Rudrappa S/O. Siddappa Tongale vs The State Of Karnataka
2022 Latest Caselaw 1729 Kant

                THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH


           DATED THIS THE 4TH DAY OF FEBRUARY 2022


                            BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA


            WRIT PETITION NO.105182/2014 (GM-RES)
                            C/W.
            WRIT PETITION NO.104974/2014 (GM-RES)

IN W.P.NO.105182/2014

BETWEEN:

M/S.SHUBHAM TRANSPORT
B 5, 2ND FLOOR, EUREKA TOWER
TRAFFIC ISLAND, HUBBALLI
REP. BY ITS PROPRIETOR
SRI JITENDRA KUMAR AGARWAL
AGE: 41 YEARS,
R/O. HUBABLLI, TQ: HUBBALLI
DIST: DHARWAD

                                               ...PETITIONER.

(BY SHRI F V PATIL, ADVOCATE.)


AND:

1.   THE STATE OF KARNATAKA
     REP. BY ITS SECRETARY
     DEPT. OF TRANSPORT
     M S BUILDING,
     DR AMBEDKAR VEEDHI,
     BENGALURU
                                2




2.   THE DISTRICT MAGISTRATE
     UTTARA KANNADA, KARWAR

3.   THE DEPUTY COMMISSIONER
     UTTARA KANNADA, KARWAR

4.   THE EXECUTIVE ENGINEER
     NATIONAL HIGHWAY DIVISION
     UTTARA KANNADA, KARWAR

     (DELETED, VIDE COURT ORDER
     DATED 23.8.2019.)

5.   THE ASSISTANT REGIONAL
     TRANSPORT OFFICER
     SIRSI, TQ: SIRSI
     DIST: UTTARA KANNADA.

                                              ...RESPONDENTS.

(BY SHRI RAMESH CHIGARI, HCGP, FOR R.1 TO R.3 & R.5;
R.4 - DELETED, VIDE COURT ORDER DATED 23.8.2019.)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA, 1950, READ WITH SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO:

     A)   QUASH THE IMPUGNED ORDER DATED 16.06.2008
BEARING NO.DCB/MAG-1/CR-514/2007-08 PASSED BY THE 2ND
RESPONDENT/THE DISTRICT MAGISTRATE, UTTARA KANNADA, VIDE
ANNEXURE-B;

      B)  QUASH THE IMPUGNED ORDER DATED 31.10.2009
BEARING   NO.DCB/MAG-1/V-VA-17/09-10, PASSED    BY   THE
RESPONDENT NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA,
VIDE ANNEXURE-C;

     C)   DECLARE THAT THE NOTIFICATIONS ANNEXURES-B & C
ARE APPLICABLE ONLY IN RESPECT OF THE TRANSPORTATION OF
THE STACKING, HANDLING, EXPORTING ETC., OF IRON ORE IN
UTTARA KANNADA DISTRICT, BUT NOT IN RESPECT OF OTHER
GOODS, ETC.,.
                                  3




IN W.P.NO.104974/2014

BETWEEN:

RUDRAPPA S/O. SIDDAPPA TONGALE
AGE: 45 YEARS, OCC: VEHICLE OWNER
R/O. DEVIKOPPA VILLAGE,
TQ: KALGHATAGI, DIST: DHARWAD

                                                ...PETITIONER.

(BY SHRI F V PATIL, ADVOCATE.)


AND:

1.   THE STATE OF KARNATAKA
     REP. BY DEPT. OF TRANSPORT
     M S BUILDING, DR AMBEDKAR VEEDHI,
     BENGALURU

2.   THE DISTRICT MAGISTRATE
     UTTARA KANNADA, KARWAR

3.   THE DEPUTY COMMISSIONER
     UTTARA KANNADA, KARWAR

4.   THE EXECUTIVE ENGINEER
     NATIONAL HIGHWAY DIVISION,
     UTTARA KANNADA, KARWAR

     (DELETED, VIDE COURT ORDER
     DATED 23.8.2019.)

