Bombay High Court
The Associated Cement Companies Ltd vs State Of Maharashtra And 3 Others on 8 February, 2018
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, Swapna Joshi
1 wp448.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 448 OF 2004
The Associated Cement Companies Ltd,
a Company incorporated under the provisions
of Indian Companies Act, 1913, having its
Registered Office at "Cement House" 121,
Maharshi Karve having one of its works at
P.O. Cement Nagar 442 502, District
Chandrapur, Maharashtra, represented
by Shri Chandu Shekhar, aged 46 years,
occupation : service, ACC Cement Co. Ltd.,
Chandrapur. ... Petitioner
- Versus -
1) The State of Maharashtra, through
the Secretary, Home and Transport
Department, Mantralaya, Mumbai.
2) The Deputy Transport Commissioner,
M.S. Mumbai Transport Commissioner's
Office, Administration Building, 3rd & 4th
Floor, Dr. Ambedkar Udyan,
Govt. Colony, Bandra (East), Mumbai.
3) The Regional Transport Officer
(Government of Maharashtra), Giripeth,
Nagpur.
4) The Deputy Regional Transport
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2 wp448.04
Officer, (Government of
Maharashtra), Chandrapur. ... Respondents
-----------------
Mrs. R. Bajaj, Advocate holding for Shri S.N. Kapur, Advocate for
petitioner.
Shri S.J. Kadu, Assistant Government Pleader for respondents.
----------------
CORAM : B.P. DHARMADHIKARI AND
MRS. SWAPNA JOSHI, JJ.
DATED : FEBRUARY 8, 2018
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Heard Adv. Bajaj holding for Adv. S.N. Kapur for petitioner and Shri Kadu, learned Assistant Government Pleader for respondents.
2) After hearing respective Counsel for the parties, we find that status to be accorded to dumpers, cranes, wheel loaders, etc. employed by petitioner Industry for mining purposes in terms of Motor Vehicles Act, 1988 forms subject matter of consideration. The petitioner has been called upon to register their vehicles because of Rule 2(Ca) of the Central Motor Vehicle Rules, 1989.
3) Our attention has been invited to Division Bench judgment of this Court in Manikgarh Cement vs. State of Maharashtra and another (2016(4) Mh.L.J. 611). There the petitioner was a cement plant and similar notice received by it formed subject matter. The vehicles used by ::: Uploaded on - 13/02/2018 ::: Downloaded on - 14/02/2018 01:27:43 ::: 3 wp448.04 cement plant are mentioned in paragraph 2 of the said judgment. After hearing respective Counsel in that matter, we have passed the following order :
"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 ::: Uploaded on - 13/02/2018 ::: Downloaded on - 14/02/2018 01:27:43 :::
4 wp448.04 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."
4) In the said judgment, in paragraph 8, present petition also finds mention. One of us (B.P. Dharmadhikari, J.) is party to the said judgment.
5) The facts are identical. The petitioner has not been given necessary opportunity and potential of vehicles with petitioner has also not been examined accordingly.
6) In this situation, following said judgment, we partly allow this petition. We quash and set aside the impugned communication dated 18/10/2003. We direct petitioner to make an appropriate representation to respondent no.3 in this respect within three weeks from today. After receipt of that representation, respondent no.3 shall extend an opportunity of hearing to petitioner. The petitioner is also permitted to adduce evidence, if it is felt necessary. After completing this exercise, ::: Uploaded on - 13/02/2018 ::: Downloaded on - 14/02/2018 01:27:43 ::: 5 wp448.04 fresh decision about recourse to Rule 2(Ca) of the Central Motor Vehicles Rules, 1989 shall be taken. No costs.
JUDGE JUDGE
khj
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