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CASE NO.: Writ Petition (civil)  136 of 2003

PETITIONER: Paramjit Bhasin and Ors.

RESPONDENT: Union of India and Ors.

DATE OF JUDGMENT: 09/11/2005

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

        In this petition under Article 32 of the Constitution  of India, 1950 (in short the ’Constitution’) the petitioners  have questioned legality of certain notifications  purportedly issued by various States like Punjab and  Haryana, Gujarat, Madhya Pradesh, Rajasthan, Orissa,  Maharashtra, Karnataka and Uttar Pradesh under the  provisions of Section 200 of the Motor Vehicles Act, 1988  (in short the ’Act’). Stand of the petitioners is that by  the notifications certain acts outside the ambit of Section  200 of the Act have been covered, though those were  committed in clear violation of mandate of Sections 113 and  114 read with Section 194 of the Act.  The notifications  have been issued which in effect condone the offence and  permit its continuance though legally no such continuation  could have been permitted. It is the stand of the  petitioners that under the Act and the Rules made thereunder  the maximum gross weight of the vehicles, more particularly,  transport vehicles have been fixed.  Both under the Motor  Vehicles Act, 1939 (in short the ’Old Act’) and the Act  maximum gross weight for each axle of a truck in relation to  the size and number of tyres fitted therein is prescribed.  The Ministry of Surface and Transport was empowered by the  Old Act and the Act to specify maximum gross weight and  maximum weight of transport vehicles.  Chapter VII of the  Act deals with construction, equipment and maintenance of  motor vehicles.  Section 110 empowers the Central Government  to make Rules in respect of several matters. Power has also  been conferred to make Rules under Section 111.  As a part  of Chapter VII under the heading "Control of Traffic" the  limits of weight and limitations on use have been prescribed  under Section 113.  Section 114 deals with the powers to  have vehicle weighed. Section 194 makes driving of vehicles  exceeding permissible limit an offence and consequences of  contravention of the provisions contained in Sections 113,  114 and 115 have been set out.  Section 200 deals with  composition of certain offences under several sections  including Section 194.

       As noted above, stand of the petitioners is that what  is permissible is composition of offences punishable under  Section 194.  It does not, however, permit continuance of  the infraction after the compounding.  Illustratively it is  stated that when any person drives or allows to be driven in  any public place any motor vehicle exceeding the specified

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weight (in terms of Section 113(3)) the excess weight has to  be off-load at the cost of the transporter.  But in essence  notifications issued by State Government permit carriage of  the excess weight after compounding.   

       The Union of India in its response has pointed out that  when several notifications issued by various State  Governments were brought to the notice of the Central  Government, it resulted in anxious consideration by the  officials of the Central Government. Several meetings were  called and the State Governments were given suitable  directions for withdrawal/modification of the notifications.   Some of the States to whom notices were issued in the  present case have filed counter-affidavits while others have  orally submitted about action taken by them, on the basis of  the discussions held at the meeting with the Central  Government officials.  We shall deal with the individual  cases later on.

       Sections 113, 114, 194 and 200 read as follows:

"113. Limits of weight and limitations on  use \026 (1) The State Government may prescribe  the conditions for the issue of permits for  [transport vehicles] by the State or Regional  Transport Authorities and may prohibit or  restrict the use of such vehicles in any area  or route.

(2)     Except as may be otherwise prescribed,  no person shall drive or cause or allow to be  driven in any public place any motor vehicle  which is not fitted with pneumatic tyres.

(3)     No person shall drive or cause or allow  to be driven in any public place any motor  vehicle or trailer \026  

(a)     the unladen weight of which exceeds  the unladen weight specified in the  certificate of registration of the  vehicle, or (b)     the laden weight of which exceeds  the gross vehicle weight specified  in the certificate of registration.   

(4)     Where the driver of person in charge of  a motor vehicle or trailer driven in  contravention of sub-section (2) or clause  (a) of sub-section (3) is not the owner, a  court may presume that the offence was  committed with the knowledge of or under the  orders of the owner of the motor vehicle or  trailer.

114. Power to have vehicle weighed : (1) Any  officer of the Motor Vehicles Department  authorized in this behalf by the State  Government shall, if he has reasons 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 kilometers from any point on the forward  route or within a distance of twenty

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kilometers 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 over trailer from that  place until the laden weight has been reduced  or the vehicle or trailer 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 authorized 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.                                       

194. Driving vehicle exceeding permissible  weight: (1) Whoever drivers 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 vehicle who refuses to  stop and submit his vehicle to weighing after  being directed to do so by an officer  authorized in this behalf under Section 114  or  removes or cause to removal of the load  or part of it prior to weighing shall be  punishable with fine which may extend to  three thousand rupees.

