BOLANI ORES LTD. ETC. versus STATE OF ORISSA ETC.

BOLAN! 'oRES LTD. ETC.

STATE OF ORISSA ETC. Seprember 24, 1974

[P. JAGANMOHAN REDDY, M. H. BEG AND ,A. ALAGIRISWAMI, JJ.]

Motor Ve/lie/es Act, 1939-:-5. 2(18)-"Adapted for 11se"-Mea11i11g of-

Orissa Motor Ve/1icles Taxation Act, 1930-S. 2(c)--Defi11i1io11 by refermce -If ame111lme11ls or repeal in tlie Principal Act would affect the provisions in the Act i11 irhic/1 they are referred 10.

The· appellants who owned Dumpers, Rockers and Tractors claimed that these machines were not Hable for registration under s. 22 of the Ind•an Motor Vehicles Act, 1939 and as such were no1 taxable under s. 6 of the Bihar and Orisrn Motor Vehicles Taxation Act, 1930. The trial court helJ that the machinery were motor vehicles within the meaning of s. 2(18) of the Motor Vehicles Act and were therefore liable for registration under that Act and so to payment of tax. 1Jnder. the Taxation Act. The High Court held that unless it was shown that the vehicles were of special type adapted for use only in factories or enclosed premises and incapable of running on any other type of roads or public roads the vehicks were motor vehicles and that the' three types not beinit motor vehicles were not liable for registration under s. 22 of the Act nor were they subject to payment of tax under the Taxation Act.

Section 2 ( c) of the Taxation Act adopted the definition of motor vehicle contained in the Motor Vehicles Act. 1914. The Motor Vehicles Act, 1914 was repealed and replaced oy the Motor Vehicles Act, 1939. The definition of motor vehicle ins. 2(18) of the Motor Vehicles Act having been redefined the Taxation Act, by the Orissa Amendment Act 2 of 1940 adopted that definition for the purpose of' taxation. The Orissa Amendment Act, 1943 re·enacted provisions of ss. 2 to 8 of the' Taxation Act as the Amendment Act 2 of 1940 was due· to expire. Section 2( 18) of the Motor Vehicles Act was amended bv Act l 00 of 1956. But there. WalS no corresponding amendment in the dcfi nition of s. 2(c) of. the Taxation .Act. ·

rt was contrnded in this Cou·rt that under the definition of motor veliicle as it existed prior to amendment or subsequent thereto dumpers, rockers and tractors were not motor vehicles because they were not adapted for use on the road and (2) the definition of motor vehicle in s. 2(c) of the Taxation Act is not definition by incorporation but only definition by .reference and as such the meanin~ of motor vehicle for the purpose of s. 2(c) of the Taxation Act would be the same as defined from time to time under ss. 8(2) to 18 of the Motor Vehicles Act.

HELD : Dumpers and rockers though registrable uncrer the Motor ·Vehicles Act are not taxable under the Taxation Act as long as \hey are working solely within the premises of th1: respective owners. So far as the tractairs are con-cerned thev are neither registrable under the Motor Vehicles Act nor taxabl~ under the Taxation Act. [ 160 Fl

motor vehicle which is not "adapted for use" upon roads to which public have no right of a1:cess is not motor vehicle within the meaning of s. 2(18) of the Act. The words "is adapted for use" have the same connotation as "is suitable" o'r "is fit'' for use on the roads. The meaning of the word "adopted" in s. 2(18) of the Act is itself indicated in entry 57 of List of the 7th Schedule to the Constitution which confers powers on the State to tax vehicles whether prop~llecl mechanically or not and uses the words "suit-able" in relation to its me on the roads. The words "adapted for use" must. therefore, be constructed as "suitable for use". The words "adapted for use"

cannot be larger in their import by including vehicles which are not "suitable-for use" on roads. perusal of the provisions of the Act would justify trae conclusion that it is not necessary,.for other vehicles registered under the Act to· .be al.so liable for payment of tax under the Taxation Act. [153 G-A; 151 F'.G.l

Daley and others v. Hargreaves [1961] l All E.R. 552, MacDonald v. Car· micliae/ (1941) S.C. (J) 27, Maddox v. Storer [1963] 1 Q.B. 451 and Bums v. Curre// [1963] 2 Q.B. 433, referred to.

(2) The power of taxation under Entry 57 List _II cannot e~ceed t~e com· pensatory nature which must have some nexus wit~ the v~h1cles · usmg the public roads. If the vehicles do not use roads notw1t~standmg that they are registered under the Act they cannot be taxed. . If t~1s be the purpose and object of the Taxation Act, when the motor vehicle is defined unde~ s. 2(c) of the Taxation Act as having the. same meaning as in the Motor Ve~1cles Act. 193°9 then the intention cf the legislature could not have been anythmg but to· incorporate only the definition in the Motor Vehicles Act as it .existed ~n 1943. as if that definition was bodily written into s. 2(c) of the Taxation Act. If the· subsequent Orissa Motor Vehicle Taxation (Amendment) .A.ct 1943 incorpo-rating the definition of "motor vehicle" referred to the d·~finition of "motor vehicle" 11ndu the Act as then existi11g the effect 0f thi.s 1e1mlative method would amount to an incorporation by reference to the provisions of ~. 2(18) cf the Act in s. 2(c) of the Taxation Act. Any subsequent amendment in the Act or total repeal of the Act under fre~h legislation on that topic would not 0 affect the definition of "motor vehicle" in s. 2(c) of the Taxation Act. [155 B; D-E]

The use of the word 'has' in the expression "has the same meaning as in the Motor Vehicle .Act, 1939" in s. 2(c) of the Act would justify the assump· tion that the legislature had intended to incorporate the definition under the Act as it then existed and not as it may exist from time to time. [155 Fl

In re. Woo-?s Estate (1886)31 Ch.D.607, Clarke v. Brad/Ou!fh (1888)8. Q.B.D. 63, Secrttary of State for India in Council v. HiwfU11than Co-operative l11~ura11ce Somty Ltd. L.R. 58 I.A. 259, State of Bihar v. S. K. Ray [1966] Supp. S.C.R. 259 and Ram Sarup v. Munshi and Others [1963] 3 S.C.R. 858, referred to. ·

The definition of motor vehicle as. existing prior to the 1956 amendment of the Motor Vehicles Act would alone be applicable as being incorporated in the Taxation Act. The intention of Parliament for modifying the Motor Vehicles Act has no relevapce in determining the intention of the Orissa Lejtislature in enacting the Taxatibn Act. The power of taxation is not in the concurrent Li'lt but in List II and construed as taxation measure the ambit of it cannot be extended by mere implication. It is possible for both the Acts to co-exist even after the definition of "motor vehicle" in the Act has been amended. [159 B; 158 HI

In the instant case there is evidence to show that the dumpers, rockers and' tractairs are exclusively used on the premises of the owners. [159 El

The machines which are the subject matter of these appeals must be work-ing in their respective mining areas. The mere fact that there is no fence or barbed wire around the leasehold premises is not conclusive. There is evidenct to show that the public are not allowed to go inside withollt prior permission, there are gates and check on ingress and egress is kept by guards who also ensure that no unauthorised tiersons have access to the m·inin11: area. [160 DE]

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1816 & 1817 of 1968.

Appeal from the Judgment & Order dated the 30th March 1967 of Orissa High Court in F.As. Nos. 44 & 45 of 1963. '

Weit Petition No. 372 of 1974

Petition under Article 3 2 of the Constitution of India Civil Appeal No. 336 of 1970 . Appeal by Special Leave from the Judgment and order dated 28th March 1969 of the Mysore High Court in W.P. No. 226 of i967 . . Lal Narain Sinha, Sol. Gen. of India, A. K. Basu ani:l D. N. Gupta, for the Appellant On CA. No. 1816/68) and Petitioner in W.P. No. 372/74); A. K. Basu & D. N. Gupta, for the Appellant (In CAS. Nos. 1817 I 68); .

