P L D 1958 (W (PLP)

QADEERUDDIN AHMED, J.‑

Three writ petitions bearing Nos. 160 of 1955, 164 of 1955 and 182 of 1955 have been argued together. Mr. Brohi who appeared in Writ Petition No. 182 of 1955 has addressed the main arguments which were adopted by Mr. Tufail Ali Abdur Rehman who appeared for the Petitioners in Writ Petitions Nos. 160 and 164 of 1955. The writ petitions were filed in 1955. One of the reliefs claimed in Writ petitions Nos. 160 and 164 is that the Sind Finance Act, 1949 (V of 1949) and Sind Finance (Amendment) Act, 1950 (VII of 1950) should be held to be ultra vires of the powers of the Sind Legislative Assembly and therefore of no effect. In Writ Petition No. 182 this relief is claimed with reference to Part IV of the Sind Finance Act, 1949 and Section 3 of the Sind Finance (Amendment) Act, 1950, which are the only relevant parts of the Acts for purposes of these petitions. In Writ Petitions Nos. 160 and 164 a direction is sought prohibiting the respondents from giving effect to Resolution No. 5454/HE/49 dated 28th September 1949 and Resolution No. 5454/‑HE/49 dated the 20th of May 1950, in respect of enhancement of tax over and above Rs. 150 per annum and from interfering with the petitioners' right to ply their vehicles on the routes sanctioned to them. In Writ Petition No. 182, the same prayer is made in more general terms with reference to all Resolutions, Notifications and orders passed under the two Acts mentioned above. In common with the other two writ petitions, though in a different form, it is also prayed that the respondents should be directed to accept and realise taxes in accordance with the original provisions of the Sind Motor Vehicles Tax Act, 1939. There is no prayer in this writ petition regarding the right of the petitioners to ply their vehicles on the sanctioned routes. In all the writ petitions the petitioners have prayed that the respondents should be directed to refund to the petitioners enhanced tax or the excess amounts realised from them " from 1‑5‑1949 upto date". The reliefs claimed in the three writ petitions are substantially the same. An application for the amendment of Writ Petition No. 182 by the insertion of paragraphs 13 (a) and 13 (b) was made and granted. Similar applications were made in Writ Petitions 160 and 164 for amendment by the insertion of paragraphs 12 (a) and 12 (b) and were granted. In these paragraphs it is alleged that the Sind Motor Vehicles Act, 1939 is a nullity and has been repealed by the West Pakistan Motor Vehicles Taxation Ordinance, 1956, which too has lapsed, and therefore, the respondents cannot levy tax on motor vehicles at all. The relief clauses of the writ petitions were, however, not changed, and the main reliefs claimed by the petitioners remains that the respondents should be directed to accept tax in accordance with the original provisions of the Sind Motor Vehicles Act, 1939, and to refund the amount received in excess of the original rates from 1st of May 1949 onwards. Mr. Brohi directed a concentrated attack on the Notification dated the 20th of May 1950, which relates to those motor vehicles which ply for hire and are licensed to carry more than four persons excluding the driver of the vehicle, and those motor vehicles which ply for hire and are used for the transport of goods. These are, in fact, the only categories with reference to which the amount of tax was enhanced under the Sind Finance Act, 1949 and Sind Finance (Amendment) Act, 1950. The learned counsel's attack on the notification was, therefore, consistent with the reliefs claimed by the petitioners. We may add that no arguments have been addressed to us on the allegation that the entire Sind Motor Vehicles Tax Act, 1939, is a nullity or that it was repealed by the West Pakistan Motor Vehicles Taxation Ordinance, 1956, or that as a result of its repeal, the respondents are no longer in a position to levy any tax on motor vehicles. Similarly no arguments have been addressed to us on the right of the petitioners to ply their vehicles on the routes sanctioned to them. The objections of the learned counsel relate to the provisions of several statutes which were enacted at different times, and therefore it will be convenient to take up the provisions in the chronological order and to discuss the objections relating to them in the same sequence. The basic legislation is the Government of India Act, 1935. In the Provincial Legislative List, which forms a part of the Seventh Schedule to this Act, there was originally no provision for levying tax on vehicles. Yet in 1939, the Sind Legislative Assembly passed the Sind Motor Vehicles Tax Act, 1939 (Sind Act No. XV of 1939) which provided by subsection (1) of section 3 that‑ " As from the first of July 1939, a tax at the rates fixed by the Provincial Government by notification in the Official Gazette not exceeding the maximum rates specified