JUDGMENT

M. Katjo, J. - The Petitioner is an owner of four buses registered as contract carriages with the Regional Transport Authority, Mathura. The Petitioner entered into a contract with Indian Oil Corporation Ltd. A true copy of the agreement is Annexure 1 to the writ petition. Under this contract the Petitioner has placed its vehicles at the disposal of the Corporation for carrying the employees of the Corporation from their residences to the office of the Corporation. The Petitioner is paid charges not according to the number of passengers but according to the kilometers covered by the vehicle. In lieu of rendering such services the Petitioner is paid an amount as provided in Article 3.1 of the Contract (page of the writ petition).

2. By means of this petition, the Petitioner is challenging the levy of passenger tax under the U.P. Motor Gadi (Yatri-Kar) Adhiniyam, 1962 (hereinafter referred to as the Adhiniyam). In para 11 of the writ petition it is alleged that if a vehicle is run by a person exclusively in connection with his trade or business without any hire or reward from the passengers, the incidence of taxation under the Adhiniyam would not be attracted. In para 13 of the writ petition it is alleged that the Petitioner does not ply vehicles for hire or reward and the Petitioner does not collect passenger tax from the passengers. In para 14 it is alleged that since the Petitioner was not covered by the provisions of the Adhiniyam he did not submit the monthly returns as required by Section 6 but the Passenger Tax Officer issued notice u/s 8 to the Petitioner. In response to this notice the Petitioner appeared before the Passenger Tax Officer and submitted that he does not carry passengers for hire or reward and that he had placed his vehicles at the disposal of the Corporation for providing transport service to its employees. However, the Passenger Tax Officer did not consider the Petitioner's submission and passed assessment orders true copies of which are Annexures 2 to 5 of this petition. Against these orders the Petitioner filed appeals which have been dismissed by the Deputy Transport Commissioner by the order dated 8-11-85, Annexure 6 to the petition. Aggrieved the present writ petition has been filed.

3 A counter affidavit has been filed in which it is not denied that the Petitioner had entered into an agreement with the Corporation for providing transport facility to the employees of the Corporation for which the Petitioner was paid charges on monthly basis. In para 9 of the counter affidavit, it is admitted that the Petitioner was not paid according to the number of passengers but he was paid in lump-sum on monthly basis by the Corporation in accordance with the contract. In para 13 of the counter affidavit it is asserted that the Petitioner was liable to pay Passenger tax, and the orders of the authorities are correct.

4. I have heard learned Counsel for the Petitioner Km. Sunita Agarwal and also learned standing counsel for the Respondents. learned Counsel for Petitioner invited my attention to Entry 56 of List II of the Seventh Schedule to the Constitution which reads "taxes on goods and passengers carried by road or on inland water ways." learned Counsel argued that the provisions of the Adhiniyam must be construed in a manner so as to be inconsonance with Entry 56, and if any provision in the Adhiniyam, has two interpretations the one which will make it inconsonance with Entry 56 should be preferred. Entry 56 of List II provides for a tax on goods or passengers carried by road. It is evident this tax must be imposed on the goods or Passengers that is to say, it should be directly on the goods or passengers. In this connection learned Counsel for the Petitioner referred to the decision of the Supreme Court in M/s. Orissa Cement Ltd. and Others Vs. State of Orissa and others, AIR 1991 SC 1676 . In that case it was held that the cess based on royalty derived from mining land cannot be treated as a tax on la