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Gujarat High Court
Judgename :K.S.JHAVERI
MONMOHJAR LAL ANJANA - Appellant
Versus
STATE OF GUJARAT - Respondent
S.C.A.1290 of 2003
Decided On : 10/25/2004
The allegation is that the vehicles are carrying goods more than the gross carrying capacity assigned by the manufacturer. It is not the case of the respondents that the vehicles are carrying goods more than the gross carrying capacity mentioned in the certificate of registration. I am, therefore, of the opinion that once the competent authority under the Act has certified the gross carrying capacity in the certificates, the owners of the vehicles are entitled to carry such weights and the respondents will be justified only when the vehicles are carrying more weights than the gross carrying capacity mentioned in the certificate of registration. Such certificates are being issued by the competent authority after following the procedure and after satisfying the weight carrying capacity of the vehicle. Therefore, if there is any discrepancy in the contents of the certificate of registration, as per Section 55 of the Act, the registering authority is authorized to cancel the certificate of registration after following the procedure i.e. after issuing a notice and after giving the owner an opportunity to make such representation as he may wish to make. Admittedly no such procedure is followed in the present case and therefore, I am of the clear opinion that the respondents cannot detain the vehicles of the petitioners or impose punishment or fine on the basis that the vehicles are carrying goods more than the gross carrying capacity assigned by the manufacturer or by the Circular of the State Government. [Para 11.2]
As regards the contention that the Circular dated 9th August, 2002 is against the provisions of the Act and the Circulars issued by the Central Government, the same is required to be considered in view of the provisions stated hereinabove. By the said Circular it is directed not to assign more gross vehicle weight than the gross carrying capacity of the tractor (horse or price mover) mentioned in the said Circular. It is further directed that if any semi-articulated vehicle or truck-trailer combination is found plying on road carrying goods with gross vehicle weight more than the gross carrying capacity assigned by the manufacturer then the difference thereof should be treated as overloading and compounding fee should be recovered. [Para 11.6]
The prayer for quashing the penalty and collection of fine, it is required to be noted that the authority has compounded the offence under Section 200 of the Act and collected the fine. Since the offence has been compounded and the concerned vehicle was discharged, it would not be proper for this Court to interfere with the same under Article 226 of the Constitution of India, especially when the parties have accepted their alleged guilt. It may be that the concerned driver or representative of the vehicle must have accepted the guilt in pursuance of his business decision. In view of plea of guilty by the driver or representative of the petitioner at the relevant time, and in view of Sub-section (2) of Section 200 of the Act that no further proceedings were taken against the driver or the representative of the vehicle in respect of such offence, Court does not find any merit in the prayer made by the petitioners. Therefore, the prayers made in these petitions with regard to quashing the imposition of penalty and collection of fine by the concerned authority cannot be accepted. [Para 11.11]
The petitions are partly allowed. The Circular dated 9th August 2002 is quashed and set aside. It is declared that if the vehicles are carrying the gross laden weight as per the certificate of registration, the respondent shall not take any penal action in respect of such vehicles. However, as stated hereinabove, the prayer regarding refund of the penalty or fine already paid is not granted. It is clarified that if the certificate of registration is not issued in accordance with the provisions of the Act, it will be open for the respondents to take appropriate action after following the proper procedure as contemplated under the Act.
Cases Referred :
N. Venkateswara Rao vs. S.T.A., 1997 (2) SCC 320 = 1997 (1) SCALE 176 = 1997 (5) Supreme 585 = 1997 (1) CLT (51) (SC);; State of Andhra Pradesh & Ors. vs. B. Noorulla Khan & Anr., AIR 2004 SC 2413 = AIR 2004 SCW 2901 = 2004 (6) SCC 194 = JT 2004 (5) SC 195;; Godawat Pan Masala Products I.P. Ltd. & Ors. vs. Union of India & Ors., AIR 2004 SCW 4483 = 2004 (7) SCC 68 = JT 2004 (6) SC 179.
( 1 ) LEAVE to delete respondent no. 3 in SCA nos. 13642/04, 13645/04, 13646/04, 13647/04, 13649/04, 13650/04 and 13651/04. 1. 1 in all the above petitions a common question of law is involved and therefore they are heard together and disposed of by this common judgement.
( 2 ) THE petitioners in the above petitions are owners of different motor vehicles registered under different authorities under the Motor Vehicles Act, 1988. In these petitions the petitioners have challenged the notification issued by the Joint Director of Transport, gujarat, Ahmedabad, dated 9th August 2002 and the consequential actions on the part of the respondent authorities i. e. imposition of fine on the ground of excess load and detention of vehicles.
( 3 ) THE grievance of the petitioners can be summarised as under:3. 1 after purchase of the vehicles in question the petitioners introduce certain modifications and changes under the supervision of experts as permissible under the motor Vehicles Act, 1988 (hereinafter referred to as the act) and the Motor Vehicles Rules, 1989 (hereinafter referred to as the Rules ). Addition of axle and more wheels would increase the load carrying capacity of the vehicle and the authority under the Motor Vehicles Act is authorised to certify more weight carrying capacity on account of such adaption and modification in the motor vehicles. 3. 2 the vehicles of the petitioners were inspected by the Registering Authority who completed all the legal formalities and ultimately issued Certificates of registration in respect of the vehicles in question. The unladen weight i. e. gross vehicle weight as well as the laden weight i. e. gross carrying capacity are stated in the Certificate of Registration. The laden weight is mentioned after considering the modifications and changes made in the vehicles and not as per the gross carrying capacity assigned by the manufacturer. According to the petitioners, this is permissible under the Act and the rules. Therefore, the petitioners are entitled to carry load in their respective vehicles as per the laden weight mentioned in the Certificates of Registration issued by the competent authority. 3. 3 the petitioners are engaged in transporting goods throughout India including Gujarat and therefore the vehicles are required to pass through the RTO Checkposts. The grievance of the petitioners is that though the laden weight of the vehicle is less than the certified limits under the Registration Certificate, they are booked for carrying excess weight and heavy penalty is being imposed upon the petitioners for the alleged excess weight. 3. 4 the aforesaid action is being taken by the respondent authorities on the basis of Circular dated 9th august 2002 issued by the Joint Director of Transport, gujarat State, Ahmedabad. The relevant part of Circular dated 9. 8. 2002 reads as under: "it is, therefore, directed not to assign more gross vehicle weight than the gross carrying capacity of this tractor (horse or price mover ). If any semi-articulated vehicle or truck-trailer combination is found plying on road carrying goods with gross vehicle weight more than the gross carrying capacity assigned by the manufacturer then the difference thereof should be treated as overloading and compounding fee should be recovered. "3. 5 the petitioners have therefore prayed for quashing and setting aside the Circular dated 9th August 2002, to direct the respondents to recognize the gross laden weight of the petitioners transport vehicles as certified by the Certificates of Registration and to restrain the respondents from initiating any penal action in respect of the concerned vehicles on the basis of carrying goods more than the gross carrying capacity assigned by the manufacturer.
( 4 ) THUS, the crux of the matter is whether, the respondent authorities are justified in intercepting the vehicles for allegedly carrying excess weight and imposing heavy penalty upon the petitioners on the ground of
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