SCA/15815/2003 1/68 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15815 of 2003 With SPECIAL CIVIL APPLICATION No. 6533 of 2003 With SPECIAL CIVIL APPLICATION No. 7024 of 2003 With SPECIAL CIVIL APPLICATION No. 12959 of 2003 With SPECIAL CIVIL APPLICATION No. 12960 of 2003 With SPECIAL CIVIL APPLICATION No. 12961 of 2003 With SPECIAL CIVIL APPLICATION No. 13951 of 2003 With SPECIAL CIVIL APPLICATION No. 14488 of 2003 With SPECIAL CIVIL APPLICATION No. 14489 of 2003 With SPECIAL CIVIL APPLICATION No. 14490 of 2003 With SPECIAL CIVIL APPLICATION No. 14491 of 2003 With SPECIAL CIVIL APPLICATION No. 14492 of 2003 With SPECIAL CIVIL APPLICATION No. 14493 of 2003 With SPECIAL CIVIL APPLICATION No. 14494 of 2003 With SPECIAL CIVIL APPLICATION No. 14495 of 2003 With SPECIAL CIVIL APPLICATION No. 14496 of 2003 With SPECIAL CIVIL APPLICATION No. 14497 of 2003 With SPECIAL CIVIL APPLICATION No. 14498 of 2003 With SPECIAL CIVIL APPLICATION No. 14499 of 2003 With SPECIAL CIVIL APPLICATION No. 14500 of 2003 With SPECIAL CIVIL APPLICATION No. 14501 of 2003 With SPECIAL CIVIL APPLICATION No. 14502 of 2003 With SPECIAL CIVIL APPLICATION No. 14503 of 2003 With SCA/15815/2003 2/68 JUDGMENT SPECIAL CIVIL APPLICATION No. 14504 of 2003 With SPECIAL CIVIL APPLICATION No. 14505 of 2003 With SPECIAL CIVIL APPLICATION No. 14506 of 2003 With SPECIAL CIVIL APPLICATION No. 14507 of 2003 With SPECIAL CIVIL APPLICATION No. 14508 of 2003 With SPECIAL CIVIL APPLICATION No. 14509 of 2003 With SPECIAL CIVIL APPLICATION No. 14510 of 2003 With SPECIAL CIVIL APPLICATION No. 15816 of 2003 With SPECIAL CIVIL APPLICATION No. 17440 of 2003 With SPECIAL CIVIL APPLICATION No. 17441 of 2003 With SPECIAL CIVIL APPLICATION No. 17442 of 2003 With SPECIAL CIVIL APPLICATION No. 17444 of 2003 With SPECIAL CIVIL APPLICATION No. 17445 of 2003 With SPECIAL CIVIL APPLICATION No. 17443 of 2003 With SPECIAL CIVIL APPLICATION No. 1025 of 2004 With SPECIAL CIVIL APPLICATION No. 1026 of 2004 With SPECIAL CIVIL APPLICATION No. 1027 of 2004 With SPECIAL CIVIL APPLICATION No. 1028 of 2004 With SPECIAL CIVIL APPLICATION No. 1029 of 2004 With SPECIAL CIVIL APPLICATION No. 1030 of 2004 With SPECIAL CIVIL APPLICATION No. 1031 of 2004 With SPECIAL CIVIL APPLICATION No. 3018 of 2004 With SPECIAL CIVIL APPLICATION No. 3958 of 2004 With SPECIAL CIVIL APPLICATION No. 4841 of 2004 With SPECIAL CIVIL APPLICATION No. 5401 of 2004 With SCA/15815/2003 3/68 JUDGMENT SPECIAL CIVIL APPLICATION No. 5910 of 2004 With SPECIAL CIVIL APPLICATION No. 5911 of 2004 With SPECIAL CIVIL APPLICATION No. 6363 of 2004 With SPECIAL CIVIL APPLICATION No. 6364 of 2004 With SPECIAL CIVIL APPLICATION No. 6365 of 2004 With SPECIAL CIVIL APPLICATION No. 6366 of 2004 With SPECIAL CIVIL APPLICATION No. 6367 of 2004 With SPECIAL CIVIL APPLICATION No. 6368 of 2004 With SPECIAL CIVIL APPLICATION No. 6369 of 2004 With SPECIAL CIVIL APPLICATION No. 6370 of 2004 With SPECIAL CIVIL APPLICATION No. 6371 of 2004 With SPECIAL CIVIL APPLICATION No. 7086 of 2004 With SPECIAL CIVIL APPLICATION No. 7087 of 2004 With SPECIAL CIVIL APPLICATION No. 7303 of 2004 With SPECIAL CIVIL APPLICATION No. 8548 of 2004 With SPECIAL CIVIL APPLICATION No. 9035 of 2004 With SPECIAL CIVIL APPLICATION No. 9036 of 2004 With SPECIAL CIVIL APPLICATION No. 9039 of 2004 With SPECIAL CIVIL APPLICATION No. 9829 of 2004 With SPECIAL CIVIL APPLICATION No. 12446 of 2004 With SPECIAL CIVIL APPLICATION No. 18136 of 2003 With SPECIAL CIVIL APPLICATION No. 3951 of 2004 With SPECIAL CIVIL APPLICATION No. 3952 of 2004 With SPECIAL CIVIL APPLICATION No. 3953 of 2004 With SPECIAL CIVIL APPLICATION No. 3954 of 2004 With SCA/15815/2003 4/68 JUDGMENT SPECIAL CIVIL APPLICATION No. 3955 of 2004 With SPECIAL CIVIL APPLICATION No. 3956 of 2004 With SPECIAL CIVIL APPLICATION No. 6815 of 2004 With SPECIAL CIVIL APPLICATION No. 6816 of 2004 With SPECIAL CIVIL APPLICATION No. 6817 of 2004 With SPECIAL CIVIL APPLICATION No. 8544 of 2004 With SPECIAL CIVIL APPLICATION No. 8545 of 2004 With SPECIAL CIVIL APPLICATION No. 8546 of 2004 With SPECIAL CIVIL APPLICATION No. 3041 of 2003 With SPECIAL CIVIL APPLICATION No. 22663 of 2005 With SPECIAL CIVIL APPLICATION No. 22664 of 2005 With SPECIAL CIVIL APPLICATION No. 22665 of 2005 With SPECIAL CIVIL APPLICATION No. 22666 of 2005 With SPECIAL CIVIL APPLICATION No. 23749 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL & HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 To be referred to the Reporter or not? 3 Whether their Lordships wish to see the fair copy of the judgment? