- (1.) In this writ petition the petitioners pray for various reliefs including declaration that S. 2(1)(b) of the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989 is ultra vires in so far as it includes the bus or omnibus registered and owned by any trust or any educational institution or any organisation within the meaning of the term 'Bus of a company'. The petitioners have also prayed for quashing certain letters issued by the respondents requiring the petitioners to take permits for their school buses and also to pay full tax and additional tax under the West Bengal Motor Vehicles Tax Act, 1979 and the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989. The petitioner No. 1, Birla Vidya Vihar Trust is stated to be a trust created by a deed of trust for the purposes and objects mentioned therein one of the purposes and objects being to acquire, establish, start, aid, run, maintain or manage schools, colleges and educational institutions of all kinds for boys, girls and adults and reading rooms, - libraries, museums, boarding houses, hotels and other similar or other institutions for the benefit of the public. The board of trustee of the trust consists of the petitioners Nos. 3 to 7. The petitioner No. 2, Mahadevi Vidya Girls' Higher Secondary School is an educational institution under the management and control of the petitioner trust. Annexure-B to the writ petition is a list of buses standing in the name of the school trust and it is the case of the petitioner that all these buses are solely used for carrying the girl students of the said school from their residences to the schools and back so as to ensure the safety and convenience of the girl students of the school. The said school is affiliated to the Central Board of Secondary Education, New Delhi and imparts education to girl students under the All India Secondary School Course (Class IX and X) under 10 + 2 pattern of education. The school also is recognised by the Government of West Bengal as an educational institution and the Government of West Bengal by their letter dated the 29/04/1977 Annexure-C to the writ petition addressed to the Director, Public Vehicles Department, Calcutta communicated their decision that the educational institutions of this State which are affiliated to the Central Board of Secondary Education, New Delhi may be treated at par with the educational institutions, recognised by the West Bengal Board of Secondary Education in the matter of granting 80% tax exemption under Cl. (1) of the Home (Transport) Department Notification No. 3123-WT, dated 26-3-68 and of allowing exemption from permit control under S. 42(3)(g) of the Motor Vehicles Act, 1939 in respect of Motor Vehicles belonging to them. Accordingly, since then the petitioner school was enjoying 80% tax exemption as well as exemption from permit control under S. 42(3)(g) of the M.V. Act, 1939. Sub-Sec. (1) of the said S. 42 enjoined an obligation upon the owner of transport vehicle to obtain permit for the use of the vehicle in any public place. Sub-Sec. (3) of the said S. 42 however enumerated the cases in which the Sub-Sec. (1) would not apply, as a result of which transport vehicle mentioned in any of the clauses of Sub-Sec. (3) would not require to have a permit under Sub-Sec. (1). Cl. (g) of Sub-Sec. (3) covered transport vehicle owned by, and used solely for the purposes of, any educational institution which was recognised by the State Government or whose managing committee was a society registered under the Societies Registration Act, 1860. The petitioner school being an educational institution recognised by the State Government was therefore entitled to exemption from permit control under the M. V. Act, 1939. The benefit of such exemption was accordingly allowed to the petitioner school including the benefit of grant of 80% tax exemption.
(2.) Subsequently, by the letter No. RTA/4478, dated the 18/09/1978 Annexure-D to the petition the Secretary, Regional Transport Authority, Calcutta Region informed the petitioner school that it had been decided by the Government that when any transport vehicle owned by any educational institution within the meaning of Section 42(3)(g) of the Motor Vehicles Act, 1939 was used for carrying its students from their residences to the institution and back on realisation of monthly conveyance charges from the students, such use should be deemed to constitute use not solely for the purposes of that educational institution within the meaning of S. 42(3)(g) of the said Act and therefore such vehicles were required to be covered by permit as enjoined under S. 42(1) of the M.V. Act, 1939. In that letter the petitioner was also requested to intimate whether monthly conveyance charges were being realised from the students. The school was advised in that letter that if monthly conveyance charges were realized from the students in that case application in prescribed form would have to be made for permanent contract carriage permit along with the prescribed fee of Rs. 10.00 for each vehicles. The petitioners are aggrieved by this letter Annexure-D regarding the interpretation offered by the Government to the effect that the benefit of exemption from permit control under S. 42(3) of the M.V. Act, 1939 would not be available if conveyance charges are realized by the school from the students using the school bus for coming to the school and going back. The next point of grievance of the petitioners stems from Public Vehicle Department Memo No. 456(T) dated the 5/10/1989 addressed to the Principal of the petitioner school which is Annexure-G to the writ petition. By that letter the school was informed by the Public Vehicles Department, Calcutta with - reference to '80% tax exemption under Cl. (1) of the notification No. 3123-WT, dated 26-3-68 for school bus' that the latest exemption notification dated the 7/07/1989 did not provide for any relief to educational instruction and therefore full tax under the West Bengal Motor Vehicles Act, 1979 and the additional tax payable under the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989 are payable. It was further mentioned in that letter that for the purpose of determination of tax, a school bus was to be treated as a 'Bus of a Company' under S. 2(b) of the said 1989 Act and additional tax should thus be assessed under Part-B of Schedule-I at the rate of Rs. 4000.00 pen annum. The petitioners are aggrieved by this letter inasmuch as it deprives them of the benefit of 80% tax exemption which they were earlier enjoying in respect of their school buses under the said notification No. 3123WT, dated 26-3-68. They are also aggrieved by the said letter that they have been asked to pay additional tax at the rate of Rs. 4,000.00 per annum under the said 1989 Act as a 'Bus of a Company' as defined under S. 2(b) of the said Act. It may be mentioned here that Annexure-X to the affidavit-in-opposition is a notification bearing No. 7964-WT, dated the 7/07/1989 issued by the Government of West Bengal in Transport Department purportingly under S. 21 of the West Bengal Motor Vehicles Tax Act, 1979. By this notification the State Government totally exempted certain categories of motor vehicles enumerated therein from payment of tax under the said Act. This notification does not grant any exemption in favour of school bus. It is the contention of the petitioners that the benefit of 80% tax exemption which was allowed to the petitioner in view of the earlier notification No. 3123, dated 26-3-68 continued to be available to them and they cannot be deprived of that benefit by reason of the said Government Notification dated the 7/07/1989 Annexure-X to the affidavit-in-opposition. Another point of - grivance of the petitioners is that they have been asked to pay additional tax at the rate of Rs. 4,000.00 per annum as 'Bus of a Company' under Part B.I(d) of Schedule-I to the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989. It is their contention that if they are at all liable to pay any additional tax under the said 1989 Act they are to pay only Rs. 500.00 per annum for vehicle of their educational institution under A(2) of the said Schedule-I.
