Allahabad High Court
Search Operator Association Through ... vs The State Of U.P. Through Principal ... on 23 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 1296
Bench: Sunita Agarwal, Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
AFR
Case :- WRIT - A No. - 4855 of 2020
Petitioner :- Search Operator Association Through Its President Rajesh Rupani And 14 Others
Respondent :- The State Of U.P. Through Principal Secretary Transport And 9 Others
Counsel for Petitioner :- Hanuman Prasad Dube,Vipul Dube
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Deepak Verma,J.
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 that very manner or not at all. The office order dated 22.5.2020 issued by the Transport Commissioner is, thus, in contravention of the statutory rules and cannot be allowed to be sustained as it amounts to overreach the provisions of the Act and the Rules.
It is further contended that an Enforcement Department has been created under the Transport Department in the State of U.P. and the officers of the enforcement squad constituted at the district level has been assigned task of regulating the vehicles on the public roads. Under the scheme of the Act and the Rules framed thereunder, they are empowered to check and challan the vehicles and even seize the vehicle, in case of contravention of the mandatory provisions of the statute. The action of respondents/district authorities in issuing e-challens on the basis of the data provided by the toll plaza is nothing but usurption of the power of the Enforcement squad to check, challan and seize the vehicle whenever such an action is required. The e-challan issued by the Regional Transport Authorities imposing penalty for the alleged offence of plying overload vehicle was, thus, without jurisdiction.
Even otherwise, the Transport Commissioner issued orders in the month of May, 2020 and e-challans had been issued under the Motor Vehicles Act for alleged offence committed in the month of January, 2020. No retrospective effect can be given to the procedure prescribed by the Transport Commissioner, even if, the same is found in accordance with law.
Even otherwise, the weighing machines installed at the toll plazas cannot be said to be a weighing device within the meaning of Rule181 framed under the Act. The reading of the said device cannot be used to penalize the petitioners. Consequentially all e-challans issued by the Regional Transport Authorities against the petitioners are liable to be quashed and further direction is to be issued to restrain the respondents from taking such an action in future.
7. The record indicates that a counter affidavit has been filed on behalf of respondent nos. 2, 3 and 5 under the directions issued by this Court in the order dated 4.11.2020 in the present petition. This Court had required the learned Standing Counsel to file counter affidavit either of the Transport Commissioner, U.P., Lucknow or any responsible officer nominated by him to indicate as to whether the order dated 22nd May, 2020 (Annexure '3' to the writ petition) circulated to the Regional Transport Officers, Mirzapur/Saharanpur takes into account the weighing procedure prescribed by the statutory provisions and the Rules and whether the toll plazas that are required to obtain and furnish the data had been accredited accordingly. It was also to be indicated as to whether such accredition was provided and obtained by the toll plazas for which data was sought by the impugned order dated 22nd May, 2020.
The answer to the said queries and para-wise reply to the writ petition in the counter affidavit of respondent nos. 2, 3 and 5 have been placed before the Court by the learned Standing Counsel.
It is submitted that the weighing machines installed in the toll plazas are accredited by the Metrology Department and the Controller, Weights & Measures which are the competent Authorities to qualify, verify and validate the test data. It is contended that the Controller, Weights & Measures is the competent authority to grant licence to manufacturers/dealers in weights and measures after the accredition was provided. After installation of the weighing machines, their performance audit is being conducted every three months by the competent authority.
8. Learned standing counsel submits that with the increasing problems of overloading of vehicles and the resultant road accidents, in order to effectively control the situation, a directive dated 30.10.2015 was issued by the Transport Commissioner, U.P., Lucknow. A copy of the said order has been appended as Annexure C.A. '3' to the counter affidavit.
