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PETITIONER: BOLANI ORES LTD.  ETC.

       Vs.

RESPONDENT: STATE OF ORISSA ETC.

DATE OF JUDGMENT24/09/1974

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN BEG, M. HAMEEDULLAH ALAGIRISWAMI, A.

CITATION:  1975 AIR   17            1975 SCR  (2) 138  1974 SCC  (2) 777  CITATOR INFO :  R          1979 SC 779  (8)  F          1980 SC1547  (5)  RF         1981 SC 774  (9)  OPN        1983 SC1005  (7)  R          1988 SC2062  (4)  RF         1989 SC 516  (49)  RF         1991 SC1769  (15)  E          1992 SC1371  (1,2,3,4,5,7,8)  R          1992 SC1376  (2,3,5)

ACT: Motor Vehicles Act, 1939-S. 2(18)-"Adapted for  use"-Meaning of- Orissa Motor Vehicles Taxation Act, 1930-S.  2(c)-Definition by reference --If amendments or repeal in the Principal  Act would  affect  the provisions in the Act in which  they  are referred to.

HEADNOTE: The  appellants  who  owned Dumpers,  Rockers  and  Tractors claimed that these machines were not liable for registration under  s. 22 of the Indian Motor Vehicles Act, 1939  and  as such  were  not taxable under s. 6 of the Bihar  and  Orissa Motor  Vehicles  Taxation Act, 1930.  The trial  court  held that the machinery were motor vehicles within the meaning of s. 2(18) of the Motor Vehicles Act and were therefore liable for  registration  under that Act and so to payment  of  tax under the Taxation Act.  The High Court held that unless  it was  shown that the vehicles were of a special type  adapted for use only in factories or enclosed premises and incapable of  running on any other type of roads or public  roads  the vehicles  were motor vehicles and that the three  types  not being motor vehicles were not liable for registration  under s.  22  of the Act nor were they subject to payment  of  tax under the Taxation Act. Section 2(c) of’ the Taxation Act adopted the definition  of motor  vehicle  contained in the Motor Vehicles  Act,  1914. The  Motor Vehicles Act, 1914 was repealed and  replaced  by the  Motor  Vehicles  Act, 1939.  The  definition  of  motor vehicle  in s. 2(18) of the Motor Vehicles Act  having  been redefined the Taxation Act, by the Orissa Amendment Act 2 of

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1940  adopted that definition for the purpose  of  taxation. The Orissa Amendment Act, 1943 reenacted provisions of ss. 2 to 8 of the Taxation Act as the Amendment Act 2 of 1940  was due to expire.  Section 2(18) of the Motor Vehicles Act  was amended by Act 100 of 1956.  But there was no  corresponding amendment in the definition of s. 2(c) of the Taxation Act. It was contended in this Court that under the definition  of motor vehicle as it existed prior to amendment or subsequent thereto  dumpers,  rockers  and  tractors  were  not   motor vehicles  because they were not adapted to use on  the  road and  (2) the definition of motor vehicle in s. 2(c)  of  the Taxation Act is not a definition by incorporation but only a definition  by  reference and as such the meaning  of  motor vehicle for the purpose of s. 2(c) of the Taxation Act would be  the same as defined from time to time under ss. 8(2)  to 18 of the Motor Vehicles Act. HELD  :  Dumpers and rockers though  registrable  under  the Motor Vehicles Act are not taxable under the Taxation Act as long  as they are working solely within the premises of  the respective  owners.  So far as the tractairs  are  concerned they  are neither registrable under the Motor  Vehicles  Act nor taxable under the Taxation Act. [160 F] A motor vehicle which is not "adapted for use" upon roads to which public have no right of access is not a motor  vehicle within  the meaning of s. 2(18) of the Act.  The  words  "is adapted for use" have the same connotation as "is  suitable" or  "is fit" for use on the roads.  The meaning of the  word adopted" in s. 2(18) of the Act is itself indicated in entry 57 of List If of the 7th Schedule to the Constitution  which confers  powers  on  the  State  to  tax  vehicles   whether propelled mechanically or not and uses the words  "suitable" in relation to its use on the roads.  The words "adapted for use" must. therefore, be constructed as "suitable for  use". The words "adapted for use" 139 cannot be larger in their import by including vehicles which are  not  "suitable  for use" on roads.  A  perusal  of  the provisions  of the Act would justify the conclusion that  it is not necessary for other vehicles registered under the Act to,  be  also liable for payment of tax under  the  Taxation Act. [153 G-A; 151 F-G] Daley  and  others  v. Hargreaves [1961]  1  All  E.R.  552, MacDonald v. Carmichael  (1941)  S.C.  (J)  27,  Maddox   v. Storer [1963] 1 Q.B. 451 and Burns v. Currell     [1963]   2 Q.B. 433, referred to. (2)  The  power  of taxation under Entry 57 List  II  cannot exceed  the compensatory nature which must have  some  nexus with  the vehicles using the public roads.  If the  vehicles do  not use roads notwithstanding that they  are  registered under the Act they cannot be taxed.  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  Vehicles  Act,  1939  then  the intention  of the legislature could not have  been  anything but to incorporate only the definition in the Motor Vehicles Act as it existed in 1943, as if that definition was  bodily written into s. 2(c) of the Taxation Act.  If the subsequent Orissa Motor Vehicle Taxation (Amendment) Act 1943  incorpo- rating  the  definition of "motor vehicle" referred  to  the definition of "motor vehicle" under the Act as then existing the  effect  of this regulative method would  amount  to  an incorporation by reference to the provisions of s. 2(18)  of the  Act  in s. 2(c) of the Taxation  Act.   Any  subsequent amendment  in the Act or a total repeal of the Act  under  a fresh  legislation  on  that topic  would  ’not  affect  the

