# Search Operator Association & Ors v. The State of U.P. & Ors

- **Citation:** (2021) 6 ILRA 659
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-23
- **Case number:** Writ -A No. 4855 of 2020
- **Bench:** Mrs. Sunita Agarwal, Deepak Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/search-operator-association-ors-v-the-state-of-u-p-ors-47137
- **Pages:** 13

## Headnote

A. Civil Law - U.P. Motor Vehicles Rules,
1998 - Rule 181- U.P. Motor Vehicles Act,
1988: Sections 113, 114, 19 & 200 - Motor
Vehicles - Regulation of overload vehicles -

In the present case, the controversy revolves
around the mechanism provided in the U.P. Motor
Vehicle Rules, 1998 which have been framed
under Motor Vehicles Act, 1988. (Para 12)
Permitting the overloaded vehicles to ply on
the public road after composition of the
offence punishable u/s 194 would amount
to fresh commission of offence in terms of S.
113(3) of the Act. The State thus cannot
permit carriage of the excess weight to ply
on the public road after compounding. (Para
13)

A mechanism was evolved vide circular dated
30.10.2015, to curb the menace of overloaded
vehicles plying on the public roads which has
resulted in significant damage to the road surface,
causes pollution through auto-emissions and is
safety hazard not only for the vehicles but also for
other road users. (Para 14, 15)

It was resolved in the meeting held on 28.10.2015
under the Chairmanship of the Minister of Public
Works Department that effective steps have to be
taken for regulating the problem of overloading in
the State of U.P. The direction was then issued by
the Transport Commissioner, U.P., Lucknow in
view of the said resolution by means of the circular
dated 30.10.2015 to all Regional Transport
Authorities (Enforcement) authorising them to get
the data from the toll plazas regarding overweight
vehicles. For compliance of the above directions,
communications were issued from time to time
and the procedure of issuance of e-challan on the
basis of the data collected from the toll plazas had
been set in operation since the year 2015. (Para
15)

As there is no challenge to the circular dated
30.10.2015 (which has been filed alongwith the
counter-affidavit), the plea of the petitioners
that retrospective effect has been given to
the office order dated 22.5.2020 by the U.P.
Transport Commissioner is liable to be
rejected.

B. Motor Vehicles Act, 1988 - Sections 67
& 68 - The challenge to the jurisdiction of
the Regional Transport Authorities to
issue e-challan on the basis of the data of
overload vehicles passed through weighin-motion machines installed at the toll
plazas of National Highways Authority of
India is found baseless. The Transport
Commissioner, U.P., Lucknow being the State
Transport Authority is empowered to give effect
to
the
directions
issued
by
the
State
660 INDIAN LAW REPORTS ALLAHABAD SERIES
Government u/s 67 of the Act and to exercise
and discharge such powers and functions which
are necessary to coordinate and regulate the
activities and policies of the Regional Transport
Authorities. (Para 17)

U.P. Motor Vehicle Rules, 1998 - Rule 181
- It has been brought on record that the
weigh-in-motion machines installed at the
toll plazas established under the National
Highways
Act
are
certified
by
the
Controller,
Weights
and
Measures
Department
whic

## Text

_Characters 0–39,997 of 45,141. This is a partial read: ask again with offset=39997 for what follows._

6 All. Search Operator Association & Ors. Vs. The State of U.P. & Ors.
659

41. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

42.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)06ILR A659
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.06.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DEEPAK VERMA, J.

Writ -A No. 4855 of 2020

Search Operator Association & Ors.
 ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Hanuman Prasad Dube, Sri Vipul Dube

Counsel for the Respondents:
C.S.C.

A. Civil Law - U.P. Motor Vehicles Rules,
1998 - Rule 181- U.P. Motor Vehicles Act,
1988: Sections 113, 114, 19 & 200 - Motor
Vehicles - Regulation of overload vehicles -

In the present case, the controversy revolves
around the mechanism provided in the U.P. Motor
Vehicle Rules, 1998 which have been framed
under Motor Vehicles Act, 1988. (Para 12)
Permitting the overloaded vehicles to ply on
the public road after composition of the
offence punishable u/s 194 would amount
to fresh commission of offence in terms of S.
113(3) of the Act. The State thus cannot
permit carriage of the excess weight to ply
on the public road after compounding. (Para
13)

A mechanism was evolved vide circular dated
30.10.2015, to curb the menace of overloaded
vehicles plying on the public roads which has
resulted in significant damage to the road surface,
causes pollution through auto-emissions and is
safety hazard not only for the vehicles but also for
other road users. (Para 14, 15)

