Karnataka High Court
Kallappa M Gundur vs The State Of Karnataka on 2 September, 2014
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02ND OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITIONS NO.100486-100503 OF 2014 (GM-RES)
C/W
WRIT PETITIONS NO. 102928-102929, 104203-104204,
100360-100364, 100794, 100207-100208,
100159-100171, 108112, 107136, 106908, 107971,
104299, 107945, 107482 OF 2014,
38835 OF 2009, 63447-63458 OF 2009 AND
69015 OF 2010
WRIT PETITIONS NO.100486-100503 OF 2014
BETWEEN
1. HASSNSAB ALLABAKSH MULLANAVAR
AGE: 43 YEARS,
OCC: OWNER
R/O. SUBHAS NAGAR, GUDIHAL ROAD, OLD HUBLI
TQ: HUBLI
DIST: DHARWAD
2. SHAKEEL AHMED KERUR
AGE: 32 YEARS,
OCC: OWNER
R/O. H NO. 24, SIDDARAM NAGAR,
2ND CROSS, GOPANKOPPA
HUBLI
DIST: DHARWAD
3. RAMU DEVAKATE
AGE: 35 YEARS,
OCC: OWNER
R/O. JANGALIPETH KURBAR ONI, HUBLI
2
DIST: DHARWAD
4. RUSTUMSAB APPASAHEB TEKADI
AGE:28 YEARS,
OCC: OWNER
R/O. H NO. 35/2, SADAR SOFA, OLD HUBLI,
HUBLI DHARWAD
5. ISHAPPA TEJAPPA MOTEKAR
AGE: 52 YEARS,
OCC: OWNER
R/O. NEAR VAJRA HANUMAN NAGAR,
IBRAHIMPUR BAGALKOT ROAD,
BIJAPUR, DIST: BIJAPUR
6. GANGAVVA W/O. G HOSAMANI
AGE: 40 YEARS,
OCC: OWNER
R/O. H NO. 3, 5TH CROSS,
BANKERS COLONY, HUBLI
TQ: HUBLI
DIST: DHARWAD
7. GANGANAGOUD B HOSAMANI
AGE: 46 YEARS,
OCC: OWNER
R/O. H NO. 3, 5TH CROSS,
BANKERS COLONY, HUBLI
TQ: HUBLI
DIST: DHARWAD
8. MALLIKARJUN K ARALIMARA
AGE: 35 YEARS,
OCC: OWNER
R/O. AT POST AGADI, TQ: HUBLI
DIST: DHARWAD
9. BASHIR AHMED R PATIL
AGE: 40 YEARS,
OCC: OWNER
R/O. NEAR JOSHI HOSPITAL
IST CROSS, AYODHYA NAGAR,
HUBLI, TQ: HUBLI
2
3
DIST: DHARWAD
10. SIDDIQUE BEGUM PATIL
AGE: 35 YEARS,
OCC: OWNER
R/O. BYALI BUILDING, NEAR KALYAN MANTAP,
3RD CROSS,
AYODHYA NAGAR, HUBLI
TQ: HUBLI
DIST: DHARWAD
11. SHRIKANT NAGAPPA AIHOLE
AGE: 30 YEARS,
OCC: OWNER
R/O. KALMESHWAR NAGAR, NEAR BANNI TEMPLE,
JANGALI PET, OLD HUBLI,
TQ: HUBLI
DIST: DHARWAD
12. SUBHAS R HOSAMANI
AGE: 40 YEARS,
OCC: OWNER
R/O. SRI PADMAMADA CORPORATION BUILDING,
STALL NO. 1, P B ROAD
GARDEN PET, HUBLI
DIST: DHARWAD
13. MOHAMMED ALI ALLABAKSH MULLANAVAR
AGE: 30 YEARS,
OCC: OWNER
R/O.JODALLI, TQ: KALGHATAGI
DIST: DHARWAD
14. BASAVARAJ SANNATAMMAPPA PUJAR
AGE: 28 YEARS,
OCC: OWNER
R/O. NEKAR NAGAR, OLD HUBLI
DIST: DHARWAD
15. ASHOK NEELAPPA HITTALAMANI
AGE: 33 YEARS,
OCC: OWNER
R/O. H NO. 50, MARUTI CIRCLE
3
4
GANESH COLONY, NEKAR NAGAR,
OLD HUBLI
TQ: HUBLI, DIST: DHARWAD
16. MANJUNATH BASAVARAJ PUJAR
AGE: 34 YEARS,
OCC: OWNER
R/O. H NO. 64/A, NEAR 2ND BOREWELL,
MARUTI CIRCLE, NEKAR NAGAR,
OLD HUBLI, DIST: DHARWAD
17. MEENAKSHI MARUTI MOTEKAR
AGE: 29 YEARS,
OCC: OWNER
R/O. ANAND NAGAR, NEAR WATER TANK,
OLD HUBLI, TQ: HUBLI
DIST: DHARWAD
18. IMAM HUSSAIN KUTUBUDDIN BASAPURI
AGE: 27 YEARS,
OCC: OWNER
R/O. H NO. 07, 2ND CROSS
VEERABHADRA NAGAR, BELGAUM
... PETITIONERS
(BY SRI. F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY DEPT. TRANSPORT
M S BUILDING, DR AMBEDKAR VEEDHI,
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTAR KANNADA
KARWAR
3. THE DEPUTY COMMISSIONER
UTTAR KANNADA
KARWAR
4
5
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
KARWAR,
UTTAR KANNADA
5. THE REGIONAL TRANSPORT OFFICER
HONNAVAR, TQ:HONNAVAR
DIST: UTTAR KANNADA
6. THE REGIONAL TRANSPORT OFFICER
KARWAR , TQ: KARWAR
DIST: UTTAR KANNADA
7. THE REGIONAL TRANSPORT OFFICER
SIRSI, TQ: SIRSI
DIST: UTTAR KANNADA
... RESPONDENT(S)
(BY SRI. V.M. BANAKAR, ADDL. SPP FOR RESPONDENT STATE)
THESE WPs ARE FILED UNDER ARTICLES 226 AND 227OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD.16.06.2008 PASSED BY THE 2ND RESPONDENT/THE DISTRICT
MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B; QUASH THE
IMPUGNED ORDER DTD.31.10.2009 PASSED BY THE RESPONDENT
NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA VIDE
ANNEXURE-C; AND ETC.