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definition  of  "motor vehicle" in s. 2(c) of  the  Taxation Act. [155 B; D-E] The  use of the word ’has’ in the expression "has  the  same meaning as in the Motor Vehicle Act, 1939" in s. 2(c) of the Act  would justify the assumption that the  legislature  had intended  to incorporate the definition under the Act as  it then existed and not as it may exist from time to time, [155 F] In re.  Woa’s Estate (1886)31 Ch.D.607, Clarke v.  Bradlaugh (1888)8  Q.B.D. 63, Secretary of State for India in  Council v. Hindusthan Co-operative Insurances Society Ltd.  L.R.  58 I.A.  259, State of Bihar v. S. K. Ray [1966] Supp.   S.C.R. 259 and Ram Sarup v. Munshi and Others [1963] 3 S.C.R.  858, referred to. The  definition  of motor vehicle as existing prior  to  the 1956  amendment  of the Motor Vehicles Act  would  alone  be applicable  as being incorporated in the Taxation Act.   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.   The  power  of taxation  is not in the concurrent List but in List  It  and construed  as a taxation measure the ambit of it  cannot  be extended  by mere implication.  It is possible for both  the Acts  to  Co-exist  even  after  the  definition  of  "motor vehicle" in the Act has been amended. [159 B; 158 H] In  the  instant  case there is evidence to  show  that  the dumpers,  rockers and tractairs are exclusively used on  the premises of the owners. [159 E] The  machines which are the subject matter of these  appeals must be working in their respective mining areas.  The  mere fact  that  them  is  no fence or  barbed  wire  around  the leasehold premises is not conclusive.  There is evidence  to show  that the public are not allowed to go  inside  without prior permission, there are gates and a check on ingress and egress   is  kept  by  guards  who  also  ensure   that   no unauthorised  persons have access to the mining  area.  [160 DE]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1816 & 1817 of 1968. Appeal from the Judgment & Order dated the 30th March,  1967 of Orissa High Court in F.As. Nos, 44 & 45 of 1963, Writ Petition No. 372 of 1974 140 Petition under Article 32 of the Constitution of India Civil Appeal No. 336 of 1970 Appeal  by Special Leave from the Judgment and  order  dated 28th March 1969 of the Mysore High Court in W.P. No. 226  of 1967. Lal Narain Sinha, Sol.  Gen. of India, A. K. Basu and D.  N. Gupta,   for  the  Appellant  (In  CA.   No.  1816/68)   and Petitioner in W.P. No. 372/74); A.   K. Basu & D. N. Gupta, for the Appellant (In CAS.  Nos. 1817/ 68); V.   M. Tarkunde, Santosh Chatterjee and R. N. Sachthey, for the  Respondents  (In  CAs.  Nos. 1816-1817/68  &  W.P.  No. 372/74); Soli  J.  Sorabjee, Obed Shenio, P.  C.  Bhartari,  Ravinder Narain & K.   J. John, for Intervener No. 1; S.   P. Nayar for Intervener No. 2; S.   T.  Desai,  B.  P.  Maheshwari  and  Suresh  Seth,  for

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Intervener No. S.   T.  Desai,  B.  P. Maheshwari &  Suresh  Seth  for  the Appellant (In CA No. 336/70). M. Veerappa, for the respondent (In C.A. No. 336/70). The Judgment of the Court was delivered by JAGANMOHAN  REDDY, J.-These appeals raise a common  question :as  to  whether  Dumpers, Rockers and  Tractors  are  motor vehicles  within  the meaning of the  relevant  State  Motor Vehicles   Taxation  Acts,  and  are   accordingly   taxable thereunder.   Apart  from these appeals, Bolani  Ores  Ltd.- Appellant in Civil Appeal No. 1816 of 1968-has filed a  writ petition  challenging  the constitutional  validity  of  the Bihar  and  Orissa Motor Vehicles Taxation Act,  1930.   The question  raised  in the writ petition will only  arise  for determination,  if the judgment of the High Court of  Orissa is   held  to  be  valid  otherwise  the  question  of   the constitutional  validity  of  the  Bihar  and  Orissa  Motor Vehicles  Taxation  Act  (hereinafter 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 141 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 Appeal No. 44 of 1963 was filed in  the Orissa High Court.  The State did not file any cross  appeal against the declaration that item (6) was not taxable.   The High Court was of the view that unless it is shown that  the vehicle  is  of  a  special type adapted  for  use  only  in factories  or enclosed premises and incapable of running  on any  other type of roads or public roads, the vehicles  were motor  vehicles.   It  was conceded during  the  hearing  on behalf  of the appellant that type (8) Fargo  Truck  clearly comes  within the definition of motor vehicle  and  likewise the    Advocate    General   conceded    that    type    (2) Ingersoll--Hand-Drill  Master cannot be held to be  a  Motor Vehicle.   The High Court accordingly modified the order  of the  Trial Court in respect of-the types in items  (1),  (2) and  (3).   It held that these three types as  well  as  the Motor Grader in item (6) already held by the Trial Court not to  be  a motor vehicle, were not  liable  for  registration under s. 22 of the Act, nor would they be subject to payment of tax under the Taxation Act. In  the  suit filed by Orissa  Mineral  Development  Company Ltd.,  out of which First Appeal No. 45 of 1963  arose,  the plaintiff sought a declaration that nine types of  machinery which it owns were not liable for registration under the Act :  Item  (1)  & (2) being Dumpers, (3)&  (3A)  Tractors  (4) Caterpillar  Trax  Cavetror,  (5) &  (6)  Caterpillar  Bull-

