JUDGMENT
Susanta Chatterji, J.
1. The present application for review of the order dated 2.8.1993 passed by this Court in O.J.C. No. 1389 of 1993 is taken up for final disposal after hearing the learned Counsel for the respective parties.
2. For proper appreciation and by way of ready reference, the order sought to be reviewed is quoted hereinbelow:
In view of the pronouncement of the Supreme Court in Bolani Ores Ltd. v. State of Orissa A.I.R. 1975 S.C. 17, as well as the decision of the Supreme Court in Central Coal Fields Ltd. v. State of Orissa and Ors. reported in A.I.R. 1992 S.C. 1371, and in the absence of any material to establish that the vehicles had been manufactured for use only in the factory or enclosed premises, dumper must be held to be a motor vehicle and liable to be registered under Motor Vehicles Act. We, therefore, do not find any infirmity with the impugned decision of the Transport Authority so as to be interfered with by this Court.
The writ application is dismissed accordingly.
3. The aforesaid order was challenged before the Hon’ble Supreme Court by filing Special Leave Petition (C) No. 6068 of 1994. The said Special Leave Petition was disposed of by order dated 11.4.1994 which runs as follow:
On the finding of fact recorded by the High Court the question of law raised in the Special Leave Petition does not require consideration in view of the decisions of this Court. Mr. Ganguli, learned Senior Counsel for the petitioner however submitted that the facts recorded in the High Court’s judgment ignore certain vital evidence which was available on record. That does not arise for our consideration in this S.L.P. and, if so, may be available only in the appropriate remedy before the High Court. The Special Leave Petition is, therefore, dismissed.
4. Thereafter the present application for review has been filed along with an application for condonation of delay. By order dated 2.8.1995 we disposed of Misc. Case No. 34 of 1995 allowing the application for condonation of delay.
5. Mr. Ganguli, learned Senior Counsel appearing for the petitioner, has argued before us that there are errors apparent on the face of records so far as the impugned order dated 2.8.1993 passed in O.J.C. No. 1398 (sic.) of 1993 is concerned. In fact, the ratio of the decision of the Supreme Court in A.I.R. 1975 S.C. 17, Bolani Ores Ltd. v. State of Orissa, and the subsequent decision in the case of Central Coalfields Ltd. v. State of Orissa reported in A.I.R. 1992 S.C. 1371 is quite distinguishable so far as the contention raised in O.J.C. 1398 (sic) of 1993 is concerned. The earlier Division Bench deciding the writ application had inadvertently missed to take note of the materials on record that dumper is not required to be registered under the Motor Vehicles Act. He has argued at length that the decisions of the Hon’ble Supreme Court in the cases of Bolani Ores Ltd. and Central Coal Fields Ltd. (supra) did not lay down any proposition as to necessity of registration of motor vehicles under the changed provisions of the Motor Vehicles Act as well as the Rules. The earlier two decisions of the Supreme Court considered the provisions of the Bihar and Orissa Motor Vehicles Taxation Act (2 of 1930), Sections 6, 2(e) as to whether dumpers, rockers and tractors are motor vehicles and taxable under the Act vis-a-vis Motor Vehicles Act, 1939 and in particular Sections 2(18) and 22 thereof and by reversing the decision reported in A.I.R. 1968 Orissa 1 Bolani Ores Ltd. v. State of Orissa. The Hon’ble Supreme Court had not the occasion to consider the case of registration of vehicles and neither mere was any debate nor any discussion. There was also no consideration on the point of registration which is very much relevant for the purpose of disposal of O.J.C. No. 1398 (sic.) of 1993.
6. Mr. Ganguli has emphasised that the subsequent decision in the case of Central Coal Field Ltd. (supra) simply followed the ratio of the earlier decision in Bolani Ores Ltd. (supra) and held that the dumpers and rockers are vehicles adapted and suitable for use on road and being motor vehicles per se as held in Bolani Ore’s Ltd. case and were thus liable to taxation on the footing of their use or kept for use on public roads; the network of which, the State spreads, maintains it and keeps available for use of motor vehicles and hence entitled to a regulatory and compensatory tax.
