- (1.) S. R. Singh, J. Questions raised in this writ petition are two fold: First, whether buses owned by recognised educational institutions and used exclusively for the conveyance of pupil to and from the institution come within the purview of "public service vehicle" so as to be liable to pay additional tax under Section 6 of U. P. Motor Vehicles Taxation Act, 1997 (hereinafter referred to as the Act)?; Second, whether the exemption from payment of additional tax under the Act granted to "stage carriages" owned by recognised educational institution and used exclusively for transportation of pupil of the institution to and from the institution granted vide clause (v) inserted in Rule 29 of the U. P. Motor Vehicles Taxation Rules, 1998 (in short the Rules) vide Notification dated 28-4-1999 is retrospective in operation?
(2.) THE instant petition has been filed by 'all India Public School's Welfare Society, Ghaziabad', a registered society through its President Shri Gyan Prakash for a general direction to the respondents to treat the buses owned by recognised educational institutions as exempted from the liability of payment of additional tax with effect from 9-11-1998 i. e. from the very inception of the enforcement of the Act. THE relief is not in respect of any particular motor vehicle owned by any particular educational institution and used for transportation of students to and from the institution. It is rather general and declaratory in nature in that the mandamus sought for is that the respondents be directed to treat the buses owner by recognised educational institutions exempted from payment of additional tax from the very commencement of the Act, i. e. from 9-11-1998. Sri Ashok Mehta, Chief Standing Counsel does not dispute that with effect from 28-4-99, "stage carriages" owned by recognised educational institutions and used exclusively for the conveyance of pupil to and from the institution are exempted as per clause (v) of Rule 29 from the liability to pay additional tax under the Act. The respondent authorities are, however, insisting upon payment of additional tax even irrespect of stage carriages owned by recognised educational institutions and used exclusively for the conveyance of pupil to and from the institution in respect of the period prior to 28-4- 1999. It has been submitted for the petitioners that buses owned by recognised educational institutions and used exclusively for conveyance of pupil to and from the institution do not come within the purview of "public service vehicle" so as to attract the provisions of Section 6 of the Act and, therefore, proceeds the submission, liability to pay additional tax in respect of such vehicles does not arise even independently of Rule 29 of the Rules. In order to appreciate the submissions, the related provisions will have to be looked into. Section 6 of the Act which is the taxing provision is quoted below: "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 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 rates 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.) IT would be evident from the provision aforesaid that the liability to pay additional tax under Section 6 of the Act is in respect of "public service vehice". The Section inhibits the operation of a "public service vehicle" in any public place unless there has been paid in addition to the tax payable under Section 4 an additional tax specified in the appropriate schedule. The 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 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 passenters of 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 Section 2 (i) 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 "public service vehicle" appears to have been used in contrast to the expression "private service vehicle" which, as the term is defined in Section 2 (33) of the Motor Vehicles Act, 1988, "means a motor vehicle constructed or adapted 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". Section 6 of the Act would be attracted if any motor vehicle is used or adapted to be used by its owner for the carriage of passengers for "hire or reward". In other words, transportation of passengers undertaken as a business activity "for hire or reward" by the owner of any motor vehicles is an essential ingredient of the expression "public service vehicle". "private Service Vehicle" on the other hand is meant to be used by the owner or any other person for, or in connection with, owner's trade or business otherwisethan for hire or reward. The word "hire" when used as a noun, means: "a payment for temporary use of something; the act of hiring or an instance of this"; and the word "reward", when used as a noun, inter alia, means: "something given or promised in recognition of service, or in requital for ill-doing". In Sales v. Lake, (1922) 1 KB 553, the words "plies for hire" in any public street road, etc. occurring in the definition of the term 'stage carriage' came up for consideration. It was held: "to ply for hire is to hold out a carriage to the public as ready for their use. . . . The real test is whether there is a holding out of the vehicle to be hired by the public. " The decision find its echo in Hindustan Aeronautics Limited v. Registering Authority, (1999) 6 JT (SC) 542: (AIR 1999 SC 3430 in the following words: "in Sales v. Lake, (1922) 1 KB 553, the expression "plies for hire" arose for consideration. The language used in the provision considered therein was "every carriage of different descriptions or other vehicle which is intended or used for the conveyance of passengers and which plies for hire in any street, road or place and in which the passengers or any of them are charged to any separate and distinct or at the rate of separate and distinct fares for the respective places or seats therein". The Court was of the view that a vehicle cannot accurately be said to ply for hire unless two conditions are satisfied. Firstly, there must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract with them. And, secondly, the owner or person in control who is engaged in or authorised the soliciting or waiting must be in possession of a carriage for which he is soliciting or waiting to obtain passengers. We are not concerned with the second condition. So far as the first condition is concerned, "a vehicle plies for hire" means that is regulary used for such hire, that is, the vehicle which is offered for such service regularly. The expression "to ply for hire" means to exhibit the vehicle in such a way as to invite those who may deisre to hire it for travel in it on payment of usual fares or to offer its use thereby soliciting customers".;