REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4225    OF 2009 (Arising out of SLP (Civil) No. 14906 of 2009)

Jantia Hill Truck Owners Association  …. Appellant

Versus

Shailang Area Coal Dealer and Truck  Owner Association and others ….   Respondents

WITH

CIVIL APPEAL NOS.  4226-4227     OF 2009 (Arising out of SLP (Civil) Nos.  15450-15451     of 2009)

                            [CC Nos. 9222-9223/2009]

Ms. Mem Julet Passah  … Appellant  

Versus

Shailang Area Coal Dealer and Truck  Owner Association and others ….   Respondents

WITH

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CIVIL APPEAL NO.  4228   OF 2009 (Arising out of SLP (Civil) No.  15452   of 2009)

                           [CC No. 9224/2009]

Shri Mylliemngaph ….. Appellant

Versus

Shailang Area Coal Dealer and Truck  Owner Association and others ….   Respondents

AND  

CIVIL APPEAL NO.  4229    OF  2009 (Arising out of SLP (Civil) No. 15454  of 2009)

                           [CC NO. 9231/2009]

Shri Trinspil K. Sangma ….. Appellant

Versus

Shailang Area Coal Dealer and Truck  Owner Association and others ….   Respondents

J U D G M E N T

S.B. SINHA, J. .  

1. Leave granted.   

2. This batch of appeals arise out of a judgment and order dated 23rd  

June, 2009 passed by a Division Bench of the Gauhati  High Court  at  

Guwahati  whereby  and  whereunder  the  Memorandum  dated  11th

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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 protected by Sixth Schedule of the Constitution of India  

and the laws made by the District Council thereunder.  

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Indisputably a batch of the writ petitions including the connected  

appeals relating to the right of Sylems and Sardars who established Toll  

Gates and collection of monies by them, had been heard in part by the  

High Court.  

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It is also not in dispute that various interim orders were passed in the said  

pending mattes.  The Gauhati High Court, however, took up for hearing a batch of six  

matters  in  regard  to  the  legality  of  collection  of  monies  by  the  operators  of  the  

weighbridges in the State of Meghalaya opining that the purported grievances made

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in the other writ  petitions relating to establishment  of toll  gates and collection of  

monies by other agencies could be determined later.   

Checkgates on: Shallang- Riangdo-Athiabari Road (Meghalaya portion of the Road) 1. Shallang Area Labour Association  

At Kyllon-Mathei - Rs.50/-

2. Western Hills Weigh Bridge  (On Challan-Rs.30/- Actual charge is more  at Nongdaju)

- Rs.250/-

3. Nongstoin Syiemship Checkgate at - Rs.400/- 4. Nongstoin Syiemship Checkgate at - Rs.100/- 5. MVI not a Checkgate but persons kept by  

this MVI at Athiabari - Rs.1000/-  

(No slip) 6. Sirdar of Riangsih Checkgate at Myndo - Rs.100/- 7. Sirdar of Jyrgam Checkgate at Tynghor - Rs.100/- 8. Smoke-Testing Checkgate at Kamrangshi - Rs.65/-  

On slip actually  collected  Rs.250/-

9. Pollution under control at Athiabari - Rs.65/-  on slip actually  

collected  Rs.250/-

10. D. Shira Weighbridge at Athiabari - No slip  Average per  

truck Rs.1000/- 11. Police

O.C.Hahim P.S. - Rs.400/-

(No slip/  Challan)

12. R.H. Weigh Bridge at Hahim - Rs.500/- 13. Automobile Smoke Emission Testing  

Station near Hahim Bazar - Rs.250/- (not  

mentioned on  slip)

14. J.K. Rabha Weigh Bridge at Mauman - Rs.500/- 15. Smoke Testing at Mauman - Rs.250/- 16. Smoke Testing at Haldipara - Rs.250/-

Total - Rs.5330/-

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4. We may, at the outset also place on record that in the writ petition  

filed by the respondent – Shallang Area Coal Dealer and Truck Owner  

Association  16  points  at  which  the  driver/owners  of  the  trucks  are  

subjected 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 :-

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“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 may also be stated that  so far illegal collection of tolls by the Respondent  No.  6  is  concerned;  no Motor  Vehicle  Inspector  has been posted in the Check gates as mentioned in  the petition. As such illegal collection or extortion  by  the  said  person  from  the  Members  of  the  Petitioner’s  Association  does  not  arise.  The  statements  made  in  the  petition  are  general  statements  containing  wild  allegations  and  the  same  are  vague  in  nature.  Whenever,  any  such  complaint was received by the authority regarding  any collection of illegal tolls, necessary steps were  taken in the matter by the District Administration.”  

