Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
THE CHIEF GENERAL MANAGER, JAGANNATH & ORS.
Vs.
RESPONDENT:
THE STATE OF ORISSA & ANR.
DATE OF JUDGMENT: 20/09/1996
BENCH:
G.B. PATTANAIK (J)
BENCH:
G.B. PATTANAIK (J)
MUKHERJEE M.K. (J)
MUKHERJEE M.K. (J)
KURDUKAR S.P. (J)
RAMASWAMY, K.
ACT:
HEADNOTE:
JUDGMENT:
THE 20TH DAY OF SEPTEMBER, 1996
Present:
Hon’ble Mr. Justice K. Ramaswamy
Hon’ble Mr. Justice G.B.Pattanaik
Shanti Bhushan, Gopal Subramaniam, Sr.Advs., Sanjit
Mohanty, H.Munshi, Ahip Sachthey and C.D.Singh, Advs. with
them for the Petitioners
P.N.Misra, Adv. for the Respondent
J U D G M E N T
The following Judgment of the Court was delivered:
PATTANAIK, J.
This Special Leave Petition is directed against the
judgment of the Division Bench of the Orissa High Court
dated 10.4.1996 passed in Original Jurisdiction case No. 811
of 1996. The question for consideration before the Orissa
High Court was whether the Dumpers belonging to the
petitioner Which are used within the mining areas are
taxable as Motor Vehicle under the provisions of Orissa
Motor Vehicles Taxation Act (referred to as "The Taxation
Act"). The Orissa High Court relying upon the decision of
this Court in the case of Central Coal Fields Ltd. vs. State
of Orissa & Batch - 1992 Supl. (3) SCC 133 dismissed the
Writ Petition. When the present application was listed for
admission, the same was dismissed by us. But since Mr.
Shanti Bhushan, learned senior counsel appearing for the
petitioners had re-argued the matter at length for a
considerable period and contended that the decision of this
Court in Central Coal Field’s case (supra) has not
application we had indicated that a reasoned order will
follow and hence the reasons are being given for dismissing
the Special Leave Petition.-
Under Section 3 of the Taxation Act, tax shall be
levied on every motor vehicle used or kept for use within
the State at the rate specified in the Schedule.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
The expression "Motor Vehicle" means any wheeled
conveyance which is propelled mechanically is a motor
vehicle if it is adapted for use upon the road irrespective
of whether the power of propulsion is transmitted thereto
from an internal or external 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 a factory
or in any other enclosed premises Because of the latter part
of the definition of Motor Vehicles, the petitioner had made
out the case before the Orissa High Court that the dumpers
in question are so heavy that they cannot move on the public
road and, therefore, are not taxable under the Taxation Act
but the High Court had negatived the said contention.
Mr. Shanti Bhushan, learned senior counsel reiterated
the same arguments in this Court and essentially raised two
contentions:-
(1) the Dumpers which have been
taxed under the Taxation Act are
used only within the mining areas
and are not capable of being used
in the public roads and, therefore,
cannot be held to be Motor Vehicles
and consequently are not taxable
under the Taxation Act.
(2) secondly, the learned senior
counsel argued that the tax on
vehicles being compensatory in
nature, levy of such tax can be
sustained only on the ground that
the vehicles used the roads for
which tax is levied. If the vehicle
in question did not use the roads
and yet tax is levied on the same,
the said levy is liable to be
struck down.
In elaborating the first argument Mr. Shanti Bhushan
took us through some of the provisions of the Motor Vehicle
Rules which prescribe the dimension of such vehicle in the
matter of width, length or height and which prohibits the
vehicles beyond such dimensions to be used on public roads.
In this connection the learned senior counsel brought to our
notice Rules 92 and 93 of the Motor vehicles Rules
(hereinafter referred to as "the Rules’ which are quoted
hereinbelow in extenso:-
RULE 92
GENERAL: (1) No person shall use or
allow to be used in any public
place any Motor vehicle which does
not comply with the provisions
of this Chapter.