V. M. Tarkunde, Santosh Chatterjee and R. N. Sachthey, for the Respondents (In CAs. Nos. 1816-1817/68 & W.P. No. 372174); Soli J. Sorabjee, Obed Shenio, P. C. Bhartarl, Ravinder Narain &

K. J. John, for Intervener No. 1;

S. P. Nayar for Intervener No. 2;

S. T. Desai, B. P. Maheshwari and Suresh Seth, for Intervener No .

S. T. Desai, B. P. M'aheshwari & Suresh Seih for the Appellant · .(In CA No. 336/70).

M. Veerappa, for the respondent- (In C.A. No. 336/70).

The Judgment of the Court was delivered by

JAGANMOHAN REDDY, J.-These appeals raise common question· .as to whether Dump1:rs, Rockers and Tractors are motor vehicles with-in the meaning of the relevant State Motor Vehicles Taxation Acts, and are accordingly taxable thereunder. Apart from these appeals, Boiani Ores Ltd.-Appellant in Civil Appeal No. 1816 of 1968-has filed writ petition chall1mging the constitutional validity of the Bihar and Orissa Motor Vehicles Taxation Act; 1930. The question raised in the writ petition will only arise for determination, if the judgment of the High Court of Orissa is held to be valid otherwise the question of · the constitutional validity of the Bihar and Orissa Motor Vehicles Taxation Act (hereinafter referred to as 'the Taxation Act') does not fall for determination as that would be purely academic.

The two Civil Appeals Nos. 1816 of 1968 and 1817 cf 1968 arise out of two suits-one filed by Boiani Ores Ltd. and the other by Orissa Minerals Development Company Ltd., respectively,. for dee-laraticn that the machineries in their possession which were described in the respective Schedules to the plaints were not Fable for registra-tion under s. 22 of the Indian Motor Vehicles Act-hereinafter referred to as 'the Act', and cannot, therefore, be taxed under s. 6 oi the Taxa-tion Act. In the suit filed by Boiani Ores Ltd., 8 types of machinery were involved : (1) Shovels, (2) Drill Master, (3) Caterpillar Bun: dozers, (4) Rockers, (5) Dumpers, (6) Motor Grader, (7) Tractors and (8) Fargo Truck fitted with serving tank for diesel oil etc. The Trial Court held that all the items of machinery as above mentioned, except item ( 6) i.e. Motor Grader, came within . the definition of

'motor vehicle' given in s. 2 (18) of the Act,' and were' therefore liable for registration under. s. 22 of the Act as well as payment of taxe.s under the Taxation Act. Against this decision, First Appeal No. 44 of 1963 was. filed in the Orissa High Court. The State did not file any cross appeal against the declaration that item ( 6) was not taxable. . The High Court was of the view that unless it is shown that the v.chic.le is of special type adapted for use ()nly in factories or enclosed pre-mises and incapable of running on any other type of roads or public roads, the vehicles were motor vehicles. It was conceded during the hearing on behalf of the appellant that type (8) Fargo Truck clearly comes within the definition of motor vehicle and likewise the Advocate General conceded that ·type (2) Ingersoll--Rand-Drill Master· cannot be held to be Motor Vehicle. The High Court accordingly modified the order of the Trial Court in respect of the types fa items (l), (2) and ( 3) . It held that these three . types as well as the Motor Grader in item (6) already held by the Trial Court not to be motor vehicle, were not liable for registration under s. 22 of the Act, nor would they be subiect to payment of tax under the Taxation Act. ·

In _the suit filed by Orissa Mineral Development Company Ltd., out of which First Appeal No. 45 of 1963 arose, the plaintiff sought declaration that nine types of ·machinery which it owns were not liable for registration under the Act: Item (1) & (2) being Dumpers, (3) & (3A). Tractors, (4) Caterpillar Trax Cavetror; (5) & (6) Caterpillar Bull-dozers, (7) & (8) Scrapers and (9) Shovel. The Trial Court found on evidence that items ( 4) to (9) had sort of crawler mechanism and were not adapted for regular use on the roads. This fact was also admitted by the opposite party. Accordingly it held that the vehicles in these items did not come within the ambit of the definition of 'motor vehicle' under s. 2 (18) and were not liable for registeration under s. · 22 of the Act. The case of bumpers and Tractors items (1) to (3) and (3A), however, was .held to stand on different footing, as these vehicles were adapted for being used on roads for transporting the goods of . the plaintiff, though it may be within its own field of operation. The reasons for bringing such vehi-F cles and the tractors within the purview of s. 2(18) of the Act were discussed at some length, and accordingly it was held in both the suits ·that the vehicle indicated in the respective suit were liable for regis-tration under s. 22 of the Act and for payment of the requisite ta...: under the Taxation Act. ·

. In these appeals intervention of M/s. Chougle & Co., M/s N.C.D.C. Ltd. and Mis. Dalmia Cement Ltd. who allege that proceedings taken by them are pending in Courts, was permitted and they are represent-ed by the learned Advocates Soli J. Sorabji, S. P. Nayar and S. T. Desai respectively.

Civil Appeal No. 336 of 1970 is irt respect of the Mysore Motor Vehicles Taxation Act-hereinafter called 'the Mvsore Act'. The appellants in this appeal filed petition under Art. · 226 of the Consti-tution in tJ-ie High Court of Mysore challenging the demand by the Regional Transport Officer to get the Dumpers registered under the Act failin$ which they would be committing an offence entailing penal

.consequences. The High Court of Mysore, while dismissing the peti· tion, held that the Dumpers can be used for carrying loads even cutside 1he mining area or any other enclosed premises, like any other 'goods vehicle' which is required. to be registered under the Act. According to it, what would take the vehicle out of the catc:gory of 'motor vehi-.cles' under the Mysore Act is that they must be such as ''are incapa-ble of use in any other place for the purpose of trans;iort of goods or passengers", which, in its view, was not "the same thing as saying that if the vehicle is not put to use elsewhere, or used for special purpose, it must be exempted from registration under section 22 of the Act." It further observed : "The test of purpose, as argued by the learned ,counsel, does not also, in our view, fall clearly within the purview of the statuto1~y "exemption in sccUon 2(18) of the Act. On the other hand, what is enjoined is that its very design and manufacture must be such as would confine its capability for use only in factory or enclosed premises." Referring to the case of M/s. Boiani Ores Ltd. v. State of Orissa,([1]) the interpretation. placed by the Orissa High Court on the judgment of the Supreme Court in The State of Mysnre v. Syed lbrahim(2) was not accepted. On this aspect of the Mysore High Court observed :

"But, it may also. be noted that in the decision of the Supreme Court, above referred to, what was in question was whether the owner of Motor Car, which was used for transporting passengers for hire was liable for prosecution under section 42(1) of the Act. The exemption under section 2(18) did not fall for consideration in the said decision. It was in this contex.t that the Suprem~ Court laid down that if Motor Ve.hide is used as transport vehicle, the owner who so uses it or permits it to be so used is required to obtain the neces-sary permit. It is the use of the vehicle for carrying passen-gers f()r hire or reward which determines the application of section 4 2 (1 ) of the Act."

The High Court, however, agreed with the test laid down by the Orissa High Court for determining what under the Motor Vehicles Act is 'motor vehicle'.

