Judgment:
J. Chelameswar, C.J.
1. A batch of writ petitions and writ appeals are pending for quite some time in this Court. The earliest of the batch, as can be traced out so far, is WP (C) No. 2275/2004. The said batch and connected appeals, as a matter of fact, are heard in part. Broadly speaking, the complaint in those cases is that a truck carrying cargo in the State of Meghalaya is being compelled to pay substantial amounts at innumerable points in the State of Meghalaya to various persons. Broadly such persons 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 Syiems and Sardars; (3 the authorities purportedly implementing the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and (4) the police officers of the State of Meghalaya.
2. It can be mentioned here that Sylems and Sardars, the local tribal chiefs, who are parties respondents to the various writ petitions in the above mentioned batch do admit the establishment of such toll gates and collection of monies from the cargo carrying vehicles. They assert that they have the customary rights to have such collection and such customary rights are protected by the provisions of the Sixth Schedule of the Constitution and the laws made by the District Councils recognized under the Sixth Schedule of the Constitution. The correctness of such an assertion on the part of the Sylems and the Sardars is a matter which is already heard in part.
3. Though some of the writ petitions in the above mentioned batch make a specific grievance against one of the four categories of persons mentioned above who are collecting monies from the truck owners/drivers, in some writ petitions the allegations of illegal collection of tax are against more than one such group and in some matter even against all the four groups.
4. In the meanwhile another PIL No. 66/08 came to be filed in this Court complaining illegal collection of heavy amounts of monies by the various groups, referred to above, which alongwith the connected matters is heard in part by this Court.
5. In the background of the various allegations, referred to above, in one such writ petition, i.e., WP(C) No. 2398/08, where the question is the legality of collection of money by the various local tribal chiefs (parties respondents to the said writ petition) this Court by an order dated 11-6-2008 granted an interim order directing stoppage of collection of monies from the truck owners/drivers by the various local tribal chiefs.
6. In view of various interim orders passed by this Court the Deputy Commissioner, West Khasi Hills District of Meghalaya issued an order dated 20-2-2009 directing the writ petitioners in WP (C) No. 1587/09, 1588/09 and 1740/09 herein as follows:
I am to state that information has been received that you have set up Toll Gates/Check gates/Weigh Bridge in West Khasi Hills District and also you are still continuing collection of illegal tolls till now in spite of the interim Order passed by the Hon'ble High Court in WP (C) No. 2339 of 2008. Therefore, you are directed to remove/stop all the illegal Toll gates/Check gates/Weigh Bridge on public roads and stop collection of illegal tolls therein immediately within one week from the date of issue of this letter.
Non-compliance with the Hon'ble High Courts will land you on contempt of Court proceedings.
The petitioner in each one of the above mentioned writ petitions, therefore, filed the above mentioned writ petitions challenging the legality of that order on the limited ground that the interim orders in WP (C) No. 2398/08 were misconstrued by the Deputy Commissioner and by the said interim order this Court directed only stoppage of collection of money from the truck owners by the local tribal chiefs and that the petitioners being petitions operating weighbridges after obtaining necessary authority of law from the State are not within the purview of the interim order passed in the above mentioned WP (C) No. 2398/08.
7. A learned Judge of this Court by the interim orders in each one of the above mentioned writ petitions thought it fit to keep the impugned order in the said writ petitions in abeyance during the pendency of the writ petitions.
8. WP(C) No. 3239/2008 is a writ petition filed seeking a writ of mandamus directing stoppage of illegal tolls by the various respondents (17 in number) who fall into one or other of the four categories of persons described earlier. The said writ petition is filed by a registered society of truck owners. In the said writ petition serious allegations of illegal collection of exorbitant amounts by various respondents to the said writ petition are made. Such respondents include the operators of four weighbridges (respondent Nos. 5, 11,12 and 14 therein). Therefore, the said writ petition came to be clubbed along with the present batch of three writ petitions, referred to above.
