Madras High Court
P.Chandrasekar vs The Transport Commissioner on 24 September, 2021
W.P.(MD)No.8476 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.8476 of 2019
and
W.M.P.(MD)No.6636 of 2019
P.Chandrasekar ... Petitioner
Vs.
1.The Transport Commissioner,
Transport Department,
Ezhilagam,
Chepauk,
Chennai – 600 005.
2.The Regional Transport Officer,
Madurai (South),
Madurai.
3.The Motor Vehicles Inspector Gr.I,
Unit Office,
Manmangalam,
Karur District.
4.The Regional Transport Office,
Madurai Central RTO,
Madurai. ... Respondents
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W.P.(MD)No.8476 of 2019
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India for issuance of Writ of Certiorarified Mandamus, to call for
the records pertaining to the impugned proceedings in
No.P1781761 dated 26.03.2018 and in No.P1781759 dated
26.03.2018 and in No.J8f681458 dated 28.03.2018 passed by the
second and third respondents respectively and quash the same and
to consequently direct the second and third respondents to levy the
tax for the petitioner's three Recovery vehicles bearing
Registration Nos.TN 25 C 2118, TN 58 AB 1152, TN 30 BZ 6148
under Class 6B of first Schedule of Tamil Nadu Motor Vehicle
Taxation Act, 1974 and to direct the first respondent to monitor and
instruct the respondents 2 to 4 to levy the tax for “Recovery
Vehicle” under Class 6B of Tamil Nadu Motor Vehicle Taxation Act,
1974.
For Petitioner : Mr.V.Santhakumaresan
For Respondent : Mr.D.Ghandiraj
Government Advocate
ORDER
************
The prayer sought for herein is for a Writ of Certiorarified
Mandamus, to call for the records pertaining to the impugned
proceedings in No.P1781761 dated 26.03.2018 and in
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W.P.(MD)No.8476 of 2019
No.P1781759 dated 26.03.2018 and in No.J8681458 dated
28.03.2018 passed by the second and third respondents
respectively and quash the same and to consequently direct the
second and third respondents to levy the tax for the petitioner's
three Recovery vehicles bearing Registration Nos.TN 25 C 2118,
TN 58 AB 1152, TN 30 BZ 6148 under Class 6-B of first Schedule of
Tamil Nadu Motor Vehicle Taxation Act, 1974 and to direct the first
respondent to monitor and instruct the respondents 2 to 4 to levy
the tax for “Recovery Vehicle” under Class 6B of Tamil Nadu Motor
Vehicle Taxation Act, 1974.
2. Three motor vehicles with Registration Nos.TN 25 C 2118,
TN 58 AB 1152, TN 30 BZ 6148, belonging to the petitioner had
been initially taxed for the purpose of motor vehicle tax under the
Tamil Nadu Motor Vehicles Taxation Act, 1974 [hereinafter referred
to as 'the Act'] as goods carriages. However, subsequently, those
vehicles have been converted as Recovery Vans, by making such
alteration with an intention to use the same to remove the disabled
vehicles on highways with self propelled power.
3. After having converted the same, since the vehicles are
used only as recovery vans, they sought for levy of motor vehicle
tax under Clause 6-B of First schedule of the Act. However, the said
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W.P.(MD)No.8476 of 2019
plea raised by the petitioners having been considered, was rejected
through the impugned orders dated 26.03.2018, 26.03.2018 &
28.03.2018, in respect of all the three vehicles, where the
petitioner had been directed to pay the tax under clause 6-C of the
First Schedule of the said Act and therefore, aggrieved over the
same, this Writ Petition has been filed, challenging those impugned
orders.
4. Heard, Mr.V.Santhakumaresan, learned Counsel appearing
for the petitioner, who by relying upon an earlier order passed by
this Court in W.P.(MD)No.19036 of 2017, dated 09.01.2018, in
the matter of D.Rajkumar Vs. The Transport Commissioner,
Chennai, has submitted that the issue raised in this writ petition is
already covered by the said writ petition. Therefore, the same
benefit shall be extended to the petitioner also.
5. Per contra, M.D.Ghandiraj, learned Government Advocate
appearing for the respondents has relied upon the written
instructions given by the respondents on 02.08.2021, where he
relied upon the following:
➢ “I am also to submit that as per the
notification of Government of India in S.O.
