Sec. 194 of M.V.Act - while releasing vehicle seized under under sec.194 and imposition of fine beyond the scope of section under writ petition not maintainable - Writ appeal - single judge order a uniform rate of penalty beyond the scope of the section incorporated in sec. 194 in respect of overloading of Goods vehicles while releasing the seized vehicle with out giving an opportunity to the trial court to impose fine as per section 194 of M.V.Act in his writ jurisdiction - D.B. set aside the orders of single judge as no writ is maintainable and as no court should travel beyond the scope of the section = The Tadpatri Lorry Owner's Association,Anantapur District..Appellant M. Raju & others.....Respondents = 2014 ( Feb. Part) judis.nic.in/judis_andhra/filename=10849

Sec. 194 of M.V.Act - while releasing vehicle seized under under sec.194 and imposition of fine beyond the scope of section under writ petition not maintainable - Writ appeal - single judge order a uniform rate of penalty beyond the scope of the section incorporated in sec. 194 in respect of overloading of Goods vehicles while releasing the seized vehicle with out giving an opportunity to the trial court to impose fine as per section 194 of M.V.Act  in his writ jurisdiction - D.B. set aside the orders of single judge as no writ is maintainable and as no  court should travel beyond the scope of the section =

This appeal is directed against the judgment and order dated 31.12.2012 by
which the learned Trial Judge directed the respondent to release the seized
vehicle upon realization of penalty amount @ Rs.1,000/- per tonne in case of
overloading up to 15% of maximum capacity and beyond this @ Rs.2,000/- per  
tonne.  
While disposing of the matter interpreting Section 194 of the Motor
Vehicles Act, 1998 (for short, "the Act"), His Lordship has laid down principle
of applying above section.
        Upon perusal of the impugned judgment and order, it appears to us that the
learned Trial Judge has taken the role of legislator and adjudicator. 
His
Lordship by the impugned judgment and order has substituted so to say the
existing penal provision, namely; 
Section 194 of the Motor Vehicles Act, 1988,
which reads as under:

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

        (2)     Any driver of a vehicle who 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 causes the removal of the load or part of
it prior to weighing shall be punishable with find which may extend to three
thousand rupees." 

        We are of the view that the learned Trial Judge has no jurisdiction to
make modified penal provision what legislature has not done.  

Further, it appears that the learned Trial Judge has also passed
an omnibus and general order and to be followed in all cases the amount of
punishment levied without leaving the same for imposition by the learned
Magistrate.  
This, in our view, cannot be done by the Court for it is simply
worst case of illegal usurpation of power of the Court of first instance.  
Each
and every individual case has to be dealt with according to its own merit and
this has to be done by the Court alone as mentioned in the Act at the first
instance.  
At the first instance, the writ Court has no such power and such
exercise of power, in our view, would be without jurisdiction and non-est.
Therefore, the impugned order cannot be sustained for a single moment.  We
therefore set aside the same.
        It is recorded in the impugned order that the said order has been
circulated to all the Judicial Magistrates of First Class in the State for
compliance.  
2014 ( Feb. Part) judis.nic.in/judis_andhra/filename=10849


THE HON'BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON'BLE SRI  JUSTICE SANJAY KUMAR                

WRIT APPEAL No.171 OF 2014    

05-02-2014

The Tadpatri Lorry Owner's Association,Anantapur District..Appellant

M. Raju & others.....Respondents

Counsel for Appellant: Sri R.N. Hemendranath Reddy

Counsel for the respondent No.1:  Sri Ch. Ravinder
Counsel for respondent Nos.2 & 3:  Government Pleader for Transport
                                                       
<GIST:

>HEAD NOTE:  

?Cases referred

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD                

        THE HON'BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA                
AND
THE HON'BLE SRI JUSTICE SANJAY KUMAR        

WAMP.No.271 of 2014  
And
WRIT APPEAL No. 171 OF 2014    

       
DATE: 05.02.2014


COMMON JUDGMENT: (Per the Hon'ble The Chief Justice Sri Kalyan Jyoti Sengupta)    

        WAMP.No.271 of 2014 is filed to grant leave to the petitioner to file writ
appeal against the order dated 31.12.2012 of the learned Trial Judge in
W.P.No.40356 of 2012.
        Leave granted to prefer appeal to the petitioner, who is the Lorry Owner's
Association, as we are absolutely satisfied that this association was seriously
prejudiced and affected by the impugned judgment and order.  We take up this
appeal for final hearing today itself, as all the parties agree to.
        This appeal is directed against the judgment and order dated 31.12.2012 by
which the learned Trial Judge directed the respondent to release the seized
vehicle upon realization of penalty amount @ Rs.1,000/- per tonne in case of
overloading up to 15% of maximum capacity and beyond this @ Rs.2,000/- per  
tonne.
While disposing of the matter interpreting Section 194 of the Motor
Vehicles Act, 1998 (for short, "the Act"), His Lordship has laid down principle
of applying above section.
        Upon perusal of the impugned judgment and order, it appears to us that the
learned Trial Judge has taken the role of legislator and adjudicator.
His
Lordship by the impugned judgment and order has substituted so to say the
existing penal provision, namely;
Section 194 of the Motor Vehicles Act, 1988,
which reads as under:

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

        (2)     Any driver of a vehicle who 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 causes the removal of the load or part of
it prior to weighing shall be punishable with find which may extend to three
thousand rupees." 

        We are of the view that the learned Trial Judge has no jurisdiction to
make modified penal provision what legislature has not done.
To put it
differently the Court has got no power of legislation under the Constitution.
Such an exercise is fraught with concept of separation of power which is again
basic structure of the Constitution (see Kesavananda vs. State of Kerala (AIR
1973 SC 1461).
Further, it appears that the learned Trial Judge has also passed
an omnibus and general order and to be followed in all cases the amount of
punishment levied without leaving the same for imposition by the learned
Magistrate.
This, in our view, cannot be done by the Court for it is simply
worst case of illegal usurpation of power of the Court of first instance.
Each
and every individual case has to be dealt with according to its own merit and
this has to be done by the Court alone as mentioned in the Act at the first
instance.
At the first instance, the writ Court has no such power and such
exercise of power, in our view, would be without jurisdiction and non-est.
Therefore, the impugned order cannot be sustained for a single moment.  We
therefore set aside the same.
        It is recorded in the impugned order that the said order has been
circulated to all the Judicial Magistrates of First Class in the State for
compliance.  
It is submitted by the learned lawyer for the petitioner-appellant
that following this order the First Class Magistrates are imposing punishment
uniformly.  We, therefore, direct the registry with a quickest mode of
communication to circulate forthwith this order to all concerned including all
the Judicial Magistrates of First Class in the State.
We make it clear that the
learned Judicial Magistrates of First Class will proceed in accordance with law,
as each and every individual case as warranted.  We also make it clear that it
would be open for the appropriate Legislature to make any amendment, if so
advised, with regard to the quantum of punishment.
We clarify that if this
order is accepted by the writ petitioner, then this judgment will not be
applicable to him.
        Accordingly, the appeal is allowed.  There is no order as to costs.
___________________  
K.J. SENGUPTA, CJ  
__________________  
SANJAY KUMAR, J  
Date: 05.02.2014