8. Before the High Court, however, on a query made by the Court,  

the  learned  Advocate  General  for  the  State  of  Meghalaya  inter  alia  

contended  that  check  posts  have  been  established  and  fees  are  being  

collected  without  framing  any  Rules  and  in  terms  of  the  said  

Memorandum.

9. By  reason  of  the  impugned  judgment  the  High  Court  while  

recognizing that weighbridges can be established in terms of the Act but  

in absence of any Rules framed in this behalf no fee can be collected.  

The State  of  Meghalaya  does not  prefer  any appeal  thereagainst  uptil  

now.  

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10. The appellants were not parties before the High Court.   

11. Mr.  Ranjit  Kumar,  learned  senior  counsel  appearing  for  the  

appellants would contend that the appellants have preferred these appeals  

against the impugned judgment because in absence of any valid receipt  

granted to them by the authorized weighbridge owners, they would not be  

permitted to carry on inter-state transport business and thus their right  

under Article 301 of the Constitution would be violated.   

12. Mr. A. Sarma, learned senior counsel appearing on behalf of the  

respondent-writ  petitioner,  however,  would  support  the  impugned  

judgment.

13. Before adverting to the question involved in these appeals, we may  

place  on record the  relevant  part  of  the  said Memorandum dated  11th  

September, 2003 laying down the procedures required to be followed by  

the  Transport  Department  for  granting  permission  for  installation  and  

operation of weighbridges for commercial and regulatory purposes.  They  

read as under :-

“1.  This  procedure  shall  be  followed  by  the  Transport  Department  for  granting of  permission  of installation and operation of Weigh Bridge for  commercial and regulatory purposes.

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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 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  

directing stoppage of collection of monies from the truck owners/drivers  

by  the  various  local  tribal  chiefs.   Pursuant  thereto  or  in  furtherance  

thereof  the  Deputy  Commissioner,  West  Khasi  Hills,  District  of

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Meghalaya issued an order dated 20th February, 2009 directing the said  

persons  to  remove/stop  all  the  illegal  Toll  gates/Check  gates/Weigh  

Bridge  on  public  roads  and  stop  collection  of  illegal  tolls  therein  

immediately within one week from the date of issue of the said letter.   

15. Writ petitions were filed thereagainst and a learned Single Judge of  

the High Court kept the said stay order in abeyance during the pendency  

of  the  writ  petitions.  Writ  appeals  preferred  thereagainst  are  pending  

before the Division Bench of the High Court.  

16. As indicated heretobefore although various questions were raised  

in the writ  petitions  filed by the Association of  the Coal Dealers and  

Truck Owner as also by tribal chiefs, the High Court thought it fit not to  

go into other questions except the one involved in these appeals.  

17. It is not in dispute that the Act in unequivocal terms provides to  

specify  among  other  things  the  weight  which  a  carrier  of  a  given  

description may carry.  The said provisions are necessary not only for  

construction and maintenance of road but also to prevent accidents.     

18. The Act provides for registration of the Motor Vehicles in terms of  

the provisions contained in Chapter IV of the Act.  Section 41 prescribes  

that  an  application  therefor  is  required  to  be  accompanied  by  such  

documents, particulars and information and shall  be made within such

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period as may be prescribed by the Central Government.   In terms of  

Section  58  of  the  said  Act,  the  Central  Government  is  authorized  to  

notify  the  gross  vehicle  weight,  and  axle  weight  of  certain  types  of  

transport vehicles.   

Sub-section (3) of Section 113 of the Act prohibits any person to  

drive or cause or allow to be driven in any public place any motor vehicle  

– (a) the unladen weight of which exceeds the unladen weight specified  

in the certificate of registration and (b) the laden weight of which exceeds  

the gross 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

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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  sub- section (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 states that such rules may provide for “the  

installation and use of weighing devices”.   

Section 194 of the said Act reads as under :-

“194.  Driving  vehicle  exceeding  permissible  weight.   (1) Whoever drives  a motor vehicle or  causes or allows a motor vehicle to be driven in  contravention of the provisions of section 113 or  section 114 or section 115 shall be punishable with  minimum  fine  of  two  thousand  rupees  and  an  additional  amount  of  one  thousand  rupees  per  tonne of excess load, together with the liability to  pay  charges  for  off-loading  of  the  excess  load.

(2) Any driver of a vehicle who refuses to stop and  submit his vehicle to weighing after being directed  to  do  so  by  an  officer  authorised  in  this  behalf  under  section  114  or  removes  or  causes  the  removal of the load or part of it prior to weighing  shall be punishable with fine which may extend to  three thousand rupees.”

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Section 211 of the Act provides for power to levy fee.   

It reads :-

“211. Power to levy fee.

