Judgment:
ORDER
1. In this writ petition the peti-tioners pray for various reliefs including declaration that S. 2(1)(b) of the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989 is ultra vires in so far as it includes the bus or omnibus registered and owned by any trust or any educational institution or any organisation within the meaning of the term 'Bus of a company'. The petitioners have also prayed for quashing certain letters issued by the respondents requiring the petitioners to take permits for their school buses and also to pay full tax and additional tax under the West Bengal Motor Vehicles Tax Act, 1979 and the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989. The petitioner No. 1,Birla Vidya Vihar Trust is stated to he a trust created by a deed of trust for the purposes and objects mentioned therein, one of the purposes and objects being to acquire, establish, start, aid, run, maintain or manage schools, colleges and educational institutions of all kinds for boys, girls and aduits and reading rooms, -- libraries, museums, boarding houses, hotels and other similar or other institutions for the benefit of the public. The board of trustees of the trust consists of the petitioners Nos. 3 to 7. The petitioner No. 2, Mahadevi Vidya Girls' Higher Secondary School is an educational institution under the management and control of the petitioner trust. Annexure-B to the writ petition is a list of buses standing in the name of the school/ trust and it is the case of the petitioner that all these buses are solely used for carrying the girl students of the said school from their residences to the schools and back so as to toensure the safety and convenience of the girl students of the school. The said school is affiliated to the Central Board of Secondary Education, New Delhi and imparts education to girl students under the All India Secondary School Course (Class IX and X) under 10 + 2 pattern of education. The school also is recognised by the Government of West Bengal as an educational institution and the Government of West Bengal by their letter dated the 29th April, 1977 Annexure-C to the writ petition addressed to the Director, Public Vehicles Department, Calcutta communicated their decision that the educational institutions of this State which are affiliated to the Central Board of Secondary Education, New Delhi may be treated at par with the educational institutions, recognised by the West Bengal Board of Secondary Education in the matter of granting 80% tax exemption under Cl.(1) of the Home (Transport) Department Notification No. 3123-WT, dated 26-3-68 and of allowing exemption from permit control under S. 42(3)(g) of the Motor Vehicles Act, 1939 in respect of Motor Vehicles belonging to them. Accordingly, since then the petitioner school was enjoying 80% tax exemption as well as exemption from permit control under S. 42(3)(g) of the M.V. Act, 1939. Sub-sec.(1) of the said S. 42 enjoined an obligation upon the owner of transport vehicle to obtain permit for the use of the vehicle in any public place. Sub-sec.(3) of the said S. 42 however enumerated the cases in which the sub-sec. (1) would not apply, as a result of which transport vehicle mentioned in any of the clauses of sub-sec. (3) would not require to have a permit under sub-sec. (1). Cl. (g) of sub-sec. (3) covered transport vehicle owned by, and used solely for the purposes of, any educational institution which was recognised by the State Government or whose managing committee was a society registered under the Societies Registration Act, 1860. The petitioner school being an educational institution recognised by the State Government was therefore entitled to exemption from permit control under the M.V. Act, 1939. The benefit of such exemption was accordingly allowed to the petitioner school including the benefit of grant of 80% tax exemption.