WRIT PETITIONS NO.102928-102929 OF 2014
BETWEEN
1. SAMEENA PARVEEN
W/O,. MAQSOOD HONNYAL
AGE: 35 YEARS,
OCC: HOUSEHOLD WORK
R/O. HUBLI, TQ:HUBLI
DIST: DHARWAD
2. GAIBUSAB HONNYAL
S/O. MEHABOOBSAB
5
6
AGE: 55 YEARS,
OCC: BUSINESS
R/O. HUBLI,
TQ:HUBLI
DIST: DHARWAD
... PETITIONERS
(BY SRI F V PATIL & SRI PRUTHVI K S, ADVOCATES)
AND
1. THE STATE OF KARNATAKA
R/BY ITS SECRETARY
DEPT. OF TRANSPORT,
M S BUILDING, DR AMBEDKAR VEEDHI,
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTARA KANNADA
KARWAR
3. THE DEPUTY COMMISSIONER
UTTAR KANNADA
DIST: KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
KARWAR
DIST: UTTAR KANNADA
5. THE ASSISTANT REGIONAL TRANSPORT OFFICER
HONNAVAR, TQ: HONNAVAR
DIST: UTTAR KANNADA
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. SPP FOR R1-R3 & R5)
THESE WPs ARE FILED UNDER ARTICLES 226 AND 227OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD.16.06.2008 PASSED BY THE 2ND RESPONDENT/THE DISTRICT
MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B; QUASH THE
IMPUNGED ORDER DATED 31.10.2009 PASSED BY THE RESPONDENT
6
7
NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA VIDE
ANNEXURE-C.; AND ETC.
WRIT PETITIONS NO 104203-104204 OF 2014
BETWEEN
1. RAMASA N MISIKIN
AGE: 42 YEARS
OCC: VEHICLE OWNER
R/O. RON, TQ: RON
DIST: GADAG
2. ALLABAKSH A LATTIWALE
AGE: 51 YEARS,
OCC: VEHICLE OWNER
R/O. OLD HUBLI, TQ:HUBLI
DIST: DHARWAD
... PETITIONERS
(BY SRI. F V PATIL & PRUTHVI K S, ADVOCATES)
AND
1. THE STATE OF KARNATAKA
R/Y DEPT. OF TRANSPORT
M S BUILDING, DR AMBEDKAR VEEDHI,
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTARA KANNADA
KARWAR
3. THE DEPUTY COMMISSIONER
UTTARA KANNADA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
UTTARA KANNADA
KARWAR
7
8
5. THE REGIONAL TRANSPORT OFFICER
HONNAVAR, TQ: HONNAVAR
DIST: UTTAR KANNADA
... RESPONDENTS
(BY SRI. V.M. BANAKAR, ADDL. SPP FOR R1-3 AND 45;
SRI SACHIN S. MAGADUM, ADVOCATE FOR R4)
THESE WPs ARE FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DATE 16.06.2008 BEARING NO.DCB/MAG-1/CR-514/2007-08 PASSED
BY THE 2ND RESPONDENT/THE DISTRICT MAGISTRATE, UTTARA
KANNADA VIDE ANNEXURE-B.; QUASH THE IMPUGNED ORDER
DTD.31.10.2009 PASSED BY THE RESPONDENT NO.3/THE DEPUTY
COMMISSIONER, UTTARA KANNADA VIDE ANNEXURE-C; AND ETC.
WRIT PETITIONS NO.100360-100364 OF 2014
BETWEEN
1. SYED KHAN HASSAN KHAN SHIVALLI
AGE: 38 YEARS,
OCC: OWNER
R/O. H NO. 69/1, TORVIHAKKAL, HUBLI
DIST: DHARWAD
2. RAMANATHA PURUL
S/O. RAMASWAMY
AGE: 35 YEARS,
OCC: OWNER
R/O. KAMALI VALASSU
KADDANTHUR NORTH ARAVAI
TQ: KARUR
3. MUTTURAJA RAJAMANI
AGE: 35 YEARS,
OCC: OWNER
D NO. 65, RAJA GOUNDAMPALYAM
STREET 7
8
9
TQ: TIRUCHENGODE,
DIST: NAMAKAL
4. LEO PETER S/O. LASAR
AGE: 40 YEARS,
OCC: OWNER
GANDHI NAGAR, MADUKARAI
COIMBATORE
5. RAJAMANI SEMBURAJE
AGE: 60 YEARS,
OCC: OWNER
R/O. D NO. 57, RAJAGOUNDAMPALAYAM,
TQ: TIRUCHENGODE
DIST: NAMAKAL
6. MAQSOOD MUQTIYAR PATEL
AGE: 35 YEARS,
OCC: OWNER
R/O. KUMAR CHINCHALI,
TQ: HUMANBAD, DIST: BIDAR
... PETITIONERS
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
RPTD. BY DEPT OF TRANSPORT
M S BUILDING, DR AMBEDKAR VEEDHI,
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTAR KANNADA
KARWAR
3. THE DEPUTY COMMISSIONER
UTTAR KANNADA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
KARWAR
9
10
UTTAR KANNADA
5. THE REGIONAL TRANSPORT OFFICER
HONNAVAR, TQ: HONNAVAR
DIST: UTTAR KANNADA
... RESPONDENTS
(By Sri V.M. BANAKAR, ADDL. SPP FOR STATE)
THESE WPs ARE FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD.16.06.2008 PASSED BY THE 2ND RESPONDENT/THE DISTRICT
MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B; QUASH THE
IMPUGNED ORDER DTD.31.10.2009 PASSED BY THE RESPONDENT
NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA VIDE
ANNEXURE-C; DECLARE THAT THE NOTIFICATIONS ANNEXURES - B &
C ARE APPLICABLE ONLY IN RESPECT OF THE TRANSPORTATION OF
THE STACKING, HANDLING, EXPORTING ETC., OF IRON ORE IN
UTTARA KANNADA DISTRICT, BUT NOT IN RESPECT OF OTHER
GOODS; AND ETC.
