Holding

The State’s memorandum authorising weigh‑bridge installations and fee collection is valid, and the State may levy reasonable fees even without the rules being framed, thereby setting aside the High Court’s order.

Summary

The Supreme Court examined whether the Government of Meghalaya could issue a memorandum under Section 138(2)(b) of the Motor Vehicles Act, 1988 authorising weigh‑bridge installations and fee collection without the rules prescribed by the Act being framed. The Court held that the Constitution (Articles 162 and 166) empowers the State to exercise such executive functions and that a statute remains operative even if the ancillary rules are not yet made. Consequently, the State may levy reasonable fees for weigh‑bridge services, and the memorandum was deemed valid. The High Court’s order directing the State to frame rules was set aside, and the appeals were allowed.

Issues considered

Whether the State Government can issue an executive order under the Motor Vehicles Act in the absence of framed rules.
Whether the levy of fees for weigh‑bridge services is permissible under the Act and the Constitution.
Whether the memorandum issued by the Governor under Section 138(2)(b) is valid despite the lack of rules.

Legislation cited

General Clauses Act, 1897s. 23
Motor Vehicles Act, 1988s. 113, s. 114, s. 138(2)(b), s. 194, s. 211, s. 212

Subjects

Motor Vehicles Act, 1988Rule-makingExecutive power of StateLevy of feesWeighbridge regulationsConstitution of IndiaArticle 162Article 166Article 301Sixth ScheduleTax vs fee

Judgment

[2009) 10 S.C.R. 536 .,
A JANTIA HILL TRUCK OWNERS ASSOCIATION
v.
SHAILANG AREA COAL DEALER AND TRUCK OWNER
ASSOCIATION AND OTHERS
(Civil Appeal No. 4225 of 2009)
B JULY 10, 2009

[S.8. SINHA AND DEEPAK VERMA, JJ.]
..
MOTOR VEHICLES ACT, 1988:
c
Section 138(2)(b), 211, 212 - Memorandum dated 11th
September, 2003 issued by the Government of Meghalaya
- Trucks carrying cargo compelled to pay substantial amounts
at innumerable points - Writ Petitions filed - Before the High
Court, State admitting establishment of check posts and
D T

collection of fees without framing Rules - High Court directing
framing of Rules - On appeal, Held: Even in a case where
the statute provides for certain things to be done, subject to
Rules, any action taken without framing the Rules, the same
has to be given effect to - Levy of charges for rendering
E
services by itself does not infringe upon the right of any person
- Impugned judgment set aside - Constitution of India,
Articles 73, 166, 298, 301.
~

Several writ petitions were filed before the High
F Court alleging that trucks carrying cargo in the State of
Meghalaya are compelled to pay substantial amounts to
various entites at innumerable points. Before the High
Court, it was admitted that check posts have been
established and fees are being collected without framing
G any Rules and in terms of the Memorandum dated 11th
September, 2003 issued by the Government purportedly
in terms of Section 138(2)(b) of the Motor Vehicles Act,
1988. The said Memorandum was held to be illegal and a
writ of or in the nature of mandamus was issued directing
H 536
JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 537
COAL DEALER AND TRUCK OWNER ASSN.
the--Government of Meghalaya to make Rules in exercise A
of its powers thereunder. Hence the appeals. The
question that arose for consideration was whether the
State Government was empowered to issue any executive
order in respect of matters required to be prescribed by
Rules. B
Allowing the appeals, the Court

.. HELD: 1.1. Article 162 of the Constitution of India in
unequivocal terms provides that the executive power of
a State shall extend to the matters with respect to which c
the Legislature of the State has power to make laws. Such
executive powers having regard to the Rule of Executive
Business are framed in terms of Article 166. Clause (3) of
Article 166 empowers the Governor to make rules for the
~
more convenient transaction of the business of the D
Government of the State. (Para 23] (551-D-E]

1.2. The Memorandum was issued in the name of the
Governor. If is not in dispute that it was authenticated in
terms of clause (2) of Article 166 of the Constitution. The E
power was exercised by the State under the provisions
of the Act. The said order was to remain in force till Rules
are framed in the prescribed manner. [Para 24] (551-F-G]
-1
2.1. The provisions of the Act mandate that the
unladen weight and laden weight must be determined. F
Indisputably, weighing devices had to be provided for the
said purpose. It is true that for the said purpose Rules
may have to be framed. It is, however, a well settled
principle of law that even in a case where the statute
provides for certain things to be done, subject to Rules, G
any action taken without framing the Rules would not
> render any action invalid. If a statute is workable even
without framing of the Rules, the same has to be given
effect to. The law itself except in certain situations does
H
538 SUPREME COURT REPORTS (2009] 10 S.C.R.

