(PER : HONOURABLE MS JUSTICE SONIA GOKANI) 1. The petitioner is a public limited company engaged in the business of managing and marketing of Clinker and cement products having the cement plat at Babarkot village known as Narmada Cement- Jafarabad.
2. Respondent No.2 is the Taxation Officer and Assistant Regional Transport Officer, who passed an order dated 31.5.2007 inter alia demanding the amount of Rs.51,09,344/-(Rupees Fifty One Lakh Nine Thousand Three Hundred Forty Four only) towards the tax and registration charges, interest and penalty. Respondent No.3 is the Commissioner of Transport, who passed the impugned order dated 2.7.2011 in Tax Appeal No.22 of 2007 held that the motor vehicles in question owned by the petitioner are motor vehicles and they are exigible to the tax under the Motor Vehicles Act,1988 and under Bombay Motor Vehicles Tax Act, 1958.
3. The motor vehicles in questions are excavators and surface miners. It is averred that they are adopted for use only in a factory or in any other enclosed premises and are not capable of plying on road. The dimension of the said vehicles, their width, hight and length are also provided. There are three excavators in quantity and one surface miner(on hire basis). It is also urged that they are truck mounted crawler type not capable of being plied on the road and, therefore they would not fall under the definition of Motor Vehicles under Section 2(28) of the Act. Following are the prayers:
“A. This Hon’ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the Order dated 2.7.2011 passed by the Appellate Authority, Commissioner of Transport, Gujarat State, Gandhinagar in Tax Appeal No.22 of 2007;
B. That this Hon’ble Court be pleased to issue appropriate writ, direction and/or Order declaring that the aforesaid equipments owned by the petitioner are not required to be registered under Section 39 of the Motor Vehicle Act, 1988 and further be pleased to declare that the tax cannot be levied under the Bombay Motor Vehicles Tax Act, 1958 on the said equipments;
C. That pending the hearing and final disposal of this petition, this Hon’ble Court be pleased to stay the operation and implementation of the Order dated 2.7.2011 passed by the Appellate Authority, Commissioner of Transport, Gujarat State, Gandhinagar in Tax Appeal No.22 of 2007;
D. That pending disposal and final hearing of the present petition, this Hon’ble Court be pleased to restrain the respondents from taking any coercive action for recovery against the petitioner pursuant to the Order dated 2.7.2011 passed by the Appellate Authority, Commissioner of Transport, Gujarat State, Gandhinagar in Tax Appeal No.22 of 2007;
E. For such further and other relief as this Hon’ble Court may deem fit and proper, in the facts and circumstances of the present petition”
4. Description and photographs of the vehicles are given at Annexures-B and C of the petition.
5. This matter has been taken up for final hearing at the admission stage as this Court has already decided various petitions raising identical questions of law, involved in the present petition. Upon a request made by learned Senior Counsel Mr. Mihir Thakore for Singhi and Company, for the petitioners and learned Assistant Government Pleader Ms. Shruti Pathak, for the respondents, this matter has been decided finally on hearing both the sides extensively. Their respective submissions are not being reproduced, as they are already incorporated in other judgment referred to hereinafter.
6. As noted above, this Court has decided in the group of petitions being Special Civil Application No.11848 of 2005 and other petitions decided on 15.7.2011 the exigibility to road tax of different vehicles under the Bombay Motor Vehicles Tax Act, 1958. This petition also raises identical question of law and hence it would be profitable to reproduce from the above referred judgment, the relevant paragraphs:
“1. In this group of petitions, though there are certain factual differences in different petitions, statutory provisions and law applicable are common. We have, therefore, grouped these petitions for hearing them together. Having herd the learned counsel for the parties at considerable length, we propose to dispose of the entire group by this common judgment.
2. At the center of controversy is the question of different vehicles involved in different petitions and their exigibility to road tax under the Bombay Motor Vehicles Tax Act, 1958 ('Tax Act' for short). Vehicles involved in the petitions include Crawler Cranes of different dimensions and sizes, Excavators, Dumpers, Loaders, Graders, Road Rollers, Fort Lifts, Drilling Rings, Pavers, etc. It is the case of the petitioners that these vehicles are not motor vehicles as defined in section 2(28) of the Motor Vehicles At, 1988 ('MV Act' for short). It is the contention of the petitioners that such vehicles are not adapted for use on the road. Alternatively, their contention is that such vehicles are adapted for use only in factory premises or enclosed premises. In nutshell, their case is that looking to the size, shape, dimensions, weight and other factors, these vehicles cannot be said to be those which are suitable for being driven on the roads. With respect to the detailed submissions of the learned counsel for the petitioners, we shall advert at a later stage.
3. On the other hand, case of the respondents is that these vehicles are motor vehicles as defined in section 2(28) of the MV Act. They are, therefore, required to be compulsorily registered and liable to pay road tax applicable from time to time. It is the case of the respondents that mere fact that these vehicles are predominantly used in factory premises or at mining sites or such other enclosed premises and rarely brought on road, by itself would not be sufficient to exclude them from the definition of 'motor vehicle' under section 2(28) of the MV Act.
4. Since different vehicles are involved in different petitions, it would be convenient to take note of the nature of vehicles, its dimensions and other statistical data, etc. with respect to the vehicle in question involved in these petitions.
5. Since pleadings are not common, we prefer to notice the facts as emerging from Special Civil Application No.11848 of 2005. This petition has been filed by Reliance Industries Limited and others challenging the orders dated 28.4.2003 and 10.6.2005 passed by the Local Authorities, by virtue of which, certain equipments used in the factory premises are being subjected to motor vehicle tax. In particular, order dated 28.4.2003 was passed by the Appellate Authority and the Regional Transport Commissioner demanding motor vehicle tax from the petitoenrs and its crawler crane TFC 280 which was intercepted at Bhilad check-post. By further order which is also impugned in this petition dated 10th June 2005, Revisional Authority, i.e. Joint Secretary to the Government of Gujarat, dismissed the revision petition filed by the petitioners against the order of the Regional Transport Commissioner dated 28.4.2003.