2. Subsequently, by the letter No. RTA/ 4478, dated the 18th September, 1978Annexure-D to the petition the Secretary, Regional Transport Authority, Calcutta Region informed the petitioner school that it had been decided by the Government that when any transport vehicle owned by any educational institution within the meaning of Section 42(3)(g) of the Motor Vehicles Act, 1939 was used for carrying its students from their residences to the institution and back on realisation of monthly conveyance charges from the students, such use should be deemed to constitute use not solely for the purposes of that educational institution within the meaning of S.42(3)(g) of the said Act and therefore such vehicles were required to be covered by permit as enjoined under S.42(1) of the M.V. Act, 1939. In that letter the petitioner was also requested to intimate whether monthly conveyance charges were being realised from the students. The school was advised in that letter that if monthly conveyance charges were realized from the students in that case application in prescribed form would have to be made for permanent contract carriage permit along with the prescribed fee of Rs. 10/- for each vehicles. The petitioners are aggrieved by this letter Annexure-D regarding the interpretation offered by the Government to the effect that the benefit of exemption from permit control under S. 42(3) of the M.V. Act, 1939 would not be available if conveyance charges are realized by the school from the students using the school bus for coming to the school and going back. The next point of grievance of the petitioners stems from Public Vehicle Department Memo No. 456(T) dated the 5th October, 1989 addressed to the Principal of the petitioner school which is Annexure-G to the writ petition. By that letter the school was informed by the Public Vehicles Department, Calcutta with -- reference to 80% tax exemption under Cl. (1) of the notification No.3123-WT, dated 26-3-68 for school bus' that the latest exemption notification dated the 7th July, 1989 did not provide for any relief to educational instruction and therefore full tax under the West Bengal Motor Vehicles Act, 1979 and the additional tax payable under the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989 are payable. It was furthermentioned in that letter that for the purpose of determination of tax, a school bus was to be treated as a 'Bus of a Company' under S. 2(b) of the said 1989 Act and additional tax should thus be assessed under Part-B of, Schedule-I at the rate of Rs. 4000/- per annum. The petitioners are aggrieved by this letter inasmuch as it deprives them of the benefit of 80% tax exemption which they were earlier enjoying in respect of their school buses under the said notification No. 3123-WT, dated 26-3-68. They are also aggrieved by the said letter that they have been asked to pay additional tax at the rate of Rs. 4,000/-per annum under the said 1989 Act as a 'Bus of a Company' as defined under S. 2(b) of the said Act. It may be mentioned here that Annexure-X to the affidavit-in-opposition is a notification bearing No. 7964-WT, dated the 7th July, 1989 issued by the Government of West Bengal in Transport Department purportingly under S. 21 of the West Bengal Motor Vehicles Tax Act, 1979. By this notification the State Government totally exempted certain categories of motor vehicles enumerated therein from payment of tax under the said Act. This notification does not grant any exemption in favour of school bus. It is the contention of the petitioners that the benefit of 80% (ax exemption which was allowed to the petitioner in view of the earlier notification No. 3123, dated 26-3-68 continued to be available to them and they cannot be deprived of that benefit by reason of the said Government Notification dated the 7th July, 1989 Annexure-X to the affidavit-in-opposition. Another point of -- grivance of the petitioners is that they have been asked to pay additional tax at the rate of Rs. 4,000/- per annum as 'Bus of a Company' under Part-B.I(d) of Schedule-I to the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989. It is their contention that if they are at all liable to pay any additional tax under the said 1989 Act they are to pay only Rs. 500/- per annum for vehicle of their educational institution under A(2) of the said Schedule-I.
3. Now let us examine the contentions of the petitioners. The Motor Vehicles Act, 1939 was repealed by S. 217 of the Motor Vehicles Act, 1988. The provisions of S. 42 of theMotor Vehicles Act, 1988. The provisions of S. 42 of the 1939 Act were however re-enacted in_S. 66 of the Motor Vehicles Act, 1988. Sub-sec.(1) of S. 66 imposed an obligation on the owner of a motor vehicle to obtain permit for use of the vehicle as a transport vehicle in any public place. Sub-sec.(3) of S. 66 enumerates the cases where no permit will be required for transport vehicle. Cl. (h) of sub-sec.(3) refers to transport vehicle owned by, and used solely for the purposes of any educational institution which is recognised by the Central or State Government or whose managing committee is a registered society. This provision is similar to the provision of Cl. (g) of sub-sec.