It was resolved in the meeting held on 28.10.2015
under the Chairmanship of the Minister of Public
Works Department that effective steps have to be
taken for regulating the problem of overloading in
the State of U.P. The direction was then issued by
the Transport Commissioner, U.P., Lucknow in
view of the said resolution by means of the circular
dated 30.10.2015 to all Regional Transport
Authorities (Enforcement) authorising them to get
the data from the toll plazas regarding overweight
vehicles. For compliance of the above directions,
communications were issued from time to time
and the procedure of issuance of e-challan on the
basis of the data collected from the toll plazas had
been set in operation since the year 2015. (Para
15)

As there is no challenge to the circular dated
30.10.2015 (which has been filed alongwith the
counter-affidavit), the plea of the petitioners
that retrospective effect has been given to
the office order dated 22.5.2020 by the U.P.
Transport Commissioner is liable to be
rejected.

B. Motor Vehicles Act, 1988 - Sections 67
& 68 - The challenge to the jurisdiction of
the Regional Transport Authorities to
issue e-challan on the basis of the data of
overload vehicles passed through weighin-motion machines installed at the toll
plazas of National Highways Authority of
India is found baseless. The Transport
Commissioner, U.P., Lucknow being the State
Transport Authority is empowered to give effect
to
the
directions
issued
by
the
State
660 INDIAN LAW REPORTS ALLAHABAD SERIES
Government u/s 67 of the Act and to exercise
and discharge such powers and functions which
are necessary to coordinate and regulate the
activities and policies of the Regional Transport
Authorities. (Para 17)

U.P. Motor Vehicle Rules, 1998 - Rule 181
- It has been brought on record that the
weigh-in-motion machines installed at the
toll plazas established under the National
Highways
Act
are
certified
by
the
Controller,
Weights
and
Measures
Department
which
is
the
competent
authority to issue a license in such
matters. The stand of the respondent No. 2
(the Transport Commissioner, U.P., Lucknow)
that the weighing machines installed in the toll
plazas are covered by Rule 181 is found
justifiable, as it cannot be said that they are not
certified weighing devices within the meaning of
Rule 181 of the Rules. (Para 16, 18)

C. The challenge to the accuracy of the
weight
measured
by
the
weigh-inmotion machines installed at the toll
plazas indicated in the e-challans issued
by the Regional Transport Authorities,
cannot be sustained. (Para 19)

The records indicate that the statement of
"allowed
weight",
"vehicle
weight"
and
"overweight" had been given to the driver of
the vehicle with the relevant details indicating
the date and time of journey at the toll plaza
itself. It, therefore, cannot be said that the
driver or the person incharge of the vehicle
had not been given statement in writing of
the weight of the vehicle as is required under
sub-rule (5) of Rule 181. (Para 18)

Moreover, there is no challenge to the
accuracy
of
the
weighing
devices
in
accordance with the provisions of sub-rule (6)
of Rule 181 which gives right to the driver of
a vehicle to make a statement in writing to
challenge the accuracy of the weighing
device; (i) Within one hour of the receipt of
the statement referred to in sub-rule (5) of
the rule vehicle being overweight, or (ii)
Within fifteen days of the service of notice of
the proceeding (of challan) against him u/s 86
or S. 113. (Para 19)
D. Motor Vehicles Act, 1988 - Section 194
- It is to be noted that it is the bounden
duty of the officers of the Motor Vehicles
Department
authorized
by
the
State
Government to ensure the compliance of
the mandatory provisions of the Act. S. 114
read with S. 194 of the Act clearly provides that
if on weighing the vehicle is found to contravene
in any respect the provisions of S. 113 regarding
weight, by an order in writing, the officer of the
Motor Vehicles Department shall direct the
driver to off-load the excess weight at his own
risk and will not allow him to remove the vehicle
from that place until the laden weight has been
reduced. Charges of off-loading of excess
weight have to be paid by the driver or the
person incharge of the vehicle. The inaction of
the Regional Transport Authorities to
ensure compliance of S. 114(1) of the Act
read with S. 194(1) is, thus, writ large on
the face of the record. (Para 21)

The penalty or compounding fee for the offence
committed u/s 194 of the Act had been imposed
by the e-challan while initiating proceedings
under the Motor Vehicles Act. It is, thus, clear
that the offence for which the compounding fee
was imposed was allowed to continue beyond
the toll plaza. No notification of the State
Government to address the said issue has been
brought before the Court. (Para 20)

The State Government is, therefore, directed to
issue necessary notification to remove this
discrepancy so as to comply with the directions
of the Apex Court in Paramjit Bhasin (infra) in
conformity with the Motor Vehicles Act and the
rules framed thereunder. (Para 22)

Writ petition dismissed. (E-3)

Precedent followed:

1. Paramjit Bhasin & ors. Vs U.O.I. & ors., 2005
(12) SCC 642 (Sub Para 1 of Para 11)

2. P. Ratnakar Rao Vs. Govt.of A.P., 1996 (5)
SCC 359 (Para Sub Para 3 of Para 12)

Present petition assails Office Order dated
22.05.2020,
issued
by
Transport
Commissioner, U.P., Lucknow.
6 All. Search Operator Association & Ors. Vs. The State of U.P. & Ors.
661
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J. & Hon'ble Deepak Verma, J.)