WRIT PETITION NO.100794 OF 2014
BETWEEN
RAJESH
S/O. VILASARAO BILLE
AGE: 45 YEARS,
OCC: VEHICLE OWNER
R/O. BIDARI, TQ: KAGAL
KOLHAPUR,
MAHARASHTRA
... PETITIONER
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY DEPT. OF TRANSPORT
M S BUILDNG, DR AMBEDKAR VEEDHI,
10
11
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTAR KANNADA
KARWAR
3. THE DEPUTY COMMISSIONER
UTTAR KANNADA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
UTTAR KANNADA
KARWAR
5. THE REGIONAL TRANSPORT OFFICER
HONNAVAR, TQ: HONNAVAR
DIST: UTTAR KANNADA
... RESPONDENTS
(By Sri V.M. BANAKAR, ADDL. SPP FOR R1-R3 & R5;
SHRI SACHIN S. MABADUM, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 16.06.2008 PASSED BY THE 2ND RESPONDENT/THE
DISTRICT MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B;
QUASH THE IMPUGNED ORDER DTD.31.10.2009 PASSED BY THE
RESPONDENT NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA
VIDE ANNEXURE-C; DECLARE THAT THE NOTIFICATIONS
ANNEXURES-B & C ARE APPLICABLE ONLY IN RESPECT OF THE
TRANSPORTATION OF THE STACKING HANDLING, EXPORTING ETC.,
OF IRON ORE IN UTTARA KANNADA DISTRICT, BUT NOT IN RESPECT
OF OTHER GOODS; AND ETC.
WRIT PETITIONS NO.100207-100208 OF 2014
BETWEEN
1. RAVI S/O RAMA NAIK
AGE: 33 YEARS,
OCC: VEHICLE OWNER
11
12
R/O. MARUTI POORA, SHEDGERI
ANKOLA, TQ: ANKOLA
DIST: UTTAR KANNADA
2. IMTIYAZ S/O. HUSSAIN SHAIKH
AGE: 32 YEARS, OCC: OWNER
R/O. NEAR JAMIYA MASJID
KALASIGADDE, TQ: ANKOLA
DIST: UTTAR KANNADA
... PETITIONERS
(BY SRI F V PATIL , ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY DEPT. OF TRANSPORT
M S BUILDING, DR. AMBEDKAR VEEDHI,
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTARA KANNADA
KARWAR
3. THE DEPUTY COMMISSIONER
UTTARA KANNADA
DIST: KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
UTTARA KANNADA
DIST: KARWAR
5. THE REGIONAL TRANSPORT OFFICER
HONNAVAR,
TQ: HONNAVAR,
DIST: UTTAR KANNADA
... RESPONDENTS
(BY SHRI. V.M. BANAKAR, ADDL. SPP FOR R1 TO R3 AND R5;
SHRI SACHIN S. MAGADUM AND SHRI P.R. BENTUR, ADVOCATES FOR
R4)
12
13
THESE WPs ARE FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD.16.06.2008 PASSED BY THE 2ND RESPONDENT/THE DISTRICT
MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B; QUASH THE
IMPUGNED ORDER DTD.31.10.2009 PASSED BY THE RESPONDENT
NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA VIDE
ANNEXURE-C; DECLARE THAT THE NOTIFICATIONS ANNEXURES-B & C
ARE APPLICABLE ONLY IN RESPECT OF THE TRANSPORTATION OF THE
STACKING, HANDLING, EXPORTING ETC., OF IRON ORE IN UTTARA
KANNADA DISTRICT, BUT NOT IN RESPECT OF OTHER GOODS; AND
ETC.
WRIT PETITIONS NO.100159-100171 OF 2014
BETWEEN
1. KALLAPPA M GUNDUR
AGE: 45 YEARS,
OCC: OWNER
R/O. BAGAR PETH, OLD HUBLI
HUBLI
DIST: DHARWAD
2. MOHAMMED HANIF YELLUR
S/O.IMAMSAB
AGE: 38 YEARS,
OCC: OWNER
R/O.KILLEONI, MUNDGOD
DIST: KARWAR
3. BASAVARAJ S/O. SANNATAMAPPA PUJAR
AGE: 50 YEARS,
OCC: OWNER
R/O. NEKAR NAGAR, OLD HUBLI
DIST: DHARWAD
4. HASANSAB S/O. ALLABAKSH MULLANANAR
AGE: 43 YEARS,
OCC: OWNER
R/O. JODALLI, TQ: KALAGHATAGI
DIST: DHARWAD
13
14
5. PARAMESHWARAPPA
S/O. VEERBHADRAPPA MADIWALAR
AGE: 52 YEARS,
OCC: OWNER
R/O. CHOLACHAGUDDA,
TQ: BADAMI
DIST: BAGALKOT
6. SUBASH
S/O. RAMACHANDRAPPA HOSAMANI
AGE: 62 YEARS,
OCC: OWNER
R/O.SRI PADMAMBA TRANSPORT STALL NO. 1,
CORPORATION BUILDING, P B ROAD, HUBLI
TQ: HUBLI, DIST: DHARWAD
7. KHALLEEL AHMED
S/O.GANISAB PHANIBAND
AGE: 47 YEARS,
OCC: OWNER
R/O. PLOT NO. 7, JANATA HOUSE,
GOKUL DHAM, GUDIHAL ROAD, HUBLI,
TQ: HUBLI, DIST: DHARWAD
8. KASIMSAB MOHAMADSAH KURUBANNAVAR
AGE: 48 YEARS,
OCC: OWNER
R/O. MUNDGOD, TQ: MUNDGOD
DIST: UTTAR KANNADA
9. FARZANA N SHAIKH
AGE: 37 YEARS,
OCC: OWNER
R/O. KAKARMATH, TQ ANKOLA
DIST: UTTAR KANNADA
10. NAZEER AHMED S/O. GOUSESAB KUSANUR
AGE: 46 YEARS,
OCC: OWNER
R/O. MAKABOLIYANAGAR,
TQ:HANAGAL,
DIST: HAVERI