A not envisage vacuum. [Para 24] [551-G-H; 552-A-B]

2.2. Non compliance of the provisions relating to
"laden weight" and "unladen weight" being penal in
nature must be held to be imperative in character. For the
purpose of construction of the provisions of the Act the '
B
Courts will have to take into consideration the freedom
on the part of the citizens as also non citizens to carry f
out trade and business in terms of Article 301 of the
Constitution of India, subject of course to the other
,.""
provisions thereof. [Para 25] [552-B-D] """
c
3.1. The State for giving effect to the provisions of the
statute may upon itself take the burden of providing for
weighbridges and collection of fees etc. in exercise of its
power under Article 298 or Article 162 of the Constitution
D of India. It may, however, permit to provide parties to ~

install weighbridges, subject to regulations. [Para 27]
(552-F-G]

3.2. The Memorandum in question provides broad
terms and conditions under which the private parties
E
were authorized to set up weighbridges and collection of
fees. Power of the State to do so is not in question. It is
not a case where fees are required to be prescribed for
undertaking administrative action. [Para 28] [552-H; 553- •
A-BJ
F
4.1. Apart from Section 211 of the Act the State is
entitled to make laws for collection of fees in respect of
any manner enumerated in List II of the Seventh Schedule
of the Constitution of India as would be evident from
G Entry 66 thereof. If it itself carries on business, it is entitled
to lay down the norms therefor. Where the State or the
State controlled agencies render services for the purpose
of effectuation of the provisions of a Central Act, it is
entitled to charge a reasonable amount in respect thereof.
H [Paras 29 and 30] [553-B-C; 553-C-D]
JANTIA Hill TRUCK OWNERS ASSN. v. SHAILANG AREA 539
COAL DEALER AND TRUCK OWNER ASSl';J.

4.2. There exists a distinction between an executive A
order made in terms of Articles 73 and 162 of the
Constitution of India and one made under the Sixth
Schedule thereof. [Para 32) (556-8)
... 4.3. Furthermore the levy of charges towards
B
rendering services by itself does not infringe upon the
right of any person. Services of the weighbridges are
;
required to be obtained by the drivers/owners of the
trucks for fulfillment of their statutory obligations. They
cannot obtain such services free of any charges. When
private parties are given the right to set up such
c
weighbridges, indisputably they would be entitled to
reasonable profit. [Paras 32 and 33) (556-C-D)

The Commissioner., Hindu Religious Endowments v. Sri
"'f " Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 0
SC 282; Jindal Stainless Ltd. (2) and another vs. State of
Haryana and others (2006) 7 SCC 241 and M. Chandru v.
The Member Secretary, Chennai Metropolitan Development
Authority and another, 2009 (2) SCALE 750, relied on.
E
Surinder Singh v. Central Govt., (1986) 4 SCC 667,
distinguished.
~

T. Cajee v. U. Jonnanik Siem and another (1961] 1 SCR
750; Vimal Kumari v. State of Haryana and others, (1998) 4
SCC 114; High Court of Gujarat v. Gujarat Kishan Mazdoor F
Panchayat, (2003) 4 SCC 712; Mahabir Vegetable Oils (P)
Ltd. and another v. State of Haryana and others, (2006) 3 sec
620 and Indian Express Newspapers (Bombay) Pvt. Ltd. and
others v. Union of India and others (1985) 1 SCC 641,
referred to. G
.I
5.The impugned judgment cannot be sustained. The
same is, therefore, set aside. [Para 39] [558-H]

H
540 SUPREME COURT REPORTS [2009] 10 S.C.R.

.
A Case Law Reference:
[1961] 1 SCR 750 referred to Para 31
/

(1986) 4 sec 667 distinguished Para 31
AIR 1954 SC 282 relied on Para 34
B
(2006) 1 sec 241 relied on Para 35
2009 (2) SCALE 750 relied on Para 35
(1998) 4 sec 114 referred to Para 36
c
(2003) 4 sec 112 referred to Para 36
(2006) 3 sec 620 referred to Para 36
(1985) 1 sec 641 referred to , Para 37
D
• !"'
CIVIL APPELLATE JURISDICTION : Civil Appeal No.

E
4225 of 2009.

