Dismissed

Girija Prasad Ray v. State of Odisha

Orissa HC15 Apr 2021CRLMC/1362/2020

Case brief

AI extract

What is this about?

In this criminal miscellaneous petition, the petitioner sought release of his hydraulic excavator and to set aside orders denying his ownership. The court held that a hydraulic excavator is a motor vehicle requiring registration under the Motor Vehicles Act, thus upholding the lower court's decision to reject the ownership claim due to lack of registration.

What did the court decide?

The Criminal Revision Misc. No.1362 of 2020 was dismissed, and the impugned orders were upheld.

Girija Prasad Ray Vs State of Odisha — Property and Title | Orissa HC (2021)

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CRLMC No.1362 of 2020

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4 15.4.2021

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The petitioner has prayed for release of his hydraulic excavator in terms of Section 457 of the Cr.P.C. by setting aside the order dated 19.8.2020 of the learned Sessions Judge, Cuttack as well as the order dated 8.6.2020 of the learned J.M.F.C.(R), Cuttack.

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The facts of the case are that Govindpur P.S.Case No.33 of 2020 was registered for commission of offences under Sections 379/268/34 of the I.P.C. and Section 12 of the OM (Prevention of Theft, Smuggling and Other Unlawful Activities) Rules, 2007 (in short ‘2007 Rules’) on the allegation of illegal excavation of sand from river bed and transportation of the same. The excavator in question was seized from the spot as found engaged in the illegal quarry operation of sand. The petitioner claims to be the owner of the said excavator and filed a petition before the learned J.M.F.C.(R), Cuttack in G.R.Case No.692 of 2020, which was rejected. Against the said order of the learned Magistrate, the petitioner preferred criminal revision before the learned Sessions Judge, Cuttack in Criminal Revision No.36 of 2020. Learned Sessions Judge by order dated 19.8.2020 also rejected the prayer of the petitioner mainly on the ground that the ownership of the said excavator is not established in favour of the petitioner as the same is found not registered by the authority concerned.

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The petitioner contends before this Court that he is the owner of the yellow colour KOMATSU JCB, hypothecated to Hinduja Leyland Finance Ltd., which is a chain mounted hydraulic excavator. As per the petitioner, he is the bona fide owner of the said excavator of which hypothecation is with to the financer and the same not being a motor vehicle, is not

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required to be registered under the Motor Vehicles Act,1988 (in short M.V.Act). In support of his contention, the petitioner refers to the definition of ‘motor vehicle’ prescribed under Section 2(28) of the M.V. Act. It is thus submitted that the present excavator is not coming within the purview of definition of motor vehicle and as such, the finding of the learned Sessions Judge is illegal.

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Learned counsel for the State submits that no confiscation proceeding in respect of the excavator has been initiated in terms of the 2007 Rules. As per him, it is not correct to submit on the part of the petitioner that the excavator is not required to be registered under the M.V.Act and in this regard, he lends support from Circular No.04 of 2019 issued by the Transport Commissioner-cum-Chairman, State Transport Authority, Odisha dated 01.10.2019.

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In view of the controversies raised, the moot point falls for decision is, whether the chain mounted hydraulic excavator is required to be registered under the M.V.Act.

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Rule 2 (cab) of the Central Motor Vehicles Rules, 1989 reads as under:

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“2. [(cab)] “Construction of 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, selfloading 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.

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Explanation.-A 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 50 kms per hour, but such vehicle does not include other purely offhighway 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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The Hon’ble Supreme Court in the case of Bose Abraham v. State of Kerala and another, (2001) 3 SCC 157, while dealing with a similar question relating to levy of tax under the Kerala Tax on Entry of Motor Vehicles, have observed that the excavator and roadrollers are motor vehicles. The relevant observations are reproduced below:

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“3. The short question that arises for consideration in these appeals is whether “motor vehicle” as defined in Section 2(28) of the Motor Vehicles Act would include excavators and roadrollers so as to attract the levy under the Kerala Tax on Entry of Motor Vehicles into Local Areas Act (hereinafter referred to as “the Act”).

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xxx xxx xxx

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We hold that the excavators and roadrollers are motor vehicles for the purpose of the Motor Vehicles Act and they are registered under that Act. The High Court has noticed the admission of the appellants that the excavators and roadrollers are suitable for use on roads. However, the contention put forth now is that they are intended for use in the enclosed premises. Merely because a motor vehicle is put to a specific use such as being confined to enclosed premises, will not render the same to be a different kind of vehicle. Hence, in our view, the High Court has correctly decided the matter and the impugned order does not call for any interference by us. However, the question whether any motor vehicle has entered into a local area to attract tax under the

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Entry Tax Act or any concession given under the local Sales Tax Act will have to be dealt with in the course of assessment arising under the Entry Tax Act.”

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Coming back to the present facts, it is not the case of the petitioner that the excavator in question is not equipped to travel on the public road on his own power. The law being set at rest by the Hon’ble Supreme Court, no room of doubt is further left to include the excavator as a motor vehicle liable for registration under the M.V.Act. As such the observations of the learned Sessions Judge, Cuttack that, the petitioner failed to satisfy his ownership over the excavator in absence of the registration certificate cannot be faulted with.

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Accordingly, while agreeing with the findings of the learned Sessions Judge, no merit is seen in the present case and the CRLMC is dismissed.

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As the restriction due to COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or print out thereof at par with certified copy in the manner prescribed, vide Court’s Notice No.4587, dated 25^th March, 2020.

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……….…………………..

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B.P.Routray, J.

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Girija Prasad Ray v. State of Odisha

Case brief

What is this about?

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Girija Prasad Ray v. State of Odisha

Case brief

What is this about?

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