Gujarat High Court
Srinath Travels Agency vs State Of Gujarat & 2 on 26 November, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/18553/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18553 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SRINATH TRAVELS AGENCY....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR PREMAL R JOSHI WITH MRS KIRAN P JOSHI, ADVOCATE for the
Petitioner(s) No. 1
MR RONAK RAVAL, AGP for the Respondent(s) No. 1
MR NIRAL R MEHTA, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 26/11/2015
ORAL JUDGMENT
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1. Petitioner has challenged the decision of the State Authorities in imposing motor vehicles tax on the basis used by the petitioner at the airport for transferring passengers between aircraft and the terminal which, according to the petitioner, is done within the enclosed premises. The petitioner has challenged a communication dated 09.01.2014 by the Special Officer, Transport Commissioner of Government of Gujarat, Gandhinagar, under which, the petitioner has been informed that such vehicles are covered within the definition of Motor Vehicles under Section 2(28) of the Motor Vehicles Act, 1988 (hereinafter to be referred to as 'the Act') and that the airport premises are such where the public has access by obtaining tickets and that therefore, it is a public place as defined under Section 2(34) of the said Act.
2. Brief facts are as under:
Petitioner is a partnership firm and is engaged in travel and transport related business. The petitioner has been granted contract for transport of passengers from the airport terminal to the aircraft at the Ahmedabad Airport. The petitioner has to provide requisite number of vehicles with certain specifications for such purpose. The vehicles in question are registered with the RTO authorities for such specialized purpose. The petitioner has produced at Annexure I, a copy of one such certificate of Page 2 of 13 HC-NIC Page 2 of 13 Created On Tue Dec 01 00:35:59 IST 2015 C/SCA/18553/2014 JUDGMENT registration, in which, it is stated that, the motor vehicle would be used for the airport where the use of the motor vehicle is shown as "airport permissible use only HPV". In the column, for type of body, it is shown as "TERMAC COATCH". The petitioner has also produced a Certificate of Carriage Permit at Annexure II, in which, the condition imposed is that, the vehicle is allowed for airport use only.
3. On such premises, the petitioner wrote a letter to the RTO Authorities on 27.12.2013 and contended that the vehicle in question is not covered within Section 2(28) of the Act and, is therefore, not liable to pay the road tax. It was contended that the vehicle is used only within the airport premises despite which, the monthly tax of Rs. 4620/- is being collected from the petitioner. The petitioner, therefore, requested that the authorities be instructed not to collect any such tax. In response to such letter, the petitioner received the impugned communication dated 09.01.2014.
4. Learned counsel Mr. Premal Joshi for the petitioner submitted that the transport vehicle is specially adapted to use at the airport only and, is therefore, not covered within the definition of Motor Vehicle under Section 2(28) of the Act. He further submitted that, in any case, airport is not a public place, as defined under Section 2(34) and plying the vehicle only within the airport would not invite any tax from the State RTO authorities.
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5. Counsel would draw our attention to a clarification issued by the Ministry of Road Transport and Highway Transport, Government of India, in which, it is stated as under:
"I am directed to refer to your letter No. ND/RO/VS dated 22.11.2002 on the subject noted and to clarify the position as under:-
(a) As per section 2(28) of Motor Vehicle Act, a motor vehicle or vehicle means any mechanically propelled vehicle adopted 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 adopted for used 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).
Accordingly, the buses to be used at the Airport for the transfer of passengers between the aircraft and terminal operating within enclosed premises viz. Tarmac area of the Airport only is not covered under the definite of Motor Vehicle or vehicle so long as it does not come out on public roads.
(b) As per section 66(3)(p) of the Motor Vehicles Act, 1988 in case the Airport buses used for the transfer of passengers behaving the Aircraft and the Terminal, within the Tarmac area of the Aircraft was taken out to any place for the purpose of repair no permit is needed if the empty i.e. without any passengers."
6. Counsel also drew our attention to another clarificatory communication dated 03.11.1992 issued by the Government of Page 4 of 13 HC-NIC Page 4 of 13 Created On Tue Dec 01 00:35:59 IST 2015 C/SCA/18553/2014 JUDGMENT India, Ministry of Surface Transport, in which, it is stated as under:
"Sir, I am directed to say that the Ministry of Civil Aviation have pointed out that some of their specialized equipments which are used for flight handling within the premises of the Airport had been seized and Airport authorities asked to register the same like any other vehicle. They have pointed out that such equipments do not come under the purview of Motor Vehicle Act as these are of specialized nature and cannot be made use of for general application. A list of these equipments is enclosed for ready reference.
2. The matter has been examined in this Ministry and it is observed that:-
(a) the specialized equipments adopted for use within the enclosed Airport areas only cannot be deemed to be Motor Vehicles under Section 2(28) of the Motor Vehicles Act.
(b) An Aerodrome is apparently a restricted area. It cannot be deemed to be a public place as defined in Section 2(34) of the Motor Vehicles Act.
(c) As the specialized equipments will be driven within the enclosed Airport areas only, no driving license, in terms of provision of the Motor Vehicle Act, is necessary for driving these equipments. However, such a requirement may be laid down by the employer in their recruitment rules.