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dozers: (7) & (8) Scrapers and (9) Shovel.  The Trial  Court found  on  evidence  that items (4) to (9)  had  a  sort  of crawler  mechanism and were not adapted for regular  use  on the  roads.   This fact was also admitted  by  the  opposite party.  Accordingly it held that the vehicles in these Items did  not come within the ambit of the  definition  of.’motor vehicle’   under   s.  2(18)  and  were   not   liable   for registration  under s. 22 of the Act.  The case  of  Dumpers and Tractors items (1) to (3) and (3A), however, was held to stand on a different footing, as these vehicles were adapted for  being used on roads for transporting the goods  of  the plaintiffs  though  it  may  be  within  its  own  field  of operation.   The reasons for bringing such vehicles and  the tractors  within  the purview of s. 2(18) of  the  Act  were discussed  at  some length, and accordingly it was  held  in both the suits that the vehicle indicated in the  respective suit were liable for registration under s. 22 of the Act and for payment of the requisite 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 142 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 transport  of goods or passengers", which, in its view,  was not "the same thing as saying that if the vehicle is not put to use elsewhere, or used for a special purpose, it must  be exempted from registration under section 22 of the Act."  It further  observed : "The test of purpose, as argued  by  the learned  counsel,  does not also, in our view  fall  clearly within  the purview of the statutory "exemption  in  section 2(18)  of the Act.  On the other hand, what is  enjoined  is that  its very design and manufacture must be such as  would confine its capability for use only in a factory or enclosed premises,"  Referring to the case of M/s.  Bolani Ores  Ltd. v.  State  of Orissa, (1) the interpretation placed  by  the Orissa  High Court on the judgment of the Supreme  Court  in The State of Mysore v. Syed lbrahim(2) was not accepted.  On this aspect of the Mysore High Court observed :               "But,  it  may  also  be  noted  that  in  the               decision of the Supreme Court, above  referred               to, what was in question was whether the owner               of   a   Motor  Car,  which   was   used   for               transporting  passengers for hire  was  liable               for  prosecution  under section 42(1)  of  the               Act.   The exemption under section  2(18)  did               not   fall  for  consideration  in  the   said               decision.   It  was in this context  that  the               Supreme  Court  laid  down  that  if  a  Motor               Vehicle  is used as a transport  vehicle,  the

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             owner  who so uses it or permits it to  be  so               used  is  required  to  obtain  the  necessary               permit.   It  is the use of  the  vehicle  for               carrying  passengers for hire or reward  which               determines the application of section 42(1) of               the Act." The_High  Court, however, agreed with the test laid down  by the  Orissa High Court for determining what under the  Motor Vehicles Act is a ’motor vehicle’. The decision in these appeals hinges on the view we take  of what a ’motor vehicle’ is for the purpose of s. 2(c) of  the Taxation  Act  under which the motor vehicle  has  the  same meaning as in the Motor Vehicles Act, 1939, and whether  the subsequent  amendment of the definition in s. 2(18)  of  the Act  by the Motor Vehicles (Amendment) Act, will govern  the definition  of  ’motor  vehicle’ for  the  purposes  of  the Taxation  Act.   Section 6 of the Taxation  Act  imposes  on every  motor  vehicle  a tax at the rate  specified  in  the Second Schedule to the Act.  The question, therefore, 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 (1)  A. I.R.1958 Orissa 1. (2) [1967] 2 S. C. R. 67 3. 143 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 Amendment Act 2 of 1940 was due to  expire on November 23, 1943.  Section 2(18) of  the  Act was,  however, amended by Act 100 of 1956 but there  was  no corresponding amendment in the definition of s. 2(c) of  the Taxation Act.  It is, therefore, contended that the  amended definition  is inapplicable ’Lo the Taxation Act, but it  is only the definition of a ’motor vehicle’ as it existed under the  Act  prior to the amendment that has to be read  in  s. 2(c)  of  the  Taxation Act, inasmuch  as  the  purpose  and intendment  of the Legislature was only to  incorporate  the definition  as it existed at the time when the Taxation  Act was  amended  in 1943.  If it was otherwise,  following  the legislative  practice adopted earlier by the  Orissa  Legis- lature, the definition of a ’motor vehicle’ would have  been suitably  amended in order to avoid any repugnancy with  the amendment.  Apart from this contention, it is also submitted that  under  the  definition  as it  existed  prior  to  the amendment   or  subsequent  thereto  dumpers,  rockers   and tractors  are  not ’motor vehicles’, because  they  are  not adapted for use on the road. Before  we deal with this question it is necessary  to  note the preliminary objection raised by the learned Advocate for

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the  State  of  Orissa that the  appellants  should  not  be permitted  to raise this question as it was not  pleaded  or urged  either  before  the Trial Court or  before  the  High Court,  nor is there any evidence to determine the  question whether the vehicles, on which the levy of the impugned  tax is  held to be valid, are used solely upon the  premises  of the owners.  It is submitted that the contention is contrary to  what  is stated- in the plaint and that it is  also  not covered by any of the issues under which the question as  to whether the premises in which the plaintiffs operate are the exclusive  premises  of  the plaintiffs, nor  is  there  any evidence  as to whether the area where the vehicles  operate is the exclusive area of the plaintiffs. In  our  view, the preliminary objection  has  no  validity, because,  firstly, in para 2 of the plaint it is  definitely pleaded   :  "That  for  the  specific  purpose  of   mining operations  within  their  leasehold  areas,  they   possess Caterpillar  Bulldozers Model D.S.  Letourneau  Westinghouse Dumpers  and  Euclid Dumpers  Motor Grader  Tractors.  Fargo Truck" etc.  "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, 144 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, viz.   "Are  the suit vehicles not ’motor vehicles’ within the provisions  of Motor Vehicles Act ?" and "Are the suit vehicles liable  for registration  and taxation? respectively give scope for  the question  now raised.  Lastly, the evidence also  which  has been led by the plaintiffs, and to which we shall have occa- sion  to refer later entitles the appellants to  raise  this question.   For  these reasons, we  reject  the  preliminary objection. It is now necessary to compare the two definitions of ’motor vehicle’ under s. 2(18) of the Act both before and after the amendment  by  Act 100 of 1956.  We, therefore,  give  below both these definitions Section 2 (18) before amendment. motor  vehicle"  means any  mechanically  propelled  vehicle adapted  for use upon roads whether the power of  propulsion is  transmitted thereto from an external or internal  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 used solely upon the premises of the owner. Section 2 (18) after amendment by Act 100 of 1956 "motor  vehicle"  means any mechanically  propelled  vehicle adapted  for use upon roads whether the power of  propulsion

