29 April 1992
Supreme Court


Case number: Appeal Civil 868 of 1977








CITATION:  1992 AIR 1371            1992 SCR  (2) 982  1992 SCC  Supl.  (3) 133 JT 1992 (3)    77  1992 SCALE  (1)984  CITATOR INFO :  F          1992 SC1376  (3,5)

ACT:      Bihar   and   Orissa  Motor  Vehicles   Taxation   Act, 1930/Orissa Motor Vehicles Tax Act, 1975:      Section  2(c) and 6/2(b)-‘Motor  Vehicle’-Amendment  to the  definition-Restrospective  application-Whether   valid- Dumpers  Rockers etc.-Whether motor vehicles are  liable  to taxation.

HEADNOTE:      The   appellant  companies  were  engaged   in   mining activities  and  for this purpose put to use  a  variety  of machinery  including  Dumpers  and  Rockers,  within   their leasehold  areas.   The appellants were asked by  the  State Government  to register the said machines as vehicles  under the Motor Vehicles Act, 1939 and to pay tax under section  6 of  the Bihar and Orissa Motor Vehicles Taxation Act,  1930, as also under the Madras Vehicles (Taxation) Act, 1931.   In section 2(c) of the Taxation Act and in the charging section 6,  the  definition  of  ‘Motor  Vehicle’  referred  to  the definition of ‘Motor Vehicle’ under the Motor Vehicles Act.      In  Bolani Ores Ltd. Etc. v. State of Orissa, [1975]  2 SCR  138,  this  Court held that the  definition  of  ‘Motor Vehicle’  as existing prior to the 1956 amendment  would  be applicable  as that was the one which stood incorporated  in the  Taxation Act.  With this, the Dumpers and Rockers  went out  of the tax net though they were registrable  under  the Act,  and the Tractairs were neither registrable  under  the Motor Vehicles Act nor taxable under the Taxation Act.      Anticipating a spate of refund applications as a result of the abovesaid decision, the Government of the  respondent State promulgated the Orrissa Motor Vehicles Taxations  Laws (amendment)  Ordinance, 1975.  The purpose of the  Ordinance was  not only to kill the demand for refund of tax but  also to   keep  exigible  tax  under  the  Taxation   Act,   with retrospective effect.                                                        983      The  claims of refund got wiped out by  the  Ordinance. Fresh  demands  of  tax were made from  the  appellants  and claims for refund of tax involved in the earlier  litigation



were rejected.  Appellants moved the High Court  challenging the  Ordinance  and the consequent  action.   Meanwhile  the Orissa   Motor  Vehicles  Taxation  Act,  1975  was   passed replacing the Ordinance.  the challenge to the 1975 Act  and the  retrospectivity  thereof was turned down  by  the  High Court.   Aggrieved  against the High Court’s  judgment,  the appellants  have  preferred the present appeals  by  special leave.      On behalf of the the appellants, it was contended  that the  Dumpers and Rockers were vehicles not adapted  for  use upon  roads and therefore outside the scope of section  2(b) of  the  1975  Act and hence not within  the  ambit  of  the charging section.      Dismissing the appeals, this court,      HELD  : 1. The High Court was right in concluding  that Dumpers and Rockers are vehicles adapted or suitable for use on roads and being motor vehicles per se, as held in  Bolani Ores  case, were liable to taxation on the footing of  their use  or kept for use on public roads; the network of  which, the State spreads, maintains it and keeps available for  use of  motor  vehicles and hence entitled to a  regulatory  and compensatory tax.  [991 A, B]      2. On the basis of materials available on record, it is seen  that Dumpers in some States are granted permission  to run  on  public roads at a speed not exceeding 16  kms.  per hour and on bridges and culverts at a speed not exceeding  8 kms.  per  hour.  Thus they have a minimum weight  and  safe laden weight fixed on some principles.  Pictures of  various types  of Dumpers also indicate prominently one factor  that these  Dumpers  run on tyres, in marked  contrast  to  chain plates like cater pillers or military tanks.  By the use  of rubber  tyres it is evident that they have been adapted  for use  on roads, which means they are suitable for being  used on  public roads.  The mere fact that they are  required  at places  to run at a particular speed is not to detract  from the  position otherwise clear that they are adapted for  use on roads.  They very nature of these vehicles make it  clear that  they are not manufactured or adapted for use  only  in factories  or  enclosed premises.  The mere  fact  that  the Dumpers  or Rockers are heavy and cannot move on  the  roads without  damaging  them  is not to say  that  they  are  not suitable  for  use  on roads.  The  word  ‘adapted’  in  the provision                                                        984 was read as ‘suitable’ in Bolani Ores case by interpretation on the strength of the language in Entry 57, List II of  the Constitution.   Thus  it  cannot be said  that  Dumpers  and Rockers  were  neither  adaptable nor suitable  for  use  on public roads. [990 D-H]      Bolani Ores Ltd. etc. v. State of Orissa etc., [1975] 2 SCR 138, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 868  of 1977.      From  the  Judgment and Order dated  30.8.1976  of  the Orissa High Court in O.J.C. No. 1222 of 1975.                               WITH      Civil Appeal Nos. 385, 2169 & 2170 of 1977.      V.R.  Reddy,  Addl. solicitor General,  Ashok  K.  Sen, Narasimha  P.S.,  Anip  Sachthey,  H.K.  Puri,  Ms.   Sunita Chatterjee, G.S. Chaterjee (NP), C.L. Kalia for S.R.  Grover (NP),  R.K.  Mehta  and R.K. Maheshwari  for  the  appearing