14
15
11. KHADAR GOUS
S/O. BABU SAB SHAIK SANADI
AGE: 55 YEARS,
OCC: OWNER
R/O. H NO. 35, SADASHIV NAGAR,
OLD HUBLI, TQ: HUBLI
DIST: DHARWAD
12. JAVED S/O. SHIRAJ SHAIKH
AGE: 31 YEARS,
OCC: OWNER
R/O. HULIDEVARAWADA, ANKOLA
TQ: ANKOLA
DIST: UTTAR KANNADA
13. PAVAN M NAIK
AGE: 25 YEARS,
OCC: OWNER
R/O. HULIDEVARAWADA, ANKOLA
TQ: ANKOLA
DIST: UTTAR KANNADA
... PETITIONERS
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY DEPT. OF TRANSPORT
M S BUILIDNG,
DR AMBEDKAR VEEDHI
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTARA KANNADA
KARWAR
3. THE DEPUTY COMMISSIONE
UTTARA KANNADA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
UTTARA KANNADA
15
16
KARWAR
5. THE REGIONAL TRANSPORT OFFICER
HONNAVAR, TQ: HONNAVAR,
DIST: UTTAR KANNADA
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. SPP FOR STATE;
SHRI SACHIN S. MAGADUM, ADVOCATE FOR R4)
THESE WPs ARE FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DATED 16.06.2008 PASSED BY THE 2ND RESPONDENT/THE DISTRICT
MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B; QUASH THE
IMPUGNED ORDER DTD.31.10.2009 PASSED BY THE RESPONDENT
NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA VIDE
ANNEXURE-C; DECLARE THE NOTIFICATIONS ANNEXURE - B & C ARE
APPLICABLE ONLY IN RESPECT OF THE TRANSPORTATION OF THE
STACKING, HANDLING, EXPORTING ETC., OF IRON ORE IN UTTARA
KANNADA DISTRICT, BUT NO IN RESPECT OF OTHER GOODS; AND
ETC.
WP NO 108112 OF 2014
BETWEEN
HOSNODDIN S/O HAJRATSAB SHAIKH
AGE: 32 YEARS,
OCC: BUSINESS
R/O. MIRJAN KUMTA
DIST: KARWAR
... PETITIONER
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY ITS SECRETARY
DEPT. OF TRANSPORT
M S BUILDING, DR AMBEDKAR VEEDHI,
BANGALORE
16
17
2. THE DISTRICT MAGISTRATE
UTTARA KANNADA
KARWAR
3. THE DEPUTY COMMISSIONER
UTTARA KANNADA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION,
UTTARA KANNADA
KARWAR
5. THE ASSISTANT REGIONAL TRANSPORT OFFICER
HONNAVAR,
TQ: HONNAVAR
UTTARA KANNADA
KARWAR
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. SPP FOR STATE)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD.16.06.2008 PASSED BY THE 2ND RESPONDENT/THE DISTRICT
MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B; QUASH THE
IMPUGNED ORDER DATED 31.10.2009 PASSED BY THE RESPONDENT
NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA VIDE
ANNEXURE-C; DECLARE THAT THE NOTIFICATIONS ANNEXURES-B & C
ARE APPLICABLE ONLY IN RESPECT OF THE TRANSPORTATION OF THE
STACKING, HANDLING, EXPORTING ETC., OF IRON ORE IN UTTARA
KANNADA DISTRICT, BUT NOT IN RESPECT OF OTHER GOODS; AND
ETC.
WP NO 107136 OF 2014
BETWEEN
ADARSH SUJATA KALBHAG
AGE: 28YEARS,
OCC: BUSINESS
R/O. YELLAPUR, TQ: YELLAPUR
DIST: KARWAR
17
18
... PETITIONER
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY ITS SECRETARY
DEPT. OF TRANSPORT
M S BUILDING, DR AMBEDKAR VEEDHI, BANGALORE
2. THE DISTRICT MAGISTRATE
UTTARA KANNDA
KARWAR
3. THE DEPUTY COMMISSIONER
UTTARA KANNDA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
UTTARA KANNDA
KARWAR
5. THE INSPECTOR OF MOTOR VEHICLE
& REGIONAL TRANSPORT OFFICER
HONAVAR, TQ: HONAVAR
DIST: UTTAR KANNADA
... RESPONDENTS
(BY SHRI V.M. BANAKAR, ADDL. SPP FOR R1-R3 AND R5;
SHRI SACHIN S. MAGADUM, ADVOCATE FOR R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED
ORDER DTD: 16-06-2008 PASSED BY THE 2ND RESPONDENT /THE
DISTRICT MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B;
QUASHING TEH IMPUGNED ORDER DTD: 31-10-2009 PASSED BY THE
RESPONDENT NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA
VIDE ANNEXURE-C; ISSUE A WRIT IN THE NATURE OF CERTIORARI
DECLARING THAT THE NOTIFICATIONS- B & C ARE APPLICABLE ONLY
IN RESPECT OF THE TRANSPORTATION OF THE STACKING,
18
19
HANDLING,EXPORTING ETC., OF IRON ORE IN UTTAR KANNADA
DISTRICT, BUT NOT IN RESPECT OF OTHER GOODS; AND ETC.