1. Heard Sri Hanuman Prasad Dube
assisted by Sri Vipul Dube learned counsels
for the petitioners and Sri B.P. Singh
Kachhawaha learned Standing Counsel for
the State respondents.

2. The petitioners (14 in number) claim
to be the owners of Public Service Vehicles
(Trucks) and submit that they have been
operating their vehicles for carrying goods
from one destination to another for a long
time.

3. The challenge in the writ petition is
to the Office Order No. 677 dated 22.5.2020
issued by the Transport Commissioner, U.P.,
Lucknow namely respondent no. 2. Further
prayer in the writ petition is to quash all
consequential
actions/orders
passed
by
respondent nos. 3 to 10, who are the Regional
Transport Authorities at the district level, in
compliance of the impugned Office order
dated 22.5.2020. A writ of mandamus has
also been sought restraining the authorities
from issuing e-challan of the vehicles owned
by the petitioners in the light of the impugned
office order.

4. The submission of the learned
counsel for the petitioners is that the echallans had been issued by respondent nos. 3
to 10 in the month of June, 2020 on the
premise that the overloaded vehicles were
plied on the public roads by the petitioners on
different dates in the month of January, 2020.
The basis of the said allegation is the data of
weight/overweight provided by the toll plazas
which had been established under the
National Highways Authority Act, 1956.

The submission is that the statutory
provisions regulating operations of the
public vehicles namely U.P. Motor Vehicle
Rules, 1998 have been framed in exercise
of powers under the Motor Vehicles Act,
1988 (hereinafter referred to as "the Act"
and "the Rules"). It is contended that the
statutory enactments namely the Act and
the Rules grant power on the Authority and
prescribe procedure in the matter of
regulation of overload vehicles on public
roads which has to be strictly adhered to.

5. Relevant Sections 113 and 114 of
the Act, 1988 and the Rule 181 of the
Rules, 1998 have been placed before the
Court to submit that under the Act, the
owner of the public service vehicle has to
maintain the gross vehicle weight as
specified in the registration certificate. In
the event, the gross weight of the public
service
vehicle
exceeds
the
weight
specified in the certificate of registration of
the vehicle, the officer of the Motor
Vehicle Department is empowered to act in
accordance with Section 114 of the Act, i.e.
to place the vehicle for weighment on an
the approved weighing scale and in case the
overloading is found, the driver, the person
incharge of the vehicle or the owner has to
off-load the excess weight at his own risk
and only then he will be allowed to further
operate the vehicle. The aforesaid officer is
also empowered to impose penalty in
respect of excess weight found in the
vehicle,for violation of the Rules.

It is contended that Rule 181 of the
Rules provides procedure for weighment of
the public service vehicle and also entitles
the owner of the vehicle to dispute the
accuracy of weighing device and thus the
accuracy
of
weight
of
the
vehicle
determined by such device. What would be
the weighing device, has been prescribed in
sub-rule (1) of the Rule 181 and it does not
include the weighing machines installed in
662 INDIAN LAW REPORTS ALLAHABAD SERIES
toll plazas established under the National
Highways Authority Act. The Transport
Commissioner, U.P., Lucknow is working
as the State Head of the Transport
Department but he has no legislative power
to substitute the rules, inasmuch as, any
amendment in the rules can only be made
in accordance with the provisions of the
Motor
Vehicles
Act
by
the
State
Government. No such amendment has been
made and as such it is not permitted for the
Transport Commissioner, U.P., Lucknow
(respondent no. 2) to deviate from the
procedure prescribed in the rules.

6. It is vehemently argued that if a
particular procedure has been prescribed
under the law to do a thing in a particular
manner, they shall be done in that very
manner or not at all. The office order dated
22.5.2020
issued
by
the
Transport
Commissioner is, thus, in contravention of
the statutory rules and cannot be allowed to
be sustained as it amounts to overreach the
provisions of the Act and the Rules.

It is further contended that an
Enforcement Department has been created
under the Transport Department in the
State of U.P. and the officers of the
enforcement squad constituted at the
district level has been assigned task of
regulating the vehicles on the public roads.
Under the scheme of the Act and the Rules
framed thereunder, they are empowered to
check and challan the vehicles and even
seize the vehicle, in case of contravention
of the mandatory provisions of the statute.
The
action
of
respondents/district
authorities in issuing e-challens on the
basis of the data provided by the toll plaza
is nothing but usurption of the power of the
Enforcement squad to check, challan and
seize the vehicle whenever such an action
is required. The e-challan issued by the
Regional Transport Authorities imposing
penalty for the alleged offence of plying
overload
vehicle
was,
thus,
without
jurisdiction.