Parties.      The Judgment of the Court was delivered by      PUNCHHI,  J. These four appeals by special  leave  have roots  in  Bolani  Ores Ltd. etc. v. State  of  Orissa  etc. [1975]  2  SCR 138.  These are directed against  the  common judgment of the High Court of Orissa dated 30th August, 1976 passed in Original Jurisdiction Cases Nos. 1266, 1267,  1222 and 1166 of 1975.  Since the appellants have a common cause, these  appeals can conveniently be disposed of by  a  common judgment without resorting to individual facts of each case.      The appellants are limited companies engaged in  mining activities  in the State of Orissa.  They hold large  tracts of land in that State for the purpose.  They have  earmarked or enclosed these areas by various means, such as putting up of  boundary  pillars, erection of check-gates,  digging  of trenches, etc.  They have also constructed approach roads in those  areas  to  facilitate their  mining  operations.   No member  of the public is allowed to enter  those  lease-hold premises  without prior permission.  In order to  carry  out their activities the appellants put to use machinery  within their lease-                                                       985 hold  areas, of a variety.  But instantly we  are  concerned directly  with  two  of  them,  i.e.,  Dumpers  of   various denominations,  and Rockers, which seemingly are similar  to Dumpers  but are heavier than those.  Dumpers  and  Rockers, are  known to carry bulk goods, building  materials,  mining products, agricultural and forestry products, earth, bricks, concrete,  mortar, etc., their structure being of  a  simple design  and  easy  to  handle.   Tripping  is  performed  by releasing  the locking device retaining 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 with  its load unbalanced or when the load refuses to  slide out easily.  The description of the aforesaid machines  have been taken from Bolani Ores case.      Somewhere in the year 1961, the appellants, in one form or the other, were asked by the State of Orissa through  its officers  to register their aforesaid machines  as  vehicles under the Motor Vehicles Act, 1939 (hereinafter referred  to as  ‘the Act’) and to pay tax under Section 6 of  the  Bihar and  Orissa Motor Vehicles Taxation Act,  1930  (hereinafter referred  to as ‘the Taxation Act’), as amended  up-to-date. Similar  demands were made in areas which stood  transferred to the State of Orissa from the Presidency of Madras,  where a sister enactment, known as the Madras Vehicles  (Taxation) Act, 1931, as amended up-to-date was applicable, on the same lines,  and  at  par with  the  Taxation  Act.   (Henceforth reference  to the Taxation Act shall mean reference to  both the  statutes).  Not only for the afore-mentioned  types  of vehicles  were  the appellants asked  to  seek  registration under  that  Act  and to pay tax  under  the  Taxation  Act, similar  demands  were  made for  other  vehicles  in  their possession  and  use,  with  which  we  are  presently   not concerned.  Suffice it to mention that at some stage or  the other  uptill the stage of the High Court, there  were  some vehicle  to  which  the State of Orissa  conceded  that  the provisions  of  one or the other Act did not  apply  and  to others  it  was judiciously held not to apply.   It  is  the remaining  types of vehicles which gave cause to this  Court to  pronounce upon their nature in  Bolani Ores case in  the context of the statutes.  This Court ruled that Dumpers  and Rockers  though registrable under the Act were  not  taxable under  the Taxation Act as long as they are  working  solely



