JUDGMENT A.K. Yog and Prakash Krishna, JJ.
1. Petitioner before us, Holy Cross School has approached this Court by filing present writ petition under Article 226 of the Constitution of India praying for following reliefs:
(i) issue a writ, order or direction in the nature of CERTIORARI quashing the impugned order/notice dated 3.9.2001 passed by respondent No. 3 (Ann. 2 to the writ petition);
(ii) issue a writ, order or direction in the nature of MANDAMUS, commanding the respondents not to detain the bus of the petitioner till the disposal of the writ petition;
(iii) issue a writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case;
(ii) and to award the cost of the petition in favour of the petitioner.
2. The aforementioned reliefs have been claimed on the basis of the pleadings in the petition to the effect that the petitioner is an Educational School which is known as Holy Cross School which is being owned by a Society registered under the Societies Registration Act (as amended by U.P. Act). The said Society is known by the name of Holy Cross Society, Khusroobagh Road, Allahabad. A copy of the Registration Certificate issued by the Registrar of Society, U.P. Allahabad is annexed as Annexure-1. As per the said certificate, Society was duly registered up to May 15, 2003. The Society, which runs Educational School, owns a vehicle bearing registration No. UP70/E-9846. The said vehicle is being used for carrying children to and fro to their respective places to the school. The respondents J authorities, in their purported jurisdiction to statutory provisions including Motor Vehicles Act issued the impugned notice dated 3.9.2001 (copy of which is annexed as Annexure-2 to the writ petition). By means of the said/impugned notice a demand was made against the petitioner to deposit a sum of Rs. 3,338/- as road tax for the period 1.11.1998 to 31.12.2001 /Annexure 2 to the writ petition.
3. According to the petitioner, there is no liability to pay road tax with respect to the aforementioned vehicle which is being used exclusively for carrying children to and fro their residences of the school and also complying with other terms and conditions of the permit. The petitioner contends that School Bus was never run on a particular defined road as it is used for carrying children as enrolled in the School from their respective residences which are, invariably changed and are situate in different localities. The petitioner has claimed exemption and has placed reliance on Section 66(3)(h) of the Motor Vehicles Act, which is relevant section, reads as follows:
The provisions of Sub-section (1) shall not apply (a) to (g)....
(h) To any transport vehicle owned by, and used solely for the purpose of, any educational Institution which is recognized by the Central or State Government or whose Managing Committee is a Society registered under the Societies Registration Act, 1960 (21 of 1980) or under any law corresponding to that Act in force in any part of India.
In support of the stand taken by the petitioner, reference is being made to the decision of this Court in the case of Catholic Diocese of Gorakhpur Education Society and Ors. v. State of U.P. and Ors. decided by the Division Bench of this Court vide order dated 7.2.2001 in Civil Misc. Writ Petition No. 3686 of 2001. A copy of the said judgment is annexed as Annexure-3 to the writ petition. The relevant extract of the said judgment is being reproduced:
In the instant writ petition the petitioners claims that it is a recognized educational institution and as such the provision for permit under Section 66(1) of the Motor Vehicles Act, 1988 (for short the 'Act') is not applicable in the case of the petitioners. Section 66(3)(h) of the Act specifically mentions the category of the transport vehicle for which permit shall not be required. Section 66(1) and 66(3)(h) of the Act provides as under:
66. Necessity for permit (1) No owner of a Motor Vehicle shall use or permit the use or permit the use of the vehicle as a Transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or counter- signed by a Regional or State Transport Authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorize the use of the vehicle as a contract carriage:
Provided further that a stage carriage permit may subject to any conditions that may be specified in the permit authorize the use of the vehicle as a goods carriage. Either when carrying passengers or not:
Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit authorize the holder of use of vehicle for the carriage of goods for or In connection with a trade or business carried on by him.
(3) The provisions of Sub-section (1) shall not apply-
(h) to any transport vehicle owned by, and used solely for the purpose of, any educational institution which is recognized By the Central or State Government or whose Managing committee is a society registered Under the Societies Registration Act, 1960 (21 of 1860) or under any law corresponding to that Act in force in any part of India.
4. Admittedly, the petitioner is the owner of the vehicle and the petitioner is a recognized educational institution and it has produced the relevant documents showing the affiliation under the I.C.S.E. Board, Under such circumstances, we are of the view that the respondent No. 2 was not justified in insisting on permit under Section 66(I) of the Act from the writ petitioner.
5. The writ petition succeeds and is, accordingly, allowed. The impugned order dated 9.1.2001 passed by respondent No. 2 accordingly stands quashed.
6. The respondents have filed a counter affidavit sworn by one Shri R.K. Trivedi, the Then Regional Transport Officer (Administration), Allahabad. The relevant pleadings, containing; aforementioned facts have not been disputed or denied in the said counter affidavit. The only objection appears to have been taken in the counter affidavit is contained in para 7 of the counter affidavit wherein it is mentioned that"...since the petitioner has rushed to this Hon'ble Court against the show cause notice dated 3.9.2001 in which tax of Rs. 3388/ 'was demanded from the period of 1.11.1998 to 31.12.2001 and the petitioner has not approached the respondent authorities by filing the show cause in response to the notice dated 3.9.2001 and, therefore, the instant writ petition as framed and filed by the petitioner is totally misconceived and the same is liable to be dismissed with costs and the interim stay order dated 28.1.2002 passed by this Hon'ble Court may kindly be vacated."
7. The objection raised by the petitioner regarding maintainability of the writ petition has no substance at this stage inasmuch as there are no disputed facts. Secondly, in view of the specific provisions contained in Section 66(3)(h) (as quoted above) and the undisputed fact that petitioner is a registered Society which runs Educational Institution and the vehicle in question is being used exclusively for carrying children to and fro from their residence to the school, we find no good reason to dismiss the writ petition as not maintainable at this stage particularly when respondents have already filed counter affidavit and have filed to disprove the facts stated in the writ petition. In view of the aforesaid statutory provision contained in Section 66(3)(h) (quoted above) we find that the contention of the petitioner deserves to be accepted as laid down by this Court in the case of Catholic Diocese of Gorakhpur Education Society and Ors. (supra), a copy of which has been filed as Annexure-3 to the writ petition. The writ petition deserves to be allowed.
8. In the result, the writ petition is allowed. The impugned notice dated September 3, 2001 (Annexure-2 to the writ petition) is hereby quashed.
9. There shall, however, be no order as to costs.