Any  rule  which  the  Central  Government  or  the  State  Government  is  empowered  to  make  under  this Act may, notwithstanding the absence of any  express  provision  to  that  effect,  provide  for  the  levy  of  such  fees  in  respect  of  applications,  amendment  of  documents,  issue  of  certificates,  licences,  permits,  tests,  endorsements,  badges,  plates,  countersignatures,  authorisation,  supply of  statistics or copies of documents or orders and for  any  other  purpose  or  matter  involving  the  rendering  of  any  service  by  the  officers  or  authorities  under  this  Act  or  any  rule  made  thereunder  as  may  be  considered  necessary:

Provided that the Government may, if it considers  necessary so to do, in the public interest by general  or special order, exempt any class of persons from  the payment  of any such fee either in part  or  in  full.”

Section 212 provides for publication, commencement and laying of  

rules and notifications.  Sub-sections  (1),  (2)  and  (3)  thereof  read  as  

under:-  

“212.  Publication,  commencement  and  laying  of  rules and notifications.

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(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 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.

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(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  or  concurrence  of  another  authority,  that  authority  also,  shall  consider  any  objection  or  suggestion  which  may me received  by the  authority  having  power  to  make  the  rules  or  bye-laws  from  any  person with respect to the draft before the date so  specified.

(5) the publication in the (Official Gazette) of a  rule or bye-law purporting to have been made in  exercise of a power to make rules or bye-laws after  previous publication shall be conclusive proof that  the rule or bye-law has been duly made.”

22. The core question which arises for consideration in these appeals is as  

to whether the State Government is empowered to issue any executive order  

in respect of the matters required to be prescribed by Rules.  

23. Article 162 of the Constitution of India in unequivocal terms provides  

that the executive power of a State shall extend to the matters with respect to  

which the Legislature of the State has power to make laws.  Such executive  

powers having regard to the Rule of Executive Business are framed in terms  

of Article 166.  Clause (3) of Article 166 empowers the Governor to make  

rules for the more convenient transaction of the business of the Government  

of the State, and for the allocation among Minister of the said business in so  

far as it is not business with respect to which the Governor is by or under the  

Constitution required to act in his discretion.  

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24. The Memorandum was issued in the name of the Governor.  It is not  

in dispute that it was authenticated in terms of clause (2) of Article 166 of  

the Constitution.  The power was exercised by the State under the provisions  

of the Act.  The said order was to remain in force till Rules are framed in the  

prescribed manner.   

The provisions of the Act mandate that the unladen weight and laden  

weight  must  be  determined.   Indisputably,  weighing  devices  had  to  be  

provided for the said purpose.  It is true that for the said purpose Rules may  

have to be framed.  It is, however, 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

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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 of India.  It may, however, permit to provide parties  

to install weighbridges, subject to regulations.   

28. The Memorandum in question provides broad terms and conditions  

under which the private parties were authorized to set up weighbridges and  

collection of fees.  Power of the State to do so is not in question.  It is not a

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case where fees are required to be prescribed for undertaking administrative  

action.   

29. Apart from Section 211 of the Act the State is entitled to make laws  

for collection of fees in respect of any manner enumerated in List II of the  

Seventh Schedule  of  the  Constitution of  India  as  would be evident  from  

Entry 66 thereof.  If it itself carries on business, it is entitled to lay down the  

norms therefor.   

30. Where the State or the State controlled agencies render services for  

the  purpose of  effectuation of  the  provisions of  a  Central  Act,  it,  in our  

opinion, is entitled to charge a reasonable amount in respect thereof.   

31. We may, in this behalf, refer to a decision of this Court in T. Cajee  v.  

U. Jormanik Siem and another [ [1961] 1 SCR 750].  The question which  

arose for consideration therein was as  to  whether  in  absence of  any law  

regulating the appointment and succession of Chiefs and Headmen, a notice  

issued to the respondent therein to show cause as to why he should not be  

removed from his office,  was valid.   The respondent questioned the said  

legality  of  the show cause notice  as  also the  order  of  suspension passed  

against him on the grounds :-

“(i) That  he  could  not  be  removed  by  administrative orders but only by making a  law ;

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(ii) that the Executive Committee could not take  any action in this case, and  

(iii) that the order of suspension was ultra vires.”

Wanchoo, J. speaking for the Court opined as under :-

“The High Court seems to be of the view that until  such a  law is  made there  could be no power  of  appointment of a Chief 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 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

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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 noticed by this Court in Surinder Singh v.  