within  the  premises of the respective owners.  So  far  as Tractairs  were  concerned, this Court ruled that  they  are neither  registrable  under the Act nor  taxable  under  the Taxation   Act.   The  question  about  the   constitutional validity  of  the Taxation Act, then raised by  Bolani  Ores Ltd.                                                        986 (one of the appellants herein) was not dealt with because it was considered academic.      As  has been the legislative history, the Act  and  the Taxation    Act   have   always   been   complementary    or interconnected.   The taxation Act has from time to time  by amendments been incorporating by reference the provisions of the  Act.  In Section 2(c) of the Taxation Act and  sequally to the charging Section 6, the definition of ‘Motor Vehicle’ referred to the definition of ‘Motor Vehicle’ under the Act. The  point which arose in Bolani Ores case was; whether  the legislature  had intended to incorporate the  definition  of the  expression  ‘Motor Vehicle’ under the Act, as  it  then existed,  or  as it may exist from time to  time?  It  would facilitate  understanding  to  juxtapose  the  pre-amendment provision and the post-amendment provision:- ------------------------------------------------------------ Section  2(18)  before  amendment.     Section  2(18)  after                                        amendment by Act 100                                        of 1956 -------------------------------------------------------------- "motor vehicle" means any     |"motor  vehicle" means any  mechanically Mechanically propelled vehicle|propelled vehicle adapted  for  use upon adapted for use upon roads wh-|roads whether the power of propulsion is ether  the power of propulsion|   transmitted thereto from an  external is transmitted thereto from an|or  internal  source   and   includes  a external  or internal source  |chassis to which  a  body has  not  been and includes a chassis to     |attached  and a trailer;  but  does  not which  a body has not been    |include a  vehicle  running  upon  fixed attached and a trailer; but   |rails  or  a  vehicle  of a special type does not include a vehicle run|adapted for  use  only  in  a factory or -ning upon fixed rails or used|in any other enclosed premises. solely upon the premises of   | the owner.                    |                               | -----------------------------------------------------------------------      Since  the debate before this Court was as to which  of the  two  definitions was part of the  Taxation  Act,  which might  govern the demands created, this Court  clearly  held that the definition of ‘Motor Vehicle’ as existing prior  to the 1956 amendment would be applicable, as that was the  one which stood incorporated in the Taxation Act.  On the  basis of  that view the decision was thus made applying  the  pre- amendment definition.  This Court held:-          "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                                                        987          mining areas.  The mere fact that there is no fence          or the barbed wire around, the lease-hold  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, all of a which indicate that  the          respective  mining area all of which indicate  that          the respective  mining areas are enclosed  premises



