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IN THE HIGH COURT OF ALLAHABAD
SUNITA AGARWAL, DEEPAK VERMA, JJ.
Search Operator Association Through Its President Rajesh Rupani and Others - Appellant
Versus
The State of U.P. Through Principal Secretary Transport and Others - Respondent
WRIT - A No. 4855 of 2020
Decided On : 23-06-2021
Motor Vehicles Act, 1988 – Sections 67,86,113,114, 177, 178, 179, 180, 181, 182 (1), (2) ,183, 184, 186, 189, 190(2), 191, 194, 196, 198,200 ,202 - U.P. Motor Vehicle Rules, 1998 – Rules 181,181(1),181(5),181(6) – Quashing of Order – E-challan of Vehicles - Limits of weight and limitations on use - Composition of certain offences - Sought restraining the authorities from issuing e-challan of the vehicles owned by the petitioners in the light of the impugned office order - Owners of Public Service Vehicles (Trucks) and submit that they have been operating their vehicles for carrying goods from one destination to another for a long time - challenge in the writ petition is to the Office Order issued by the Transport Commissioner, respondent no. 2. Further prayer in the writ petition is to quash all consequential actions/orders passed by respondent nos. 3 to 10, who are the Regional Transport Authorities at the district level, in compliance of the impugned Office order.
Finding of the court: Section 114 read with Section 194 of the Act clearly provides that if on weighment the vehicle is found to contravene in any respect the provisions of section 113 regarding weight, by an order in writing, the officer of the Motor Vehicles Department shall direct the driver to off-load the excess weight at his own risk and will not allow him to remove the vehicle from that place until the laden weight has been reduced and that the liability to pay charges of offloading of excess weight has to be paid by the driver or the person incharge of the vehicle. The inaction of the Regional Transport Authorities to ensure compliance of Section 114 (1) of the Act read with Section 194(1) is, thus, writ large on the face of the record.It seems that after payment of the overweight charge of Rs. 150/-at the toll plaza , the overweight vehicles were allowed to be plied on the public roads. The e-challans for the statement of overloaded vehicle weighed at various toll plazas in the month of January, 2020 were issued in June, 2020 - the weigh-in-motion machines installed at the toll plazas being accredited by the competent authority i.e. the Controller, Weights and Measures and the Metrology Department, it cannot be said that they are not certified weighing devices within the meaning of Rule 181 of the Rules, 1998.The records indicate that the statement of “allowed weight”, “vehicle weight” and “overweight” had been given to the driver of the vehicle with the relevant details indicating the date and time of journey at the toll plaza itself. It, therefore, cannot be said that the driver or the person incharge of the vehicle had not been given statement in writing of the weight of the vehicle as is required under sub-rule (5) of Rule 181.
Result: Writ petition is dismissed.
JUDGMENT :
1. Heard Sri Hanuman Prasad Dube assisted by Sri Vipul Dube learned counsels for the petitioners and Sri B.P. Singh Kachhawaha learned Standing Counsel for the State respondents.
2. The petitioners (14 in number) claim to be the owners of Public Service Vehicles (Trucks) and submit that they have been operating their vehicles for carrying goods from one destination to another for a long time.
3. The challenge in the writ petition is to the Office Order No. 677 dated 22.5.2020 issued by the Transport Commissioner, U.P., Lucknow namely respondent no. 2. Further prayer in the writ petition is to quash all consequential actions/orders passed by respondent nos. 3 to 10, who are the Regional Transport Authorities at the district level, in compliance of the impugned Office order dated 22.5.2020. A writ of mandamus has also been sought restraining the authorities from issuing e-challan of the vehicles owned by the petitioners in the light of the impugned office order.
4. The submission of the learned counsel for the petitioners is that the e-challans had been issued by respondent nos. 3 to 10 in the month of June, 2020 on the premise that the overloaded vehicles were plied on the public roads by the petitioners on different dates in the month of January, 2020. The basis of the said allegation is the data of weight/overweight provided by the toll plazas which had been established under the National Highways Authority Act, 1956.
The submission is that the statutory provisions regulating operations of the public vehicles namely U.P. Motor Vehicle Rules, 1998 have been framed in exercise of powers under the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act” and “the Rules”). It is contended that the statutory enactments namely the Act and the Rules grant power on the Authority and prescribe procedure in the matter of regulation of overload vehicles on public roads which has to be strictly adhered to.
5. Relevant Sections 113 and 114 of the Act, 1988 and the Rule 181 of the Rules, 1998 have been placed before the Court to submit that under the Act, the owner of the public service vehicle has to maintain the gross vehicle weight as specified in the registration certificate. In the event, the gross weight of the public service vehicle exceeds the weight specified in the certificate of registration of the vehicle, the officer of the Motor Vehicle Department is empowered to act in accordance with Section 114 of the Act, i.e. to place the vehicle for weighment on an the approved weighing scale and in case the overloading is found, the driver, the person incharge of the vehicle or the owner has to off-load the excess weight at his own risk and only then he will be allowed to further operate the vehicle. The aforesaid officer is also empowered to impose penalty in respect of excess weight found in the vehicle, for violation of the Rules.
It is contended that Rule 181 of the Rules provides procedure for weighment of the public service vehicle and also entitles the owner of the vehicle to dispute the accuracy of weighing device and thus the accuracy of weight of the vehicle determined by such device. What would be the weighing device, has been prescribed in sub-rule (1) of the Rule 181 and it does not include the weighing machines installed in toll plazas established under the National Highways Authority Act. The Transport Commissioner, U.P., Lucknow is working as the State Head of the Transport Department but he has no legislative power to substitute the rules, inasmuch as, any amendment in the rules can only be made in accordance with the provisions of the Motor Vehicles Act by the State Government. No such amendment has been made and as such it is not permitted for the Transport Commissioner, U.P., Lucknow (respondent no. 2) to deviate from the procedure prescribed in the rules.
6. It is vehemently argued that if a particular procedure has been prescribed under the law to do a thing in a particular manner, they shall be done in th
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