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is  transmitted thereto from an external or internal  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. it will be observed from a comparison of the two definitions that the vehicles which have been taken out of the  category of a ’motor vehicle’ are different in these two definitions. Before the amendment a motor vehicle though a motor  vehicle within  the meaning of the first part of the  definition  is nonetheless  not so, because of its specified user, i.e.  if it  is  used solely upon the premises of the  owner.   These vehicles  under s. 6 of the Taxation Act read with  s.  2(c) thereof  would not attract liability to tax.  But after  the amendment though a motor vehicle may be adapted for use upon roads, nonetheless in order to be taken out of the  category of  the definition it had to be further adapted, namely,  it should  be a vehicle of a special type adapted for use  only in a factory or in any other enclosed premises.  In other 145 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 the meanings assigned to them  in  the Motor  Vehicles Act, 1939.  It is also pertinent to  mention that  the  Andhra  Pradesh  (Andhra  Area)  Motor   Vehicles Taxation Act by s. 2(v) defines a ’public road’ and by s.  4 which is the taxing provision it is provided that the  State Government  may,  by notification in the  Official  Gazette, from time to time direct that a tax shall be levied on every motor  vehicle using any public road in the Andhra  area  of the State of Andhra Pradesh. The Madras Act uses the same language as that of the  Andhra Pradesh (Andhra Area) Act.  It appears that using any public road  in the Presidency of Madras was first substituted  for the words "kept or used in the Presidency of Madras" by s. 3 (1)  of the Madras Motor Vehicles Taxation (Amendment)  Act, 1932 (Madras Act V of 1932). The  Bombay  Motor Vehicles Tax Act, 1958 follows  the  same pattern  as the Mysore Act and though it does not  define  a ’motor  vehicle’,  yet, by s. 2(10) it provides  that  other words  and  expressions used, but not defined,  in  the  Act shall have the meanings respectively assigned to them in the Motor Vehicles Act, 1939. The Bengal Motor Vehicles Tax Act, 1932, also is similar  as that  of  the Bombay Act inasmuch as s.2(5)  thereof  states that words and expressions used, but not defined, in the Act shall  have the same meaning as in the Motor  Vehicles  Act,

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1939. In all these cases the common question would be whether  the definition  of  a ’motor vehicle’ as it existed  before  the Amendment  Act  of  1956 is the same as in s.  2(c)  of  the Taxation  Act  or  does the definition in  s.  2(c)  of  the Taxation  Act mean that the motor vehicle as defined in  the Act from time to time is to be adopted for the purpose of s. 2(c) of the Taxation Act.  In so far as the larger  question is L251 Sup.CI/75 146 concerned,  as,to Whether dumpers, rockers and tractors  are motor  vehicles at all within the meaning of the first  part of  the  definition of ’motor vehicle’ in s. 2 (18)  of  the Act, which is the same before and after the amendment, it is contended that these vehicles are :not suitably adapted  for use  upon  roads, which according to the  learned  Advocates mean  the public roads or roads, to which the public  has  a right  of  access.   The Motor Vehicles  Taxation  Acts  are enacted  in  exercise of the powers conferred on  the  State Legislatures  under  entry  57 of List  II  of  the  Seventh 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.(1) In this case, the earlier  decision in  Atiabari  Tea  Company Ltd. v. The State  of  Assam  and others  (2) 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 Act does not place the burden  of taxation on the registered owners of the motor vehicles, but only  on  the persons who keep the motor  vehicles  for  use which would mean use their on the public roads.  If no  such use of public roads is made or the vehicles are not such  as can be used on the public roads, then no tax could be levied under  the Taxation Act.  Reference in the Taxation  Act  to the  registered owners is, it is submitted, meant  only  for the  purpose of enabling refund of tax paid but not  payable in  terms  of the Act, or s. 7 of the Taxation  Act.   Under Entry  35 of the Concurrent List, the Parliament as well  as the  State  Legislatures can legislate in  respect  of  only mechanically propelled vehicles including the principles  on which  taxes on such vehicles are to be levied.  It  has  no power  to  deal  with vehicles which  are  not  mechanically propelled   though  under  the  Taxation  Act   these   non- mechanically  propelled vehicles which are suitable for  use on  roads  can  also  be  taxed  even  without  their  being registered  under the Act.  It will thus be seen that  while entry  57  of  List II is solely  concerned  with  taxes  on vehicles  whether  mechanically propelled or not,  entry  35 deals  with  also  the principles on  which  taxes  on  such

