ORDER D.K. Seth, J.
1. In this case a very short point emerges as to whether any Passenger Tax under the provisions of Section 3 of the U. P. Motor Gadi (Yatri-Kar) Adhiniyam, 1962 hereinafter referred to as 'the said Act, could be levied on the vehicles of the petitioner used for carrying its own employees or their children according to the terms of their service against a nominal maintenance charge.
2. Admittedly the petitioner had got these vehicles registered as stage carriages earlier but now it is being registered as private service vehicles. Those vehicles are part of the welfare scheme for the petitioner's employees and their children. The employees of the petitioner are transported to the Factory from particular points of the city and returned. The employees who stay within the Factory premises, the vehicle is used for carrying their children to Schools situated at the City of Allahabad. Besides this purpose, these vehicles are not used for any other purpose. The vehicle is used by a class of people only. Any body and every body are not entitled to use those vehicles. Whoever is allowed to use the vehicle according to the decision of the management are required to pay at the rate of Rs. 25/- per month as maintenance charges by each employee. The total amount realised for the vehicles is about Rs. 13,800/- while total cost of maintenance for the vehicles comes to Rs. 23,672/- per month. Whereas only Rs. 4/- per child transported to the school and back are charged per month. The total amount realised is only a very insigni-
ficant fraction of the maintenance cost spent over these vehicles. Now the Passenger Tax Officer, by letter dated 21st Dec. 1993 levied Passenger Tax on these vehicles, which is Annexure '5' to the writ petition. Thereafter the Passenger Tax Officer asked the petitioner to deposit Rs. 12,17,677.00 as difference of tax for the period 29th Sept. 1992 to 7th June 1994, which is Annexure '6' to the writ petition. By letter dated 2Ist Feb. 1994, the petitioner was again asked to deposit the said amount within a period of 30 days, which is Annexure '8' to the writ petition. Against the said order, the petitioner moved a writ petition being Writ Petition No. 1206 of 1994 which was disposed of on 24th Nov. 1994 directing the respondent authority to decide as to whether the petitioner is liable to pay tax or not. Pursuant to the said direction, the petitioner made a representation contained in Annexure '9' to the writ petition before the appropriate Authority. The Passenger Tax Officer, by order dated 22nd Dec. 1994, held that since the petitioner has been charging Rs. 25/ - per employee and Rs. 4/- per child, therefore, the same is a hire or reward and, therefore, the petitioner's vehicles are liable to be taxed. Against the said order the present writ petition is being moved.
3. The learned counsel Mr. L.P. Naithani for the petitioner submitted that the vehicles are not stage carriage but are private service vehicles. Therefore, no Passenger Tax could be charged on these vehicles under Section 6 of the said Act. He further submitted that through inadvertence, the said vehicles were registered as stage carriage earlier but now it is being registered as private service vehicle^-
3A, The learned Standing Counsel appearing for the respondent submitted that since the petitioner charges Rs. 25/- per employee and Rs. 4/- per child, therefore, the same is hire or reward for transporting persons and, therefore, the vehicle should be registered as stage carriages and, therefore, are subject to levy of Passenger Tax under the said Act.
4. Mr. L.P. Naithani relied on the decision in the case of Tata Engineering and Locomotive Company Limited, v. Sales Tax Officer, AIR 1979 SC 343 : 1979 (1) SCC 208 and the case of M/s. Saraya Distillery, Gorakhpur v. Passenger Tax Officer, Gorakhpur, 1990 All LJ 782 and submitted that this case is covered squarely by the two Judgments.
5. The learned Standing Counsel, in reply, contended that the said cases are not applicable to the present case since the petitioner charges as hire or reward for carrying the passengers.
6. The Preamble of the said Act explained the purpose as "An Act to provide for the levy of a tax on passengers carried in certain classes of public service vehicles in the State of Uttar Pradesh". Therefore, the purpose of the said Act is clear from the Preamble that such tax is levied (a) on passengers (b) carried in certain classes of vehicles (c) which are public service vehicles (d) in the State of Uttar Pradesh.
7. The petitioner's case satisfies only one of the tests namely, (a) it plies in the State of Uttar Pradesh, but it does not satisfy any of the other three tests. Such tax is leviable only when all the four tests are satisfied and not otherwise.
8. However, the above view is also supported further by the definition of 'passenger' in Section 2(e) which lays down that 'passenger' means any person travelling in a stage carriage. Section 2(g) defines that 'stage carriage' means a motor vehicle carrying more than 6 passengers for hire or reward at separate fares paid by the individual passengers, either for the whole journey or for stages of the journe and includes any omnibus when used as a contract carriage. In Section 2(k), the definitions of 'contract carriage', 'omnibus' 'fare', 'motor vehicle' have been adopted from the Motor Vehicles Act, According to Section 2(7) of the Motor Vehicles Act, 'contract carriage' means a motor vehicle carrying passenger for hire or reward and engaged under a contract, whether expressed or implied for the use of such vehicle as a whole or for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum on a time basis or not with reference to any route or distance or from one point to another and in either case without stopping to pick up or set down passengers not included in the contract anywhere during the "journey" and includes a maxi-cab and a motor-cab notwithstanding that separate fares are charged.
9. Now it is to be seen whether the petitioner's vehicles come within the ambit of Section 3(1) of the said Act which is the charging section providing for levy of tax on every passenger carried by a stage carriage, which includes contract carriage.
