IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26.10.2010 Coram: The Honourable Mr.M.Y.EQBAL, CHIEF JUSTICE and The Honourable Mr.Justice ELIPE DHARMA RAO Writ Appeal No.1751 of 2010 and M.P.No.1 of 2010 ---------- Dalmia Magnesite Corporation, Salem – 636 012. Rep. by its General Manager, S.Veeraraghavan … Appellant/Petitioner vs. 1. State of Tamil Nadu, Rep. by the Commissioner and Secretary to Government Transport Department, Secretariat, Chennai – 600 009. 2. The Regional Transport Officer, Salem West-10, Salem – 636 005. … Respondents/Respondent Appeal filed under Clause 15 of the Letters Patent against the order passed in W.P.No.8066 of 2010 dated 26th July, 2010. Writ Petition praying to issue a writ of mandamus forbearing the respondents, their men, agents and servants from preventing or interfering with the use, by the petitioner of the private service vehicle bearing No.TN-30/0004 for carrying the children of the Employees of the petitioner. For Appellant ::: Mr.T.Poornam For Respondents::: Mr.J.Raja Kalifulla, Government Pleader https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T THE HON’BLE CHIEF JUSTICE & ELIPE DHARMA RAO, J This appeal is directed against the judgment and order dated 26th July, 2010 passed in W.P.No.8066 of 2010 whereby the learned single Judge dismissed the writ petition filed by the petitioner- appellant seeking relief for issuance of a writ of mandamus forbearing the respondents from preventing or interfering with the use of the appellant’s private service vehicle for carrying the children of the employees of the appellant company to schools. 2. The appellant namely, M/s.Dalmia Magnesite Corporation is carrying on manufacturing business and its factory is located at Vellakalpatti, which is situated 7 kms. away from the Salem junction. The appellant’s factory and employees’ quarters are situated at a distance of approximately 3.5 kms from the National Highway No.47. The appellant’s case is that it has provided residential quarters to its employees depending on the individual requirement and availability and at present, 72 employees of the appellant are residing in the said quarters along with their families. The children of 42 employees of the appellant study in various schools in and around Salem. The appellant’s further case is that only one town bus No.77 provides services to the company quarters between 6.00 a.m. and 9.00 p.m. and does not cover all the schools where the children of the employees study and the timings of the said town bus is also not convenient to the school going children of the employees. The appellant, therefore, as part of their welfare measure extended the facility of transportation of the school going children of its employees. For that purpose, the appellant started using its own private vehicle bearing Registration No. TN-30/0004, which was used for transporting the employees of the appellant from the residential quarters to their factory premises and vice versa, for carrying the school going children of its employees in order to provide safe mode of transport and to curb the anxiety of the employees regarding the transportation of their school going children. Accordingly, the appellant company requested the second respondent namely, the Regional Transport Commissioner, Salem West to amend the permit issued for the said vehicle bearing Reg.No. TN-30/0004 so as to enable the appellant to carry the school going children and their employees. The said request was not acceded to by the second respondent on the ground that there is no provision under the Motor Vehicles Act to amend the said permit. Consequently, the appellant moved this Court by filing a writ petition seeking a direction upon the respondents not to interfere with or prevent the appellant from carrying the children to the schools by the said vehicle. 3. The stand of the second respondent in the counter affidavit is that there is a separate provision for making an application for https://hcservices.ecourts.gov.in/hcservices/ the grant of permit solely for the purpose of transporting students or staff of the Educational Institution in connection with any of its activities. For that purpose, the bus must be owned by the educational institution. Since carrying school going children of the employees of the appellant company is not in connection with its trade or business, the request has rightly been refused by the respondent. The learned single Judge took notice of the fact that since the appellant company is having a staff bus for which permit was granted for carrying its employees from their residence to the factory premises, and the bus in question does not come within the definition of “Educational Institution Buses”, the respondent has rightly refused to amend the permit for carrying children to the school. The learned single Judge further held that for the purpose of changing permit, the petitioner-appellant has to comply with the necessary requirements of law and has to pay necessary road taxes as provided in the Schedule to the Act. Holding so, the learned single Judge dismissed the writ petition. 4. Mr.Poornam, learned counsel appearing for the appellant assailed the impugned judgment passed by the learned single Judge as being erroneous and unjustified. Learned counsel submitted that the learned single Judge failed to take into consideration that private service vehicle can be used by its owner to transport its employees, their families and their children, and for that purpose, the appellant does not collect any fare from its employees to carry the children in the private service vehicle. Learned counsel submitted that the aforesaid vehicle is used only for carrying school going children of the employees and not any other person on payment of hire or reward. Hence, there is no justification for the respondent- authority in not allowing the appellant to carry the school going children in the said vehicle. Learned counsel submitted that the appellant has been paying all taxes payable in respect of the said vehicle used as ‘private service vehicle’. 5. Section 2(33) of the Motor Vehicles Act (for short ‘the Act’) defines the word ‘Private Service Vehicle’ as under: - “private service vehicle" means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and 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 hire or reward but does not include a motor vehicle used for public purposes.” 6. Section 2(35) of the Act defines ‘ Public Service Vehicle’, which reads 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 maxi cab, a motor cab, contract carriage, and stage carriage.” https://hcservices.ecourts.gov.in/hcservices/ 7. From a bare perusal of the aforesaid provision, it is clear that in case of public service vehicle, it is used for the carriage of passengers for hire or reward, whereas in private service vehicle, it is used by the owner of the vehicle for the purpose of carrying persons in connection with his trade or business, otherwise than for hire or reward. 