6. It is the case of the petitioners that the 3crawler crane or the vehicle in question is a chain mounted crane fitted with a boom of high- lift capacity which is ideal for repeated lifting and slewing from a medium to long term set up position. These cranes cannot be transported as a single unit and have to be dismantled completely before they can be shifted from one place to another. These cranes are so gigantic that they cannot be plied on the roads. They are also not fitted with wheels and are mounted on chains. It is the case of the petitioners that the word 'crawler' itself indicates that the machine can only crawl and cannot travel for any long distance. It is also the case of the petitioners that balance of the machine cannot be maintained since the gravity is not possible to maintain on roads on account of uneven road surface, speed breakers, bridges, ditches and such other similar conditions. The cranes can negotiate slope of maximum 2 to 3 degree gradient whereas the approaches to the roads, bridges and slopes at certain places have much steeper gradient due to which also the cranes cannot travel on normal road conditions. In other words, these cranes are not designed to travel like normal vehicles. These cranes weigh upto 600 tonnes and more. If such heavy machines are plied on the road, the surface of the road would be severely damaged. The crawler shoes are made of steel which will also damage the road surface and the surface could be peeled off if the vehicle is plied on the road. It is thus the case of the petitioners that these machines can never be said to be adapted to be used on road. It is also the case of the petitioners that the vehicles involved are having dimensions far in excess of the limits permitted under different statutory provisions contained in the Gujarat Motor Vehicles Rules.
7. It is also the case of the petitioners that the RTO Authority and the Revisional Authority without even physical inspection of the vehicles concluded that the same are motor vehicles as they can be stated to be adapted for use on the road. It is also the grievance of the petitioners that some inspection report from the LD Engineering College was unilaterally obtained and heavy reliance was placed thereon by the authorities below to come to the conclusion that the vehicles are motor vehicles. Such report was not supplied to the petitioners. It is further the case of the petitioners that even the report was prepared without physical inspection of the vehicles in question.
8. It is further the case of the petitioners that the RTO Authorities of other States are not taxing similar vehicles. It is only in the State of Gujarat where the issue has arisen. Our attention was drawn to various documents on record in support of such a contention. It is also the case of the petitioners that previously even the State Authorities were of the opinion that such vehicles cannot be treated as motor vehicles. Our attention was drawn to communication dated 18th June 2003 from the Superintending Engineering, R & B Division, Gandhinagar wherein it was stated as under:
“With reference to your letter dated 6.6.2003 quoted under reference, for permissions for travel Crawler Crane No.9310 from Bhilad, border to L and T Hazira via Vapi, Valsad, Navsari, Pulsana, Hazira, it is to inform you that travel of Crawler Crane on road damages the road surface and hence, permission is not granted. Moreover, Crawler crane is not meant for plying on the Roads. However, it should be travel on road only on trailers and not on its own power.”
The petitioners have placed heavy reliance on the different certificates issued by the manufacturer or supplier of the vehicles indicating that such vehicles are not roadworthy. In particular our attention is drawn to a communication dated 20th March 2003 from one Liebherr-Werk Ehingen GMBH, in which, with respect to question of using rubber pads on crawler chains it was conveyed as under:
“1. Crawler cranes are basically for use at sites and we do not find any justification or need of rubber pads on the crawlers. We are the world leader in Crane technology and manufacture Crawler Cranes upto 1200 ton capacity. This is the first time we have received such request. Mostly crawler cranes of such capacity have very low travel speed, less than 2 km/hr and user do not march it for long distances on its own power.
2. Regarding fitment of rubber pad on Crawler Chains, please note that we have never supplied cranes with rubber padding. Crawler cranes are not supposed to travel on Public Road and for transportation, they are to be dismantled and carried on Trucks/Trailers/Railway wagons.
3. We are of the opinion that even if by any means rubber pads are mounted n the crawlers, they will either wear out or break immediately due to very high pressure. The cranes under subject has self-weight more than 400 tons in working condition and specially during steering, it exerts tremendous pressure. Hence, it is not practical to use or fit rubber pads on the crawlers.”
Similar communications have been issued by other manufacturers and placed on record. It s not necessary to duplicate the contents of such communications.
9. The respondents have filed detailed affidavit and opposed the petitions contending that the vehicles in questions are motor vehicles covered under section 2(28) of the MV Act. They also construction equipment vehicles as defined under rule 2(ca) under the Central Motor Vehicles Rules (hereinafter to be referred to as “the Central Rules”) It is, therefore, the case of the respondents that these vehicles need to pay road tax. The respondents have produced the report of the LD Engineering College dated 17th February 2003 which reads as under:
“With reference to the above, our expert team has visited the Crawler type cranes at the road site on the Sarkhej – Gandhinagar Highway on 14-2- 2003. The report prepared after the observations is as under.
As per the definition of “Construction equipment vehicle” given in Rule 2(ca) of the Central Motor Vehicles Rules, 1989. The details of Crawler type crane, dumper or motor grader are described below.
Crawler type crane, dumper or motor grader satisfies the following requirement of the above mentioned rule.
● Crawler type crane, dumper or motor grader is non-transport vehicle.
● Its driving on the road is incidental to the main off-highway function and for a short duration at a speed not exceeding 50 kms. Per hour.
● It is not purely off-highway construction equipment vehicle designed and adapted for use in any enclosed premises, factory or mines other than road network.
● It is equipped to travel on public roads on its own power.
● When it has to travel on public roads, it must be equipped with rubber pads on the crawlers, so that the road may not be damaged by the crawlers. The rubber pads should be provided by the manufacturers, same may please be ensured from manufacturers.
Looking to the above observations for provisions of Rule 2(ca) of the Central Motor Vehicle Rules, 1989, we are of the opinion that the crawler type crane, dumper or motor grader can be classified as construction equipment vehicle.”