The decision in these appeals hinges on the view we take of what 'motor vehicle' is for the purpose of s. 2(c) of the Taxation Act under which the motor vehicle has the same meaning as in the Motor Vehicles Act, 1939, and whether the subsequent amendment of the definition ins. 2(18) of the Act by the Motor Vehicles (Amendment) Act, will govern the definition of 'motor vehicle' for the purposes of the Taxation Act. Section 6 of the Taxation Act imposes on every motor vehicle tax at the rate specified in the Second Schedule to the Act. The question, therefore, arises as to what is 'motor vehi-cle' for the purposes of the Taxation Act. It may be pointed out that s. 2 ( c) of the Taxation Act, prior to its amendment in 1940, defined 'motor V(~hicle' as meaning any vehicle ,propelled, or which· may be propelled, on road by ek:tr!cal or mechanical power either entirely

(2) [1967] 2 S. C.R. 673.

or partially. In 1939 the Motor Vehicles Act of 1914 was repealed and new Act substituted in its place. The 1914 Act defined 'motor vehicle' as including "a vehicle, carriage or other means of conveyance propelled, or which mar be propelled, on road by electrical or mecha-nical power either entirely or partially." The Orissa Act, therefore, initially adopted the definition in the Taxation Act, which was in con-sonance with the Motor Vehicles Act, as it then stood. The defini-B tion of 'motor vehicle' under s. 2( 18) of the Act having been re-defined, the Taxation Act by the Orissa Amendment Act 2 of 1940 adopted that definition for the purposes of taxation. The preamable to this amendment stated that the amendment was made for the pur-pose of avoiding repugnancy in the Motor Vehicles Act, 1939. The Orissa Amendment Act of 1943 re-enacted provisions of ss. 2 to 8 of the said Act, as the Amendment Act 2 of 1940 was due to expire on November 23, 1943. Section 2(18) of the Act was, however, amended by Act 100 of 1956 but there was no corresponding amend-ment in the definition of s. 2(c) of the Taxation Act. It is .• therefore, contended that the amended definition is inapplicable to the Taxation Act, but it is only the definition of 'motor vehicle' as it existed under the Act prior to the amendment that has to be read in s. 2 ( c) of the Taxation Act, inasmuch as the purpose and intendment of the Legis-D lature was only to incorporate the definition as it existed at the time when the Taxation Act was amended in 1943. If it was otherwise, following the legislative practice adopted earlier by the Orissa Legis-lature, the definition of 'motor vehicle' would have been suitably amended in order to avoid any repugnancy with the amendment. Apart from this contention, it is also submitted that under the definition as it existed prior to the amendment or. subsequent thereto dumpers, rock-E ers and tractors are not 'motor vehicles', because they arc not adapted for use on the road.

Before we deal with this question it is necessary to riote the pre-liminary objection raised by the learned Advocate for the State of Orissa that the appellants should not be permitted to raise this ques-tion as it was not pleaded or urged either before the Trial Court or before the High Court, nor is there any evidence to determine the question whether the vehicles, on which the levy of the impugned tax is held to be valid, are used solely upon the premises of the owners. It is submitted that the contention is contrary to what is stated in the plaint and that it is also not covered by any of the issues under which the question as to whether the premises in_ which the plaintiffs operate are the exclusive premises of the plaintiffs, nor is there any evidence as to whether the area where the vehicles operate is the exclusive area of the plaintiffs.

In our view, the preliminary objection has no validity, because, firstly, in para 2 of the plaint it is definitely pleaded : "That for the specific purpose of mining operations within their leasehold areas, they possess Caterpillar Bulldozers Model D.S ..... Letourneau Westing-house Dumpers and Euclid Dumpers ... Motor Grader ... Tractors ... lI Fargo Truck" etc. "These machines are mechanically propelled but are neither intended nor adapted for use on public roads nor arc ever used by the plaintiffs on public roads or public places." Secondly,the relief asked for is that the machines in possession of the plaintiffs · A. as described above for the purpose of working in the niines. and re-moving over burdens are not liable for registration and consequent payment of taxes under the Taxation Act. Thirdly, the written state· ment clearly comprehends what the plaintiffs' case is. It is categori· cally stated in para 4 th11t "the various types of machines "'numerated in para 2 bf the plaint bei11g mechanica!Iy propelled vehicles come within the definition of motor vehicles as contained in section 2 (18) of the Act since they do not come under the exceptions provided there-in. It is incorrect to say that these vehicles are neither intended nor adapted for use on public roads, nor are ever so used by the plaintiffs on public roads or public places. . On the contrary the Rlaces where the aforesaid machines are operating are public places within the meaning of section 2 ( 24) of the Motor Vehicles .Act since the public are granted the right of access to the same for transacting day to day business." Fourthli, issues Nos. 4 and 5, viz. "Are the suit vehicles not 'motor vehicles' within the provisions of Motor Vehicles Act ?" and "Are the suit vehicles liable for registration and taxation 'l" respectively give scope for the question now raised. Lastly, the evidence also which has been led qy ihe plaintiffs, and to which we shall have occa-sion to refer later entitles the appellants to raise this question.. For these reasons, we reject the preliminary objection.

It is now necessary to compare the two definitions of 'motor vehi-cle' under s. 2(18) of the Act both before and after the amendment by Act 100 of 1956. We, therefore, give below both these definitions :

It will be observed from comparison of the two definitions that the vehicles which have been taken out o~ the category of 'motor vehicle' are different in these ,two definitions. Before the amendment motor vehicle though motor vehicle within the meaning of the first part of the definition is nonetheless not so, because of its specified user, i.e. if it is used solely upon the premises of the owner. These r1eliicles under s. 6 of the Taxaition Act read with s. 2( c) thereof would not attract liability to tax. But after the amendment though motor vehicle may be adapted for use upon roads, nonetheless in order to be taken out of the category of the definition it had to be further adapted, namely, it should be vehicle of special type adapted for use only in factory or in any other enclosed premises. In other

words, motor vehicle of special type adapted as stated in the post amendment definition would be such as would not be considered to be adapted for use upon roads.

. The. position is t_he same with respect to the. Motor Vehicles Taxa• t1on Acts of other States also. We have seen the Mysore Motor Vehi-8. cles Taxation Act, 1957, which though does not define "motor vehicle" as such, nonetheless under s. 2 (j) states that words and expressions used but. not· defined in the Act shall have the meanings assigned to them in the Motor Vehicles Act, 1939. It also says that the Mysore General Clauses Act, 1899 (Mysore Act III of 1899) shall apply for the interpretation of the Act, as it applies for the interpretation of Mysore Act. Section 3 .is the taxing provision which provides that tax at the. rates specified in Part of the Schedule shall be levied on all motor vehicles suitable for use on roads, kept in the State of ¥ysore.In the Andhra Pradesh (Andhra Area) Motor Vehicles Taxation .Act, 1931, s. 2(i) states that the expressions mentioned in clauses (a) to (f),. of which clause (d) refers to 'motor vehicle', shall have the o· meanings assigned to them in the Motor Vehicles Act, 1939. It is also pertinent to mention that the Andhra Pradesh (Andhra Area) ·Motor Vehicles Taxation Act bys. 2(v) defines 'public road' and by s. 4 which is the taxing provision it is provided that the State Govern-ment may, by notification in the Official Gazette, from time to time direct tl!at tax shall be levied on every motor vehicle using ahy public road in the Andhra area of the State of -Andhra Pradesh.

. The Madras Act uses the same language as that of the Andhra Pradesh (Andhra Area) Act. It appears that usii:tg any public road in the Presidency of Madras was first substituted for the . words "kept or used in the Pr~sidency of. Madras" by s. 3 (i) of the Ma~ras Motor Vehicles Taxation (Amendment) Act, 1932 (Madras Act V of 1932).

· The Bombay Motor Vehicles Tax Act, 1958 follows the same pat-tern as the Mysore Act and though it does not define 'motor vehicle', yet, by s. 2(10) it provides that other words and expressions used, but not defined, in the Act shall have the meanings respectively assigned to them in the Motor Vehicles Act, 1939.

. The Bengal Motor Vehicles Tax Act, 1932, also is similar as that of the Bombay Act inasmuch as s.2(5) thereof states that words and expressions used, but not defined, in the Act shall have the same mean .. ing as in the Motor Vehicles Act, 1939.