Central Govt., [ (1986) 4 SCC 667].  It was held therein:-  

”6. The  High  Court  has  held  that  the  disposal  of  property forming part of the compensation pool was  “subject”  to  the  rules  framed  as  contemplated  by  Sections 8 and 40 of the Act and since no rules had  been framed by the Central Government with regard  to  the  disposal  of  the  urban  agricultural  property  forming part of the compensation pool, the authority  constituted  under  the  Act  had  no  jurisdiction  to  dispose of urban agricultural property by auction-sale.  Unless rules were framed as contemplated by the Act,  according to the High Court the Central Government  had no authority in law to issue executive directions  for  the  sale  and  disposal  of  urban  agricultural  property. This view was taken, placing reliance on an  earlier decision of a Division Bench of that court in  Bishan Singh v.  Central  Government. The  Division  Bench  in  Bishan case took  the  view that  since  the  disposal  of  the  compensation  pool  property  was  subject to the rules that may be made, and as no rules  had  been  framed,  the  Central  Government  had  no  authority  in  law  to  issue  administrative  directions  providing  for  the  transfer  of  the  urban  agricultural  land by auction-sale. In our opinion the view taken by  the High Court is incorrect.  Where a statute confers  powers on an authority to do certain acts or exercise  power in respect of certain matters, subject to rules,  the exercise  of  power conferred by the statute  does  not depend on the existence of rules unless the statute

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expressly  provides  for  the  same.  In  other  words  framing of the rules is not condition precedent to the  exercise of the power expressly and unconditionally  conferred by the statute.  The expression “subject  to  the rules” only means, in accordance with the rules, if  any. If rules are framed, the powers so conferred on  authority 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.

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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  rendered  to  individuals  by  some  governmental  agency. The amount of fee levied is supposed to be  based on the expenses incurred by the Government  in rendering the service, though in many cases the  costs are arbitrarily assessed. Ordinarily, the fees  are uniform and no account is taken of the varying  abilities  of  different  recipients  to  pay.  These  are  undoubtedly  some  of  the  general  characteristics,  but as there may be various kinds of fees, it is not  possible  to  formulate  a  definition  that  would  be  applicable to all cases.”

The ratio laid down therein is not in dispute.

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35. We may, however, notice that the question has been considered by a  

Constitution Bench of this Court in Jindal Stainless Ltd. (2) and another  vs.  

State of Haryana and others [ (2006) 7 SCC 241 ].  The Bench noticed the  

difference between ‘a tax’ ‘a fee’ and ‘a compensatory tax” inter alia in the  

following terms :-

“40. Tax is  levied as a part  of common burden.  The basis of a tax is the ability or the capacity of  the taxpayer to pay. The principle behind the levy  of a tax is the principle of ability or capacity. In the  case of a tax, there is no identification of a specific  benefit and even if such identification is there, it is  not capable of direct measurement. In the case of a  tax,  a  particular  advantage,  if  it  exists  at  all,  is  incidental  to the State’s  action.  It  is  assessed on  certain elements of business, such as, manufacture,  purchase, sale, consumption, use, capital, etc. but  its payment is not a condition precedent. It is not a  term or condition of a licence. A fee is generally a  term of a licence. A tax is a payment where the  special benefit, if any, is converted into common  burden.

41. On  the  other  hand,  a  fee  is  based  on  the  “principle  of  equivalence”.  This  principle  is  the  converse of the “principle of ability” to pay. 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

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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  the  decision  of  this  Court  in  Indian  

Express Newspapers (Bombay) Pvt. Ltd. and others  v.  Union of India and  

others, [ (1985) 1 SCC 641 ], would contend that the High Court had no  

jurisdiction to direct  State to frame Rules.   We need no go into the said  

question as before us Mr.Ranjan Mukherjee, learned counsel appearing on  

behalf of the State of Meghalaya made a categorical statement that the Rules  

would be framed within eight weeks.

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38. This Court in Surinder Singh (supra) opined that a copy of the order  

must be produced before the High Court before the same can be quashed.  

The validity of an order issued by the State Government, furthermore should  

be questioned by a person aggrieved upon raising grounds therefor.   The  

State must be given an opportunity to file a counter-affidavit meeting those  

grounds.   

39. We, therefore, are of the opinion that the impugned judgment cannot  

be sustained. The same is, therefore, set aside.   

40. The writ petitioners, however, would be at liberty to file additional  

affidavit (s) questioning the validity or otherwise of the said Memorandum.  

The  High  Court  must  also  give  an  opportunity  to  the  State  and  other  

interested parties to present their respective cases before the High Court.   

41. The High Court in the peculiar facts and circumstances of this case  

may also consider the desirability of consideration of the matters pending  

before it together, if not already disposed of, so that the points raised by the  

writ-petitioners may be dealt with comprehensively.  

42. The appeals are allowed.  No costs.

……….…………………….J. [ S.B. SINHA ]

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……….…………………….J.      [ DEEPAK VERMA ]

New Delhi July 10, 2009