in the Schedule shall be levied on all motor vehicles used or kept for use in the Province of Sind." ??????????? The Schedule mentioned in the section classified motor vehicles under four main heads (A) ????? Those fitted solely with pneumatic tyres ; (B) ????? Other than those fitted solely with pneumatic tyres ; (C) ????? Those visiting the Province ; (D) ????? Those kept by the dealers in or manufacturers of motor vehicles. It was perhaps realised afterwards that the Provincial Government was not empowered to levy tax on vehicles, and therefore, paragraph 48‑A was inserted in the Provincial Legislative List of the Government of India Act, 1935 by subsection (2) of section 2 of an Act of the British Parliament called the India, Burma (Miscellaneous Amendments) Act, 1940. We shall refer to the latter Act as the Amendments Act, 1940. The paragraph inserted by it is as follows " 48‑A. Taxes on Vehicles suitable for use on roads, whether mechanically propelled or not, including tram cars." Two more amendments were also made in the Government of India Act, 1935 by the Amendments Act, 1940 which may be noted here because reference will be made to them later. By subsection (2) of section 3 of the Amendments Act, 1940, paragraph 46 of the Provincial Legislative List was substituted by the following paragraph :‑ "

46. Taxes on professions, trades, callings and employments, subject, however, to the provisions of section 142‑A of this Act." Section 142‑A was inserted by subsection (1) of section 2 of the Amendments Act, 1940. Its subsection (1) and the first paragraph of subsection (2) are important for the purposes of these writ petitions. The sub?sections are as follows : " 142‑A. (1) Notwithstanding anything in section 100 of this Act, no Provincial law relating to taxes for the benefit of a Province or of a Municipality, District Board, Local Board, or other local authority therein in respect of professions, trades, callings or employments, shall be invalid on the ground that it relates to a tax on income. (2) The total amount payable in respect of any one person to the Province or to any one municipality, district board, local board, or other local authority in the Province by way of taxes on professions, trades, callings and employments shall not, after the thirty‑first day of March nineteen hundred and thirty nine exceed fifty rupees per annum ; Provided that, if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority, a tax on professions, trades, callings or employments, the rate or the maximum rate, of which exceeded fifty rupees per annum, the preceding provision of this subsection shall, unless for the time being provision to the contrary is made by a law of the Federal Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to that rate or maximum rate, or such lower rate, if any (being a rate greater than fifty rupees per annum) as may for the time being be fixed by a law of the Federal Legislature ; and any law of the Federal Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specified Provinces municipalities, boards or authorities." All amendments made by the Amendments Act, 1940 were made ?retrospective by section 17 of the Act., Subjection (1) of this section is important and runs as under :‑ " 17.‑(1) The amendments made by this Act in the Principal Act and the Government of Burma Act 1935 (whether by way of substitution, addition or omission) shall, save where it is specifically provided that they shall come into operation on, or on some date subsequent to the passing of this Act, be deemed to have been made in those Acts immediately before the passing thereof." Thus, the Provincial Legislature was given the power to tax vehicles retrospectively, right from the moment of time when the Govern?ment of India Act, 1935 was passed originally. We may note here the objection of Mr Brohi to the con?ferment of power to tax vehicles retrospectively. Accordingly to him the words "immediately before the passing thereof"' which occur in subsection (1) of section 17 of the Amendment Act. 1940 amount to amending the Bill of the Government of India Act, 1935, which is not done and cannot be done by any legislature. His contention is that an Act is a Bill before it is passed, and that a Legislature can amend an Act, but not a Bill, yet the British Parliament actually amended the Bill of the Government of India Act, by using these words and therefore this amendment is of no effect. We are aware that Legislatures do not amend. Bills because the need for amending them does not arise, but we are not aware of any ground for the view that the British Parliament cannot amend a Bill when it considers proper to do so. We think that the language used by the British Parliament shows abundant caution against the possibility of omitting any point of time during which the amendment might be ineffective since the Act was originally passed. We see no defect in the