Oral Judgment: (B.P. Dharmadhikari, J.)
1. Heard Shri Naik, learned counsel for the petitioner and Shri Palshikar, learned Additional Government Pleader for the respondents.
2. By this petition, the petitioner a manufacturing company questions the impugned notice dated 18.10.2003 and order 24.11.2003, calling upon it to register a BH-35 Rear Dumper Truck and a Hindusthan 2021 Loader, as the same stand covered as Construction Equipment vehicle as defined under Rule 2(ca) of The Central Motor Vehicle Rules, 1989. It is the specific contention of the petitioner that these vehicles do not have any 'on highway' capacity and are designed only for 'off highway' operations.
3. This Court had issued notice in the matter on 04.12.2003 and thereafter on 24.06.2004 while issuing Rule, granted interim relief in terms of prayer clause (C). Thus, operation and effect of above mentioned notice and order has been stayed.
4. Shri Naik, learned counsel, in this background, after taking us through the impugned notice dated 18.10.2003 submits that it was replied on 18.11.2003 with a specific defence that the judgment in Writ Petition No. 3583 of 2002 delivered on 16.09.2003 in the case of Western Coalfields Ltd. vs. State of Maharashtra and Anr., (now reported at 2004 (1) Mh. L.J. 883) does not have any application because there 'on highway' use of subject vehicle was not in dispute. It was specifically pleaded that the machinery with the petitioner is not adopted for use upon road and is designed only for use in mines. In view of this dispute on facts, the petitioner also sought an opportunity of personal hearing.
5. The facts were reiterated in later representation dated 24.11.2003 and in this representation, attention of authorities was invited to the judgment of the Hon'ble Apex Court (Larger Bench) in the case of Mahanadi Coalfields Limited and Ors. vs. State of Orissa and Ors., delivered on 03.04.2002, where the Hon'ble Apex Court has found the opportunity to lead the evidence in such matters necessary. In spite of this, on 24.11.2003, the order came to be passed and the petitioner has been threatened with coercive action, if vehicles were not produced for registration. He has taken us through the relevant legal provisions and invited our attention to the judgment of the Hon'ble Apex Court in the case of Goodyear India Ltd. vs. Union of India and Ors., reported at AIR 1997 SC 2038, particularly paragraphs 8 to 10, and the later judgment reported at Chairman, Rajasthan State Road Transport Corporation and Ors. vs. Santosh and Ors., (2013) 7 SCC 94.
6. Shri Palshikar, learned AGP has relied upon the facts disclosed in the notice dated 18.10.2003 as also in the order dated 24.11.2003. Our attention is invited to reply affidavit to urge that the vehicles with the petitioner qualify as construction equipment vehicle as defined under Rule 2(ca) of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as 1989 Rules). The assistance is also taken from the Division Bench judgment of this Court in the case of Western Coalfields Ltd. vs. State of Maharashtra and Anr., (supra). It is contended that in view of this clear position, demand of hearing or of an opportunity to lead evidence is unwarranted and the petition should be dismissed with costs.
7. During arguments, our attention has been invited to the provisions of Section 2(28) defining Motor Vehicle, Section 2(47) which defines Transport Vehicle and the provisions of Section 39 of Motor Vehicle Act, 1988, which mandates registration of motor vehicles. Shri Naik, learned counsel, has submitted that the Division Bench of this Court in the case of Western Coalfields Ltd. vs. State of Maharashtra and Anr. (supra) has been questioned before the Hon'ble Apex Court and the Hon'ble Apex Court has granted Leave on 16.04.2004 and restrained the Deputy Regional Transport Officer from seizing Heavy Earth Moving Machinery of the appellate before it.
8. Shri Naik, learned counsel further states that this Civil Appeal was lastly scheduled on 08.04.2016 in Supreme Court and came to be adjourned for two weeks. He submits that the pending appeal is taken note of by this court on 11.06.2004 in its order in Writ Petition No. 448 of 2004. He states that fate of Writ Petition No. 448 of 2004 could not be gathered.
9. The respondents, in reply affidavit before this Court, have placed heavy reliance upon the definition of Construction Equipment Vehicle in Rule 2(ca) of 1989 Rules. The said provision has been amended/ inserted on 28.07.2000. This provision, therefore, was not in force when the Larger Bench of the Hon'ble Apex Court has considered the question in relation to Agricultural Tractors in its judgment in the case of Goodyear India Ltd. vs. Union of India and Ors., (supra). The issue has been gone into there in the light of provisions of Central Excise Act, 1944. In paragraph 9, the Hon'ble Apex Court has pointed out how an explanation clause needs to be interpreted. It has looked into the definition of Motor Vehicle in item No. 34 of Central Excise Act, 1944.