It was provided therein that the concerned Assistant Regional Transport Officer (Enforcement) will get the list of overloaded vehicles passed through weigh-in-motion machines installed in the toll plazas of the National Highways Authority of India (NHAI) on daily basis through e-mail and necessary action shall be taken for issuance of challan as per the provisions of the Motor Vehicles Act, 1988 and the Rules, in case of offending overloaded vehicles. It was also provided that as evidence, C.C.T.V. footage from the toll plaza shall be collected on weekly basis. This direction was to be implemented immediately.
9. We may note that there is no challenge to the aforesaid communication by the petitioners though the same has been brought on record along with the counter affidavit.
A further direction was issued on 20th January, 2016 by the Transport Commissioner, U.P., to the Project Director, National Highways Authority of India and the Regional Officers with reference to the letter dated 30th October, 2015. It was requested therein that the list of overload vehicles passed through the toll plaza wherein weigh-in-motion machines have been installed shall be provided to the Regional Transport Officer on regular basis so that effective action under the Motor Vehicles Act can be taken against the offenders.
The impugned office order dated 22.5.2020 was issued in the light of the above noted previous orders asking the Regional Transport Officers to provide information in the prescribed proforma on the basis of the daily data provided in the excel sheets of the toll plaza in the area of their jurisdiction with regard to the overload vehicles for the period from 1.1.2020 till 15.3.2020.
10. We may further note here that a national lock-down was declared from 26.3.2020 till the end of April, 2020 in view of the progression of Covid-19 infection.
Further a letter dated 12.6.2020 was issued from the office of the Transport Commissioner, U.P. addressed to the Chief Executive Officer, U.P. Expressway Industrial Development Authority (UPEIDA), Yamuna Expressway Industrial Development Authority (YEIDA), U.P State Highways Authority (UPSHA) and the Regional Officers, East and West, National Highways Authority of India apprising them that arrangement has to be made to integrate e-challan with the overloading data received from the weighing devices installed at the toll plazas. It was directed that in view of the decision taken in the meeting held on 19.5.2020 under the Chairmanship of the Chief Minister, Uttar Pradesh, action had to be taken for integrating the above data and to provide list of overload vehicles at the official e-mail of the Regional Transport Officers (Enforcement) so that effective steps may be taken for compliance of the order of the National Green Tribunal, New Delhi.
11. Alongwith the counter affidavit, a judgment and order dated 9th November, 2005 passed by the Apex Court in Paramjit Bhasin and others vs. Union of India and others1 has been appended. It was brought to the notice of the Court that the Apex Court had issued a slew of directions therein to the State Governments to take effective steps to regulate the plying of overload vehicles in their State.
The rejoinder and the supplementary rejoinder affidavits have been filed by the petitioners to contradict the averments made in the counter affidavit. The averments in the writ petition are reiterated therein to assert that the right of the petitioner to raise objections with regard to the accuracy of the weighing machines provided in the Rules cannot be taken away by the circulars issued by the Transport Commissioner allegedly on the basis of some directions issued by the Chief Minister of the State in a supervisory meeting. No notification of the State has been brought on record either to supplement the rules nor any amendment in the rules has been made or even proposed.
A copy of the statement of a toll plaza named as Daffi Toll Plaza, (Annexure S.R.A.-1 to the supplementary rejoinder affidavit) has been placed to assert that even information being supplied by the toll plazas are incomplete and incorrect and, therefore, no further action can be taken on the basis of such incomplete and incorrect data.
12. Having heard learned counsel for the parties and perused the record, it is evident that the controversy revolves around the mechanism provided in the U.P. Motor Vehicle Rules, 1998 which have been framed under the Motor Vehicles Act, 1988. Relevant Sections 113, 114, 194, 200 of the Act, 1988 and Rule 181 of the Rules, 1998 relied by the learned counsel for the petitioners are extracted hereunder:
"113. Limits of weight and limitations on use.-(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-
(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 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.
Rule 181 of the Rules:- Weighing Device: Installation and use of- (1) A weighing device for the purpose of Section 144 may be-
(i) weigh-bridge installed and maintained at any place by or under the orders of the State Government or a local authority; or
(ii) weigh-bridge installed and maintained by any person and certified by the registering authority, to be a weighing device for the purpose of the Act and these rules; or
(iii) a portable wheel-weigher of any kind approved by the State Government.
