Full Judgment Text
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PETITIONER:
CENTRAL COAL FIELDS LTD
Vs.
RESPONDENT:
STATE OF ORISSA AND ORS.
DATE OF JUDGMENT29/04/1992
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
RAMASWAMY, K.
CITATION:
1992 AIR 1371 1992 SCR (2) 982
1992 SCC Supl. (3) 133 JT 1992 (3) 77
1992 SCALE (1)984
CITATOR INFO :
F 1992 SC1376 (3,5)
ACT:
Bihar and Orissa Motor Vehicles Taxation Act,
1930/Orissa Motor Vehicles Tax Act, 1975:
Section 2(c) and 6/2(b)-‘Motor Vehicle’-Amendment to
the definition-Restrospective application-Whether valid-
Dumpers Rockers etc.-Whether motor vehicles are liable to
taxation.
HEADNOTE:
The appellant companies were engaged in mining
activities and for this purpose put to use a variety of
machinery including Dumpers and Rockers, within their
leasehold areas. The appellants were asked by the State
Government to register the said machines as vehicles under
the Motor Vehicles Act, 1939 and to pay tax under section 6
of the Bihar and Orissa Motor Vehicles Taxation Act, 1930,
as also under the Madras Vehicles (Taxation) Act, 1931. In
section 2(c) of the Taxation Act and in the charging section
6, the definition of ‘Motor Vehicle’ referred to the
definition of ‘Motor Vehicle’ under the Motor Vehicles Act.
In Bolani Ores Ltd. Etc. v. State of Orissa, [1975] 2
SCR 138, this Court held that the definition of ‘Motor
Vehicle’ as existing prior to the 1956 amendment would be
applicable as that was the one which stood incorporated in
the Taxation Act. With this, the Dumpers and Rockers went
out of the tax net though they were registrable under the
Act, and the Tractairs were neither registrable under the
Motor Vehicles Act nor taxable under the Taxation Act.
Anticipating a spate of refund applications as a result
of the abovesaid decision, the Government of the respondent
State promulgated the Orrissa Motor Vehicles Taxations Laws
(amendment) Ordinance, 1975. The purpose of the Ordinance
was not only to kill the demand for refund of tax but also
to keep exigible tax under the Taxation Act, with
retrospective effect.
983
The claims of refund got wiped out by the Ordinance.
Fresh demands of tax were made from the appellants and
claims for refund of tax involved in the earlier litigation
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were rejected. Appellants moved the High Court challenging
the Ordinance and the consequent action. Meanwhile the
Orissa Motor Vehicles Taxation Act, 1975 was passed
replacing the Ordinance. the challenge to the 1975 Act and
the retrospectivity thereof was turned down by the High
Court. Aggrieved against the High Court’s judgment, the
appellants have preferred the present appeals by special
leave.
On behalf of the the appellants, it was contended that
the Dumpers and Rockers were vehicles not adapted for use
upon roads and therefore outside the scope of section 2(b)
of the 1975 Act and hence not within the ambit of the
charging section.
Dismissing the appeals, this court,
HELD : 1. The High Court was right in concluding that
Dumpers and Rockers are vehicles adapted or suitable for use
on roads and being motor vehicles per se, as held in Bolani
Ores case, were liable to taxation on the footing of their
use or kept for use on public roads; the network of which,
the State spreads, maintains it and keeps available for use
of motor vehicles and hence entitled to a regulatory and
compensatory tax. [991 A, B]
2. On the basis of materials available on record, it is
seen that Dumpers in some States are granted permission to
run on public roads at a speed not exceeding 16 kms. per
hour and on bridges and culverts at a speed not exceeding 8
kms. per hour. Thus they have a minimum weight and safe
laden weight fixed on some principles. Pictures of various
types of Dumpers also indicate prominently one factor that
these Dumpers run on tyres, in marked contrast to chain
plates like cater pillers or military tanks. By the use of
rubber tyres it is evident that they have been adapted for
use on roads, which means they are suitable for being used
on public roads. 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. They very nature of these vehicles make 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 is not to say that they are not
suitable for use on roads. The word ‘adapted’ in the
provision
984
was read as ‘suitable’ in Bolani Ores case by interpretation
on the strength of the language in Entry 57, List II of the
Constitution. Thus it cannot be said that Dumpers and
Rockers were neither adaptable nor suitable for use on
public roads. [990 D-H]
Bolani Ores Ltd. etc. v. State of Orissa etc., [1975] 2
SCR 138, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 868 of
1977.
From the Judgment and Order dated 30.8.1976 of the
Orissa High Court in O.J.C. No. 1222 of 1975.
WITH
Civil Appeal Nos. 385, 2169 & 2170 of 1977.