WP NO 106908 OF 2014
BETWEEN
BASAVARAJ S/O. SANNATAMAPPA PUJAR
AGE: 50YEARS,
OCC: OWNER
R/O. NEKAR NAGAR, OLD HUBLI
TQ:HUBLI
DIST: DHARWAD
... PETITIONER
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY ITS SECRETARY
DEPT. OF TRANSPORT
M S BUILDING,
DR AMBEDKAR VEEDHI,
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTARA KANNADA
KARWAR
3. THE DEPUTY COMMISSIONER
UTTARA KANNADA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
UTTARA KANNADA
KARWAR
5. THE REGIONAL TRANSPORT OFFICER
HONNAVAR,
TQ: HONNAVAR,
19
20
UTTARA KANNADA
KARWAR
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL SPP FOR R1-R3 & R5;
SHRI SACHIN S. MAGDUM, ADVOCATE FOR R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD.16.06.2008 PASSED BY THE 2ND RESPONDENT/THE DISTRICT
MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B; QUASH THE
IMPUGNED ORDER DATED 31.10.2009 PASSED BY THE RESPONDENT
NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA VIDE
ANNEXURE-C; DECLARE THAT THE NOTIFICATIONS ANNEXURES-B & C
ARE APPLICABLE ONLY IN RESPECT OF THE TRANSPORTATION OF THE
STACKING, HANDLING, EXPORTING ETC., OF IRON ORE IN UTTARA
KANNADA DISTRICT, BUT NOT IN RESPECT OF OTHER GOODS; AND
ETC.
WP NO 107971 OF 2014
BETWEEN
ATIFUR REHMAN MANIYAR
AGE: 30 YEARS,
OCC: BUSINESS
R/O. HUBLI
TQ:HUBLI
DIST: DHARWAD
... PETITIONER
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY ITS SECRETARY
DEPT. OF TRANSPORT
M S BUILDING, DR AMBEDKAR VEEDHI,
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTARA KANNADA
20
21
KARWAR
3. THE DEPUTY COMMISSIONER
UTTARA KANNADA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
UTTARA KANNADA
KARWAR
5. THE ASSISTANT REGIONAL TRANSPORT OFFICER
HONNAVAR, TQ: HONNAVAR
UTTARA KANNADA
KARWAR
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. SPP FOR R1-R3 & R5;
SHRI SACHIN S. MAGADUM, ADVOCATE FOR R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD.16.06.2008 PASSED BY THE 2ND RESPONDENT/THE DISTRICT
MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B; QUASH THE
IMPUGNED ORDER DATED 31.10.2009 PASSED BY THE RESPONDENT
NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA VIDE
ANNEXURE-C; AND ETC.
WP NO 104299 OF 2014
BETWEEN
SANDESH P BANT
AGE: 34 YEARS,
OCC: BUSINESS
R/O. ANKOLA, TQ: ANKOLA
DIST: KARWAR
... PETITIONER
(BY SRI F V PATIL, ADVOCATE)
AND
21
22
1. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPT. OF TRANSPORT
M S BUILDING, DR AMBEDKAR VEEDHI,
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTARA KANNADA
KARWAR
3. THE DEPUTY COMMISSI0NER
UTTARA KANNADA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
UTTARA KANNADA
KARWAR
5. THE REGIONAL TRANSPORT OFFICER
HONNAVAR,
TQ: HONNAVAR
UTTARA KANNADA
KARWAR
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. SPP FOR R1-R3 & R5;
SHRI SACHIN S. MAGADUM, ADVOCATE FOR R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF INDIA
PRAYING TO QUASH THE IMPUGNED ORDER DTD.16.06.2008 PASSED
BY THE 2ND RESPONDENT/THE DISTRICT MAGISTRATE, UTTARA
KANNADA VIDE ANNEXURE-A; QUASH THE IMPUNGED ORDER DATED
31.10.2009 PASSED BY THE RESPONDENT NO.3/THE DEPUTY
COMMISSIONER, UTTARA KANNADA VIDE ANNEXURE-B; DECLARE
THAT THE NOTIFICATIONS ANNEXURES-A & B ARE APPLICABLE ONLY
IN RESPECT OF THE TRANSPORTATION OF THE STACKING,
HANDLING, EXPORTING ETC., OF IRON ORE IN UTTARA KANNADA
DISTRICT, BUT NOT IN RESPECT OF OTHER GOODS; AND ETC.
WP NO 107945 OF 2014
BETWEEN
22
23
MEHARUNNISA W/O DAVALSAB BEPARI
AGE: 55 YEARS
OCC: BUSINESS
R/O. VISHAL NAGAR, OLD HUBLI
TQ:HUBLI
DIST: DHARWAD
... PETITIONER
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY ITS SECRETARY
DEPT. OF TRANSPORT
M S BUILDING,
DR AMBEDKAR VEEDHI,
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTARA KANNADA
KARWAR
3. THE DEPUTY COMMISSIONER
UTTARA KANNADA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION,
UTTARA KANNADA
KARWAR
5. THE ASSISTANT REGIONAL TRANSPORT OFFICER
HONNAVAR, TQ: HONNAVAR
UTTARA KANNADA
KARWAR
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. SPP FOR R1-R3 & R5;
SHRI SACHIN S. MAGADUM, ADVOCATE FOR R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
23
24
DTD.16.06.2008 PASSED BY THE 2ND RESPONDENT/THE DISTRICT
MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B; QUASH THE
IMPUGNED ORDER DATED 31.10.2009 PASSED BY THE RESPONDENT
NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA VIDE
ANNEXURE-C; DECLARE THAT THE NOTIFICATIONS ANNEXURES-B & C
ARE APPLICABLE ONLY IN RESPECT OF THE TRANSPORTATION OF THE
STACKING, HANDLING, EXPORTING ETC., OF IRON ORE IN UTTARA
KANNADA DISTRICT, BUT NOT IN RESPECT OF OTHER GOODS; AND
ETC.