10. On the basis of above factual aspects, learned counsel Shri K.S.Nanavati leading the arguments on behalf of the petitioners drew our attention to the statutory provisions. It was pointed out that though term 'motor vehicle' has not been defined in the Tax Act, by virtue of section 2(10) of the Tax Act, definition of the term 'motor vehicle' as contained in section 2(28)of the MV Act is adopted. He, therefore, focused the arguments on the question whether the vehicles in question would be covered within the meaning of 'motor vehicle' under section 2(28) of the Act. Our attention was invited to Central Motor Vehicles Rules, which laid down maximum width, height and other dimensions for motor vehicle. Our attention was also drawn to rule 94 of the Central Motor Vehicles Rules, which requires that a motor vehicle should be fitted with pneumatic tyres to contend that in the present case since the crawler cranes were mounted not on rubber types, they cannot be categorized as motor vehicle.
11. In view of the above background, counsel for the petitioners contended that -
(i) That the vehicles in question do not satisfy the requirements of definition contained in section 2(28) of the MV Act.
(ii) That the vehicles are not capable of being put to use on road and therefore, they cannot be termed as motor vehicles.
(iii) That the vehicles are also not construction equipment vehicles as defined in rule 2(ca) of the Central Motor Vehicles Rules.
(iv) That even if the vehicles are seen as being construction equipment vehicles, that by itself would not satisfy the requirement of being motor vehicle unless and until the requirement of definition contained in section 2(28) of the Act are satisfied.
Unless the vehicle is a 'motor vehicle', it cannot be subjected to road tax.
(v) He further submitted that the vehicles are specially designed vehicles meant for use only in factory and other closed premises. Such vehicles are never brought on road in the existing conditions. He, therefore contended that they cannot be subjected to any tax under the Tax Act.
12. Counsel placed reliance on the following decisions in support of his contentions :
i) In the case of Bolani Ores Ltd. State of Orissa, (1974) 2 SCC 777 wherein the Apex Court interpreted section 2(18) of the Motor Vehicles Act, 1939 defining the term 'motor vehicle' and made the following observations :
“23. The meaning of the word "adapted" in Section 2 (18) of the Act is itself indicated in entry 57 of List II of the Seventh Schedule to the Constitution, which confers a power on the State to tax vehicles whether propelled mechanically or not and uses the word "suitable" in relation to its use on the roads. The words "adapted for use" must therefore be construed as "suitable for use". At any rate, words "adapted for use" cannot be larger in their import by including vehicles which are not "suitable for use" on roads. In this sense, the words "is adapted" for use have the same connotation as "is suitable" or "is fit" for use on the roads.
24. The question would then arise, are dumpers, rockers and tractors suitable or fit for use on roads ? It is not denied, that these vehicles are on pneumatic wheels and can be moved about from place to place with mechanical power. The word "vehicle" itself connotes that it is a contrivance which moves. A vehicle which merely moves from one place to another need not necessarily be a motor vehicle within the meaning of S. 2 (18) of the Act. It may move on iron flats made into a chain such as a caterpillar vehicle or a military tank. Both move from one place to another but are not suitable for use on roads. It is not that they cannot move on the roads but that they are not adapted, made fit or suitable for use on roads. They would, if used, dig and damage the roads. It is contended that the dumpers or rockers are very heavy and though they can move on roads they would damage the roads and, therefore, they are not suitable for use on roads. To substantiate this proposition the appellants have produced before us certain notifications issued by the State of Orissa under which vehicles beyond a certain laden weight are prohibited from plying on the roads. It was rightly pointed out by the learned Advocate for the State of Orissa that there are only some of the roads on which vehicles heavier than what is indicated in the notification cannot be permitted. But that is not to say that all vehicles which exceed a particular weight are not adapted for use upon roads and are, therefore, not motor vehicles. ”
ii) Counsel also relied on a decision of the Apex Court in th case of Income Tax Commissioner v. Kasturi & Sons Ltd, AIR 1999 SC 1275 to contend that taxing statute must be construed strictly.
iii) In support of his contention that tax imposed on motor vehicle is compensatory in nature, counsel relied on several decisions, in particular in the case of State of Gujarat v. Kaushikbhai K. Patel, (2000) 5 SCC 615.
iv) To contend that tax which his not authorized cannot be levied, counsel placed reliance on a decision of the Apex Court in the case of Corporation of City of Bangalore v. Keshoram Industries and Cotton Mills Ltd., 1989 Supp. (2) SCC 753.
v) In support of his contention that delegated legislation cannot override the provisions of the parent Act, reliance was placed on the decisions of the Apex Court in the case of Agriculture Market Committee v. Shalimar Chemical Ltd., (1997) 5 SCC 516 and in the cae of Babaji Kondaji Gard v. Nasik Merchants Co-op. Bank Ltd., (1984) 2 SCC 50.
Other learned advocates appearing in different petitions have in addition to adopting these arguments expanded these submissions.
13. On the other hand, learned Advocate General appearing for the respondents opposed the petitions contending that the term 'motor vehicle' defined under section 2(28) of the Act is very wide. Only because the vehicle is not normally used on the road, it cannot be stated that the same is not a motor vehicle. He further contended that the definition of the term “construction equipment vehicle” contained in rule 2(ca) of the Central Motor Vehicles Rules throws further light on the intention of the Legislature to collect tax on all motor vehicles.
14. Referring to and relying on several decisions of the Apex Court, counsel submitted that the term 'motor vehicle' should be interpreted and construed liberally. He further submitted that large number of vehicles involved in this group of petitions run on rubber mounted tyres and in fact they are used on the road on regular basis, such as, dumpers, road rollers, excavators, etc. and by no stretch of imagination, can it be stated that these vehicles are not motor vehicles. Learned Advocate General relied on several decisions of this Court as well as the Apex Court in support of his contentions.