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder? 5 Whether it is to be circulated to the Civil Judge? SCA/15815/2003 5/68 JUDGMENT ========================================================= LARSEN & TOUBRO LTD. ECC DIVISION - Petitioner Versus INSPECTOR OF MOTOR VEHICLES & ANR. - Respondents ========================================================= Appearance : MR VC KOTWAL, Senior Advocate for MR BR GUPTA for Petitioner. MR KAMAL B. TRIVEDI, Advocate General with MS SANGEETA VISHEN, ASSISTANT GOVERNMENT PLEADER for Respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and THE HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 13/09/2006 COMMON ORAL JUDGMENT (Per: MR.JUSTICE J.M.PANCHAL) In all these petitions, 87 in number, common questions of facts and law arise for determination of the Court with the only difference in type and nature of vehicles/machines. The question to be considered is as to whether such vehicle/machine is "motor vehicle" or "vehicle" within the meaning of Section 2(28) of the Motor Vehicles Act, 1988 and, therefore, liable to be taxed under the provisions of the Bombay Motor Vehicles Tax Act, 1958 or whether it is simply machine and/or equipment not covered under the Act of 1958. Therefore, this Court proposes to dispose of all these petitions by this common judgment after referring to the facts mentioned in Special Civil Application No.15815 of 2003, which is treated as the main petition. 2. By filing Special Civil Application No.15815 SCA/15815/2003 6/68 JUDGMENT of 2003 under Article 226 of the Constitution, the petitioner, i.e. M/s.Larsen & Toubro Limited, has prayed to issue an appropriate writ or order to quash order dated September 19, 2003 rendered by the Commissioner of Transport, Gujarat State, in Tax Appeal No.77 of 2003, holding that crawler-crane 'TATA-320' falls within the definition of "motor vehicle" as defined under Section 2(28) of the Motor Vehicles Act, 1988 ("the M.V. Act" for short), and as such, it is registrable under the M.V. Act and also taxable under the Bombay Motor Vehicles Tax Act, 1958 ("the Tax Act" for short). The petitioner has further prayed to direct the respondent No.1, i.e. the Inspector of Motor Vehicles, Check-Post, Amirgadh, to forthwith refund a sum of Rs.2,15,960/- which, according to the petitioner, came to be forcibly recovered from it on June 28, 2003 as condition precedent for allowing its equipment in question bearing Sr. No. T-3642 to travel from Gujarat State to Rajasthan, together with interest thereon at the bank rate and costs of the proceedings all throughout. 3. The petitioner is a public limited company incorporated under the provisions of the Companies Act, 1956. The Construction Division of this company undertakes the execution of "turn-key projects" all over India and for execution of these projects, it holds various kinds of equipments. According to the petitioner, it has a number of construction units SCA/15815/2003 7/68 JUDGMENT located at various places, and to carry out construction projects at different places all over the country, machines/equipments owned by the petitioner are transferred from one construction unit to another depending upon the work-load involved in the project at hand. It is the case of the petitioner that for execution of projects at Panipat in Haryana, the petitioner was required to transport in truck- trailer crawler mounted cranes called TATA-320 Crane bearing equipment Sr. No. T-3642 from near Bharuch town, which was likely to be detained and