision, which is under challenge, there shall be a levy of tax on vehicles at the time of change of ownership due to sale of such vehicles. That the levy of such tax shall be in addition to the tax paid at the time of registration. Sub-section (1A) of Section 3 of the Act, 1958, which is under challenge, is as under:

"3(1A). Notwithstanding anything contained in sub-section (1), a tax in lumpsum in respect of a motor vehicle, for which lumpsum tax has been paid and ownership of such motor vehicle is transferred on sale, shall be payable at such rates, as may be specified by the State Government, by notification in the official gazette, but not exceeding 25% of the lumpsum tax paid."

That the respective petitioners have challenged the vires/constitutional validity of sub-section (1A) of Section 3 of the Act, 1958 as ultra vires to Entry 57 of List II in Schedule VII to the Constitution of India and also ultra vires to Article 265 of the Constitution of India.

3. Shri Ramkrishna B. Dave, learned Advocate has appeared on behalf of the petitioners and Shri Kamal Trivedi, learned Advocate General has appeared with Ms. Sangita Vishen, learned Assistant Government Pleader appearing on behalf of the State.

4. Shri Dave, learned Advocate appearing on behalf of the petitioners has vehemently submitted that sub-section (1A) of Section 3 of the Act, 1958 has been enacted under the alleged authority of Entry 57 of List II of Schedule VII to the Constitution of India. It is submitted that Entry 57 of List II provides that the taxes on vehicles can be imposed on such vehicles which are suitable for use on roads. It is submitted that therefore tax on vehicles can be imposed on the use of the vehicles and not on the ownership of the motor vehicle, which is transferred on sale, as provided under sub-section (1A) of Section 3 of the Act, 1958. It is, therefore, submitted by Shri Dave, learned Advocate appearing on behalf of the petitioners that the impugned levy and sub-section (1A) of Section 3 of the Act, 1958 by which a tax is imposed on transfer of the vehicle is beyond the legislative competence of the State Government.

4.1 It is vehemently submitted by Shri Dave, learned Advocate appearing on behalf of the petitioners that therefore, the impugned levy is without authority under the law and therefore, ultra vires to Article 265 of the Constitution of India. It is vehemently submitted by Shri Dave, learned Advocate appearing on behalf of the petitioners that as per Article 265 of the Constitution of India, there shall not be levied any tax without the authority under the law. It is submitted that even the collection of tax also cannot be without authority under the law. It is submitted that therefore, the impugned levy and sub-section (1A) of Section 3 of the Act, 1958 is, therefore, ultra vires to Article 265 of the Constitution of India.

4.2 It is further submitted by Shri Dave, learned Advocate appearing on behalf of the petitioners that even Entry 57 of List II provides that taxes on vehicles, whether mechanically propelled or not, suitable for use on roads including tram cars, subject to provisions of Entry 35 of List III. It is submitt