IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SCA NO.1290/2003 TO 1292/03, 1436/03, 1445/03, 1633/03 TO 1635/03, 2131/03, 3288/03, 3351/03, 3352/03, 3559/03, 3562/03, 6810/03, 9923/03, 16652/03, 17098/03, 17437/03, 17439/03, 17490/03, 17724/03, 17725/03, 6361/04, 6438/04, 7531/04, 12788/04, 12804/04, 12813/04, 12814/04, 12833/04, 12853/04, 12807/04, 13305/04, 13306/04, 13640/04, 17428/03, 1842/03, 17900/03, 17589/03, and 13642/04 to 13651/04. HON'BLE MR.JUSTICE K.S.JHAVERI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MONMOHJAR LAL ANJANA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR N.V. ANJARIA, MR ALPESH RAJPURIYA, MS SONAL D. VYAS, MR KETAN D. SHA for petitioners. MR AD OZA, GOVERNMENT PLEADER with MS NANDINI JOSHI AGP, for the respondents. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.S.JHAVERI Date of decision: 25/10/2004 ORAL JUDGEMENT 1.0 Leave to delete respondent no.3 in SCA Nos.13642/04, 13645/04, 13646/04, 13647/04, 13649/04, 13650/04 and 13651/04. 1.1 In all the above petitions a common question of law is involved and therefore they are heard together and disposed of by this common judgement. 2.0 The petitioners in the above petitions are owners of different motor vehicles registered under different authorities under the Motor Vehicles Act, 1988. In these petitions the petitioners have challenged the Notification issued by the Joint Director of Transport, Gujarat, Ahmedabad, dated 9th August 2002 and the consequential actions on the part of the respondent authorities i.e. imposition of fine on the ground of excess load and detention of vehicles. 3.0 The grievance of the petitioners can be summarised as under: 3.1 After purchase of the vehicles in question the petitioners introduce certain modifications and changes under the supervision of experts as permissible under the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) and the Motor Vehicles Rules, 1989 (hereinafter referred to as the Rules). Addition of axle and more wheels would increase the load carrying capacity of the vehicle and the authority under the Motor Vehicles Act is authorised to certify more weight carrying capacity on account of such adaption and modification in the motor vehicles. 3.2 The vehicles of the petitioners were inspected by the Registering Authority who completed all the legal formalities and ultimately issued Certificates of Registration in respect of the vehicles in question. The unladen weight i.e. gross vehicle weight as well as the laden weight i.e. gross carrying capacity are stated in the Certificate of Registration. The laden weight is mentioned after considering the modifications and changes made in the vehicles and not as per the gross carrying capacity assigned by the manufacturer. According to the petitioners, this is permissible under the Act and the Rules. Therefore, the petitioners are entitled to carry load in their respective vehicles as per the laden weight mentioned in the Certificates of Registration issued by the competent authority. 3.3 The petitioners are engaged in transporting goods throughout India including Gujarat and therefore the vehicles are required to pass through the RTO Checkposts. The grievance of the petitioners is that though the laden weight of the vehicle is less than the certified limits under the Registration Certificate, they are booked for carrying excess weight and heavy penalty is being imposed upon the petitioners for the alleged excess weight. 3.4 The aforesaid action is being taken by the respondent authorities on the basis of Circular dated 9th August 2002 issued by the Joint Director of Transport, Gujarat State, Ahmedabad. The relevant part of Circular dated 9.8.2002 reads as under: "It is, therefore, directed not to assign more gross vehicle weight than the gross carrying capacity of this tractor (horse or price mover). If any semi-articulated vehicle or truck-trailer combination is found plying on road carrying goods with gross vehicle weight more than the gross carrying capacity assigned by the manufacturer then the difference thereof should be treated as overloading and compounding fee should be recovered." 3.5 The petitioners have therefore prayed for quashing and setting aside the Circular dated 9th August 2002, to direct the respondents to recognize the gross laden weight of the petitioners' transport vehicles as certified by the Certificates of Registration and to restrain the respondents from initiating any penal action in respect of the concerned vehicles on the basis of carrying goods more than the gross carrying capacity assigned by the manufacturer. 4.0 Thus, the crux of the matter is whether, the respondent authorities are justified in intercepting the vehicles for allegedly carrying excess weight and imposing heavy penalty upon the petitioners on the ground of carrying goods more than the gross carrying capacity assigned by the manufacturer? 5.0 Heard the learned counsel for the respective parties. 6.0 Before proceeding further it would be beneficial to note certain relevant provisions of the Act as under: 6.1 The definitions of "articulated vehicle", "axle weight", "certificate of registration" and "gross vehicle weight" as contained in section 2 of the Act read as under: (2) "articulated vehicle" means a motor vehicle to which a semi-trailer is attached. (3) "axle weight" means in relation to an axle of a vehicle the total weight transmitted by the several wheels attached to that axle to the surface on which the vehicle rests; (4) "certificate of registration" means the certificate issued by a competent authority to the effect that a motor vehicle has been duly registered in accordance with the provisions of Chapter IV; (15) "gross vehicle weight" means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle. (36) "registered axle weight" means in respect of the axle of any vehicle, the axle weight certified and registered by the registering authority as permissible for that axle; (39) "semi-trailer" means a vehicle not mechanically propelled (other than a trailer), which is intended to be connected to a motor vehicle and which is so constructed that a portion of it is super-imposed on, and a part of whose weight is borne by, that motor vehicle." (44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller. (48) "unladen weight" means the weight of a vehicle or trailer including all equipment ordinarily used with the vehicle or trailer when working, but excluding the weight of a driver or attendant; and where alternative parts or bodies are used the unladen weight of the vehicle means the weight of the vehicle with the heaviest such alternative part or body. (49) "weight" means the total weight transmitted for the time being by the wheels of a vehicle to the surface on which the vehicle rests. 