9911796707
TMI Blog2009 (7) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 11th September, 2003 issued by the Government of Meghalaya purported to be in terms of Section 138 (2)(b) of the Motor Vehicles Act, 1988 (for short the Act ) was held to be illegal and a writ of or in the nature of mandamus was issued directing the Government of Mehalaya to make Rules in exercise of its powers thereunder. 3. The basic fact of the matter is not in dispute. Several writ petitions were filed before the High Court alleging that trucks carrying cargo in the State of Meghalaya are compelled to pay substantial amounts to various entites at innumerable points who broadly fall under four categories (1) persons operating weighbridges on various terms and conditions stipulated by the State of Meghalaya ; (2) the local tribal chiefs known as Sylems and Sardars ; (3) the authorities implementing the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and (4) the Police officers of the State of Meghalaya. The Sylems and Sardars being the local tribal chiefs, admitted establishment of such toll gates and collection of monies from the cargo carrying vehicles asserting customary rights in them therefor and which are said to be protected by Sixt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (No slip/Challan) 12. R.H. Weigh Bridge at Hahim - Rs.500/- 13. Automobile Smoke Emission Testing Station near Hahim Bazar - Rs.250/- (not mentioned on slip) 14. J.K. Rabha Weigh Bridge at Mauman - Rs.500/- 15. Smoke Testing at Mauman - Rs.250/- 16. Smoke Testing at Haldipara - Rs.250/- Total - Rs.5330/- 4. We may, at the outset also place on record that in the writ petition filed by the respondent Shallang Area Coal Dealer and Truck Owner Association 16 points at which the driver/owners of the trucks are subjected to extortionate payments exacted without any authority of law were mentioned which are as under :- 5. The prayers in the said writ petition read as under :- In the premises aforesaid, it is most respectfully prayed that this Hon ble Court may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar, learned senior counsel appearing for the appellants would contend that the appellants have preferred these appeals against the impugned judgment because in absence of any valid receipt granted to them by the authorized weighbridge owners, they would not be permitted to carry on inter-state transport business and thus their right under Article 301 of the Constitution would be violated. 12. Mr. A. Sarma, learned senior counsel appearing on behalf of the respondent-writ petitioner, however, would support the impugned judgment. 13. Before adverting to the question involved in these appeals, we may place on record the relevant part of the said Memorandum dated 11th September, 2003 laying down the procedures required to be followed by the Transport Department for granting permission for installation and operation of weighbridges for commercial and regulatory purposes. They read as under :- 1. This procedure shall be followed by the Transport Department for granting of permission of installation and operation of Weigh Bridge for commercial and regulatory purposes. 8. For the weighment of vehicles fees may be charged at a rate fixed by the Transport Department. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns are necessary not only for construction and maintenance of road but also to prevent accidents. 18. The Act provides for registration of the Motor Vehicles in terms of the provisions contained in Chapter IV of the Act. Section 41 prescribes that an application therefor is required to be accompanied by such documents, particulars and information and shall be made within such period as may be prescribed by the Central Government. In terms of Section 58 of the said Act, the Central Government is authorized to notify the gross vehicle weight, and axle weight of certain types of transport vehicles. Sub-section (3) of Section 113 of the Act prohibits any person to drive or cause or allow to be driven in any public place any motor vehicle (a) the unladen weight of which exceeds the unladen weight specified in the certificate of registration and (b) the laden weight of which exceeds the gross vehicle weight specified in the certificate of registration. 19. Section 114 of the Act, which is relevant for our purpose, reads as under:- 114. Power to have vehicle weighed. (1) Any officer of the Motor Vehicles Department authorised in this behalf by the State Government sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he levy of such fees in respect of applications, amendment of documents, issue of certificates, licences, permits, tests, endorsements, badges, plates, countersignatures, authorisation, supply of statistics or copies of documents or orders and for any other purpose or matter involving the rendering of any service by the officers or authorities under this Act or any rule made thereunder as may be considered necessary: Provided that the Government may, if it considers necessary so to do, in the public interest by general or special order, exempt any class of persons from the payment of any such fee either in part or in full. Section 212 provides for publication, commencement and laying of rules and notifications. Sub-sections (1), (2) and (3) thereof read as under:- 212. Publication, commencement and laying of rules and notifications. (1) The power to make rules under this Act is subject to the condition of the rules being made after previous publication. (2) All rules made under this Act shall be published in the Official Gazette, and shall unless some later date is appointed, come into force on the date of such publication. (3) Every rule made by any S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the business of the Government of the State, and for the allocation among Minister of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. 24. The Memorandum was issued in the name of the Governor. It is not in dispute that it was authenticated in terms of clause (2) of Article 166 of the Constitution. The power was exercised by the State under the provisions of the Act. The said order was to remain in force till Rules are framed in the prescribed manner. The provisions of the Act mandate that the unladen weight and laden weight must be determined. Indisputably, weighing devices had to be provided for the said purpose. It is true that for the said purpose Rules may have to be framed. It is, however, a well settled principle of law that even in a case where the statute provides for certain things to be done, subject to Rules, any action taken without framing the Rules would not render any action invalid. If a statute is workable even without framing of the Rules, the same has to be given effect to. The law itself except in certain situations does not envisage vacuum. 25. Non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration therein was as to whether in absence of any law regulating the appointment and succession of Chiefs and Headmen, a notice issued to the respondent therein to show cause as to why he should not be removed from his office, was valid. The respondent questioned the said legality of the show cause notice as also the order of suspension passed against him on the grounds :- (i) That he could not be removed by administrative orders but only by making a law ; (ii) that the Executive Committee could not take any action in this case, and (iii) that the order of suspension was ultra vires. Wanchoo, J. speaking for the Court opined as under :- The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief or Siem like the respondent and in consequence there would be no power of removal either. With respect, it seems to us that the High Court has read far more into para 3(1)(g) than is justified by its language. Para 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under para 3(1)(g) it has power to make laws with resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the Central Government had no authority in law to issue administrative directions providing for the transfer of the urban agricultural land by auction-sale. In our opinion the view taken by the High Court is incorrect. Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression subject to the rules only means, in accordance with the rules, if any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute. 32. Mr. Sharma would lay emphasis on the opinion of the Bench in Cajee (supra) that executive power infringing upon the rights of the citizens would have to be backed by appropriate law. The aforementioned observation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple of ability or capacity. In the case of a tax, there is no identification of a specific benefit and even if such identification is there, it is not capable of direct measurement. In the case of a tax, a particular advantage, if it exists at all, is incidental to the State s action. It is assessed on certain elements of business, such as, manufacture, purchase, sale, consumption, use, capital, etc. but its payment is not a condition precedent. It is not a term or condition of a licence. A fee is generally a term of a licence. A tax is a payment where the special benefit, if any, is converted into common burden. 41. On the other hand, a fee is based on the principle of equivalence . This principle is the converse of the principle of ability to pay. In the case of a fee or compensatory tax, the principle of equivalence applies. The basis of a fee or a compensatory tax is the same. The main basis of a fee or a compensatory tax is the quantifiable and measurable benefit. In the case of a tax, even if there is any benefit, the same is incidental to the government action and even if such benefit results from the government action, the same is not measurable. Under the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