9. The W. A. No. 149/09 and 150/09 came to be filed by the writ petitioner in the above mentioned WP(C) No. 3239/08 with the leave of this Court as the appellant was not party respondent to the WP(C) Nos. 1587/09 and 1588/09 respectively, claiming that the appellant is vitally interested in the outcome of the writ petitions. The writ appeals are directed against the interim orders passed by a learned Judge of this Court, referred to in para 7 supra. Therefore, these appeals were also directed to be clubbed along with the writ petitions.
10. In this batch of six matters we are only dealing with the legality of the collection of monies by the operators of the weighbridges in the State of Meghalaya. Though WP (C) No. 3239/08 raises the question of legality of collection of monies by other group of persons, such as the local tribal chiefs etc. we do not propose to go into those questions while deciding these batch matters. Those questions, as already mentioned, are the subject-matter of litigation in another connected batch of writ petitions and writ appeals and will be decided in that batch. We may also mention that the petitioner in WP (C) No. 3239/08 is also a party to some of those writ petitions and, therefore, he would not suffer any injury by virtue of non-consideration of the other issues raised by the petitioner in WP (C) No. 3239/08.
11. The issue involved in this batch of matters revolves around the establishment of weigh bridges either by the State or by private parties and the authority of the State to compel the owners of motor vehicles more particularly the vehicles carrying cargo to undergo the process of weighment at various points within the State of Meghalaya, either at a weighbridge established by the State or a private party.
12. In the State of Meghalaya certain weigh bridges are established by the State at various points in the State. The State for its own reasons decided to authorise private parties to operate the said weigh bridges on various terms and conditions which will be discussed later. Similarly there are some weigh bridges established by the private parties. The owners of such weigh bridges enter into some arrangement with the State whereby the State utilizes the services of such weigh bridges for carrying out the weighment of various empty or cargo carrying motor vehicles within the State of Meghalaya. The various terms and conditions on which such arrangement between the State and private parties referred to in both the situations mentioned above will be discussed later in this judgment.
13. The Motor Vehicles Act, 1988 is an enactment which deals with the law relating to motor vehicles. It is a law made by the Parliament. The said law classifies the motor vehicles into various categories. It may not be necessary for us to go into the entire scheme of the Motor Vehicles Act except the relevant provisions of the Act.
Section 391 of the Act mandates that no motor vehicle be driven in any public place or in any other place unless the vehicle is registered in accordance with Chapter IV of the Motor Vehicles Act and has a valid certificate of registration.
Under Section 412 of the Act an application for registration of the motor vehicle is required to be accompanied by documents, particulars and information, as may be prescribed by the Central Government.
Under Section 583 of the Act the Central Government is authorised to specify, among other things (by a notification in the official Gazette) the 'gross vehicle weight' and the 'axle weight' of certain types of 'transport vehicles'. Under Sub-section (2) of Section 58 the registering authority is required to enter the information specified under Sub-section (2) in the record of registration, with regard to the transport vehicles. The expressions 'gross vehicle weight' and the 'axle weight' and 'transport vehicle' are defined under Section 2 Sub-sections (15), (3) and (47) respectively.
Under Section 1944 of the Motor Vehicles Act either driving or allowing the motor vehicle to be driven in contravention of Sections 113,114 and 115 is made a punishable offence.
In substance, vehicles designed for carrying goods are authorised to carry only such maximum weight as is indicated in the documents of registration of the vehicle and if the vehicle is found carrying loads beyond the permissible limit the Motor Vehicles Act makes it an offence on the part of the owner of the vehicle as well as the driver of the vehicle.
Section 113 Sub-section (3) stipulates as follows:
113(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 or registration of the vehicle, or
(b) the laden weight of which exceeds the gross vehicle weight specified in the certificate of registration.
Section 114 of the Act authorises various officers of the motor vehicles department of a State to compel the driver of any goods vehicle to subject the vehicle to a process of weighment. Section 114 reads as follows:
114. Power to have vehicle weighed.- (1) Any officer of the Motor Vehicles Department authorised 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 authorised 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.
