Aurangabad Earth Movers Assocation and Others vs The State of Maharashtra and Others

Anand Vasant Nirgude, J—Heard.

This petition challenges the vires of the Bombay Motor Vehicle Amendment Act, 2005 (Maharashtra Act No. 53 of 2005). In order to appreciate the grievance of the petitioner, one must note the definitions of the following terms. We enumerate the definitions as under:-

Motor Vehicle: - Section 2(28) of the Motor Vehicles Act, 1988 defines the term Motor Vehicle, which reads thus:

"2(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 cubic centimeters]."

Construction Equipment Vehicle:- Rule 2(ca) of the Central Motor Vehicle Rules defines the term "Construction Equipment Vehicle", which 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 road of which is incidental to the main off-highway function and for a short duration at a speed exceeding 50 kms. per hour, but such vehicle doesn''t 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."

It is settled law that Construction Equipment Vehicles are all held to be motor vehicles and are required to be registered and taxed under the Motor Vehicles Act. See following Judgments:-

i] Bose Abraham etc. Vs. State of Kerala and Another, AIR 2001 SC 835 : (2001) 2 JT 314 : (2001) 1 SCALE 573 : (2001) 3 SCC 157 : (2001) 1 SCR 808 : (2001) 121 STC 614 : (2001) AIRSCW 466 : (2001) 1 Supreme 465 .

ii] Vikram Ispat (A Unit of Grasim Industries Ltd.) Vs. State of Maharashtra and Others, (2004) 2 ACC 192 : (2004) ACJ 1784 : AIR 2003 Bom 498 : (2004) 2 ALLMR 82 : (2004) 2 BomCR 607

iii] Goodyear India Ltd. Vs. Union of India and others, AIR 1997 SC 2038 : (2002) 81 ECC 666 : (1997) 92 ELT 14 : (1997) 3 JT 63 : (1997) 2 SCALE 376 : (1997) 5 SCC 752 : (1997) 2 SCR 445 : (1997) AIRSCW 1839 : (1997) 2 Supreme 652

We must also point out that in the definition of Construction Equipment Vehicles, ''Excavator'' is included as one of the Construction Equipment Vehicles. It is common knowledge that an Excavator is a specialized equipment and there are number of manufacturers of Excavators. Excavators are manufactured in different capacities. In this background, we must also see the provisions of the Bombay Motor Vehicles Tax Act, 1958. The objective of this Act was to consolidate the law relating to taxation of motor vehicles in the State of Maharashtra and relating aspects. Section 3 of this Act deals with levy of taxes. First Schedule of this Act is made for the purpose of levying taxes under Section 3. Various types of vehicles are enumerated in this Schedule. Prior to the amendment, relevant entry in this Schedule read as under:-

Prior to the amendment, the petitioners'' vehicles which are falling within the definition of Construction Equipment Vehicles were being taxed utilizing Entry No. VI noted above. By the amendment Act, Entry No. VI-A in the Schedule is inserted and it reads thus:-

With this change, apparently the Excavator which is Construction Equipment Vehicle its owner would be liable to pay more tax as provided in the Entry No. VI-A. When the amendment was made, definition of word, ''Excavator'' is not included in the Act. It is clear that the legislature intended to use the word Excavator in Entry No. VI-A, as is understood by definition of Construction Equipment Vehicle, as noted above. In other words, Excavator is a kind of Construction Equipment Vehicle. It is also clear that the legislature at the time of amendment to Entry No. VI-A separated Excavator from other kinds of Construction Equipment Vehicles such as, Loader, backhoe, compactor roller, dumper etc. The amendment thus singles out one specific kind of Construction Equipment Vehicle for the purpose of charging more tax.

We do not see any reason to disturb this piece of legislation. We do not see any discrimination made amongst the Construction Equipment Vehicles. We are, therefore, not inclined to disturb the amended provision of the Act.

However, there is substance in the grievance of the petitioners in respect of letter of the Transport Commissioner dated 25th May, 2006, which is annexed to the petition at Page 29. The Transport Commissioner, vide this letter, ordered all his subordinate officers to levy and collect tax as per the Entry No. VI-A from the owners of the ''JCB Type Vehicles''. This, apparently, is impermissible. We have explained above, Entry No. VI-A relates only to one kind of equipment which is Excavator and it cannot be generalized saying JCB Type Vehicles. The interpretation of the Transport Commissioner that all JCB type vehicles are Excavators, is incorrect. To that extent, the petitioners would succeed to nullify the effect of this letter. Though in the petition, effect of this letter has not been sought to be nullified, having regard to the real grievance of the petitioners, we are inclined to grant this relief to them.

Writ petition is partly allowed. We declare that the letter dated 25th May, 2006 issued by the Transport Commissioner is null and void and cannot be acted upon. As explained above, respondents are free to recover taxes as per Entry No. VI-A from owners of the Excavators.

Prayer made by learned AGP for keeping the order in abeyance for 4 weeks stands rejected. In the circumstances, there shall be no orders as to costs.