5.   THE REGIONAL TRANSPORT OFFICER
     HONNAVAR, TQ:HONNAVAR
     DIST: UTTARA KANNADA

                                              ...RESPONDENTS.

(BY SHRI RAMESH CHIGARI, HCGP, FOR R.1 TO R.3 & R.5;
R.4 - DELETED, VIDE COURT ORDER DATED 23.8.2019.)
                                4




     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA, 1950, READ WITH SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO:

     A)   QUASH THE IMPUGNED ORDER DATED 16.06.2008
BEARING NO.DCB/MAG-1/CR-514/2007-08, PASSED BY THE 2ND
RESPONDENT/THE DISTRICT MAGISTRATE, UTTARA KANNADA, VIDE
ANNEXURE-B;

      B)  QUASH THE IMPUNGED ORDER DATED 31.10.2009
BEARING   NO.DCB/MAG-1/V-VA-17/09-10, PASSED    BY   THE
RESPONDENT NO.3/THE DEPUTY COMMISSIONER, UTTARA KANNADA,
VIDE ANNEXURE-C;

     C)   DECLARE THAT THE NOTIFICATIONS ANNEXURES-B & C
ARE APPLICABLE ONLY IN RESPECT OF THE TRANSPORTATION OF
THE STACKING, HANDLING, EXPORTING ETC., OF IRON ORE IN
UTTARA KANNADA DISTRICT, BUT NOT IN RESPECT OF OTHER
GOODS, ETC.,.

     THESE PETITIONS COMING ON FOR PRELIMINARY HEARING
B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:


                            ORDER

Both the learned counsel appearing for the petitioner and

the respondents in unison would submit that the issue in the

subject writ petitions stands covered by the judgment rendered

by co-ordinate Bench of this Court, in Writ Petition Nos.100486-

100503 of 2014 (GM-RES) and other connected writ petitions

disposed off on 2.9.2014, wherein this Court has held as

follows:

"5. Heard the learned counsel appearing for the parties. The Executive Magistrate of the District could invoke Section 133 Cr.P.C. since he is specially empowered under the provisions. Even he could take action by exercising his power if it is found that the vehicle is carrying the weight in excess of the permissible limit and creating nuisance. As per the Executive Magistrate, if the vehicle is carrying the goods in excess of the permissible limit, then he has to take action as per the procedure established under the said provisions and also under Section 134 to 136 of the Cr.P.C. The said section, further read, that the Executive Magistrate, on receiving the report of a Police Officer or other information and on taking such evidence, if he thinks fit, call upon the concerned to appear before himself or some other officer of the Executive Magistrate. The reading of the said provision, clarifies that a person against whom offence is alleged has to be issued a notice to appear before him or any other officer on his behalf and issue a show cause notice as to why the order should not be made absolute. The preliminary orders made by him has to be confirmed by passing a final order on the basis of the procedures prescribed in the said provision, viz. the issuance of preliminary notification, show-cause notice providing an opportunity to him to defend whether he has caused nuisance or not and only thereafter action has to be initiated. Further, the procedure prescribed under Section 134 of the Cr.P.C. with regard to service of Notification of order which provides that the order shall be served on the persons against whom it is made and Section 135 of the Act compels a person to obey the order so passed under Section 133 and 134 of the Act and any failure of compliance, Section 136 comes into picture. Unless the procedure prescribed under the Act are followed, the Executive Magistrate cannot compel a person to pay the fine amount. The

Magistrate has to clarify himself that when a person is being condemned for an offence committed, he shall be provided fullest opportunity to defend his case and the order of this nature or any order should be issued only after following the procedure prescribed therein. However criminal he might be, but it is a fundamental rule that he shall be and is entitled for an opportunity before being condemned. When such fundamental rule is prevailing, in contravention of the same, the Executive Magistrate, by referring 2008-2009 order, levying a fine of Rs.42,000/- which is an error. The Executive Magistrate should have levied such fine if the person committing offence is liable, but before that, the procedure as provided under Sections 133 and 134 of the Act should have been followed. In the instant cases, I do not find any such procedure being followed by the Executive Magistrate.