(provided that nothing contained in
this rule shall apply to vehicles
manufactured prior to the coming
into force of the Central Motor
Vehicles (Amendment) Rules, 1993)
Nothing in this Rule shall apply to
a motor vehicle-
(a) which has been damaged in an
accident or to a vehicle stopped or
impeded owing to shortage of fuel
or other temporary defects while at
the place at which the accident or
defect occurred;
(b) which is defective or damaged
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
and is being removed to the nearest
place or repair or disposal or
(c) which is more than fifty years
old from the date of its
registration and is being driven
for taking part in a vintage car
rally:
Provided that where a motor vehicle
can no longer remain under the
effective control of the person
driving, the same shall not be used
in a public place except by towing.
Overall dimension
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, shall
not exceed;
(i) in the case of a motor vehicle,
other than a transport vehicle, 2.5
metres;
(ii) in the case of a transport
vehicle, 2.7 metres.
EXPLANATION:
For purposes of this Rule, a rear
view mirror, or guard rail or a
direction indicator when in
operation) shall not be taken into
consideration in measuring the
overall width of a motor vehicle.
(2) The overall length of a motor
vehicle other than a trailer, shall
not exceed,-
(i) in the case of motor vehicle
other than a transport vehicle
having not more than two axles, 9.5
metres;
(ii) in the case of a transport
vehicle with rigid frame having two
or more axles,, 11.25 metres;
(iii) in the case of an articulated
vehicle having more than two exles,
16 metres;
(iv) in the case of truck trailer
or tractor trailer combinations, 18
metres.
(3) In the case of an articulated
vehicle or a tractor trailer
combination specially constructed
and used for the conveyance of
individual load of exceptional
length,-
(i) if all the wheels of the
vehicle are fitted with pneumatic
tyres, or
(ii) if all the wheels of the
vehicle are not fitted with
pneumatic tyres, so long as the
vehicle is not driven at a speed
exceeding twenty five kilometres
per hour, the overall length shall
not exceed 18 metres.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
EXPLANATION
For the purposes of this Rule
"overall length" means the length
of the vehicle measures between
parallel planes passing through the
extreme projection points of the
vehicle exclusive of -
(i) a starting handle;
(ii) any hood when down;
(iii) any fire-escape fixed to a
vehicle;
(iv) any post office letter-box,
the length of which measures
parallel to the axis of the
vehicle, does not exceed 30
centimetres;
(v) any ladder used for loading or
unloading from the roof of the
vehicle or any tail or indicator
lamp or number plate fixed to a
vehicle;
(vi) any spare wheel or spare wheel
bracket or bumper fitted to a
vehicle;
(vii) any towing hook or other
fitment which does not project
beyond any fitment covered by
clauses (iii) to (vi).
(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 motor vehicle,
shall not exceed 3.8 metres;
(ii) in the case of a double-decked
motor vehicle, shall not exceed
4.75 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.
(5) The overhang of a tractor shall
not exceed 1.85 metres.
(6) The overhang of the motor
vehicle other than a tractor shall
not exceed 60% of the wheel base.
Explanation I. - For the purpose of
this rule "wheel base" means,-
(a) in the case of vehicles with
only two axles, the distance
measured horizontally and parallel
to the longitudinal axis of the
vehicle, between the centre points
of the front axle and rear axle;
(b) in case of vehicle having only
three axles, and the front axle is
only the steered axle, the distance
measured horizontally and parallel
to longitudinal axis of the vehicle
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
between the centre of the front
axle and centre point between the
two rear-axles;
Explanation II. - For the purpose
of this Rule, "overhang" means the
distance measured horizontally and
parallel to the longitudinal axis
of the vehicles between two
vertical planes at right angles to
such axis passing through the two
points specified hereunder :
(A) The rearmost point of the
vehicle exclude of-
(i) any hood when down;
(ii) any post office letter-box,
the length of which measured
parallel to the longitudinal axis
of the vehicle, does not exceed
thirty centimetres;
(iii) any ladder forming part of a
turnable fire-escape fixed to a
vehicle;
(iv) any ladder used when the
vehicle is at rest for loading or
unloading from the roof of the
vehicle, or any tail lamp or number
plate fixed to a vehicle;
(v) any spare wheel or spare wheel
bracket fitted to a vehicle;
(vi) any language carrier fitted to
a motor vehicle constructed solely
for carriage of passengers and
their effects and adapted to carry
not more than seven passengers
exclusive of the driver;
(vii) any towing hook or other
fitment which does not project
beyond any fitment mentioned in
