TMI Blog2003 (4) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... to as the Act of 1951). On the other hand the case of the Department is that the dumpers are vehicles adapted or suitable for use on roads and being motor vehicle per se and same liable to pay the tax on the footing of their use or kept for use on public roads. In our view the controversy is settled by the decision of the Apex Court in Central Coal Fields Ltd. v. State of Orissa (1992) Supp (3) SCC 133, Union of India v. Chowgule Co. (P.) Ltd. (1992) Supp (3) SCC 141 and Chief General Manager, Jagannath Area v. State of Orissa (1996) 10 SCC 676 and a Division Bench judgment of this Court in Rashid Mohd. v. State of Rajasthan AIR 1994 Raj. 167. It is held that dumpers run on tyres, in marked contrast to chain plates like caterpillars or military tanks and as such have been adapted and suitable for use on roads irrespective of its weight and special restriction and being used in an enclosed factory premises. A motor vehicle per se being suitable for use on roads is 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 is entitled to a regulator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the company regarding the tax under the Act of 1951 in respect of 8 dumbers and the tractor trolly was quashed. In the said case being Birla Jute Mfg. Co. Ltd. v. RTO 1980 W.L.N. (U.C.) 375 held- (a) Eight dumpers and tractor trolly are compulsorily registerable under the Motor Vehicles Act, 1939; (b) The dumpers and tractor trolly are not taxable under the Rajasthan Motor Vehicles Taxation Act, 1951 so long as they are used within the premises of the Company. [Emphasis supplied] 5. By a show-cause notice dated 13-10-1992 issued by the DTO the appellant company was called upon to state if the tax has been deposited as per the audit report for the year 1982-83. The notice was replied stating that no tax was liable to be paid in view of the decision of the High Court in Birla Jute Mfg. Co. Ltd. s case (supra). The respondent again view of observations in the audit report, issued notice in Form MTE dated 6-3-1997. The petitioner company challenged the notice of demand before the Rajasthan Taxation Tribunal, Jaipur. The State of Rajasthan repelled the Rajasthan Taxation Tribunal Act, 1995 in February, 1999, as such the matter came to be transferred to this Court. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminary objections of non-maintainability of the writ petition on the principle of Order 2 Rule 2 CPC and the principle of res judicata : By reading the two judgments, we are left with only guess work as to what were the controversy and what findings of fact have been arrived at between the parties in the petition filed by the petitioners. Even, we are not any wiser from the order passed in S.B. Civil Writ Petition No. 1645/99 as to what controversy has been decided therein by reading the two orders. We are able to infer that the petition has been dismissed on account to the ratio of decision rendered in S.B. Civil Writ Petition No. 2311/99 M/s. Ambika Crushers v. Union of India on 7-8-1999. It is quite one thing to say that the petition has been decided following the ratio laid down in other case not between the same parties then saying that the Court has reached a finding between the parties about the facts in his own case. The ratio in another case may be binding as a precedent, however, it cannot operate as res judicata. To satisfy ourselves, we had also looked into the decision in M/s. Ambika Crushers v. Union of India long with a group of cases. In that case, the controv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pelled and adapted for use in factory or the premises of the owner only, the dominant movement will be decisive factor to determine whether it is motor vehicle falling in the general definition of motor vehicle or it comes within special type of vehicles falling in the exclusion clause. The Division Bench allowed the special appeal and remitted the matter to the Original Authority for determination of demand afresh after consi-dering the objections of the petitioner company. The decision of the Division Bench in Birla Cement Works v. State of Rajasthan AIR 2000 Raj. 251. The petitioner company filed the objection before the appellate authority. The Department proceeded for determination of the fresh demand as per the directions of the Division Bench. The State preferred a special leave to appeal against the said decision before the Apex Court. The Apex Court disposed of the leave to appeal by a brief order which is extracted as follows :- Heard the learned counsel for the parties. This appeal is filed against the judgment and order dated 24-2-2000 passed by the Division Bench of the Rajasthan High Court in Civil Special Appeal No. 149/2000 by the impugned judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage. The competent authority or the appellate authority would decide the matter in accordance