V.R. Reddy, Addl. solicitor General, Ashok K. Sen,
Narasimha P.S., Anip Sachthey, H.K. Puri, Ms. Sunita
Chatterjee, G.S. Chaterjee (NP), C.L. Kalia for S.R. Grover
(NP), R.K. Mehta and R.K. Maheshwari for the appearing
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Parties.
The Judgment of the Court was delivered by
PUNCHHI, J. These four appeals by special leave have
roots in Bolani Ores Ltd. etc. v. State of Orissa etc.
[1975] 2 SCR 138. These are directed against the common
judgment of the High Court of Orissa dated 30th August, 1976
passed in Original Jurisdiction Cases Nos. 1266, 1267, 1222
and 1166 of 1975. Since the appellants have a common cause,
these appeals can conveniently be disposed of by a common
judgment without resorting to individual facts of each case.
The appellants are limited companies engaged in mining
activities in the State of Orissa. They hold large tracts
of land in that State for the purpose. They have earmarked
or enclosed these areas by various means, such as putting up
of boundary pillars, erection of check-gates, digging of
trenches, etc. They have also constructed approach roads in
those areas to facilitate their mining operations. No
member of the public is allowed to enter those lease-hold
premises without prior permission. In order to carry out
their activities the appellants put to use machinery within
their lease-
985
hold areas, of a variety. But instantly we are concerned
directly with two of them, i.e., Dumpers of various
denominations, and Rockers, which seemingly are similar to
Dumpers but are heavier than those. Dumpers and Rockers,
are known to carry bulk goods, building materials, mining
products, agricultural and forestry products, earth, bricks,
concrete, mortar, etc., their structure being of a simple
design and easy to handle. Tripping is performed by
releasing the locking device retaining tipping body. The
Dumper requires no more than a few seconds for the emptying
of its tipping body and gives no trouble to the driver when
being operated on uphill or downhill roads, with its load
with its load unbalanced or when the load refuses to slide
out easily. The description of the aforesaid machines have
been taken from Bolani Ores case.
Somewhere in the year 1961, the appellants, in one form
or the other, were asked by the State of Orissa through its
officers to register their aforesaid machines as vehicles
under the Motor Vehicles Act, 1939 (hereinafter referred to
as ‘the Act’) and to pay tax under Section 6 of the Bihar
and Orissa Motor Vehicles Taxation Act, 1930 (hereinafter
referred to as ‘the Taxation Act’), as amended up-to-date.
Similar demands were made in areas which stood transferred
to the State of Orissa from the Presidency of Madras, where
a sister enactment, known as the Madras Vehicles (Taxation)
Act, 1931, as amended up-to-date was applicable, on the same
lines, and at par with the Taxation Act. (Henceforth
reference to the Taxation Act shall mean reference to both
the statutes). Not only for the afore-mentioned types of
vehicles were the appellants asked to seek registration
under that Act and to pay tax under the Taxation Act,
similar demands were made for other vehicles in their
possession and use, with which we are presently not
concerned. Suffice it to mention that at some stage or the
other uptill the stage of the High Court, there were some
vehicle to which the State of Orissa conceded that the
provisions of one or the other Act did not apply and to
others it was judiciously held not to apply. It is the
remaining types of vehicles which gave cause to this Court
to pronounce upon their nature in Bolani Ores case in the
context of the statutes. This Court ruled that Dumpers and
Rockers though registrable under the Act were not taxable
under the Taxation Act as long as they are working solely
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within the premises of the respective owners. So far as
Tractairs were concerned, this Court ruled that they are
neither registrable under the Act nor taxable under the
Taxation Act. The question about the constitutional
validity of the Taxation Act, then raised by Bolani Ores
Ltd.
986
(one of the appellants herein) was not dealt with because it
was considered academic.
As has been the legislative history, the Act and the
Taxation Act have always been complementary or
interconnected. The taxation Act has from time to time by
amendments been incorporating by reference the provisions of
the Act. In Section 2(c) of the Taxation Act and sequally
to the charging Section 6, the definition of ‘Motor Vehicle’
referred to the definition of ‘Motor Vehicle’ under the Act.