From the Judgment & Order dated 23.6.2009 of the High
Court of Guwahati in Civil Writ Petition No. 3239 of 2009.
- ....
WITH

C.A. Nos. 4226-4227 of 2009, 4228 & 4229 of 2009.
•
Ranjit Kumar, Amit Kumar, Somesh Chandra Jha, Pragyan
F Sharma, L. Roshmani, Mandakini Sharma and Dr. Kailash
Chand for the Appellants.

A. Sharma, Subhro Sanyal, Ranjan Mukherjee, S.C.
Ghosh, Santanu Bhowmick and Ranjan Mozumdar (for
Corporate Law Group) for the Respondents.
G
The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. This batch of appeals arise out of a judgment and order
H
.. JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 541
COAL DEALER AND TRUCK OWNER ASSN. [S.B. SINHA, J.]

• dated 23rd June, 2009 passed by a Division Bench of the A
Gauhati High Court at Guwahati whereby and whereunder the
Memorandum dated 11th September, 2003 issued by the
Government of Meghalaya purported to be in terms of Section
138 (2)(b) of the Motor Vehicles Act, 1988 (for short 'the Act')
was held to be illegal and a writ of or in the nature of mandamus B
was issued directing the Government of Mehalaya to make
Rules in exercise of its powers thereunder.

3. The basic fact of the matter is not in dispute.

Several writ petitions were filed before the High Court c
alleging that trucks carrying cargo in the State of Meghalaya
are compelled to pay substantial amounts to various entites at
innumerable points who broadly fall under four categories - (1)
persons operating weighbridges on various terms and
conditions stipulated by the State of Me_ghalaya ; (2) the local D
tribal chiefs known as Sylems and Sardars ; (3) the authorities
implementing the provisions of the Air (Prevention and Control
of Pollution) Act, 1981 and (4) the Police officers of the State
of Meghalaya.
E
The Sylems and Sardars being the local tribal chiefs,
admitted establishment of such toll gates and collection of
monies from the cargo carrying vehicles asserting customary
rights in them therefor and which are said to be protected by
Sixth Schedule of the Constitution of India and the laws made
F
by the District Council thereunder.

Indisputably a batch of the writ petitions including the
connected appeals relating to the right of Sylems and Sardars
who established Toll Gates and collection of monies by them,
had been heard in part by the High Court . G
• It is also not in dispute that various interim orders were
passed in the said pending matters. The Gauhati High Court,
however, took 'up for hearing a batch of six matters in regard
1 to the legality of collection of monies by the operators of the
H
542 SUPREME COURT REPORTS [2009] 10 S.C.R. ..
A weighbridges in the State of Meghalaya opining that the •
purported grievances made in the other writ petitions relating
to establishment of toll gates and collection of monies by other
agencies could be determined later.

4. We may, at the outset also place on record that in the
8
writ petition filed by the respondent - Shallang Area Coal
Dealer and Truck Owner Association 16 points at which the
driver/owners of the trucks are subjected to extortionate
payments exacted without any authority of law were mentioned
which are as under:-
C
Checkgates on:

Shallang- Riangdo-Athiabari Road (Meghalaya portion of the
Road)
D
1. Shallang Area Labour Association - Rs.50/-
At Kyllon-Mathei
2. Western Hills Weigh Bridge - Rs.250/-
E (On Challan-Rs.30/- Actual charge
is more at Nongdaju)
3. Nongstoin Syiemship Checkgate at - Rs.400/-
4. Nongstoin Syiemship Checkgate at - Rs.100/-
F
5. MVI not a Checkgate but persons
kept by this MVI at Athiabari - Rs.1000/-
(No slip)
6. Sirdar of Riangsih Checkgate - Rs.100/-
at Myndo
G
7. Sirdar of Jyrgam Checkgate at - Rs.100/-
Tynghor
8. Smoke-Testing Checkgate at - Rs.65/-
Kamrangshi On slip
H
JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 543
COAL DEALER AND TRUCK OWNER ASSN. [S.B. SINHA, J.]

actually A

- collected
Rs.250/-

9. Pollution under control at Athiabari - Rs.65/-
on slip B
actually
collected
Rs.250/-

10. D. Shira Weighbridge at Athiabari - No slip
Average c
per truck
Rs.1000/-
--<·
'
11. Police - Rs.400/-
O.C.Hahim P.S. (No slip/ D
Challan)
12. R.H. Weigh Bridge at Hahim - Rs.500/-
13. Automobile Smoke Emission - Rs.250/-
Testing Station near Hahim Bazar not mentioned E
on slip)
14. J.K. Rabha Weigh Bridge af - Rs.500/-
Mau man
15. Smoke Testing at Mauman - Rs.250/- F
16. Smoke Testing at Haldipara - Rs.250/-
Total - Rs.5330/-
5. The prayers in the said writ petition read as under:-

"In the premises aforesaid, it is most respectfully prayed G
that this Hon'ble Court may be graciously pleased to issue
Rule calling upon ~he respondents to show cause as to why
a writ of mandamus shall not be issued directing stoppage

- of collection of illegal tolls and subjection of weighment and
H
544 SUPREME COURT REPORTS [2009] 10 S.C.R.