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vehicles  are  to be levied.  Taxes on vehicles  cannot  the liability  to pay taxes at the rates at which the taxes  are to be levied.  On the other hand, the expression ’principles of  taxation’  denote  rules of guidance in  the  matter  of taxation.  The ambit and amplitude of these two  legislative entries  in the respective Lists was dealt with in State  of Assam & Others (1) [1963] 1 S. C. R. 491. (2) [1961] 1 S. C. R. 809. 147 v. Labanya Probha Debi,(1) where Suba Rao CJ., speaking  for the. Constitution Bench of this Court observed at p. 614                "The  two  entries deal  with  two  different               matters  though  allied  ones-one  deals  with               taxes  on  vehicles  and the  other  with  the               principles  on  which  such taxes  are  to  be               levied. when two entries in the  Constitution,               whether  in the same List or different  Lists,               deal  with  two  subjects,  if  possible,   an               attempt shall be made to harmonize them rather               than  to bring them into conflict.   Taxes  on               vehicles in their ordinary meaning connote the               liability  to pay taxes at the rates at  which               the  taxes  are to be levied.   On  the  other               hand, the expression " 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 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 not, then they are not ’motor vehicles’ within  the meaning of either the Act or the  Taxation  Act; (3)  the concept ’adapted for use on roads’ must lie  within the  ambit  of  the expression  used  by  the  Constitution; otherwise it would be unconstitutional.  It must, therefore, follow that the definition can only refer to vehicles  which are  reasonably suitable for the road in the sense  that  an average  man could think that plying of the vehicles on  the road would be one of the normal uses of the vehicles.   That alone  would  be  a test of suitability;  and  (4)  for  the interpretation  of s. 22 of the Act it would be  permissible and even obligatory to examine the section not in  isolation but  in the light of the object and scheme- of the  Act  and the   regulatory  provisions  regarding  the  licensing   of drivers,  issuing  of  permits,  provisions  for  compulsory

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registration and other regulatory provision are confined  to the  vehicles on the public roads.  The provisions of s.  22 are  definitely  to advance the objects of the  Act  and  to effectuate the regulatory provisions.  By the very  language the  principal  purpose is to insist  upon  registration  in respect of vehicles plying in public places.  Further, the (1)  [1967] 3 S. C. R. 611. 148 expression must be interpreted to advance the object of  the Act  exactly as the other para of s. 22 does.  In this  view the  expression  "purpose of carrying passengers  or  goods" cannot mean the personal use of the owner.  A person himself cannot  be the passenger and goods, and as such it must  not be  interpreted  disjunctively.  It is a  single  expression "passenger   or   goods".  It  is  conceivable   that   this alternative  part of the section is only to ensure  that  in connection with the journey on a public road even if a motor vehicle  goes  into  a place which will not  be  strictly  a public  place like hotel or inside a railway, such as  in  a Railway Station, or even inside the premises of a bus depot, hospitals,  etc.  provisions  for  compulsory   registration should  be  applicable.  The judgment of the High  Court  is assailed  on the ground that while formulating the  test  to determine whether a vehicle is adapted for use on the  roads it  has  evidently equated compatibility  with  suitability, because at certain places it has laid down the test in 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 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  construction  should  be avoided  by  courts.  He further submitted that  the  Orissa High  Court  has misconstrued the judgment of  the,  Supreme Court  in  State  of Mysore v. Syed  Ibrahim,(1)  where  the observations  were made with reference to the definition  of "a  public  service vehicle" as defined in s. 2(25)  of  the Act, under which user by itself was sufficient to bring  the vehicle  within  its  purview.  He has referred  us  to  ss. 47(f), 55(f), 71(2), 74, 75(1) and (3) and 77 of the Act  in support of his proposition that having regard to the general object,  purpose  and  the policy  underlying  the  Act  the expression  "roads" must mean public roads and  not  private roads.  If so, the dumpers, rockers and tractors etc.  which do  not ply or are not suitable for plying on  public  roads cannot be either registered under the Act or taxed under the Taxation Act.

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Mr.  Tarkunde  for the State of Orissa  submits  that  every motor vehicle registered under the Act is liable to pay  tax under  the  Taxation  Act and  since  dumpers,  rockers  and tractors are by their nature (1)  [1967] 2 S. C. R. 673. 149 adapted for use on the roads they are registerable, and they have  to  be registered and are liable for  payment  of  tax under  the  Taxation  Act.  There has been a  good  deal  of argument  on  both sides on the meaning  of  the  expression "adapted  for  use upon roads".  We have  been  referred  to certain English decisions which deal with the meaning of the word ’adapted’ in the English Road Traffic Act, 1960.  While the definition of ’motor vehicle’ in the Act describes it as a mechanically propelled vehicle adapted for use upon roads, the English Road Traffic Act describes it as a  mechanically propelled  vehicle "intended or adapted for use  on  roads". Even  the earlier English Road Traffic Act, 1930,  had  used the  words  "intended or adapted for use  on  roads",  while making Part I applicable to motor vehicles. In  Daley  and  others v. Hargreaves(1)  the  Queen’s  Bench Division  took  the  view  that as  there  was  no  evidence sufficient  to  show  that the  dumpers  were  "intended  or adapted for use on roads" within the meaning of s. 36 of the Road  and  Rail  Traffic Act., 1933, 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(2) 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 dumpers used  were motor vehicles. While  dealing  with  the  English  cases  it  must  not  be forgotten that the definition of "motor vehicle" in the Road Traffic  Act  imports  the element  of  intention  into  the definition  for  ascertaining whether a vehicle is  a  motor vehicle.   In  Maddox V. Storer,(3) Lord Parker,  C.J.,  was construing  the word "adapted" when used disjunctively  with "constructed".  He observed at p. 456 :                "One can get illustration after illustration,               on looking at the Act itself, where "adapted,"               when used disjunctively with                (1) [1961] 1 All E. R. 552.                (2) [1941] S. C. (J) 27.                (3)  [1963] 1 Q. B. 451.