(3) of S.42 of the predecessor Act, namely, the Motor Vehicles Act, 1939. As I have already pointed out the petitioner school has been recognised as such by the Government of West Bengal and accordingly the school was covered undei sub-sec. (3)(g) of S. 42 of the M.V. Act, 1939 and is even now covered under sub-sec. (3)(h) of S. 66 of the Motor Vehicles Act, 1988. As we have seen, as a matter of fact the petitioner school was earlier granted the benefit of exemption from permit control under sub-sec. (3)(g) of S.42 of the 1939 Act. Suddenly the Government by their letter dated the 8th September, 1978 Annexure-D to the writ petition attributed a meaning of Cl. (g) of sub-sec. (3) of S. 42 of the M.V. Act, 1939 that if the school was realising conveyance charges from the students for carrying them in the school bus from residence to school and back, in that event such use of the bus shall be deemed to constitute use not solely for the purposes of the educational institution within the meaning of the said S. 42(3)(g) in which case the educational institution would not be entitled to exemption from permit control. The petitioners are aggrieved by such an interpretation sought to be imposed by the Government. 1 must say that the grievance of I the school is justified. Both under S. 42(3) of i the 1939 Act and under S. 66(3) of the 1988 Act the exemption from permit control comes as a matter of course if the requisite conditions are fulfilled and such exemption was or is not a matter of discretion of the Government. Once it is found that the educational institution is recognised by the Government, as the petitioner school is, and the transportvehicle of the school is used solely for the purposes of the school the exemption from permit control is automatic and does not depend the discretion of the Government. In view of the fact that a bus of the school is solely and exclusively used for carrying the students of the school from their residences to school and back, such use cannot but be use solely for the purpose of the educational institution. The question whether conveyance charges are realised by the school from the students in this connection, is wholly immaterial. A building owned by a school which is used solely for the purpose of imparting lessons to the students in its different class rooms is certainly a building used solely for the purpose of the school. It will be simply ludicrous to say that the use of the building solely for imparting lessons to the students of the school will not tantamount to use of the building solely for the purpose of the school if the school takes tuition fees from the students, but such use will amount to use solely for purpose of the school if the school does not take any tuition fees from the students. What is stated above illustrates the fallacy of the argument that the use of a school building for the purpose of imparting lessons to the students will amount to use of the building solely for the purpose of the school if no tuition fees are charged by the school from the students, but if tuition fees are charged in that case, the use of building remaining the same, such use will not be use of the building solely for the purpose of the school. The question of tuition fees is wholly irrelevant in this context. Similarly, the interpretation sought to be given by the Government is wholly mis-conceived that in case an educational institution realises conveyance charges from the students using the school bus for coming to school and going back such use of the bus by the school shall not constitute use solely for the purpose of the educational institution. In this connection, the definition of educational institution bus' as given in S. 2(11) of the M.V. Act, 1988 may be taken note of According to that definition 'educational institution bus' means an omnibus which is owned by a college, school or other educational institution and used solely for the purpose of transporting students or staff of the educational institution in connection with any of its activities. In thatdefinition also nothing is mentioned about conveyance charge. The question of conveyance charge is therefore wholly irrelevant in the context whether the use of the bus is solely for the purpose of the educational institution. The interpretation sought to be given by the State Government in this respect as communicated to the petitioner school under letter dated 18-9-78, Annexure-D is wholly misconceived and untenable. The use of the petitioners' school buses for carrying students to the school and back constitutes use of such buses solely for the purpose of the school which is a recognised school and that being so the petitioners' school buses were directly covered by the exemption under S. 42(3)(g) of the M.V. Act, 1939 and are now covered by the exemption under S. 66(3)(h) of the M.V. Act, 1988 from permit control. These buses are not required to obtain any permit under S. 66(1) of the M.V. Act, 1988.
4. Next 1 take up for consideration whether the benefit of the '80% tax exemption to which the buses of the petitioner school were entitled under the notification No. 3123-WT, dated 26-3-68 read with the Government of West Bengal No. 4300-WT, dated the 29th April, 1977 Annexure-C to the writ petition is no more available after issuance of the Notification No.7964-VT, dated the 7th July, 1989, Annexure-X to the affidavit in opposition. By S, 23 of the West Bengal Vehicles Act, 1979 its predecessor Act, the Bengal Motor Vehicles Tax Act, 1932 was repealed. In the 1932 Act also there was provision for granting exemption from payment of tax. Obviously, in exercise of such power to grant exemption the Government granted 80% tax exemption in favour of recognized educational institutions under Notification No.3123-WT, dated 26-3-68. The learned Advocate for the petitioners referred to sub-sec. (2)(b) of S. 23 of the West Bengal Motor Vehicles Tax Act, 1979 which inter alia provides that the repeal of the Bengal Motor Vehicles Act, 1932 would not affect any right or privilege acquired by the petitioners under the said earlier Act. It is his argument that accordingly the benefit of the 80% tax exemption which had already accrued in favour of the petitioner in virtue of the