J.S. Verma, C.J.@mdashThis common judgment will dispose of the aforesaid nine writ petitions and three special appeals which involve for decision the same point, the special appeals are against dismissal of three similar writ petitions.
2. The common point involved for decision in all these matters is the liability for payment of passenger tax under the Rajasthan Passengers and Goods Taxation Act, 1959; and of special road tax which replaced the passenger tax with effect from Oct. 1. 1982 by insertion of Section 4-B in Rajasthan Motor Vehicle Taxation Act, 1951 by the Amending Act No. 20 of 1982. The substantial requirements attracting the passenger tax/special road tax are the same.
3. The material facts on which the point involved has to be decided are a few only. M/s. Hindustan Zinc Ltd., Udaipur (hereinafter referred to as ''the Company'') is providing free transport facility to its employees and their children for travel from home to the work site or the school and back by utilising buses hired by them from M/s. Laxmi Bus Service the payment made by the Company to the bus owner for use of the buses in this manner and for this purpose only is in accordance with the terms of an agreement. This payment is made on the basis of the number of trips made by the bus or in the words, on the basis of user of the bus irrespective of number of persons travelling therein. The Company had been charging a nominal amount only from the employees to whom the house rent was being paid and not from others who were not being paid any house rent by the Company. This nominal charge has been called administrative charge. However, an undertaking was given on behalf of the Company at the hearing before us that not even nominal charge known as administrative charge will be recovered from these employees hereafter and even the entire amount recovered so far from them would be refunded to them. It is, therefore, undisputed that this facility provided by the Company to its employees and their children for travelling to the work site or school and back home is totally free. It is also admitted that these buses are used only in this manner and are not used by the bus owner or the company for any other purpose and, therefore, no permit was issued for plying these buses as a stage carriage or a contract carriage. It is also admitted that user of these buses in this manner alone is ensured by registration being in the name of the Company. The question is whether on these admitted facts there is any liability for payment of passenger tax or special road tax under the aforesaid statutory provisions. The transport authorities have demanded this tax and hence twelve writ petitions were filed by the Company and the bus owner challenging the demand. Three of these writ petitions were dismissed on the ground of existence of alternative remedy of appeal and they have given rise to the three special appeals. This is how all these twelve matters involve for decision the same point.
3A. We may dispose of at the outset the preliminary objection taken by the Additional Government Advocate in the Special Appeals on the ground of existence of alternative remedy of appeal. It is sufficient to say that the point involved for decision is existence of authority of law to recover the tax demanded, in admitted facts, and, therefore, availability of the alternative remedy of appeal is not sufficient to refuse decision of that point in a writ petition. The preliminary objection is, therefore, rejected.
4. We shall now mention the relevant statutory provisions of The Rajasthan Passenger and Goods Taxation Act, 1959 (Act No. 18 of 1959) which was enacted to provide for levying a tax on passengers and goods carried by road in motor vehicle. Section 2 contains the definitions. Clause (i) of Section 2 says that all words and expressions used in this Act but not defined shall have the meaning assigned to them in the Motor Vehicles Act, 1939, the definition of "passenger" and "motor vehicle" in Clauses (f) and (h) respectively is as under : --
"(f) "passenger" means any person travelling in a public service vehicle but shall not include the Driver or the Conductor or an employee of the owner of the vehicle travelling in the bona fide discharge of his duties in connection with the vehicle;
xx xx xx xx
(h) "Motor Vehicle" means a public service vehicle or public goods vehicle or a trailer when attached to any such vehicle."
The charging section is Section 3 which reads as under : --
"3. Levy of tax.-- (1) There shall belevied, charged and paid to the State Government a tax on all passengers and goods carried by Motor Vehicle, at such rare not exceeding 30% of the value of the fare or freight in case of cemented, tarred, asphalted, metalled gravel and kankar roads and not exceeding 25% of such value in other cases as may be notified by the State Government from time to time subject to a minimum of one paisa in any one case, the amount of tax being calculated to the nearest paisa."
According to Section 3 the levy is ''a tax on all passengers and goods carried by Motor, Vehicles''. As already pointed out "passenger" and "Motor Vehicle'''' have to be construed as defined in Clauses (f) and (h) of Section 2. It is, therefore, essential for the purpose of this tax that it must relate to a person travelling in a "public service vehicle". This Act does not define "public service vehicle" and, therefore, by virtue of Clause (i) of Section 2 the definition of "public service vehicle" has to be seen in the Motor Vehicles Act, 1939. Section 2(25) of the Motor Vehicles Act, 1939 defines "public service vehicle" as under : --
" "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab, contract carriage, and stage carriage."