WP NO 107482 OF 2014
BETWEEN
1. D KARPAGAM
AGE: MAJOR
OCC: VEHICLE OWNER
2900, 4TH CROSS
B S K IIND STAGE
BANGALORE
2. RAJEEV B RADHAKRISHNAN
AGE: 24 YEARS,
OCC: DRIVER
CHERUNELLY, ERATAKULAM
PALAKKAD,
DIST: PALAKKAD,
DIST: KERALA
... PETITIONERS
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY DEPT. OF TRANSPORT
M S BUILDING,
DR AMBEDKAR VEEDHI,
BANGALORE
2. THE DISTRICT MAGISTRATE
UTTARA KANNADA
24
25
KARWAR
3. THE DEPUTY COMMISSIONER
UTTARA KANNADA
KARWAR
4. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION,
UTTARA KANNADA
KARWAR
5. THE INSPECTOR OF MOTOR VEHICLE
REGIONAL TRANSPORT OFFICER
HONAVAR, TQ:HONAVAR
DIST: UTTAR KANNADA
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. SPP FOR R1-R3 & R5;
SHRI SACHIN S. MAGADUM, ADVOCATE FOR R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD.16.06.2008 PASSED BY THE 2ND RESPONDENT/THE DISTRICT
MAGISTRATE, UTTARA KANNADA VIDE ANNEXURE-B; QUASH THE
IMPUGNED ORDER DATED 31.10.2009 PASSED BY THE RESPONDENT
NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA VIDE
ANNEXURE-C; DECLARE THAT THE NOTIFICATIONS ANNEXURES-B & C
ARE APPLICABLE ONLY IN RESPECT OF THE TRANSPORTATION OF THE
STACKING, HANDLING, EXPORTING ETC., OF IRON ORE IN UTTARA
KANNADA DISTRICT, BUT NOT IN RESPECT OF OTHER GOODS; AND
ETC;
WP NO 38835 OF 2009
BETWEEN
SIKANDAR MULLA
S/O ABDUL REHAMAN SAB
AGE : 37 YRS
OCC:BUSINESS
R/O NEAR NANDISHWAR EXTN,GADAG
DIST:GADAG
... PETITIONER
25
26
(BY SRI F V PATIL ADVOCATE)
AND
1. THE DISTRICT MAGISTRATE
UTTAR KANNADA
KARWAR
2. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
KARWAR
UTTAR KANNADA
3. THE REGIONAL TRANSPORT OFFICER
KARWAR
UTTAR KANNADA
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. SPP FOR R1-R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
VIDE ANNEX-D DTD 31.10.09 PASSED BY THE R1; QUASH THE
IMPUGNED COMPOSITE ORDER VIDE ANNEX-E DTD 16.6.08 PASSED
BY THE R1; GRANT AN INTERIM ORDER OF STAY, TO STAY THE
OPERATION AND ALL FURTHER PROCEEDINGS PURSUANT TO THE
IMPUGNED ORDER VIDE ANNEX-D DTD 31.10.09 PASSED BY THE R1
AND STAY THE IMPUGNED COMPOSITE ORDER VIDE ANNEX-E DTD
16.6.08 PASSED BY THE R1 AND RELEASE THE VEHICLE; AND ETC.
WP NOs. 63447-63458 OF 2009
BETWEEN
1. ABDUL RAHIM, S/O.MOHAMMAD JAFFAR SAVANUR
OCC:BUSINESS, R/O CHIDANAND ROAD,
SAVANUR NOW R/A MALADAR ONI
NEAR GARDENPET,HUBLI
2. ZAKIR HUSSAIN S/O AHAMADSAB JUGALPET
OCC:BUSINESS
R/O SHADAT COLONY
26
27
3RD CROSS, FODIHALL ROAD,
HUBLI
3. MOHAMMAD HUSSAIN S/O ALLUDDINSAB HULAGUR
OCC:BUSINESS
R/O NEKARNAGAR ROAD,
JAVALI PLOT, OLD HUBLI,
4. MOHAMMAD ASIF S/O HASABSAB GODMAL
OCC:BUSINESS
R/O MOHAMMADNAGAR, NARAYANSOFA,
OLD HUBLI,
5. NOORJAHAN W/O ALTAF SAYYED
BY HER GPA HOLDER SAYYED ALTAF
AGE:54 YRS, OCC:BUSINESS
R/O NEAR BILAL MASJID, KAKURMATH,
ANKOLA
6. FIROZ S/O MOHAMMAD HANIFF KUSUGAL
OCC:BUSINESS, R/A H.NO.45,
VISHAL NAGAR, BEHIND SIDDAROODMATH,
OLD HUBLI
7. SHAMSHUDDIN S/O SAYYED ABDUL
OCC:BUSINESS,
R/A NEAR KUKARMATH, ANKOLA
8. ABDUL RAZAQ S/O MOHAMMAD HUSSAIN PATWEGAR
OCC:BUSINESS,
R/A H.NO.333, KOVLEKAR PLOT
SADAR SOFA, OLD HUBLI
9. SAYYED YUSUF S/O SAYYED KAREEM
OCC:BUSINESS,
R/O ISLAM GALLI, YELLAPUR
10. BASHEER A JAGALPETH S/O A JAGALPETH
OCC:BUSINESS,
R/A 3RD CROSS, SADAT COLONY,
GUDIHAL ROAD, OLD HUBLI
27
28
11. SANGEETA V NAIK
OCC:BUSINESS,
C/O MAHESH S NAIK, LAXMI TRANSPORT
H.NO.309, KALAMMA NAGAR, YELLAPUR
12. ABDUL SAMAD S/O ABDUL KARMI MAVINHALLI
OCC:BUSINESS,
R/O MUSLIM GALLI, SIRSI
... PETITIONERS
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE DISTRICT MAGISTRATE, KARWAR
2. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAYS DIVISION
KARWAR
3. THE REGIONAL TRANSPORT OFFICER
KARWAR
... RESPONDENTS
(BY SHRI V.M. BANAKAR, ADDL. SPP FOR R1 & 3;
SHRI M.B. KANAVI, ADVOCATE FOR R2)
THESE W.Ps ARE FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DT.16/6/2008 PASSED BY THE R-1 VIDE ANNEXURE-A; DECLARE
THAT THE INITIATION OF THE PROCEEDINGS UNDER SEC 133 OF THE
CR.P.C PURSUANT TO THE IMPUGNED ORDER, VIDE ANNEXURE-A IS
WHOLLY ILLEGAL, ARBITRARY AND WITHOUT AUTHORITY OF LAW;
QUASH THE ORDERS DATED 18/12/2008, 22/12/2008, 16/12/2008,
12/12/2008 AND 12/12/08 PASSED BY THE R-3 AT ANNEXURES-D,
D2, D3, D4 & D5 RESPECTIVELY AND A DIRECTION MAY BE ISSUED
TO R-1 TO 3 TO REFUND RS.42,000/- RECOVERED FROM EACH OF
THE PETITIONERS; AND ETC.