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             150               "constructed" must mean a physical alteration,               and, as it seems to me, other cases where  the               word "adapted" alone is used and where it must               be given the adjectival meaning of be’ fit and               apt for the purpose." But where the word "adapted" alone has been used such as  in subparagraph (2) of paragraph 1 of the First Schedule to the Road  Traffic  Act,  1960, he was of the view  that  it  was wholly inapt to mean "altered so as to make fit".  He  asked "How do you alter a motor-car so as to make it fit to  carry not  more  than  seven passengers" ?  It  is  clearly  there standing  on its own, susceptible only of meaning  "fit  and apt for the purpose." In  Burns  v.  Currell(1) also  Lord  Parker  delivered  the judgment.   He referred to the decision in Daley,  MacDonald Maddox (supra) observed at p. 440 thus :               "But  to  define exactly the  meaning  of  the               words  "intended  or adapted" is by  no  means               easy.  I think that the expression "intended",               to  take  that  word  first,  does  not   mean               "intended by the user of the vehicle either at               the  moment of the alleged offence or for  the               future".    I  do  not  think  it  means   the               intention   of   the   manufacturer   or   the               wholesaler or the retailer;" After referring to Salmon, J.’s observations in Daley’s case (supra) and the suggestion that the word "intended" might be paraphrased  as  "suitable or apt" Lord.Parker  pointed  out that  it  may  be merely a difference  of  wording,  but  he 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." The decisions rendered on the definition of ’motor  vehicle’ under  the  English  Road Traffic Act are  of  little  help, because that definition (1)  [1963] 2 Q. B. 433.  151 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

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Traffic   Act,   we   should  take   assistance   from   his observations.   It  appears to us that where  two  words  of different  import  are  used which in the  context,  of  the scheme of the Act and its purpose play an important part, to ask  us  to take the meaning given of one of the  words  and import  it as the meaning for the purposes of the  Act  even when  the  same word is used, is perhaps to place  us  in  a similar predicament as that of the gentleman who when  asked to expound on Chinese metaphysics, not knowing how to  begin looked   up  the  article  on  China  in  the   Encyclopedia Britannica and also on metaphysics and combined the two into Chinese metaphysics. As  usual references have been made to the Dictionaries  but quite  often it is not possible to hold a dictionary in  one hand  and  the statute to be interpreted in  the  other  for ascertaining the import and intent of the word or expression used  by the Legislature.  The shade of meaning of  a  word, its different connotations and collocations which one  finds in a dictionary does not relieve us of the responsibility of having  to make the ultimate choice of selecting  the  right meaning  We  choose that meaning which is most  apt  in  the context, colour and diction in which the word is used.   The use of a dictionary ad lib without an analysis of the entire Act,  its  purpose  and its  intent,  for  ascertaining  the meaning in which the Legislature could have used the word or expression  may not lead us to the right  conclusion.   With this  caution  before us for avoiding any of  the  aforesaid methods which might lead to a possible incongruity, we  will examine the different facets to which our attention has been drawn. The meaning of the word "adapted" in s. 2(18) of the Act  is itself  indicated  in  entry 57 of List II  of  the  Seventh Schedule  to the Constitution, which confers a power on  the State to tax vehicles whether propelled 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, made fit or suitable for  we  on roads.  They would, if used, dig and 152 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

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roads  on which vehicles heavier than what is  indicated  in the  notification cannot be permitted.  But that is  not  to say  that all vehicles which exceed a particular weight  are not adapted for use upon roads and are, therefore, not motor vehicles.   A  dumper in the Mysore case  according  to  the manufacturer’s own specifications is suitable for roads  and is described thus :               " The dumper will carry: bulk goods,  building               materials,  mining products, agricultural  and               forestry  products,  earth,  stones,   bricks,               concrete, mortar, etc.               The structure is of simple design and easy  to               handle.   Tripping is performed  by  releasing               the locking device retaining the tipping body.               The dumper requires no more than a few seconds               for the emptying of its tipping body and gives               no  trouble to the driver when being  operated               on  uphill  or downhill roads, With  its  load               unbalanced, or when the load refuses to  slide               out easily.               Quickness and ease characterise the  operation               of  the dumper and the clumsy manoeuvring  can               be  dispensed with.  In narrow lanes or  rough               roads  where  turning would be  impossible  or               undesirable, the seat is turned and will  face               driving direction." It  is also averred in the plaint in the suit filed  by  the appellant Bolani Ores Ltd. that Euclid Dumpers are used  for transporting  ore from the mining faces to the crushing  and screening plant or from head mine stockpile to near  railway siding.  Rockers also seem to be similar to dumpers.  But in this case rockers are heavier than dumpers. In  so far as the tractairs are concerned,  attachments  are fitted  for the purpose of supplying compressed air to  Jack Hammer Drills which are used to drill holes in the ore  body so  that explosive charges may be inserted in them to  break the  ore  into manageable sizes.  In  respect  of  all-these three types of vehicles 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 153 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 of  the objects and reasons, would justify the conclusion that it is