seized by the Inspector of Motor Vehicles, R.T.O. Check-Post, Amirgadh, on the ground that the said crane was a motor vehicle within the meaning of Section 2(28) of the M.V. Act and was liable to be taxed under the Tax Act. This apprehension was also entertained by the petitioner with reference to another equipment namely crawler mounted crane called TATA-320 bearing equipment Sr.No.T-3801 manufactured by TELCO in India. Therefore, the petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution by filing Special Civil Application Nos.8117 of 2003 and 8118 of 2003 seeking appropriate writ or order to hold that the petitioner's crawler crane TATA-320 was neither a 'motor vehicle' nor 'vehicle' under Section 2(28) of the M.V. Act and was, therefore, not required to be registered before the R.T.O. Authority in the State of Gujarat. Those two petitions came up for hearing before the learned Single Judge of this Court on June 19, 2003 and after hearing the learned counsels for the parties, the SCA/15815/2003 8/68 JUDGMENT Court disposed of the two petitions vide order dated June 19, 2003 by giving following directions: "7. In view of the aforesaid, I find that the following directions shall meet with the ends of justice: (i) If the vehicles of the petitioners are detained or stopped by the respondent- authority, i.e. officers of the State Govt., they shall intimate to the petitioners regarding the provisional amount to be paid towards tax etc. If such intimation is given, the petitioners shall make the payment under protest within 24 hours from the intimation and if such amount is deposited the vehicles shall be released forthwith. Thereafter, the petitioner shall submit reply within a period of one week from such intimation after the amount is deposited under protest and the officer concerned shall, if demanded, may give opportunity of hearing to the petitioners and take decision within a period of one month from filing of such reply or the date of hearing, as the case may be. (ii) It is further directed that in the event the authority takes decision not to recover the tax, then the amount deposited by the petitioner shall be refunded to the petitioner within a period of 15 days from the date of decision. (iii)It is also clarified that if the authority takes decision to recover the amount even after the adjudication, the petitioner will be at liberty to take SCA/15815/2003 9/68 JUDGMENT recourse to law for challenging such decision in accordance with law." 3.1 What is claimed by the petitioner is that as condition precedent for allowing truck-trailer carrying crawler-crane to cross R.T.O. Check-Post at Amirgadh, the respondent No.1 on June 28, 2003 charged Rs.2,15,960/- in cash comprising Rs.1,52,640/- by way of road tax for eight years from August 1, 1995 to July 31, 2003, Rs.38,160/- by way of 25% penalty thereon, Rs.9,160/- as interest and Rs.16,000=00 as 'C.F.'. 3.2 Feeling aggrieved by the imposition of tax and penalty, the petitioner filed representation dated July 2, 2003 and additional representation dated July 28, 2003 before the Commissioner of Transport. The representation made by the petitioner was treated as an appeal under Section 14 of the Tax Act and was registered as Tax Appeal No.77 of 2003. The Commissioner of Transport, Ahmedabad, rejected the said appeal by an order dated September 19, 2003. According to the petitioner, reply-cum-objections filed by the petitioner could not have been treated as an appeal by the Commissioner of Transport and, therefore, order dated September 19, 2003 passed by the Commissioner of Transport, is liable to be set aside. What is claimed by the petitioner is that crawler-crane, in view of its characteristics, does not fall within the definition of 'motor vehicle' as SCA/15815/2003 10/68 JUDGMENT defined in Section 2(28) of the M.V. Act nor within the definition of 'construction equipment vehicle' as defined in Rule 2(ca) of the Central Motor Vehicles Rules, 1989 ("the Central Rules" for short) and, therefore, the Commissioner