JUDGMENT - LODHA R.M., J.:---Rule. Returnable forthwith. Ms. Dangre, A.G.P. waives service for respondents. Rule is heard finally by consent of the parties at this stage.

2. On 20th September, 2002, at Nari Saoner Road, Nagpur, Excavator (Heavy Earth Mover) being Model No. 2021, Serial No. 20212379 having Chassis No. 81016314/13, FIF 409 FD 12/97, was seized by the Regional Transport Officer, Nagpur. The said Excavator belongs to the petitioner-Western Coalfields Ltd. It was going from Silewara to Nagpur (Godhani) and upon demand, the driver of the said Excavator failed to produce valid documents. In the opinion of the Regional Transport Officer, Nagpur, said Excavator was motor vehicle and, accordingly, it was detained for want of valid documents. The seizure of the said Excavator has led to the filing of this writ petition. It is prayed that it be declared that the Heavy Earth Moving Machineries owned by the petitioner are not the motor vehicle as contemplated under the Motor Vehicles Act, 1988 (for short MV Act), and hence they are not required to be registered nor any tax is required to be paid on them under the provisions of Bombay Motor Vehicles Tax Act, 1958 (for short, Bombay Act 1958). The petitioner has also prayed for quashing of the order dated 20th September, 2002, whereby the Excavator was seized.

3. The case set up by the petitioner in the writ petition is that it owns mines in the country and for open cast mining, the heavy equipments and machineries are required to be used for digging as well as removal and transport of coal. The said equipments and machineries, according to the petitioner, are used which can even carry loads at a time. For plying such heavy machineries, the special types of roads are required to be prepared in the mines and they cannot ply on ordinary roads. The petitioners case is that these machineries have got the special features; they can be used in the mining conditions only. They have different description designed for use in the colliery for mining activities and for use on specially built roads (haul roads) within the colliery/mining area. It is averred by the petitioner that Excavators are commonly known as Dumpers and the said dumpers, are self designed for off high way operation; some of them are chain mounted and some are tyre mounted for their use in the mining area.

4. In opposition to the petitioners case the respondent No. 2 has filed reply affidavit and it is submitted that the dumpers or Excavator or for that matter Earth Mover machineries are nothing but a motor vehicle within the meaning of MV Act and the Central Motor Vehicles Rules, 1989 (for short, the Central Rules of 1989). The respondents have, thus, justified seizure of the Excavator on 20th September, 2002, as it did not have relevant documents like Registration book, receipt of BMV Tax etc.

5. The learned Counsel for the petitioner placed reliance on section 2(28) of the MV Act and Rule 126 of the Central Rules of 1989 and submitted that Heavy Earth Moving Machinery cannot be treated as motor vehicle under MV Act.

6. On the other hand, Ms. Bharti Dangre, AGP, referred to Rule 2(ca) of the Central Rules of 1989 which came into effect on 28th July, 2000. She submitted that by insertion of Rule 2 (ca) in the Central Rules of 1989, no doubt is left that the Heavy Earth Moving Machinery is motor vehicle under the Act of 1988 read with the Central Rules of 1989.

7. Section 2(28) of MV Act, 1988 defines motor vehicle or vehicle thus:

"2(28) motor vehicle or 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 or a vehicle having less than four wheels fitted with engine capacity of not exc

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