Section 138 of the Act enables the State Governments to make rules for the purpose of carrying into effect the provisions of Chapter VII which inter alia Under Section 113 provides for the limits on the weight of the transport vehicles. Sub-section (2)(b) of Section 138 authorises the State Governments to make rules regarding 'installation and use of weighing devices'
Under Section 212 of the Act the procedure for making of the rules is prescribed. Sub-sections (1), (2) and (3) generally deals with making of the rules. Sub-section (4) specifically deals with the rules made by the Central Government under the Act with which we are not concerned in the present case. Section 212(1), (2) and (3) read as follows:
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 State Government shall be laid, as soon as may be after it is made before the State Legislature.
14. The detection of such offence of over loading of the goods carrying vehicles necessarily requires weighment of the vehicle while carrying cargo. In view of the authority conferred upon the offencers of the State Transport Department under Section 114 of the Act the driver of any vehicle can be compelled to convey the vehicle to a weighing device. The State may decide to establish weighing devices at such places as it deems fit having regard to the circumstances obtaining in the State which recessitate the weighment of vehicles at various points or the State may decide to utilize the services of weighing devices established by private parties. Necessarily the decision of the State either to install weighing devices on its own or utilize the services of a weighing device owned by a private party and all allied matters like the location of such weighing devices etc. are required to be made on some rational basis. Therefore, Section 1385 of the Act authorises the State Governments to make rules in this regard. It may be recalled here that the officers of the Transport Department of the States are invested with the authority to compel the driver of a motor vehicle to convey the vehicle to a weighing device and the said Section also imposes certain limitations on the maximum distance to which a vehicle can be compelled to be conveyed for the purpose of weighment. Therefore, it becomes all the more necessary to have laws regulating the installation and use of weighing devices. The Parliament, therefore, delegated the authority to the State Governments to make such laws by framing appropriate rules. The power conferred under Section 114 if not exercised rationally can effectively curtail the various fundamental and constitutional rights of the owners and the drivers of the motor vehicles, such as Article 14, 19(1)(g) and may also violate the constitutional guarantee of freedom of trade and commerce under Article 301 of the Constitution of India.
15. Whether such weighing devices are to be established by the State or the State utilizes the weighing devices established by private parties is a matter of policy choice of the State depending upon its resources and other relevant circumstances. When the State decides to utilize the weighing devices established by private parties the terms and conditions on which the State decides to utilize such privately owned weighing devices for the purpose under Section 114 of the Motor Vehicles Act, is a matter with multiple implications vis-a-vis the owners of such weighing devices as a class and the rights and obligations of the owners and drivers of the motor vehicles as a class. Same is the case when the State decides to out source the operation of weigh bridges (owned by it) for the purpose under Section 114 of the Motor Vehicles Act.
16. Establishment, maintenance and operation of the weighing devices involves expenditure, both capital and recurring. Money needed for such expenditure can either come from the exchequer of the State or the Stale may decide to recover the money spent by it by way of collection from those persons who fall within the regulatory net of the Motor Vehicles Act. In the context of the present case, the owners of the vehicles. The authority of the State to collect the expenditure that is incurred in the process of enforcement of a particular law is recognized by the Supreme Court in various judgments commencing from The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt : AIR 1954 SC 282.
An enactment of the State of Madras (as it then was) provided for regulation of Hindu Religious Institutions and Endowments. Under the various provisions of the Act the officers of the State were required to exercise various powers for ensuring better administration of each of the said religious institutions and endowments. Section 76 of the Act provided that every religious institution shall pay annually such contribution, not exceeding 5% of its income, as may be prescribed by the Government. It is specified in Section 76 that such contribution is for the services rendered by the Government and their officers. The scheme of the said Section is discussed at para 39 of the judgment by the Supreme Court, as follows:
39. The only other point that requires consideration is the constitutional validity of Section 76 of the Act which runs as follows:76.(1) In respect of the services rendered by the Government and their officers, every religious institution shall, from the income derived by it, pay to the Government annually such contribution not exceeding five per centum of its income as may be prescribed. (2) Every religious institution, the annual income of which for the fasli year immediately preceding as calculated for the purposes of the levy of contribution under Sub-section (1), is not less than one thousand rupees, shall pay to the Government annually, for meeting the cost of auditing its accounts, such further sum not exceeding one and a half per centum of its income as the Commissioner may determine, (3) The annual payments referred to in Sections (1) and (2) shall be made, notwithstanding anything to the contrary contained in any scheme settled or deemed to be settled under this Act for the religious institution concerned. (4) The Government shall pay the salaries, allowances, pensions and other beneficial remuneration of the Government, Deputy Commissioners, Assistant Commissioners and other officers and servants (other than executive officers of religious institutions) employed for the purposes of this Act and the other expenses incurred for such purposes, including the expenses of Area Committees and the cost of auditing the accounts of religious institutions.