10. As held by the Supreme Court in the case of M/s. Tata Engineering and Locomotive Company Limited (AIR 1979 SC 343) (supra), in order to attract Section 3(1) of the Bombay Motor Vehicles (Taxation on Passengers) Act, 1958 which is pari materia similar to Section 3(1) of the U.P. Motor Gadi (Yatrikar) Adhiniyam, 1962, the vehicle must be a 'public service vehicle'.
11. In the case of Tata Engineering and Locomotive Company Ltd. (AIR 1979 SC 343) (supra), the Supreme Court, while dealing with the Bombay Motor Vehicles (Taxation on Passenger) Act, 1958 had referred to the preamble of that Act, which is pari materia same with that of the U.P. Act, and observed that the preamble clearly revealed that the object of that Act was to impose tax on certain class of public service vehicles meaning thereby that the vehicles which are not public service vehicles are beyond the ambit of taxing provisions of the Act. The Supreme Court was dealing with a case under the Motor Vehicles Act, 1939 in which private service vehicle was not defined. Therefore, the Supreme Court referred to the Bombay Motor Vehicles Rules, 1959 which defined "Private Service Vehicles' means any omni bus constructed or adapted to carry more than nine persons excluding the Driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons in connection with his trade or business or otherwise than for hire or reward;
but does not include a motor vehicle used solely for pubic purposes". Section 2(35) of the Motor Vehicles Act, 1988, defines 'public service vehicle', adapted to be used for the carriage of passengers for hire or reward, and includes a maxi-cab, a motor-cab, contract carriage, and stage carriage. We have already seen that the petitioner's vehicles do not fall in either of the classes of vehicle as defined under Section 2(35).
12. "Private Service Vehicle", as defined in Section 2(33) of the Motor Vehicles Act means a motor vehicle ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for the hire or reward but does not include a motor vehicle used for public purposes. Admittedly, petitioner's vehicles are not used for public purposes. Only persons in connection with its trade or business, namley, its employees and their children are carried and the charges levied not being hire or reward. The same are squarely covered by the definition of 'private service vehicle'. The definition of 'private service vehicle' as given in Bombay Motor Vehicles Rules, 1959 is the same as that of Section 2(33) of the Motor Vehicles Act, 1988. The Supreme Court, in the judgment of M/s. Tata Engineering and Locomotive Company Ltd. (AIR 1979 SC 343) (supra) has observed that: "The word 'public' has got a well known connotation and means a carriage to which any member of the public can have free access on payment of the usual charges. It cannot by any process of reasoning or stretch of imagination be deemed to include employees of a private company who are given facilities not as members of the public but as holding a special status, namely, the employees of that company. Thus qua public the employees form a separate class and cannot be said to be public as contemplated by Rule 2(i). Rule 2(i) referred to above defined passenger in the Bombay Motor Vehicles Rules 1940 viz.: "passenger' for the purpose of this Chapter means any person travelling in a public service vehicle other than the Driver or conductor or an employee of the permit holder while on duty". Therefore, this parti-
cular class of people cannot be said to be passengers as defined in Section 2(e) of the said Act.
13. Supreme Court in the case of M/s. Tata Engineering and Locomotive Company Ltd. (AIR 1979 SC 343) (supra) observed that "The transport service in the present case which was registered as a private service vehicle falls squarely within the ambit of the aforesaid definition. Moreover, in the present case, it is not disputed that the transport provided to the employees of the company was reserved for them only and no other member of the public even if he wanted to pay full charges could be carried on the said vehicle. In these circumstances, therefore, it cannot be said that the transport vehicle provided to the employees by the appellants could be public service vehicles in any sense of the term."
14. The petitioner's vehicle being used only for the purpose of carrying on its employees and their children under a welfare scheme for the employees is surely a private service vehicle and not a public service vehicle which includes contract carriage and stage carriage. Therefore, no chare of passenger tax can be levied on the petitioner's vehicles. Our above view is supported by the decision in the case of M/s. Saraya Distillary (1990 All LJ 782) (supra) which followed the decision of the Supreme Court in the case of M/s. Tata Engineering and Locomotive Company Ltd. (AIR 1979 SC 343) (supra). In the said case, the vehicles were used for the employees of the petitioner company and the families of their employees, but in the present case only employees and the School going children are permitted to use the said vehicles on the basis of the terms and conditions of their service and the amount collected do not represent hire or reward and, therefore, it is neither a stage carriage nor a contract carriage nor the passengers carried are passengers within the meaning of the said Act. Inasmuch as a contract carriage is also a public service vehicle, which any member of the public or a group could hire on payment of such sum as may be agreed, but the vehicles of the petitioner are not used for such purposes. If at any point of time, such vehicles are used for such purposes, then it will lose its character as private service vehicle.
15. According to our view, vehicles used by the employer under a welfare scheme for carrying of its own employees or their children is nothing but a private service vehicle even if a nominal contribution is received from such employees towards maintenance which cannot be termed as hire or reward depending upon the facts and circumstances of the case. In our view, the petitioner's vehicles are nothing but private service vehicles as observed earlier. Mr. Naithani, however, submitted that henceforth no contribution shall be obtained from the employees, by his client.
16. In the result, the writ application succeeds. The impugned order levying taxes under the said Act by the respondents contained in Annexure '14' and all such orders and notices connected therewith purporting to levy passenger tax on the petitioner's vehicles are quashed. There will, however, be no order as to costs.
17. Application allowed.