7. It is highlighted before us that both the aforesaid decisions of the Hon’ble Supreme Court mainly dealt with taxability of dumpers, rockers and tractors and the scope of registration was neither gone into and in particular after the amendment of law as regards registration there is no bar and/or impediment for the High Court to consider the merit of the writ petition in O.J.C. No. 1398 (sic) of 1993 instead of rejecting the same summarily by following the decisions of the Supreme Court in a cryptic manner. It is the main contention of the petitioner, as argued by Mr. Ganguli, that law was different when the Hon’ble Supreme Court considered the Bolani Ores Ltd. case as also the Central Coat Fields Ltd. case as aforesaid regarding taxability of vehicles. In particular after the change of law regarding registration and when there are materials on record to show that dumpers are not meant for running on roads and are to be exclusively used within the premises of the mines in question, there should be appropriate consideration. Neither the Hon’ble Supreme Court nor the High Court had any occasion earlier to examine the question as to registration of the said vehicles and hence there are errors apparent on the face of records and the order dated 2.8.1993 in O.J.C. No. 1398 (sic.) of may be reviewed and the writ application should be heard on merit by giving opportunity to both parties in accordance with law.
8. In order to draw inspiration to his argument, Mr. Ganguli has drawn attention of the Court to Section 2(18) of the Motor Vehicles Act, 1939 and also the definition in Section 2(28) of the Motor Vehicles Act. 1988. In particular he has drawn attention to the Motor Vehicles Rules, 1990 and Rule 47 thereof as to registration. He has developed his submission that any motor vehicles required to be registered has to fulfil the requirements as provided under Rule 47. Rule
47(g) requires production of road-worthiness certificate in form 22 from the manufacturer, and in form 22-A from the body builder. Form 22 which is appended to the Motor Vehicles Rules, 1990 has to be issued with the signature of the manufacturer duly printed in the form itself by affixing fascimile signature in ink under the hand and seal of the manufacturer. This Form 22 is consistent with Rules 47(g), 115(6), 124, 186 and 127. In this behalf he has drawn attention to an affidavit filed by one Amrit Lal claiming to be the General Manager of M/s. Bharat Earth Movers Limited. In the said affidavit sworn before the Chairman, Regional Transport Authority, Dhenkanal in M.V. Appeal No. 6 of 1992, the deponent has placed on record that the following are the constraints which prevent deployment of off-highway dumper for application on public roads:
(i) Axle leads limitations (in respect of 35T dumpers, front axle and drive axle in laden condition are 17,072 Kgs. and 36,568 Kgs. respectively.
(ii) Width and height of equipment will adversely affect the traffic, if equipment are running on highways as the width and height of 35T dumpers are 3.45 metres and a 65 metres.
(iii) Off-highway equipment cannot run at reasonable speed on highways and hence will obstruct the flow of normal traffic.
(iv) As these equipments are fitted with specially designed heavy duty wide base tyres for off highway application the heat generation is much more and cannot be run for more than 3 to 5 Kms. at one stretch (for every two hours of continuous operation, half an hour cooling is essential) which is not so in case of normal conventional hauling units which ply on highways.
(v) Haul roads have to be specially designed for deployment of these heavy duty dumpers in mines. It is mainly stated in the said affidavit that dumpers do not comply with the provisions of the Motor Vehicles Act, 1988 and the Rules made thereunder and are not capable of being used on public road. Therefore, the said vehicles are not road-worthy and hence the manufacturer is not granting the certificate required under Rule 47(g) of the Central Motor Vehicles Rules, 1989 with regard to road-worthiness in Form 22 for registering the vehicle before the registering authority.
9. Mr. Ganguli has strongly submitted that in view of the aforesaid affidavit, the manufacturer is not in a position to issue any road-worthiness certificate as contemplated under Rule 47(g). If the aforesaid certificate is not given, then the question of registration would not arise. Dumpers may be termed as motor vehicles and may be considered for being taxable, but without the certificate of the manufacturer as to road-worthiness which is an important factor and is required to be complied with as per Rule 47(g), the authorities cannot insist registration and this important aspect was not brought to the notice of the Court nor the Divisional Bench considered this aspect and this is a glaring error apparent on the face of the record for which the order dated 2.8.1993 as aforesaid requires review.
10. By way of abundant precaution, Mr. Ganguli has added that this Court may appreciate that the decisions reported in A.I.R. 1975 S.C. 17 and A.I.R. 1992 S.C. 1371 (supra) should not be taken as precedents.
11. Attention of the Court has been drawn to the decision reported in A.I.R. 1970 Delhi 29 (F.B.) Flying Officer S. Sundarajan v. Union of India and Ors. In para 21 at page 33 of the said decision, it has been observed:
It is true that under Article 141 of the Constitution the law declared by the Supreme Court is binding on all the Courts and therefore, even the principles enunciated by the Supreme Court including its obiter dicta, when they are stated in clear terms, have a binding force. But when a question is neither raised nor discussed in a judgment rendered by the Supreme Court it is difficult to deduce any principle of a binding nature from it by implication. I cannot, therefore, agree with the learned Counsel that the case is an authority for the proposition that while dealing with a petition for a writ of habeas corpus the Court should call for the record and proceedings of every case in which a Court of competent jurisdiction or a duly convened and constituted Court-martial has recorded a finding of guilt and passed a sentence of imprisonment and examine the legality of conviction and sentence.