In view of the above, I am to request that while deciding the question whether or not a specialized equipment used within enclosed Airport areas is required to be registered under the Motor Vehicle Act, 1988, the State Governments/UT Administrations may kindly take into account the observations contained in para 2 above."
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7. On the other hand, learned counsel Mr.Niral Mehta for the Union of India opposed the stand of the petitioner that the vehicle in question is not a motor vehicle as defined under Section 2(28) of the Act.
8. Learned AGP Mr. Raval contended that the vehicle in question is a motor vehicle and is being plowed in a public place. He relied on the decision of Division Bench of this Court in case of United India Insurance Company Ltd. vs. Gujarat Ship Trading Corporation & Ors. reported in 1997 (2) GLH 836, in which, the term "public place" as defined under Section 2(34) came up for consideration. The Court held and observed as under:
"16. Therefore, it can safely be concluded that there must be user of the vehicle because of which injury to a person or damage to the goods has been caused in a "public place". The expression "public place" provided under Section 2(34) of the New Act is of vital importance and wide amplitude. It is an inclusive definition. Therefore, definition of a "public place"
under the New Act would include any place which members of public use and to which they have a right of access. The right of access may be permissive, limited, restricted or regulated by oral or written permission by tickets, passes or badges or on payment of fee. This is a settled principle of law. The use may be restricted generally or to particular purpose or purpose. What is paramount significant is the place ought to have access to the members of public and be available for their use, enjoyment, avocation or any other purpose."
9. Section 2(28) defines term "Motor Vehicle" and reads as under:
Page 6 of 13HC-NIC Page 6 of 13 Created On Tue Dec 01 00:35:59 IST 2015 C/SCA/18553/2014 JUDGMENT "''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."
10. Section 2(34) defines the term 'public place' and reads as under:
" ''Public Place'' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right to access, and includes any place or stand at which passengers are picked up or set down by a stage carriage."
11. The term 'Motor Vehicle' has been defined in an expanssive manner including range of vehicles mechanically propelled to be included in the said term. The exclusion is confined to 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. If the petitioner wants to fall in the exclusion clause as the vehicle being one of special type, it must show that it is adapted for use only in a factory or other enclosed premises. In other words, mere fact, that the vehicle is used only for the factory or other enclosed premises would not be sufficient. What has to be demonstrated is that the vehicle is Page 7 of 13 HC-NIC Page 7 of 13 Created On Tue Dec 01 00:35:59 IST 2015 C/SCA/18553/2014 JUDGMENT adapted only for such use.
12. This aspect of the matter was examined by the Division Bench of this Court in a judgement dated 15.07.2011 in case of Reliance Industries Ltd. and anr vs. State of Gujarat and ors. passed in Special Civil Application No. 11848 of 2005. Referring to the several decisions of Supreme Court, following observations were made:
"32. From the above judicial pronouncements, it can be noted that the decision in the case of Bolani Ores (supra) was rendered in the background of the language used in section 2(18) of the Motor Vehicles Act, 1939. There were significant amendments in the said provision in the year 1956 and thereafter when Motor Vehicles Act 1988 was enacted. Section 2(28) of the MV Act, with which we are concerned in the present cases, uses language substantially different from which came up for consideration before the Apex Court in Bolani Ores (supra). These differences have been noted in subsequent judgments. Over a period, from the concept of vehicle being suitable for use on road, theory of normally capable of being used on road, the liberal interpretation of the term 'motor vehicle' under section 2(28) of the Act has been propounded by the Apex Court in subsequent judgments. In the case of Chief General Manager Jagannath Area (supra) it was also observed that merely because the vehicle's dimensions exceed those specified in rule 92 and 93 of the Central Motor Vehicles Rules, that by itself would not be sufficient to get the vehicle out of the term 'motor vehicle' as defined in section 2(28) of the Act.
33. From the above, following broad propositions can be culled out.
i) For a vehicle to be a motor vehicle within the meaning of section 2(28) of the Act, what is necessary to be seen is whether it is adapted to use on the road;Page 8 of 13
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ii)To judge such adaptability, size, dimensions, weight, use that the vehicle is normally put to are some of the factors which would be relevant.
iii)If on the basis of relevant considerations, including those noted above, it can be held that the vehicle is capable of being used on road, it would satisfy the definition of the term 'motor vehicle', unless, of course, it falls within the exclusion clause in the later portion of the definition.
iv)Whether the vehicle is being regularly used on road is not relevant as long as it can be used on road when required which would satisfy the requirement of the term vehicle adapted for use on road.
v) Solely on account of the dimensions of the vehicle exceeding those specified in rule 92 and 93 of the Central Motor Vehicles Rules by itself would not mean that the vehicle is not a motor vehicle. Though, this may be a relevant factor to be considered along with other factors.
vi) For a vehicle to fall in exclusion clause of the definition, it should be a vehicle of special type adapted for use only in a factory or any other enclosed premises. Here the term 'only' has great significance. In other words, the vehicle being normally or ordinarily or usually used or even adapted for use in a factory or any other enclosed premises would not be sufficient to take it out of the category of motor vehicle. The vehicles which are special type adapted for use 'only' in a factory or any other enclosed premises would get the benefit of such exclusion.
vii)Whether the equipment is fitted with pneumatic or rubber tyres or is chain mounted equipment would not in isolation be conclusive of the nature of the vehicle. However, the fact that a vehicle is fitted with pneumatic or rubber tyres would be one of the indications to suggest that it is adapted for use on road."
