TaxTMI 
TaxTMI 
2009 (7) TMI 1313
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.... 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 them therefor and which are said to be protecte....
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....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 Members of the Petitioner's Association have not made any complaint before the concerned Police Station or any other Respondent Authority regarding any illegal collection of tolls/extortion as alleged in the petition. It ....
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....e 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 before notification of this Office Memorandum. 17. These orders shall remain in force till the finalization and approval of the Rules for installation, Regulation, and Operation of weighbridges in Meghalaya." 14. Indisputably an interim order was passed on 11th June, 2008 ....
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....f 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) makes the said order in writing, he shall also endorse the relevant details of the overloading on the goods carriage permit and also intimate the fact of such endorsement to the authority which issued that permit." 20. Section 138 of the said Act empowers the State Government to make rules. Sub-section 2(b) thereof s....
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.... 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 authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the (Government concerned) prescribed. (3) there shall be published with the draft a notice specifying a date on after which the draft will be taken into consideration. (4) the authority having power to make the rules or bye-laws , and where the rules or bye-laws are to be made with the sanction, approval o....
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....ght" 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 rendering the services and collecting the fee are acting in excess of the authority conferred on them." 27. The second contention was not answered. In fact there was no sufficient pleadings brought on record by the parties in that behalf. The State for giving effect to the provisions of the statute may upon itself take the burden of providing for weighbridges and collection of fees etc. in exercise of its power under Article 298 or Article 162 of the Constitution ....
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....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 for the purposes of the administration of the district. It is true that where executive power impinges upon the rights of citizens it will have to be backed by an appropriate law; but where executive power is concerned only with the personnel of the administration it is not necessary - even though it may be desirable - that there must be laws, rules or regulations governing the appointment of those who would carry on the administration under the control of the District Council. " The said decision has been n....
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....n 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 charges levied for getting their trucks weighed at the weighbridges are exorbitant or they are compelled to get their trucks weighed at several places, although they otherwise fulfill the statutory requirements laid down in Section 211 of the Act. 34. Our attention has been drawn by Mr. Sharma to a decision of this Court in The Commissioner., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [ AIR 1954 SC 282]. "44. Coming now to fees, a "fee" is generally defined to be a charge for a special service r....