15. Learned Advocate General placed reliance on the decision in the case of Travancore Tea Co. Ltd. v. State of Kerala, (1980) 3 SCC 619 in which the decision of the Apex Court in the case of Bolani Ores (supra) was distinguished. Reliance was placed on the decision in the case of Central Coal Field v. State of Orissa, 1992 Supp (3) SCC 133 wherein also, the decision of the Apex Court in the case of Bolani Ores (supra) came up for consideration. The Apex Court ruled that Dumpers, Rockers with rubber tyres, though used for transporting goods within the enclosed factory premises were nevertheless adaptable and suitable for use on public roads, were motor vehicles. Reliance was placed in the case of Union of India v. Cowgule and Co. Pvt. Ltd., 1992 Supp (3) SCC 141 wherein also, distinguishing the decision in the case of Bolani Ores (supra), it was held that Dumpers and shovels used in mining activities were motor vehicles.
Reliance was also placed in the case of M/s.
Natwar Parikh and Co. Ltd. v. State of Karnataka AIR 2005 SC 3428 wherein the Apex Court interpreted the term 'motor vehicle' in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over vehicles. Reliance was also placed on the decision in the case of State of Gujarat v. Akhil Gujaratr Pravasi V. S.Mahamandal, (2004) 5 SCC 155 wherein, the Apex Court, considered the decision in the case of Bolani Ores (supra) and the same was distinguished.
Heavy reliance was placed on a decision of Division Bench of this Court in the case of Crane Owners Association v. Union of India, 2001 (1) GCD 724 (Guj) wherein the Bench held that Mobile Crane mounted on motor vehicle is a vehicle of special type and could not be excluded from the definition of the term 'motor vehicle' for the purpose of tax.
Learned Advocate General referred to several other decisions of the Apex Court as well as different High Courts to which reference will be made in the later part of the judgment.
16. MV Act 1988 was enacted to consolidate and amend the law relating to motor vehicles. The Tax Act was enacted to consolidate and amend the law relating to the taxation of motor vehicles in the State and to provide for certain other matters. Under the MV Act, the Central Legislature has enacted the Central Motor Vehicles Rules, 1989 which provide for several details to work out the provisions of the Act, such as, licensing, registration of motor vehicles, safety standards, etc. The Tax Act does not define the term 'motor vehicle'. Section 2(10) of the said Act reads as under:
“(10) other words and expressions used, but not defined, in this Act shall have the meanings respectively assigned to them in the Motor Vehicles Act, 1988.”
Thus the words and expressions not defined under the Tax Act shall carry the same meaning assigned to them under the MV Act.
Section 2(28) of the MV Act defines the term 'motor vehicle' as under:
“(28) 'motor vehicle' or 'vehicle' means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty- five cubic centimeters.”
As per section 2(28) of the MV Act, any mechanically propelled vehicle adapted for use upon roads whether power of propulsion is transmitted thereto from an external or internal source, including a chassis to which a body has not been attached and a trailer, would be motor vehicle unless as provided in the later portion of the definition, a vehicle is excluded on account of its running upon fixed rails or on account of the vehicle being a special type adapted for use only in a factory or in any other enclosed premises or being a vehicle having less than four wheels fitted with engine capacity not exceeding twenty-five cubic centimeters. We will advert to this definition of the term 'motor vehicle' at greater length later. However, at this stage, we may notice that principally for each category of vehicle to be judged by us in this group of petitions, two aspects would be of paramount consideration.First would be, whether the vehicle can be stated to be one which is adapted for use upon roads and second, can it be excluded by virtue of the vehicle being of special type adapted for use only in a factory or in any other enclosed premises.
17. Before taking note of several judicial pronouncements throwing lights on these aspects, it would be useful and necessary to take note of certain provisions contained in the Central Motor Vehicles Rules. Rule 2(ca) of the Central Motor Vehicles Rules defines the term “construction equipment vehicle” as under:
(ca) “construction equipment vehicle” means rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted, self- propelled, excavator, loader, backhoe, compactor roller, dumper, motor grader, mobile crane, dozer, fort lift truck, self-loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with “on or off” or “on and off” highway capabilities.
Explanation - A construction equipment vehicle shall be a non-transport vehicle the driving on the road of which is incidental to the main off- highway function and for a short duration at a speed not exceeding 50 kms per hour, but such vehicle does not include other purely off-highway construction equipment vehicle designed and adapted for use in any enclosed premises, factory or in other than road net work, not equipped to travel on public roads on their own power.”
Rule 93 of the Central Motor Vehicles Rules provides overall dimensions of motor vehicle, relevant portion of which reads as under:
“93. Overall dimension of motor vehicles.—(1) The overall width of a motor vehicle,measured at right angles to the axis of the motor vehicle between perpendicular planes enclosing the extreme points, 134[shall not exceed 2.6 metres.] Explanation.—For purposes of this rule, a rear- view mirror, or guard rail or a directionindicator 136[rub-rail (rubber beading) having maximum thickness of 20 mm on each side of the body] shall not be taken into consideration in measuring the overall width of a motor vehicle.
(1-A) The overall width of a construction equipment vehicle, measured at right angles to the axis of the construction equipment vehicle between perpendicular planes enclosing the extreme points, shall not exceed 3 metres while in the travel mode andsuch construction equipment vehicle 138 shall be painted by yellow and black zebra stripes on the portion of the width that exceeds 2.6 metres] on the front and rear sides duly marked for night time driving/parking suitably by red lamps at the front and rear:
Provided that the zebra stripes need not be used on attachments.
(2) The overall length of a motor vehicle other than a trailer shall not exceed— (i) in the case of motor vehicle other than transport vehicle having not more than two axles, 6.5 metres;
(ii) in the case of transport vehicle with rigid frame having two or more axles, 12 metres;
(iii) in the case of articulated vehicles having more than two axles, 16 metres;
(iv) m the case of truck-trailer or tractor- trailer combination, 18 metres;
(v) in the case of 3 axle passenger transport vehicles, 15 metres;
(vi) in the case of single articulated (vestibule type) passenger transport vehicle, 18 metres (Please see the conditions given in note below);
(vii) in the case of double articulate passenger transport vehicles, 25 metres (Please see the conditions given in note below).