At para 49 the Supreme Court held:
If in the larger interest of the public, a State considers it desirable that some special service should be done for certain people, the people must accept these services, whether willing or not.
In the said judgment the Supreme Court took note of the fact that the Constitution authorizes the levy and collection of fees under Entries 66 and 47 of List II and III respectively of the Seventh Schedule. The Supreme Court also recognized that both in the case of collection of a tax and a fee by the State, there is an element of compulsion. At para 47 the Supreme Court held as follows:
47. In the other class of cases, the Government does some positive work for the benefit of persons and the money is taken as the return for the work done or services rendered. If the money thus paid is set apart and appropriated specifically for the performance of such work and is not merged in the public revenues for the benefit of the general public, it could be counted as fees and not as tax. There is really no generic difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three different forms known respectively as special assessments, fees and taxes.
17. Therefore, the State can impose some services on a class of subjects in discharge of the State's obligation to enforce a particular law and collect the expenditure incurred for such services from that class of people whose conduct is sought to be regulated by such law.
18. Essentially the grievances in these cases is twofold - (1) the State lacks the necessary authority of law to collect such fee and (2) even if the authority in law exists, that those who are entrusted with the responsibility of rendering the services and collecting the fee are acting in excess of the authority conferred on them.
19. It is admitted that the State authorised various private parties to operate the weighing devices either established by the State or by private patties and whenever a vehicle carrying cargo is compelled by the officers of the State to undergo the process of weighment in exercise of the powers conferred under the Motor Vehicles Act (discussed earlier) money is being collected either from the owner or the driver (as the case may be), of the particular vehicle for the purpose of such weighment. There is some serious factual dispute regarding the amount that is being collected in each of these cases and will be discussed later in this judgment.
20. Section 211 of the Motor Vehicles Act authorizes both the Central Government and the State Government in exercise of the rule making power to provide for levy of such fees for the various purposes specified in the said section. Section 211 reads as follows:
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.
The expression 'test' occurring in the said section, in our view is sufficient and wide enough to confer the authority on the rule making bodies to provide for the levy of a fee in the context of the weighment of the motor vehicles. However the power to regulate the installation and use of weighing devices is required to be regulated by rules made by the State under Section 138 of the MV Act.
In response to a specific query from the Court Dr. B.P. Todi, learned Addl. Advocate General, Meghalaya stated that no rule authorizing the collections of fee, contemplated under Section 211 is made so far by the State of Meghalaya but the State issued certain executive instructions. A document titled Office Memorandum of the Government of Meghalaya in the Department of Transport dated 11th Sept., 2003 is placed before this Court. In the preamble of the document it is stated as follows:
Pending finalization and approval of the Rules for installation, Regulation and Operation of Weighbridges in Meghalaya and in exercise of the power conferred by Section 138 Sub-section (2)(b) of the Central Motor Vehicles Act, 1988, the Governor of Meghalaya is pleased to direct that the following procedure be followed in the matter of installation and operation of Weighbridges in Meghalaya.
The said instructions contain the procedure for granting of permission for installation and operation of weighbridges for commercial and regulatory purposes (para 1)6. The Memorandum prohibits any person from installing a weighbridge for commercial purpose without permission of the Transport Department. Apart from the various other stipulations therein it is stated at para 7 of the said instructions as follows:
7. For weigh bridge(s) belonging to the Department, the Transport Department shall be the authority to appoint a Lessee for operation of such weigh bridge, in keeping with the relevant financial rules and procedures laid down by the State Govt.
At para 8 it is stipulated that for weighment of vehicles 'fees may be charged at a rate fixed by the Transport Department'.