According to this definition it must be a motor vehicle used for hire or reward and includes a contract carriage and stage carriage. The admitted facts stated earlier clearly show that the buses in the present case are neither contract carriage nor stage carriage as defined in Section 2(3) and Section 2(29) of the Motor Vehicles Act, 1939. This is also obvious from the fact that no permit has been issued for the use of these buses because they are meant to carry only the employees and their children to the work site or school and back home in accordance with the free transport facility given to them by the Company. According to definition of "public service vehicle" in Section 2(25) the carriage of passengers must be for hire or reward which is admittedly not the present case. This being so the liability for payment of passenger tax u/s 3 of the Rajasthan Passengers and Goods Taxation Act, 1959 is not attracted on these facts since the vehicle used is not a "public service vehicle" and the persons travelling therein are not carried for hire or reward but are carried free and no member of the general public has any right to travel in it.
5. The above position regarding tax liability under the Rajasthan Passengers and Goods Taxation Act, 1959 continued till repeal of that Act with effect from Oct. 1, 1982 as a result of insertion of Section 4-B in Rajasthan Motor Vehicles Taxation Act, 1951 by the Amending Act known as the Rajasthan Motor Vehicles Taxation (Amendment) Act, 1982 (Act No. 20 of 1982). As a result of this change a special road tax was imposed by insertion of Section 4-B in the Rajasthan Motor Vehicles Taxation Act, 1951 and the 1959 Act was repealed since it was substantially to the same effect. The statement of object and reasons of the Amending Act states that it was considered proper to introduce a flat ratesystem of tax and to merge the tax levied under the Rajaslhan Passengers and Goods Taxation Act, 1959 in the road tax levied under the Rajasthan Motor Vehicles Taxation Act, 1951 by imposing special road tax. Section 4-B so inserted is as under : --
"4-B. Special Road Tax .-- In addition to the tax and su''rcharge levied under Sections 4 and 4-A respectively and subject to the rules as may be made by the State Government in this behalf, there shall be levied and paid to the State Government a Special Road Tax on all transport vehicles at the rates fixed by the State Government by notification in the Official Gazette not exceeding the-maximum rates specified in Schedule A."
This special road tax has been levied with effect from Oct. 1, 1982 on all "transport vehicles" at the rates specified The expression "transport vehicles" is not defined in this Act but Section 2(e) of the principal Act as substituted by the Amending Act says that the words and expressions used but not defined in this Act and defined in Motor Vehicles Act 1939 shall have the meaning assigned to them in that Act as amended from time to time. We have, therefore, to see the definition of "transport vehicle" in Section 2(33) of the Motor Vehicles Act, 1939 wherein the expression has been defined to mean a "public service vehicle" or a goods vehicle. This leads us again to the definition of "public service vehicle" given in Section 2(25) of the Motor Vehicles Act, 1939 which has already been considered by us while dealing with the tax liability under the 1959 Act, It follows that the special road tax levied by Section 4-B with effect from Oct. 1, 1982 is attracted only on a "transport vehicle" which means a "public service vehicle". As already pointed out the buses used in the present case for the limited purpose indicated do not fall within the definition of "public service vehicle" given in Section 2(25) of the Motor Vehicles Act, 1939. This being so liability for payment of special road tax with effect from Oct. 1, 1982 under the aforesaid statutory provisions is also not attracted in the present case for the same reasons.
6. We may refer to the Supreme Court decision in
7. Similar is the view taken by the Allahabad High Court in Mahboob Hasan Farooqui v. Passenger Tax Officer 1987 All LJ 1504 the facts of which were similar. That too was a case in which the use was restricted to the employees and the vehicles were not owned by the employer but were hired for this purpose.
8. It must, therefore, be held that the demand of passenger tax under the 1959 Act and thereafter the special road tax with effect from Oct. 1, 1982 in all these matters by the transport authorities is not based on the authority of law and no such [ax is payable for the use of these vehicles in the above manner to provide free transport facility to employees and their children for travel to work site and school and back home.
9. Consequently, the writ petitions as well as the special appeals are all allowed. The demand of aforesaid tax under the above statutory provisions in respect of the motor vehicles in question is held to be invalid and is quashed. No costs.