Note.—In the case of single articulated passenger transport vehicles of 18 metres length and double articulated passenger transport vehicles upto 25 metres, permission of the State Government shall be obtained regarding their plying on selected routes depending upon local road conditions, width, maneuverability of the vehicle in traffic, as deemed fit. These passenger transport vehicles will also be required to have a closed circuit TV 136 Substituted by G.S.R. 221(E), dated 28-3-2001, for "(when in operation)" (w.e.f. 28-3- 2001).system for proper visibility in and around the passenger transport vehicle by the driver to maintain safety. Intercom system shall also be provided in such passenger transport vehicle. In addition, the standing passenger will be allowed only on the lower deck of double articulated passenger transport vehicle.
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(4) The overall height of a motor vehicle measured from the surface on which the vehicle rests,—
(i) in the case of a vehicle other than a double- decked 142[transport vehicle, shall not exceed 3.8 metres;
(ii) in the case of a doub2le decked transport vehicle, shall not exceed 4.75 metres;
(ii-a) in the case of tractor-trailer goods vehicle, shall not exceed 4.20 metres;]
(iii) in the case of a laden trailer carrying ISO series 1 Freight Container, shall not exceed 4.2 metres:
Provided that the provisions of clauses (i) to (iii) shall not apply to fire-escape tower wagons and other special purpose vehicles exempted by general or special order of registering authority.
4-A. The overall height of a construction equipment vehicle measured from the surface on which the vehicle rests shall not exceed 4.75 meters, while on the travel mode:
Provided that the provisions of this sub- rule shall not apply to any other special purpose attachment to the construction equipment vehicle exempted by general or special order of the registering authority.”
Rule 94 of the Central Motor Vehicles Rules pertains to conditions of tyres and reads as under:
“94. Condition of tyres.— (1) Every motor vehicle including agricultural tractor and its trailer shall be fitted with pneumatic tyres and every construction equipment vehicle, other than steel drum rollers of vibratory compactors or compactor rollers or road roller or a track laying vehicle, shall be fitted with pneumatic tyres or solid rubber tyres.
(2) The pneumatic tyres of a motor vehicle including agricultural tractor and its trailer shall be kept properly inflated and in good and sound condition.
(3) For the purpose of sub-rule (2), a tyre shall not be deemed to be of good and sound condition if—
(i) any of the fabric of its casing is exposed by wear of the tread or by any unvulcanised cut or abrasion in any of its parts; or
(ii) it shows signs of incipient failure by local deformation or swelling; or
(iii) it has been patched or repaired by an outside gaiter or patch other than a vulcanise drepair;
(iv) the Non-Skid Depth (NSD), shall not be less than 0.8 mm in the case of two wheeler and three- wheeler and 1.6 mm in the case of other motor vehicles, below the Tread Wear Indicator (TWI) embedded in tyres at the time of manufacture:
Provided that the requirement specified in clause (iii) shall not apply to a temporary repair effected to enable the vehicle to be moved to the nearest place where the tyre can be repaired or replaced:
Provided further that where a motor vehicle, other than road roller or track laying vehicle, is not fitted with pneumatic tyres, it shall not be used in a public place unless it is fitted with shoes or other suitable device so that plying of such vehicle does not damage the road:
Provided also that the requirements of the Non- Skid Depth (NSD) and Tread Wear Indicator (TWI) specified in clause (iv) shall not be applicable for the agricultural tractor tyres.”
18. Having taken note of the statutory provisions applicable, we may peruse the judgments cited before us to discern the trend emerging with respect to interpretation of the term 'motor vehicle' rendered by the Apex Court and various High Courts.
19. As already noted, in Bolani Ores (supra), the Apex Court interpreted the words “adapted for use” as to mean suitable for use in relation to use on the road. It was observed that the words “adapted for use” must therefore be construed as “suitable for use” and the words “adapted for use” cannot be larger in their import by including vehicles which are not “suitable for use” on roads. It was further observed that a vehicle which merely moves from one place to another need not necessarily be a motor vehicle within the meaning of section 2(18) of the Motor Vehicles Act, 1939. It may move on iron flats made into a chain such as caterpillar vehicle or a military tank. Both move from one place to another but are not suitable for use on roads. It was observed that it is not that they cannot move on the roads but that they are not adapted, made fit or suitable for use on roads. In the same judgment, however, a rider was added when the Apex Court observed that it is not that all vehicles which exceed a particular weight are not adapted for use upon road and are therefore, not motor vehicles. These observations were made in the background of the suggestion made on behalf of the petitioners therein that the vehicles should not be considered as motor vehicles since it exceeded certain laden weight beyond which the State prohibited such vehicles from plying on roads.
