JAGANMOHAN REDDY - (1.) THESE appeals raise a common question as to whether Dumpers, Rockers and Tractors are motor vehicles within the meaning of the relevant State Motor Vehicles Taxation Acts, and are accordingly taxable thereunder. Apart from these appeals, Bolani Ores Ltd.-Appellant in Civil Appeal No.1816 of l968-has filed a writ petition challenging the constitutional validity of the Bihar and Orissa Motor Vehicles Taxation Act, 1980. The question raised in the writ petition will only arise for determination, if the judgment of the High Court of Orissa is held- to be valid, otherwise the question of the constitutional validity of the Bihar and Orissa Motor Vehicles Taxation Act (hereinafter referred to as 'the Taxation Act') does not fall for determination as that would be purely academic.
(2.) THE two Civil Appeals Nos. 1816 of 1968 and 1817 of l968 arise out of two suits - one filed by Bolani Ores Ltd. and the other by Orissa Minerals Development Company Ltd. respectively, for a declaration that the machineries in their possession which were described in the respective Schedules to the plaints were not liable for registration under Section 22 of the Indian Motor Vehicles Act - hereinafter referred to as 'the Act', and cannot, therefore, be taxed under Section 6 of the Taxation Act. In the suit filed by Bolani Ores Ltd., 8 types of machinery were involved: (1) Shovels, (2) Drill Master, (3) Caterpillar Bull-dozers, (4) Rockers, (5) Dumpers, (6) Motor Grader, (7) Tractors and (8) Fargo Truck fitted with serving tank for diesel oil etc. THE Trial Court held that all the items of machinery as above mentioned, except item (6) i.e. Motor Grader, came within the definition of a 'motor vehicle' given in Section 2 (18) of the Act, and were therefore liable for registration under Section 22 of the Act as well as payment of taxes under the Taxation Act. Against this decision, First Appeal No. 44 of 1963 was filed in the Orissa High Court.* THE State did not file any cross appeal against the declaration that item (6) was not taxable. THE High Court was of the view that unless it is shown that the vehicle is of a special type adapted for use only in factories or enclosed premises and' incapable of running on any other type of roads or public roads, the vehicles were motor vehicles. It was conceded during the hearing on behalf of the appellant that type (8) Fargo Truck clearly comes within the definition of motor vehicle and likewise the Advocate General conceded that type (2) Ingersell-Hand-Drill Master cannot be held to be a Motor Vehicle. THE High Court accordingly modified the order of the Trial Court in respect of the types in items (1), (2) and (3). It held that these three types as well as the Motor Grader in item (a) already held by the Trial Court not to be a motor vehicle, were not liable for registration under Section 22 of the Act, nor would they be subject to payment of tax under the Taxation Act. In the suit filed by Orissa Mineral Development Company Ltd. out of which First Appeal No. 45 of 1963, Reported in AIR 1968 Orissa 1 arose, the plaintiff sought a declaration that nine types of machinery which it owns were not liable for registration under the Act: Items (1) and (2) being Dumpers, (3) and (3-A) Tractors, (4) Caterpillar Trax Cavetror, (5) and (6) Caterpillar Bull-dozers, (7) and (8) Scrapers and (9) Shovel. The Trial Court found on evidence that items (4) to (9) had a sort of crawler mechanism and were not adapted for regular use on the roads. This fact was also admitted by the opposite party. Accordingly it held that the vehicles in these items did not come within the ambit of the definition of 'motor vehicle' under Section 2 (18) and were not liable for registration under Section 22 of the Act. The case of Dumpers and Tractors (items (1) to (3) and (3-A) however, was held to stand on a different footing, as these vehicles were adopted for being used on roads for transporting the goods of the plaintiff though it may be within its own field of operation. The reasons for bringing such vehicles and the tractors within the purview of Section 2 (18) of the Act were discussed at same length, and accordingly it was held in both the suits that the vehicles indicated in the respective suits were liable for registration under Section 22 of the Act and for payment of the requisite tax under the Taxation Act. In these appeals intervention of M/s. Chougule and Co., M/s. N. C. D. C. Ltd. and M/s. Dalmia Cement Ltd. who allege that proceedings taken by them are pending in Courts, was permitted and they are represented by the learned Advocates Soli J. Sorabji, S. P. Nayar and S. T. Desai respectively.