        within the meaning of the exceptions under  Section          2(c) of the Taxation Act."      This took out Dumpers and Rockers from the taxation net though  they  were  held registrable  under  the  Act.   The Tractairs  were held neither registrable under the  Act  nor taxable  under the Taxation Act because those were also  not adapted  to  use  for the carriage of  goods  solely  or  in addition  to passengers, or put as a public service  vehicle within the meaning of Section 2(25) of the Act.  This  Court went on to observe as follows:-          "In  so far as the Act is concerned, having  regard          to the fact that the dumpers and rockers are  motor          vehicles which are not taken out of that  category,          as was the case before the amendment, they have  to          be  registered after the amendment and can only  be          driven  by  persons holding a valid  licence.   The          tractair  though it may be a motor  vehicle  within          the  definition  of that term is  neither  a  goods          Vehicle nor a vehicle which carries passengers  nor          is it being driven in a place to which public  have          as  a right access.  As it does not perform any  of          the aforesaid functions or uses it is not a vehicle          which has to be registered nor has it to be  driven          only by a person who holds a licence."      Anticipating a spate of refund applications as a result of  Bolani  Ores case the Governor of the  State  of  Orissa promulgated  an Ordinance on 11.2.1975 known as  the  Orissa Motor  Vehicles Taxation Laws (Amendment)  Ordinance,  1975. The purpose of the same was not only to kill the demand  for refund  of  tax  but also to keep  exigible  tax  under  the Taxation  Act  and  that  too  with  retrospective   effect. Section  2(c) of the Taxation Act defining  ‘motor  vehicle’ was,   therefore,  substituted  by  making   the   following provision:-          "Notwithstanding anything in any judgment or  order          of   any   Court,   ‘Motor   Vehicle’   means   any          mechanically propelled                                                        988          vehicle  adapted  for use upon  roads  whether  the          power is of propulsion 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  special  type          adapted  for use only in a factory or in any  other          enclosed premises."      It  is  plain and clear that the object of  the  afore- amendment  was to legislate retrospectively on  the  subject directly  instead  of by incorporation as  done  earlier  in Section  2(c) so as to bring uniformally the  post-amendment effect  of Section 2(18) of the Act.  Undeniably the  claims of  refund  due as a result of Bolani Ores  case  and  under other decisions of the High Court following Bolani Ores case got   wiped   out  by  the  amending  Ordinance.    On   the resurrection of the tax liability, fresh demands of tax were made  from the appellants and prayer for refund of  the  tax involved in the earlier litigation were rejected. This  gave cause  to the appellants to move the High Court  challenging the  action and the Ordinance.  In the meantime  the  Orissa Motor  Vehicle Taxation Act 39 of 1975 was passed  replacing the  Ordinance, becoming an Act on 3.10.1975.  This  was  an Act  to  consolidate  and  amend the  law  relating  to  the taxation  of  motor  vehicles.  Section  2(b)  of  this  Act contained  the  definition  of  ‘Motor  Vehicle’  as   above noticed,   which  is  identical  with  the  post   amendment



definition of ‘Motor Vehicle’ in Section 2(18) of the Act.      The  claims  of the appellants before  the  High  Court were:-      (a)  For  declaring that the amending Taxation  Act  is ultra vires, inoperative and invalid;      (b)  For injuncting the opposite parties from  imposing any tax on the petitioners’ Dumpers, Rockers, etc. and  from realising  the  same in purported exercise of  their  powers under the impugned Amending Taxation Act; and      (c) For refund of tax paid under protest for the period from 1.10.1974 to 31.3.1975.      All  the  asked for reliefs were declined by  the  High Court.   The High Court relied on the penultimate  paragraph of  the judgment in Bolani Ores case to conclude  that  this Court had indirectly decided that Dumpers and                                                        989 Rockers, if brought upon public roads would be liable to  be taxed  even  under  the pre-amended  provisions.   In  other words, what the High Court meant was that as long as Dumpers and  Rockers kept working solely within the premises of  the respective  owners they did not come within the grip of  the Taxation  Act.   But if and when they would  get  to  public roads,  they would be taxable under the Taxation Act;  since registrable  they otherwise were.  The High Court  took  the view  that the onus lay on the appellants to establish  that Dumpers and Rockers in question were not suitable for use on the public roads.  The High Court also viewed that since  no material  had  been  place before  them  to  establish  this particular,  and  no  claim had even been  laid  that  these vehicles  could not operate on public roads, the  contention of  the  appellants that the vehicles were  not  liable  for taxation being not adapted or fit or suitable for use on the roads  was devoid of merit.  The High Court also  held  that the  amending  Taxation  Act  was  within  the   legislative competence of the State legislature, which was empowered  to impose  taxes,  regulatory and compensatory  in  nature,  no vehicles  which are suitable for use on public  roads.   The challenge  to retrospectivity of the impugned Act  was  also turned down.      Learned  counsel  for the appellants in  these  appeals have  not  challenged the view of the High  Court  regarding vires   of   the   impugned  Act  before  us   or   to   its retrospectivity  but  have  addressed us only  on  the  fact situation  to  contend  that  the  Dumpers  (with   includes Rockers)  are vehicles not adapted for use upon  roads  and, therefore, they are outside the scope of Section 2(b) of the impugned  Taxation Act, 1975 and hence not within the  ambit of the charging Section.  Section 3(1) provides that subject to the other provisions of the Act, on and from the date  of commencement  of  the Act, there shall be  levied  on  motor vehicles,  used or kept for use within the State, a  tax  at the  rate specified under the Schedule.  It is evident  that the  tax is chargeable on using or keeping for use  a  motor vehicle;  a motor vehicle adapted for use on roads.  Now  it has  to  be  seen  whether Dumpers  and  Rockers  are  motor vehicles adapted for use on roads.      Reverting  back to Bolani Ores case, it would be  found that the pre-amendment definition of Section 2(18)  conveyed that  though  they were motor vehicles as such,  within  the meaning of the first part of the definition, but nonetheless were  not so because of their specified user, i.e., if  they were  used solely upon the premises of the owner.  It  would also found that                                                        990 under the post-amendment definition, though a motor  vehicle



