S. Banerjee, J. - (1.) In the instant writ application the petitioner No. 1 Mahadevi Birla Girls' Higher Secondary School and Five (5) Trustees of Birla Vidya Bihar Trust have challenged the action of the State respondents in withdrawing the 80 per cent tax exemption and permit control exemption which was enjoyed by the said school by the notification dated 17th July, 1989 issued by the Joint Secretary to the Government of West Bengal. Transport Department, as also the rejection of the representations made by the petitioners school for exemption from such tax, by an order issued by the Principal Secretary of the Department of Transport and Communication and communicated to the petitioner school by the Joint Secretary of the said Department by his letter dated 14th September, 1994. The petitioners have prayed for issue of a writ in the nature of mandamus commanding the respondents to withdraw the said order dated 14th September, 1994 as also the aforesaid notification dated 7th July, 1989 as related to Education Institution buses enjoying tax concession under Bengal Act (i) of 1932. Prayer has also been made for declaration that the earlier tax concession granted to the Education Institution buses cannot be taken away, altered or abrogated under the Motor Vehicles Tax Act, 1979 and alternatively for a declaration that provision of Section 21 of the aforesaid 1979 Act precludes retroactivity of earlier tax concession and/or remission and the aforesaid notification dated 7th July, 1989 is bad illegal, void and outside the scope of the aforesaid 1979 Act.
(2.) Prayer for issue of a writ in the nature of mandamus has also been made for declaration that the Educational Institution buses cannot be treated at par with "buses of company" and Educational Institution buses cannot be taxed under Group-B of Schedule (i) under the State Act of 1989 and Section 21 of the aforesaid 1979 Act in absence of any guiding principle is ultra vires the Constitution.
(3.) It is the case of the petitioner that the said school being the petitioner No. 1 is one of the creations of Birla Vidya Bihar Trust created under a Registered Deed of Trust dated 31st October, 1957 and the petitioners school which is a Higher Secondary School is under the Administration Management and Control of the said trust which is duly affiliated with the Central Board of Secondary Education, New Delhi. The petitioner school owns and holds Educational Institution buses. By a Government order dated 29th April, 1977 all the schools situated in the State of West Bengal, affiliated to the Central Board of Secondary Education were treated at par with Educational Institution recognised by the West Bengal Board of Secondary Education in the matter of granting 80 per cent tax exemption under the notification dated 26th March, 1968 and also in the Motor Vehicles Act, 1939. Accordingly the petitioners school admittedly obtained such tax exemption. The West Bengal Motor Vehicles Tax Act, 1979 came into operation with effect from 26th April, 1979. Even before the same came into operation the Secretary Regional Transport Authority, Calcutta, by a letter dated 11th October, 1978 communicated to the petitioner school that it has 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 is used for carrying students from their residence to their institutions and back on realising of monthly conveyance charges from the students, such use should be deemed to be a use not solely for the purpose of that Educational Institution within the meaning of Section 42(3)(g) of the said Act and therefore the vehicle shall be covered by permit under Section 42(1) of the Act The said school therefore was asked to intimate the said authorities whether monthly conveyance charges are realised from the students for carrying them from the residence to the institutions and back. After coming into operation of West Bengal Tax Act, 1979 department of Transport, Government of West Bengal issued a notification dated 7th July, 1989 providing, inter alia, that only the Motor Vehicles of the class as described in the said notification shall be totally exempted from payment of the tax under the said Act of 1979 and all Motor Vehicles which were hitherto being exempted from payment of tax, but are not covered under the present notification shall be required to pay tax with effect from 1st of April, 1989. By another order dated 16th November, 1989 the Joint Secretary, Department of Transport communicated that the earlier tax exemption benefits granted to different Educational Institutions, stands cancelled under the aforesaid notification dated 17th July, 1989 any Educational Institution seeking tax exemption has to apply for consideration of the Government and in absence of specific order in respect of a particular institution, no tax exemption shall be granted. Under the said order only exception was made in case of Educational Institution run wholly under the State Government or directly by the State Government Education Department.;