In aU these cases the J.:ommon question would be whether the defi-nition of 'motor vehicle' as it existed before the Amendment Act of 1956 is the same as ins. 2(c) of the Taxation Act or does the defi-ff nition in s. 2 ( c) of the Taxation Act inean that the motor vehicle as defined in the Act from time to time is to be adopted for the purpose of s. 2(c) of the Ta)!:ation Act. In so far as the larger question is ll-L251 Sup.Cil75'

concerned, as to whether dumpers, rockers and tractors are motor vehi· cles at all within the meaning of the first part of the definition of 'motor vehicle' in s. 2(18) of the Act, which is the same before and after the amendment, it is contended that these vehicles are not &uitably adapted for use upon road11, which according to the learned Advocates mean the public roads or roads to which the public has right of access. The Motor Vehic:les Taxation Acts are enacti:d in ex~rcise of the powers confetred on the State Legislatures under entry 57 of List II of the S'eventh Schedule to the Constitution, while the Motor Vehicles Act is enacted by the Parliament in exercise of the concur-rent legislative powet in entry 35 of List III of the Seventh Schedule to the Constitution. Entry 57 of List II empowers legislation in res-pect of taxes on vehicles, whether mechanically propelled or not, suit· able for use on roads, including tramcars subject to the provisions of entry 35 of List III. The power exercisable under entry 57 is the power to impose taxes which are in nature of regulatory and compen-satory measures. The regulatory and compensatory nature of the tax is that the taxing power should be exercised to impose taxes on motor vehicles which use the roads in the State or are kept for use thereon either throughout the whole area or parts thereof and are ~ufficient to make and maintain such roads : See The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and others.(1) Jn this case, the earlier decision in Atiabari Tea Company Ltd. v. The State of Assam and others([2 ]) was considered. Since the taxing statute is regulatory or compensatory statute, it is contended that the provi-5ions of ss. 6B, 7, 9A of the Taxation Act relate only to the actual use of the public road. It is pointed out that s. 6 of the Taxation Act does not place the burden of taxation on the registered owners of the motor vehicles, but only on the persons who keep the motor vehicles for use which would mean use their on the public roads. If no such use of public roads is made or the vehicles are not such as can be used on the public roads, then no tax could be levied under the Taxation Act. Reference in the Taxation Act to the re!!i,tered owners is, it is submitted, meant only for the purpose of enabling refund of tax paid but not payable in terms of the Act, or s. 7 of the Taxation Act. Under F' Entry 35 of the Concurrent List, the Parliament as ..yell as the State Legislatures can legislate in respect of only mechanically propelled vehicles including the principles on which taxes_ on such vehicles are to be levied. It ha' no power to deal with vehicles which are not mechanicaUy propelled though under the Taxation Act these non-mechanically propelled vehicles which are suitable for use on roads can also be taxed even without t\leir being registered under the Act. It will thus be seen that while entry 57 of List II is solely concerned with taxes on vehicles whether mechanically propelled or not. entry 35 deals with also the principles on which taxes on such vehicles are to be levied. Taxes on vehicles cannote the liability to pav tax~s at the rates at which th~ taxes are to be levied. On the other hand, the expression 'principles of taxation' denote rules of p:uidance in the mat-ter of tax:ition. The ambit and amplitude of these two le~islative entries in the respective Lists was dealt with iii. State of Assam & Others

(2) [1961] l S. C. R. 809.

(1) [1963] l S. C.R. 491.

BOLAN! ORES LTD. v. ORISSA (Jaganmohan Reddy, J.)

v. La~an>'a Probha Debi,([1]) where Suba Rao, C.J~. speaking for the Constitution Bench of this Court observed at p. 614 :

"The two entries deal with two different matters though allied ones-one deals with taxes on vehicles and the other with the principles on which such taxes are to be levied. when two entries in the Constitution, whether in the same 8 List or different Lists, deal with two subjects, if possible, an attelil,\'t shall be made to harmonize them rather than to bring them mto confilct. Taxes on vehicles in their ordinary mean-ing connote the liability to pay taxes at the rates at which the taxes are to be levied. On the other handi the expression "principles of taxation" denotes rules of guidance in the matter of taxation. We, therefore, hold that the Amending Acts do not come into conflict with the existing law in res-pect of any principles of taxation, but only deal with subject-matter which is exclusively within the legislative competence of the State Legislature."

It is contended that having regard to the nature of the vehicles in question they are particularly suitable for the functions they are per· forming and unsuitable for the roads on which they would be only source of damage, inconvenience, danger and uneconomical compared with the other vehicles usually utiHsed for transport of goods. Accord-ingly it is submitted that : ( 1) the present case should be determined with reference to the definition of 'motor vehicle' read without the amendment in the Act, as such vehicles operating solely within the appellants' premises should not be liable to tax; ( 2) the vehicles not being suitable for public roads would not be either registered or taxed whether before or after 1956. Both for the purposes of registration and taxation the common question arises, viz., whether the vehicles in question are adapted for use upon roads, which, it is submitted, are public roads or roads to which public have right of access. If they are not, then they are not 'motor vehicles' within the meaning of either the Act or the Taxation Act; (3) the concept 'adapted for use on roads' must lie within the ambit of the expression used by the. Consti-tution; otherwise it would be unconstitutional. . It must, therefore, follow that the definition can only refer to vehicles which are reason-ably suitable for the road in the sense that an average man could think that plying of the vehicles on the road would be one of the normal uses of the vehicles. That alone would be test of suitability; and ( 4) for the interpretation of s. 22 of the Act it would be permissible and even obligatory to examine the section not in isolation but ii~ ~he light of the object and scheme of the Act and the regulatory prov1s10ns regard-ing the licensing of drivers, issuing of permits, provisions for com-pulsory registration and other regulatory provision are confined to the vehicles on the public roads. The provisions of s. 22 are definitely to advance the objects of the Act and to effectuate the regu!mory pro-vis;cns. By the very language the principal purpose is to insist upon ·c.H registration in respect of vehicles plying in public places. Further, the

expression must be interpreted to advance the object 1>f the Act exactly as the other para of ~. 22 does. In this view the expression "purpose of carrying passengers or goods" cannot mean the personal use of the owner. person himself cannot be the passenger and goods, and as such it must not bii interpreted disjunctively. It is single expression "passenger or goods". It is conceivable that this alternative part of the section is only to ensure that in connection with the joW"ney on II public road even i( motor vehicle goes into place which will not be strictly public place like hotel or. inside railway, such as in Railway Station,. or even inside the pmnises of bus depot, hospitals, etc. provisions for compulsory registration should be applicable. The judgment of the High Court is assailed on the ground that while for-mulating the test to determine whether vehicle is adapted for use on the roads it has evidently equated compatibility with suitability, because at certain places it has laid down the test in terms of compatibility and at other places in terms of suitabil.ity. Th.is is clearly illustratived by its decision regarding 'tractor'. tractor without trailer can neither carry passengers nor goods. In the instant case, it is s:aid that the tractor cannot ply in public place, nor does it ply in any other place for carrying l!.a!iSengers or goods. It could not evidently fall within s. 22 of the Act. Though this is so, the High Court s11ys that because it can be adapted by attaching trailer, it comes withins. 2(18), for-getting that wha:t we are concerned with is tractair without trailer which is actually used to supply c:ompressed air to certain plants or machines, which clearly shows that the High Court did not have correct concept of "adapted for use on road". ·

Shri Soli Sorabji on behalf of the interveners has more or less adopted similar line of argument and has referred us to the several dictionary meanings of the word 'adapted'. He has also referred to the English cases on this question and submitted that no vehicle can be t;ued unless it possessses the attribute of being "suitable for use on roads". The expres$,ion "adapted for use on roads" must be constru-ed as suitable for use on roads in the light of entry 57; otherwise, the legislation would be ultra vires the said entry, and oonsequently such construction should be avoided by courts. He further .submitted that the Orissa High Court has misconstrued the judgment of thi;. Supreme Court in State of Mysore v. Syed Ibrahim,([1]) where the observations were made with referenc(~ to the definition of "a public service vehicle" as defined in s. 2(25) of the Act, under which user by itself was sufficient to bring the vehicle within its purview. He has referred us toss. 47(f), 55(f), 71(2), 74, 75(1) and (3) and 77 of the Act in support of his proposition that having regard to the gene-ral object, purpose and the policy underlying the Act the expression "roads" must mean public roads and not private roads. If so, the dumpers, rockers and tractors etc. which do not ply or a.re not suit-able for plying on public roads cannot: be either registered under the Act or ta:xed under the Taxation Act.