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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 he holds an effective  driving  licence issued to himself authorizing him to drive the vehicle,  and no person shall be drive a motor vehicle as a paid  employee or  shall  so drive a transport vehicle unless  his  driving licence  specifically  entitles  him so  to  do."  A  ’motor vehicle’ under s. 2(18) has been defined as any mechanically propelled vehicle adapted for use upon roads.  Having regard to  the  context of the definition of "public place"  in  S. 2(24)  of the Act, the regulatory character of the Act,  and the use of the word ’road’ used in a public Act, road  would mean a "public road" which word as already noticed has  been used  will the Andhra Pradesh (Andhra Area)  Motor  Vehicles Taxation  Act.  The word "public place" has been defined  in S.  2(24)  as  meaning "a road street, way  or  other  place "whether  a thoroughfare or not, to which the public have  a right of access".  If the public have no right of access  to any  place which is not a road, street, way or  thoroughfare it will not be a public place.  A motor vehicle which is not adapted for use upon roads to which the public have no right of  access is not a motor vehicle within the meaning  of  S. 2(18) of the Act.  But where a vehicle is adapted for use on a  road which is neither more nor less than that it is  made suitable or fit for use upon road, i.e. public roads, it  is a  motor  vehicle, and if such a motor vehicle  is  a  goods vehicle  under  S. 2(8) which means a vehicle which  is  not only suitable or fit for use upon roads but is  "constructed or adapted for use for the carriage of goods" or where it is not so constructed or adapted when used for the carriage  of goods  solely 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 154 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 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

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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  them is the one which  is  incorporated  by reference under s. 2 (c) of the Taxation Act, then no tax is leviable  on  these vehicles under the Taxation  Act.   Shri Tarkunde   for  the  State  of  Orissa  contends  that   the definition of ’motor vehicle’ in s. 2(c) of the Taxation Act is  not a definition by incorporation but only a  definition by reference, and as such the meaning of ’motor vehicle  for the purpose of s. 2(c) of the Taxation Act would be the same as defined from time to time under s. 2(18) of the Act.   In ascertaining  the intention of the Legislature  in  adopting the  method of merely referring to the definition of  ’motor vehicle’ under the Act for the purpose of the Taxation  Act, we  have to keep in mind its purpose and intendment as  also that of the Motor Vehicles Act.  We have already stated what these   purposes   are  and  having  regard  to   them   the registration of a motor vehicle does not automatically  make it liable for taxation under the Taxation Act.  The Taxation Act is a regulatory measure imposing, compensatory taxes for the  purpose of raising revenue to meet the expenditure  for making  roads,  maintaining them and  for  facilitating  the movement  and  regulation of traffic.  The validity  of  the taxing power under entry 57 List II of the Seventh  Schedule read  with  Art. 301 of the Constitution  depends  upon  the regulatory and compensatory nature of the taxes.  It is  not the  purpose of the Taxation Act to levy taxes  on  vehicles which  do not use the roads or in any way form part  of  the flow  of  traffic  on  the roads which  is  required  to  be regulated.  The regulations under the Motor Vehicles Act for registration  and  prohibition  of  certain  categories   of vehicles being driven by persons 155 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 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

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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, amount to an incorporation by  reference of  the provisions of s. 2(18) of the Act in s. 2(c) of  the Taxation  Act.   Any subsequent amendment in the  Act  or  a total  repeal of the Act under a fresh legislation  on  that topic would not affect the definition of ’motor vehicle’  in s.  2(c)  of  the-Taxation Act.   This  is  a  well-accepted interpretation  both in this country as well as  in  England which  has to a large extent influenced our law.  This  view is  further  reinforced by the use of the word  has  in  the expression  "has the same meaning as in the  Motor  Vehicles Act,  1939"  in  s. 2(c) of the Taxation  Act,  which  would perhaps further justify the assumption that the  Legislature had intended to incorporate the definition under the Art  as it  then existed and not as it may exist from time to  time. This  method  of  drafting  which  adopts  incorporation  by reference  to  another  Act  whatever  may  have  been   its historical  justification in England, in this  country  does not  exhibit  an activities draftsmanship which  would  have adopted  the method of providing its own definition.   Where two Acts are complimentary or interconnected, legislation by reference may be an easier method because a definition given in  the one Act may be made to do as the definition  in  the other   Act  both  of  which  being  enacted  by  the   same Legislature.   At any rate, Lord Esher, M.R.,  dialing  with legislation  by  incorporation,  in  In  re.  Wood’s  Estate state(1) said at p. 615:               If  a  subsequent Act brings  into  itself  by               reference some of he clauses of a former  Act,               the legal effect of that, as has                (1)  [1886] 31 Ch.  D. 607.                156               often  been held, is to write  those  sections               into  the  new 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(1) 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.(2) 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 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

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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  adopting  the               provisions  of  the Land  Acquisition  Act  is               there  anything  to suggest  that  the  Bengal               Legislature intended to bind themselves to any               future  additions which might be made to  that               Act.   It  is at least  conceivable  that  new               provisions  might have been added to the  Land               Acquisition   Act   which  would   be   wholly               unsuitable to the Local code.  Nor again, does               Act XIX of 1921 contain any provision that the               amendments enacted by it are to be treated  as               in  any  way  retrospective,  or  are  to   be               regarded as affecting any other enactment than               the   Land  Acquisition  Act  itself.    Their               Lordships  regard  the  local  Act  as   doing               nothing   more  than   incorporating   certain               provisions  from  an  existing  Act,  and  for               convenience of drafting doing so by  reference               to that Act, instead of setting out for itself               at length the provisions which it was  desired               to adopt."               (1) [1881] 8 Q. D. D. 63.               (2) L. R. 58 I. A. 259.                157               It was further observed at p. 267 :               "In  this country it is accepted that where  a               statute  is incorporated by reference  into  a               second  statute,  the  repeal  of  the   first               statute  does not affect the second : see  the               cases collected in Craies on Statute Law,  3rd               edn.  pp.  349,  350.   This  doctrine   finds               expression  in  a  common-form  section  which               regularly   appears   in  the   amending   and               repealing  Acts which are passed from time  to               time  in  India.  x x x x  x  The  independent               existence   of  the  two  Acts  is   therefore               recognized;  despite the death of  the  parent               Act,    its   offspring   survives   in    the               incorporating  Act.   Though  no  such  saving               clause  appears  in the General  Clauses  Act,               their  Lordships  think  that  the  principles               involved is as applicable in India 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