amend?ment made by the British Parliament, in the text of the Bill as it was passed into the Act. Mr. Brohi's further objection to the retrospective conferment of the power is that the Sind Motor Vehicles Tax Act, 1939, was passed before the power to enact it was conferred on the Provincial Legislature, and there?fore, although the power was subsequently conferred on the Legislature, yet the Act itself was not validated, and therefore it has continued to be ultra vires of the powers of the Legislature. This argument omits to take into consideration the legal position that by a fiction of law, the Sind Provincial Legislature is deemed to have enjoyed the power to legislate for imposing tax on vehicles from the moment the Government of India Act, B 1935 was passed ; which means that in 1939, and at the time of the passing of the Sind Motor Vehicles Tax Act, 1939, the Legislature had the power to pass it. Counsel has relied on John Lemm and Thomas Alexander Mitchell (1912 A C 400) in support of his contention. In that case, the appellant had brought an action for damages for criminal conversation and the Court held that the action was not maintainable in accordance with the law in force then. The law was amended retrospectively and another action was brought on the basis of the same cause of action. Res judicata was pleaded in defence, which was over?ruled and the judgment was upheld in appeal by the Supreme Court. The Privy Council disagreed with the decision of the Supreme Court and held :‑ "This result was not due to any defect in the jurisdiction of the Supreme Court, which was ample, but to a shortcoming in the general law. In the absence of appeal the judgment was a final determination of the rights of the parties, and the ordinary principle that a man is not to be vexed twice for the same alleged cause of action applies, unless it be excluded by the Legislature in explicit and unmistakable terms." The Privy Council further held :‑ ??????????? " It would require language much more explicit than that which is to be found in the Ordinance of 1908 to justify a Court of law in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting." The considerations which are the basis of the Privy Council's Judgment are not admissible for the decision of the present case. Counsel further argued that retrospective effect is an exception to the general rule that legislations have prospective effect and that retrospective legislations should be strictly construed. He referred to pages 357 and 358 of Craies on Statutes Law in his support. These contentions do not help the learned counsel, and one can see that the language used by the British Parliament in subsection (1) of section 17 of the Amendments Act, 1940, is al, safeguard against such objection. In 1949, the Sind Legislative Assembly passed the Sind Finance Act, 1949 (Act V of 1949) by section 4 of which it amended Part IV which is a sub‑head under the main‑head `A' of the Schedule to the Sind Motor Vehicles Tax Act, 1939, and added Part IV‑A under the same head and increased the rate of tax considerably. These were, however, the maximum rates. Under subsection (1) of section 3 reproduced above, the Provincial Government had to fix the actual rates, not exceeding the maximum rates by a Notification in the Official Gazette. It is to be noted here that if the Government had issued a Notification, as it had issued formerly after the passing of the Act in 1939, as is admitted in para. 2 of the writ petitions and had levied the tax, no objection could be taken against the implicit considerations, for fixing the rates‑not only because they would have remained unknown but also because they could be of any kind since there are no restrictions in the Act on the basis on which rates can be fixed as long as they are not in excess of the maximum rates specified in the schedule. The earning capacity of the vehicles is not an objectionable con?sideration the Schedule itself is based on the considerations of the weight of the vehicles, their easy mobility such as is associated with the vehicles being fitted with pneumatic tyres ; their earning capacity such as arises from plying for hire by transporting passengers combined with the accommodation in them to carry passengers, or their earning capacity in relation to plying for hire by transporting goods combined with their unladen weight. Weight is, in a general sense, indicative of the power and capacity of self‑propelled vehicles to carry goods. The Government, however, did not fix the rates this time by itself and, presumably, on account of the political conditions subsisting in Pakistan in 1949 and in order to have the benefit of public opinion in the words of para. 6 of writ petition No. 182, "appointed a Board of non‑officials to recommend to the Government the amounts of tax in respect of various classes of vehicles". The exact terms of reference are not known