BIRLA CEMENT WORKS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is against the order of the learned single Judge dated 28-1-2000 in S.B. Civil Writ Petition No. 180/2000.

(2.) The petitioners carry on the business of manufacturing and selling of cement and for the purpose of their business they have also been granted mining lease for lime stone in respect of the land situated in village Bharda Jai, Surjna, Nagri in tehsil Chittorgarh. According to the petitioners they have installed crusher in the mining area itself for crushing lime stone excavated from the mines and there is public road in the mining area of the petitioners, which is in the exclusive possession and control of the petitioners. For the purpose of carrying lime stone from mines to the crusher within that area they have acquired heavy earth moving equipments known as Dumpers. The total number of such machines acquired from time to time is 27. In the petition, out of which this appeal arises, demand notices Annexure 4/1 to 4/27, raised under the Rajasthan Motor Vehicles Taxation Act, 1954, are under challenge. All these notices relate to demand for tax under the Act for the period commencing from 1-4-1997 to 31-3-2000 and have been raised by notices dated 11th Jan. 2000. The petitioners have challenged the said demand notices on the ground that machines/dumpers are not 'motor vehicle' within the meaning of Rajasthan Motor Vehicles Taxation Act, 1951 for the purpose of levying tax thereon though they are registrable under the Motor Vehicles, Act, 1988 and that the demand notices have been issued without first assessing the liability of the petitioners to tax, without affording any opportunity of hearing, demand notices have been issued directly without preceding assessment of tax.

(3.) The learned single Judge in the first instance upheld the preliminary objection on behalf of the respondents that the present petition is not maintainable because of the principle enshrined in the provisions of Order 2, Rule 2 of the Code of Civil Procedure as well as on the principle of constructive res judicata. The learned Judge also upheld the preliminary objection of the respondents that as appeal was provided against the demand notice, there was an alternative remedy available to the petitioners for raising the issue raised in the petition. While upholding the objections of Order 2, Rule 2 CPC and constructive res judicata, it was noticed by the learned single Judge that the petitioners have earlier filed S.B. Civil Writ Petition No. 3579/99 rasing the same issue which has been dismissed by the Court on 9-12-1999, against which though appeal has been filed by the petitioners as D.B. Civil Special Appeal No. 1540/99 but the same is pending and no interim order has been passed therein in favour of the petitioners and that the petitioners ought to have raised additional grounds raised in earlier petition which they now want to raise in this petition. Because of their failure to do so, principle of constructive res judicata applies.