Allowed

P.Chandrasekar, S/O.Pandian, v. the Transport Commissioner

Madras HC24 Sept 2021WP(MD)/8476/2019

Case brief

AI extract

What is this about?

The Court allowed a writ petition filed to quash orders taxing recovery vans under clause 6-C of the Tamil Nadu Motor Vehicle Taxation Act, 1974. Relying on a prior precedent, the Court held that recovery vans designed for highway use do not qualify as construction equipment vehicles under the Act and must be taxed under clause 6-B. The impugned orders were quashed, and the matter was remitted for

What did the court decide?

The impugned orders are quashed, the matter is remitted to respondents to levy tax under Clause 6-B, and excess tax paid by the petitioner is to be refunded.

P.Chandrasekar, S/O.Pandian, Vs the Transport… — Service and Employment | Madras HC (2021)

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W.P.[MD]No.8476 of 2019

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.09.2021 CORAM:

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THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.P.[MD]No.8476 of 2019

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and

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W.M.P.[MD]No.6636 of 2019

P.Chandrasekar

... Petitioner

Vs.

1.The Transport Commissioner, Transport Department, Ezhilagam, Chepauk, Chennai – 600 005.

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2.The Regional Transport Officer, Madurai (South), Madurai.

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3.The Motor Vehicles Inspector Gr.I, Unit Office, Manmangalam, Karur District.

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4.The Regional Transport Office, Madurai Central RTO, Madurai. ... Respondents

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P RAYER: 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.

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For Petitioner : Mr.V.Santhakumaresan

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For Respondent : Mr.D.Ghandiraj Government Advocate

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.[MD]No.8476 of 2019

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**O R D E R **************

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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 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.

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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.

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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 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.

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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.

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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: https://hcservices.ecourts.gov.in/hcservices/

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W.P.[MD]No.8476 of 2019

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➢

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“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 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.

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➢ The definition of “Construction Equipment Vehicle” prescribed as per rule 2(ca) of Central Motor Vehicles Rules, 1989 as follows:

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“ 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, irrigation and general construction but modified and manufactured with “on or off” or “on and off” highway capabilities.

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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.

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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.

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➢ The classes defined in 6 of first schedule of

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.[MD]No.8476 of 2019

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Tamil Nadu Motor Vehicles Taxation Act, 1974 is enclosed for your kind reference.

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➢

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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 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.

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➢ 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.

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➢ 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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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.

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7. I have considered the rival submissions made by the learned Counsel for the parties and have perused the materials placed before this Court.

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8. As has been rightly pointed out by the learned Counsel for the petitioner, the issue raised in this writ petition has already https://hcservices.ecourts.gov.in/hcservices/ been considered and given a quietus by a learned Judge of this Court

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W.P.[MD]No.8476 of 2019

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in the aforesaid judgment, where the learned Judge has passed the following order:

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“2. The Writ Petitioner is the owner of the Recovery Van which carries the damaged vehicles 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:

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“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

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and off” highway capabilities. Explanation—A construction equipment vehicle shall be a nontransport 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 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.”

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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.

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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 https://hcservices.ecourts.gov.in/hcservices/

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W.P.[MD]No.8476 of 2019

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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 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.

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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.

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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.

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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-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.

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8. This Writ petition is allowed accordingly. No costs. Consequently, connected Miscellaneous Petition is closed.” https://hcservices.ecourts.gov.in/hcservices/

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W.P.[MD]No.8476 of 2019

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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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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.

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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.

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Sd/-

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Assistant Registrar (CS III)

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// True Copy //

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/ /2021 Sub Assistant Registrar(CS)

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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.

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1.The Transport Commissioner, Transport Department, Ezhilagam, Chepauk, Chennai – 600 005.

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