(2) The driver of any goods carriage shall, upon demand by any officer of the Transport Department mentioned in sub-rule (1) of Rule 227 or a registering authority, so drive and manipulate the vehicle as to place it or any wheel or wheels thereof, as the case may be, upon any weigh-bridge or whee-weighers in such a manner that the weight of the vehicle or the weight transmitted by any wheel or wheels may be exhibited by the weigh-bridge or wheel weigher.
(3) If the driver of a motor vehicle fails within a reasonable time to comply with requisition under sub-rule (2) a person authorised under Section 114 may cause any person, being the holder of driving licence authorising him to drive such vehicles to drive and manipulate the vehicle.
(4) When the weight of axle-weight of a motor vehicle is determined by separate and independent determined of the weight transmitted by any wheel or wheels of the vehicle the axle-weight and the laden weight of the vehicle shall be deemd to be the sum of the weights transmitted by the wheels of any axle or by all the wheels of the vehicle, as the case may be.
(5) Upon weighment of a vehicle in accordance with the Section 114 and this rule, the person who has required the weighment or the person in charge of the weighing device shall deliver to the driver or other person incharge of the vehicle a statement in writing of the weight of the vehicle and of any axle, the weight of which is separately determined.
(6) The driver or the person in charge of, or owner of a vehicle which has been so weighed may challenge the accuracy of the weighing device, by a statement in writing delivered-
(i) within one hour of the receipt of the statement referred to in sub-rule (5) to the person by whom the statement was delivered to him and followed by a deposit of rupees twenty in the office of the Regional Transport Officer or Assistant Regional Transport Officer, as the case may, within three days of the date of weighment, failing which the statement challenging the accuracy of the machine shall not be maintainable; or
(ii) within fourteen days of the service on him of notice of proceedings against him under Section 86 or Section 113 to the authority or court issuing such notice.
(7) Upon receipt of statement challenging the accuracy of a weighing device under sub-rule (6), the person or authority or the court, by when the statement is received after ensuring that the deposit of rupees twenty has been made, shall apply to the District Magistrate for the weighing device to be tested by such person as the District Magistrate may appointment and the certificate of such person, as may be so appointed, regarding the accuracy of the weighing device shall be final.
(8) If, upon the testing of a weighing device as aforesaid the weighing device is certified to be inaccurate to an extent greater than any weight by which the gross vehicle weight or unladen weight or any axle weight of the vehicle is shown in the statement referred to in sub-rule (5) to have exceeded the gross vehicle-weight or the registered unladen weight or the registered axle weight, as the case may be, no further proceedings shall be taken in respect of any gross vehicle weight or unladen weight or axle weight and if the device is certified to be inaccurate to the said extent in respect of every such gross vehicle weight unladen weight, axle weight actually weighed, the deposit prescribed in sub-rule (6) shall be refunded.
(9) No person shall, by reason of having challenged the accuracy of any weighing device under sub-rule (6), be entitled to refuse to comely with any order in weighing under Section 113."
A reading of Section 113 of the Act shows that it is within the jurisdiction of the State Government to regulate plying of the transport vehicles in any area or route within their jurisdiction. Sub-section (3) of Section 113 clearly prohibits plying of any motor vehicle or trailer in any public place which is overweight as per the conditions mentioned in clause (a) (b) of the said sub-section.