of Transport was not justified in holding that crawler-crane TATA-320 was a 'motor vehicle' under Section 2(28) of the M.V. Act and also liable to be taxed under the provisions of the Tax Act. What is claimed by the petitioner is that crawler-crane of the petitioner is neither rubber-tyred nor rubber-padded nor steel-drum wheel mounted nor self-propelled nor manufactured with 'on or of' or 'on and of' and, therefore, cannot be termed as 'construction equipment vehicle' within the meaning of Rule 2(ca) of the Central Rules. According to the petitioner, the equipment is purely off highway construction equipment designed and adopted for use in an enclosed premises, factory or mine other than the road network and as it is not equipment to travel on public road on its own power, it is not a 'motor vehicle' under Section 2(28) of the M.V. Act. The petitioner has averred that the words "crawler" and "caterpillar", as appearing in English Dictionary, are misconstrued by the Commissioner of Transport and, therefore, his order is liable to be set aside. According to the petitioner, the equipment in question is neither suitable nor adapted for use on road and as the equipment cannot be used for transporting goods and, in fact, is neither used nor kept in use, the same could not have been taxed under the provisions of the SCA/15815/2003 11/68 JUDGMENT Tax Act of 1958. The petitioner has averred that the grievance of forced recovery of tax is not decided by the Commissioner of Transport, and as crawler mechanism type of construction equipments do not require registration in other States and Union Territories of India, the order passed by the Commissioner of Transport should be set aside. It is claimed by the petitioner that manufacturer of the crawler has not certified it to be motor vehicle and in view of the Government of India's letter dated March 27, 2003, crawler/chain mounted crane could not have been considered to be 'construction equipment vehicle'. Under the circumstances, the petitioner has filed the instant petition and claimed the reliefs to which reference is made earlier. 3.3 The petition filed by the petitioner was placed for admission hearing before the learned Single Judge of this Court and after hearing the learned counsel for the petitioner, the following order was passed on November 14, 2003. "Heard ld. counsel appearing for the petitioner. Notice to the respondents returnable on 8.12.2003. In the meanwhile, by way of ad-interim relief, there shall be stay against execution, operation and implementation of the order under challenge, till the next date of hearing." SCA/15815/2003 12/68 JUDGMENT 3.4 On service of notice, Mr.P.S.Patel, Joint Director of Transport, Gujarat State, has filed affidavit-in-reply controverting the averments made in the petition. In the reply, it is mentioned that alternative remedy of filing Revision Application under Section 14A of the Tax Act is available to the petitioner and, therefore, the petitions should not be entertained by the Court. In the reply, it is further mentioned that disputed question of fact arises as to whether the crawler cranes are adapted for use on public roads and, therefore, the highly disputed question of facts should not be determined by the Court while exercising powers under Article 226 of the Constitution. It is mentioned in the reply that refund of tax can always be claimed under Section 9(4)(b) of the Tax Act and as no advance declaration of non-use in Form 'NT', as required by Rule 5(1) of the Bombay Motor Vehicles Rules, 1959 ("the Rules of 1959" for short), was filed, the 'crawler crane' is liable to be taxed under Section 3(2) of the Tax Act. What is mentioned in the reply is that a vehicle running upon a fixed rail or a vehicle of special type adapted for use is 'vehicle' and crawler crane, heavy duty dumper, motor graders are motor vehicles adapted for use upon roads though they may also be used in factory. According to the deponent of the said affidavit, in exercise of powers under Section 41(4) of the M.V. Act, the Central Government has issued notification dated June, 19, 1992 wherein crane mounted vehicle at Item No.