Even
otherwise,
the
Transport
Commissioner issued orders in the month
of May, 2020 and e-challans had been
issued under the Motor Vehicles Act for
alleged offence committed in the month of
January, 2020. No retrospective effect can
be given to the procedure prescribed by the
Transport Commissioner, even if, the same
is found in accordance with law.

Even
otherwise,
the
weighing
machines installed at the toll plazas cannot
be said to be a weighing device within the
meaning of Rule181 framed under the Act.
The reading of the said device cannot be
used
to
penalize
the
petitioners.
Consequentially all e-challans issued by the
Regional Transport Authorities against the
petitioners are liable to be quashed and
further direction is to be issued to restrain
the respondents from taking such an action
in future.

7. The record indicates that a counter
affidavit has been filed on behalf of
respondent nos. 2, 3 and 5 under the
directions issued by this Court in the order
dated 4.11.2020 in the present petition.
This Court had required the learned
Standing Counsel to file counter affidavit
either of the Transport Commissioner, U.P.,
Lucknow
or
any
responsible
officer
nominated by him to indicate as to whether
the order dated 22nd May, 2020 (Annexure
'3' to the writ petition) circulated to the
Regional
Transport
Officers,
Mirzapur/Saharanpur takes into account the
weighing procedure prescribed by the
statutory provisions and the Rules and
whether the toll plazas that are required to
6 All. Search Operator Association & Ors. Vs. The State of U.P. & Ors.
663
obtain and furnish the data had been
accredited accordingly. It was also to be
indicated as to whether such accredition
was provided and obtained by the toll
plazas for which data was sought by the
impugned order dated 22nd May, 2020.

The answer to the said queries and
para-wise reply to the writ petition in the
counter affidavit of respondent nos. 2, 3
and 5 have been placed before the Court by
the learned Standing Counsel.

It is submitted that the weighing
machines installed in the toll plazas are
accredited by the Metrology Department
and the Controller, Weights & Measures
which are the competent Authorities to
qualify, verify and validate the test data. It
is contended that the Controller, Weights &
Measures is the competent authority to
grant licence to manufacturers/dealers in
weights and measures after the accredition
was provided. After installation of the
weighing machines, their performance
audit is being conducted every three
months by the competent authority.

8. Learned standing counsel submits
that with the increasing problems of
overloading of vehicles and the resultant
road accidents, in order to effectively
control the situation, a directive dated
30.10.2015 was issued by the Transport
Commissioner, U.P., Lucknow. A copy of
the said order has been appended as
Annexure C.A. '3' to the counter affidavit.

It was provided therein that the
concerned Assistant Regional Transport
Officer (Enforcement) will get the list of
overloaded vehicles passed through weighin-motion machines installed in the toll
plazas of the National Highways Authority
of India (NHAI) on daily basis through email and necessary action shall be taken for
issuance of challan as per the provisions of
the Motor Vehicles Act, 1988 and the
Rules, in case of offending overloaded
vehicles. It was also provided that as
evidence, C.C.T.V. footage from the toll
plaza shall be collected on weekly basis.
This direction was to be implemented
immediately.

9. We may note that there is no
challenge to the aforesaid communication
by the petitioners though the same has been
brought on record along with the counter
affidavit.

A further direction was issued on 20th
January,
2016
by
the
Transport
Commissioner,
U.P.,
to
the
Project
Director, National Highways Authority of
India and the Regional Officers with
reference to the letter dated 30th October,
2015. It was requested therein that the list
of overload vehicles passed through the toll
plaza wherein weigh-in-motion machines
have been installed shall be provided to the
Regional Transport Officer on regular basis
so that effective action under the Motor
Vehicles Act can be taken against the
offenders.

The impugned office order dated
22.5.2020 was issued in the light of the
above noted previous orders asking the
Regional Transport Officers to provide
information in the prescribed proforma on
the basis of the daily data provided in the
excel sheets of the toll plaza in the area of
their jurisdiction with regard to the
overload vehicles for the period from
1.1.2020 till 15.3.2020.

10. We may further note here that a
national lock-down was declared from
26.3.2020 till the end of April, 2020 in
664 INDIAN LAW REPORTS ALLAHABAD SERIES
view of the progression of Covid-19
infection.