Mr. Tarkunde for the State of .()Jissa submits that every motor vehicle registered under the Act is liable to pay tax under the Taxa-tion Act and since dumpers, rockers and tractors are by their nature (!) [1967) 2 S. C. R. 673.

adapted for use on the roads they are registerable, and they have to be registered and are liable for payment of tax under the Taxation. Act. There has been good deal of argument on both sides on the mean-ing of the expression "adapted for use upon roads". We have been referred to certain English decisions which deal with the meaning of the word 'adapted' in the English Road Traffic . Act, 1960. While the definition of 'motor vehicle' in the Act describes it as mechani-B cally propelled vehicle adapted for use upon roads, the English Road Traffic Act describes it as mechanically propelled vehicle "intended or adapted for use on roads". Even the earlier English Road Traffic Act, 1930, had used the words "intended or adapted for use on roads'', whil~ making Part I applicable to. motor vehicles ..

In Daley and others v. Hargreaves([1]) the Queen's Bench Division took the view that as there was no evidence sufficient to show that the dumpers were "intended or adapted for use on roads" within the mean-ing of s. 36 of the Road and Rail Traffic Act, 1933, and s. 1 of the Road Traffic Act, 1930, and the case being indistinguishable in sub-stance from the Scottish decision in MacDonald v. Carmichael([2 ]) which the Court would follow for conformity, it had not been estab-lished that dumpers were motor vehicles to which the regulations applied. In M11cDonald's case([2]) it was held that the dumpers were solely used in connexion with road construction and were not cons-tructed to carry goods on an ordinary highway. They were so cons-tructed as to be capable of, and were in fact occasionally used for, carrying road-making material along. short stretches of tQe public high-way in the vicinity of the work of reconstruction. The ratio of that decision was applied to the Daley's case,([1]) where Salmon, J. observ-·E ed at p. 555:

"In my judgment, the true effect of the Court of Justiciary's decision was that the very limited use of the dumpers on the road in that case did not establish, that they were "intendc / ed or adapted for use on the road", within the meaning of those words in the Road Traffic Act, 1930, s. 1." ,

Lord Parker, CJ., though agreeing reserved his opinion by emphasis-'ing that it must not be taken as the result of this decision that dumpers <>f the type used in this case were not motor vehicles intended or adapted for use on the road. He indicated that he had agreed with :Salmon, J., merely because there was no proof in that case that the dull\pers used were motor vehicles. '

While dealing with the English cases it must riot be forgotten that the definition of "motor vehicle" in the Road Traffic Act imports the element of intentiort into the definition for ascertaining whether vehicle is motor vehicle. In Maddox v. Storer,(S) .Lord Parker, C.J., was construing the word "adapted" when used disjunctively with "constructed". He observed at p. 456 :

"One can get illustration after illustration, on looking at the Act itself, where "adaptted," when used disjunctively :with (1) (1961] l All E. R. 552. (2) (1941] S. C. (J) 27. (3) [1963] 1 Q. B. 451.

"constructed" must mean physical alteration, and, as it seems to me, other cases whf:re the word "adapted" alone is used and where it must be given the adjectival meaning, of being fit and apt for the purpos1~."

But where the word "adapted" alone has been used such as in sub-paragraph ( 2) of paragraph 1 of the First Schedule to the Road Traffic Act, 1960, he was of the view that it was wholly_inapt to mean "altered so as to make fit". He asked "How do you alter motor-car so as to make it fit to carry not more than seven passengers"? It is dearly there standing on its own, subsceptible only of meaning "fit and apt for the purpose."

In Burns v. Currell([1]) also Lord Parker delivered the judgment. He referred to the decision in Daley, MacDonald Maddox (supra) observed at p. 440 thus :

"'But to define exactly the meaning of the words "intended. or adapted" is by no means easy. I think that the expression "intended'', to take that word first, does not mean "intend-ed by the user of the vehicle: either at the moment of the aJleged offence or for the future". I do not think it means the intention of the manufacturer or the wholsaler or the retailer;"

After referring to Salmon, J .'s observations in Daley's case (supra) and the suggestion that the word "intended" might be paraphrased as "suitable or apt" Lord Parker pointed out that it ma,y be merely difference of wording, but he preferred to make the test whether reasonable person looking at the vehicle'· would say that one of its users would be road user, and then he dealt with the meaning of the word "adapted" and observed at p. 441 :

"So far as the other word, "adapted," is concerned, as was pointed out in Maddox v. Storer-(1963) 1 Q.B. 451-the word "adapted" is used throughout the ·Road Traffic Act, 1960, in number of different contexts. Sometimes it is used as an alternative to "constructed"-"constructed or adapted," and it seems clear, and indeed it has been so held for very long time, that "adapted" there means altered.

On the other hand, as it was pointed out in Maddox v. Storer, it is used in other contexts in this Act, in particular when it stands alone, as clearly meaning "apt" or "fit'', in other words in an adjectival sense.

Here in this context of inte:nded or adapted my own view is, though I think it is perhaps unnecessary to decide it in this case, that "adapted," used disjunctively with "intended" and not with the word "constructed," is used in its adjectival sense."

The decisions rendered on the definition of 'motor vehicle' under the English Road Traffic Act are olr little help, because that definition· -w1:1963J 2Q. B.43i

ha~ reference to the words "intended or adapted", while the element of mte_ntion has no relevance under the Act, where. the word "adapted" alone JS used. It has been urged before us that since the learned Chief Justice Lord Parker had referred to the meaning of the words "intend-ed" and "adapted" separately in the context of the English Road Traffic Act, we should take assistance from his observations. It appears to us that where two words of different import are used which in the context of the scheme of the Act and its purpose play an import· ant part, to ask us to take the meaning given of one of the words and import it as the meaning for the purposes of the Act even when the same word is used, is perhaps to place us in similar predicament as that of the gentleman who when asked to expound on Chinese meta-physics, not knowing how to begin looked up the article on China in the Encyclopaedia· Britannica and also on metaphysics and combined the two into Chinese metaphysics.As usual references have been made to the Dictionaries but quite often it is not possible to hold dictionary in one hand and the statute to be interpreted in the other for ascertaining the import and intent of the word or expression used by the Legislature. The shade of mean-ing of word, its different connotations and collocations which one finds in dictionary does not relieve us of the responsibility of having to make the ultimate choice of selecting the right meaning. We choose that meaning which is most apt in the context, colour and diction in which the word is used. The use of dictionary ad lib without an analysis of the entire Act, its purpose and its intent, for ascertaining the meaning in which the Legislature could have used the word or expression may not lead us to the right conclusion. With this caution before us for avoiding any of the aforesaid methods which might lead to~a possible incongruity, we will examine the different facets to which our attention has been drawn.