20. The decision in the case of Bolani Ores (supra) came up for consideration in later decisions on several occasions. In the case of Travancore Tea Company Ltd (supra), the Apex court noticed that the decision in the case of Bolani Ores (supra) was rendered in the context of the term 'motor vehicle' defined in section 2(18) of the Motor Vehicles Act, 1939 and that thereafter there were certain legislative changes. The Court, therefore, observed as under:
“10. Before concluding, we would refer to a contention raised by the learned counsel based on the decision of this Court in Bolani Ores Ltd. v. State of Orissa, (AIR 1975 SC 17) (supra). The plea of the learned counsel is that the words "motor vehicle" should be understood as defined by Sec. 2 (18) of the Motor Vehicles Act 1939 and exclude from taxation motor vehicles "used solely upon the premises of the owner." As the vehicles with which we are concerned were claimed to have been kept for use solely in the premises of the company, it was contended that the vehicles are not exigible to tax. This Court in the decision cited was dealing with the Orissa Motor Vehicles Taxation Act, 1930. Section 2 (c) of the Orissa Taxation Act adopted the definition of Motor Vehicle Act as found in Motor Vehicles Act, 1914. The Motor Vehicles Act, 1914 was repealed and replaced by the Motor Vehicles Act, 1939. The definition of 'motor vehicle' in Sec. 2 (18) of the Motor Vehicles Act, 1939 excluded motor vehicles used solely upon the premises of the owner. The Orissa Motor Vehicles Taxation Act was amended and Orissa Amendment Act, 1943 re-enacted the provisions of the Taxation Act. "Motor Vehicles" was defined under Sec. 2 (18) of the Motor Vehicles Act, 1939 excluding vehicles used solely upon the premises of the owner. Subsequently the definition of 'motor vehicle' under section 2 (18) of the Motor Vehicles Act was amended by the Act 100 of 1956 which confined the exemption from taxation to "motor vehicles of a special type adopted for use only in a factory or in any other enclosed premises." The exemption from tax can only be claimed after amendment to S. 2 (18) by Act, 100 of 1956, if the vehicle was of special type adopted for use only in a factory or in any other enclosed premises and the exemption that was available before the amendment by Act 100 of 1956 to Motor Vehicles used solely upon the premises of the owner was taken away. This Court held "if the subsequent, Orissa Motor Vehicles Taxation (Amendment) Act, 1943, incorporating the definition of 'motor vehicle' referred to the definition of 'Motor Vehicle' under the Act as then existing, the effect of this legislative method would, in our view, amount to an incorporation by reference of the provisions of Section 2 (1) of the Act in Section 2 (c) of the Taxation Act. Any subsequent amendment in the Act or a total repeal of the Act under a fresh legislation on that topic would not affect the definition of 'motor vehicle' in S. 2 (c) of the Taxation Act". As a result this Court held that the definition of 'motor Vehicle' given in S. 2 (18) of the Motor Vehicles Act, 1939 before the amendment by Act 100 of 1956 was applicable. Relying on this decision, the learned counsel submitted that the test that is to be applied to determine whether motor vehicle is liable to tax or not is whether it comes under the exemption provided by under Sec. 2 (18) of the Motor Vehicles Act, 1939 before the amendment. We are unable to accept the contention mainly on the ground that the Kerala Motor Vehicles Taxation Act, 1963 (Act 24 of 1963) came into force on 18-3-63. Section 2 (1) of the Taxation Act provides that words and expression used but not defined in the Motor Vehicles Act, 1939 (Central Act 4 of 1939) shall have the meaning respectively assigned to them in that Act. On the date when the Kerala Motor Vehicles Taxation Act was enacted, Motor Vehicles Act 1939 was amended by Act 100 of 1956 and the amended definition on the date when the Taxation Act came into force exempted only motor vehicles which are of a special type adopted for use only in a factory or in any other enclosed premises. This amended definition will have to be read into the Taxation Act which was enacted subsequent to the date of the amendment of the definition of 'Motor Vehicle' by Act 100 of 1956. In this view we fell that the decision in Bolani's case (supra) will not be of any assistance to the learned counsel for the appellants.”
21. In the case of Central Coal Field (supra), the decision in the case of Bolani Ores (supra) was noticed. The Apex Court taking note of the definition of the term 'motor vehicle' in section 2(18) after its amendment, which provides for exclusion of vehicle of special tyres adapted for use only in a factory or in other enclosed premises, held that the dumpers with rubber types used for transporting goods within the enclosed premises were motor vehicles. The Apex Court was of the opinion that the vehicle being adaptable and suitable for use on public roads irrespective of their and speed restriction were nevertheless motor vehicles. It was observed that by use of rubber tyres it is evident that the vehicles have been adapted for use on roads which means that they are suitable for being used on public roads.
22. Bolani Ores (supra) once again came up for consideration in the case of Chowgule & Company (supra) wherein the same was distinguished.
23. In the case of Akhil Gujarat Prvasi V.S.Mahamandal (supra) also, the decision in the case of Bolani Ores (supra) came up for consideration. In the context of the authority to tax motor vehicles, it was observed that tax is compensatory in nature and must have some nexus with vehicle using the public roads. It was further observed that words “suitable for use” signify the kind of vehicles meaning thereby that the vehicles should be such type which are normally capable of running on the road. It was further observed that entry does not indicate in any manner that tax would be leviable only for the period when the vehicle is actually using the road and not otherwise and, therefore, it has no correlation with the actual period of use. It was further observed as under:
“Naturally the State has to maintain the roads and to keep them in proper condition for all those who own vehicles suitable for use on roads. This is irrespective of the fact whether they use it or not or use it occasionally or for short duration only. It being a tax and not a fee (as understood in the conservative sense), the actual use of the public roads of the State cannot be insisted upon for incurring the liability.”
As already noted, in the case of M/s.Natwar Parikh and Co. Ltd. (supra) the Apex Court advocated the broadest possible reading of the term “motor vehicle' keeping in mind that the Act has been enacted to keep control over the motor vehicles and transport vehicles, etc. It was observed as under:
“24. Section 2(28) is a comprehensive definition of the words "motor vehicle". Although, a "trailer" is separately defined under Section 2(46) to mean any vehicle drawn or intended to be drawn by motor vehicle, it is still included into the definition of the words "motor vehicle" under Section 2(28). Similarly, the word "tractor" is defined in Section 2(44) to mean a motor vehicle which is not itself constructed to carry any load. Therefore, the words "motor vehicle" have been defined in the comprehensive sense by the legislature. Therefore, we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles etc. A combined reading of the aforestated definitions under Section 2, reproduced hereinabove, shows that the definition of "motor vehicle" includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn by a motor vehicle, it by itself being a motor vehicle, the tractor- trailer would constitute a "goods carriage" under Section 2(14) and consequently, a "transport vehicle" under Section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under Section 2(14) as a "goods carriage" and consequently, it falls under the definition of "transport vehicle" under Section 2(47) of the M.V. Act, 1988.”