200. Composition of certain offences: (1) Any  offence whether committed before or after the  commencement of this Act punishable under  Section 177, Section 178, Section 179,  Section 180, Section 181, Section 182, sub- section (1) or sub-section (2) of Section  183, Section 184, Section 186, Section 189,  sub-section (2) of Section 190, Section 191,  Section 191, Section 194, Section 196, or  Section 198, may either before or after the  institution of the prosecution, be compounded  by such officers or authorities and for such  amount as the State Government may, by  notification in official gazette, specify in  this behalf.

(2)     Where an offence has been compounded  under sub-section (1) the offender, if in  custody, shall be discharged and no further  proceedings shall be taken against him in  respect of such offence."                  

       Section 200 does not in any way authorize the State  Government to permit the excess weight to be carried when on

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various inspection/detection it is noticed that there is  carriage of load beyond the permissible limit. It only gives  an opportunity of compounding so that instead of the amounts  fixed, lesser amounts can be accepted by the authorised  officers. The intention of uploading the excess weight is  apparent from a bare reading of the Section 194(1).  The  liability to pay charge for uploading of the excess load is  fixed on one who drives a vehicle or causes a motor vehicle  to be driven in contravention of the provisions of Sections  113, 114 and 115. It is to be noted that compounding can be  done either before or after the institution of the  prosecution in respect of the enumerated offences.  Any  notification which runs counter to the clear import of  Section 194 has no validity. As rightly submitted by learned  counsel for the petitioners after compounding the excess  load, same cannot be permitted to be carried in the  concerned vehicle.  Such carriage would amount to infraction  of Section 113 of the Act.  The object for which the maximum  permissible weights have been fixed is crystal clear.  On a  perusal of the provisions it is clear that the maximum gross  weight (in short ’GVB’) of the trucks is 16.2 tonnes which  enables loading of about 9 tonnes.  The load rating is  primarily based on the road design, specifications of Indian  roads.  Rule 95(2) of the Central Motor Vehicles Rules, 1989  (in short ’the Central Rules’) prescribes the principles  which cover the fixation of GVB of the vehicles.  The same  reads as follows:-

"Rule 95(2): The maximum gross vehicle  weight and the maximum safe axle weight of  each axle of a vehicle shall, having regard  to the size, nature and number of types and  maximum weight permitted to be carries by the  types as per sub-rule (1), be \026

i.      Vehicle rating of the gross vehicle  weight and axel weight respectively  as duly certified by the testing  agencies for compliance of the rule  126, or

ii.     the maximum vehicle weight and  maximum safe axle weight of each  vehicle respectively as notified by  the Central Government, or

iii.    the maximum total load permitted to  be carried by the tyre as specified  in sub-rule (1) for the size and  the number of the tyres fitted on  the axles (s) of the vehicle.

Whichever is less:

Provided that the maximum gross vehicle  weight in respect of all vehicles,  including multi axle vehicles not be  more than the sum total of all the  maximum safe axle weights put  together."       

       The Government of India had also fixed GVB for  different categories of vehicles.  Reference may be made to  notifications dated 18th October, 1996 (no. SO728(E) and

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26th May, 2000 (no. SO517E) issued by the Ministry of  Surface Transport (Department of Road Transport and  Highways) (Transport Wing).

       It is apparent from the reply filed by the Union of  India that overloading causes significant damage to the road  surface and also cause pollution through auto emissions.   Even overloaded vehicles are safety hazards not only for  themselves, but also for other road users.  It is pointed  out that since the responsibility of enforcing of the  provisions of the Act and the Central Rules is that of the  State Government they have been advised by the Central  Government to scrupulously enforce the provisions of the Act  and the Central Rules. It appears that the matter was  discussed at the 30th meeting of the Transport Development  Council where the following decisions were taken:-

"(i)    Strict enforcement of the provisions  relating to overloading under the Motor  Vehicles Act, 1988 and Central Motor Vehicles  Rules, 1989.  

(ii) The State Governments are not to issue  special cards/passes which legalize  overloading.

(iii) ........

(iv).........

(v)     Non-renewal of registration and denial  of permit to habitual offenders of  overloading.

A copy of the minutes of the TDC meeting is  placed as Annexure R-5."                                                 Complaints were received that several States were  issuing green cards/golden passes purportedly on the basis  of the power of composition under Section 202.  After  examining the matter the Central Government requested the  respective States to discontinue such cards/passes.   