Further a letter dated 12.6.2020 was
issued from the office of the Transport
Commissioner, U.P. addressed to the Chief
Executive
Officer,
U.P.
Expressway
Industrial
Development
Authority
(UPEIDA), Yamuna Expressway Industrial
Development Authority (YEIDA), U.P
State Highways Authority (UPSHA) and
the Regional Officers, East and West,
National Highways Authority of India
apprising them that arrangement has to be
made to integrate e-challan with the
overloading
data
received
from
the
weighing devices installed at the toll
plazas. It was directed that in view of the
decision taken in the meeting held on
19.5.2020 under the Chairmanship of the
Chief Minister, Uttar Pradesh, action had to
be taken for integrating the above data and
to provide list of overload vehicles at the
official e-mail of the Regional Transport
Officers (Enforcement) so that effective
steps may be taken for compliance of the
order of the National Green Tribunal, New
Delhi.

11. Alongwith the counter affidavit, a
judgment and order dated 9th November,
2005 passed by the Apex Court in Paramjit
Bhasin and others vs. Union of India and
others1 has been appended. It was brought
to the notice of the Court that the Apex
Court had issued a slew of directions
therein to the State Governments to take
effective steps to regulate the plying of
overload vehicles in their State.

The rejoinder and the supplementary
rejoinder affidavits have been filed by the
petitioners to contradict the averments
made
in
the
counter
affidavit.
The
averments in the writ petition are reiterated
therein to assert that the right of the
petitioner to raise objections with regard to
the accuracy of the weighing machines
provided in the Rules cannot be taken away
by the circulars issued by the Transport
Commissioner allegedly on the basis of
some directions issued by the Chief
Minister of the State in a supervisory
meeting. No notification of the State has
been
brought
on
record
either
to
supplement the rules nor any amendment in
the rules has been made or even proposed.

A copy of the statement of a toll plaza
named as Daffi Toll Plaza, (Annexure
S.R.A.-1 to the supplementary rejoinder
affidavit) has been placed to assert that
even information being supplied by the toll
plazas are incomplete and incorrect and,
therefore, no further action can be taken on
the basis of such incomplete and incorrect
data.

12. Having heard learned counsel for
the parties and perused the record, it is
evident that the controversy revolves
around the mechanism provided in the U.P.
Motor Vehicle Rules, 1998 which have
been framed under the Motor Vehicles Act,
1988. Relevant Sections 113, 114, 194, 200
of the Act, 1988 and Rule 181 of the Rules,
1998 relied by the learned counsel for the
petitioners are extracted hereunder:

"113.
Limits
of
weight
and
limitations
on
use.-(1)
The
State
Government may prescribe the conditions
for the issue of permits for [transport
vehicles]
by
the
State
or
Regional
Transport Authorities and may prohibit or
restrict the use of such vehicles in any area
or route.

(2) Except as may be otherwise
prescribed, no person shall drive or cause
or allow to be driven in any public place
6 All. Search Operator Association & Ors. Vs. The State of U.P. & Ors.
665
any motor vehicle which is not fitted with
pneumatic tyres.

(3) No person shall drive or cause or
allow to be driven in any public place any
motor vehicle or trailer-

(a) the unladen weight of which
exceeds the unladen weight specified in the
certificate of registration of the vehicle, or

(b) the laden weight of which exceeds
the gross vehicle weight specified in the
certificate of registration.

(4) Where the driver of person in
charge of a motor vehicle or trailer driven
in contravention of sub-section (2) or
clause (a) of sub-section (3) is not the
owner, a court may presume that the
offence was committed with the knowledge
of or under the orders of the owner of the
motor vehicle or trailer.

114. Power to have vehicle weighed :
(1) Any officer of the Motor Vehicles
Department authorized in this behalf by the
State Government shall, if he has reasons
to believe that a goods vehicle or trailer is
being used in contravention of Section 113
require the driver to convey the vehicle to a
weighing device, if any, within a distance of
ten kilometers from any point on the
forward route or within a distance of
twenty kilometers from the destination of
the vehicle for weighment; and if on such
weighment
the
vehicle
is
found
to
contravene in any respect the provisions of
Section 113 regarding weight, he may, by
order in writing, direct the driver to offload the excess weight at his own risk and
not to remove the vehicle over trailer from
that place until the laden weight has been
reduced or the vehicle or trailer otherwise
been dealt with so that it complies with
Section 113 and on receipt of such notice,
the
driver
shall
comply
with
such
directions.

(2) Where the person authorized under
sub- section (1) makes the said order in
writing, he shall also endorse the relevant
details of the overloading on the goods
carriage permit and also intimate the fact
of such endorsement to the authority which
issued that permit.

194.
Driving
vehicle
exceeding
permissible weight: (1) Whoever drivers a
motor vehicle or causes or allows a motor
vehicle to be driven in contravention of the
provisions of Section 113 or Section 114 or
Section 115 shall be punishable with
minimum fine of two thousand rupees and
an additional amount of one thousand
rupees per tonne of excess load, together
with the liability to pay charges for offloading of the excess load.