8. Section 76 of the Act, which provides procedure for obtaining permit as private service vehicle, reads as under:- “Application for private service vehicle permit. (1) A regional Transport Authority may, on an application made to it, grant a private service vehicle permit in accordance with the application or with such modification as it deems fit or refuse to grant such permit: Provided that no such permit shall be granted in respect of any area or route not specified in the application. (2) An application for a permit to use a motor vehicle as a private service vehicle shall contain the following particulars, namely:- (a) type and seating capacity of the vehicle; (b) the area or the route or routes to which the application relates; (c) the manner in which it is claimed that the purpose of carrying persons otherwise than for hire or reward or in connection with the trade or business carried on by the applicant will be served by vehicle; and (d) any other particulars which may be prescribed. (3) The Regional Transport Authority if it decides to grant the permit may subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:- (i) that the vehicle be used only in a specified area or on a specified route or routes; (ii) the maximum number of persons and the maximum weight of luggage that may be carried; https://hcservices.ecourts.gov.in/hcservices/ (iii) that the Regional Transport Authority may, after giving notice of not less than one month- (a)vary the conditions of the permit; (b)attach to the permit further conditions; (iv) that the conditions of permit shall not be departed from, save with the approval of the Regional Transport Authority; (v) that specified standards of comforts and cleanliness shall be maintained in the vehicle; (vi) that the holder of the permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may, from time to time, specify; and (vii) such other conditions as may be prescribed. 9. It is, therefore, evidently clear that in case of grant of permit as private service vehicle, the applicant shall specifically state that the vehicle shall be used as a private service vehicle and shall also state that persons shall be carried in the said vehicle not for hire or reward, but in connection with the trade or business carried on by the applicant. It has not been disputed by the respondents that as a welfare measure the appellant has been using the vehicle for carrying the school going children of its employees from the quarters to the respective schools and vice versa. It is also not the case of the respondents that the appellant has been collecting additional charges from the employees for carrying the school going children from their residence to their respective schools. In that view of the matter, we do not find any reason as to why the respondents shall interfere with or any way stop the appellant from using its private service vehicle for the purpose of carrying the school going children of its employees to their respective schools. 10. A similar question came up for consideration before the Allahabad High Court in the case of I.T.I. Ltd., Allahabad v. Passenger Tax Officer reported in AIR 1996 Allahabad 79. The facts of that case were that the appellant ITI Limited started using its private service vehicle for carrying the children of the employees from the appellant’s factory to the schools situated at the City of Allahabad. The said vehicle was not used for any other purpose. The respondent-transport authority levied passenger tax and raised demand for payment of tax. The said order was challenged. A Division Bench of the Allahabad High Court, after considering the relevant https://hcservices.ecourts.gov.in/hcservices/ provisions of the Motor Vehicles Act, and the ratio decided by the Supreme Court in the case of M/s.Tata Engineering and Locomotive Company Limited reported in AIR 1979 SC 343, held as under: - “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.” 11. It is relevant to mention here that the appellant filed a detailed application to the second respondent stating very clearly that there is only one town bus bearing Route No.77 which will come https://hcservices.ecourts.gov.in/hcservices/ up to the appellant’s quarters and it does not cover all the schools where the employees of the children study, and also the timing of the bus is not convenient to the school going children. As a result, the employees’ children are facing lot of hardship due to change of bus to reach their respective schools and vice versa to home. It is also stated in the application that there will not be any loss of revenue to the Government as the appellant continue to remit the same amount for carrying the employees. Surprisingly, the said application was returned by the Regional Transport Officer, Salem with a one line endorsement i.e., “There is no provision in the Motor Vehicles Act to allow school children to use private service vehicle”. No reason whatsoever has been assigned as to why the school going children of the employees cannot use the vehicle owned by the appellant, which is registered as a private service vehicle. There is also no bar in the Motor Vehicles Act to allow school going children to use the private service vehicle. Perhaps, the Regional Transport Authority has not applied his mind while returning the application. 12. In the facts and circumstances of the case, we allow this appeal, set aside the impugned judgment passed by the learned single Judge and direct the concerned authority to consider the application of the appellant and take a decision in the light of the direction and observation made herein above. The appellant shall file a fresh application before the concerned authority of the respondent within two weeks from today. If such an application is filed, the concerned authority of the respondent shall hear and take a decision in accordance with law by passing a reasoned order within two weeks from the date of filing of the application by the appellant. No costs. Consequently, miscellaneous petition is closed. pv/- Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1. The Commissioner and Secretary to Government of Tamil Nadu, Transport Department, Secretariat, Chennai – 600 009. 2. The Regional Transport Officer, Salem West-10, Salem – 636 005. + 1 cc to Mr. T. Poornam, Advocate SR No.77020 + 1 cc to Government Pleader, SR No.77030 Judgment in W.A.No.1751 of 2010 GV(CO)SR/10.11.2010 https://hcservices.ecourts.gov.in/hcservices/