6.2 Section 39 stipulates necessity for registration which states that no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. Thus, under the Act, the vehicle is required to be registered with the concerned authority. 6.3 Effectiveness of registration in India is stated in section 46 which reads as under: "46. Effectiveness in India of registration: Subject to the provisions of section 47, a motor vehicle registered in accordance with this Chapter in any State shall not require to be registered elsewhere in India and a certificate of registration is or in force under this Act in respect of such vehicle shall be effective throughout India. Thus, once the vehicle is registered in any State, such certificate of registration issued or in force under the Act in respect of such vehicle shall be effective throughout India. 6.4 The procedure of registration is stated in Section 58 which reads as under: "58. Special provisions in regard to transport vehicles (1) The Central Government may, having regard to the number, nature and size of the tyres attached to the wheels of a transport vehicle (other than a motor cab), and its make and model and other relevant considerations, by notification in the Official Gazette, specify, in relation to each make and model of a transport vehicle, the maximum gross vehicle weight of such vehicle and the maximum safe axle weight of each axle of such vehicle. (2) A registering authority, when registering a transport vehicle, other than a motor cab, shall enter in the record of registration and shall also enter in the certificate of registration of the vehicle the following particulars, namely - (a) the unladen weight of the vehicle; (b) the number, nature and size of tyres attached to each wheel; (c) the gross vehicle weight of the vehicle and the registered axle weights pertaining to the several axles thereof; and (d) if the vehicle is used or adapted to be used for the carriage of passengers solely or in addition to goods, the number of passengers for whom accommodation is provided, and the owner of the vehicle shall have the same particulars exhibited in the prescribed manner on the vehicle. xxx xxx xxx (3) There shall not be entered in the certificate of registration of any such vehicle any gross vehicle weight or a registered axle weight of any of the axles different from that specified in the notification under sub-section (1) in relation to the make and model of such vehicle and to the number, nature and size of the tyres attached to its wheels. Provided that where it appears to the Central Government that heavier weights than those specified in the notification under sub-section (1) may be permitted in a particular locality for vehicles of a particular type, the Central Government may, by order in the Official Gazette direct that the provisions of this sub-section shall apply with such modifications as may be specified in the order. (5) In order that the gross vehicle weight entered in the certificate of registration of a vehicle may be revised in accordance with the provisions of sub-section (3), the registering authority may require the owner of transport vehicle in accordance with such procedure as may be prescribed to produce the certificate of registration within such time as may be specified by the registering authority. 6.5 Thus, the Registering authority, while registering the vehicle, shall state the unladen weight of the vehicle, the number, nature and size of the tyres attached to each wheel; the gross vehicle weight of the vehicle and the registered axle weights pertaining to the several axles thereof; and if the vehicle is used or adapted to be used for the carriage of passengers solely or in addition to goods, the number of passengers for whom accommodation is provided. It is required to be noted that once the gross vehicle weight of the vehicle and the registered axle weights pertaining to the several axles thereof are stated in the Certificate, the said Certificate shall be effective throughout India. 6.6 Section 113 imposes certain limitations on weight and use which reads as under: "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 pneumataic 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 or 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. 6.7 Thus, it is clear that no person shall drive or cause or allow to be driven in any public place any motor vehicle or trailer, the unladen weight of which exceeds the unladen weight specified in the certificate of registration of the vehicle and the laden weight of which exceeds the gross vehicle weight specified in the certificate of registration. In short, no person shall be allowed to drive the vehicle if the laden weight or unladen weight exceeds the weight specified in the certificate of registration. 6.8 Section 114 empowers the authority to have the vehicle weighed, which reads as under: "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 reason 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 or trailer from that place until the laden weight has been reduced or the vehicle or trailer has 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 issue that permit." 6.9 The power to restrict the use of vehicle is specified in section 115 of the Act: "115. Power to restrict the use of vehicles The State Government or any authority authorized in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge, may by notification in the Official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under section 116 at suitable places: Provided that where any prohibition or restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction. 