Punjab-Haryana High Court
Kishore Kumar vs State Of Punjab And Others on 30 November, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No. 8623 of 2010(O&M)
Date of Decision: November 30, 2011
Kishore Kumar
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Vikas, Advocate,
for the petitioner.
Mr. Sandeep Moudgil, DAG, Punjab.
Mr. Anil Rathee, Addl. AG, Haryana.
Mr. Harkesh Manuja, Advocate,
for Mr. Sanjay Kaushal, Sr. Standing Counsel,
for U.T. Chandigarh.
1. To be referred to the Reporters or not?
2. Whether the judgment should be
reported in the Digest?
M.M. KUMAR, J.
1. The instant petition has been filed by an unfortunate father, who lost his son Karan Kumar, in a road accident on 12.3.2010, while coming back from Patiala. The accident is stated to have taken place due to rash and negligent driving of truck bearing Registration No. PB-10-Q-9997, which was overloaded with paddy husk. The photographs of the truck with paddy husk have been placed on record (P-1 to P-4). According to the assertion made by the petitioner the truck was being plied without complying with the provisions of the Motor Vehicles Act, 1988 (for brevity, 'the CWP No. 8623 of 2010(O&M) 2 MV Act'). Even the co-passenger, who was injured, later succumbed to the injuries at the Rajindera Hospital, Patiala.
2. The petitioner has also pointed out that the MV Act casts a duty on the State functionaries to ensure the implementation of the provisions of the Act whereas it is an open secret in the State of Punjab that the Trucks, Tractor and Trolleys are being plied by their respective owners in utter disregard of the law. The paddy husk and shaff is loaded in the trucks in such a way that they start protruding from all sides blocking whole area of the road without leaving any room for other vehicles or traffic either to pass through or overtake. It also obstructs the view of the road, blinding the driver of the vehicles from witnessing as to the nature of the traffic flowing from opposite side. It has been further asserted that many a times these overloaded trucks got overturned and as such many lives have already been lost. The respondent State of Punjab has not taken any concrete steps to prevent such vehicles to ply on the roads, clearly violating the obligation cast on them. It has also been pointed out that the gross weight of the vehicle along with the material is prescribed by the provisions of the MV Act. The petitioner has also placed reliance on the provisions of Sections 2(28), 39 and 207 of the MV Act.
3. In the reply filed by the State Transport Commissioner, Punjab, on behalf of respondent Nos. 1 and 2, it has been stated that directions have already been issued to all the enforcement officers of the State Transport Department for strict compliance of the directions issued by Hon'ble the Supreme Court in the case of Parmajit Bhasin and others v.
v. Union of India and others, others, (2005) 12 SCC 642. A copy of the circular dated 16.1.2006, issued by the CWP No. 8623 of 2010(O&M) 3 State Transport Commissioner, Punjab, has been placed on record (R-1). According to the aforesaid circular/letter all the enforcement officers are required compliance of the directions issued by Hon'ble the Supreme Court. Similar directions have been issued on 9.2.2006 (R-2/T) followed by public notice dated 26.3.2006 (R-3/T). It has been pointed out that the officers have been asked that during the course of checking if any vehicle is found overloaded then strict action should be taken against such vehicle as per the provisions of the MV Act and no such vehicle should be permitted to ply on the road if it is overloaded. There are further directions issued to take action against illegal tractor trolleys and overloaded vehicles which resulted in large number of challans. According to the figure projected in the written statement, 1190 tractor trolleys were challaned between 1.4.2010 to 30.11.2010 and 32 Peter Rehra/Gharukas (as sort of machine driven locally self-made cart/vehicle) were impounded by the enforcement officers of the department. In para 3 of the reply on merit it has also been pointed out that during the period from 1.4.2010 to 30.11.2010, 4034 overloaded trucks were also challaned by the enforcement officers of the Transport Department.