24. In the case of Crane Owners Association (supra), a Division Bench of this Court, taking note of the decision of the Apex Court in the case of Bolani Ores (supra) and Chowgule & Co. Pvt. Ltd. (supra), etc. concluded that mobile crane mounted on motor vehicle is a vehicle of special type and it could not be excluded from the definition of motor vehicle for the purpose of tax since it was capable of being sued on the road for its transportation. It is, of course, true that on behalf of the petitioners, it was conceded that the vehicle in question would be a motor vehicle, nevertheless, the Division Bench examined the judicial pronouncements in detail and held as under:
“25. From the observations quoted above, the Supreme Court in deciding upon the taxability of motor vehicle, which undisputedly the mounted mobile cranes are, attached due importance to the definition clause contained in Section 2(28) and held that vehicles with wheels and tyres which can run on public roads are `motor vehicles' exigible to tax because "they are not manufactured or adapted for use only in factory or enclosed premises" to fall in the exception clause of the definition of `motor vehicle' in Section 2(28) of the Act of 1988.”
25. In the case of Chief General Manager, Jagannath Area v. State of Orissa, (1996) 10 SCC 676, the Apex Court held that dumpers running on tyres and used within mining areas were motor vehicle within the meaning of section 2(28) of the MV Act even though it was contended that such vehicles exceeded the permissible restrictions laid down in rule 92 and 93 of the Central Motor Vehicles Rules. The Apex Court opined that, it does not mean that the vehicles which are otherwise motor vehicles within the definition of clause go out of the definition the moment they exceed the limit as provided in Rules 92 or 93 of the Rules. It was held as under:
“7. The various restrictions contained in Rules 92 and 93 referred to by Mr. Shanti Bhushan, learned senior counsel are intended to lay down the outer limits for the vehicles to be plied on the public road. But that does not mean that the vehicles which are otherwise motor vehicles within the definition clause go out of the definition the moment they exceed the limit as provided in Rules 92 or 93 of the Rules. The taxability of dumpers again came up before this Court in the case of Union of India v. Chowgule and Co. Pvt. Ltd., 1992 Supp (3) SCC 141 : (1992 AIR SCW 1373). In this case an argument had been advanced that the dumpers are used only in mining operation within the mining area and are not actually used on roads nor are suitable for use on roads and, therefore, are not taxable. The Judicial Commissioner of Goa, Daman and Diu accepted the contention and allowed the appeal. Union of India had come up in appeal to this Court. This Court reversed the decision of the Judicial Commissioner of Goa, Daman and Diu and relying upon the earlier decision of this Court in Central Coal Fields Ltd. v. State of Orissa, 1992 Suppl (3) SCC 133 : (1992 AIR SCW 1366) held the mere fact that dumpers were used solely on the premises of the owner, or that they were in closed premises, or permission of the authorities was needed to move them from one place to another, or that they are not intended to be used or are incapable of being used for general purposes, or that they have an unladen and laden capacity depending on their weight and size, is of no consequence for, dumpers are vehicles used for transport of goods and thus liable to pay a compensatory tax for the availability of roads for them to run upon commission.”
26. In the case of Bose Abraham v. State of Kerala, (2001) 3 SCC 157, the Apex court held that excavators and road rollers are motor vehicles within the meaning of section 2(28) of the MV Act.
27. In the case of M/s.Kshardas & Co. v. State of Maharasthra, AIR 1986 Bombay 348, a Division Bench of the Bombay High Court came to the conclusion that motor crane has mobility and is also suitable for use on a public road so far as movement is concerned. Referring to the word “only” in the amended definition of section 2(18) of the Motor Vehicles Act, 1939 which language is similar to that used in section 2(28) of the MV Act, it was held that it cannot be said that the crane is a vehicle which is adapted for use only in factory or any other clsoed premises.
28. The case of Poomani v. Tuticorin Thermal Power Project, AIR 1990 Madras 372, was a case wherein the learned Single Judge of the High Court held that the crane driven on public road is a motor vehicle. It was, however, a case arising out of motor accident compensation claim.
29. In the case of K.K.Jain v. Masroor Anwar, AIR 1990 Madhya Pradesh, 87, the High Court held that a dumper is a motor vehicle which is also a case arising out of motor accident compensation claim.
30. In the case of M/s. Chakkiat Agencies Pvt. Ltd. v. State of Kerala, AIR 2001 Kerala 363, a Division Bench held that trailers kept in the area of the Port Trust and which are used for transport inside the Port area can still be said to be motor vehicles kept for use in the State.
31. In the case of M/s.Birla Cement Works v. State of Rajasthan, AIR 2003 Rajasthan 251, a Division Bench of the Rajasthan High Court held that dumpers are motor vehicles liable to tax. It was held that only requirement is that the vehicle should be suitable for use on the roads whether it is actually used or not does not bring the vehicle out of the definition of the term of 'motor vehicle'.
32. From the above judicial pronouncements, it can be noted that the decision in the case of Bolani Ores (supra) was rendered in the background of the language used in section 2(18) of the Motor Vehicles Act, 1939. There were significant amendments in the said provision in the year 1956 and thereafter when Motor Vehicles Act 1988 was enacted. Section 2(28) of the MV Act, with which we are concerned in the present cases, uses language substantially different from which came up for consideration before the Apex Court in Bolani Ores (supra). These differences have been noted in subsequent judgments. Over a period, from the concept of vehicle being suitable for use on road, theory of normally capable of being used on road, the liberal interpretation of the term 'motor vehicle' under section 2(28) of the Act has been propounded by the Apex Court in subsequent judgments. In the case of Chief General Manager Jagannath Area (supra) it was also observed that merely because the vehicle's dimensions exceed those specified in rule 92 and 93 of the Central Motor Vehicles Rules, that by itself would not be sufficient to get the vehicle out of the term 'motor vehicle' as defined in section 2(28) of the Act.