Government Notification No. 3123-WT, dated 26-3-68 continued to exist even after therepeal of the Bengal Motor Vehicles Tax Act, 1932 by the subsequent Act namely, the West Bengal Motor Vehicles Tax Act. 1979. Even apart from S. 23(2)(b) of the West Bengal Motor Vehicles Tax Act. 1979, S. 25 of the Bengal General Clauses Act, 1899 is also, attracted here. The said section provides that where any enactment is repealed and re-enacted with or without modification then unless it is otherwise expressly provided, any appointment, order, scheme, rule, bye-law, notification or form made or issued under the repealed enactment shall, so far as it is not inconsistent with the re-enacted provisions, continued in force and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, order, scheme, rule, bye law, notification or form made or issued under the provisions so re-enacted. Therefore, there is no doubt that in spite of the repeal of the Bengal Motor Vehicles Tax Act, 1932 by the West Bengal Motor Vehicles Act, 1979 the notification of 80% tax exemption which was earlier issued, obviously under the Bengal Motor Vehicles Tax Act, 1932 and the benefits given thereunder continued to remain in force as if the same were the product of the re-enacted statute, namely, the West Bengal Motor Vehicles Tax Act, 1979. But then S. 25 of the Bengal General Clauses Act has made it very clear that such a notification shall continue in force unless and until it is supereseded by any notification under the re-enacted provisions. Therefore the power to supersede the earlier notification by a new notification was patently there with the State Government. That apart S. 22 of the Bengal General Clauses Act also is attracted in this case. The said S. 22 provides that where by any Act a power to issue order, rules, bye laws or notifications is conferred, then that power includes a power, exercisable in the like manner and subject to like sanction and conditions (if any), to add to, amend, vary or rescind any orders, rules, bye-laws or notification so issued. Again S. 15 of the Bengal General Clauses Act provides that where any power is conferred by an Act such power may be exercised from time to time as occasion enquiries, unless a different intention appears. S. 21 of the West Bengal Motor Vehicles Tax Act, 1979 empowers the State Government to exempt, by notification in theofficial Gazette, either totally or partially any Motor Vehicles or class of Motor Vehicles from the payment of tax if it thinks fit so to do in the public interest. This S. 21 of the West Bengal Motor Vehicles Tax Act, 1979 read with S. 22 and S. 15 of the Bengal General Clauses Act, 1899 leaves no scope for any doubt that the State Government has the power to amend, vary or rescind any earlier notification granting any exemption from payment of tax and may also issue fresh 'notification of exemption. The Government Notification No. 7964-WT, dated the 7th July, 1989 issued purportingly under S. 21 of the West Bengal Motor Vehicles Tax Act, 1979 enumerating the cases where tax exemption has been granted has the effect of superseding the earlier Notification No. 3123-WT, dated 26-3-68 whereby 80% tax exemption was granted in favour of educational institutions in respect of their buses solely for the purposes of such institutions. This is because the new notification dated the 7th July, 1989 not only does not contain any clause of exemption in favour of educational institution but the notification itself expressly declares that this is issued in supersession of all previous notifications in this regard. Therefore the earlier notification granting 80% tax exemption in favour of school buses stood superseded and withdrawn by virtue of the said notification dated the 7th July, 1989. Even in the concluding line of the said notification dated the 7th July, 1989 it has been expressedly stated that 'all motor vehicles' which were hitherto being exempted from payment of any tax but are not covered under the present notification, shall be required to pay tax with effect from the 1st day of April, 1989'. It is argued by the learned Advocate for the petitioners that the words 'any tax' used in the concluding line of the said notification show that the withdrawal of earlier exemption is confined only to cases where the earlier notification granted the benefit of total exemption and not partial exemption like 80% exemption from payment of tax. This argument, I must say, is not tenable. The exemption from payment of 80%. 'tax is also included within the ambit of the expression 'exempted from payment of any tax' and such reading is irresistible in view of the fact that the first paragraph of the notification dated the 7th July, 1989 it hasbeen clearly proclaimed that the same was being issued in supersession of all previous --notification in this regard. Clearly therefore even without the aid of the concluding sentence of the notification dated the 7th July 1989, the previous notification granting 80% tax exemption stood superseded by reason of the said proclamation in the first paragraph of the notification dated the 7th July, 1989. Moreover the expression 'any tax' in the context of exemption as used in the said notification dated the 7th July, 1989 must be understood in its ordinary sense, namely, in the sense which includes in its fold both part tax and entire tax. The word 'any' itself connotes flexibility of application. It may be either one or the other, in its ordinary import. It will therefore be an undue violence of language in this context to restrict the ordinary import of the expression 'any tax' to only the aspect of its meaning and read 'entire tax' in place of 'any tax'. This is certainly not permissible.