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Sampethu Chetty and Another(1) considered the Privy  Council decision  in the Hindusthan Co-operative  Insurance  Society Ltd. (2) and distinguished that case and held the  principle inapplicable to the facts of that case. In State of Bihar v. S. K. Roy(2) 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 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  the  Coal  Mines Provident Fund and Bonn&, (1) [1962] 3 S.C.R. 786, at pp. 830-833. (2) L.R. 58 I.A. 259. (3)  [1966] Supp.  S.C.R. 259. 158 Schemes  Act, 1948.  Ramaswami, J., speaking for  the  Court observed at p. 261 :               "As  a matter of construction it must be  held               that   all  works,  machinery,  tramways   and               sidings, whether above or below ground, in nor               adjacent  to a coal mine will come within  the               scope  and ambit of the definition  only  when               they belong to the coal mine.  In other words,               the word "or" occurring before the  expression               "belonging  to  a  coal  mine"  in  the   main               definition has to be read to mean "and"." This case, as well as the decision in New Central Jute Mills Co.  Ltd.  V.  The Assistant Collector  of  Central  Excise, Allahabad & others,(1) are distinguishable on the facts  and legislation  which this Court was considering.  In  the  New Central  Jute  Mills Co. Ltds.(1) case,  the  Privy  Council decision  in the Hindusthan Co-operative  Insurance  Society Ltd.’s  case (supra) was referred to and distinguished.   It is, however, contended by the learned Solicitor General that both  in Nathella Sampathu Chetty’s case (supra) as well  as the New Central Jute Mills Co. Ltd.’s case(1) this Court was considering  the effects of the two Acts which were made  by Parliament by central legislation and it is, therefore,  not strictly  a  case  of  incorporation  because  the   Central Legislature  is  deemed  to have, while  making  the  latter enactment,  kept in view the provisions of the  former  Act. In our view this may not be conclusive. in Ram Sarup v. Munshi and Others(2) 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

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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  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 (1) [1971] S.C.R. 92. (2) [1963] 3 S.C.R. 858. 159 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  Clauses Act,  1897  in  support of his  contention  that  after  the amendment,the amended definition would apply to the Taxation Act.   But we do not think that there is  any  justification for this,submission.  Section 6 of the General Clauses  Act, 1897, specifically refers to that Act, or any Central Act or Regulation  made  after  the  commencement  of  the  General Clauses  Act  and  states  that if  these  Acts  repeal  any enactment,  hitherto  made or hereafter to  be  made,  then, unless  a different intention appears, the repeal shall  not affect  the matters specified in clauses (a) to (e) of  that section.  Since the Taxation Act is a State Act neither s. 6 nor  s.  6A of the General Clauses Act  has  any  relevance. That  Act has to be interpreted in the light of  the  Orissa General  Clauses Act and since there is no question  of  any amendment or any repeal of any of the Orissa Acts  affecting the Taxation Act, s. 7 of the Orissa General Clauses Act has also  no  relevance.  If so the question  is  whether  these vehicles  were used solely upon the premises of  the  owner. On  this  aspect, there can be no doubt,  because  there  is evidence  to  show  that  dumpers,  rockers  and  tractaires (tractors  with air compressed attachment)  are  exclusively used on the premises of the owners. In  Civil  Appeal  No.  1816  of  1968  P.  W.  1  Assistant Superintendent of Mines, Bolani Ores Ltd., stated that there is  no  public  road within their  leasehold  premises.   No member of public is allowed to enter into leasehold premises without  due  permission obtained before  hand.   They  have check-gates  on the approach road to their  leasehold.   All the machines are within leasehold and never outside it.   In

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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. 160 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  accidents,  particular area  where  dumpers are being used have necessarily  to  be fenced.   This  is required under the Mining Act  and  Rules framed  thereunder."  In reply to paragraph 4  it  has  been stated  by  the  respondent  that  the  allegations  of  the deponent  in  paragraph  4  of  his  affidavit  except   the allegation  that  the  mining area is  a  well  defined  and enclosed area are substantially correct. From  the  very nature of the area operated by  these  three companies  it  is obvious that the machines  which  are  the subject-matter  of  these appeals must be working  in  their respective  mining  areas.  The mere fact that there  is  no fence  or the barbed wire around, the leasehold premises  is not  conclusive.  There is evidence to show that the  public arc not allowed to go inside without prior permission, there are  gates  and  a check on ingress and egress  is  kept  by guards  who  also ensure that no unauthorised  persons  have access  to the mining area, all of which indicate  that  the respective  mining  areas are enclosed premises  within  the meaning of the exceptions under s. 2(c) of the Taxation Act. In the result Civil Appeal 336/70 is dismissed with cost and other  appeal-,  are  partly allowed and  it  is  held  that dumpers and rockers though registrable under the Act are not taxable  under the Taxation Act as long as they are  working solely within the premises of the respective owners.  So far as the tractairs are concerned they are neither registerable under  the  Act  nor taxable under the  Taxation  Act.   The appellants will get proportionate costs. As  we  have held that these machines are  not  taxable  the question  about the constitutional validity of the  Taxation

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Act  challenged  by Writ Petition No. 372 of 1974  filed  by Bolani  Ores  Ltd.  would become academic and  need  not  be considered.  The writ petition is accordingly dismissed  but without costs. P.B.R. C.A.336/70 and W.P. 372/74 dismissed C.   A. 1816-1817/68 partly allowed. 161