1. This application by the petitioner under Article 226 of the Constitution is to quash the demand notice issued by the Licensing authority vijayawada in Rc. No. 21340/B1/69, dated 27-1-1970 for payment of Rs. 4410-00 and Rs. 2205-00 towards the balance of tax and penalty respectively, on or before 31-3-1970 for the quarter ending June, 30, 1969.
2. The material facts which lie in a short compass may be stated:
The petitioner's vehicle A.P.G. No. 2587 was engaged by one Sri P. Ramarao on contract to ply it from Bantumilli to Viswanathapalli temple via. Massulipatnam Avanigadda etc. The temporary permit was valid from 26-6-1969 to 27-6-1969. On June 26, 1969, the Regional Transport Officer, Flying Squad, Guntur checked the petitioner's vehicle while it was proceedings to Viswanathapalli from Bantumilli. It was found to contain 64 passengers i.e., 15 more than its capacity. It is mentioned in the check report that the contractor was taking different parties collecting fares and the driver also had no licence at that time. In that report, the signature of the contractor Ramarao also was obtained. Thereafter a show cause notice was issued by the first respondent as to why the petitioner should not be asked to pay tax on the basis of state carriage for the quarter ending 30-6-1969.
The explanation by the petitioner was to the effect that his vehicle was given on contract to one P Ramarao to carry tourist party from Bantumilli to Viswanthapalli and that he did not persons of the party. It was also stated that Avaingadda is only an intermediate station and that there was no intention for any member of the party to break the journey, the destination being only Viswanathapalli. He also alleged that but not 64 at the time of check and that he has not committed any offence, nor has he used the vehicle in any way other than that of a contract carriage. It appears that some affidavit s of third parties were also filed by the petitioner. The licensing authority passed the impugned demand. Hence this writ petition.
3. Sri Mangachari for the petitioner contends that the vehicle in question was not used ass a stage carriage within the meaning of Section 2 (29) of the Motor Vehicles Act, 1939 hereinafter called the Act, but the same has been used only as a contract carriage and hence, the impugned order is liable to be quashed the impugned order is liable to be quashed. The Government Pleader opposed the claim of the petitioner contending inter alia that the vehicle in question has been used as a stage carriage and the Writ petition is devoid of any merit.
4. The short question therefore that falls for decision is whether on the facts and in the circumstances the petitioner's vehicle was or was not used on 26-6-1969 as a stage carriage liable to pay tax for the quarter ending 30-6-1969 on that basis. The answer to the question turns upon the definitions of 'stage carriage' and 'contract carriage' Section 2 (3) of the Act defines 'contact carriage' 'ass a motor vehicle which carriage a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum and from one point to another without stopping to pick or set down along the line of route passengers not include in the contract'. It also includes a motor cab notwithstanding that the passengers may pay separate fares.
In order to make it a contract carriage within the meaning of Section 2 (3) the use of the vehicle must be as a whole at or for a fixed or agreed rate or sum under a contract expressed or implied without stopping to pick up any passengers not included in the contract. The contract contemplated under Section 2 (3) must be only one contract and the use of the vehicles must also be as a whole. It does not admit of two or more contracts for the purpose of use of the vehicle as a contract carriage is also expected to run from one point to another without stopping to pick up any passengers not included in the contract. The very purport and intendment of the definition appears to be to provide for a single party to uses the vehicle in its entirety for a particular trip or trips without stopping at intermediary places and without picking up any passengers on the route. Where passengers are individually allowed to travel in the vehicle on payment of fares separately collected from them. such a vehicle cannot be termed to be a 'contract carriage'.
The 'stage carriage' as defined in Section 2 (29) takes in a motor vehicle carrying more than six persons excluding the driver for hire or reward to separate fares paid or for individual passengers, either for the whole journey or for the stage of the journey. The definition of 'stage carriage' is in contra-distinction with that of 'contract carriage' referred to above. If the passengers pay separate fares either by themselves or by any person either for the whole journey or for stages of the journey such a vehicle should be termed as 'stage carriage'. The distinction is really understandable. Where persons try to have the use if the contract for the specific purpose of having a trip or trips from one place to another of destination without stopping in the intermediary stations or places, the vehicle is termed as 'contract carriage' which is exigible for a less rate of taxation than that of a stage carriage. I shall propose to examine the facts of the present case.
5. Admittedly the vehicle was used not by one single party, but by three groups of different members, and in addition, there are as many as 11 individual passengers who have paid separate fares for their travel. Secondly, the place of destination is more than one is respect of the passengers that travelled. Some passengers are bound to Viswanathapalli and some to Avanigadda. The aforesaid facts do not bring the vehicle of the petitioner within the definition of 'contract carriage.'
6. I am unable to agree with the contention of Sri Mangachari that the use of the vehicle on 26-6-1969 was as a contract carriage as the contract by his client to one P. Ramarao is only one and that he did not collect from passengers any individual fares. The submission of Mr. Mangachari if given effect to would certainly lead to anomalies and hardship. The owner of a contract carriage may as well enter into a contract with a third party and allow the same to be used as a contract carriage. The contractor may as well use the vehicle either with or without the consent of the owner of the vehicle as stage carriage and earn profits; and at the same time successfully deprive the Stage from collecting the just taxes on the basis of user of the vehicle as stage carriage. It is now well settled that the liability to pay tax for the motor vehicle in the State of Andhra Pradesh accures or arises on the use of the vehicle and different rates have been prescribed by the concerned authority for different uses of the vehicle on public roads in the State. For these reasons, I have no hesitation to hold that the petitioner's vehicle in fact was used on 26-6-1969 as a stage carriage and tax is exigible on that basis for the quarter ending 30-6-1969.
7. However, levy of penalty is liable to be quashed as there is no default in payment of due and a payable for the quarter in question. In fact, that very demand for payment of tax with also raised along with levy of penalty. In view of the decision of this court in writ petition 1627 of 1968 and for the reasons stated therein, the petitioner is entitled for the benefits are the notification issued by the State Government that he is liable to pay 2/5th of the tax as the use of the vehicle on stage carriage was detected only in the last month of the quarter.
8. For these reasons, the impugned order is quashed to the exterindiated and the matter is remitted to the licensing authority, Krishna District for passing appropriate order relating to the quantum of tax payable by the petitioner in respect of his vehicle on the basic of stage carriage an refund any excess amount of tax paid already. The writ petition is dismissed in other respects. There will be no order as to costs. Advocate's fees Rs. 50/-.
9. Petition dimissed.