5. It was however argued by the learned Advocate for the petitioners, rather in the alternative, that before withdrawing the benefit of 80% tax exemption the petitioner school should have been given opportunity of hearing in consonance with the norms of natural justice. It is not difficult to appreciate that in exercising the power of granting tax exemption, total or partial, through notification under S. 21 of the West Bengal Motor Vehicles Tax Act, 1979 by delineating different clauses of motor vehicles for enjoying such exemption the State Government was exercising its power of delegated legislation conferred upon it by the said section by a competent legislature. The question of giving prior hearing to the persons who may feel aggrieved by the exercise of the power of such delegated legislation does not arise, particularly when the Act itself does not prescribe any procedure for giving hearing to any person or class of persons who may possibly feel aggrieved by the exercise of the power of delegated legislation and this is moreso where the number of persons who may so feel aggrieved is likely to be numerous. In this connection, it has also to be noted that exemption of tax is not a matter of right but is only a privilege, if and when granted. The question of invoking natural justice in theform of audi alteram partem, for obvious reason, cannot generally arise in connection with the exercise of a power which is legislative in nature and is not purely administra- tive or quasi-judicial unless the Act authorising the exercise of such legislative power by delegated legislation itself prescribes any procedure for complying with any aspect or aspects of the principle of natural justice. Moreover, even in case of exercise of administrative or quasi-judicial power the requirement of pre-decisional hearing may in certain circumstances be dispensed with by the availability of opportunity of post-deci-sional hearing depending upon the facts and circumstances of the particular case. Here in the present case in spite of the notification dated the 7th July, 1989 superseding all exemptions earlier granted the petitioner school which was earlier entitled to 80% tax exemption in virtue of earlier relevant notification can still apply to the State Government for exemption of tax and this has been made clear in the letter No. 13716-WT, dated 6-11-89 addressed by the Joint Secretary. Transport Department, Government of West Bengal to the Director, P.V.D. Government of West Bengal wherein it is slated that all earlier tax exemption benefits granted to different educational institutions stand cancelled under the fresh notification dated the 7th July, 1989 and if any educational institution is keen to obtain tax exemption benefit, it may apply for the same for consideration of the Government and unless any specific order is issued in respect of any institution no tax exemption shall be granted (vide, Annexure-Y to the affidavit in opposition). Therefore it is not that the petitioner school has no opportunity to apply to the Government for tax exemption and as a matter of fact the petitioner has the opportunity and liberty to apply to the Government for fresh exemption and place its case before the Government in justification of its claim for exemption in which case the Government will be obliged to consider its case fairly without any undue discrimination and free from any arbitrariness. In connection with the question of invoking the principles of natural justice the learned Advocate for the petitioners relied upon some decisions of the Supreme Court, namely, Raj Restaurant v. Municipal Corporation, Delhi, : AIR1982SC1550 ; Charan Lal Sahu v. Union of India, : AIR1990SC1480 and A. K. Kraipak v. Union of India, : [1970]1SCR457 . The facts of all those decisions are however distinguishable inasmuch as in those cases, unlike the present case, no subordinate legislation was under challenge. The learned Advocate for the petitioners also relied upon the theory of legitimate expectation and submitted that since the petitioners were earlier entitled to 80% tax exemption their legitimate expectation that the same shall be maintained even in the new notification exemption cannot be -- arbitrarily brushed aside. This argument does not seem tenable because the theory of ligitimate expectation, although it has developed in recent years in diverse directions, has perhaps not yet pervaded the domain of exercise of legislative power even in respect of subordinate legislation where the Act itself docs not prescribe any procedure importing the principle of natural justice or the theory of legitimate expectation. I however must hasten to say at the same time that in the event the petitioner school applies for fresh exemption the authority concerned while considering and disposing the same may have to take into consideration the theory of legitimate expectation in view of the fact that the petitioner school was earlier enjoying 80% tax exemption thereby generating an expectation that the privilege of exemption will be allowed to continue or will be granted afresh.
6. It was next argued by the learned Advocate for the petitioners that from the letter dated 6-11-89 issued by the Transport -- Department, Government of West Bengal, Annexure-Y to the affidavit-in-opposition, it would appear that the Government have decided to continue the tax exemption earlier granted in favour of educational institutions run by or under the control of the State Government but have denied the benefit to other educational institutions thereby making an undue discrimination. In connection with the question of the impropriety of institutional preference the learned Advocate for the petitioners has referred to certain,decisions of the Supreme Court namely, P. K. Goel v. U.P. Medical Council, : [1992]3SCR363 ; State of Rajasthan v. Asoke Kumar, : AIR1989SC177 and GreaterBombay -- Municipal Corporation v. Thukral Anjali, : [1989]1SCR919 . In all those cases the question of institutional preference was raised in the background of admission to Medical Courses and the perspective in all those cases was wholly different from the perspective of the present case and as such those decisions are not applicable to the present case.