33. From the above, following broad propositions can be culled out.
i) For a vehicle to be a motor vehicle within the meaning of section 2(28) of the Act, what is necessary to be seen is whether it is adapted to use on the road;
ii) To judge such adaptability, size, dimensions, weight, use that the vehicle is normally put to are some of the factors which would be relevant.
iii) If on the basis of relevant considerations, including those noted above, it can be held that the vehicle is capable of being used on road, it would satisfy the definition of the term 'motor vehicle', unless, of course, it falls within the exclusion clause in the later portion of the definition.
iv) Whether the vehicle is being regularly used on road is not relevant as long as it can be used on road when required which would satisfy the requirement of the term vehicle adapted for use on road.
v) Solely on account of the dimensions of the vehicle exceeding those specified in rule 92 and 93 of the Central Motor Vehicles Rules by itself would not mean that the vehicle is not a motor vehicle. Though, this may be a relevant factor to be considered along with other factors.
vi) For a vehicle to fall in exclusion clause of the definition, it should be a vehicle of special type adapted for use only in a factory or any other enclosed premises. Here the term 'only' has great significance. In other words, the vehicle being normally or ordinarily or usually used or even adapted for use in a factory or any other enclosed premises would not be sufficient to take it out of the category of motor vehicle. The vehicles which are special type adapted for use 'only' in a factory or any other enclosed premises would get the benefit of such exclusion.
vii) Whether the equipment is fitted with pneumatic or rubber tyres or is chain mounted equipment would not in isolation be conclusive of the nature of the vehicle. However, the fact that a vehicle is fitted with pneumatic or rubber tyres would be one of the indications to suggest that it is adapted for use on road.
34. With the above clarity of mind, if we now examine each category of vehicles involved in this group of petitions, we find that the vehicles get divided in three broad categories. Category 'A' would be where ex facie, looking to the dimensions of the vehicles, special use for which they are designed and made adaptable and such other relevant considerations, it can be stated that the vehicle is not a motor vehicle. In category 'B' would fall those vehicles which from the available material on record and applying the relevant considerations, very clearly fall within the definition of the term 'motor vehicle' and therefore exigible to road tax. Category 'C' would be those vehicles where without further inspection and inquiry, it would not be possible to judge whether they satisfy the test of vehicles being adapted for use on road and even if so, can be categorized as special type of vehicles adapted for use only in factory or in enclosed premises. To such type of vehicles, further inquiry shall have to be carried out by the respondents before holding that the vehicles are exigible to road tax.
35. We would now take up each category of vehicles for consideration on the basis of the observations made hereinabove. For familiarizing ourselves with the equipments we have accessed from the Internet useful information in respect of each category of vehicle, which will be described hereinafter individually category- wise.”
50. Excavator:
(a) Crawler Excavator
A crawler excavator (crawler digger) is a designed vehicle to dig or move large objects. It is widely used in construction work, such as digging of trenches, holes, foundations; handling material, moving earth, demolition, dredging, etc. Many other attachments are always adapted to crawler excavator (crawler digger) for boring, ripping, crushing, cutting, lifting, and so on.
(b) Wheel Excavator
Wheel excavator (wheel digger) is the combination of the latest advanced hydraulic technology, electrical system and structural engineering.
(c) Compact Excavator
The excavator, which is also called digger, is mainly make up of boom, bucket and cab on a rotating platform. There are compact excavators (or mini excavators) and heavy duty excavators, depending on the size. It is usually equipped with loaders and bulldozers, and the wheeled, compact and some medium sized (11 to 18 tone) excavators have a backfill( or dozer) blade.
This kind of engineering machinery and construction equipments are widely used to level or push material back into a hole. In the construction site, its main work is digging of trenches, holes, foundations, brush cutting, lifting and placing of pipes, mining, river dredging etc.
They are though not fitted with rubber tyres, move on chains. Looking to the dimensions, their mobility, their use, it cannot be stated that they are not adapted for use on road. These vehicles would be covered by the definition of motor vehicle.
xxx xxx xxx xxx xxx xxx”
7. Surface miners
These vehicles are used for the purpose of Surface mining, including strip mining, open-pit mining and mountaintop removal mining, in which soil and rock overlying the mineral deposit (the overburden) are removed. It is the opposite of underground mining,in which the overlying rock is left in place, and the mineral removed through shafts or tunnels.
8. This category though was not dealt with in the earlier petitions, their dimensions, mobility and use would make us hold that they are adopted for use on road and can be covered under the definition of motor vehicles.
9. On the basis of aforementioned findings and descriptions of various vehicles mentioned in this petition, shall have to be reproduced hereinafter to examine the category under which they would fall so as to decide exigibility to tax.
10. Considering the dimension,mobility, weight,size and nature of vehicles and testing the same at the touchstone of parameters laid down at paragraph 33 of the aforesaid judgment, all these vehicles shall fall under Category ‘B’. Being the motor vehicles, capable of being used on road, they shall not fall within exclusion clause, but, they are found to be exigible to road tax and held accordingly to have satisfied the term ‘motor vehicle’.
11. It appears that the petitioner has already made a payment of Rs.5.78 lakhs under protest to the respondent authorities. It is to be noted that in the earlier petitions,one of the grievances made by those petitioners was of demand from the date of purchase of the vehicles and not from the date of entry in the State and we had held that demand to be erroneous. In this case also, we clarify that the respondents shall in no case demand the tax from the date of purchase of vehicles by the petitioners but, they shall be entitled for such tax from the date the vehicles entered the State or was intercepted by the authorities.
12. Petition is being disposed of with a further direction that if any refund is to be given to the petitioner in view of the aforementioned direction, the respondent shall have to refund the tax already collected, which shall bear simple interest at the rate of 9% per annum from the date of conclusion till the refund. Similarly, in case where the petitioner has to pay unpaid dues, such dues shall also carry simple interest at the rate of 9% from the date of tax liability arising till the actual payment.
13. With regard to the non-use of the vehicle and the request for suspending the tax liability of the vehicle for such period, as has been done in earlier petitions, the petitioner would be at liberty to approach the authority in this regard. However, in absence of full details on the record, no opinion in this regard is expressed by this Court.
Resultantly, this petition stands disposed of in above terms.
(AKIL KURESHI, J.) SUDHIR (MS SONIA GOKANI, J.)