Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 1225

2009(5) Supreme 326
SUPREME COURT OF INDIA
(From Gauhati High Court)
S.B. Sinha and Deepak Verma, JJ.
Jantia Hill Truck Owners Association — Appellant
versus
Shailang Area Coal Dealer and Truck Owner Association and others — Respondents
Civil Appeal No. 4225 of 2009
(Arising out of SLP (Civil) No. 14906 of 2009)
with C.A. Nos. 4226-4227 of 2009, C.A. Nos. 4228 & 4229 of 2009
Decided on : 10-07-2009

Advocates appeared:
For the Appellant :Ranjit Kumar, Sr. Adv., Amit Kumar, Somesh Chandra Jha, Pragyan Sharma, L. Roshmani, Ms. Mandakini Sharma, Dr. Kailash Chand, Advocates.
For the Respondent(s):A. Sharma, Sr. Advs., Subhro Sanyal, Ranjan Mukherjee, S.C. Ghosh, Santanu Bhowmick, Ranjan Mozumdar (for M/s. Corporate Law Group), Advocates.

IMPORTANT POINT
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 be invalid.

Headnote:(a) Administrative Law – 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 be invalid – If a statute is workable even without framing of the Rules, the same has to be given effect to – Law itself except in certain situations does not envisage vacuum. (Para 24)
        (b) Interpretation of Statute – Freedom of citizens as also non-citizens to carry out trade and business in terms of Article 301 of the Constitution should be considered while construing the provisions of the M.V.Act. (Para 25)
        (c) Administrative Law – There is 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 – Therefore such orders can be made in exercise of Executive powers even in absence of laws or rules. (Para 32)
        [1961] 1 SCR 750; (1986) 4 SCC 667 – Relied upon.
        (d) Motor Vehicles Act, 1988 – Section 211 – Truck drivers/owners are statutorily obliged to obtain services of weigh-bridges – Private parties operating weigh-bridges are entitled to reasonable profit. (Para 33)
        (e) Words and Phrases – Tax, Fee and compensatory fee – Discussed. (Paras 34 and 35)
        AIR 1954 SC 282; (2006) 7 SCC 241; 2009 (2) SCALE 750 – Relied upon.
        (f) Administrative Law – Even the draft rules may be followed where no rules in accordance with the statutory provisions have been framed. (Para 36)
        (1998) 4 SCC 114; (2003) 4 SCC 712; (2006) 3 SCC 620 – Relied upon.
        (1985) 1 SCC 641 – Referred.
        (g) Constitution of India – Article 226 – Validity of an order can be questioned only by the aggrieved person – For this he has to produce a copy thereof and plead grounds of challenge – State has to be given opportunity to file counter-affidavit meeting those grounds. (Para 38)
       Facts of the case :
        1. Several writ petitions were filed 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.
        2. 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.
       Finding of the Court :
        Impugned judgment cannot be sustained.
       Result : Appeal allowed.

JUDGMENT

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 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. 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. 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 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 – Rs.50/- At Kyllon-Mathei

2. Western Hills Weigh Bridge (On Challan-Rs.30/- – Rs.250/- Actual charge is more at Nongdaju)

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 – Rs.1000/- Athiabari (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 – Rs.400/- O.C.Hahim P.S. (No slip/Challan)

12. R.H. Weigh Bridge at Hahim – Rs.500/-

13. Automobile Smoke Emission Testing (not Station – Rs.250/- near Hahim Bazar 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/-

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 sto

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2009 Supreme(SC) 1225

IMPORTANT POINT 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 be invalid.

Cases Referred (8)

IMPORTANT POINT
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 be invalid.