TMI Blog1974 (9) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to as 'the Taxation Act') does not fall for determination as that would be purely academic. The two Civil Appeals Nos. 1816 of 1968 and 1817 of 1968 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 s. 22 of the Indian Motor Vehicles Act-hereinafter referred to as 'the Act', and cannot, therefore, be taxed under s. 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 Bulldozers, (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 s. 2 (18) of the Act, and were therefore liable for registration under s. 22 of the Act as well as payment of taxes under the Taxation Act. Against this decision, First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax under the Taxation Act. In these appeals intervention of M/s. Chougle 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. 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 Art. 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 capable of use in any other place for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' for the purposes of the Taxation Act. It may be pointed out that s. 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 s. 2(18) of the Act having been redefined, 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 ss. 2 to 8 of the said Act, as the Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or adapted for use on public roads nor are ever used by the plaintiffs on public roads or public places. Secondly, the relief asked for is that the machines in possession of the plaintiffs as described above for the purpose of working in the mines and removing over burdens are not liable for registration and consequent payment of taxes under the Taxation Act. Thirdly, the written statement clearly comprehends what the plaintiffs' case is. It is categori- cally stated in para 4 that the various types of machines enumerated in para 2 of the plaint being mechanically propelled vehicles come within the definition of motor vehicles as contained in section 2(18) of the Act since they do not come under the exceptions provided therein. It is incorrect to say that these vehicles are neither intended nor adapted for use on public roads, nor are ever so used by the plaintiffs on public roads or public places. On the contrary the places where the aforesaid machines are operating are public places within the meaning of section 2(24) of the Motor Vehicles Act since the public are granted the right of access to the same for transacting day to day business. Fourthly, issues Nos. 4 and 5, vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post amendment definition would be such as would not be considered to be adapted for use upon roads. The position is the same with respect to the Motor Vehicles Taxation Acts of other States also. We have seen the Mysore Motor Vehicles Taxation Act, 1957, which though does not define motor vehicle ' as such, nonetheless under s. 2(j) states that words and expressions used but not defined in the Act shall have the meanings assigned, to them in the Motor Vehicles Act, 1939. It also says that the Mysore General Clauses Act, 1899 (Mysore Act III of 1899) shall apply for the interpretation of the Act, as it applies for the interpretation of a Mysore Act. 'Section 3 is the taxing provision which provides that a tax at the rates specified in Part A of the Schedule shall be levied on all motor vehicles suitable for use on roads, kept in the State of Mysore. In the Andhra Pradesh (Andhra Area) Motor Vehicles Taxation Act, 1931, s. 2(i) states that the expressions mentioned in clauses (a) to (f), of which clause (d) refers to 'motor vehicle', shall have the meanings assigned to them in the Motor Vehicles Act, 1939. It is also pertinent to mention that the Andhra Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent legislative power in entry 35 of List III of the Seventh Schedule to the Constitution. Entry 57 of List II empowers legislation in respect of taxes on vehicles, whether mechanically propelled or not,suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III. The power exercisable under entry 57 is the power to impost taxes which are in nature of regulatory and compensatory measures. The regulatory and compensatory nature of the tax is that the taxing power should be exercised to impose taxes on motor vehicles which use the roads in the State or are kept for use thereon either throughout the whole area or parts thereof and are sufficient to make and maintain such roads : See The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and others.( [1963] 1 S. C. R. 491.) In this case, the earlier decision in Atiabari Tea Company Ltd. v. The State of Assam and others ([1961] 1 S. C. R. 809.) was considered. Since the taxing statute is a regulatory or compensatory statute, it is contended that the provisions of ss. 6B, 7, 9A of the Taxation Act relate only to the actual use of the public road. It is pointed out that s. 6 of the Taxation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acts do not come into conflict with the existing law in respect of any principles of taxation, but only deal with a subject-matter which is exclusively within the legislative competence of the State Legislature. It is contended that having regard to the nature of the vehicles question they are particularly suitable for the functions they are performing and unsuitable for the roads on which they would be only a source of damage, inconvenience, danger and uneconomical compared with the other vehicles usually utilised for transport of goods. Accordingly it is submitted that : (1) the present case should be determined with reference to the definition of 'motor vehicle' read without the amendment in the Act, as such vehicles operating solely within the appellants' premises should not be