14. Coming to the facts of the case, it is not even the case of Page 9 of 13 HC-NIC Page 9 of 13 Created On Tue Dec 01 00:35:59 IST 2015 C/SCA/18553/2014 JUDGMENT the petitioner that the buses provided for transport of passengers from airport terminal to the aircraft have been so specially adapted for such use only. In other words, it is not even the case of the petitioner that, such buses cannot be used as ordinary bus outside the premises. Counsel of the petitioner made a feeble attempt to argue that such buses have automatic door closer and additional space for putting hand baggage of the passengers. However, this by itself would not satisfy the requirement of the vehicle being adapted for use only for a specific purpose. Such buses, as is well known, are like other ordinary buses except that these are air conditioned buses with automatic door closer and some additional space for standing passengers in addition to sitting capacity. Merely because such a vehicle also has a small space where hand baggage can be put would not exclude them from the definition of motor vehicle.
15. The clarification issued by the Government of India would not conclude this issue. In the clarification dated 03.11.1992 in para 2(A) all that has been stated is that, the specialized equipments adapted for use within the enclosed airport areas only would not be deemed to be Motor Vehicles under Section 2(28) of the Act. This, in fact, reinforces our opinion. The Clauses (b) and (c) of para 2 do not pertain to the definition of motor vehicle contained in Section 2 (28) of the Act. These paragraphs would come up for discussion later.
16. Under the circumstances, we do not accept the petitioner's first contention that the vehicle in question is not covered under Page 10 of 13 HC-NIC Page 10 of 13 Created On Tue Dec 01 00:35:59 IST 2015 C/SCA/18553/2014 JUDGMENT the definition of motor vehicle under Section 2(28) of the Act.
17. We, however, cannot lose sight of the fact that the vehicle is registered for airport premises use only. The vehicle in question is described as TARMAC COACH. The contract carriage allows its use only for airport and not other. The question, therefore, is, as long as such vehicles are used only for transport of passengers from the airport terminal to the aircraft, can it be stated that they are operating in a public place. As noted, Section 2(34) of the Act defines term 'public place' as to a road, street, way or other place, whether a thoroughfare or not, to which the public have a right to access. The definition is in inclusive term and any place or stand at which the passengers are picked or set down by a stage carriage would also be included in such definition. Perusing minutely, the present case does not satisfy any of the requirements. The vehicle is used only for transporting the passengers from airport terminal to aircraft. These areas are heavily restricted areas. It is certainly not a road, street or other place or the way where public have a right of way. It is also not any other place whether a thoroughfare or not to which the public have a right of access. No ordinary member of the public, under any circumstances, can assert any such right. Only persons, who are being transported from two terminals points, noted above, are the fare paying passengers, who are travelling through the airlines. Even these persons have no right to access on these roads where movement is restricted, controlled and heavily guarded by the Page 11 of 13 HC-NIC Page 11 of 13 Created On Tue Dec 01 00:35:59 IST 2015 C/SCA/18553/2014 JUDGMENT airport and security authorities. They are transported from airport terminal under heavy security to the aircraft. Any movement of such passengers by foot is strictly prohibited, failing which, it will be a serious threat to the security in premises, intentional damage or even a serious accident. It is not a stand, at which, passengers are picked up or set down by stage carriage. The petitioner is not stage carriage. The airport is not a stand. The flying passengers are not passengers of the bus. For multiple reasons, therefore, the definition of 'public place' under Section 2(34) of the Act would not apply in such a case. This is what was also clarified by the Government of India in its clarificatory letter dated 03.11.1992. In Clause (b) of para 2 of such letter, it is stated that, an aerodrome is a restricted area and, it therefore, cannot be deemed to be public place as defined under Section 2(34) of the Motor Vehicles Act.
19. The culmination of our discussion, therefore, would be that, the vehicles in question certainly fall within the definition of 'motor vehicle' under Section 2(28) of the Act. However, as long as such vehicles are used by the petitioner within the enclosed airport area, particularly, for plowing passengers from airport terminal to the aircraft, it cannot be stated to be operating in a public place. The petitioner, therefore, may however, under relevant provisions of the Act, apply to the authorities for exemption from payment of tax as long as such vehicles are used for such specific purpose. The authority shall decide such application when made bearing in mind the Page 12 of 13 HC-NIC Page 12 of 13 Created On Tue Dec 01 00:35:59 IST 2015 C/SCA/18553/2014 JUDGMENT observations and findings contained in this judgement unmindful of the impugned communication dated 09.01.2014.
20. Petition is disposed of in above terms. Direct service is permitted.
(AKIL KURESHI, J.) (MOHINDER PAL, J.) Jyoti Page 13 of 13 HC-NIC Page 13 of 13 Created On Tue Dec 01 00:35:59 IST 2015