St. Paul'S Sr. Secondary School ... vs State Of U.P. And Others
2015 Latest Caselaw 5305 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
COURT NO.37
 
                                                                                 
 
Civil Misc. Writ Petition (Tax) No. 1387  of 2012
 
  St. Paul's Secondary School and another
 
Vs.
 
  State of U.P. and others 
 
******** 
 
Hon'ble Tarun Agarwala,J.

Hon'ble Vinod Kumar Misra,J.

(Per: Tarun Agarwala,J.)

1. The petitioners have filed the present writ petition for the quashing of the recovery citation dated 23.11.2012 for the recovery of additional tax under the U.P. Motor Vehicles Taxation Act, 1997 (hereinafter referred to as the "Act").

2. The relevant facts leading to the filing of the writ petition is, that petitioner No.1 is a recognized educational school affiliated with the Central Board of Secondary Education, Delhi and is also registered under the Indian Societies Act. The petitioner No.2 is its Manager.

3. The petitioners contend, that a bus was purchased on 3.12.1992 for the purpose of carrying students from their residence to school and dropping them back to their residence. It was urged, that the vehicle is not being used for any commercial purpose except for the purpose of transportation of its students. In this regard, the District Inspector of Schools, Mathura made an enquiry and submitted a report dated 15.6.2006 holding that the bus was not being used for any commercial or business purposes and that the same was being used only for transportation of its students.

4. It transpires, that the transport authority issued notices to the petitioners for levy of additional tax as in their opinion, it was a "public service vehicle". These notices were issued in the year 2005. Recovery certificate was thereafter issued on 19.1.2007 and eventually the recovery citation was issued on 23.11.2012, against which the present writ petition has been filed.

5. The counter affidavit reveals that the vehicle was initially purchased in the name of the educational institution, but was transferred in the name of Sri R.P. Paul on 21.4.1993, which is being plied for transportation of the students. According to the respondents, it is a "public service vehicle" and the heirs of Sri R.P.Paul are liable to pay the additional tax. The respondents further contended that the petitioners have no locus standi to file the writ petition, inasmuch as, the recovery is against the heirs of R.P. Paul, namely, Eugeen Paul and Vincent Paul and, therefore, the writ petition should be dismissed.

6. We have heard Sri Vikrant Rana, the learned counsel for the petitioners and the learned standing counsel for the respondents.

7. From the counter affidavit, it is clear, that initially the vehicle was in the name of petitioner No.1, but thereafter it was transferred in the name of a private individual Sri R.P.Paul. Consequently, petitioner No.1 has no locus standi to file the writ petition and to that extent the writ petition is dismissed.

8. However, in our view, the writ petition is maintainable in so far as petitioner No.2 is concerned, even though he may have filed the writ petition showing himself to be the Manager of the School inasmuch as the citation has been issued in his name.

9. The contention of the learned counsel for the petitioner is, that even though the bus was initially owned by the educational institution earlier, it is still being used by the school exclusively for transportation of its students and, therefore, it is not a public service vehicle and no additional tax could be charged. It was also contended that the vehicle is still registered as a "Mini Bus/School Bus" and is not registered as a "stage carriage" or a "public service vehicle" and consequently, no additional tax could be charged.

10. On the other hand, the stand of the respondent is that after the vehicle was transferred in the name of R.P. Paul, it was no longer as an educational bus and, therefore, the exemption granted under Section 66(3) (h) of the Act cannot be availed by the petitioners. The vehicle was being plied by a private person and, therefore, was liable to pay the additional tax.

11. Section 6 of the Act is the charging Section. For the relevant period, Section 6 of the Act as is stood then, is extracted hereunder:

"6. Additional tax on public service vehicle--(1) Save as otherwise provided in this Act or the Rules made thereunder, no public service vehicle, other than those owned or controlled by a State Transport undertaking shall be operated in any public place in Uttar Pradesh unless there has been paid in respect thereof, in addition to the tax payable under Section 4, an additional tax at the rate applicable to such public service vehicle specified in the Fourth Schedule :"

12. A perusal of the aforesaid provision indicates that the additional tax is payable on a "public service vehicle". Public service vehicle is not defined under the Act but, is defined under Section 2(35) of the Motor Vehicles Act, 1988. For facility, the said definition is extracted here under:-

"(35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi-cab, a motor-cab, contract carriage, and stage carriage;"

13. A perusal of the aforesaid indicates that a motor vehicle adapted for carriage of passengers for "hire or reward" is a "public service vehicle". "Stage carriage" has been defined under Section 2(40) of the Motor Vehicles Act, 1988, which means a motor vehicle adapted to carry more than six passengers excluding the driver for hire or reward.

14. From the aforesaid, it is clear, that the additional tax could be levied on a vehicle which is registered as a public service vehicle, which is used for hire or reward.

15. The question that arise for consideration in the instant case is, whether the vehicle in the instant case which is registered as a Mini bus/ School bus, is a public service vehicle or not and whether it is being used for hire or reward.

16. In All India Public School's Welfare Society, Ghaziabad and another vs. State of U.P. and others, 2000 (1)A.W.C. 280, the question that arose for consideration was, whether a motor vehicle registered as an "educational institution bus" was exigible to additional tax under Section 6 of the Act. The Division Bench held, that a bus owned by an educational institution and used exclusively for conveyance of its students to and from the institution, was not a public service vehicle. The Division Bench further held, that the students who have to pay some charges for transportation does not make the vehicle as being used for hired or reward.

17. In Catholic Diocese of Gorakhpur Education Society and another vs. State of U.P. and another, 2001(2)AWC 1041, a Division Bench while considering Section 66(1) and Section 66(3)(h) of the Motor Vehicles Act, 1988 held, that a recognised educational institution who is the owner of the vehicle is not liable to be issued a permit under Section 66(1) of the Act and is exempted under Section 66(3)(h) of the Act.

18. In St. Mary's School, District Bhadohi and another vs. State of U.P. and another, 2005(4)AWC 3311, a Division Bench held, that a school bus is not a public service vehicle and the amount charged from students does not make the vehicle being used for hire or reward.

19. In M/s Tata Engineering and Locomotive Co. Ltd. vs. The Sales Tax Officer and Regional Transport Officer, Poona and another, A.I.R. 1979 SC 343, the Supreme Court held, that if a nominal charge is realised from the employees of the Company that would not make the transport a public service vehicle carrying passengers so as to attract levy of tax. Similar view was again opined in I.T.I. Ltd., Naini vs. Passenger Tax Officer, 1995 AWC 1461.

20. In the light of the aforesaid decisions and upon a perusal of Section 6 of the Act and Section 2(35) of the Motor Vehicles Act, it is clear, that if a vehicle is registered as a public service vehicle, in that event, additional tax would be payable under Section 6 coupled with the fact that it is used for hire or reward.

21. In the instant case, the vehicle is registered as a school bus. A school bus is not a public service vehicle and, therefore, on this short point, no additional tax could be levied under Section 6 of the Act. Further, the respondents have not indicated nor filed any proof to show that the vehicle was being plied for hire or reward. In the absence of any finding of this issue, no additional tax could be levied.

22. Since the vehicle is not a public service vehicle and no proof has been filed to show that the vehicle was being plied for hire or reward, the recovery of additional tax from the heirs of Sri R.P.Paul appears to be illegal.

23. In view of the aforesaid, the impugned citation dated 23.11.2012 cannot be sustained and is quashed.

24. The writ petition is allowed.

 
Dated :10.12.2015
 
AKJ 
 
   
 

 
                       (Vinod Kumar Misra,J.)           (Tarun Agarwala,J.)