clauses (ii) to (iv);
(viii) any mounted implement on a 3
point linkage of a tractor;
provided that in the case of a
stage carriage:-
(a) the projection of any bumper or
advertisement panel fitted at the
rear of the vehicle shall not
exceed fifteen centimetres;
(b) the projection in respect of an
advertisement panel shall not be
such as to obstruct either the
vision from the rear mirror or
project through the emergency exist
at the rear or both;
(B) (i) in the case of a vehicle
only two axles, one of which is not
a steering axle, the centre point
of that axle; or
(ii) in the case of a vehicle
having only three axles and front
axle is the only steering axle; The
centre point of the rear most axle;
(iii) in the case of any vehicle
registered in India before the
commencement of these rules it
shall suffice if the overhang does
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
not exceed 7/24ths of the overall
length of the vehicle;
(iv) in the case of a motor vehicle
having only three axles where two
front axles are steering axles, the
centre point of the rearmost axle;
(v) in the case of a motor vehicle
having four axles, where two front
axles are steering axles, a point
102 millimetres in rear of the
centre of a straight line joining
the centre points of the rearmost
two axles;
(vi) in any other case a point
situated on the longitudinal axis
of the vehicle such that a line
drawn from it at right angle to
that axis will pass through the
centre of the minimum turning
circle of the vehicle.
(7) No part of the vehicle other
than a direction indicator, when in
operation, or a driving mirror,
shall project laterally more than
355 millimetres beyond the centre
line of the rear wheel, in the case
of single rear wheels, or more than
152 millimetres beyond the extreme
outer edge of the outer tyres, in
the case of dual rear wheels;
Provided that in case of
agriculotural tractors lateral
projection upto 700 millimetres
beyond the central line of the rear
wheel shall be permitted.
Provided that the State Government
or any authority authorised in this
behalf by the State Government, if
it is satisfied that it is
necessary because of the nature of
any road or bridge or in the
interest of public safety, may
prohibit or restrict the operation
of a motor vehicle in a specified
route or area unless such vehicle
complies with the requirements
specified by the State Government
for such route or area,
(8) No motor vehicle shall be
loaded in such a manner that the
load or any part thereof extends,-
(i) laterally beyond the side of
the body;
(ii) to the front beyond the
foremost part of load body of the
vehicle;
(iii) to the rear beyond the
rearmost part of the vehicle;
(iv) to a height beyond the limits
specified in sub-rule (4):
Provided that clause (iii) shall
not apply to a goods carriage when
loaded with any pole or rod or
indivisible load so long as the
projecting part or parts do not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
exceed the distance of one metre
beyond the rearmost point of the
motor vehicle."
According to Mr. Shanti Bhushan, learned senior
counsel, since the dimension of the dumpers in question
exceed the permissible dimensions under the aforesaid Rules,
there is an embargo for the dumpers to be used on public
roads and as such, the vehicle cannot be taxed under the
Taxation Act. We are unable to persuade ourselves to agree
with the submission of the learned senior counsel for the
petitioner. The crux of the question is whether the bumper
is a motor vehicle and whether the vehicle attracts the
liability of tax under Section 3 of the Taxation Act? The
very question came up for consideration before this Court in
the case of Central Coal Fields Ltd. vs. State of Orissa &
batch (supra) wherein the various provisions of the Orissa
Motor Vehicles Taxation Act was under consideration and the
vehicles which had been taxed under the Taxation Act in the
said case were dumpers and rockers. This Court after tracing
the legislative history and the decisions of this Court
commencing from Bolani ores Ltd. State of Orissa- (1974) 2
SCC 777, 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 scope of 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 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 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 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. On the
fact situation, therefore, it must be held that Dumpers and
Rockers are vehicles adapted or suitable for use on roads
and being motor vehicles per se, were liable to taxation on
the footing of their use or kept for use on public roads.
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 or, 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 & Ors. vs. Chowgule & Co. Pvt.
Ltd. & Ors.- 1992 Sup. (3) Supreme Court Cases 141. 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.
vs. State of Orissa - 1992 Suppl. (3) SCC 133 held the mere
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
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.