10. In the case of Western Coalfields Ltd. vs. State of Maharashtra and Anr., (supra), Division Bench of this Court considered the case of the petitioner who pleaded that the machineries were being used for digging as well as removal and transport of coal. The petitioner pleaded that for plying those machineries, special type of roads were required to be prepared in mine and those vehicles could not ply on ordinary roads. It was also urged that because of special features present in them, the machineries could be used only in mining conditions. It is in this background that the Division Bench has considered the provisions of Rule 2(ca) of 1989 Rules and in paragraph 12 it found that the question which arose for decision was whether Heavy Earth Moving machineries used by the petitioner in its collieries for mining activities were Motor Vehicles within the meaning of Section 2(28) of the Motor Vehicles Act, read with phrase Construction Equipment Vehicle as defined in Rule 2(ca) of 1989 Rules. In paragraph 16, the definition of Construction Equipment Vehicle has been looked into and it is noted that various types of vehicles as described therein designed for 'off highway' operations were covered in it. Explanation thereto, has been looked into and it is held that such vehicle is non transport vehicle, driving of which on road is incidental to its main off-highway function. Thus, in facts presented to it, the Division Bench found that part of or ingredients of definition of 'Construction Equipment Vehicle' were satisfied. However, it appears that this judgment cannot be used by the State against the petitioners therein because of restraining orders of the Hon'ble Apex Court in Civil Appeal.
11. In Larger Bench judgment of the Hon'ble Apex Court in the case of Mahanadi Coalfields Ltd. and Ors. vs. State of Orissa and Ors., (supra), has taken note of the fact that there was no evidence on record to decide whether or not the dumpers are Motor Vehicles within the meaning of Orissa Motor Vehicles Taxation Act, 1975. It was, therefore, thought appropriate to permit the appellant before the Hon'ble Apex Court to withdraw the writ petition itself which was filed before the High Court and the Hon'ble Apex Court granted said appellant liberty to lead evidence before the Transport Commissioner.
12. In the case of Chairman, Rajasthan State Road Transport Corporation and Ors. vs. Santosh and Ors., (supra), the Hon'ble Apex Court has considered the question whether Jugaad constituted Transport Vehicle within the meaning of Section 2(28) of the Motor Vehicles Act, 1988. Said definition reads thus :
(28) motor vehicle or 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 a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twenty-five] 4 cubic centimeters;
In para 13 of its judgment , the Hon'ble Apex Court takes note of the fact that the word 'only' used in section 2(28) reveal that exemption therein is confined only to those kinds of vehicles which are exclusively being used in a factory or in any closed premises.
13. In the background of this discussion, as in instant matter in defence, the respondents have urged that the vehicle with the petitioner fall under Section 2(ca) of 1989 Rules, we find it appropriate to reproduce that provision. It reads thus:
construction equipment vehicle means rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted, self propelled, excavator, loader backhoe, compactor roller, dumper motor grader, mobile crane, dozer fork lift truck, self-loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off-highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with on or off or on and off highway capabilities.
Explanation : A construction equipment vehicle shall be a non-transport vehicle the driving on the road of which is incidental to the main off-highway function and for a short duration of a speed not exceeding 50 kms per hour, but such vehicle does not include other purely off-highway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power.
14. A careful perusal of this provision shows that though various types of motor vehicles are declared to be construction equipment vehicle in its opening part, even if they are designed for off-highway operation in mining or other similar places, but with a rider. As per that rider or qualification, such vehicle must be modified and manufactured with on or off or on and off highway capabilities. Thus, merely because vehicle with the petitioner has got rubber tyres or pneumatic tyres, they cannot be treated as construction equipment vehicles unless it is shown that though the same are designed for off-highway operations, they are modified and manufactured with on or off or on and off highway capabilities. The effect of explanation to this definition can thereafter be examined in case of each vehicle to test whether it has on-highway properties or capacity.
15. In his defence, the petitioner has attempted to urge that the vehicle with it is not altered and manufactured with on or off or on and off highway capabilities. In the impugned order, there is no finding on this defence. Even consideration of impact of explanation to Rule 2(ca) is not apparent. The defence thus raises a disputed question and unless and until vehicle is inspected and the petitioner is given due opportunity, that question cannot be answered. Admittedly such an exercise has not been undertaken in the present matter.
16. In this situation, we find that it was obligatory for respondent No. 2 to extend an opportunity to the petitioner to demonstrate that the subject vehicles with it are not the construction equipment vehicles and are not covered by Rule 2(ca) of 1989 Rules. As that has not been done, we set aside the impugned order dated 24.11.2003. The reply given by the petitioner to notice dated 18.10.2003 on 18.11.2003 shall be looked into, the petitioner shall be given an opportunity to adduce evidence and thereafter only, appropriate orders, keeping in mind the legal provisions, shall be passed. It is open to the petitioner to file additional evidence, if any, within a period of three weeks from today. Efforts shall be made to decide the controversy within next four months.
17. Writ Petition is accordingly partly allowed and disposed of. Rule is made absolute in above terms. However, in the facts and circumstances of the case, there shall be no order as to costs.