(2) Any driver of vehicle who refuses
to stop and submit his vehicle to weighing
after being directed to do so by an officer
authorized in this behalf under Section 114
or removes or cause to removal of the load
or part of it prior to weighing shall be
punishable with fine which may extend to
three thousand rupees.

200. Composition of certain offences:
(1) Any offence whether committed before
or after the commencement of this Act
punishable under Section 177, Section 178,
Section 179, Section 180, Section 181,
Section 182, sub- section (1) or sub-section
(2) of Section 183, Section 184, Section
186, Section 189, sub-section (2) of Section
190, Section 191, Section 191, Section 194,
Section 196, or Section 198, may either
before or after the institution of the
prosecution, be compounded by such
officers or authorities and for such amount
as
the
State
Government
may,
by
notification in official gazette, specify in
this behalf.

(2) Where an offence has been
compounded under sub-section (1) the
offender, if in custody, shall be discharged
and no further proceedings shall be taken
against him in respect of such offence.
666 INDIAN LAW REPORTS ALLAHABAD SERIES

Rule 181 of the Rules:- Weighing
Device: Installation and use of- (1) A
weighing device for the purpose of Section
144 may be-

(i)
weigh-bridge
installed
and
maintained at any place by or under the
orders of the State Government or a local
authority; or

(ii)
weigh-bridge
installed
and
maintained by any person and certified
by the registering authority, to be a
weighing device for the purpose of the
Act and these rules; or

(iii) a portable wheel-weigher of any
kind approved by the State Government.

(2) The driver of any goods carriage
shall, upon demand by any officer of the
Transport Department mentioned in subrule (1) of Rule 227 or a registering
authority, so drive and manipulate the
vehicle as to place it or any wheel or
wheels thereof, as the case may be, upon
any weigh-bridge or whee-weighers in
such a manner that the weight of the
vehicle or the weight transmitted by any
wheel or wheels may be exhibited by the
weigh-bridge or wheel weigher.

(3) If the driver of a motor vehicle
fails within a reasonable time to comply
with requisition under sub-rule (2) a
person authorised under Section 114 may
cause any person, being the holder of
driving licence authorising him to drive
such vehicles to drive and manipulate the
vehicle.

(4) When the weight of axle-weight
of a motor vehicle is determined by
separate and independent determined of
the weight transmitted by any wheel or
wheels of the vehicle the axle-weight and
the laden weight of the vehicle shall be
deemd to be the sum of the weights
transmitted by the wheels of any axle or
by all the wheels of the vehicle, as the
case may be.

(5) Upon weighment of a vehicle in
accordance with the Section 114 and this
rule, the person who has required the
weighment or the person in charge of the
weighing device shall deliver to the driver
or other person incharge of the vehicle a
statement in writing of the weight of the
vehicle and of any axle, the weight of which
is separately determined.

(6) The driver or the person in charge
of, or owner of a vehicle which has been so
weighed may challenge the accuracy of the
weighing device, by a statement in writing
delivered-

(i) within one hour of the receipt of the
statement referred to in sub-rule (5) to the
person by whom the statement was
delivered to him and followed by a deposit
of rupees twenty in the office of the
Regional Transport Officer or Assistant
Regional Transport Officer, as the case
may, within three days of the date of
weighment, failing which the statement
challenging the accuracy of the machine
shall not be maintainable; or

(ii) within fourteen days of the service
on him of notice of proceedings against him
under Section 86 or Section 113 to the
authority or court issuing such notice.

(7)
Upon
receipt
of
statement
challenging the accuracy of a weighing
device under sub-rule (6), the person or
authority or the court, by when the
statement is received after ensuring that the
deposit of rupees twenty has been made,
shall apply to the District Magistrate for
the weighing device to be tested by such
person as the District Magistrate may
appointment and the certificate of such
person, as may be so appointed, regarding
the accuracy of the weighing device shall
be final.

(8) If, upon the testing of a weighing
device as aforesaid the weighing device is
certified to be inaccurate to an extent
6 All. Search Operator Association & Ors. Vs. The State of U.P. & Ors.
667
greater than any weight by which the gross
vehicle weight or unladen weight or any
axle weight of the vehicle is shown in the
statement referred to in sub-rule (5) to have
exceeded the gross vehicle-weight or the
registered unladen weight or the registered
axle weight, as the case may be, no further
proceedings shall be taken in respect of any
gross vehicle weight or unladen weight or
axle weight and if the device is certified to
be inaccurate to the said extent in respect
of every such gross vehicle weight unladen
weight, axle weight actually weighed, the
deposit prescribed in sub-rule (6) shall be
refunded.

