Federation of Mining Associations v. State of Rajasthan

Federation Of Mining Association

                          vs

Union Of India (UOI) And Ors.

Dated: 1 February, 2007

Equivalent citations: RLW 2008 (1) Raj 554

Bench: S Jha, M Rafiq

HEADNOTE:  The case relates to whether an “excavator” falls under the definition of a Motor Vehicle under the Rajasthan Motor Vehicles Taxation Act, 1988 and is subject to tax under the said Act, as the RMVT Act, 1988 did not define Motor Vehicle and hence not subject to taxation.

A clause with regard to ”excavator” was defined as ‘construction equipment vehicle’ under the Central Motor Vehicles vide notification dated 28.7.2000. (amendment)

An amendment merely meant that a provision made with regards to Rules of using motor vehicles in public place shall also apply to construction equipment vehicle. The very fact that it is mentioned as some sought of vehicle makes it permissible enough to come within the purview of the Rajasthan Motor Vehicle Taxtion Act, 1988. Thus making it taxable.

JUDGMENT: Mohammad Rafiq, S Jha.

1. By this application the petitioner, Federation of Mining Association of Rajasthan, seeks recall of the order dated 10.3.2006 by which D.B. Civil Writ Petition No. 1342/1999 was dismissed as withdrawn, and for restoration of the writ petition.

2. It was stated that the writ petition was withdrawn by the counsel bonafide on instruction from the office bearers of the petitioner Association which was given without consulting the members of the Association who reside out of Jaipur and were directly affected by the impugned notifications. It was submitted in course of hearing that there had been no change in the fact situation in which the writ petition could be withdrawn and if petition is not restored and decided on merit, the members of the Association would suffer great loss.

3. Ordinarily, writ petitions withdrawn by counsel are not restored, but we looked into merit of the case so that the non-restoration of writ petition may not result in injustice, and accordingly heard the Counsel.

4. The writ petition i.e. D.B. Civil Writ Petition No. 1342/1999 was filed challenging, among other things, the validity of Section 4 of the Rajasthan Motor Vehicles Taxation Act, 1951 (in short, ‘the Taxation Act’) and Rule 42 of the Rajasthan Motor Vehicles Taxation Rules, 1951 (in short, ‘the taxation Rules’) and further, notifications dated 24.4.1997 and 22.5.1997 as unconstitutional. The petitioner also sought declaration that excavator is not a ‘motor vehicle’ within the meaning of Section 2(28) of the Motor Vehicles Act, 1988 (M.V.Act) and it can not be subject to tax under the Taxation Act.

5. Section 4 of the Taxation Act, which is the charging Section, provides for imposition of tax at the rates mentioned therein on different kinds of vehicles. Rule 42 provides for determination of value for the purpose of computation of tax. By notifications dated 24.4.1997 and 22.5.1997 rates of tax were fixed in accordance with rule 42 of the Rules.

6. The question as to whether excavator is a motor vehicle stands concluded by decisions of the Supreme Court in Chief General Manager, Jagannath Area v. State of Orissa and Bose Abraham v. State of Kerala . In the former case, the subject matter of discussion was dumper and the question for consideration was whether dumper can be subjected to tax under the Orrisa Motor Vehicles Taxation Act, 1975, treating it as motor vehicle. In the latter case, the question was whether excavator and road rollers are motor vehicles so as to be eligible to taxation under the Motor Vehicles Taxation Act. In both the cases the vehicles in question were held to be motor vehicles within the meaning of Section 2(28) of the Motor Vehicles Act.

7. It is relevant to mention here that the term ‘motor vehicle’ has not been defined in the Taxation Act. Section 2(e) thereof however provides that words and expression not defined in the Act, but defined in the Motor Vehicles Act, 1988 and Central Motor Vehicles Rules, 1989 shall have the meaning assigned to them in the Act and Rules as amended from time to time. The decisions aforesaid thus squarely cover the point whether excavator is motor vehicle within the meaning of the Motor Vehicles Act so as to it being eligible to tax under the Taxation Act and the Rules.

8. As regards Rule 42 it was submitted that the manner in which the cost of vehicle is calculated for the purpose of computation of tax is arbitrary. It was submitted that whereas Under Clause (a) the cost is calculated with reference to the vehicle/chassis purchased in the financial year in which the tax due by including the elements of taxes and levies in purchase price prevailing on 1st April of the year of purchase, in the case of vehicle/chassis purchased earlier than the year in which the tax is due, it is calculated by adding the element of notional price increase at the rate of fifteen per cent per annum compounded annually on the purchase price prevailing on 1st April of the year of purchase of similar type of vehicle which is arbitrary. The submission overlooks the first proviso to Rule 42 which gives option to the owner of the vehicle/chassis or any person authorized by him to have the cost of his vehicle assessed “as to be the same as the cost assessed at current price of similar type of vehicle as prevailing on 1st April of the year in which the tax is due.” The owner or the person authorized in that behalf may thus option to have the cost assessed at current price of vehicle and therefore, the grievance of the petitioner that the calculation of the cost by adding notional price increase at the rate of fifteen percent per annum, would appear to be misconceived. It is to be kept in mind that the basis of the tax is the load of the vehicle on the road and therefore, irrespective of the year of manufacture/purchase of the vehicle, the incidence of tax would not differ.

9. Counsel drew our attention to the amendment in the Central Motor Vehicles Rules vide notification dated 28.7.2000 whereby Clause (ca) was inserted in Rule 2 incorporating the definition of ‘construction equipment vehicle’. It was submitted that in view of the definition of ‘construction equipment vehicle’ as rubber tyred, rubber padded or steel drum wheel mounted, excavator etc., excavator would come within the definition of ‘construction equipment vehicle’ and therefore, it can no more be subjected to tax under the Taxation Act. The submission, if we may say so, is based on misreading of the notification. By the notification, explanation was added in Sub-rule (2) of Rule 92. Rule 92 provides that no person shall use or cause or allow to be used in any public place any motor vehicle which does not comply with the provisions of this Chapter. Sub-rule (2) refers to types of vehicle to which Sub-rule (1) is intended to apply. In that connection, by explanation it was provided that “for the purpose of this rule, ‘motor vehicle’ includes ‘construction equipment vehicle’. Since the Rules did not contain definition of construction equipment vehicle, Rule 2 which is the definition clause was also amended by inserting Clause (ca) after Clause (c) providing for definition of ‘construction equipment vehicle.’

10. It would thus appear that ‘construction equipment vehicle’ has to be understood in the context of Rule 92 which is evident from the words “for the purpose of this Rule” occurring in the explanation to Sub-rule (2) of Section 92. Thus, the amendment merely meant that the provisions of Rule 92 in regard to use of motor vehicles in public place shall also apply to construction equipment vehicle. The amendment has nothing to do with the controversy which was involved in the writ petition.

11. We thus find that the main issue raised in the writ petition as to whether excavator can be called ‘motor vehicle’ for the purpose of Rajasthan Motor Vehicles Taxation Rules having been settled, the restoration of the writ petition would serve no useful purpose.

12. The recall application is accordingly rejected.


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