A "smoke testing" more than once on public roads in Assam 1

and Meghalaya with immediate effect and as to why all
illegal check gates including the gates where the trucks are
subjected to weighment and "smoke testing" more than
-
once wherein such toll collection takes place shall not be
B dismantled."

6. The writ petitioner-respondent, however, directly or
indirectly did not question the validity or otherwise of the
aforementioned Memorandum dated 11th September, 2003.
c 7. The State of Meghalaya in its counter-affidavit filed
before the High Court inter alia stated :-

"5. That with regard to the statement made in paragraphs '>-
2, 3 4, 5, 6 and 7 of the petition your deponent denies the
D same and states that the Members of the Petitioner's •
Association have not made any complaint before the
concerned Police Station or any other Respondent
Authority regarding any illegal collection of tolls/ extortion
as alleged in the petition. It may also be stated that so far
illegal collection of tolls by the Respondent No. 6 is
E
concerned; no Motor Vehicle Inspector has been posted
in the Check gates as mentioned in the petition. As such
illegal collection or extortion by the said person from the
•
Members of the Petitioner's Association does not arise. ...
The statements made in the petition are general
F statements containing wild allegations and the same are
vague in nature. Whenever, any such complaint was
received by the authority regarding any collection of illegal
tolls, necessary steps were taken in the matter by the
District Administration."
G
8. Before the High Court, however, on a query made by ~

the Court, the learned Advocate General for the State of
Meghalaya inter alia contended that check posts have been
established and fees are being collected without framing any
H
JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 545
COAL DEALER AND TRUCK OWNER ASSN. [S.B. SINHA, J.]
r Rules and in terms of the said Memorandum. A
,... 9. By reason of the impugned judgment the High Court
) while recognizing that weighbridges can be established in
I terms of the Act but in absence of any Rules framed in this
behalf no fee can be collected. The State of Meghalaya does B
not prefer any appeal thereagainst uptil now.

~
10. The appellants were not parties before the High Court.

11. Mr. Ranjit Kumar, learned senior counsel appearing for
the appellants would contend that the appellants have preferred c
these appeals against the impugned judgment because in
absence of any valid receipt granted to them by the authorized
weighbridge owners, they would not be permitted to carry on
inter-state transport business and thus their right under Article
.,,
301 of the Constitution would be violated. D
12.. Mr. A Sarma, learndd senior counsel appearing on
behalf of the respondent-writ petitioner, however, would support
the impugned judgment.

13. Before adverting to the question involved in these E
appeals, we may place on record the relevant part of the said
Memorandum dated 11th September, 2003 laying down the
... procedures required to be followed by the Transport
"" Department for granting permission for installation and
operation of weighbridges for commercial and regulatory F
purposes. They read as under :-

"1. This procedure shall be followed by the Transport
Department for granting of permission of installation and
operation of Weigh Bridge for commercial and regulatory
G
.,. ~
purposes.
- 8. For the weighment of vehicles fees may be charged at
a rate fixed by the Transport Department.
... 9. The weighment of vehicles, whenever and wherever it H
546 SUPREME COURT REPORTS (2009] 10 S.C.R.

A 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 these directions/
procedure and in keeping with the relevant provisions of
-
the Motor Vehicles Act, 1988.
B
10. Whenever 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.
c
14. Fees shall be paid at the rate fixed by Government for
each application for permission and for renewal of
permission. All fees under these provisions shall be paid
into the concerned Treasury and credited in the relevant
D Head of Account.
•

15. This Office Memorandum shall also apply and be
binding on all the other weighbridges set-up on or before
notification of this Office Memorandum.
E 17. These orders shall remain in force till the finalization
and approval of the Rules for installation, Regulation. and
Operation of weighbridges in Meghalaya." ~

,._
14. Indisputably an interim order was passed on 11th June,
F 2008 directing stoppage qf collection of monies from the truck
owners/drivers by the various local tribal chiefs. Pursuant
thereto or in furtherance thereof the Deputy Commissioner,
West Khasi Hilts, District of Meghalaya issued an order dated
20th February, 2009 directing the said persons to remove/stop
all the illegal Toll gates/Check gates/Weigh Bridge on public
G
roads and stop collection of illegal tolls therein immediately
within one week from the date of issue of the said letter.