The Memorandum further stipulates at para 9 as follows:
The weighment of vehicles, whenever and wherever it becomes necessary in connection with any of the affairs of any of the Departments of the State shall be done at the weighbridges installed under the directions/procedure and in keeping with the relevant provisions of the Motor Vehicles Act, 1988.
Para 10 of the Memorandum stipulates that whenever a vehicle is weighed in one of the weighbridges installed, under those provisions a certificate of the weight of the vehicle shall be issued and the same shall be taken cognizance by all Government authorities and departments. Para 10 reads as follows:
Whenever a vehicle is weighed at any of the weighbridges installed under these provisions, a certificate of the weight of the vehicle shall be issued by or under the authority of the Transport Department and the same shall be taken cognizance of by all Government authorities/Departments.
21. The question is whether these instructions, contained in the above mentioned Memorandum, constitute sufficient authority of law for collection of fees for weighment of motor vehicles.
22. While Section 211 of the Motor Vehicles Act authorises the State Government to provide for levy and collection of fee in connection with the weighment fees of motor vehicles, Section 212 prescribes the procedure by which such rules are to be made. Insofar as it is relevant for our purpose Section 212 reads as follows:
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 State Government shall be laid, as soon as may be after it is made before the State Legislature.
It can be seen from the above that one of the conditions for the exercise of power to make rules is that such rules must be made after a previous publication.
23. Section 23 of the General Clauses Act, 1897 stipulates as follows:
Provisions applicable to making of rules or bye-laws after previous publication.- Where, by any Central Act or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:
(1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the Government concerned prescribed;
(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;
(4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified;
(5) the publication in the Official Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.
It can be seen from the above that whenever a statute authorizes somebody to make rules or bye-laws (subordinate legislation) that rule making authority is required to publish a draft of the proposed rules for information of the persons likely to be effected thereby. Sub-section (4) of Section 23 stipulates that the rule making authority shall consider the objections or suggestions from the persons who are likely to be affected by such rules. Apart from that Section 212(3) of the Motor Vehicles Act requires that the rules framed after complying with the above-mentioned safeguards be published in the official gazette. It further contemplates that such rules are required to be laid before the State Legislature. The procedure prescribed under Section 212 of the Motor Vehicles Act read with Section 23 of the General Clauses Act is not an empty formality.
24. The Supreme Court in Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur : AIR 1965 SC 895 considered the object and purpose of similar provisions (Sections 131, 132 and 134) occurring under the U.P. Municipalities Act, 1916 which provided for a previous publication and receiving objections from the interested persons, on the taxes proposed to be imposed by the Municipality. At para 9 the Supreme Court held as follows:
9. ...The object of providing for publication of proposals and draft rules is to invite objections from the inhabitants of the municipality, who have to pay the tax. The purpose of such publication obviously is to further the democratic process and to provide a reasonable opportunity of being heard to those who are likely to be affected by the tax before imposing it on them. It is true that finally it is the Board itself which settles the proposals with respect to taxation and submits them to Government or the prescribed authority, as the case may be, for approval. Even so we have no doubt that the object behind this publication is to find out the reaction of tax-payers generally to the taxation proposals, and it may very well be in a particular case that the Board may drop the proposals altogether and may not proceed further with them, if the reaction of the taxpayers in general is of disapprobation. Further the purpose served by the publication of the proposals being to invite objections, in particular from the tax-payers, to the tax proposed to be levied on them, the legislature in its wisdom thought that compliance with this part of Section 131(3) would essentially carry out that purpose. In the circumstances if we are to hold that this part of Section 131(3) was merely directory, the whole purpose of the very elaborate procedure provided in Sections 131 to 135 for the imposition of tax would become meaningless, for the main basis of that procedure is the consideration of objections of tax-payers on the proposals of the Board. If such publication is merely directory, the Board can proceed to levy the tax without complying with them and that would make the entire elaborate procedure provided in the Act before a tax is imposed, nugatory. We are therefore of opinion that this part of Section 131(3) is mandatory and it is necessary to comply with it strictly before any tax can be imposed. We shall consider the interpretation of Section 135(3) later; but we have no doubt that in the present case, in spite of Section 135(3), the legislature intended that there must be publication as provided in what we have called the first part of Section 131(3). We therefore hold that this part of Section 131(3) is mandatory considering its language, the purpose for which it has been enacted, the setting in which it appears and the intention of the legislature which obviously is that no tax should be imposed without hearing tax-payers.