The dumpers in question which have been levied under
the Taxation Act run on tyres as is apparent from the letter
to the Automative Research Association of India dated 25th
January 1993 which has been annexed as Annexure ‘C’ to this
Special Leave Petition but the tyres are of higher load
carrying capacity from the certificate given by Hindustan
Motors which has been annexed as Annexure ‘D’ to this
Special Leave Petition. It appears that the reasons which
impelled the manufacturer to give the certificate that the
vehicles are not meant for plying on highway are -
(i) Culverts and bridges on
highways are generally not designed
to take care of such axle loads
continuously;
(ii) The vehicles cannot run at
reasonable speed on highway and
hence obstruct the flow of normal
traffic;
(iii) Width and height of the
equipment will adversely affect the
traffic and minimum preferable
width of the road required for
plying these vehicles is 50 ft.
(iv) The vehicles are fitted with
specially designed heavy duty tyres
and the heat generation is much
more and generally cannot be run
for more that about 5 kms. at one
stretch which is not so in case or
normal conventional hauling units
which ply on highways.
On these facts it is difficult for us to hold that the
vehicles are not adapted or suitable or capable of being
used on public roads, even though for most of the time it
might actually being used within the mining areas on the
roads prepared by the mining owners. Following the two
earlier judgments of this Court in Central Coal Fields Ltd.
(supra) and Union of India vs. Chowgule & Co. (supra) we
hold that the dumpers in question are motor vehicles and are
taxable within the ambit of the Taxation Act.
Coming now to the second argument of Mr. Shanti
Bhushan, learned senior counsel which is on the question of
compensatory nature of the Act it is to be seen that in the
very decision in Central Coal Fields Limited vs. of Orissa
(supra) it was held:
"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
vehicles per se, as held in Bolani
Ores case (supra) were liable to
taxation on the footing of their
use or kept for use on public
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
roads; the network of which, the
State spreads, maintains it and
keeps available for use of motor
vehicles and hence is entitled to a
regulatory and compensatory tax."
The tax imposed on the motor vehicles is basically a
tax for the use of the roads within the State. It is no
doubt a compensatory tax which facilitates trade, commerce
and intercourse within the State by providing roads and
maintaining roads in a good state of repairs. As has been
held by this Court in Automobile Transport Ltd. vs. State of
Rajasthan & Ors. (1963) 1 SCR 491, it would not be right to
say that the tax is not compensatory because the precise or
specific amount collected is not actually used in providing
any facilities. If a statute fixes a charge for a
convenience or service provided by the State or an agency of
the State, and imposes it upon those who choose to avail
themselves of the service or convenience, or who can use the
services provided for, the imposition assumes the character
of remuneration or consideration charged in respect of an
advantage sought or received or advantage which can be
received. The mere fact that any particular individual
though can take advantage of the convenience of the services
provided by the State but for some reason or the other
chooses rot to enjoy the services provided cannot escape the
taxing liability on that score not can the provision
imposing the tax become invalid on that score. Such levy of
tax for keeping a motor vehicle for use on the public roads
or which is capable of being used on the public roads are no
doubt compensatory taxes but does not violate provisions of
Article 301 of the Constitution of India.
Mr. Shanti Bhushan, learned senior counsel appearing
for the petitioners strongly relied upon the decision of the
Division Bench of the Orissa High Court in the case of Steel
Authority of India td. vs. the State of Orissa in Original
Jurisdiction case no. 847 of 1991 disposed of by a judgment
dated 18.6.92, wherein the Orissa High Court had held that
the vehicles kept by the Steel Authority of India for being
used within its premises are not liable to pay tax under the
Orissa Motor Vehicle Taxation Act. But the very decision has
been reversed by this Court in Regional Transport Officer-
cum-Taxing Authority, Rourkela & Ors. 1995 (4) SCC 165
wherein it was held that the vehicle in question kept by the
Steel Authority of India are taxable under the Motor Vehicle
Taxation Act but the matter was remitted on an enquiry on
which item of the Schedule the levy in question will remain.
In the premises, as aforesaid, the dumpers belonging to
the petitioners are taxable as held by the Orissa High Court
and we see no infirmity in the said judgment.