15. Writ petitions were filed thereagainst and a learned
;.
-
Single Judge of the High Court kept the said stay order in
H
JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 547
COAL DEALER AND TRUCK OWNER ASSN. [S.8. SINHA, J.]

~·
abeyance during the pendency of the writ petitions. Writ appeals A
preferred thereagainst are pending before the Division Bench
~ of the High Court .
....
16. As indicated heretobefore although various questions
,..,,~

were raised in the writ petitions filed by the Association of the
B
Coal Dealers and Truck Owner as also by tribal chiefs, the High
Court thought it fit not to go into other questions except the one
involved in these appeals.
(

.,-4 17. It is not in dispute that the Act in unequivocal terms
provides to specify among other things the weight which a c
carrier of a given description may carry. The said provisions
are necessary not only for construction and maintenance of road
... but also to prevent accidents .
~
18. The Act provides for registration of the Motor Vehicles D
• in terms of the provisions contained in Chapter IV of the Act.
Section 41 prescribes that an application therefor is required
to be accompanied by such documents, particulars and
information and shall be made within such period as may be
prescribed by the Central Government. In terms of Section 58
E
of the said Act, the Central Government is authorized to notify
the gross vehicle weight, and axle weight of certain types of
transport vehicles.
1

""!"" Sub-section (3) of Section 113 of the Act prohibits any
person to drive or cause or allow to be driven in any public place F
any motor vehicle - (a) the unladen weight of which exceeds
th.e unladen weight specified in the certificate of registration and
(b) the laden weight of which exceeds the gross vehicle weight
specified in the certificate of registration.
G
19. Section 114 of the Act, which is relevant for our
-. ~ purpose, reads as under:-

"114. Power to have vehicle weighed.

(1) Any officer of the Motor Vehicles Department H.
548 SUPREME COURT REPORTS [2009) 10 S.C.R.
~

A authorised in this behalf by the State Government shall, if
he has reason to be!ieve that a goods vehicle or trailer is • """
being used in contravention of section 113,] require the a
driver to convey the vehicle to a weighing device, if any,
within a distance of ten kilometres from any point on the
B forward route or within a distan~e of twenty kilometres 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 j
may, by order in writing, direct the driver to off-load the
c excess weight at his own risk and not to remove the vehicle
or trailer from that place until the laden weight has been I-

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,
D (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."
E
20. Section 138 of the said Act empowers the State
Government to make rules. Sub-section 2(b) thereof states that
such rules may provide for "the installation and use of weighing

F
devices". ..
Section 194 of the said Act 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
G 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.
H
JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 549
' COAL DEALER AND TRUCK OWNER ASSN. [S.B. SINHA, J.]

• (2) Any driver of a vehicle who refuses to stop and submit
his vehicle to weighing after being directed to do so by an
A

~ officer authorised in this behalf under section 114 or
removes or causes the removal of the load or part of it
prior to weighing shall be punishable with fine which may
extend to three thousand rupees." 8
.!. Section 211 of the Act provides for power to levy fee .

~ It reads :-

( "211. Power to levy fee. c
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
D
certificates, licences, permits, tests, endorsements,
badges, plates, countersignatures, authorisation, 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 E
rule made thereunder as may be considered necessary:

Provided that the Government may, if it considers
• necessary so to do, in the public interest by general or
r special order, exempt any class of persons from the F
payment of any such fee either in part or in full."

Section 212 provides for publication, commencement and
laying of rules and notifications. Sub-sections (1 ), (2) and (3)
thereof read as under:-
G
'-.. ..J.
"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 H
550 SUPREME COURT REPORTS [2009) 10 S.C.R.

A 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.
"""'
B (3) Every rule made by any State Government shall be laid,
as soon as may be after it is made before 'the State
~
Legislature."

21. We may at this juncture also notice the provisions of '
c Section 23 of the General Clauses Act, 1897 which reads:-

23. Provisions applicable to making of rules or bye-laws ,
II
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
D 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
E proposed rules or bye-laws for the information of person
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
F
manner as the (Government concerned) prescribed.