The meaning of the word "adapted" in s. 2 (18) of the Act is itself indicated in entry 57 of List II of the Seventh Schedule to the Consti-tution, which confers power on the State to tax vehicles whether propelled mechanicaJ.Jy or not and uses the word "suitable" in rela-F tion to its use on the roads. The words "adapted for use" must there-fore be construed as "suitable for use". At any rate, words "adapted for use" cannot be larger in their import by including vehicles which are not "suitable for use" on roads. In this sense, the words "is adapted" for use have the same connotation as "is suitable " or "is fit" for use on the roads. The question would then arise, ar~ dumpers! rockers and trac~airs suitable or fit for use on roads ? It JS not demed, that these vehicles are on pneumatic wheels and can be moved about from place to place with mechanical power. The word "vehicle" itself connotes that it is contrivance which moves. vehicle which merely moves from one place to another need not necessaril~ be mot~r vehicle within. the meaning of s.2(18) of th~ Act. T' may move on iron flats made mto chain such as caterpillar vehicle or military tank. Both move from one place to another but are not suitable for use on roads. It is not that they cannot move on the roads but they ~re not ad,apted, made fit or suitable for use on roads. They would, 1f used, dig and

damage the roads. It is contended that the dumpers or rockers are very heavy and though they cau move on roads they would damage the roads and, therefore, they are not suitable for use on roads. To substantiate this proposition the appellants have produced before us .certain notifications issued by the State of Orissa under which vehicles beyond certain Iad~n weight are prohibited from plying on the roads. It was rightly pointed out by the learned Advocate fQI the State of Orissa that there are only some of the roads on which vehicles heavier than what is indicated in the notificatfon cannot be permitted. But that is not to say that all vehicles which exceed particular weight are not adapted for use upon roads and are, therefore, not motor vehicles. dumper in the Mysore case according to the manufacturer's own specifications is suitab1e for roads and is described thus :

"The dumper will carry : bulk goods, building materials, mining products,. agricultural and forestry products, earth, stones, bricks, concrete, mortar, etc.

The structure is of simple design and easy to handle. Tripping is performed by releasing the locking device retain-ing the tipping· body ..

The dumper requires no more than few seconds for the emptying of its tipping body and gives no trouble to the driver when being operated on uphill or downhill roads, with its load unbalanced, or when the load refuses to slide out easily.

Quickness and ease characterise the operation of the dumper and the clumsy manoeuvring can be dispensed with. In narrow lanes or rough roads where turning would be impossible or undesirable, the seat is turned and will face driving direction."

It is also averred in the plaint in the suit filed by the appellant Boiani Ores Ltd. that Euclid Dumpers are used for transporting ore from the mining faces to tl)e crushing and screening plant or from head mine stockpile to near railway siding. Rockers also seem to be similar to dumpers. But in this case rockers are h~avier than dum-pers.

In so far as the tractairs are concerned, attachments are fitted for the purpose of supplying compressed air to Jack Hammer Drills which are used to drill holes in the ore body so that explosive charges may be inserted in them to break thll ore into manageable sizes. In respect of all these three types of vehicles it cannot be said that they are not adapted for use upon roads. That they are not so used or are con-fined for use to only places other than roads or public places is different matter, because whether they have to be registered under the Act or are liable for payment of tax under the Taxation Act will depend upon the provisfons of the respective Acts.

In so far as the Act is cqncemed, we must bear in mind that it is essentially_ an Act to regulate transport. The statement of objects and

.. reasons gi'vel) for the 1939 Act, in so far as it is relevant for our pur- · pose states thus : ·

"It has been recognised now for some years past that the · Indian Moto~Nehicles Act, 1914 which was framed to-suit conditions at an early stage of development of motor trans-port, is no longer adequate to deal with oonditions brought n. about by the rapid growth of motor transport in the past twc1 decades. In the. interest· alike of the safety and convenience of the public and of the development of so-called system of transport, muh closer CQ!ltrOl is required than the present Act permits, and it is necessary to take powers to regulate transport." perusal of the provisions c<f the Act, in the light of the objects and · reasons; would justify the conclusion that it is not necessary tor every vehicle registered under the Act to be also liable for payment of tax under the Taxation Act. It may be that vehicle is registerable under the Act but not liable for tax under the Taxaticm Act. For instance s. 22 of the Act provides : "No person shall drive any motor vehicle and no owner of motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered ..... . . . . ; .. " Similarly under s. 3 of the Act "No person -shall .drive motor vehicle in any public place unless he holds an effective driving licence issued· to himself authorizing him to drive the vehicle, and no person shaH sq drive motor vehicle as paid employee or shall so . drive transport vehicle unless his driving licence specifically entitles him so to do." 'motor vehicle' under s. 2(18) has been defined-as "any mechanically propelled vehicle adapted for use upon roads; ... . . . . . . " Having regard to the context of the definit\on of "public place" in s. 2 ( 24) c<f the Act, the regulatory character of the Act,' and the use of the word 'road' used in public Act, road would mean "public road" which word as already noticed has been used in the Andhra Pradesh (Andhra Area) Motor Vehicles Taxation Act. The word "public place" has been defined in s. 2(24) as meaning "a road, street, way or other place "whether thorc(llghfare or• not, to which the public have right of access". If the public have no right of access to any place which is not road, street, way or thoroughfare it will not be public place. motor vehicle which is not adapted for use upon roads to which the public have no right of access is not inotor vehicle within the meaning of s. 2(18) of the Act. But where vehicle is adapted for use on rc1ad which is neither more nor Jess than that it is made suitable or fit for use upon road, i.e. public roads, it is motor vehicle, and if such motor vehicle is goods vehicle under s. 2(8) which means vehicle which is not only suitable or fit fcj! use upon roads but is "constructed or adapted for use for the carriage of goods" or where it is not so constructed or adapted when n used for the carriage of goods solely or in addition to passengers, er is public service vehicle within the meaning of s. 2(25) of the Act, namely " any motor vebicle used or adapted. to be used for the

carriage of passengers fcir hire or reward ........ ", it has to be re· gistered under s. 22 and can only be driven by person who holds licence under s. 3 of the Act. Where vehicle is adapted for use upon roads· and though it is not driven on the public roads or in public place even then if it carries goo.ds Cl!' passengers which may .not be for hire or reward or the passengers may be friends or relatives of the owner or the goods may belong to the owner and plying in place to which the public has, as matter o'f right, no access, it nc!lletheless cannot be driven without its being registered or without the driver holding licence to drive such vehicle.

Iri so far as the Act is concerned, having regard to the fact that the dumpers and rockers are motor vehicles which are not taken out . qf that category, as was the case before the amendment, they have to~ be registered after the amendment and can only be driven by persons holding valid licence. The tractair though it may be motor vehicle within the definition of that term is neither goods vehicle nor vehicle which ·carries passengers nor is it being driven in place to which public have as right access. As it does not perform any c~ the aforesaid functions or uses it is not vehicle which has to. be re-gistered nor has it to be driven only by person who holds Jicence.The question then remains. as to whether these vehicles thc1ugh registrable under the Act are motor vehicles for t..1ie purpose of the Taxation Act. It has already been pointed out that before the amend-. ment vehicles used solely upon the premises of the owner, though they may be mechanically pmpelled vehicles adapted for use upon roads were excluded from the definition of 'motor vehicle'. If this definition which excludes them is the one which is incorporated by reference under s. 2 ( c) of the Taxation Act, then no tax is leviable on these vehicles under the Taxation Act. Shri Tarkunde for the State o! Orissa cc,ntends that the definition of 'motor vehicle' in s. 2(c) of the Taxation Act is not definition by incorporation but only definition by reference, and as such the meaning of 'motor vehicle' for the pur-pose of s. 2 ( c) of the Taxation Act wciuld be the same as defined from time to time under s. 2 ( 18) of the Act. In ascertaining the intention of the Legislature in adopting the method of merely referring to the definition of 'motor vehicle' under the Act for the purpose of the Taxa-tion Act, we have to keep in mind its purpose and intendment as also that of the Motor Vehicles Act. We have already stated what these purposes are and having regard to them the registration of motCil' vehicle does not automatically make it liable for taxation under the Taxation Act. The Taxation Act is regulatory measure imposing compensatory taxes for the purpose of raising revenue to meet the expenditure for making roads, maintaining them and for 'facilitating the movement and regulation of traffic. The validity of the taxing power under entry 57 List II of the Seventh Schedule read with Art. 301 of the Constitution depends upon the regulatory and ccmpensatory nature of the taxes. It is not the purpose of the Taxation Act to levy taxes on vehicles which do not use the mads or in any way form part c1f the flow of traffic on the roads which is required to be regulated. The regulations under the Motor Vehicles Act for registration and prohibition of certain categories of vehicles being driven by persons