liable to tax; (2) the vehicles not being suitable for public roads would not be either registered or taxed whether before or after 1956. Both for the purposes of registration and taxation the common question arises, viz., whether the vehicles in question are adapted for use upon roads, which, it is submitted, are public roads or roads to which public have a right of access. If they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out a tailor can neither carry passengers nor goods. In the instant case, it is said that the tractor cannot ply in a public place, nor does it ply in any other place for carrying passengers or goods. It could not evidently fall within s. 22 of the Act. Though this is so, the High Court says that because it can be adapted by attaching a tailor, it comes within s. 2(18), forgetting that what we are concerned with is a tractair without a tailor which is actually used to supply compressed air to certain plants or machines, which clearly shows that the High Court did not have a correct concept of adapted for use on road . Shri Soli Sorabji on behalf of the interveners has more or less adopted a similar line of argument and has referred us to the several dictionary meanings of the word 'adapted'. He has also referred to the English cases on this question and submitted that no vehicle cam be taxed unless it possesses the attribute of being suitable for use on roads . The expression adapted for use on roads must be construed as suitable for use on roads in the light of entry 57; otherwise, the legislation would be ultra vires the said entry, and consequently such a construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motor vehicles to which the regulations applied. In MacDonald's case([1941] S. C. (J) 27.) it was held that the dumpers were solely used in connection with road construction and were not constructed to carry goods on an ordinary highway. They were so constructed as to be capable of, and were in fact occasionally used for, carrying road-making material along short stretches of the public highway in the vicinity of the work of reconstruction. The ratio of that decision was applied to the Daley's case,(1) where Salmon, J. observed at p. 555 : In my judgment, the true effect of the Court of Justiciary's decision was that the very limited use of the dumpers on the road in that case did not establish, that they were intended or adapted for use on the road , within the meaning of those words in the Road traffic Act, 1930, s. 1. Lord Parker, C.J., though agreeing reserved his opinion by emphasising that it must not be taken as the result of this decision that dumpers of the type used in this case were not motor vehicles intended or adapted for use on the road. He indicated that he had agreed with Salmon, J., merely because there was no proof in that case that the dumpe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contexts. Sometimes It is used as an alternative to constructed - constructed or adapted, and it seems clear, and indeed it has been so held for a very long time, that adapted there means altered. On the other hand, as it was pointed out in Maddox v. Storer , it is used in other contexts in this Act, in particular when it stands alone, as clearly meaning apt or fit , in other words in an adjectival sense. Here in this context of intended or adapted my own view is, though I think it is perhaps unnecessary to decide it in this case, that adapted, used disjunctively with intended and not with the word constructed, is used in its adjectival sense. The decisions rendered on the definition of 'motor vehicle' under the English Road Traffic Act are of little help, because that definition has reference to the words intended or adapted while the element of intention has no relevance under the Act, where the word adapted alone is used. It has been urged before us that since the learned thief Justice Lord Parker had referred to the meaning of the words intended and adapted separately in the context of the English Road Traffic Act, we should take assistance fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of a.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 they are not adapted, made fit or suitable for we 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1914 which was framed to suit conditions at an early stage of development of motor transport, is no longer adequate to deal with conditions brought about by the rapid growth of motor transport in the past two decades. In the interest alike of the safety and convenience of the public and of the development of a so- called system of transport, much closer control is required than the present Act permits, and it is necessary to take powers to regulate transport. A perusal of the provisions of the Act, in the light of the objects and reasons, would justify the conclusion that it is not necessary for every vehicle registered under the Act to be also liable for payment of tax under the Taxation Act. It may be that a vehicle is registerable under the Act but not liable for tax under the Taxation Act. For instance S. 22 of the Act provides : No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered. Similarly under S. 3 of the Act No person shall drive a motor vehicle in any public place unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered or without the driver holding a licence to drive such a vehicle. 