with law particularly as interpreted by this Court including the aforesaid decisions relied upon by the learned counsel for the appellants and uninfluenced by the observations made by the High Court in the impugned judgment. The appeal stands disposed of accordingly. There shall be no order as to costs. [Emphasis supplied] 8. The appellate authority after considering the objections of the petitioner company held that the dumpers are motor vehicles and are exigible to tax under the Act of 1951. Accordingly the appeal was dismissed vide order dated 9-10-2001. The petitioners challenged the order of the appellate authority by way of petition before this Court under article 226 of the Constitution of India. The writ petition was placed before the Division Bench as the petitioners challenged the constitutional validity of sections 4 and 4-B of the Act of 1951. The petition came to be admitted on 2-11-2001. The recovery was stayed by an interim order. However, by order dated 6-8-2002 the Division Bench directed the matter to be placed before the Single Judge as the constitutional vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Lead in Village Rampura Agucha in District Bhilwara for an area measuring 1,200 hectares. It purchases 12 dumpers for carrying out raw materials from the mine site to the crusher for the purpose of production of Zinc and Lead. Considering the said dumpers as motor vehicles , the District Transport Officer, Bhilwara issued a demand notice dated 4-5-2000 asking the petitioner company to make payment of road tax on the said 12 dumpers for the period April 2000 to September 2000 under the provisions of the Act of 1951. The demand notice also includes the penalty. Against the said demand notice, the petitioner company filed an appeal under section 14 of the Act of 1951 before the Regional Transport Authority, Bhilwara. The appeal has been dismissed by the Regional Transport Authority, Chittorgarh by order dated 20th August, 2001, the petitioner preferred a revision before the Additional Commissioner (Transport), which came to be rejected by order dated 1-2-2002. It is averred that during the pendency of the litigation, the petitioner s Bank Account was seized. Therefore, the company made payment of road tax as per the demand notice Annexures 2 to 13. The Company filed a writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and stacking of Gypsum, for stacking and re-handling of limestone in the limestone yard and for stacking and re-handling of clinker at dryer and decolouriser. The further say of the appellant is that the Pay-loaders and the Crane operate exclusively in the enclosed premises of the Factory. The DTO, Jodhpur issued two demand notices dated 8-3-2000 and 10-3-2000, one in respect of Pay-loaders and another in respect of Crane, the appellant has been asked to pay the road tax and special tax for the Pay-loaders and Crane for the period 1-4-1989 to 31st March, 2000. The appellant challenged the said notices by way of filing a writ petition before this Court which was registered as D.B. Civil Writ Petition No. 843/2000, the petition was disposed of by order dated 27-3-2000 relegating the appellant to the alternate remedy. The appellant filed an appeal before the RTA. The Appellate Authority found that the rubber tyres are maintained on the wheel of the impugned vehicles and as such they are plyable on the public roads as an ordinary vehicle. The Pay-loaders are also having engine and speed. They have also capacity of transporting goods. The RTA rejected the appeal of the appellant. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the dumpers with the mining area of the appellant to which public has no access, as such they are not taxable under the Rajasthan Motor Vehicles Taxation Act, 1951. 15. In Bolani Ores Ltd. s case (supra) the Supreme Court dealt with the Bihar and Orissa Motor Vehicles Taxation Act, 1930. Section 2(c) of the said Act adopted the definition of motor vehicle as found in the Motor Vehicles Act, 1914. The Motor Vehicles Act, 1914 was repelled and replaced by the Motor Vehicles Act, 1939. The definition of motor vehicles in section 2(18) excluded motor vehicles solely used on the premises of the owner. The Orissa Motor Vehicles Taxation Act was amended and Orissa Amendment Act, 1943 re-enacted the provision of Taxation Act. Motor vehicles was defined under section 2(18) of the Motor Vehicles Act, 1939 excluding vehicles used solely upon the premises of the owner. Subsequently the definition of motor vehicles under section 2(18) of the Motor Vehicles Act was amended by Act of 100 of 1956 which confined to exemption from taxation to motor vehicles of special type adapted for use only in a factory or in any other enclosed premises and the exemption that was available be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The constitutional validity of the said Act was challenged before the High Court. A further prayer was made for injecting 