(3) there shall be published with the draft a notice specifying
a date on after which the draft will be taken into
consideration.
G
(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, --
I

that authority also, shall consider any objection or
H
JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 551
COAL DEALER AND TRUCK OWNER ASSN. [S.B. SINHA, J.]
suggestion which may me received by the authority having A
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 8
to make rules or bye-laws after previous publication shall
be conclusive proof that the rule or bye-law has been duly
made."

22. The core question which arises for consideration in
these appeals is as to whether the State Government is C
empowered to issue any executive order in respect of the
matters required to be prescribed by Rules.

23. Article 162 of the Constitution of India in unequivocal
terms provides that the executive power of a State shall extend o
to the matters with respect to which the Legislature of the State
has power to make laws. Such executive powers having regard '
to the Rule of Executive Business are framed in terms of Article
166. Clause (3) of Article 166 empowers the Governor to make
rules for the more convenient transaction of the business of the E
Government of the State, and for the allocation among Minister
of the said business in so far as it is not business with respect
to which the Governor is by or under the Constitution required
" to act in his discretion.

24. The Memorandum was issued in the name of the F
Governor. It is not in dispute that it was authenticated in terms
of clause (2) of Article 166 of the Constitution. The power was
exercised by the State under the provisions of the Act. The said
;der was to remain in force till Rules are framed in the
prescribed manner. G

~ The provisions of the Act mandate that the unladen weight
and laden weight must be determined. Indisputably, weighing
devices had to be provided for th,e said purpose. It is true that
for the said purpose Rules may have to be framed. It is, H

-
552 SUPREME COURT REPORTS [2009] 10 S.C.R.

A however, a well settled principle of law that even in a case where
the statute provides for certain things to be done, subject to
Rules, any action taken without framing the Rules would not
render any action invalid. If a statute is workable even without
framing of the Rules, the same has to be given effect to. The
B law itself except in certain situations does not envisage vacuum.

25. Non compliance of the provisions relating to "laden
weighf and "unladen weighf being penal in nature must be held
to be imperative in character. For the purpose of construction •
of the provisions of the Act the Courts will have to take into
C consideration the freedom on the part of the citizens as also
non citizens to carry out trade and business in terms of Article
301 of the Constitution of India, subject of course to the other
provisions thereof.

D 26. The High Court itself noticed the two primary •
contentions of the writ petition for its consideration, which read

"Essentially the grievances in these cases is two fold- (1)
the State lacks the necessary authority of law to collect
E
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."

F 27. The second contention was not answered.
In fact there was no sufficient pleadings brought on record
by the parties in that behalf. The State for giving effect to the
provisions of the statute may upon itself take the burden of
G providing for weighbridges and collection of fees etc. in
exercise of its power under Article 298 or Article 162 of the
Constitution of India. It may, however, permit to provide parties
to install weighbridges, subject to regylations.
28. The Memorandum in question provides broad terms
H

-
JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 553
COAL DEALER AND TRUCK OWNER ASSN. [S.B. SINHA, J.]
and conditions under which the private parties were authorized A
to set up weighbridges and collection of fees. Power of the
State to do so is not in question. It is not a case where fees
are required to be prescribed for undertaking administrative
action.
B
29. Apart from Section 211 of the Act the State is entitled
to make laws for collection of fees in respect of any manner
enumerated in List II of the Seventh Schedule of the Constitution
" of India as would be evident from Entry 66 thereof. If it itself
carries on business, it is entitled to lay down the norms therefor.
c
30. Where the State or the State controlled agencies
\ render services for the purpose of effectuation of the provisions
...
of a Central Act, it, in our opinion, is entitled to charge a
reasonable amount in respect thereof.
,. 31. We may, in this behalf, refer to a decision of this Court
D

'1 in T. Cajee v. U. Jormanik Siem and another [ [1961) 1 SCR
750]. The question which arose for consideration therein was
as to whether in absence of any law regulating the appointment
and succession of Chiefs and Headmen, a notice issued to the
E
• respondent therein to show cause as to why he should not be
removed from his office, was valid. The respondent questioned
the said legality of the show cause notice as also the order of
suspension passed against him on the grounds :-
"(i) That he could not be removed by administrative F
orders but only by making a law ;
(ii) that the Executive Committee could not take any
i action in this case, and ·
. (iii) that the order of suspension was ultra vires." G
~
Wanchoo, J. speaking for the Court opined as under:-

"The High Collrt seems to be of the view that until such a
H
554 SUPREME COURT REPORTS [2009] 10 S.C.R.