4. A reference has also been made to the directions issued by the Punjab and Haryana High Court on 3.5.1995 and 9.8.1995 in CWP No. 4060 of 1994 (Harjit Singh and others v. State of Punjab and others) to the effect that no Peter Rehra/Marutas (self assembled vehicles) should be permitted to ply in the State of Punjab for any commercial or other purposes on the roads and such vehicles are to be impounded immediately. According to the instructions dated 31.5.1995 (R-4) strict vigilance is required to be maintained during CWP No. 8623 of 2010(O&M) 4 the course of traffic checking and stringent action is to be taken against the offenders/violators of law.
5. In the written statement filed by the Additional Transport Commissioner, Haryana, on behalf of respondent No. 3, it has been stated that the directions issued by Hon'ble the Supreme Court in Paramjit Paramjit Bhasin's case (supra) for checking menace of overloading, have been complied with. The State Transport Commissioner is putting up its sincere efforts by writing to the concerned quarter for implementation of the directions issued in Paramjit Bhasin's case (supra) as well as enforcing the provisions of Sections 113 and 114 of the MV Act. According to para 3 of the written statement, the Transport Commissioner vide Memo. No. 8695-8716, dated 8.11.2010, has requested to all the Deputy Commissioners, Superintendents of Police and Secretaries, Regional Transport Authority in the State of Haryana, for strict compliance of the order passed by Hon'ble the Supreme Court and also for registering FIR against such violators under Section 3(2)(e) of the Prevention of Damage of Public Property Act, 1984 (R-1). The general public has also been informed through a public notice in all the leading newspapers such as The Hindustan Times (all editions), The Indian Express (all editions), The Tribune (English), Punjab Kesri (Hindi), Dainik Bhaskar (Hindi) and Dainik Jagran (Hindi), not to ply overloaded vehicles on the roads otherwise the owners, permit holders, drivers, cleaners and other persons connected with loading and operating of such vehicles would be liable for the offence under Section 3(2)(e) of the Prevention of Damage to Public Property Act, 1984, for which rigorous imprisonment for a minimum term of six months, which may extend to five years and fine, has been CWP No. 8623 of 2010(O&M) 5 prescribed (R-2). In regard communications dated 9.11.2010 sent by the Financial Commissioner and Principal Secretary to Government, Haryana, Transport Department, to the respective Financial Commissioners of Home Department, PWD (B&R), Agriculture Department as well as Director General of Police, have been placed on record (R-3 to R-6).
6. In paras 8 and 9, respondent No. 3 has assured this Court that apart from Secretaries, Regional Transport Authority, the Deputy Commissioner, Additional Deputy Commissioners, Sub Divisional Magistrates, City Magistrates have also been involved in checking of vehicles in close coordination of police authorities to have the desired impact and as a result of which the menace of overloading is under complete check in the State of Haryana. The enforcement agencies of the State are regularly doing routine checking and surprise raids to keep the menace of overloading under control particularly which do not bear any registration number. The district-wise figures in that regard have been placed on record (R-8). A perusal thereof would show that from April 2009 to November 2010, the Secretaries, Regional Transport Authority in different districts in the State of Haryana have challaned total 1302 buses; 660 Maxi-cabs; only 7 three wheelers and a staggering 36543 overloaded vehicles. The said table also depicts 40498 challan made by the policy and 1701 challans of pollution. The composition fees collected is `5,33,200,070/-.
7. The replies filed by the respondents would show that tremendous efforts are being made by both the States of Punjab and Haryana to check the menace of overloading of vehicles, running of Peter Rehras and other violations by registering FIR etc. CWP No. 8623 of 2010(O&M) 6 It would be appropriate to notice the judgment of Hon'ble the Supreme Court rendered in the case of Paramjit Bhasin Bhasin (supra).