(9) No person shall, by reason of
having challenged the accuracy of any
weighing device under sub-rule (6), be
entitled to refuse to comely with any order
in weighing under Section 113."

A reading of Section 113 of the Act
shows that it is within the jurisdiction of
the State Government to regulate plying of
the transport vehicles in any area or route
within their jurisdiction. Sub-section (3) of
Section 113 clearly prohibits plying of any
motor vehicle or trailer in any public place
which is overweight as per the conditions
mentioned in clause (a) (b) of the said subsection.

Section 114 empowers an officer of the
Motor Vehicles Department authorized by
the State Government to intercept a goods
vehicle or trailer, with respect to which he has
reason to believe that it is being used in
contravention of Section 113. It can require
the driver to convey the vehicle to the
weighing devices and on such weighment, if
the vehicle is found to contravene the
provisions of Section 113 regarding weight,
he may direct the driver to off-load the excess
weight at his own risk and not to remove the
vehicle or trailer from that place and will not
allow it to ply unless the laden weight has
been reduced so as to comply with Section
113. The officers so authorized while making
the said order in writing shall endorse the
relevant details of the overloading on the
goods carriage permit and intimate the said
fact to the concerned authority. Section 194
provides penalty for contravention of the
provisions of Sections 113 or 114 of the Act.
Any driver of such vehicle if refuses to stop
on interception by the officer concerned, he
shall be punishable with additional penalty
upto Rs. 3000/-. The offence committed
under
Section
194
(1)
and
(2)
are
compoundable under Section 200 of the Act.

While interpreting the provisions of
Section 194(1) and Section 200 of the Act,
penalty and compounding of the offence, in
the case of Paramjit Bhasin1 , the Apex
Court has noted that the constitutional
validity of the provision has been upheld in
P. Ratnakar Rao vs. Government of A.P.2.
However, on the question of challenge
therein to the notifications which have been
issued by the State Government under the
provisions of Section 200 of the Motor
Vehicles Act, it was held that the said
provisions does not authorize the State
Government to permit the excess weight to
be carried on the road when on inspection it
was noticed that the load of carriage was
beyond the permissible limit. It was held that
the intention of unloading the excess weight
is apparent from a bare reading of Section
194(1), inasmuch as, the liability to pay
charge for off-loading excess weight is fixed
on the person who drives the vehicle or
causes a motor vehicle to be driven in
contravention of the provisions of Sections
113 and 114.

13. It was noted by the Apex Court
that certain States were issuing green
cards/golden passes purportedly on the
668 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of the power of composition under
Section 202. After examining the matter,
the Central Government had requested the
respective States to discontinue such
cards/passes. The counsels appearing for
the State therein submitted that though the
system of issuing cards/passes had been
discontinued but the off-loading excess
weight from large number of vehicles
created traffic problems and several other
practical problems which according to them
needed to be addressed.

In the light of the aforesaid, the Apex
Court had issued the following directions:-

"It is indisputable that the power of
compounding
vests
with
the
State
Government, but the notification issued in
that regard cannot authorize continuation
of the offence which is permitted to be
compounded by payments of the amounts
fixed. If permitted to be continued, it would
amount to fresh commission of the offence
for which the compounding was done. The
State Governments which have not yet
withdrawn the notifications shall do it
forthwith. So far as the practical difficulties
highlighted are concerned, it is for the
State Governments concerned to make
necessary arrangements to ensure that the
difficulties highlighted can be suitably
remedied
by
the
State
Government
themselves without in any way overstepping
statutory prescriptions."

The Apex Court has thus held that
permitting the overloaded vehicles to ply
on the public road after composition of the
offence punishable under Section 194
would amount to fresh commission of
offence in terms of Section 113(3) of the
Act. The State ,thus, cannot permit carriage
of the excess weight to ply on the public
road after compounding.,

14. In the light of the above in the
facts of the present case, it may be noted
that vide circular dated 30th October, 2015,
a mechanism had been evolved to curb the
menace of overloaded vehicles plying on
the public roads which have resulted in
significant damage to the road surface,
cause pollution through auto-emissions and
are safety hazards not only for themselves
but also for other road users.

15. Taking note of the increase in
road accidents due to overloaded vehicles
on the National Highways and the State
Highways, it was resolved in the meeting
held on 28.10.2015 under the Chairmanship
of
the
Minister
of
Public
Works
Department that effective steps have to be
taken for regulating the problem of
overloading in the State of U.P. The
direction was then issued by the Transport
Commissioner, U.P., Lucknow in view of
the said resolution by means of the circular
dated 30th October, 2015 to all Regional
Transport
Authorities
(Enforcement)
authorising them to get the data from the
toll plazas regarding overweight vehicles.
For compliance of the above directions,
communications were issued from time to
time and the procedure of issuance of echallan on the basis of the data collected
from the toll plazas had been set in
operation since the year 2015.

