A. N. Varma, J. - (1.) THIS petition is covered by a decision of the Supreme Court reported in M/s. Tata Engineering Locomotive Co Ltd. v. Sales Tax Officer and Regional Transport Officer, AIR 1979 SC 343. The learned Standing Counsel also does not dispute the position that the ratio of the Supreme Court decision in that case concludes that controversy which have been raised by the petitioner in this case.
(2.) THE petitioners run a distillary at Sardar Nagar Gorakhpur. THEy had taken a permit of stage carriage type Metador bearing registration no. UHW 233. THE permit was initially granted in the year 1984 and the same was renewed from time to time for the purpose of providing conveyance to its employees and childern. THE petitioner had acquired the aforesaid vehicle for the transport of its employees and the childern. In the permit which was granted to the petitioner, it was specifically mentioned that the vehicle shall be used for the transport of the petitioner's employees and their childern and that it shall not be used for carrying passengers on hire. THEse facts have not been disputed by the respondents. The question is whether the petitioner is liable to passenger tax under the U.P. Motor Gadi (Yatri Kar) Adhiniyam 1962 in respect of the vehicle in question. In the Supreme Court case cited above the controversy raised was materially the same. Telco had provided a vehicle for the transport facility of its employees on a nominal charge. The question raised was whether such transport could be termed a public service vehicle carrying passengers so as to attract Section 3 of the Bombay Motor Vehicls (Taxation of Passengers) Act. Relying on the preamble of the Bombay Act (which is identical with the preamble of the U.P. enactment), their Lordships ruled that in order to come within the mischief of the charging Section the vehicle must be one which can be used by any member of the public on payment of usual charges. It was observed ; "The word 'public' has got a well-known connotation and means a carriage to which any member of the public can have free access on payment of the usual charges. It cannot by any process of reasoning or stretch of imagination be deemed to include employees of a private company who are given facilities not as members of the public but as holding a special status, namely, the employees of that company. Thus, qua public the employees from a separate class and cannot be said to be public as contemplated by Rule 2 (i)." The material provisions of the Bombay Act are similar to the provisions of U. P. Motor Gadi (Yatri Kar) Adhiniyam except that while defining the passengers the Bombay Act states that the term passenger for the purpose of Rules under Chapter IV means any person travelling in a public service vehicle other than a driver or conductor or an employee of the permit holder while on duly. As we will presently demonstrate this slight change in the definition of the term passenger which will not materially affect the ultimate conclusion.
(3.) PASSENGER Tax in this State is levied under Section 3 of the U. P. Motor Gadi (Yatri Kar) Adhiniyam 1962 which provides that every passenger carried by stage carriage shall be liable to pay passenger tax at a rate equivalent to 5 percent of the fare payable by such passengers to the operator of the stage carriage in respect of the journey in the State. It will thus be seen that in order to attract this tax it will have to be shown that the passenger was travelling in a stage carriage. The term 'stage carriage' has been defined as a 'motor vehcile carrying or adapted to carry more than six passengers (including the driver), and which carries passengers for hire or reward, at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey and includes any omnibus when used as contract carriage'. In order, therefore, to fall within the definition of the term 'stage carriage' it must be shown that the vehicle in question is one which is used for carrying passengers for hire or reward. If the passengers do not pay any hire or reward for their journey, the transport cannot attract the tax levied under the Act. The charging Section 3 of the Act applies only when passengers travel by a stage carriage.;