"A who have no driving licence, even though those vehicles ate'.not plying · qn the roads, are designed to ensure the safety of passengers and goods etc. etc. and for that purpose it is enacted to keep contr~l and check on the vehicles. Legislative power under Entry 35 of List Ill (Con-current List) does not bar such provision. But Entry 57 of Ltst II is subject to the limitations referred tc1 above, namely, that the po~.er of taxation thereunder eannot exceed the compensatory nat~re whi~h must have some nexus with the vehicles using the roads, v1z.~ublic roads. If the vehicles do not use the roads, notwithstanding that they are registered under the Act, they cannot be taxed. !his very con· · cept is embcdied in the provisions of s. 7 of the, Taxation Act as also · the relevant sections in the Taxation Acts of other States, namely, that where motor vehicle is not using the roads and it is declared that it will not use the roads for any quarter ~r quarters of y~ar or for any particular year or years, nc1 tax is lev1able thereon and if any tax has been paid for any quarter during which it is notpr~ to use the motor vehicle on the road, the tax for that quarter 1s refund· able. If this be the purpose and object of the Taxation Act, when !he mc~or vehicle is defined under s. 2(c) of the Taxation Act as havmg .(Ji the same meaning as in the Motor Vehicle Act, 1939, then the inten-D . tion of the Legislature could not have been anything but to incorpo-rate only the. definition in the Motor Vehicles Act as then existing, namelv. in 1943. as if that definition was bodily written into s. 2(c) • of the Taxation Act. If the subsequent Orissa Motor Vehicles Taxa-tion (Amendment) Act, 1943, incorporating the definition of 'motor· vehicle' referred to the definition of 'motor vehicle' under the Act as then existillg, the effect of this legislative method . would, iii our view, amc,unt to an incorporation by reference of the provisions of s. 2(18) of the Act in s. 2{c) of the Taxation Act. Any subsequent amendment in the Act or total repeal of the Act und.er a. fresh legis· • lation on that topic ·would riot affect the definition of 'motor vehicle' in s. 2 ( c) of the Taxaticlll Act. . This is well-accepted interpretation . both in this country as well as in England ·which has to large.extent influenced our law. This view is further reinforced by the use of the word has in the expression "has the same meaning as iri the Motor Vehicles Act, 1939'' in s. 2(c) of the Taxation Act, which would perhaps further justify the assumption that the Legislature had intended to incorparate the definition under the Act as it then existed and not as it may. exist from time' to time. This method of drafting which adopts incorporation by reference to another Act whatever may have been its historical justification in England, in this country does not exhibit an activistic draftsmanship which wciuld have adopted · the method of providing its own definition. Where two Acts are com~ plimentary or interconnected, legislation by reference may be an easier method because definition given in the one Act may be made to do as the definition in the other Act both of which being enacted by the same Legislature. At any rate, Lord Esher, M.R., dealing with legis-lation by incorporation, in In re. Wood's Estate state(l) said at p. 615: "If reference. some

. : • .

"If subsequent Act brings into itself by reference. some of the clauses of fonner Act, the legal effect of that, as has (1) [1886] 31 Ch. D. 607.

often been held, is to write those sectiQ11s into the new Act just as if they had been actually written in· it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the. former Act at all."

The observations irt Clarke v. Bradlaugh(1) are also to the same . effect. Brett, L.J ., in that case had said at p. 69 :

" ........ there is rule of construction that, where statute is incorporated by reference into second statute, the repeal of the first statute by third statute does not affect the second.''

In Secretary of State for India in Council v. flindusthan Co-opera· tive Insurance Society Ltd.(1) the Privy Council was considering case where the incorporation effected in the statute, viz., the Calcutta Improvement Trust Act, 1911-referred to by their Lordships as the "Local Act" was in express terms and in the form illustrated ·by 54 . and 55 Viet., Ch. 19. The ''Local Act" in dealing with the acquisi· tion elf land for the purposes designated by it, made provision for the acquisition. under the Land Acquisition Act, and the provisions of the Land Acquisition Act were subjected to numerous modifications which were .. set out in the Schedule, so that in effect the "Local Act" was held to be the enactment of Special Law for the. acquisition of land for the special purpose. It was in the context of these and seve· ral other provisions which pointed to the absorption of certain of the provisicms of the Land Acquisition Act into the "Local Act" with vital ·modifications that Privy Council observed at p. 266 ;

"But their Lordships think that there are other and per-haps more cogent objections to this contention of the Secre-·tary of State, and their Lcll"dships are not prepared to hold that the sub-section in question, which was not enacted till 1921, can be regarded as incorporated in the Local Act of 1911. It was not part of the . Land Acquisition Act when the Local Act was passed, nor in adopting the provisions Qf the Land Acquisition Act is there anvthinii; to suggest that the lkngal Legislature intended to bind themselves to any future -additions which might be made to that Act. It is at least 'Conceivable that new provisions might have been added to the Land Acquisition Act which wduld be wholly unsuitable to the Local code. Nor again, does Act XIX of 1921 con· tain any provision that the amendments enacted by it are to be treated as in any way retrospective; or are to be regarded as affecting any other enactment than the Land Acquisiticm Act itself. Their Lordships regard the local Act as doing nothing more tl1an incorporating certain provisions from an existing Act, and for c:onvenience of drafting doing ·so by reference td that Act, instead of setting out for itself at length. the provisions which it was desired to adopt."

(2) L. R. 58 l. A. 259.

(I) [1881] 8 Q. B. D. 63.

It was further observed at p. 267 :

"In this country it is accepted that where statute is incorporated by reference into second statute, the repeal of the first statute does not affect the second : see the cases. collected in Craies on Statute Lav.:, 3rd edn. pp, 349, 350 .. · This dc1ctrine finds expression in common-form section which regularly appears in the amending and repealing Acts which are passed from. time to time in India. x x x x x The independent existence of the two Acts is therefore recognized; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving clause appears in the General aauses Act,. their Lordships think that the principles involved is as appli-cable in India as it is in this country.

It seems to be nci less logical to hold that where certain: provisions from an existing Act have been incorporated into subsequent Act, no addition to the fQrmer Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events i'f it is pcissiblc ·for the subsequent Act to function effectually without the addition."

This Court in The Collector of Customs, Madras v. Nathelle Sampeth11 Cheuy and Another([1]) considered the Privy Cquncil decision in the-Hindusthan Co-operative Insurance Society Ltd. ([2 ]) and distinguished that case and held the ptinciple inapplicable to the facts of that case.

In State of Bihar v. S. K. Roy([2 ]) this Court was cousidering the definition of "empfoyer" in s. 2 ( e) of the Ccial Mines Provident Fund and Bonus Schemes Act, 1948, where that expression was defined to mean "the--owner of coal mine as defined in clause (g) of section 3 of the Indian Mines Act, 1923". · The Indian Mines Act, 1923, had been repealed and substituted by the Mines Act, 1952 (Act 35 of 1952). In the latter Act the word "owner" had been defined in cl. ( 1) of s. 2. The question was whether by virtue of s. 8 of the Gene-ral Clauses Act, the definition of the word "employer" in cl. ( e) of s. 2 of the Coal Mines Provident Fund and Bonus Schemes Act should· be oonstrued with reference to the definition of the word "owner" in cl. (1) cif s. 2 of Act 35 of 1952, which repealed the earlier Act and' re-enacted. it. It may .be mentioned that according to s. 2(1) of Act 35 of 1952 the word "owner", when used in relation to mine, means "any person who is the immediate proprietor or lessee <ir occupier ct the mine or of any part thereof and in the case of mine the business whereof is being carried ori by liquidator or receiver, such liquidator ct receiver . ........... , . " ··Tu expression . " co al mme . " • is separa t 1 y defined in cl. (b) of s. 2 of the Coal Mines Provident Fund and Bonus. (1) [1962] 3 S.C.R. 786. at pp. 830-833. (2) L.R. 58 IA 259.