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. The question then remains as to whether these vehicles though registrable under the Act are motor vehicles for the purpose of the Taxation Act. It has already been pointed out that before the amendment vehicles used solely upon the premises of the owner, though they may be mechanically propelled vehicles adapted for use upon roads were excluded from the definition of 'motor vehicle'. If this definition which excludes th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is very concept is embodied in the provisions of s. 7 of the Taxation Act as also the relevant sections in the Taxation Acts of other States, namely, that where a motor vehicle is not using the roads and it is declared that it will not use the roads for any quarter or quarters of a year or for any particular year or years, no tax is leviable thereon and if any tax has been paid for any quarter during which it is not proposed to use the motor vehicle on the road, the tax for that quarter is refundable. If this be the purpose and object of the Taxation Act, when the motor vehicle is defined under s. 2(c) of the Taxation Act as having the same meaning as in the Motor Vehicle Act, 1939, then the inten- tion of the Legislature could not have been anything but to incorporate only the definition in the Motor Vehicles Act as then existing, namely, in 1943. as if that definition was bodily written into s. 2(c) of the Taxation Act. 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta Improvement Trust Act, 1911- referred to by their Lordships as the Local Act was in express terms and in the form illustrated by 54 and 55 Vict., Ch. 19. The Local Act in dealing with the acquisition of land for the purposes designated by it, made provision for the acquisition under the Land Acquisition Act, and the provisions of the Land Acquisition Act were subjected to numerous modifications which were., set out in the Schedule, so that in effect the Local Act was held to be the enactment of a Special Law for the acquisition of land for the special purpose. It was in the context of these and several other provisions which pointed to the absorption of certain of the provisions of the Land Acquisition Act into the Local Act with vital modifications that Privy Council observed at p. 266 But their Lordships think that there are other and perhaps more cogent objections to this contention of the Secretary of State, and their Lordships are not prepared to hold that the sub-section in question, which was not enacted till 1921, can be regarded as incorporated in the Local Act of 1911. It was not part of the Land Acquisition Act when the Local Act was passed, nor in adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the definition of employer in S. 2(e) of the Coal Mines Provident Fund and Bonus Schemes Act, 1948, Where that expression was defined to. mean the owner of a coal mine as defined in clause (g) of section 3 of the Indian Mines Act, 1923 . The Indian Mines Act, 1923, had been repealed and substituted by the Mines Act, 1952 (Act 35 of 1952). In the latter Act the word owner had been defined in cl. (1) of S. 2. The question was whether by virtue of s. 8 of the General Clauses Act, the definition of the word employer in cl. (e) of s. 2 of the Coal Mines Provident Fund and Bonus Schemes Act should be construed with reference to the definition of the word owner in cl. (1) of s. 2 of Act 35 of 1952, which repealed the earlier Act and reenacted it. It may be mentioned that according to S. 2(1) of Act 35 of 1952 the word owner , when used in relation to a mine, means any person who is the immediate proprietor or lessee or occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on by a liquidator or receiver, such liquidators receiver............... The expression coal mine is separately defined in cl. (b) of s. 2 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x x In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Preemption Act and the expression ' agricultural land' in the later Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it. The above decision of this Court is more in point and supports our conclusion. In our view, the intention of Parliament for modifying the Motor Vehicles Act has no relevance in determining the intention of the Orissa Legislature in enacting the Taxation Act. Apart from this aspect the power; of, taxation as we, have said earlier, is not in the Concurrent List III but in List II and construed as a taxation measure we cannot extend the, ambit, of it by mere implication. As we said it is possible for both the Acts to co-exist even after the definition of 'motor vehicle' in the Act has been amended. It is, therefore, clear that the definition of 'motor vehicle as existing Prior to 1956 Amendment would alone be applicable as being incorporated in the Taxation Act. Mr. Tarkunde has referred to S. 6 of the General Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Appeal No. 1817 of 1968-Orissa Mineral Development Company's case, P. W. 1 stated in his evidence that the dumpers in the schedule were to carry ores from the place of excavation in the railway wagon within the mining area. The members of the public have no right to enter into it. There are check gates and guards. P. W. 2 stated in his evidence that the suit vehicles were used at the place of mining operations. The members of the public have no access to the mining area. There were ten to twelve guards around the mining area and there were also guards at the gates of the approaching road. The guards were to prevent the unauthorised persons to enter into the mining area and there was a duty chart of those guards. No doubt, P. W. 4 stated in his evidence that the area within which the machines were used was neither fenced nor walled around. Similarly in Civil Appeal No. 336 of 1970 in the case of Dalmia Cement Bharat Ltd it has been stated in the reply affidavit in paragraph 4 that a trench 4'X4'x2' is dug alround the mining area so as to prevent free ingress and egress to the mining area. Certain pit areas are fenced with barbed wire. In fact to avoid acci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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