A law is made there could be no power of appointment of a
Chief or Siem like the respondent and in consequence .
there would be no power of removal either. With respect,
it seems to us that the High Court has read far more into
para 3(1)(g) than is justified by its language. Para 3(1) is
B in fact something like a legislative list and enumerates the
subjects on which the District Council is competent to
make laws. Under para 3(1 )(g) it has power to .make laws
with respect to the appointment or succession of Chiefs
or Headmen and this would naturally include the power to
remove them. But it does not follow from this that the
c appointment or removal of a Chief is a legislative act or
that no appointment or removal can be made without there
being first a law to that effect. The High Court also seems •
to have thought that as there was no provision in the Sixth
Schedule in terms of Articles 73 and 162 of the
D
Constitution, the administrative power of the District
Council would not extend to the subjects enumerated in
para 3(1). Now para 2(4) provides that the administration
of an autonomous district shall vest in the District Council
and this in our opinion is comprehensive enough to include
E all such executive powers as are necessary to be exercised
for the purposes of the administration of the district. It is
true that where executive power impinges upon the rights
of citizens it will have to be backed by an appropriate law;
•
but where executive power is concerned only with the
F personnel of the administration it is not necessary - even
though it may be desirable - that there must be laws, rules
or regulations governing the appointment of those who
would carry on the administration under the control of the
District Council. "
·G
The said decision has been noticed by this Court in
Surinder Singh v. Central Govt., [ (1986) 4 SCC 667]. It was
held therein:-
"6. The High Court has held that the disposal of property
H
JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 555
COAL DEALER AND TRUCK OWNER ASSN. [S.B. SINHA, ~-1
"· fonning part of the compensation pool was "subject" to the A
... rules framed as contemplated by Sections 8 and 40 of the
Act and since no rules had been framed by the Central
Government with regard to the disposal of the urban
agricultural property forming part of the compensation
pool, the authority constituted under the Act had no B
jurisdiction to dispose of urban agricultural property by
auction-sale. Unless rules were framed as contemplated
~
by the Act, according to the High Court the Central
Government had no authority in law to issue executive
directions for the sale and disposal of urban agricultural C'
property. This view was taken, placing reliance on an
earlier decision of a Division Bench of that court in Bishan
Singh v. Central Government. The Division Bench in'
Bishan case took Jhe view that since the disposal of the
.. compensation pool property was subject to the rules that
may be made, and as no rules had been framed, the D
Central Government had no authority in law to issue
administrative directions providing for the transfer--otthe
urban agricultural land by auction-sale. In our opinion the....
view taken by the High Court is incorrect. Where a statute
confers powers on an authority to do certain acts or E
exercise power in respect of certain matters, subject to
... rules, the exercise of power conferred by the statute does
not depend on the existence of rules unless the statute
-expressly provides for the same. In other words framing
of the rules is not condition precedent to the exercise of F
the power expressly and unconditionally conferred by the
statute. The expression "subject to the rules" only means,
in accordance with the rules, if any. If rules are framed, the
powers so conferred on authority could be exercised in
accordance with these rules. But if no rules are framed G
there is no void and the authority is not precluded from
exercising the power conferred by the statute."
32. Mr. Sharma would lay emphasis on the opinion of the
Bench in Cajee (supra) that executive power infringing upon the
H
556 SUPREME COURT REPORTS [2009] 10 S.C.R.

A rights of the citizens would have to be backed by appropriate
.
law. ...
The aforementioned observation was made in the context
of the Constitutional provisions contained in the Sixth Schedule.

B There exists a distinction between an executive order
made in terms of Articles 73 and 162 of the Constitution of India
and one made under the Sixth Schedule thereof. •
Furthermore the levy of charges towards rendering
c services by itself does not infringe upon the right of any person.

33. Services of the weighbridges are required to be
obtained by the drivers/owners of the trucks for fulfillment of their
statutory obligations. They cannot obtain such services free of
any charges. When private parties are given the right to set up
D such weighbridges, indisputably they would be entitled to
rea~onable profit.

It was not the contention of the writ petitioner-respondent
that the charges levied for getting their trucks weighed at the
E weighbridges are exorbitant or they are compelled to get their
trucks weighed at several places, although they otherwise fulfill
the statutory requirements laid down in Section 211 of the Act.
~

34. Our attention has been drawn by Mr. Sharma to a
decision of this Court in The Commissioner., Hindu Religious
F Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, [AIR 1954 SC 282].

