Manikgarh Cement A Dvi. ... vs The State Of Mah. Secr. Mumbai And ...
2016 Latest Caselaw 1464 Bom

     wp4753.03                                                                                 1



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH




                                                                                    
                       WRIT PETITION  NO.  4753  OF  2003




                                                            
     Manikgarh Cement,
     a division of Century Textiles
     and Industries Limited, having




                                                           
     its works at P.O. Gadchandur,
     Tahsil - Korpana, District -
     Chandrapur.                                                  ...   PETITIONER




                                               
                                   Versus

     1. The State of Maharashtra,
                             
        through its Secretary, 
        Department of Transport,
        Mantralaya, Madam Cama Road,
                            
        Mumbai 400 032.

     2. The Deputy Regional Transport
        Officer, Chandrapur.                                         ...   RESPONDENTS
      
   



     Shri A.A. Naik, Advocate for the petitioner.
     Shri A.V. Palshikar, AGP for the respondents.
                                    .....





                                           CORAM : B.P. DHARMADHIKARI &
                                                      P.N. DESHMUKH, JJ.

APRIL 13, 2016.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

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 & 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

vs.

delivered on 16.09.2003 in the case of Western Coalfields Ltd.

State of Maharashtra & 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 & Ors. vs.

State of Orissa & 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 & Ors., reported at AIR 1997 SC 2038, particularly

paragraphs 8 to 10, and the later judgment reported at

Chairman, Rajasthan State Road Transport Corporation & Ors. vs.

Santosh & 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 & 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 & 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 & 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 & 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. & Ors. vs. State of Orissa &

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 & Ors. vs. Santosh & 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.

            JUDGE                                            JUDGE
                                      ******
     *GS.