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TMI Blog1974 (9) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... einafter referred 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 deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisite tax 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, arises as to what is a 'motor vehicle' 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 reen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;These machines are mechanically propelled but are neither intended nor 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in any other enclosed premises. In other words, a motor vehicle of a special type adapted as stated in the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Schedule to the Constitution, while the Motor Vehicles Act is enacted by the Parliament in exercise of the 'concurrent 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression " principles of taxation" denotes rules of guidance in the matter of taxation. We, therefore, hold that the Amending 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 questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of compatibility and at other places in terms of suitability. This is clearly illustrative by its decision regarding 'tractor'. A tractor without 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33, and s. 1 of the Road Traffic Act, 1930, and the case being indistinguishable in substance from the Scottish decision in MacDonald v. Carmichael(2) which the Court would follow for conformity, it had not been established that dumpers were 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred to make the test whether a reasonable person looking at the vehicle would say that one of its users would be a road user, and then he dealt with the meaning of the word "adapted" and observed at p. 441 : "So far as the other word, "adapted," is concerned, as was pointed out in Maddox v. Storer-(1963)1 Q.B. 451the word "adapted" is used throughout the Road Traffic Act, 1960, in a number of different 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." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed mechanically or not and uses the word "suitable" in relation to its use on the roads. The words "adapted for use" must therefore be construed as "suitable for use". At any rate, words "adapted for use" cannot be larger in their import by including vehicles 'Which are not " suitable for use' on roads. In this sense, the words "is adapted" for use have the same connotation as "is suitable " or" is fit" for use on the roads. The question would then arise, are dumpers, rockers and tractairs suitable or fit for use on roads ? It is not denied, that these vehicles 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, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es it cannot be said that they are not adapted for use upon roads. That they are not so used or are confined for use to only places other than roads or public places is a different matter, because whether they have to be registered under the Act or are liable for payment of tax under the Taxation Act will depend upon the provisions of the respective Acts. In so far as the Act is concerned, we must bear in mind that it is essentially an Act to regulate transport-, The statement of objects and reasons given for the 1939 Act, in so far as it is relevant for our purpose states thus "It has been recognised now for some years past that the Indian Motor Vehicles 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or in addition to passengers, car is a public service vehicle within the meaning of S. 2(25) of the Act, namely " an motor vehicle used or adapted to be used for the carriage of passengers for hire or reward it has to be registered under s. 22 and can only be driven by a person who holds a licence under s. 3 of the Act. Where a vehicle is adapted for use upon roads and though it is not driven on the Public roads or in a public place even then if it carries goods car passengers which may not be for hire or reward or the passengers may be friends or relatives of the owner or the goods may belong to the owner and plying in a place to which the public has, as a matter of right, no access, it nonetheless cannot be driven without its being 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of certain categories of vehicles being driven by persons who have no driving licence, even though those vehicles are not plying can the roads, are designed to ensure the safety of passengers and goods etc. etc. and for that purpose it is enacted to keep control and check on the vehicles. Legislative power under Entry 35 of List III (Con- V current List) does not bar such a provision. But Entry 57 of List II is subject to the limitations referred to above, namely, that the power of taxation thereunder cannot exceed the compensatory nature which must have some nexus with the vehicles using the roads viz. public roads. If the vehicles do not use the roads, notwithstanding that they are registered under the Act, they cannot be taxed. This 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all." The observations in Clarke v. Bradlaugh([1881] 8 Q. D. D. 63.) are also to the same effect. Brett, L.J., in that case had said at p. 69 : "........ there is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third statute does not affect the second." In Secretary of State for India in Council v. Hindusthan Co- operative Insurance Society Ltd.( L. R. 58 I. A. 259.) the Privy Council was considering a case where the incorporation effected in the statute, viz., the 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 wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it is in this country. It seems to be not less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Art, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition." This Court in The Collector of Customs, Madras v. Nathelle Sampethu Chetty and Another([1962] 3 S.C.R. 786, at pp. 830-833.) considered the Privy Council decision in the Hindusthan Co-operative Insurance Society Ltd. (L.R. 58 I.A. 259.) and distinguished that case and held the principle inapplicable to the facts of that case. In State of Bihar v. S. K. Roy([1966] Supp. S.C.R. 259.) this Court was considering 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi and Others([1963] 3 S.C.R. 858.) a judgment of the Bench of five Judges of this Court held that the repeal of the Punjab Alienation of Land Act, 1900, had no effect on the continued operation of the Punjab Preemption Act, 1913, and that the expression "agricultural land' 'in the later Act had to be read as if the definition of the Alienation of Land Act had been bodily transposed into it. After referring to the observations of Brett, L.J., in Clarke's case (supra), Rajagopala Ayyangar, J., speaking for the court observed at pp. 868869 : "Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er outside it. In cross-examination, no doubt he admitted that the leasehold has no fence. He, however, stated that there is an official approach road to the plant. He also stated in cross- examination that there is a gate book, gate register and a security guard. From this evidence it is clear that though there is no fence, there are check gates, and the public are not allowed to enter into the leasehold without prior permission and the machines are used within the leasehold premises. The mere fact that there is no fence does not mean that the leasehold premises are not enclosed premises. It is obvious that no one can get into the leasehold premises without having to go through the gate for which gate book, gate register and security guard are provided. In Civil 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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