to us. It appears from a copy of the Resolution of the Govern?ment of Sind dated the 28th of September, 1949 that the Board applied its mind to the problem of taxing those vehicles only which plied for hire and were the subject matter of sub‑heads IV and IV‑A under the main head `A' of the Schedule to the Act. With regard to the vehicles falling under sub‑head IV, the Board took into consideration the nature and conditions of the roads, the capacity of the vehicles to carry passengers and the mileage done by them. They coined the expression "passenger‑mile" and have explained that it means‑ " The mile multiplied by the sanctioned number of passengers per bus." They have mentioned in their report that "the percentage of taxation of 40 per cent" was "reduced to about 27 per cent" by the Government but it was yet on the high side" and have made "allowance for non‑working days" and proposed rates which, according to them, were to affect only "25 per cent of the net income of the owners" of these vehicles. It is not known as to how they calculated these percentages. They must have worked on the basis of some presumption regarding income from each "passenger‑mile". The best method which they could adopt for making these calculations was to work out income on the basis of averages if they had satisfactory data for it. With regard to those vehicles which fall under the sub‑head IV‑A also they have mentioned the proportion of the burden of tax in relation to the income of the owners, although there is no mention in this respect of any idea corresponding to a "passenger‑mile". They have referred to the generous reduction of 50 per cent in the tax on this class of vehicles by the Government, and have said‑

?But since the government have already announced this concession, we do not wish to go into it and recommend any higher incidence than the one already announced by Govern?ment. We merely suggest rounding of figures." The recommendations of the Board are described in the Resolu?tion of the Government by which they were accepted as the "award". They were accepted in full, except in a minor detail, "for the current financial year" as the proposals of the "Arbitra?tion Committee". In pursuance of this acceptance the Government enacted section 3 of the Sind Finance (Amendment) Ordinance, 1949 and thereby amended the Sind Motor Vehicles Tax Act, 1939 by the insertion, in sec. 3 of subsec (I‑A). This Ordinance was replaced by the Sind Finance (Amendment) Act, 1950 and sub?sec. (1‑A) of sec. 3 of the Sind Motor Vehicles Tax Act was repeated in it. The background of this subsection is thus the report of the Board of non‑officials ; and as the report dis?closed that the income and business of the owners of the vehicles was taken into consideration for making the recommendations, it is argued on behalf of the petitioners that the recommendations, made by the Board and accepted by the Government, show that the tax is outside the scope of the power conferred by para?graph 48‑A of the Provincial Legislative list contained in Schedule VII of the Government of India Act, 1935, sub?section (I‑A) itself does not mention the income of the owners of the vehicles, but it does speak of the "business done by the motor vehicles". It is as follows :‑ "(Section 1‑A) The Provincial Government may by notifica?tion in the Official Gazette further classify any class or subclass of motor vehicles, as specified in the Schedule, taking into consideration, the nature and condition of the roads on which that particular class or subclass of motor vehicles ply, and in the case of motor vehicles plying for hire; also the business done by the motor vehicles, and levy under subsection (1) different rates of tax for categories so classified." Mr. Brohi has argued that this, amounts to taxing the trade of the owners of the motor vehicles under paragraph 46 of the Provincial Legislative list, which is in a way a tax on income as j indicated in subsection (1) of section 142‑A of the Government of India Act, 1935, reproduced above and the limit of such taxation for the Provincial Government is fifty rupees per annum m respect of any one person in terms of subsection (2) of section 142‑A of the Government of India Act 1935, also repro?duced above. If this argument is accepted then the Provincial Government can levy the tax as a tax on trade upto Rs. 50 per head per annum and within this limit there can be no objection. We pointed out to Mr. Brohi that the consideration mentioned in subsection (1‑A) of section 3 of the Sind Motor Vehicle Tax Act, 1939 include the nature and condition of the road, besides the business done by the vehicles, and enquired from him how the limit of Rs. 50 as tax on trade alone was exceeded. He contended that the amounts of Tax mentioned in the notification issued under subsection (I‑A) run into four figures and therefore prima facie the limit is exceeded and it is