TaxTMI 
TaxTMI 
2009 (7) TMI 1313
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.... Court at Guwahati whereby and whereunder the Memorandum dated 11th September, 2003 issued by the Government of Meghalaya purported to be in terms of Section 138 (2)(b) of the Motor Vehicles Act, 1988 (for short 'the Act') was held to be illegal and a writ of or in the nature of mandamus was issued directing the Government of Mehalaya to make Rules in exercise of its powers thereunder. 3. The basic fact of the matter is not in dispute. Several writ petitions were filed before the High Court alleging that trucks carrying cargo in the State of Meghalaya are compelled to pay substantial amounts to various entites at innumerable points who broadly fall under four categories - (1) persons operating weighbridges on various terms and conditions stipulated by the State of Meghalaya ; (2) the local tribal chiefs known as Sylems and Sardars ; (3) the authorities implementing the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and (4) the Police officers of the State of Meghalaya. The Sylems and Sardars being the local tribal chiefs, admitted establishment of such toll gates and collection of monies from the cargo carrying vehicles asserting customary rights in ....
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....bjected to extortionate payments exacted without any authority of law were mentioned which are as under :- 5. The prayers in the said writ petition read as under :- "In the premises aforesaid, it is most respectfully prayed that this Hon'ble Court may be graciously pleased to issue Rule calling upon the respondents to show cause as to why a writ of mandamus shall not be issued directing stoppage of collection of illegal tolls and subjection of weighment and "smoke testing" more than once on public roads in Assam and Meghalaya with immediate effect and as to why all illegal check gates including the gates where the trucks are subjected to weighment and "smoke testing" more than once wherein such toll collection takes place shall not be dismantled." 6. The writ petitioner-respondent, however, directly or indirectly did not question the validity or otherwise of the aforementioned Memorandum dated 11th September, 2003. 7. The State of Meghalaya in its counter-affidavit filed before the High Court inter alia stated :- "5. That with regard to the statement made in paragraphs 2, 3 4, 5, 6 and 7 of the petition your deponent denies the same and states that the Me....
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....re shall be followed by the Transport Department for granting of permission of installation and operation of Weigh Bridge for commercial and regulatory purposes. 8. For the weighment of vehicles fees may be charged at a rate fixed by the Transport Department. 9. The weighment of vehicles, whenever and wherever it becomes necessary in connection with any of the affairs of any of the Departments of the State shall be done at the weighbridges installed under these directions/procedure and in keeping with the relevant provisions of the Motor Vehicles Act, 1988. 10. Whenever _________ under these provisions a certificate of the weight of the vehicle shall be issued by or under the authority of the Transport Department and the same shall be taken cognizance of by all Government authorities/Departments. 14. Fees shall be paid at the rate fixed by Government for each application for permission and for renewal of permission. All fees under these provisions shall be paid into the concerned Treasury and credited in the relevant Head of Account. 15. This Office Memorandum shall also apply and be binding on all the other weighbridges set-up on or bef....
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....s vehicle weight specified in the certificate of registration. 19. Section 114 of the Act, which is relevant for our purpose, reads as under:- "114. Power to have vehicle weighed. (1) Any officer of the Motor Vehicles Department authorised in this behalf by the State Government shall, if he has reason to believe that a goods vehicle or trailer is being used in contravention of section 113,] require the driver to convey the vehicle to a weighing device, if any, within a distance of ten kilometres from any point on the forward route or within a distance of twenty kilometres from the destination of the vehicle for weighment; and if on such weighment the vehicle is found to contravene in any respect the provisions of section 113 regarding weight, he may, by order in writing, direct the driver to off-load the excess weight at his own risk and not to remove the vehicle or trailer from that place until the laden weight has been reduced or the vehicle or trailer has otherwise been dealt with so that it complies with section 113 and on receipt of such notice, the driver shall comply with such directions. (2) Where the person authorised under subsection (1) make....