6.10 The provision regarding punishment in respect driving vehicle exceeding permissible weight is stated in section 194 which reads as under: "194. Driving vehicle exceeding permissible weight: (1) Whoever drives 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 a vehicle who refused 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 causes the removal of the load or part of it prior to weighing shall be punishable with fine which may extend to three thousand rupees. 6.11 The provision regarding power to levy fee is stated in section 211 which reads as under: "211. Power to levy fee - Any rule which the Central Government or the State Government is empowered to make under this Act may, notwithstanding the absence of any express provision to that effect, provide for the levy of such fees in respect of applications, amendment of documents, issue of certificates, licences, permits, tests, endorsements, badges, plates, countersignatures, authorization, 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. 6.12 The provision regarding publication, commencement and laying of rules and notifications is stated in section 212 which reads 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) Even rule made by any State Government shall be laid, as soon as may be after it is made before the State Legislature. (4) Every rule made by the Central Government under this Act, every scheme made by the Central Government under sub-section (1) of section 75 and sub-section (1) of section 163 and every notification issued by the Central Government under sub-section (4) of section 41, sub-section (1) of section 58, sub-section (1) of section 59, the proviso to sub-section (1) of section 112, subsection (4) of section 163A and sub-section (4) of section 213 shall be laid, as soon as may be after it is made, before each House of Parliament while it is in section for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the section immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule, scheme or notification or both Houses agree that the rule or scheme should not be made or the notification should not be issued, the rule, scheme or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule, scheme or notification. 6.13 Section 213 stipulates the appointment of motor vehicles officers and their powers and duties. The said section reads as under: "213. Appointment of motor vehicles officers (1) The State Government may, for the purpose of carrying into effect the provisions of the Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it thinks fit. (2) Every such officer shall be deemed to be a public servant within the meaning of the Indian Penal Code, 1860 (45 of 1860). (3) The State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions and in particular and without prejudice to the generality of the foregoing power to prescribe the uniform to be worn by them, the authorities to which they shall be subordinate, the duties to be performed by them, the powers (including the powers exercisable by police officers under this Act) to be exercised by them, and the conditions governing the exercise of such powers. (4) The Central Government may, having regard to the objects of the Act, by notification in the Official Gazette prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such. (5) In addition to the powers that may be conferred on any officer of the Motor Vehicles Department under sub-section (3), such officer as may be empowered by the State Government in this behalf shall also have the power to:- (a) make such examination and inquiry as he thinks fit in order to ascertain whether the provisions of this Act and the rules made thereunder are being observed: (b) with such assistance, if any, as he thinks fit, enter, inspect and search any premises which is in the occupation of a person who, he has reason to believe, has committed an offence under this Act or in which a motor vehicle in respect of which such offence has been committed is kept; Provided that:- (i) any such search without a warrant shall be made only by an officer of the rank of a gazetted officer; (ii) where the offence is punishable with fine only the search shall not be made after sunset and before sunrise; (iii) where the search is made without a warrant, the gazetted officer concerned shall record in writing the grounds for not obtaining a warrant and report to his immediate superior that such search has been made; (c) examine any person and require the production of any register or other document maintained in pursuance of this Act, and take on the spot or otherwise statements of any person which he may consider necessary for carrying out the purposes of this Act; (d) seize or take copies of any registers or documents or portions thereof as he may consider relevant in respect of an offence under this Act which which he has reason to believe has been committed; (e) launch prosecutions in respect of any offence under this Act and to take a bond for ensuring the attendance of the offender before any Court; (f) exercise such other powers as may be prescribed; Provided that no such person shall be compelled under this sub-section to answer any question or make any statement tending to incriminate himself. (6) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be apply to any search or seizure under this section as they apply to any search or seizure under the authority of any warrant issued under section 94 of the Code." 7.0 Thus, the aforesaid provisions would show that Section 39 stipulates that the vehicle should be registered with the concerned registering authority. Section 46 states that if a certificate of registration is issued the same shall be effective through India. Section 58 lays down the requirement of details to be stated in the certification of registration. Section 113 stipulates that no person shall drive a motor vehicle or trailer, the unladen weight of which exceeds the unladen or laden weight specified in the certificate of registration. Section 114 stipulates the manner in which the vehicle is to be weighed. Section 115 stipulates the power to restrict the use of vehicle. Section 194 lays down the provisions for imposing punishment for driving the vehicle exceeding permissible weight. Section 211 stipulates the power to levy fee. Section 213 of the Act lays down the appointment of motor vehicles officers and the powers conferred upon them. 8.0 In the context of the above, I am required to consider the contentions of the respective