for the Government to show what portion of these amounts relates to business or trade and what portion relates to the con?sideration of the nature and condition of the roads. We do not think that the onus is on the Government because the background of the law is known. It is the report of the Board of the non?officials. According to it the burden of this tax is 25% of the presumed income of the owners of the vehicles, and has no relationship with the actual income of any owner of a vehicle. Moreover the entire tax is related, according to the contents of the report, to income and nothing has been apportioned to "the nature and condition of the roads" because the Board was only concerned with the total ‑amount which was likely to become payable by the owners of the vehicles irrespective of the basis of the tax. This is, however, not the true position in terms of section 3 (1‑A). The mention of income in this report combined with the inclusion in subsection (1‑A) of the consideration of the business done by the vehicles has given the clue to the petitioners to argue that it is a tax on trade and that it should be subject to the limit of Rs. 50 .under section 142‑A of the Government of India Act, 1935. The members of the Board were, however, not con?cerned with the nature of the tax and were only anxious that no owner of vehicles should be out of pocket for more than 25 per cent of his presumed income. Their anxiety does not oblitrate the other considerations or determine the nature of the tax. Every tax affects the pocket of the assessee and there is no indication of the nature of any tax in this. Mr. Brohi has argued that according to subsection (1‑A) of section 3 at least one of the considerations is the "business done by the vehicles", which really means business of the owners because the vehicles do not themselves do any business. This is true, yet this argument is not as sound as it appears to be simple, because every payment must be made by the owners whatever may be the consideration for taxing the vehicle. The burden of all taxation is on the persons who become liable to pay, whatever the measure for calculating the assessment. The measure may be the capacity or weight or horse power of the vehicles or the trips which they make. A trip need not necessarily yield the income of a full load. It may be a trip by a vehicle which is overloaded or underloaded or empty. There thus is no relationship or "passenger‑miles" with actual income. They only provide one of the standards for calculating the assessment. At page 669 of Vol. 2 of the Constitution of the United States, Willoughby has discussed the "measurement of taxes" and has pointed out :‑ " . . . . . for the determination of the amounts of taxes to be assessed upon individual persons, Corporations, or pieces of property, any reasonable standard of measurement may be selected and that the intrinsic character of the tax is not determined by the mode of measurement thus selected. Thus, as will later be seen, the States may not, by an exercise of their powers of taxation, lay a direct burden upon interstate commerce, and yet they may measure the amount of the tax to be paid upon property by its market value, although that value, is, to a large extent, due to its employment for the carry?ing on of interstate commerce." Again‑ "And it has been held that taxes on corporate franchises may be measured by reference to the value of property that is not itself taxable." Basu has stated which discussing the general principles of the interpretation of entries relating to the taxing power, at page 234 of Vol. 2 of his "Commentary on the Constitution of India":‑ "Thus in repelling the contention that a tax on ?buildings? and lands was not a tax on income because the tax was leviable upon `owners' and that the value of the building was taken as the basis for assessing the tax, the Federal Court observed (in Ralla Ram v. Province of East Punjab A I R 1949 F C 81) "It is true that the annual value was used as the basis, but it was very different from the annual value which may be used for getting at the true profits or income. The annual value, as has been pointed out, `is at best only notional or hypothetical income and not the actual income. It is only a standard used in the income‑tax Act for getting at income, but that is not enough to bar the use of the same standard for assessing a provincial tax. If a tax is to be levied on property, it will not be irrational to correlate it to the value of the property and to make some kind of annual value the basis of the tax, without intending to tax income. Similarly, the fact that the tax is to be measured in pro?portion to the fares and freights realised does not alter the nature of a tax upon `gods and passengers' carried on motor vehicles, (Alma Ram Budhia v. State of Bihar A I R l952 Pat. 359)." The Patna case is of special interest for the present purpose