(supra) There the notifications 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 MV Act were challenged. Those notifications permitted carriage of the excess weight after compounding. Their Lordships' held that although the power of compounding vests with the State Government but it does not authorise continuation of the offence permitted to be compounded. Accordingly, the State Governments were directed to withdraw such notifications and to make necessary arrangements to ensure that the difficulties highlighted could be suitably remedied without in any way overstepping statutory prescriptions. A further direction was issued to discontinue the practice of issuance of green cards/golden passes on the basis of power of compounding by stating the object and principle for fixing the maximum gross weight. The aforesaid notifications and the green/golden cards were issued under Sections 194, 200 of the MV Act and Rule 95 of the Central Motor Vehicles Rule, 1989, which have been discussed by Hon'ble the Supreme Court in paras 5, 6 and 7 of the judgment, which reads as under:-
"5. Section 200 dose not in any way authorize the State Government to permit the excess weight to be carried when on 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 CWP No. 8623 of 2010(O&M) 7 uploading the excess weight is apparent from a bare reading of the Section 194(1). The liability to pay charge for upholding of the excess load is fixed on one who drives as 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:-
" 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 CWP No. 8623 of 2010(O&M) 8 (1), be -
(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."
6. The Government of India had also fixed GVB for different categories of vehicles. Reference may be made to notifications dated 18.10.1996 [No. SO728(E)] and 26.5.2000 [No. SO517(E)] issued by the Ministry of Surface Transport (Department of Road Transport and Highways) (Transport Wing).
7. 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 CWP No. 8623 of 2010(O&M) 9 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."
8. It is, thus, evident that the State Governments cannot issue instructions for compounding the violation caused by overloaded vehicles. Once Section 194 has put restriction on a vehicle exceeding permissible weight then to compound the same before hand has been held to be impermissible and the notifications to that effect have been withdrawn.
9. In the States of Punjab and Haryana the respondents have taken many steps for controlling the menace of overloading of vehicles. It is one thing to say that the vehicle is overloaded but it CWP No. 8623 of 2010(O&M) 10 is another thing to have the weight of the material in the vehicle within permissible limit which may occupying/blocking the whole road. Even if a vehicle is carrying the load within the permissible limits, would it be permissible for such a vehicle to block the whole road. The menace caused by perforated vehicles by stuffing the light weight materials like paddy husk and shaff etc. may fall within the parameters for weight but it may not be conducive and safe for the road users and for other vehicles plying on the road. This case has presented the pictures of such vehicles (P-1 to P-4). It appears that weight has been considered to be at the centre of consideration without any concentration on the issue of perforated stuffing on vehicles in such a manner as to block the whole road and driving the tractor trolleys or the trucks on the road in obnoxious and dangerous manner. We well that instructions by the States of Punjab and Haryana have to be issued keeping in view the aforesaid problem. Accordingly, we direct the respondent States of Punjab and Haryana and the Union Territory of Chandigarh to issue suitable instructions to all the transport authorities and enforcement officers/agencies to start challaning not only the overloaded vehicles but also all such vehicles which have stuffed the material in a perforated manner on all sides of the vehicles beyond their permissible length and width, thereby blocking/covering the road and obstructing vision of other vehicles coming from front and back sides. The needful shall be done within a period of four months from the date of receipt of a copy of this order. A compliance report in that regard be placed before this Court on or before 30.4.2012.
10. The petitioner has lost his son on account of not CWP No. 8623 of 2010(O&M) 11 effectively implementing the directions issued by Hon'ble the Supreme Court rendered in Paramjit Bhasin's case (supra) as well as of this Court rendered in the case of Harjit Singh's Singh's case (supra).
(supra) There is no claim made in the instant petition for suitable compensation, which we presume must have been claimed in a petition before the Motor Accident Claims Tribunal. However, we award `20,000/- as cost, to be paid to the petitioner by the State of Punjab-respondent No. 1 by a account payee cheque.
11. The writ petition stands disposed of in the above terms.
(M.M. KUMAR)
JUDGE
(RAJIV NARAIN RAINA)
November 30,
30, 2011 JUDGE
Pkapoor