       Learned counsel appearing for the States submitted that  the system of issuing cards/passes has been discontinued.  However, it was submitted that offloading excess weight from  large number of vehicles creates traffic problems and  several other practical problems which according to them  need to be addressed.

       The State of Gujarat has stated that though a system of  special token was introduced, the same has been withdrawn  after the discussion with the Central Government officers.  It has been so stated in the counter-affidavit filed.   Learned counsel for the State of Haryana has stated that  though the counter affidavit has not been filed the  notification which was earlier issued has been withdrawn.   Learned counsel for the State of Orissa submitted that  though there was earlier a scheme in operation the same has  been withdrawn after discussion with Central Government  officials on 13.10.2003. Learned counsel for the State of  Maharashtra submitted that notification dated 24.6.1996 has  been issued and at serial no.19 the limits of compounding  charges have been indicated.  It is, however, fairly

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accepted that the object of fixing the maximum weights has  not been specifically taken care of.  It was assured that  proper notification keeping in view the object of Sections  113 and 114 shall be issued shortly. Similar is the stand of  learned counsel for the State of Madhya Pradesh.  Learned  counsel for the State of U.P. submitted in the counter- affidavit filed by them the notification which was issued  earlier has been withdrawn by notification dated 1st  December, 2003.  Learned counsel for the State of Rajasthan  has candidly admitted that the notification issued has not  been withdrawn, but it shall be done forthwith.  Similar is  the position with the State of Karnataka.

       It is to be noted that the constitutional validity of  Section 194 and 200 were challenged.  It was noted in P.  Ratnakar Rao and others V. Govt. Of A.P. and others   (1996 (5) SCC 359) that the discretion given under Section  200(1) to the State Government to prescribe maximum rates  for compounding the offence is not unguided, uncanalised and  arbitrary.  It was, inter alia, held as follows:

"The contention raised before the High Court  and repeated before us by Shri Rajeev Dhavan,  the learned Senior Counsel for the  petitioners is that the discretion given in  Section 200(1) of the Act is unguided,  uncanalised and arbitrary. Until an accused  is convicted under Section 194, the right to  levy penalty thereunder would not arise. When  discretion is given to the court for  compounding of the offence for the amount  mentioned under Section 200, it cannot be  stratified by specified amount. It would,  therefore, be clear that the exercise of  power to prescribe maximum rates for  compounding the offence is illegal, arbitrary  and violative of Article 14 of the  Constitution. We find no force in the  contention. For violation of Sections 113 to  115, Section 194 accords penal sanction and  on conviction for violation thereof, the  section sanctions punishment with fine as has  been enumerated hereinbefore. The section  would give guidance to the State Government  as a delegate under the statute to specify  the amount for compounding the offences  enumerated under sub-section (1) of Section  200. It is not mandatory that the authorised  officer would always compound the offence. It  is conditional upon the willingness of the  accused to have the offences compounded. It  may also be done before the institution of  the prosecution case. In the event of the  petitioner’s willing to have the offence  compounded, the authorised officer gets  jurisdiction and authority to compound the  offence and call upon the accused to pay the  same. On compliance thereof, the proceedings,  if already instituted, would be closed or no  further proceedings shall be initiated. It is  a matter of volition or willingness on the  part of the accused either to accept  compounding of the offence or to face the  prosecution in the appropriate court. As  regards canalisation and prescription of the

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amount of fine for the offences committed,  Section 194, the penal and charging section  prescribes the maximum outer limit within  which the compounding fee would be  prescribed. The discretion exercised by the  delegated legislation, i.e., the executive is  controlled by the specification in the Act.  It is not necessary that Section 200 itself  should contain the details in that behalf. So  long as the compounding fee does not exceed  the fine prescribed by the penal section, the  same cannot be declared to be either  exorbitant or irrational or bereft of  guidance."                    

       It is indisputable that the power of compounding vests  with the State Government, but the notification issued in  that regard cannot authorize continuation of the offence  which is permitted to be compounded by payments of the  amounts fixed. If permitted to be continued, it would amount  to fresh commission of the offence for which the compounding  was done. The State Governments which have not yet withdrawn  the notifications shall do it forthwith. So far as the  practical difficulties highlighted are concerned, it is for  the State Governments concerned to make necessary  arrangements to ensure that the difficulties highlighted can  be suitably remedied by the State Government themselves  without in any way overstepping statutory prescriptions.   

       The writ petition is accordingly disposed of with no  order as to costs.