Judgment : 1. By this petition filed under Article 226 of the Constitution of India, the petitioner owner of a motor vehicle having registration No. MZV5876 (Premier Padmini Car) has basically sought to challenge the provisions of Maharashtra Act No. XXX of 2010 dated 21.12.2010 introducing “Environment Tax” by amending the Bombay Motor Vehicles Tax Act, 1958 (hereinafter referred to as “the 1958 Act” for short). However, during arguments Shri T.D. Mandlekar, learned Counsel appearing on behalf of the petitioner has made it clear that the petitioner is not pressing the said challenge or question of constitutional validity. The learned Counsel has urged that as the said motor vehicle is incapable of being used on State road, as it is mechanically unfit and is permanently rendered unusable, the same cannot be taxed and hence, demand of arrears of Environment tax on it is, unsustainable. It is pointed out that registration of the vehicle has already expired. 2. Coming to the facts of the case, the learned Counsel submits that the vehicle is a 33 years old vehicle and petitioner sought cancellation of its registration from the office of the respondent no.3 with whom it is registered. The office of respondent no.3 insisted upon the petitioner to pay additional tax of Rs. 3000/- along with interest of Rs. 60/- per month over and above the one time tax which has already been paid for the said vehicle, from 15.10.2010. This arrears and demand filed as AnnexureI dated 27.08.2012 is questioned in the present petition by the petitioner. 3. The learned Counsel has stated that the vehicle is not capable of being used on road and hence, the petitioner sought cancellation of its registration with a view to sell the same as scrap. An application for said purpose has been moved on 14.11.2011 and it was pointed out that the vehicle was/is lying unused since two years prior to the said application. This application has been processed and impugned demand has been made. 4. In this background attention is invited to Section 2(2B) of the 1958 Act to show that it adopts the definition of motor vehicle given in the Motor Vehicles Act, 1988 (hereinafter referred to as “the 1988 Act” for short). The said definition in Section 2(28) of the 1988 Act is pressed into service to show that it requires a vehicle which is mechanically propelled for use on road. The said definition in Section 2(28) of the 1988 Act is pressed into service to show that it requires a vehicle which is mechanically propelled for use on road. It is pointed out that it does not include a vehicle running upon rails or vehicle of special type which are not used on road. The learned Counsel submits that Section 2[28], therefore, necessarily envisages a motor vehicle in running condition and not the on which has become scrap. In the light of this submission, the assessment of tax of vehicle of petitioner is urged to be arbitrary and without jurisdiction. Section 3A introduced by the Maharashtra Amendment No. XXX of 2010 dated 21.12.2010 is, therefore, not applicable. Learned Counsel submits that when the petitioner’s vehicle is not used and is not kept for use in the State, Section 3A itself has no application. Section 3A(2) is also pressed into service to show that the provisions relating to refund of tax contained in Bombay Motor Vehicles Act, 1958 is not applicable. In support of his contention the learned Counsel for petitioner has relied upon a judgment of Hon’ble Apex Court reported at AIR 1975 SC 17 (Bolani Ores Limited vrs. State of Orissa); Division Bench judgment of this Court in Writ Petition No. 8001/2008 dated 11.03.2010 (Tata Motors Limited .vrs. Dy. Regional Transport Officer and others) and another Division Bench judgment of this Court reported at 1987 (2) Bom.C.R. 621 (Madhukar Balkrishna Badiye and others .vrs. State of Maharashtra and others) 5. Mrs. B.H. Dangre, learned Additional Government Pleader appearing on behalf of the respondents has submitted that the deeming fiction made in Section 3 or its validity is not in question before this Hon’ble Court. The provisions of Section 3(2) therefore clearly cover this situation and reliance by petitioner upon various other judgments is, therefore, misconceived. She submits that those judgments are delivered in facts and circumstances of the matters looked into there. 6. Considering these submissions, Rule is made returnable forthwith and the petition is heard finally by consent of the parties. 7. Perusal of Section 3A of the 1958 Act reveals that a lumpsum tax called Environment Tax has been levied in addition to the tax already levied under the said Act on the motor vehicle. Details thereof are specified in 5th Schedule and for the purpose of present adjudication, reference to that schedule is not necessary. 7. Perusal of Section 3A of the 1958 Act reveals that a lumpsum tax called Environment Tax has been levied in addition to the tax already levied under the said Act on the motor vehicle. Details thereof are specified in 5th Schedule and for the purpose of present adjudication, reference to that schedule is not necessary. Subsection [2] prescribes that the provisions of 1958 Act and Rules made thereunder excluding those relating to refund of tax mutatis mutandis apply in relation to levy, assessment and calculation of Environment Tax payable under subsection [1]. Section 4 of 1958 Act is about advance payment of said tax. Section 5 deals with issue of certificate of taxation. Section 6 requires tax to be paid along with declaration. The owner has to fill up, sign and deliver in the manner provided in subsection [4] of Section 6, a declaration and along with it, pay the tax. Section 7 contemplates payment of additional tax upon alteration of vehicle, and Section 8 transfer liability to pay such tax and interest etc., upon succeeding owner. Section 9 contemplates refund of tax. In the light of subsection [2] of Section 3A, Section 9 has no relevance in present dispute. 