(Per V.V.S. Rao, J.)

Introduction

In this batch of cases the third proviso to sub-section (2) of Section 3 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963 (hereafter, the Taxation Act, for brevity) is assailed as ultra vires the enacting provision and the Constitution of India. The impugned proviso was substituted initially by the Andhra Pradesh Motor Vehicles Taxation (Amendment) Ordinance, 2010 (the A.P. Ordinance No.2 of 2010) promulgated on 02.2.2010. It was replaced by the A.P. Ordinance No.5 of 2010 which was subsequently enacted as the Andhra Pradesh Motor Vehicles Taxation (Amendment) Act, 2010 (the A.P. Act 11 of 2010) (hereafter referred to as, the Amendment Act). By reason of the amendment, the Fourth Schedule was also inserted enabling the Government to levy life time tax (hereafter, life tax) on the 'Construction Equipment Vehicles (CEVs) including road rollers at the rates specified in that Schedule. The petitioners essentially contend that the levy of life tax on CEVs is unconstitutional. Alternatively they would also contend that construction equipment vehicles they own cannot be considered as "motor vehicles".

Case of the petitioners

2. The adjudication of questions of law does not require a detailed reference to the factual background in each case. But taking W.P. No.133 of 2011, we may notice the case of the petitioners and the perceived detriment they might suffer by the impugned legislation.

3. The petitioner is a company engaged in the business of hiring of cranes to various public and private campanies especially to Oil & Natural Gas Corporation (ONGC) in the State of Andhra Pradesh for shifting, loading and unloading of materials. They purchased cranes from Joomlion International Trading (HK) Co. Ltd., East Hong Kong. They were brought to the State of Maharashtra where they were temporarily registered. After entering into the contract with ONGC, for supplying/hiring cranes for a period of three years, they wanted to bring the cranes from Maharashtra to Rajahmundry. At that time the impugned legislation came into force requiring the petitioner to pay tax as per the Fourth Schedule to the Taxation Act aggrieved by which the writ petition is filed.

4. The petitioner would contend that the handling/shifting equipment, colloquially known as cranes, are mounted on a motor vehicle which are either Light Motor Vehicles (LMVs) or Heavy Motor Vehicles (HMVs). The equipment itself does not come within the meaning of "motor vehicle" as defined under Section 2(28) of the Motor Vehicles Act, 1988 (hereafter, the MV Act) read with Section 2(j) of the Taxation Act. As the equipment is not capable of being transported on the roads, the same is shifted to the work site on LMV /HMV which may be liable for registration under the MV Act. The levy of tax on the cranes, therefore, does not come under Entry 57 of the State List which enables the State Legislature to enact any law including the law of taxation of motor vehicles if they are suitable for use on roads. The cranes as such are not adapted for use on the public roads and, therefore, the impugned proviso is beyond the competence of the State.

5. The petitioner further contends that' the equipment used for handling, lifting, loading and/or unloading is not CEV under Rule 2 (ca) of the Central Motor Vehicle Rules, 1989 (hereafter, the Central Rules).Section 2(28) of the MV Act has not been amended to include CEVs and, therefore, no tax can be levied on cranes under the Taxation Act. Further, the vehicles are already registered in the State of Maharashtra. They are brought to Andhra Pradesh. After completion of work, they move out of the State. If again the vehicle enters Andhra Pradesh, the petitioner is made liable to pay the tax under the Fourth Schedule which is arbitrary, illegal and unreasonable violating Article 14 of the Constitution of India. The vehicles carrying the cranes rarely move on the roads and, therefore, they cannot be treated as motor vehicles