WP NO 69015 OF 2010
BETWEEN
28
29
1. SYED S/O : LATE KHALEELSAB MARUF
AGE : 45 YEARS, OCC : OWNER OF LORRY
BEARING NO.KA-17/A-6206
R/O : D.NO.1390/02, 3RD MAIN
8TH CROSS, KTJ NAGAR,
DAVANAGERE
2. NORTH KARNATAKA LORRY OWNERS
ASSOCIATES (REGD) REP. BY ITS SECRETARY
SHIVANAND S DHORONI
AGE : 34 YEARS,
HUBLI - 580 029
... PETITIONERS
(BY SRI F V PATIL, ADVOCATE)
AND
1. THE DISTRICT MAGISTRATE
KARWAR,
UTTARA KANNADA DISTRICT
2. THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION
KARWAR, UTTARA KANNADA DISTRICT
3. THE REGIONAL TRANSPORT OFFICER
KARWAR, U.K. DISTRICT
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. SPP R1 & R3;
NOTICE TO R2 SERVED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
VIDE ANNEXURE-G DATED:31/10/2009, PASSED BY THE 1ST
RESPONDENT; QUASH THE IMPUGNED ORDER VIDE ANNEXURE-H
DATED:16/06/2008, PASSED BY THE 1ST RESPONDENT; QUASH THE
IMPUGNED ORDER VIDE ANNEXURE-J DATED:19/11/2009, PASSED BY
THE 1ST RESPONDENT; AND ETC.
29
30
These petitions coming on for orders, this day, the Court
made the following:
ORDER
The commonness in these petitions is that the petitioners are challenging the orders dated 16th June 2008 and 31st October 2009 passed by the Deputy Commissioner, Uttara Kannada who is the Executive Magistrate of the District for the purpose of Section 133 Cr.P.C, and sought for quashing the same. The Assistant Regional Transport Officer (hereinafter referred to as 'ARTO' for short) referred the said orders of the Executive Magistrate and issued show-cause notices directing the petitioners as to why they should not be penalised by imposing `42,000/- fine for having transported the goods in excess of the weight prescribed to carry as the same is an offence under Section 133 Cr.P.C. and Section 194 of the Motor Vehicles Act, 1988 (for short hereinafter referred to as 'the Act').
2. The show-cause notices issued by the Regional Transport Officers by referring the orders issued by the Executive Magistrate, according to the petitioners is ultra vires of provisions of Cr.P.C. and the Act. The learned counsel appearing 30 31 for the petitioners has challenged the impugned orders on the following grounds. Firstly, the Executive Magistrate has no jurisdiction and power to issue such notifications. Secondly, the Executive Magistrate, has neither followed the procedures prescribed under the relevant provisions of Cr.P.C. or the Act nor issued preliminary or final notice and no specific order is passed alleging the offence committed by the petitioners. The orders passed in 2008-2009 have been made applicable in all the cases wherever it is found that the vehicles are transporting goods more than the prescribed limit.
3. The petitioners, who are the persons carrying iron ore and the goods over and above the prescribed limit, have got transport licence, fitness certificate, permit, etc. and as such they do not suffer from any infirmities, however, it is alleged that they are carrying goods more than the prescribed limit, which is an error in the eye of law. Even if it is found that they are transporting the goods which is in excess of the prescribed limit, then as per the Notification dated 16th June 2008 passed by the Executive Magistrate, Uttara Kannada it can be levied fine 31 32 of Rs.42,000/- approximately. Thereafter, another order has been passed on 31st October 2009, reiterating the same amount and fine. Both these orders are not in accordance with the provisions of Section 133 of the Cr.P.C. Even if it is found that they are transporting excess weight to the prescribed limit, in view of the Government of Karnataka has issued notification on 3rd July 2000 under Section 200 of the Motor Vehicles Act, 1988 prescribing composition of certain offences; and as per the said notification Item No.32, namely, driving a motor vehicle with weight in excess of permissible weight, it is made Section 133, 134 read with 194 of Motor Vehicles Act, 1988, the fine would be Rs.2,000/- for having carried overload and Rs.1,000/- per tonne of excess load together with liability to pay charges for off- loading the excess load. If at all it is found that vehicles are transporting the weight contrary to the said Sections, amount of fine would be only as per notification dated 3rd July 2000. However, show-cause notices have been issued to pay a fine of Rs.42,000/-, it is contrary to the power delegated to the State Government under Section 200 of the Motor Vehicles Act. The officer, who has got power under Section 133 Cr.P.C. to pass 32 33 conditional order for removal of nuisance, has to exercise the said power in a given case, whereas, in the instant cases, by referring to the 2008-2009 notification, it is universally made applicable to all the persons wherever carrying of excess weight to reasonable extent permissible. The learned counsel submits that the show-cause notice issued by ARTO is without authority of law and hence, are to be set aside and further the impugned action of the Executive Magistrate is in contravention of the said provisions and the notification is ultra vires to provision of Section 133 Cr.P.C.