6. The officers authorised under the MV Act also can invoke the power provided under the Act to levy fine and the excess loading vehicles. Section 194 of the MV Act and sub-section (1) and (2) of the Act enables the officer to punish a person with fine of Rs.2,000/- and additional amount of Rs.1,000/- per tonne of excess load together with liability to pay charges for off-loading the excess load. When such power is there, he should have invoked and passed necessary orders under these provisions. A person who is discharging his duties under the provisions of law, he shall have to discharge his power only as per such provisions strictly and effectively and he cannot carry on the fiat issued by Executive Magistrate in the year 2008-2009, and it cannot be pressed into service unless they are in consonance with the provisions of either Motor Vehicles Act or Cr.P.C. What is provided under Section 194 of the Motor Vehicles Act for levying fine on the transporters who are

carrying excess weight was substituted in the year 1984 by virtue of eroding of money value in the course of time and by taking into consideration, the present value of money a suitable fine has to be inflicted very stringently in order to prevent mischief. Even the Executive Magistrate could levy the amount of Rs.40,000/- unless he follows the procedure prescribed therein, it is not permissible for him to levy the fine. The procedure provided under Cr.P.C. and Motor Vehicles Act is sine quo non to levy or punish a person. As is stated earlier, however criminal a person is, he could not be punished unless giving him fullest opportunity to defend his case.

7. In the instant cases, the respondents have levied fine by referring 2008-2009 order without ascertaining whether the person committed the offence or not and without even providing an opportunity of hearing the transporter as to whether he has carried the excess weight over and above the permissible limit. Unless such provisions are followed, no action shall be taken under the Motor Vehicles Act. However, the petitioners were permitted to carry the weight, viz. laden weight. If excess weight is found, it is an offence under the provisions of Act and also under Indian Penal Code. Carrying excess load is against public policy is a nuisance and it affects the public at large. The State and Central Governments lay the road depending upon the vehicles that ply on that particular load and bearable weight on the road. When such roads have been built in a scientific manner and if are used improperly by carrying load more than what is permissible limit, then they have to be prevented strictly and as per provisions of Motor Vehicles Act, Cr.P.C. and Indian Penal

Code and other provisions including the National Highways Act, 1956.

8. In the light of the observations made, it is found that the show-cause notices issued by Assistant Regional Traffic Officer demanding payment of Rs.42,000/- per truck by referring 2008-2009 order which is without authority of law and are liable to be set aside. Accordingly they are set aside.

9. The Assistant Regional Traffic Officer, Karwar in his show-cause notice dated 16th August 2004 which is issued in respect of vehicle bearing registration No.KA- 22/B-1169 directed the petitioners to show cause within seven days and to produce the documents as per Section 200 of the MV Act and also fine as per the order of the Executive Magistrate dated 16th June 2008 and 31st October 2009 and the said show-cause notice has not indicated as to whether there is a specific finding against the petitioner for having committed an offence as per the notification. Under the circumstance, the said notification are set aside. Liberty is reserved to Executive Magistrate and also to the ARTO to pass necessary orders as per law and the procedure prescribed under the Motor Vehicles Act, Cr.P.C. and Indian Penal Code as also the National Highway Authorities Act, 1956.

10. With these observations all the petitions stand disposed of. The fine amount deposited by the petitioners in these petitions shall not be permitted to withdrawn. Liberty is also reserved to the petitioners to challenge the validity of rules in appropriate cases."

2. In the light of the submission made by the learned

counsel for the parties and the order passed by this Court

(supra), these writ petitions are also disposed off in the same

terms as the aforesaid cases have been disposed off.

Ordered accordingly.

SD/-

JUDGE Mrk/-