As there is no challenge to the circular
dated 30.10.2015 (which has been filed
alongwith the counter affidavit), the plea of
the petitioners that retrospective effect has
been given to the office order dated
22.5.2020
by
the
U.P.
Transport
Commissioner is liable to be rejected.

16. As regards, the jurisdiction of the
Regional
Transport
Authorities
(Enforcement) to issue e-challan on the
6 All. Search Operator Association & Ors. Vs. The State of U.P. & Ors.
669
basis of the data of overloaded vehicles
provided by the toll plazas, we may note
that
the
Regional
Transport
Officer
(Enforcement) has been empowered to
intercept the plying of overloaded vehicles
in contravention of sub-section (3). The
weighing devices and the installation or use
of such devices for the purpose of Section
113 has been described in Rule 181 of
clause (ii). Three kind of devices have been
recognized in sub-rule (1) of Rule 181
which include a portable wheel-weigher of
any
kind
approved
by
the
State
Government. The power of the State
Government to control road transport has
been given in Section 67 of the Act,
wherein it can issue directions, from time
to time, both to the State Transport
Authority and the Regional Transport
Authority by issuing notification in the
Official Gazette. Under Section 68 of the
Act, a State Transport Authority is
constituted by the State Government to
exercise and discharge the powers and
functions specified in sub-section (3) of the
said section. The power of the State
Transport Authority described in subsection (3) of Section 68 reads as under:-

"3. The State Transport Authority and
every Regional Transport Authority shall give
effect to any directions issued under section
67 and the State Transport Authority shall,
subject to such directions and save as
otherwise provided by or under this Act,
exercise and discharge throughout the State
the following powers and functions, namely:-
-

(a) to co-ordinate and regulate the
activities and policies of the Regional
Transport Authorities, if any, of the State;

(b) to perform the duties of a Regional
Transport Authority where there is no such
Authority and, if it thinks fit or if so required
by a Regional Transport Authority, to
perform those duties in respect of any route
common to two or more regions;

(c) to settle all disputes and decide all
matters on which differences of opinion arise
between Regional Transport Authorities; and

(ca) Government to formulate routes for
plying stage carriages;]

(d) to discharge such other functions as
may be prescribed"

It has been brought on record that the
weigh-in-motion machines installed at the toll
plazas
established
under
the
National
Highways Act are certified by the Controller,
Weights and Measures Department which is
the competent authority to issue a license in
such matters. The stand of the respondent no.
2 (the Transport Commissioner, U.P.,
Lucknow) that the weighing machines
installed in the toll plazas are covered by
Rule 181 of U.P. Motor Vehicle Rules, 1998
is found justifiable from the reading of the
Rule 181 of the Rules.

17. The challenge to the jurisdiction
of the Regional Transport Authorities to
issue e-challan on the basis of the data of
overload vehicles passed through weigh-inmotion machines installed at the toll plazas
of National Highways Authority of India is,
thus,
found
baseless.
The
Transport
Commissioner, U.P., Lucknow being the
State Transport Authority is empowered to
give effect to the directions issued by the
State Government under Section 67 of the
Act and to exercise and discharge such
powers and functions which are necessary
to coordinate and regulate the activities and
policies
of
the
Regional
Transport
Authorities.

18. In view of the above, the weighin-motion machines installed at the toll
plazas being accredited by the competent
authority i.e. the Controller, Weights and
670 INDIAN LAW REPORTS ALLAHABAD SERIES
Measures and the Metrology Department, it
cannot be said that they are not certified
weighing devices within the meaning of
Rule 181 of the Rules, 1998.

The records indicate that the statement
of "allowed weight", "vehicle weight" and
"overweight" had been given to the driver
of the vehicle with the relevant details
indicating the date and time of journey at
the toll plaza itself. It, therefore, cannot be
said that the driver or the person incharge
of the vehicle had not been given statement
in writing of the weight of the vehicle as is
required under sub-rule (5) of Rule 181.

19. Moreover, there is no challenge to
the accuracy of the weighing devices in
accordance with the provisions of sub-rule
(6) of Rule 181 which gives right to the
driver of a vehicle to make a statement in
writing to challenge the accuracy of the
weighing device; (i) Within one hour of the
receipt of the statement referred to in subrule (5) of the rule vehicle being
overweight, or (ii) Within fifteen days of
the service of notice of the proceeding (of
challan) against him under Section 86 or
Section 113.

The challenge to the accuracy of the
weight measured by the weigh-in-motion
machines installed at the toll plazas
indicated in the e-challans issued by the
Regional Transport Authorities ,therefore,
cannot be sustained.