7. At the time of hearing the lerarned Advocate for the petitioners submitted that in allowing discretion to the State -- Government to grant tax exemption the legislature did not lay down any policy or principle for guilding the exercise of the discretion by the State Government, and as such the delegation of the discretionary power in favour of the State Government is vitiated. No such plea however seems to have been taken in the writ petition and as such it is difficult to entertain for consideration such a plea that at the time of hearing. But even then it has to be said that S. 21 of the West Bengal Motor Vehicles Tax Act, 1979 authorises the State Government to grant tax exemption if it thinks fit so to do in the public interest'. Therefore the legislature has laid down the principle in S. 21 which has to be followed in considering the question of tax exemption. Exemption can be granted if the State Government thinks it fit so to do in the public interest'. Public interest being the guilding factor in the matter it cannot be said that the legislature has granted any un-guided discretion in the matter in favour of the State Government. Even under S. 3(3) of the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989 the State Government has been given the power to grant exemption and there also exemption has been specially mentioned with reference to motor vehicles exempted under the West Bengal Motor Vehicles Tax Act, 1979. The argument of delegation of unguided discretion thus is not tenable.
8. It is the contention of the petitioners that the bus of an educational institution having been included in the definition of Bus of a Company' under S. 2(l)(b) of the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989 the classification is highly discriminatory and arbitrary and is therefore bad in law. The sum and substance of the argument of the learned Advocate forthe petitioners on this point is that the bus of an educational institution cannot be grouped together with a bus of a company. In that connection he also referred to some of the provisions in the Chapter of Directive Princi-iples in the Constitution. This argument also does not seem to be of any moment. It is an acknowledged position that in matters of taxation the Court permits a greater latitude to the legislative discretion. S. 2(l)(b) of the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989 runs thus:
(b) 'Bus of a Company' means the bus or omnibus registered as a private service vehicle or as a contract carriage and owned by a Company registered under the Companies Act, 1956 or by any firm (proprietorship or partnership) or any society or any corporate body or any trust or any educational institution or any organisation whether registered or not: Provided that a motor vehicle not registered in the name of any individual shall be deemed to be owned by a Company, firm, society, corporate body, trust, educational institution or organisation'.
A reading of this definition would show that practically the definition has been so couched as to exclude only those cases where the bus or omnibus has been registered in the name of iny idividual. It is not that non-profit making educational institutions have been indi-vidiously bracketed with the profit earning big companies in the said category. It will be seen that even non-profit making societies, trusts and organisations are also included in the said definition. The definition in any view of the matter cannot be said to be discriminatory, particularly in the context of a taxing statute in respect of motor vehicles. It may be pointed out here that even under the West Bengal Motor Vehicles Tax Act, 1979 the vehicle of a Company and the vehicle of an educational institution or of others also come under the same group as may be applicable to I the particular -- category. As for example, in the schedule to the West Bengal Motor Vehicles Tax Act, 1979 in the category of A.II, omnibuses with seating capacity of different categories and the tax payable in respect of each such category have been mentioned. More or less, that is also so under the category B.2. Vehicles falling under any of those categories are required to pay tax at thesame rate irrespective of the question whetherthe vehicle for which such tax is payablebelongs to a big profit-making company or aneducational institution or other organisation.If the bus of a profit-making company and thebus of an educational institution or of asociety or organisation can be required to paytax at the same rate under the West BengalMotor Vehicles Tax Act, 1979, there is noreason why the definition of 'Bus of aCompany' as given in S. 2(l)(b) of the WestBengal Additional Tax and One Time Tax onMotor Vehicles Act, 1989 should be held badso far it includes educational institutionwithin its fold. In Twyford Tea Co. v. Kerala. : [1970]3SCR383 Hidayatullah, C.J.,speaking for the Supreme Court observedthus (at page-1138):
'The burden is proving not possible 'inequality' but hostile 'unequal' treatment. This is more so when uniform taxes are levied. It is not proved to us how the different plantations can be said to be 'hostilely or unequally' treated. A uniform wheel tax on cars does not take into account the value of the car, the mileage it runs, or in the case of taxis, the profits it makes and the miles per gallon it delivers. An Ambassador taxi and a Fiat taxi give different out turns in terms of money and mileage. Cinemas pay the same show fee. We do not take a doctrinnaire view of equality'.