(ix) is SCA/15815/2003 13/68 JUDGMENT included as a 'non-transport vehicle' and, therefore, the vehicle of the petitioner is liable to be taxed. What is averred in the reply is that looking to the definition of 'construction equipment vehicle', purely off highway construction equipment vehicles designed and adopted for use in any enclosed premises, factory or mine other than the road network and not equipped to travel on public roads on its own power are excluded, but crawler crane of the petitioner is a 'motor vehicle' within the meaning of Section 2(28) of the M.V. Act and, therefore, the reliefs claimed in the petition should not be granted. It is explained in the reply that crawler crane is required to be fitted with shoes or other device when it is to be used on public roads and, therefore, it is a 'vehicle' within the meaning of Section 2(28) of the Act. Explaining further, it is mentioned in the reply that the words "adapted for use" must be construed as 'suitable for use on roads' and as the crawler cranes are fit for use on public roads, they are vehicles within the meaning of Section 2(28) of the M.V. Act. By filing the reply, the deponent has informed the Court that prior to amendment in the First Schedule by Gujarat Act No.10 of 1998, the unamended Schedule Part-I, there were two classes of motor vehicles; i.e. A-Motor Vehicles fitted solely with pneumatic tyres; and B-Motor Vehicles other than those fitted with pneumatic tyres, which shows that the crawler cranes, which were not fitted with pneumatic tyres, were also motor vehicles. It is mentioned in the reply that the SCA/15815/2003 14/68 JUDGMENT Government of India, by its notification dated June 19, 1992, has classified such vehicles as 'non- transport vehicles' and in view of the opinion of the Principal of L.D. Engineering College also such vehicles are 'non-transport vehicles'. It is mentioned in the reply that the State of Andhra Pradesh and the State of Tamil Nadu have registered crawler cranes under the relevant provisions of the law and, therefore, it is not correct to say that the crawler mechanism type of constructions do not require registration in other States and Union Territory. What is mentioned is that by virtue of kind of work and place of work, such vehicles are fitted with crawler type mechanism instead of rubber or steel drum tyre wheels, but by change of device or system of movement, the basic function of the vehicle does not change and, therefore, the vehicle is liable to be taxed. It is mentioned in the reply that under Rule 126-B of the Central Rules, prototype of every construction equipment vehicle has to be subjected to test and manufacturer, i.e. Bharat Earth Movers Limited, has got designed approved, which would indicate that its motor vehicle would fall within the meaning of Section 2(28) of the M.V. Act. In support of this claim, the deponent has relied upon a sale certificate in Form No.21 and road worthiness certificate in Form 22 issued by BEML. In the reply, it is further mentioned that the Government of India by letter dated November 5, 2002 has stated that construction equipment vehicles are 'motor vehicles' and, therefore, the letter dated March 27, 2003 SCA/15815/2003 15/68 JUDGMENT relied upon by the petitioner for contending that crawler/chain mounted cranes do not fall under 'construction equipment vehicles' should not be given undue importance. The deponent has referred to dictionary meaning of 'crawler' and contended that the crawler is a self-moving vehicle, which is fit for use on road. Along with affidavit-in-reply, photographs are produced to show that crawler mechanism is adapted for use on road and fit for use on road. It is mentioned in the reply that before passing the order, the Commissioner of Transport, Gujarat State, had heard the petitioner and taken into consideration objections filed, as a result of which, his order is not liable to be set aside. 