He has also referred to another decision reported in (1989) 1 S.C.C. 101 Municipal Corporation of Delhi v. Gurnam Kaur, and particularly to page 110 of the decision wherein it has been held:
A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.
12. The main thrust of the argument of Mr. Ganguli is that O.J.C. No. 1398 (sic.) of 1993 was disposed of by looking at the two decisions of the Supreme Court reported in A.I.R. 1975 S.C. 17 and A.I.R. 1992 S.C. 1371 (supra) but the important facts and the scope of the writ petition were not considered which relate to the question of registration in view of the changed provision of law.
13. Mr. Nayak, learned Advocate appearing for the Regional Transport Officer has opposed the petition for review. He has submitted that the scope of review may properly be appreciated and has drawn attention of the Court to a recent judgment of this Court reported in 77 (1994) C.L.T. 60, Bibhuti Bhusan Mohapatra v. Berhampur University and Anr. which relied on a decision of the Supreme Court in A.I.R. 1965 S.C. 845, Sajjan Singh v. State of Rajasthan.
14. Patiently we have heard the submissions of Mr. Ganguli, learned Senior Advocate for the petitioner and Mr. Nayak for the Regional Transport Officer. Undoubtedly, in a review petition, the scope to consider the merit of the main writ petition is very much limited. In fact, the petitioner, namely, the Deputy Chief Mining Engineer/Sub-Area Manager of Lajkura Open Cast Project, Mahanadi Coalfields Ltd. in the writ application prayed inter alia for issue of a writ of certiorari and/or any other appropriate writ or writs calling upon the opposite party, namely, the Regional Transport Officer, Sambalpur to show cause as to why the direction of the said opposite party for registration of the dumpers/other similar vehicles vide letter No. 7989 dated 1.10.1992 (Annexure-1) and letter No. 3727 dated 10.11.1992 (Annexure-3) shall not be quashed.
15. It will appear from the decision in Bolani Ores case (supra) that the Apex Court observed from a comparison of the two definitions of Motor Vehicles before and after amendment by Act 100 of 1986 in Section 2(18) of the Motor Vehicles Act, 1939 that the vehicles which have been taken out of the category of a ‘Motor Vehicle’ are different in these two definitions. Before the amendment a motor vehicle though a motor vehicle within the meaning of the first part of the definition is nonetheless not so, because of the specified user, i.e. if it is used solely upon the premises of the owner. These vehicles under Section 6 of the Bihar Taxation Act read with Section 2(e) thereof would not attract liability to tax. But after the amendment though a 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 a vehicle of a special type adapted for use only in a factory or in any other enclosed premises. In so far as the Motor Vehicles Act is concerned, having regard to the fact that the dumpers and rockers are motor vehicles which are not taken out of 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 a valid license.
16. In the said judgment, a comparative chart has been given as regards Section 2(18) of the Motor Vehicles Act, 1939 before amendment and after amendment. In the new definition under Section 2(28) of the Act of 1988, we do not find any difference. Section 2(18) of the 1939 Act being amended runs as follows:
‘motor vehicle’ means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer, but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises.
17. In para-28 of the aforesaid judgment, the Apex Court has found that in 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 of 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 a valid licence. The ratio of the decision in Bolani Ores case has since been strictly followed in the Central Coalfields case (supra). Both these decisions indicate that the dumpers and rockers are motor vehicles required to be registered and they are taxable. Even under Rule 47(g) the requirement of a certificate from the manufacturer regarding road-worthiness is indicated, but if the vehicle is not to run on road absence of the certificate by the manufacturer does not immune the vehicle to be registered as registration of a motor vehicle is compulsory under Section 39 of the Act.
18. Regard being had to the materials on record and considering the submissions of both sides as aforesaid, we do not find that within the limited scope of review we may hold that the order dated 2.8.1993 passed in O.J.C. No. 1398 (sic) of 1993 suffers from any infirmity and/or patent error on the face of the record. If the order/judgment is otherwise bad in law, that does not itself enable a party to pray for review. It is admitted that we cannot sit on appeal over the order/judgment dated 2.8.1993 sought to be reviewed. The petitioner having failed to obtain special leave before the Hon’ble Supreme Court cannot ipso facto come before this Court for review in the manner as prayed for. On proper scrutiny, we do not find any merit in the contentions raised on behalf of the petitioner. Consequently the petition for review fails and the same is dismissed. No order as to costs.
R.K. Dash, J.-I agree.