because the relationship of taxation with fares and freight, was held not to change the nature of the tax from one on "goods and passengers" to one on income. A very similar case is P. Mathurai Pillai and others v. State of Madras (A I R 154 Mad 569) in which also it was held that "the mere fact that the tax was calculated at some proportion of the amount of fares and freights would not by itself make the tax any thing less a tax on passengers or goods". It was pointed out that‑ "It may be that a particular operator may not make any profit or gain in a particular year, but all the same he would be liable to pay this tax. If it were a tax on income, he would not have been liable for that year. In our opinion, this one circumstance conclusively demonstrates the nature of the tax." Mr. Brohi has distinguished these cases by pointing that distinction drawn between a tax on income and the other taxes, is of no importance for the purposes of his argument because his aim is to draw a distinction between the tax on vehicles and a tax on trade. The distinction drawn by him is itself, to our mind of no importance, for the present purposes, because if we have understood him rightly, the essential idea in his argument is only the connection of tax with the income of the owners of the vehicles as mentioned in the report of the Board of non‑officials. He admitted that without this report d1exe was no basis for him to argue that the tax on vehicles was a tax on trade. Tax on trade and tax on income are allied in nature. He has, of course, not argued that the tax in question is a direct tax on income, but leas relied or subsection (1) of section 142‑A of the Government of India Act, 1935 to show that "no Provincial Law relating to taxes??..in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income", provided that under subsection (2) of the section, "the total amount payable in respect of any one person . . . . . shall not . . . . . exceed fifty rupees per annum", and has tried to persuade us to .hold that the amounts of tax levied, under subsection (1‑A) of Sec. 3 of the Sind Motor Vehicles Tax Act, 1939; by the impugned notification‑ exceed this limit. He has supported his argument by referring to section 5 of the Sind Motor Vehicles Tax Act, 1939, under which as a result of an alteration in a vehicle either more tax may be collected or some tax may be refunded. This argument is meant to emphasise the relation between the tax and the income of the owners. If the underlying idea of the connection between the tax and income is excluded from consideration, then the tax in question cannot be said to be a tax on trade because a tax on trade is, either on the turnover of the trade‑irrespective of its taxability as a tax on income ; or on the trader personally ; or perhaps on the subject‑matter of the trade. The tax in question is neither a tax on the actual turnover of the owners of vehicles nor on the persons carrying on the trade of plying motor vehicles. Section 3 of the Sind Motor Vehicles Tax Act, 1939, which is the charging section is clear in this respect. It speaks of tax on certain motor vehicles, of their sub‑classification on the basis of certain considerations and of its payment. The subject-?matter of the trade in the case before us consists of vehicles, and if a tart on the subject‑matter of a trade is a tax on the trade itself, then we find that a special provision has been made for levying tax, on this subject‑matter of trade by paragraph 48‑A of the Provincial Legislative List of the Government of India Act, 1935 and that this is a complete answer to the contention that the List is applicable.??????? Mr. Brohi has contended that subsection (1-A) of section 3 of, the Sind Motor‑Vehicles Tax Act, 1939 is a colourable legislation because although the legislature has purported to act within its power yet the references to the proportion of taxation to the income of the owners of the vehicles and to "passenger?-miles" in the report of the Board of iron‑officials and the sub‑classification of vehicles under subsection (1‑A) on the basis of ?the business done by? them, show that in substance and reality the legislature has levied tax on Trade anti transgressed the limits of its powers prescribed by subsection (2) of section 142‑A of the Government of India Act, 1935. Without reiterating the arguments given by us above, we may state that we do not consider this contention to be correct. In substance the tax is on vehicles and not on trade or business and subsection (2) of section 142‑A does not apply to it. We may, point out that the petitioners' case suffers from an essential weakness, because they have challenged the validity of sub?section (1‑A) of section 3 without challenging subsection (1) which is the generic provision and includes in it the species dealt with by subsection (1‑A). Subsection (1) deals with the levy of tax on motor vehicles and