RAJES KUMAR, J. - (1.) ALL the petitioners claimed to be the educational institution imparting education at different levels and owns vehicles for the transportation of their students from their residence to the Schools. The claim of the petitioners are that they are neither liable for additional tax under Section 6 of the Act nor surcharge under Section 6(3) of the U. P. Motor Vehicles Taxation Act, 1997 (hereinafter referred to as "the Act"). In the counter-affidavit, it has been accepted by the respondents that in view of the notification issued under Rule 29(v), additional tax under Section 6(i) of the Act is not chargeable from the vehicle owner by the recognized institution and, therefore, the petitioners are not laible for additional tax and are only liable to pay surcharge under Section 6(3) read with Section 3 of the Act.
(2.) HEARD Sri Aroop Banerjee and Sri Manish Goyal, learned counsel for the petitioners and Sri S. P. Kesharwani, learned Standing Counsel for the respondents Shri Aroop Banerjee. Learned counsel for the petitioners submitted that the petitioners are the educational institution and are only imparting the education at various levels to the students and owns vehicles for transportation of their students from their residence to the Schools. These vehicles are not meant for public purposes and are meant exclusively for the transportation of the students and, therefore, the vehicles do not come within the the purview of "Public Service Vehicle" under Section 6 of the Act and, therefore, neither additional tax is chargeable under Section 6(1) nor surcharge is chargeable under Section 6(3) of the Act. In support of his contention, he relied upon the Division Bench decision of this Court in the case of All India Public Schools Welfare Society, Ghaziabad v. State of U. P., reported in (2000) 1 All WC 280 : (AIR 2000 All 85) and a Division Bench decision in the case of Independent Schools Federation of India v. State of U. P. in Civil Misc. Writ Petition No. 431 of 2000 decided on 21st August, 2000 in which following the decision of All India Public Schools Welfare Society, Ghaziabad v. State of U. P. (supra), respondents were directed not to levy surcharge on the petitioners under U. P. Act No. 21 of 1991 in respect of the vehicles of the Schools. Learned Standing Counsel submitted the Schools are charging that substantial amount from their students. In the case of St. Marys School, it is alleged that a sum of Rs. 150/- is being charged from the students while the normal rate of carriage is only Rs. 80/- therefore, the amount charged is not related to the maintenance alone. However, in writ petition Nos. 646 of 2004 and 647 of 2004, no such claim has been made. In writ petition No. 1346 of 2003, it is stated that the petitioners are charging monthly fare Rs. 300/- per students for 12 months for the distance between 10 to 12 km per trip which shows that the buses are being operated for hire or reward. However, in the rejoinder-affidavit, it has been stated that the amount has been charged only for the purposes of maintaining the costs of the vehicles. Learned Standing Counsel relied upon paragraph 45 of the Full Bench decision of this Court in the case of Jagdish Prasad v. Passenger Tax Officer, reported in AIR 2000 All 205. Section 6 of the Act reads as follows : "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 contolled by the 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 : Provided that the State Government may by notification, increase by not more than fifty per cent, the rate of additional tax specified in the said Schedule. (2) The additional tax in respect of a public service vehicle owned or controlled by a State Transport undertaking shall be levied and paid in accordance with the formula specified in the Fifth Schedule. (3) Where a public service vehicle is wholly or partially exempted from the payment of additional tax by or under this Act a surcharge for the purpose of the fund established under Section 8 shall be levied on its operator at the rate of five per cent of the additional tax that would have been payable on such vehicle had it not been so exempted and such amount shall be credited to the said Fund."
(3.) FROM the perusal of the aforesaid provisions, it is clear that the liability to pay additional tax under Section 6 of the Act is in respect of "public service vehicle". Sub-section (3) of Section 6 of the Act imposes a liability of surcharge on "public service vehicles" which are wholly or partially exempted from the payment of additional tax by or under the Act. The surcharge, "as would be evident from the section itself is realised for being credited to "accident relief fund" - a fund established for the purpose of providing relief to the passengers or other persons suffering any casualty in any accident in which a "public service vehicle" is involved or to heirs of such passengers or other persons. The expression "public service vehicle" is although not defined in the Act but in view of Section 2(o) the meaning assigned to it in the Motor Vehicles Act, 1988 has been adopted by incorporation for the purposes of the Act as well "public service vehicle", as the term is defined in Section 2 of the Motor Vehicles Act, 1988 "means any motor vehicle used or adopted to be used for the carriage of passengers for hire or reward, and includes a maxi-cab, a contract carriage and stage carriage". The word "passenger" in relation to a public service vehicle means any person travelling in a public service vehicle but does not include the operator, the driver, the conductor or an employee of the operator of the public service vehicle travelling in the bona fide discharge of his duties in connection with the public service vehicle. Students travelling in a bus owned by a recognised educational institution are no doubt "passengers" within the meaning of the term defined in sub-section (1) of Section 2 of the Act but a motor vehicle used or adopted to be used for transportation of students would not be liable to be classified as a "public service vehicle" unless it is found that the transportation of students is undertaken by the concerned institution as an independent business activity for "hire or reward". The expression "private service vehicle" is defined in Section 2(33) of the Motor Vehicles Act, 1988, "means a motor vehicle constructed or adopted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying person for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes" The term "educational institution bus" is defined in Section 2(11) of the Motor Vehicles Act, 1988 "means an omni bus which is owned by a college, school or other educational institution and used solely for the purpose of transporting students or staff of the educational institution in connection with any of its activities". Since the vehicle owned by the educational institution has been exempted from payment of additional tax under Rule 29(5), the respondents are charging surcharge under Section 6(3) of the Act. As stated above, Section 6(3) of the Act is applicable to a public service vehicle, therefore, the question for consideration is whether the bus owned by the educational institution for the purpose of carrying their students fall within the purview of "public service vehicle";