(3.) Now let us examine the contentions of the petitioners. The Motor Vehicles Act, 1939 was repealed by S. 217 of the Motor Vehicles Act, 1988. The provisions of S. 42 of the Motor Vehicles Act, 1988. The provisions of S. 42 of the 1939 Act were however re-enacted in S. 66 of the Motor Vehicles Act, 1988. Sub-Sec. (1) of S. 66 imposed an obligation on the owner of a motor vehicle to obtain permit for use of the vehicle as a transport vehicle in any public place Sub-Sec. (3) of S. 66 enumerates the cases where no permit will be required for transport vehicle. Cl. (h) of Sub-Sec. (3) refers to transport vehicle owned by, and used solely for the purposes of any educational institution which is recognised by the Central or State Government or whose managing committee is a registered society. This provision is similar to the provision of Cl. (g) of Sub-Sec. (3) of S. 42 of the predecessor Act, namely, the Motor Vehicles Act, 1939. As I have already pointed out the petitioner school has been recognised as such by the Government of West Bengal and accordingly the school was covered under Sub-Sec. (3)(g) of S. 42 of the M.V. Act, 1939 and is even now covered under Sub-Sec. (3)(h) of S. 42 of the Motor Vehicles Act, 1988. As we have seen, as a matter of fact the petitioner school was earlier granted the benefit of exemption from permit control under Sub-Sec. (3)(g) of S. 42 of the 1939 Act. Suddenly the Government by their letter dated the 8/09/1978 Annexure-D to the will petition attributed a meaning of Cl. (g) of Sub-Sec. (3) of S. 42 of the M.V. Act, 1939 that if the school was realising conveyance charges from the students for carrying them in the school bus from residence to school and back, in that. event such use of the bus shall be deemed to constitute use not solely for the purposes of the educational institution within the meaning of the said S. 42(3)(g) in which case the educational institution would not be entitled to exemption from permit control. The petitioners are aggrieved by such an interpretation sought to be imposed by the Government. I must say that the grivance of the school is justified. Both under S. 42(3) of the 1939 Act and under S. 66(3) of the 1988 Act the exemption from permit control comes as a matter of course if the requisite conditions are fulfilled and such exemption was or is not a matter of discretion of the Government. Once it is found that the educational institution is recognised by the Government as the petitioner school is, and the transport vehicle of the school is used solely for the purposes of the school the exemption from permit control is automatic and does not depend the discretion of the Government. In view of the fact that a bus of the school is solely and exclusively used for carrying the students of the school from their residences to school and back, such use cannot but be use solely for the purpose of the educational institution. The question whether conveyance charges are realised by the school from the students in this connection, is wholly immaterial. A building owned by a school which is used solely for the purpose of imparting lessons to the students in its different class rooms is certainly a building used solely for the purpose of the school. It will be simply ludicrous to say that the use of the building solely for imparting lessons to the students of the school will not tantamount to use of the building solely for the purpose of the school if the school takes tuition fees from the students, but such use will amount to use solely for purpose of the school if the school does not take any tuition fees from the students. What is stated above illustrates the fallacy of the argument that the use of a school building for the purpose of imparting lessons to the students will amount to use of the building solely for the purpose of the school if no tuition fees are charged by the school from the students, but if tuition fees are charged in that case, the use of building remaining the same, such use will not be use of the building solely for the purpose of the school. The question of tuition fees is wholly irrelevant in this context. Similarly, the interpretation sought to be given by the Government is wholly mis-conceived that in case an educational institution realises conveyance charges from the students using the school bus for coming to school and going back such use of the bus by the school shall not constitute use solely for the purpose of the educational institution. In this connection, the definition of 'educational institution bus' as given in S. 2(11) of the M.V. Act, 1988 may be taken note of. According to that definition 'educational institution bus' means an omnibus 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. In that definition also nothing is mentioned about conveyance charge. The question of conveyance charge is therefore wholly irrelevant in the context whether the use of the bus is solely for the purpose of the educational institution. The interpretation sought to be given by the State Government in this respect as communicated to the petitioner school under letter dated 18-9-78, Annexure-D is wholly misconceived and untenable. The use of the petitioners' school buses for carrying students to the school and back constitutes use of such buses solely for the purpose of the school which is a recognised school and that being so the petitioners' school buses were directly covered by the exemption under S. 42(3)(g) of the M.V. Act, 1939 and are now covered by the exemption under S. 66(3)(h) of the M.V. Act, 1988 from permit control. These buses are not required to obtain any permit under S. 66(1) of the M.V. Act, 1988.;