subsection (I‑A) deals with their "further" classification and the levy. of tax on the sub‑classes, only. Similarly Schedule to the Sind Motor Vehicles Tax Act, 1939 prescribes the maximum leviable tax which cannot be exceeded by any action taken under subsections (1) and (1‑A). The Schedule has not been questioned before us at all, although there is a prayer in the writ petitions that the Sind Finance Act, 1949, or Part IV of it by which the Schedule was amended, be held to be invalid. The reason why the Sind Finance Act, 1949 did not come within the range of attack is that it was passed on 7‑4‑1949 before the report of the Board of non?officials was accepted by the Government and subsection (1‑A) of section 3 was introduced in the Sind Motor Vehicles Tax Act, 1939. It was contended, though half‑heartedly, that the maximum rates prescribed in the Schedule can be exploited to any extent, even if it be within the maximum limits, by the Government under section 3 of the Sind Motor Vehicles Tax Act, 1939, and that this power is unguided and uncontrolled, and therefore ultra vires of Art. 5 of the Constitution. This contention is not G correct, because the power of the Government is controlled by the limits specified in the Schedule by the legislature with reference to the various categories of vehicles. A faint suggestion was made that the law was in violation of Articles 11 and 1 of the Constitution, but the argument was not pressed, nor even pursued. These arguments are, however, of a different nature from the objection that the legislation is colourable. As far as the colourable nature of the legislation is concerned, the counsel was swept so far away from the essentials as to repeatedly state during his arguments that he had no quarrel with the law and intended only to challenge the validity of the notification dated the 20th of May 1950 by which the tax has been actually levied. It is true that the notification has made "passenger‑miles" a measure of tax but it has levied tax within the maximum rates specified by the Schedule. If the Schedule, by which the generic and the maximum tax is prescribed, is not challenged as a colourable legislation then the tax levied within the maximum limits cannot be said to be colourable. On the contrary the objections which leave untouched the generic and maximum tax should themselves be of unessential nature. Mr. Dingomal has argued on behalf of the Province of West Pakistan that this tax falls under paragraph 20 of the Current Legislative List of Government of India Act, 1935 and has been levied under paragraph 25 of this List. This argument is obviously untenable. The Attorney‑General has not associate himself with this argument and we repel it as altogether unsound. Paragraph 20 does not confer the power to tax and paragraph 25 speaks of fee, and not of tax. ?????????? We have referred above to various amendments of law leading to its present ultimate state. After the enactment of sub?section (1‑A) of section 3 of the Sind Motor Vehicle Tax Act, 1939, in 1949 the impugned notification was issued on the 20th of May 1950. By this notification tax has been levied, and effect has been sought to be given to it from the 1st of May 1949. Mr. Brohi has argued that retrospective effect cannot be given to notifications issued under a provision of law unless the law itself confers the power to do so. The Attorney‑General has argued that the Act has prescribed the maximum rates only and that the tax cannot be actually levied except by notifications under subsections (1) and (I‑A) of section 3 of the Sind Motor Vehicles Tax Act, 1939. Subsection (1‑A) has been introduced by an amending legislation which has retrospective effect. This retrospective effect, according to him, has no meaning if the notification cannot be issued with retrospective effect. We think that the legislature did not impliedly empower the Government to issue notifications retrospectively and yet the amendment was not meaningless because it was meant to validate actions if any already taken. We must not forget that the tax is levied primarily under subsection (1) of section 3 and subsection (I‑A) of section 3 is an auxiliary provision only. We think that the notification is valid from the date of its issue and not retrospectively. The conclusion is that subsection (1‑A) of the Sind Motor Vehicles Tax Act, 1939 is valid and the notification issued under it, dated 20th May 1950, is valid in its prospective effect Part I‑V of the Sind Finance Act, 1949, and section 3 of the Sind Finance (Amendment) Act, 1950 are also valid. We do not order the refund of the tax realised by the Government by virtue of the purported retrospective effect of the notification and may add that the learned counsel of the petitioners have not pressed this part of the prayer. The parties are left to bear their own costs. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.