8. Section 3 of 1958 Act is about levy of tax. It speaks of a tax to be collected by the State Government at the rate specified in the notification. The rate cannot exceed maximum rates specified in the first schedule. Subsection [2] of Section 3 is relevant for the present purposes. Said subsection creates a deeming fiction. An owner or person in possession of the vehicle is deemed to use or have kept such vehicle for use in State during any period specified in the intimation. Intimation in writing has to be in the prescribed manner and it obliges the Taxing authority to certify that such motor vehicle was not used or kept for use in the State during the period specified in the certificate. This subsection has got a proviso which deals with the vehicles rendered incapable of being used on account of any accident or similar defect. The proviso states that in such a situation which make it impossible to give intimation of nonuser in advance, the intimation may be given in writing within 7 days from the date of occurrence of such accident or such defect. The proviso states that in such a situation which make it impossible to give intimation of nonuser in advance, the intimation may be given in writing within 7 days from the date of occurrence of such accident or such defect. There is also one more proviso to subsection [2] of Section 3. It contemplates a situation where intimation is received by the Taxation authority after the commencement of the period of nonuser or after the expiry of period specified in earlier proviso. This later proviso applies when such intimation is received before the expiry of period of nonuser specified in the intimation. In that event, the Taxing Authority is given discretion to recover the tax in full for the period upto the date of receipt of intimation and certify that vehicle was not used or kept for use during the remaining part of period specified in the intimation. 9. Subsection [3] of Section 3 is a non-obstante clause and it states that even if no intimation has been given under subsection [2], Transport Commissioner may, if he is satisfied that a motor vehicle was not used or kept in use for State during any period, for reasons to be recorded in writing, certify that such motor vehicle was not used or kept for use in State during the period specified in the certificate. 10. We have already noted that there is no challenge to the scheme or constitutional validity of any provisions of 1958 Act in this petition. Section 3[2] or [3] thereof contemplate motor vehicles not used on any ground or then not kept for use in the State. Vehicles rendered incapable of being used on account of accident are also dealt with therein. In case of unforseen event, intimation that vehicle cannot be used or it is rendered permanently incapable of being used can be given within 7 days. However, considering the unforeseen situation, the legislature has in subsection [3] given power to a responsible officer like Transport Commissioner to issue certificate of nonuser of such vehicle at any time. Thus motor vehicle not capable of being used is expressly dealt with in this provision. These provisions are squarely for the purpose of environment tax levied under Section 3A of the 1958 Act. Thus motor vehicle not capable of being used is expressly dealt with in this provision. These provisions are squarely for the purpose of environment tax levied under Section 3A of the 1958 Act. Contention that a motor vehicle which has become scrap or cannot be used or factually has not been used, cannot be treated as a motor vehicle for the purpose of 1958 Act is, therefore, misconceived. 11. Moreover, Section 2 of 1958 Act opens with words “In this Act, unless the context otherwise requires....”. Thus, the definition of motor vehicle in Section 2 of the Motor Vehicles Act, 1988 needs to be understood in the context of Sections 3 and 3A of the 1958 Act. Thus, seen it is clear that merely because the motor vehicle is rendered scrap, the liability to pay tax either under Section 3 or then under Section 3A is not expunged. Liability continues till owner obtains a certificate of its nonuser as contemplated in Section 3[2] or [3] of the 1958 Act. Mere fact that registration of a vehicle has expired, has got no bearing on it. Provisions of Sections 3 and 3A provide a complete machinery for levying tax and that levy can be avoided only in the manner prescribed in the said provisions, as per the mandate of the Legislation. The said provisions accept that the vehicle may be used or may be only kept for use in the State. In other words, actual user of a vehicle is not an essential ingredients. Insistence is upon vehicle and not upon its registration. Even a registered vehicle may be exempted from levy, if it is actually not used in the State or not kept for use in State during the period certified by the competent authority, as prescribed in Section 3(2) and (3). 