3.5 Similarly, Special Civil Application No.15816 of 2003 is filed against the appellate order of the Commissioner of Transport rendered on September 19, 2003 in Tax Appeal No.78 of 2003, without resorting to alternative remedy of filing Revision Application under Section 14A of the Tax Act whereas rest of the petitions are filed directly in the High Court under Article 226 of the Constitution without resorting to alternative remedy of appeal under Section 14 of the Tax Act or revision under Section 14A of the said Act. 3.6 The record shows that Special Civil Application No.13335 of 2004 was filed by M/s. Jitendra G. Patel before this Court challenging SCA/15815/2003 16/68 JUDGMENT notice dated September 15, 2004 issued by the ARTO, Bhilad, under Sections 12 and 18 of the Tax Act. That petition was placed for admission hearing before the Division Bench of this Court on October 12, 2004. It was submitted by the learned counsel for the petitioner that almost identical writ petition, i.e. Special Civil Application No.8544 of 2004 filed by M/s. Larsen & Toubro Company was admitted and placed for final disposal on October 14, 2001 before the learned Single Judge of this Court. Therefore, the Division Bench comprising B.J.Shethna & Sharad D. Dave, JJ. had called for the papers of the said petition to ascertain as to why the said petition was placed before the learned Single Judge instead of the Division Bench. On perusal of the papers of the said petition, it was found that the said petition was arising out of the provisions of the M.V. Act and the Central Rules, and filed under Article 226 of the Constitution. In that view of the matter, at the first instance, the Division Bench ordered to issue notice in Special Civil Application No.13335 of 2004 filed by M/s. Jitendra G. Patel and directed that those Special Civil Applications pending for disposal by the learned Single Judge should be placed with Special Civil Application No.13335 of 2004 before the Division Bench. In pursuance of order dated October 12, 2004 passed in Special Civil Application No.13335 of 2004, the Registry placed all such matters including these 87 petitions before the Division Bench on October 14, 2004 after obtaining necessary orders from the learned Chief Justice. Mr.B.R.Gupta, SCA/15815/2003 17/68 JUDGMENT learned counsel for the petitioner, failed to supply second sets in the petitions, which were initially listed for hearing before the learned Single Judge and, thereafter placed before the Division Bench. Therefore, the Division Bench by order dated October 27, 2004, dismissed all the petitions for non- prosecution. Feeling aggrieved, the petitioner and others approached the Supreme Court by way of filing Civil Appeal Nos.5961 of 2005 to 6042 of 2005 and the appeals were allowed by an order dated September 30, 2005 in the following terms: "Leave granted. Having heard the learned counsel for the parties at length, we are satisfied that there has been no satisfactory disposal of the matters in issue before the High Court and that has occasioned a failure of justice. In our opinion, the appellants, i.e., the petitioners in the High Court should have been allowed a reasonable opportunity for carrying out orders of the Court so as to make the matters ready for hearing bi-parte. For this reason alone and without expressing any opinion on the merits of the controversy at large before the High Court, the impugned judgment of the High Court is set aside and the Special Civil Applications which were disposed of by the impugned judgment of the High Court are directed to be restored to their original numbers. The matters shall be placed for directions before the Hon'ble Chief Justice of the High Court who may assign the matters for hearing by a Single Judge or a Division Bench consistently with the rules and practice of the High Court but before a bench other than the one which passed the impugned SCA/15815/2003 18/68 JUDGMENT judgment dated 27.10.2004. The appeals stand disposed of.