4. Per contra, the learned counsel appearing for the State submits that, as the impugned notices themselves reflect, the petitioners were carrying goods in excess of prescribed limit which is an offence and rightly the Executive Magistrate has exercised his power. The said notifications were challenged before this Court in Writ Petition No.7116 of 2009 and the same came to be disposed of confirming the penalty order of 2008- 2009. The ARTO, who has issued show-cause notices, is also an 33 34 officer for the purpose of issuing such notices. Hence, no error could be found and the petitions be dismissed.
5. Heard the learned counsel appearing for the parties. The Executive Magistrate of the District could invoke Section 133 Cr.P.C. since he is specially empowered under the provisions. Even he could take action by exercising his power if it is found that the vehicle is carrying the weight in excess of the permissible limit and creating nuisance. As per the Executive Magistrate, if the vehicle is carrying the goods in excess of the permissible limit, then he has to take action as per the procedure established under the said provisions and also under Section 134 to 136 of the Cr.P.C. The said section, further read, that the Executive Magistrate, on receiving the report of a Police Officer or other information and on taking such evidence, if he thinks fit, call upon the concerned to appear before himself or some other officer of the Executive Magistrate. The reading of the said provision, clarifies that a person against whom offence is alleged has to be issued a notice to appear before him or any other officer on his behalf and issue a show cause notice as to 34 35 why the order should not be made absolute. The preliminary orders made by him has to be confirmed by passing a final order on the basis of the procedures prescribed in the said provision, viz. the issuance of preliminary notification, show-cause notice providing an opportunity to him to defend whether he has caused nuisance or not and only thereafter action has to be initiated. Further, the procedure prescribed under Section 134 of the Cr.P.C. with regard to service of Notification of order which provides that the order shall be served on the persons against whom it is made and Section 135 of the Act compels a person to obey the order so passed under Section 133 and 134 of the Act and any failure of compliance, Section 136 comes into picture. Unless the procedure prescribed under the Act are followed, the Executive Magistrate cannot compel a person to pay the fine amount. The Magistrate has to clarify himself that when a person is being condemned for an offence committed, he shall be provided fullest opportunity to defend his case and the order of this nature or any order should be issued only after following the procedure prescribed therein. However criminal he might be, but it is a fundamental rule that he shall be and is 35 36 entitled for an opportunity before being condemned. When such fundamental rule is prevailing, in contravention of the same, the Executive Magistrate, by referring 2008-2009 order, levying a fine of Rs.42,000/- which is an error. The Executive Magistrate should have levied such fine if the person committing offence is liable, but before that, the procedure as provided under Sections 133 and 134 of the Act should have been followed. In the instant cases, I do not find any such procedure being followed by the Executive Magistrate.
6. The officers authorised under the MV Act also can invoke the power provided under the Act to levy fine and the excess loading vehicles. Section 194 of the MV Act and sub- section (1) and (2) of the Act enables the officer to punish a person with fine of Rs.2,000/- and additional amount of Rs.1,000/- per tonne of excess load together with liability to pay charges for off-loading the excess load. When such power is there, he should have invoked and passed necessary orders under these provisions. A person who is discharging his duties under the provisions of law, he shall have to discharge his power 36 37 only as per such provisions strictly and effectively and he cannot carry on the fiat issued by Executive Magistrate in the year 2008-2009, and it cannot be pressed into service unless they are in consonance with the provisions of either Motor Vehicles Act or Cr.P.C. What is provided under Section 194 of the Motor Vehicles Act for levying fine on the transporters who are carrying excess weight was substituted in the year 1984 by virtue of eroding of money value in the course of time and by taking into consideration, the present value of money a suitable fine has to be inflicted very stringently in order to prevent mischief. Even the Executive Magistrate could levy the amount of Rs.40,000/- unless he follows the procedure prescribed therein, it is not permissible for him to levy the fine. The procedure provided under Cr.P.C. and Motor Vehicles Act is sine quo non to levy or punish a person. As is stated earlier, however criminal a person is, he could not be punished unless giving him fullest opportunity to defend his case.
7. In the instant cases, the respondents have levied fine by referring 2008-2009 order without ascertaining whether 37 38 the person committed the offence or not and without even providing an opportunity of hearing the transporter as to whether he has carried the excess weight over and above the permissible limit. Unless such provisions are followed, no action shall be taken under the Motor Vehicles Act. However, the petitioners were permitted to carry the weight, viz. laden weight. If excess weight is found, it is an offence under the provisions of Act and also under Indian Penal Code. Carrying excess load is against public policy is a nuisance and it affects the public at large. The State and Central Governments lay the road depending upon the vehicles that ply on that particular load and bearable weight on the road. When such roads have been built in a scientific manner and if are used improperly by carrying load more than what is permissible limit, then they have to be prevented strictly and as per provisions of Motor Vehicles Act, Cr.P.C. and Indian Penal Code and other provisions including the National Highways Act, 1956.
8. In the light of the observations made, it is found that the show-cause notices issued by Assistant Regional Traffic 38 39 Officer demanding payment of Rs.42,000/- per truck by referring 2008-2009 order which is without authority of law and are liable to be set aside. Accordingly they are set aside.
9. The Assistant Regional Traffic Officer, Karwar in his show-cause notice dated 16th August 2004 which is issued in respect of vehicle bearing registration No.KA-22/B-1169 directed the petitioners to show cause within seven days and to produce the documents as per Section 200 of the MV Act and also fine as per the order of the Executive Magistrate dated 16th June 2008 and 31st October 2009 and the said show-cause notice has not indicated as to whether there is a specific finding against the petitioner for having committed an offence as per the notification. Under the circumstance, the said notification are set aside. Liberty is reserved to Executive Magistrate and also to the ARTO to pass necessary orders as per law and the procedure prescribed under the Motor Vehicles Act, Cr.P.C. and Indian Penal Code as also the National Highway Authorities Act, 1956.
10. With these observations all the petitions stand disposed of. The fine amount deposited by the petitioners in 39 40 these petitions shall not be permitted to withdrawn. Liberty is also reserved to the petitioners to challenge the validity of rules in appropriate cases.
SD/-
JUDGE lnn 40