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 said amending Taxation Act. The High Court took the view that the onus lay on the appellants to establish that dumpers and rockers in question was not suitable for use on the public roads. The High Court 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, on vehicles which are suitable for use on public roads. The matter came up before the Supreme Court in group of writ petitions which was decided in Central Coal Fields Ltd. s case (supra). It was contended before the Apex Court that the dumpers are 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. The Apex Court rejected the contention observing that the word adapted in the provision was read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on their weight and size is of no consequence for, dumpers are vehicles used for transport of goods and thus liable to pay compensatory tax for the availability of roads for them. 20. It is submitted by Mr. B.L. Maheshwari learned counsel for the appellant that the decisions of the Apex Court in Central Coal Fields Ltd. s case (supra) and Chowgale Co. (P.) Ltd. s case (supra) have been decided on the facts of the case and does not lay down that in all cases and in all circumstances the dumpers and rockers are vehicles. It is further submitted that the Court was not called upon to determine the issue whether the dumpers in question are of special type adapted for use in mining or any other enclosed premises in either of the case. It is further submitted that appellate authority on appreciation of evidence produced by the petitioner and other material has recorded a finding of fact that the subject vehicles are of special category. 21. In order to appreciate the contention, it would be convenient to acquaint with the relevant provisions having bearing on the controversy. The levy and payment of road tax and special tax is governed by the provisions contained in the Rajasth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Motor Vehicles Rules for the time being in force in the State of Rajasthan, at such rates, as may be specified by the State Govt. by notification in the Official Gazette which shall not exceed rupees ten thousand for every 50 vehicles or part thereof in respect of three or four wheeled vehicles and shall not exceed ₹ 10,000 for every 100 vehicles or part thereof in respect of two wheeled vehicles. (2) A tax shall be payable under this section by the owner of motor vehicle except for the period during which the owner surrenders the certificate of registration to the taxation officer, in the prescribed manner, that the vehicle has remained out of use for such reasons as may be prescribed, or satisfies the taxation officer that vehicle has not been used for due to following reasons :- (i) that the motor vehicle was restrained from plying by the competent court or authority; (ii) that the motor vehicle was involved in an accident and a report to this effect was made to the police and because of accident, it remained out of use; (iii) that the motor vehicle was attached for the recovery of tax under the Rajasthan Land Revenue Act, 1956 (Act No. 15 of 1956 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bic centimeters. 23. The Rajasthan Motor Vehicles Taxation Act, 1951 which came into force in 1951 as originally enacted had adopted words and expression used in the Act of 1951 but not defined therein but so defined in Motor Vehicles Act, 1939 by reference of provisions of Motor Vehicles Act. The original clause which came into existence in the present form reads as under : Words and expressions used but not defined in this Act and defined in the Motor Vehicles Act, 1939 (Central Act) have the meaning assigned to them in that Act. 24. Thereafter it was substituted by section 2 of the Rajasthan Act of 20 of 1982 published in Rajasthan Gazette Part 4A of Extraordinary Gazette on 30th September, 1982 with the following :- 2(e)Words and expressions used but not defined in this Act and defined in the Motor Vehicles Act, 1939 (Central Act 4 of 1939) shall have the meaning assigned to them in the Act as amended from time to time. 25. Thereafter when 1939 Act was repelled with the commencement of the Motor Vehicles Act, 1988, correspondingly in Rajasthan Motor Vehicles Taxation Act, 1951, the clause (e) of section 2 was substituted by Rajasthan Act No. 14 of 1990, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act, 1951 adopted the definition of motor vehicle so defined in the Motor Vehicles Act, 1939 by reference. It is evident that when the Act of 1939 was repelled with the commencement of the Motor Vehicles Act, 1988 the definition was further substituted by the Rajasthan Act No. 14 of 1990 and the clause (e) was drafted as extracted above. Thus, it is to be seen that the dumpers in question are motor vehicles within the meaning of the Motor Vehicles Act, 1988 as per the definition that exist during the relevant period. Since 