25. Again the same question came up for consideration before another Constitution Bench of the Supreme Court in Municipal Board, Hapur v. Raghuvendra Kripal and Ors. : AIR 1966 SC 693. The very same provisions of the UP Municipalities Act were considered by the Supreme Court in the light of Section 135 of the Act which provided for a presumption of conclusive proof of the fact that all the requisite steps contemplated under Sections 131 to 133 were duly taken. The Supreme Court at para 12 held that some of the procedural requirements stipulated by the Legislature while authorizing making a subordinate legislation (delegated legislation) must be fully complied with while certain other steps need to be complied with only substantially. At para 12 it is held as follows:
12. As observed already, some of the provisions controlling the imposition of a tax must be fully complied with because they are vital and therefore mandatory, and the others may be complied with substantially but not literally, because they are directory. In either case the agency for seeing to this compliance is the State Government. It is hardly to be expected that the State Government would not do its duty or that it would allow breaches of the provision to go unrectified. One can hardly imagine that an omission to comply with the fundamental provisions would ever be condoned. The law reports show that even before the addition of the provision making the notification conclusive evidence of the proper imposition of the tax, complaints brought before the Courts concerned provisions dealing with publicity or requiring ministerial fulfillment. Even in the two earlier cases which reached this Court and also the present case, the complaint is of a breach of one of the provisions which can only be regarded as directory. In cases of minor departures from the letter of the law especially in matters not fundamental, it is for the Government to see whether there has been substantial or reasonable compliance. Once Government condones the departure, the decision of Government is rightly made final by making the notification conclusive evidence of the compliance with the requirements of the Act. It is not necessary to investigate whether a complete lack of observance of the provisions would be afforded the same protection. It is most unlikely that this would ever happen and before we pronounce our opinion we should like to see such a case.
26. We are only sad to note, 43 years after the pious hope of the Supreme Court:
One can hardly imagine that an omission to comply with the fundamental provisions would ever be condoned.
And
It is not necessary to investigate whether a complete lack of observance of the provisions would be afforded the same protection.
We are to deal with a situation where no rules are made at all. Goes without saying, neither the fundamental procedural requirements nor the 'not so fundamental requirements' of Section 23 of the General Clauses Act and Section 212 of the Motor Vehicles Act are complied with.
27. Provisions similar to Section 23 of the General Clauses Act also occur in the Administrative Procedure Act of the United States. Whether the subordinate legislation made without complying with the stipulations of the said Act have the force and effect of law or not was the subject matter of debate in various cases. In one of such cases Chrysler Corp. v. Brown 441 US 281, the American Supreme Court held as follows:
By the same token, courts are charged with maintaining the balance : ensuring that agencies comply with the 'outline of minimum essential rights and procedures' set out in the APA. HR Rep No. 1980, 79th Cong, 2d Sess; 16 (1946); see Vermont Yankee Nuclear Power Corp., supra, at 549 n 21, 55 L Ed 2d 460, 98 S Ct 1197. Certainly regulations subject to the APA cannot be afforded the 'force and effect of law' if not promulgated pursuant to the statutory procedural minimum found in that Act.
28. Therefore, the Office Memorandum of the State of Meghalaya dated 11th Sept, 03, which is issued in total derogation of the provisions of Section 212 of the Motor Vehicles Act and Section 23 of the General Clauses Act, in our view cannot be held to be having any force of law.
29. At this juncture a submission made by Dr. B.P. Todi, learned Addl. Advocate General appearing for the State of Meghalaya in this context is required to be considered. According to the learned Addl. Advocate General though the Office Memorandum is claimed to have been issued in purported exercise of the power conferred upon the Governor under Section 138(2)(b) of the Motor Vehicles Act, 1988, in effect it is to be treated as an exercise of the authority vested on the Governor under Article 162 of the Constitution and, therefore, the contents of the Memorandum will still have the requisite force of law.