The point which arose in Bolani Ores case was; whether the
legislature had intended to incorporate the definition of
the expression ‘Motor Vehicle’ under the Act, as it then
existed, or as it may exist from time to time? It would
facilitate understanding to juxtapose the pre-amendment
provision and the post-amendment provision:-
------------------------------------------------------------
Section 2(18) before amendment. Section 2(18) after
amendment by Act 100
of 1956
--------------------------------------------------------------
"motor vehicle" means any |"motor vehicle" means any mechanically
Mechanically propelled vehicle|propelled vehicle adapted for use upon
adapted for use upon roads wh-|roads whether the power of propulsion is
ether the power of propulsion| transmitted thereto from an external
is transmitted thereto from an|or internal source and includes a
external or internal source |chassis to which a body has not been
and includes a chassis to |attached and a trailer; but does not
which a body has not been |include a vehicle running upon fixed
attached and a trailer; but |rails or a vehicle of a special type
does not include a vehicle run|adapted for use only in a factory or
-ning upon fixed rails or used|in any other enclosed premises.
solely upon the premises of |
the owner. |
|
-----------------------------------------------------------------------
Since the debate before this Court was as to which of
the two definitions was part of the Taxation Act, which
might govern the demands created, this Court clearly held
that the definition of ‘Motor Vehicle’ as existing prior to
the 1956 amendment would be applicable, as that was the one
which stood incorporated in the Taxation Act. On the basis
of that view the decision was thus made applying the pre-
amendment definition. This Court held:-
"From the very nature of the area operated by these
three companies it is obvious that the machines
which are the subject matter of these appeals must
be working in their respective
987
mining areas. The mere fact that there is no fence
or the barbed wire around, the lease-hold premises
is not conclusive. There is evidence to show that
the public are not allowed to go inside without
prior permission, there are gates and a check on
ingress and egress is kept by guards who also
ensure that no unauthorised persons have access to
the mining area, all of a which indicate that the
respective mining area all of which indicate that
the respective mining areas are enclosed premises
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within the meaning of the exceptions under Section
2(c) of the Taxation Act."
This took out Dumpers and Rockers from the taxation net
though they were held registrable under the Act. The
Tractairs were held neither registrable under the Act nor
taxable under the Taxation Act because those were also not
adapted to use for the carriage of goods solely or in
addition to passengers, or put as a public service vehicle
within the meaning of Section 2(25) of the Act. This Court
went on to observe as follows:-
"In so far as the Act is concerned, having regard
to the fact that the dumpers and rockers are motor
vehicles which are not taken out of that category,
as was the case before the amendment, they have to
be registered after the amendment and can only be
driven by persons holding a valid licence. The
tractair though it may be a motor vehicle within
the definition of that term is neither a goods
Vehicle nor a vehicle which carries passengers nor
is it being driven in a place to which public have
as a right access. As it does not perform any of
the aforesaid functions or uses it is not a vehicle
which has to be registered nor has it to be driven
only by a person who holds a licence."
Anticipating a spate of refund applications as a result
of Bolani Ores case the Governor of the State of Orissa
promulgated an Ordinance on 11.2.1975 known as the Orissa
Motor Vehicles Taxation Laws (Amendment) Ordinance, 1975.
The purpose of the same was not only to kill the demand for
refund of tax but also to keep exigible tax under the
Taxation Act and that too with retrospective effect.
Section 2(c) of the Taxation Act defining ‘motor vehicle’
was, therefore, substituted by making the following
provision:-
"Notwithstanding anything in any judgment or order
of any Court, ‘Motor Vehicle’ means any
mechanically propelled
988
vehicle adapted for use upon roads whether the
power is of propulsion 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."
It is plain and clear that the object of the afore-
amendment was to legislate retrospectively on the subject
directly instead of by incorporation as done earlier in
Section 2(c) so as to bring uniformally the post-amendment
effect of Section 2(18) of the Act. Undeniably the claims
of refund due as a result of Bolani Ores case and under
other decisions of the High Court following Bolani Ores case
got wiped out by the amending Ordinance. On the
resurrection of the tax liability, fresh demands of tax were
made from the appellants and prayer for refund of the tax
involved in the earlier litigation were rejected. This gave
cause to the appellants to move the High Court challenging
the action and the Ordinance. In the meantime the Orissa
Motor Vehicle Taxation Act 39 of 1975 was passed replacing
the Ordinance, becoming an Act on 3.10.1975. This was an
Act to consolidate and amend the law relating to the
taxation of motor vehicles. Section 2(b) of this Act
contained the definition of ‘Motor Vehicle’ as above
noticed, which is identical with the post amendment
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definition of ‘Motor Vehicle’ in Section 2(18) of the Act.
The claims of the appellants before the High Court
were:-
(a) For declaring that the amending Taxation Act is
ultra vires, inoperative and invalid;
(b) For injuncting the opposite parties from imposing
any tax on the petitioners’ Dumpers, Rockers, etc. and from
realising the same in purported exercise of their powers
under the impugned Amending Taxation Act; and
(c) For refund of tax paid under protest for the period
from 1.10.1974 to 31.3.1975.