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....notifications. (1) The power to make rules under this Act is subject to the condition of the rules being made after previous publication. (2) All rules made under this Act shall be published in the Official Gazette, and shall unless some later date is appointed, come into force on the date of such publication. (3) Every rule made by any State Government shall be laid, as soon as may be after it is made before the State Legislature." 21. We may at this juncture also notice the provisions of Section 23 of the General Clauses Act, 1897 which reads :- 23. Provisions applicable to making of rules or bye-laws after previous publication.- Where, by any (Central Act) or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:- (1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of person likely to be affected thereby. (2) the publication shall be made in such manner as that auth....
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....ver, a well settled principle of law that even in a case where the statute provides for certain things to be done, subject to Rules, any action taken without framing the Rules would not render any action invalid. If a statute is workable even without framing of the Rules, the same has to be given effect to. The law itself except in certain situations does not envisage vacuum. 25. Non compliance of the provisions relating to "laden weight" and "unladen weight" being penal in nature must be held to be imperative in character. For the purpose of construction of the provisions of the Act the Courts will have to take into consideration the freedom on the part of the citizens as also non citizens to carry out trade and business in terms of Article 301 of the Constitution of India, subject of course to the other provisions thereof. 26. The High Court itself noticed the two primary contentions of the writ petition for its consideration, which read :- "Essentially the grievances in these cases is two fold - (1) the State lacks the necessary authority of law to collect such fee and (2) even if the authority in law exists, that those who are entrusted with the responsibility of....
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....hief or Siem like the respondent and in consequence there would be no power of removal either. With respect, it seems to us that the High Court has read far more into para 3(1)(g) than is justified by its language. Para 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under para 3(1)(g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. The High Court also seems to have thought that as there was no provision in the Sixth Schedule in terms of Articles 73 and 162 of the Constitution, the administrative power of the District Council would not extend to the subjects enumerated in para 3(1). Now para 2(4) provides that the administration of an autonomous district shall vest in the District Council and this in our opinion is comprehensive enough to include all such executive powers as are necessary to be exercised fo....
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....thority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute." 32. Mr. Sharma would lay emphasis on the opinion of the Bench in Cajee (supra) that executive power infringing upon the rights of the citizens would have to be backed by appropriate law. The aforementioned observation was made in the context of the Constitutional provisions contained in the Sixth Schedule. There exists a distinction between an executive order made in terms of Articles 73 and 162 of the Constitution of India and one made under the Sixth Schedule thereof. Furthermore the levy of charges towards rendering services by itself does not infringe upon the right of any person. 33. Services of the weighbridges are required to be obtained by the drivers/owners of the trucks for fulfillment of their statutory obligations. They cannot obtain such services free of any charges. When private parties are given the right to set up such weighbridges, indisputably they would be entitled to reasonable profit. It was not the contention of the writ petitioner-respondent that the cha....
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.... In the case of a fee or compensatory tax, the "principle of equivalence" applies. The basis of a fee or a compensatory tax is the same. The main basis of a fee or a compensatory tax is the quantifiable and measurable benefit. In the case of a tax, even if there is any benefit, the same is incidental to the government action and even if such benefit results from the government action, the same is not measurable. Under the principle of equivalence, as applicable to a fee or a compensatory tax, there is an indication of a quantifiable data, namely, a benefit which is measurable." [See also M. Chandru v. The Member Secretary, Chennai Metropolitan Development Authority and another, [ 2009 (2) SCALE 750 ]. 36. Although not very relevant, we may notice that this Court in Vimal Kumari v. State of Haryana and others, [(1998) 4 SCC 114 ] has held that even the draft rules may be followed where no rules in accordance with the statutory provisions have been framed. {See also High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, [(2003) 4 SCC 712] and Mahabir Vegetable Oils (P) Ltd. and another v. State of Haryana and others, [ (2006) 3 SCC 620 ]}. 37. Mr. Ranjit Kumar relying on....