VIKRAM ISPAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner is a limited company engaged in the production of sponge iron in village Salav in Raigad District. The petitioner holds large tracts of land for that purpose. No member of the public is allowed to enter these areas without prior permission. In order to carry out its activities, the petitioner put to use machinery within its areas, of a variety. But in the instant case, we are concerned with only one of them i. e. pay loader which seemingly is similar to a dumper with a difference that the dumper has a bucket on the back side whereas the pay loader has a bucket in front which is smaller in size and which is hydraulically operated and can pick up a fixed amount of material depending upon its capacity. It's steering system is also hydraulically operated and its turning radius is more than the ordinary transport vehicles. Major deployment of the pay loaders is stated to be in mines and mines related activities where material is picked up by pay loader and discharged in dumpers for onward transportation of material at distant location. The pay loaders are also said to be deployed in industries like cement, mineral processing, steel etc. where raw material feeding is done by using such special type of equipments.

(2.) ON 7/11/2001, the petitioner's pay loader which was plying on a public road was seized by the Motor Vehicles Inspector. According to the petitioner, this pay loader was used as there was failure of conveyor system at the private jetty and the plying on the road is not the normal use of the vehicle. According to the petitioner, the pay loaders do not transport either men or material from place to place. They generally remain stationery at the specified points at the factory premises. Their movement is restricted for shifting of raw materials semi-finished, products and finished products in the enclosed factory premises and private jetty area of the Company. It is the case of the petitioner that the pay loader is not adaptable to ply on any road whether private or public. The pay loader which was detained by the authorities came to be released on 16th March, 2002. In the meanwhile, show cause notices were issued by the Dy. Regional Transport Officer-Respondent No. 4 who is also the taxation authority to the petitioner and after granting personal hearing to the petitioner, the fourth Respondent vide order dated 5th March, 2002 held that the pay loader is a motor vehicle within the meaning of Section 3 of the Motor Vehicles Act. 1988 and, therefore, the registration of the pay loader is mandatory. The fourth Respondent directed the petitioner to register all pay loaders including the one detained by them failing which he shall proceed against the petitioner in accordance with the provisions of Motor Vehicles Act and the rules thereunder. By further order dated 6th March, 2002, the fourth Respondent held that the pay loaders of the petitioner are liable for taxation under the provisions of the Bombay Motor Vehicles Tax Act, 1958 and the demand notices bearing the same date were issued to the petitioner to pay the road tax along with penal interest for the period February 1994 to April 2002. In his order, the fourth Respondent has referred to Rule 2 (ca) of the Central Motor Vehicles Rules, 1989 which lays down the definition of 'construction Equipment Vehicle'. The constitutional validity of the said Rules 2 (ca) is also sought to be challenged in the present petition. It has, however, been clarified by the respondents that the provisions of Rule 2 (ca) are not attracted to the present case.

(3.) MR. Tulzapurkar, learned counsel appearing for the petitioner has not pressed the challenge to the vires of Rule 2 (ca) as it has been fairly conceded by the respondents that this rule has no application for the present case. The learned counsel, however, strongly submitted that the pay loader is a vehicle not adapted for use upon the roads and therefore, it is outside the scope of Section 2 (b) of the Vehicle Tax Act and hence, not within the ambit of charging section. Section 3 (2) of the Vehicle Tax Act provides that subject to the other provisions of the Act, there shall be levied on motor vehicles used or kept for use within the State, a tax at the rate specified under the Schedule. It is evident that tax is chargeable on using or keeping for use a motor vehicle adapted for use on roads. The question is whether pay loader is a motor vehicle adapted for use on roads. Section 3 (28), (2 (28)) of the Motor Vehicles Act defines the "motor Vehicle" or "vehicle" to mean any mechanically propelled and 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 special type adapted for use only in a factory or in any other enclosed premises or vehicle having less than four wheels fitted with engine capacity of not exceeding twenty five cubic centimetres. The definition of motor vehicle has been considered by the Supreme Court in M/s. Central Coal Fields Ltd. v. State of Orissa reported in AIR 1992 SC 1371, where the Court after tracing the legislative history and the decisions commencing from M/s. Bolani Ores Ltd. . v. State of Orissa reported in (1974)2 SCC 777 : (AIR 1975 SC 17) repelled argument of the mine owners who used dumpers within their mining premises to the effect that the dumpers are vehicles not adapted for use upon roads and, therefore, are outside the Taxation Act and held that these dumpers run on tyres in marked contrast to chain plates like caterpillars or military tanks. It was also held that by the use of tyres, it is evident that they have been adapted for being used on roads, which means that they are suitable for being used on public roads and on the mere fact that they are required at places to run at a particular speed is not to detract from the position otherwise clear that they are adapted for use on roads. The very nature of these vehicles makes it clear that they are not manufactured or adapted for use only in factories or enclosed premises. The mere fact that the dumpers or rockers are heavy and cannot move on the roads without damaging them does not mean that they are not suitable for use on roads. The word "adapted" in the provision was read as "suitable" in Bolani Ores case by interpretation on the strength of language in Entry 57 List II of the Constitution.