Section 114 empowers an officer of the Motor Vehicles Department authorized by the State Government to intercept a goods vehicle or trailer, with respect to which he has reason to believe that it is being used in contravention of Section 113. It can require the driver to convey the vehicle to the weighing devices and on such weighment, if the vehicle is found to contravene the provisions of Section 113 regarding weight, he may direct the driver to off-load the excess weight at his own risk and not to remove the vehicle or trailer from that place and will not allow it to ply unless the laden weight has been reduced so as to comply with Section 113. The officers so authorized while making the said order in writing shall endorse the relevant details of the overloading on the goods carriage permit and intimate the said fact to the concerned authority. Section 194 provides penalty for contravention of the provisions of Sections 113 or 114 of the Act. Any driver of such vehicle if refuses to stop on interception by the officer concerned, he shall be punishable with additional penalty upto Rs. 3000/-. The offence committed under Section 194 (1) and (2) are compoundable under Section 200 of the Act.
While interpreting the provisions of Section 194(1) and Section 200 of the Act, penalty and compounding of the offence, in the case of Paramjit Bhasin1 , the Apex Court has noted that the constitutional validity of the provision has been upheld in P. Ratnakar Rao vs. Government of A.P.2. However, on the question of challenge therein to the notifications which have been issued by the State Government under the provisions of Section 200 of the Motor Vehicles Act, it was held that the said provisions does not authorize the State Government to permit the excess weight to be carried on the road when on inspection it was noticed that the load of carriage was beyond the permissible limit. It was held that the intention of unloading the excess weight is apparent from a bare reading of Section 194(1), inasmuch as, the liability to pay charge for off-loading excess weight is fixed on the person who drives the vehicle or causes a motor vehicle to be driven in contravention of the provisions of Sections 113 and 114.
13. It was noted by the Apex Court that certain 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 had requested the respective States to discontinue such cards/passes. The counsels appearing for the State therein submitted that though the system of issuing cards/passes had been discontinued but the off-loading excess weight from large number of vehicles created traffic problems and several other practical problems which according to them needed to be addressed.
In the light of the aforesaid, the Apex Court had issued the following directions:-
"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 Apex Court has thus held that permitting the overloaded vehicles to ply on the public road after composition of the offence punishable under Section 194 would amount to fresh commission of offence in terms of Section 113(3) of the Act. The State ,thus, cannot permit carriage of the excess weight to ply on the public road after compounding.,
14. In the light of the above in the facts of the present case, it may be noted that vide circular dated 30th October, 2015, a mechanism had been evolved to curb the menace of overloaded vehicles plying on the public roads which have resulted in significant damage to the road surface, cause pollution through auto-emissions and are safety hazards not only for themselves but also for other road users.
15. Taking note of the increase in road accidents due to overloaded vehicles on the National Highways and the State Highways, it was resolved in the meeting held on 28.10.2015 under the Chairmanship of the Minister of Public Works Department that effective steps have to be taken for regulating the problem of overloading in the State of U.P. The direction was then issued by the Transport Commissioner, U.P., Lucknow in view of the said resolution by means of the circular dated 30th October, 2015 to all Regional Transport Authorities (Enforcement) authorising them to get the data from the toll plazas regarding overweight vehicles. For compliance of the above directions, communications were issued from time to time and the procedure of issuance of e-challan on the basis of the data collected from the toll plazas had been set in operation since the year 2015.
As there is no challenge to the circular dated 30.10.2015 (which has been filed alongwith the counter affidavit), the plea of the petitioners that retrospective effect has been given to the office order dated 22.5.2020 by the U.P. Transport Commissioner is liable to be rejected.