30. We are unable to accept the submission of the learned Addl. Advocate General for the reason that the executive power of the Governor/State is co-extensive with that of the legislative power of the State. The Motor Vehicles Act, 1988 is an enactment made by the Parliament referable to Entry 35 of List III of the Seventh Schedule of the Constitution of India. Entries in List III of the Seventh Schedule are fields of legislation over which both the Parliament and the State Legislatures concurrently have the legislative competence to make laws. But by virtue of a declaration under Article 254 of the Constitution of India the law made by the Parliament would prevail over the law made by the State Legislature, if there exists repugnancy between the two laws so made except when such law made by the Legislature of a State is later than the law made by the Parliament and such law made by the Legislature received the assent of the President of India. If the State of Meghalaya were to make a law inconsistent with Section 212 of the Motor Vehicles Act and Section 23 of the General Clauses Act such law would be void by virtue of the declaration under Section 254(2) unless such State law is later than the Motor Vehicles Act and reserved for the assent of the President of India and in fact receive the assent of the President. Indisputably the State of Meghalaya did not make any such law which obtained the assent of the President. Such being the limitation of the legislative competence of the State of Meghalaya with reference to the Motor Vehicles Act made by the Parliament the Governor of Meghalaya under the scheme of the Constitution, whose executive power is coextensive with that of the legislative power of the State of Meghalaya, could not have validly issued the Office Memorandum dated 11th Sept., 03 consistent with the limitations imposed by the Constitution.
31. In the circumstances we declare the abovementioned Memorandum dated 11-9-2003 to be wholly illegal and consequently the collection of fee from the owners or drivers of the motor vehicles, on the strength of Clause (8) of the said Memorandum, who are compelled by the State to undergo the process of weighment at various weighbridges operated on behalf of the State of Meghalaya must be held to be clearly illegal.
32. We may also place on record that the need for establishment of weighing devices for the purposes of the Motor Vehicles Act is undoubted. The number and the location of such weighing devices is a matter which requires rational planning having regard to the various factors like (1) nature and volume of the traffic, (2) suitability of the location of the weighing devices, more particularly in the light of the limitation of distances prescribed Under Section 114, etc. The Government while making the rules is expected to keep in mind that abovementioned factors, apart from many other factors, which are relevant for the context. We have noticed in batches of various writ petitions from the State of Meghalaya that no such planning is made, much less regulated by rules. In some writ petitions we have noticed that a private party establishes a weighbridge at a place of his choice and approaches the Government to authorize him to carry out weighment of motor vehicles. Such authorization is too willingly granted by the State purportedly in exercise of the authority conferred by the Office Memorandum dated 11th Sept, 2003, after collecting substantial amounts from such parties. Some times such collection is made on the basis of a tendering process and at times even by private negotiations. Obviously, the State of Meghalaya considers the collection of money through the process of weighment of vehicles as a source of revenue but not as a fee, for a service compulsorily imposed on the owners of the motor vehicles. What is permitted under Section 211 of the Motor Vehicles Act is only a fee which implies the amounts sought to be collected must bear some reasonable nexus to the service rendered. None of these factors appear to have received the attention of the State of Meghalaya, Twenty years after the enactment of the Motor Vehicles Act no rules contemplated under the Act are made in the State of Meghalaya.
33. We, therefore, direct the State of Meghalaya to make appropriate rules in accordance with law after a proper study of the various relevant factors.
34. With the above, all the matters are disposed of.
139. Necessity for registration.- 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.
241. Registration, how to be made.- (1), An application by or on behalf of the owner of a motor vehicle for registration shall be in such form and shall be accompanied by such documents; particulars and, information and shall be made within such period as may be prescribed by the Central Government.
358. 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.
4194. 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 or excess load, together with the liability to pay charges for off-loading of the excess load.
5138. Power of State Government to make rules.- (1) The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter other than the matters specified in Section 137.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for:
(a)...
(b) the installation and use of weighing devices;
(c)....
6 This procedure shall be followed by the Transport Department for granting of permission for installation and operation of Weigh Bridge for commercial and regulatory purposes.