(3) [1966] S_upp, S.C.R. 259 .•

Schemes Act, 1948. Ramaswami, J., speaking for the Court observed at p. 261 :

"As matter of construction it must be .held that all works,·lilachinery, tramways and sidings, whether above or below· ground, in cir adjacent to coal mine will come within the scope and ambit of the definition only when they belong to the coal-mine. In other words, the word, "or" occurring before the expression "belonging to coal mine" in the main definition has to be read to mean "and"."

This case, as well as the decision in New Central lute Mills Ca. Ltd. v. The As.sistant Collector of Central Excise, Allahabad & others,(!) arc distinguishable on the facts and legislation which this Court was considering .. In the New Central Jute Mills Co. Ltds. ([1]) case, the Privy Cc,uncil decision in the Hindusthan Co-operative Insurance Society Lt4.'s case (supra) was referred to and distinguished. It is, however, contended by the learned Solicitor General that both in · /liathella Sampathu Chetty's case (supra) as well as the New Central lute Mills Co. Ltd.'s case([1]) this Court was considering the effects of the two Acts which were made by Parliament by central legislation and it is, therefore, not strictly case of incorporation because the Central Legislature is deemed to have, while making the latter enact-ment, kept in view the provisions of the former Act. In our view this may not be conclusive.

In Ram Samp v. Munshi and Others([2]), judgment of the Bench -0f five Judges of this Court held that the repeal of the Punjab Aliena-timi of Land Act, 1900, had no effect on the continued operation of the Punjab Pre-emption Act, 1913, and that. the exRression "agricul-tural land' 'in the later Act had to be read as if the definition of the Alienation of Land Act bad been bodily transpo~cd into it. After referring to the observations of Brett, L.J., in Clarke's case (supra), Ra_iagopala Ayyangar, J., speaking for the ccturt pbserved at pp. 868~ S69 :''Where the provisions of an Act are incorporated by reference in later Act the repeal of the earlier Act bas, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. x x x x x x In the circumstances, therefore, the repeal of the Punjab Alienation of. Land Act of 1900 bas no effect on the conti-G nued operation of the Pre-emption Act and the expression 'agricultural land' in the later Act has to be fead as if the deftniticin in the Alienation of Land Act had been bodily transposed into it."

The abc.ve decision of this Court is more in point and supports our cnnclusion. Tn our view, the intention of l'arliament for modifying the Motor Vehicles Act bas no relevance in determining the intention ·Of fo:i Orissa Legislature in 1macting the Taxation Act. Apart from

(I) [1971] 2.S.C.R. 92. (2) [1963] 3. S.C.R. 858.

this aspect the power of taxation, as we have said earlier, is not. in the Concurrent List III but in List II and construed as taxation measure we cannot extend the ambit of it by mere implication. As we said it is uossiUle for both the Acts to co-exist even ·after the definition of 'motor vehicle' iri the Act has been amended, It is, therefore, clear that Lhe definition of 'motcir vehicle' as existing prior to .1956 Amend-ment would alone be applicable as being incorporated in the Taxation Act. ·. . .

Mr. Tarkunde has referred to s. 6 of the General Clauses Act, 1897 in support of bis contention that after the amendment the amended definition would apply to the Taxation Act. But we do not think that there is any justification for this submission. Section 6 of the General · Cfauses Act, 1897, specifically refers to that Act, or any Central Act or Regulation made after the commencement of the Oeneral Clauses Act and states that if these Acts repeal any enactment, hitherto made or hereafter to be made, then, unless different intention appea,rs, the repeal shalt not affect the matters specified in clauses (a) to ( e) of that section. Since the Taxation Act is State Act neither s. 6 nor s. 6A of the General Clauses Act has any relevance. That Act bas to be interpreted in the light of the Orissa General Clauses Act and since there is no question of any amendment or any repeal of any of the Orissa Acts affecting the Taxation Act, s. 7 of the Orissa General Clauses Act has also no relevance. If so, the question is whether these vehicles were used solely upon the premises of the owner. On this aspect, there can be no doubt, because there is evidence· to show that dumpers, rockers and tractaires (tractors with air compressed attachment) are exclusively used on the premises of the owners.

· In Civil Appeal No. 1816 of 1.968 P. W. 1 Assistant Superinten-dent of Mines, Boiani Ores Ltd., stated that there· is no public road within theiF leasehold premises. No· member of public is allowed to enter into leasehold premises without due permission obtained before hand. They have check-gates on the approach road to their leasehold. All the machines are within leasehold and never outside it. In cross. examination, no ·doubt he admitted that ·the leasehold has. no fence. He, however, stated that there is an official approach road to the plant. He also stated in cross-examination that there is gate book, gate register and· security guard. From this evidence it is clear that though there is no fence, there are check gates, and the public are not allowed to enter into the leasehold without ,prior permission and the machines . are u~ed within the leasehold premises. The mere fact that there is no fence does not mean that the leasehold premises are not enclosed pre-mises: · It is obvious that no one can get into the leasehold .premises · without h~:ving to go through the gate for which gate book, gate register and . security guard are provided. .

In Civil Appeal No. · 1817 of l 968-0rissa Mineral Development Company's case, P. W. 1 stated in his evidence that the dumpers in the schedule were to carrv ·ores from the Place of excavation in the railway wagon within the· minim? area. The members of the public have no right to enter into it. There are check gates and guards.

P. W. 2 stated in his evidence that the suit vehicles were used at the place of mining operations. The members of the public have no access to thl.l mining area. There were ten to twelve guards around the mining area and there were also guards at the gates of the approaching road. The guard:> were to prevent the unauthorised persons to enter into the mining area and there was duty chart of those guards. No doubt, P. W. 4 stated in his evidence that the area within which the machines were used was- neither fenced nor walled around.

Sin1ilarly in Civil Appeal No. 336 of 1970 in the .case of Dalmia Cement Bharat Ltd it has been stated in the reply affidavit in para· graph 4 that "trench 4'x4'x2' is dug alround the mining area so as to prevent free ingress and egress to the mining area. Certain pit areas are fenced with barbed wire. In fact to avoid accidents, parti· cular area where dumpers are being used have necessarily to be fenced. This is required under the Mining Act and Rules framed thereunder." In reply to paragraph 4 it has been stated by the. respondent that the allegations of the deponent in paragraph 4 of his affidavit except the allegation that the mining area is well defined and enclosed area are substantially correct.

From the very nature of the area operated by these three com-panies it is obvious that the machines which are the subject-matter of these appeals must be working in their respective mining areas. The mere fact that there is no fence or the barbed wire. around, the lease-hold premises is not conclusive. there is evidence to show that the public ar¢ not allowed to go inside without prior permission, there are gat.es and check on ingress and egress is kept by guards who al&o ensure that no unauthorised persons h.ave access to the mining area, all of which indicate that the respective mining areas are enclosed pre-mises within the meaning of the exceptions under s. 2 ( c) of the Taxa-tion Act. ·

In the result Civil Appeal 336170 is dismi~sed with cost and other appeals are partly allowed and it is held that dumpers and rockers though registrable under the. Act are not taxable under the Taxation Act as long as they are working solely within the premises of the res-pective owners. So. far as the tractairs are concerned they are neither registerable under the Act nor taxable under the Taxation Act. The appellants will get proportionate costs.

As we have held that these machines are not taxable the question about th~ constitutional validity constitutional validity validity of the Taxation Act challenged by. Writ Act challenged by. Writ challenged by. Writ by. Writ Writ Petition No. 372 of 1974 filed by Boiani Ores Ltd. would become academic and need not be considered. The writ petition is accordingly dismissed but without costs.

about th~ constitutional validity constitutional validity validity of the Taxation Act challenged by. Writ Act challenged by. Writ challenged by. Writ by. Writ Writ

C.A.336/70 and W.P. 372/74 dismissed C. A. 1816-1817/68 partly allowed.