16. As regards, the jurisdiction of the Regional Transport Authorities (Enforcement) to issue e-challan on the basis of the data of overloaded vehicles provided by the toll plazas, we may note that the Regional Transport Officer (Enforcement) has been empowered to intercept the plying of overloaded vehicles in contravention of sub-section (3). The weighing devices and the installation or use of such devices for the purpose of Section 113 has been described in Rule 181 of clause (ii). Three kind of devices have been recognized in sub-rule (1) of Rule 181 which include a portable wheel-weigher of any kind approved by the State Government. The power of the State Government to control road transport has been given in Section 67 of the Act, wherein it can issue directions, from time to time, both to the State Transport Authority and the Regional Transport Authority by issuing notification in the Official Gazette. Under Section 68 of the Act, a State Transport Authority is constituted by the State Government to exercise and discharge the powers and functions specified in sub-section (3) of the said section. The power of the State Transport Authority described in sub-section (3) of Section 68 reads as under:-
"3. The State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the following powers and functions, namely:--
(a) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities, if any, of the State;
(b) to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions;
(c) to settle all disputes and decide all matters on which differences of opinion arise between Regional Transport Authorities; and (ca) Government to formulate routes for plying stage carriages;]
(d) to discharge such other functions as may be prescribed"
It has been brought on record that the weigh-in-motion machines installed at the toll plazas established under the National Highways Act are certified by the Controller, Weights and Measures Department which is the competent authority to issue a license in such matters. The stand of the respondent no. 2 (the Transport Commissioner, U.P., Lucknow) that the weighing machines installed in the toll plazas are covered by Rule 181 of U.P. Motor Vehicle Rules, 1998 is found justifiable from the reading of the Rule 181 of the Rules.
17. The challenge to the jurisdiction of the Regional Transport Authorities to issue e-challan on the basis of the data of overload vehicles passed through weigh-in-motion machines installed at the toll plazas of National Highways Authority of India is, thus, found baseless. The Transport Commissioner, U.P., Lucknow being the State Transport Authority is empowered to give effect to the directions issued by the State Government under Section 67 of the Act and to exercise and discharge such powers and functions which are necessary to coordinate and regulate the activities and policies of the Regional Transport Authorities.
18. In view of the above, 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.
19. Moreover, there is no challenge to the accuracy of the weighing devices in accordance with the provisions of sub-rule (6) of Rule 181 which gives right to the driver of a vehicle to make a statement in writing to challenge the accuracy of the weighing device; (i) Within one hour of the receipt of the statement referred to in sub-rule (5) of the rule vehicle being overweight, or (ii) Within fifteen days of the service of notice of the proceeding (of challan) against him under Section 86 or Section 113.
The challenge to the accuracy of the weight measured by the weigh-in-motion machines installed at the toll plazas indicated in the e-challans issued by the Regional Transport Authorities ,therefore, cannot be sustained.
In view of the above discussion, the prayers in the writ petition are found misconceived.
20. However, before parting with the judgment, it is pertinent to note that there is nothing on record which would indicate as to whether any action had been taken by the Regional Transport Authorities (Enforcement section of the Transport Department) to intercept the vehicles which were found overloaded at the toll plazas. 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 penalty or compounding fee for the offence committed under Section 194 of the Act had been imposed by the e-challan while initiating proceedings under the Motor Vehicles Act.
It is, thus, clear that the offence for which the compounding fee was imposed had been allowed to be continued beyond the toll plaza. No notification of the State Government to address the said issue has been brought before the Court.
The said inaction of the State Government is nothing but violations of the categorical directions issued by the Apex Court in the case of Paramjit Bhasin (supra).
21. It is to be noted that it is the bounden duty of the officers of the Motor Vehicles Department authorized by the State Government to ensure the compliance of the mandatory provisions of the Act. 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 off-loading 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.
22. The State Government is, therefore, directed to issue necessary notification to remove this discrepancy so as to comply with the directions of the Apex Court in Paramjit Bhasin (supra) in confirmity with the Motor Vehicles Act and the rules framed thereunder.
23. The answering respondent namely the State Transport Commissioner, U.P., Lucknow, is, therefore, directed to bring this order to the knowledge of the State Government.
24. A copy of this order shall also be sent to the Principal Secretary, Transport Office, Government of U.P., Lucknow through the Registrar General, High Court, Allahabad for intimation.
25. The compliance of this order shall be intimated by the Principal Secretary concerned to the Registrar General, High Court, Allahabad within a period of one month of from the date of the communication for record of this Court.
With the above observations and directions, the writ petition is dismissed.
(Deepak Verma,J.) (Mrs. Sunita Agarwal,J.)
Order Date :- 23.6.2021
Brijesh