(3.) CIVIL Appeal No. 336 of 1970 is in respect of the Mysore Motor Vehicles Taxation Act - hereinafter called 'the Mysore Act'. The appellants in this appeal filed a petition under Article 226 of the Constitution in the High Court of Mysore challenging the demand by the Regional Transport Officer to get the Dumpers registered under the Act failing which they would be committing an offence entailing penal consequences. The High Court of Mysore, while dismissing the petition, held that the Dumpers can be used for carrying loads even outside the mining area or any other enclosed premises, like any other 'goods vehicle' which is required to be registered under the Act. According to it, what would take the vehicle out of the category of 'motor vehicles' under the Mysore Act is that they must be such as "are incapable of use in any other place for the purpose of transport of goods or passengers", which, in its view, was not "the same thing as saying that if the vehicle is not put to use elsewhere, or used for a special purpose, it must be exempted from registration under Section 22 of the Act." It further observed : "The test of purpose, as argued by the learned counsel, does not also, in our view, fall clearly within the purview of the statutory exemption in Section 2 (18) of the Act. On the other hand, what is enjoined is that its very design and manufacture must be such as would confine its capability for use only in a factory or enclosed premises." Referring to the case of Bolani Ores Ltd. v. State of Orissa, AIR 1968 Ori 1 the interpretation placed by the Orissa High Court on the judgment of the Supreme Court in The State of Mysore v. Syed Ibrahim, (1967) 2 SCR 678 = (AIR 1987 SC 1424) was not accepted. On this aspect the Mysore High Court observed : "But, it may also be noted that in the decision of the Supreme Court, above referred to, what was in question was whether the owner of a Motor Car, which was used for transporting passengers for hire was liable for prosecution under Section 42 (1) of the Act. The exemption under Section 2 (18) did not fall for consideration in the said decision. It was in this context that the Supreme Court laid down that if a Motor Vehicle is used as a transport vehicle, the owner who so uses it or permits it to be so used is required to obtain the necessary permit. It is the use of the vehicle for carrying passengers for hire or reward which determines the application of Section 42 (1) of the Act." The High Court, however, agreed with the test laid down by the Orissa High Court for determining what under the Motor Vehicles Act is a 'motor vehicle'. The decision in these appeals hinges on the view we take of what a 'motor vehicle' is for the purpose of Section 2 (c) of the Taxation Act under which the motor vehicle has the same meaning as in the Motor Vehicles Act, 1939, and whether the subsequent amendment of the definition in S. 2 (18) of the Act by the Motor Vehicles (Amendment) Act, 1956 will govern the definition of 'motor vehicle' for the purposes of the Taxation Act. Sec. 6 of the Taxation Act imposes on every motor vehicle a tax at the rate specified in the Second Schedule to the Act. The question therefore arises as to what is a 'motor vehicle' for the purposes of the Taxation Act. It may be pointed out that Section 2 (c) of the Taxation Act, prior to its amendment in 1940, defined a 'motor vehicle' as meaning any vehicle propelled, or which may be propelled, on a road by electrical or mechanical power either entirely or partially. In 1939 the Motor Vehicles Act of 1914 was repealed and a new Act substituted in its place. The 1914 Act defined 'motor vehicle' as including "a vehicle, carriage or other means of conveyance propelled, or which may be propelled, on a road by electrical or mechanical power either entirely or partially." The Orissa Act, therefore, initially adopted the definition in the Taxation Act, which was in consonance with the Motor Vehicles Act, as it then stood. The definition of 'motor vehicle' under Section 2 (18) of the Act having been re-defined, the Taxation Act by the Orissa Amendment Act 2 of 1940 adopted that definition for the purposes of taxation. The preamble to this amendment stated that the amendment was made for the purpose of avoiding repugnancy in the Motor Vehicles Act, 1939. The Orissa Amendment Act of 1943 reenacted provisions of Sections 2 to 8 of the said Act, as the Amendment Act 2 of 1940 was due to expire on November as, 1943. Section 2 (18) of the Act was, however, amended by Act 100 of 1956 but there was no corresponding amendment in the definition of Section 2(c) of the Taxation Act. It is, therefore, contended that the amended definition is inapplicable to the Taxation Act, but it is only the definition of a 'motor vehicle' as it existed under the Act prior to the amendment that has to be read in Section 2 (c) of the Taxation Act, inasmuch as the purpose and intendment of the Legislature was only to incorporate the definition as it existed at the time when the Taxation Act was amended in 1943. If it was otherwise, following the legislative practice adopted earlier by the Orissa Legislature, the definition of a 'motor vehicle; would have been suitably amended in order to avoid any repugnancy with the amendment. Apart from this contention, it is also submitted that under the definition as it existed prior to the amendment or subsequent thereto dumpers, rockers and tractors are not 'motor vehicles', because they are not adopted for use on the road. ;