451 (E), dated: 19.06.1992 and based on the
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W.P.(MD)No.8476 of 2019
above notification, the Government of Tamil
Nadu have issued orders in G.O.Ms.No.1320,
Home Transport, dated: 27.09.1992, in which
vehicles fitted with Air Compressors/ Rig /
Generator should be classified as "Non
transport vehicle" category are being taxed
at the rate of Rs.3500/- per annum under
class 6(b) of first schedule of Tamil Nadu
Motor Vehicles Taxation Act, 1974. No other
vehicles are said to be included under class
6(b) of first schedule of Tamil Nadu Motor
Vehicles Taxation Act, 1974 except the above
three category of vehicles.
➢ The definition of “Construction Equipment
Vehicle” prescribed as per rule 2(ca) of
Central Motor Vehicles Rules, 1989 as
follows:
“Construction Equipment
Vehicle” means rubber tyred
(including pneumatic tyred), ubber
padded or steel drum wheel mounted,
elf propelled, “excvator” loader,
backhoe, compactor roller, dumper,
mtor grader mobile crane, Dozer, fork
left Truck, self loading concrete mixer
or any other construction equipment
vehicle or combination thereof
designed for off –highway operation in
mining, industrial undertaking,
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W.P.(MD)No.8476 of 2019
irrigation and general construction but
modified and manufactured with “on or
off” or “on and off” highway
capabilities.
Explanation 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 at a speed not exceeding
50kms 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 net work non equipped
to travel on public road on their own
power.
In view of above, it is ascertained that the
vehicle manufactured either to use “on or off” or
"on and off" highway capabilities may be defined
as construction equipment vehicle.
➢ The classes defined in 6 of first schedule of
Tamil Nadu Motor Vehicles Taxation Act,
1974 is enclosed for your kind reference.
➢ In this contention, it is submitted that the
three vehicles mentioned in the writ petition
TN25C 2118, TN58AB 1152 and TN30BZ
6148 were initially registered as goods
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W.P.(MD)No.8476 of 2019
carriages under the category of transport
vehicle and tax levied at the rates as
applicable to goods carriages. Subsequently,
the aforesaid vehicles converted as
‘Recovery Van’ by making such alteration
with intended to be used to remove the
disabled vehicles on highways with self
propelled power.
➢ As such it is evident that it comes under the
category of construction equipment vehicle
as defined under rule 2(ca) of Central Motor
Vehicles Rules, 1989 and being taxable @
Rs.10000/- per year under class 6(c) of first
schedule of Tamil Nadu Motor Vehicles
Taxation Act, 1974.
➢ As such the contention raised by the
petitioner to collect the tax in respect of the
aforesaid vehicles under class 6(b) of first
schedule of Tamil Nadu Motor Vehicles
Taxation Act, 1974 is not tenable since the
above said class is specifically enacted to
levy taxes for three category vehicles such as
vehicles fitted with Air compressors /Rig /
Generator only. Recovery van hold by the
petitioner is liable to pay the tax under class
6(c) instead of class 6(b) ) of first schedule of
Tamil Nadu Motor Vehicles Taxation Act,
1974.”
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W.P.(MD)No.8476 of 2019
6. By relying upon the said written instructions, learned
Government Advocate would submit that, if at all the vehicles were
originally registered as goods carriages and subsequently
converted into recovery vans, by such conversion itself, it cannot be
treated as vehicles which can be levied motor vehicles tax under
the said Act under clause 6-B of the First Schedule and therefore, it
is liable to be taxed under clause 6-C instead of clause 6-B.
Therefore, learned Government Advocate would submit that, the
said vehicles can be levied tax under the said Act only under clause
6-C and not under 6-B. Therefore, he seeks dismissal of this writ
petition.
7. I have considered the rival submissions made by the
learned Counsel for the parties and have perused the materials
placed before this Court.
8. As has been rightly pointed out by the learned Counsel for
the petitioner, the issue raised in this writ petition has already been
considered and given a quietus by a learned Judge of this Court in
the aforesaid judgment, where the learned Judge has passed the
following order:
“2. The Writ Petitioner is the owner of the
Recovery Van which carries the damaged vehicles
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W.P.(MD)No.8476 of 2019
from accident or breakdown sites to their respective
destinations. As per the endorsement made by the
Revenue Divisional Officer, they are classified as
Recovery Vehicle (Non-Transport). All along they have
been paying Road Tax as per Clause 6-B of First
Schedule of Tamil Nadu Motor Vehicles Taxation Act,
1974 (hereinafter referred to as the Act). Vide G.O.