1980 prior to amendment by making the applicability of the definition of Motor Vehicles Act as amended from time to time the consistent view of the Court is that by making a reference to the Motor Vehicles Act, 1939 at the time of enactment of the Act the Legislature had adopted well known method of legislating by incorporating the provisions of the Motor Vehicles Act by reference. The motor vehicle under section 2(28) can be read in two parts. Firstly motor vehicle means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto form external or internal source and includes a chassis to which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Pravasi Vahan Sanchalak Mahamandal v. State of Gujarat AIR 2002 Guj. 121 do not advance the case of the appellants/petitioners. 31. It is vehemently argued by Mr. Maheshwari that the appellants have led positive evidence that the dumpers used by them are of special type and they had never been used on the public roads. It is also submitted that the Transport Inspector has admitted this fact in his statement. We have already dealt with this aspect and rejected the contention on the ground that the word adapted means suitable. Thus, the only requirement is that the vehicle should be suitable for use on the roads whether the vehicle is actually used or not does not bring out the vehicle from the tax net. 32. The controversy is so settled by the two decisions of the Apex Court in Central Coal Fields Ltd. s case (supra) and Chowgule Co. (P.) Ltd. s case (supra) that when in identical circumstances a SLP came up before the Apex Court against the decision of the Orissa High Court by one of the Company namely, the Chief General Manager, Jagannath Area s case (supra) the Court was not inclined to grant leave to appeal. However, a senior counsel appearing for the petitioners pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the Court reminded of the ratio in Central Coal Fields Ltd. s case (supra) as follows :- 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 Ltd. v. State of Orissa it was held : (SCC p. 140, para 9) 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 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 is entitled to a regulatory and compensatory tax. 36. The Court has summarised the entire law on point in issue as follows :- 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 goods state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adapted and another word only . The expression adapted for use on roads means that the vehicle should be fit and apt to use on roads. It does not mean actually used on roads . By the use of rubber tyres it is evident that they have been adapted for use on roads, which means that they are suitable for being used on public roads. The dumpers can certainly be used for carrying loads even outside the factory premises. The dumpers are suitable for use on public or private roads. Simply because it is the special type of vehicle and that they have been used in the factory premises will not bring within the exemption provided under section 2(28). It is the user of the vehicle who determines its adaptability. The test is if the vehicle is reasonably suitable for being used along with the public roads the mere fact that the manufacturer have made or intended a particular vehicle for one purpose or the other or the dealers have sold it for a particular purpose or that a particular vehicle is described by a particular name or description is no criteria to decide whether the vehicle is adapted for use upon the roads within the meaning of definition of Motor Vehicles Act under section 2(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Appeal No. 206/2003 it is submitted by Mr. B.L. Maheshwari learned counsel that this Court in Birla Jute Mfg. Co. Ltd. s case (supra) held that dumpers are not motor vehicles so long as they are used in the premises assessee-company and they are not liable to tax. It is submitted that the said judgment was accepted by the State Government as that was the law prevailing during that period and as such the levy of tax on the dumpers is unwarranted. The learned counsel has placed reliance on the decision of the Apex Court in CIT v. Hindustan Electrol Graphites AIR 2000 SCW 1010. We are unable to agree with the submission of the learned counsel. A Division Bench of this Court has taken the view as back as in the year 1993 that the dumpers are motor vehicles for the purpose of taxation under the Rajasthan Motor Vehicles Taxation Act, 1951 - Rashid Mohd. s case (supra). Thus, the contention is rejected. 41. In D.B. Civil Special Appeal No. 208/2003, it is submitted that 7 dumpers had become unusable and became unworthy for operation as such appellants surrendered the certificates of registration, but they were rejected by order dated 29-3-2000. It is also submitted that the said o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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