"44. Coming now to fees, a "fee" is generally defined to
be a charge for a special service rendered to individuals
G by some governmental agency. The amount of fee levied
;
is supposed to be based on the expenses incurred by the
Government in rendering the service, though in many cases
the costs are arbitrarily assessed. Ordinarily, the fees are
uniform and no account is taken of the varying abilities of
H
JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 557
COAL DEALER AND TRUCK OWNER ASSN. [S.B. SINHA, J.]
different recipients to pay. These are undoubtedly some A
of the general characteristics, but as there may be various
kinds of fees, it is not possible to formulate a definition that
would be applicable to all cases."

The ratio laid down therein is not in dispute. B
35. We may, however, notice that the question has been
considered by a Constitution Bench of this Court in Jindal
~
Stainless Ltd. (2) and another vs. State of Haryana and others
[ (2006) 7 SCC 241 ]. The Bench noticed the difference
between 'a tax' 'a fee' and 'a compensatory tax" inter alia in c
the following terms :-

"40. Tax is levied as a part of common burden. The basis
of ~ tax is the ability or the capacity of the taxpayer to pay.
The principle behind the levy of a tax is the principle of D
ability or capacity. In the case of a tax, there is no
identification of a specific benefit and even if such
identification is there, it is not capable of direct
measuremerit. In the case of a tax, a particular advantage,
if it exists at all, is incidental to the State's action. It is
E
assessed on certain elements of business, such as,
manufacture, purchase, sale, consumption, use, capital,
.. etc. but its payment is not a condition precedent. It is not
a term or condition of a licence. A fee is generally a term
of a licence. A tax is a payment where the special benefit,
F
if any, is converted into common burden.

41. On the other hand, a fee is based on the "principle of
equivalence". This principle is the converse of the "principle
of ability" to pay. In the case of a fee or compensatoi;y tax,
the "principle of equivalence" applies. The basis of a fee G
or a compensatory tax is the same. The main basis of a
fee or a compensatory tax is the quantifiable and
measurable benefit. In the case of a tax, even if there is
any benefit, the same is incidental to the government action
and even if such benefit results from the government H
558 SUPREME COURT REPORTS [2009] 10 S.C.R.

A action, the same is not measurable. Under the principle
of equivalence, as applicable to a fee or a compensatory
tax, there is an indication of a quantifiable data, namely, a
benefit which is measurable."

8 [See also M. Chandru v. The Member Secretary, Chennai
Metropolitan Development Authority and another, [ 2009 (2)
SCALE 750].

36. Although not very relevant, we may notice that this Court •
in Vimal Kumari v. State of Haryana and others, [(1998) 4
c sec 114] has held that even the draft rules may be followed
where no rules in accordance with the statutory provisions have
been framed. {See also High Court of Gujarat v. Gujarat
Kishan Mazdoor Panchayat, ((2003) 4 SCC 712] and Mahabir
Vegetable Oils (P) Ltd. and another v. State of Haryana and
D others, [ (2006) 3 sec 620 ]}.

37. Mr. Ranjit Kumar relying on the decision of this Court
in Indian Express Newspapers (Bombay) Pvt. Ltd. and others
v. Union of India and others, [ (1985) 1 sec 641 ], would
E contend that the High Court had no jurisdiction to direct State
to frame Rules. We need no go into the said question as before
us Mr.Ranjan Mukherjee, learned counsel appearing on behalf
of the State of Meghalaya made a categorical statement that
the Rules would be framed within eight weeks.

F 38. This Court in Surinder Singh (supra) opined that a
copy of the order must be produced before the High Court
before the same can be quashed. The validity of an order
issued by the State Government, furthermore should be
questioned by a person aggrieved upon raising grounds
G therefor. The State must be given an opportunity to file a counter-
affidavit meeting those grounds. >

39. We, therefore, are of the opinion that the impugned
judgment cannot be sustained. The same is, therefore, set
H aside.
JANTIA HILL TRUCK OWNERS ASSN. v. SHAILANG AREA 559
COAL DEALER AND TRUCK OWNER ASSN. [S.B. SINHA, J.]

40. The writ petitioners, however, would be at liberty to file A
.... additional affidavit (s) questioning the validity or otherwise of
the said Memorandum. The High Court must also give an
opportunity to the State and other interested parties to present
their respective cases before the High Court.
8
41. The High Court in the peculiar facts and circumstances
of this case may also consider the desirability of consideration
of the matters pending before it together, if not already
disposed of, so that the points raised by the writ-petitioners may
be dealt with comprehensively.
c
42. The appeals are allowed. No costs.

G.N. Appeals allowed. ·