may  be adapted for use upon roads, nonetheless in order  to be  taken out of the category it had further to  be  adapted for  use  only in a factory or in any other  premises.   But here no new facts have been pleaded by the appellants before the High Court as to how the Dumper/Rocker was a vehicle  of a special type, adapted for use only in a factory or in  any other   premises.   When  Dumpers  and  Rockers  were   held registrable  by  this Court under the ACt, it  commended  to this  Court to hold that Dumpers and Rockers were  definedly motor vehicles adapted for use upon roads, as otherwise they would  have  been held not so within the meaning  of  ‘motor vehicle’.   Rather  the  case of Bolani  Ores  (one  of  the appellants  before  us)  then  pointedly  pleaded  was  that Dumpers were used for transporting ore from the mining faces to the crushing and screening plant or from head mine  stock pile to near railway siding.  Dumpers were thus shown to  be vehicle engaged in the transport of goods.      It  would  be  appropriate now  to  mention  that  some documentary  material  was sent to us by the  appellants  by means of an affidavit after we had reserved judgment.   That material  is  suggestive of the fact that  Dumpers  in  some States  are granted permission to run on public roads  at  a speed  not  exceeding 16 kms. per hour and  on  bridges  and culverts  at  a speed not exceeding 8 kms. per  hour.   From this  it  is suggested that they have a minimum  weight  and safe  laden  weight fixed on some principles.   Pictures  of various  types  of Dumpers have also been sent to  us  which indicate  prominently one factor that these Dumpers  run  on tyres, in marked contrast to chain plates like cater pillers or military tanks.  By the use of rubber tyres it is evident that  they have been adapted for use on roads,  which  means they are suitable for being used on public roads.  The  mere fact that they are required at places to run at a particular speed  is not to detract from the position  otherwise  clear that they are adapted for use on roads.  The very nature  of these vehicles make it clear that they are not  manufactured or  adapted for use only in factories or enclosed  premises. The  mere fact that the Dumpers or Rockers as suggested  are heavy and cannot move on the roads without damaging them  is not  to  say that they are not suitable for  use  on  roads. The  word ‘adapted’ in the provision was read as  ‘suitable’ in Bolani Ores case by interpretation on the strength of the language in Entry 57, List-II of the Constitution.  Thus  on that  basis  it  was  idle  to  contend  on  behalf  of  the appellants  that Dumpers and Rockers were neither  adaptable nor suitable for use on public roads.                                                        991 Thus on the fact situation, we have no hesitation in holding that the High Court was right in concluding that Dumpers and Rockers  are vehicles adapted or suitable for use  on  roads and being motor vehicle per se, as held in Bolani Ores case, were liable to taxation on the footing of their use or  kept for  use  on public roads; the network of which,  the  State spreads,  maintains it and keeps available for use of  motor vehicles and hence entitled to a regulatory and compensatory tax.    (Exemptions  claimable  apart).    The   appellants, therefore, in our view, have no case for grant of any relief in these appeals.      For  the foregoing reasons, these appeals fail and  are hereby dismissed with costs. G.N.                                       Appeals dismissed.                                                        992