All the asked for reliefs were declined by the High
Court. The High Court relied on the penultimate paragraph
of the judgment in Bolani Ores case to conclude that this
Court had indirectly decided that Dumpers and
989
Rockers, if brought upon public roads would be liable to be
taxed even under the pre-amended provisions. In other
words, what the High Court meant was that as long as Dumpers
and Rockers kept working solely within the premises of the
respective owners they did not come within the grip of the
Taxation Act. But if and when they would get to public
roads, they would be taxable under the Taxation Act; since
registrable they otherwise were. The High Court took the
view that the onus lay on the appellants to establish that
Dumpers and Rockers in question were not suitable for use on
the public roads. The High Court also viewed that since no
material had been place before them to establish this
particular, and no claim had even been laid that these
vehicles could not operate on public roads, the contention
of the appellants that the vehicles were not liable for
taxation being not adapted or fit or suitable for use on the
roads was devoid of merit. The High Court also held that
the amending Taxation Act was within the legislative
competence of the State legislature, which was empowered to
impose taxes, regulatory and compensatory in nature, no
vehicles which are suitable for use on public roads. The
challenge to retrospectivity of the impugned Act was also
turned down.
Learned counsel for the appellants in these appeals
have not challenged the view of the High Court regarding
vires of the impugned Act before us or to its
retrospectivity but have addressed us only on the fact
situation to contend that the Dumpers (with includes
Rockers) are vehicles not adapted for use upon roads and,
therefore, they are outside the scope of Section 2(b) of the
impugned Taxation Act, 1975 and hence not within the ambit
of the charging Section. Section 3(1) provides that subject
to the other provisions of the Act, on and from the date of
commencement 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
the tax is chargeable on using or keeping for use a motor
vehicle; a motor vehicle adapted for use on roads. Now it
has to be seen whether Dumpers and Rockers are motor
vehicles adapted for use on roads.
Reverting back to Bolani Ores case, it would be found
that the pre-amendment definition of Section 2(18) conveyed
that though they were motor vehicles as such, within the
meaning of the first part of the definition, but nonetheless
were not so because of their specified user, i.e., if they
were used solely upon the premises of the owner. It would
also found that
990
under the post-amendment definition, though a motor vehicle
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may be adapted for use upon roads, nonetheless in order to
be taken out of the category it had further to be adapted
for use only in a factory or in any other premises. But
here no new facts have been pleaded by the appellants before
the High Court as to how the Dumper/Rocker was a vehicle of
a special type, adapted for use only in a factory or in any
other premises. When Dumpers and Rockers were held
registrable by this Court under the ACt, it commended to
this Court to hold that Dumpers and Rockers were definedly
motor vehicles adapted for use upon roads, as otherwise they
would have been held not so within the meaning of ‘motor
vehicle’. Rather the case of Bolani Ores (one of the
appellants before us) then pointedly pleaded was that
Dumpers were used for transporting ore from the mining faces
to the crushing and screening plant or from head mine stock
pile to near railway siding. Dumpers were thus shown to be
vehicle engaged in the transport of goods.
It would be appropriate now to mention that some
documentary material was sent to us by the appellants by
means of an affidavit after we had reserved judgment. That
material is suggestive of the fact that Dumpers in some
States are granted permission to run on public roads at a
speed not exceeding 16 kms. per hour and on bridges and
culverts at a speed not exceeding 8 kms. per hour. From
this it is suggested that they have a minimum weight and
safe laden weight fixed on some principles. Pictures of
various types of Dumpers have also been sent to us which
indicate prominently one factor that these Dumpers run on
tyres, in marked contrast to chain plates like cater pillers
or military tanks. By the use of rubber tyres it is evident
that they have been adapted for use on roads, which means
they are suitable for being used on public roads. 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 make 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 as suggested are
heavy and cannot move on the roads without damaging them is
not to say 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 the
language in Entry 57, List-II of the Constitution. Thus on
that basis it was idle to contend on behalf of the
appellants that Dumpers and Rockers were neither adaptable
nor suitable for use on public roads.
991
Thus on the fact situation, we have no hesitation in holding
that the High Court was right in concluding that Dumpers and
Rockers are vehicles adapted or suitable for use on roads
and being motor vehicle per se, as held in Bolani Ores case,
were liable to taxation on the footing of their use or kept
for use on public roads; the network of which, the State
spreads, maintains it and keeps available for use of motor
vehicles and hence entitled to a regulatory and compensatory
tax. (Exemptions claimable apart). The appellants,
therefore, in our view, have no case for grant of any relief
in these appeals.
For the foregoing reasons, these appeals fail and are
hereby dismissed with costs.
G.N. Appeals dismissed.
992