In the same decision it was also observed thus (at page -- 1136, ibid):
'.....the uniform tax falls more heavilyon some plantations than on others because the profits are widely discripant. But does that involve a discrimination If the answer be in the affirmative hardly any tax direct or indirect would escape the same censure for taxes such purses of different lengths and the very uniformity of the tax and its equal treatment would become its -- undoing. The rich and the poor pay the same taxes irrespective of their incomes in many instances such as the sales tax and the profession tax etc.'
After what has been quoted above and discussed earlier there is no scope for holding that the definition of 'bus of a Company' as given in S. 2(l)(b) of the West Bengal Additional Tax and One Time Tax on MotorVehicles Act, 1989 is offensively discriminatory or is bad in law. It is the case of the petitioners that their school buses are liable to be taxed, if at all, under the heading-A(2) of Schedule-I to the said 1989 Act which runs thus:
'(2) Motor cars owned by any society, partnership firm, proprietoryship firm, corporate body, whether registered or nut, educational institution, organisation and trust (excluding those owned by companies registered under the Companies Act, 1956) for carrying employees or other passengers or used otherwise except for hire or reward'.
9. The additional tax levied on that category of vehicles is Rs. 500/-. Plainly, the said heading is not attracted to the buses of the petitioner school because the said category only applies to motor cars, and 'motor car' has been defined in S.2(1)(e) as any motor vehicle other than a transport vehicle, omnibus, road roller, tractor, motor-cycle or invalid carriage. 'Omnibus' has been defined in S. 2(29) of the Motor Vehicles Act, 1988 as any motor vehicles construced or adopted to carry more than six persons including the driver. Obviously, the petitioners' school buses come under the definition of omnibus and therefore these vehicles do not come under the definition of motor car and consequently the school buses of the petitioners cannot come under the category described in A(2) of the Schedule-I to the 1989 Act.
10. It is however to be mentioned here that the impugned exemption notification No.7964-WT, dated the 7th July, 1989 Annexure-X to the affidavit-in-opposition has been given - retrospective effect with effect from the 1st day of April, 1989. While Legislature has the power to make a tax law with retrospective effect the delegate for subordinate legislation cannot legislate with retrospective effect to the detriment of the tax payers unless authorised by the statute. In the present case no such authorisation being there in favour of it, the State Government, cannot supersede earlier notification to the detriment of the exemptees with retrospective effect although it can do so with prospective effect. Since the provision in the notification dated the 7th July, 1989 so far as it relates tosupersession of previous notifications to the detriment of exemptees with retrospectiveeffect, that is, with effect from 1st April, 1989 is severable, the provision of supersession of previous exemption notifications so far the same has been given retrospective effect, is hereby struck down, and it is made clear that the provision of supersession of all previous notifications as contained in the notification dated the 7th July, 1989 will have only prospective effect but no retrospective effect. Any additional tax which might have been collected from the petitioners, if at all, for the period from 1st April, 1989 to 6th Juiy, 1989 shall be refunded to the petitioners or --adjusted against their future dues for taxes. The letter -- No. RTA/4478 dated the 18th September, 1978 issued by the -- Secretary, RTA, Calcutta Region, which is Annexure-D to the writ petition is hereby quashed with this observation that in view of sub-sec, (h) of S. 66 of the M.V. Act, 1988 the petitioner's school buses used solely for the purpose of carrying students to the school and back are exempted from the permit control irrespective of the question whether any conveyance charges are realised by the school from the students. The petitioner will be at liberty to apply before the appropriate Authority for tax exemption under both the West Bengal Motor Vehicles Tax Act, 1979 and the West Bengal Additional Tax and One Time Tax on Motor Vehicles Act, 1989 and if any such application is made the appropriate Authority shall consider and dispose of the same in accordance with law by passing a speaking, order within 12 weeks from the date of making of such application after giving an opportunity of hearing to the petitioners. All interim orders passed in this matter shall remain in force for four weeks from this date at the first instance and if application for exemption as mentioned above is made by the petitioners within the aforesaid four weeks, the interim order shall continue to remain in force till such application is disposed of in compliance with the --- direction given herein. The writ petition stands disposed of accordingly. The parties will bear their own costs.
11. Order accordingly.