12. Judgment of Hon’ble Apex Court in the case of Bolani Ores Limited vrs. State of Orissa (supra), is looked into by the Division Bench of this Court in its judgment dated 11.03.2010 (supra). The Division Bench has noted that one of the 14 questions before the Hon’ble Supreme Court was whether dumpers, rockers and other vehicles of M/s. Bolani Ores Limited, though registrable under the Motor Vehicles Act, Dumpers were not motor vehicles for the purpose of Orissa Motor Vehicles Taxation Act, 1930. The Division Bench has noted that one of the 14 questions before the Hon’ble Supreme Court was whether dumpers, rockers and other vehicles of M/s. Bolani Ores Limited, though registrable under the Motor Vehicles Act, Dumpers were not motor vehicles for the purpose of Orissa Motor Vehicles Taxation Act, 1930. The Hon’ble Supreme Court found that those vehicles were working solely within the premises of respective owners and therefore, were not amenable to tax under the State Act. The Hon’ble Supreme Court has also noted that before amendment vehicles used solely upon the premises of the owners were excluded from the definition of motor vehicle. It is in this background that the Hon’ble Apex Court has then looked into the contention of State of Orissa, that definition of motor vehicle in the said State Act was not a definition by incorporation, but only a definition for reference. 13. Here in the present matter, this Court has to deal with the motor vehicle namely Padmini Premier Car registered on 02.11.1979 and hence, that controversy is not relevant. Moreover, we have already noted that the motor vehicle rendered unfit on any count is also subjected to Bombay Motor Vehicles Tax Act, 1958 and definition of motor vehicle in Section 2(2B) therein needs to be understood in this backdrop. 14. In Madhukar Balkrishna Badiye and others vrs. State of Maharashtra and others (supra), the Division Bench of this Court at Nagpur has held that when vehicles not using public road are subject to tax under the Bombay Motor Vehicles Tax Act, 1958 levy would be declared as confiscatory in character and beyond competence of State Legislature. That is not the position before us. Said judgment however, in paragraph no.5 has noted that no road tax can be levied merely for the privilege of owning a vehicle usable on road. The Division Bench also notes that to avoid tax levy, procedure is prescribed in 1958 Act. Considering large number of vehicles plying on road, the Division Bench has found that a legal presumption has been used. Thus, every vehicle is deemed to be kept for use or used except during the period for which the authority certifies that the vehicle has not been so used or kept for use. This Division Bench notes that the said provisions safeguards the interest of a bona fide owner. Thus, every vehicle is deemed to be kept for use or used except during the period for which the authority certifies that the vehicle has not been so used or kept for use. This Division Bench notes that the said provisions safeguards the interest of a bona fide owner. On the basis of such certificate a refund of proportionate tax can also be obtained. The Division Bench has observed “It is not without significance that such provision has so far always been integral part of every legislation imposing road tax.” Here judgment of Hon’ble Apex Court reported at AIR 1987 SC 1911 (State of Karnataka .vrs. K. Gopalkrishna Shenoy and another) also needs to be noted. There provisions of Karnataka Motor Vehicles Taxation Act, 1957 are looked into. The Hon’ble Apex Court has noted that liability to pay tax is not dependent upon the vehicle being covered by certificate of fitness. There explanation to Section 3(1) of the Karnataka Motor Vehicles Taxation Act contained a deeming provision and its effect was that as long as the certificate of registration of motor vehicle was valid and in force, the motor vehicle was deemed to be suitable for use on road. We have already noted the provisions of 1958 Act above, which contemplate issuance of certificate of nonuser, if levy is to be avoided. In Karnataka Scheme, owner of a vehicle which was not in use in the State could have obtained refund after satisfying the authority about the truth of his claim. This judgment, therefore, is also not in favour of the petitioner. 15. The petitioner claims that his vehicle is not in use and he wanted it to be treated as a scrap, and therefore, has sought deregistration, contending that the vehicle has lost its road worthiness. In the light of the provisions of Section 3[2], it was necessary for the petitioner to inform the competent authority about this development in advance or within 7 days and to obtain a certificate that the motor vehicle was not used or kept for use in State from that date onwards. He could have even moved the Transport Commissioner under Section 3(3) and placed the entire material before him and sought a certificate of non user. The petitioner has not explained why he has not taken recourse to these provisions. He could have even moved the Transport Commissioner under Section 3(3) and placed the entire material before him and sought a certificate of non user. The petitioner has not explained why he has not taken recourse to these provisions. Though, nobody has argued on the question whether the petitioner can approach the Transport Commissioner under Section 3(3), we feel that the petitioner may still approach that Authority, if he is so advised. Hence, we keep that remedy open form him. 16. In the result, we find that no case warranting any interference is made out. Writ Petition is, therefore, dismissed. Rule discharged. No cost.