(Ms).No.104, Law Department, dated 21.04.2012, the
said Act was amended. Now Section 6-C has been
introduced in the first Schedule. Clause 6(B), Clause
6(C) refers to Construction equipment vehicle. The
same has been defined in Section 2 (1) as follows:
“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
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W.P.(MD)No.8476 of 2019
at 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.”
3. The stand of the authorities is that the
Recovery Vehicles will have to be categorised as a
Construction Equipment Vehicle and therefore Motor
Vehicle Tax should be paid in terms of Section 6-C and
not under Section 6-B.
4. When the writ petition was taken up for
admission, it was directed that it would be advisable
to obtain the opinion of an expert. The learned Special
Government Pleader placed a copy of the Report
dated 03.01.2018 submitted by the Regional Deputy
Director, Government Automobile Workshop,
Madurai-20. The said official had mentioned in his
report that the Recovery Vehicles are equipped with a
Tow bar, Boomber and the Lifting Rope. According to
him these are similar to that of the equipments fitted
with Construction equipment vehicle. He had also
observed that the vehicle in question are not fitted
with equipments like Rigs or Generator or
Compressor. Therefore, he would opine that Clause 6-
C of the first Schedule of the said Act is applicable.
Further, the learned Special Government Pleader
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W.P.(MD)No.8476 of 2019
would point out the amendment made in the current
Act had not been challenged by the writ petitioner. He,
therefore, seeks dismissal of the writ petition.
5. The omission of the writ petition to question
the amended Tamil Nadu Motor Vehicles Taxation Act,
1974 cannot come into way of granting relief in this
case. The question is not regarding the validity of
Clause 6-C of the First Schedule of said Act. The
question in this case is whether the recovery vehicles
will fall within the category of Construction equipment
vehicles.
6. It is beyond dispute that till recently the
recovery vehicles were classified as falling within
Clause 6-B of the first Schedule of said Act. The only
question to be adjudicated is whether the recovery
vehicle can be said to properly fall within the term
'construction equipment vehicles'. The definition has
already been extracted above. The definition would
apply only if the vehicle in question has been designed
for off-highway operations in mining, industrial
undertaking, irrigation and general construction.
7. In this case, the recovery vehicles are
principally meant only for highway operations. They
help to remove the damaged vehicles from the
accident or breakdown site to the their respective
destinations. One can apply common sense and come
to the conclusion that they are not designed for off-
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W.P.(MD)No.8476 of 2019
highway operations in mining, industrial undertaking,
irrigation and general construction. Therefore the said
recovery vehicles cannot be considered as
construction equipment vehicle. Hence, levy of Motor
Vehicle Tax on the said recovery vehicle under Clause
6-C is clearly illegal. It should continued to be levied
only in terms of Clause 6-B of Schedule 1 of the said
Act.
8. This Writ petition is allowed accordingly. No
costs. Consequently, connected Miscellaneous Petition
is closed.”
9. In view of the said order passed by this Court, since I am
in agreement with the said view taken by the learned Judge who
passed the said order, the vehicles of the petitioners which are
covered under the impugned orders also are liable to be taxed only
under clause 6-B of Schedule 1 of the Act and not clause 6-C.
Therefore, the impugned orders are liable to be interfered with.
Accordingly, the impugned orders are quashed and the matter is
remitted back to the respondent to reconsider the same and to pass
orders levying the tax payable by the petitioner for the said three
vehicles ie., recovery vans under clause 6-B of First schedule of the
Act and pass orders accordingly, as early as possible.
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W.P.(MD)No.8476 of 2019
10. Since it is brought to the notice of this Court by the
learned Counsel for the petitioner that, already the petitioner
pursuant to the impugned order has paid the tax as demanded
through the impugned order under clause 6-C, therefore, the
excess amount, if any paid, shall be refunded to the petitioner.
11. With the above directions, this Writ Petition stands
allowed. However, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
24.09.2021
Index : Yes / No
Internet: Yes / No
MR
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Transport Commissioner,
Transport Department,
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Regional Transport Officer,
Madurai (South), Madurai.
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W.P.(MD)No.8476 of 2019
R.SURESH KUMAR., J.
MR
3.The Motor Vehicles Inspector Gr.I,
Unit Office, Manmangalam,
Karur District.
4.The Regional Transport Office,
Madurai Central RTO,
Madurai.
ORDER MADE IN
W.P.(MD)No.8476 of 2019
24.09.2021
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