HIGH COURT OF JAMMU AND KASHMIR
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(1.) THIS writ petition is directed against the notification No. TR -97/79/TC dated 7 -6 -1979 and the reliefs claimed in the petition are as
i) By a writ of certiorari impugned order contained in Annexure3
may be quashed as being violatve of petitioners fundamental rights and as
being without jurisdiction.
ii) By a writ of Mandamus respondents be directed to allow the
petitioners to conduct free trade and respect their right to carry on
trade in a free and fair manner.
iii) By a writ of prohibition or any other direction, respondents
Nos. 3 and 4 be restrained from interfferring with the petitioners right
of trade and free exercise of powers in terms of Annexure3".
iv) Any other writ, order or direction, as may be warrants in the
circumstances of the case to ensure freedom of the petitioners right of
trade and to ensure free movement of the petitioners vehicles may be
granted to them with appropriate costs of this writ petition.
The validity of this Notification was previously challenged in
this court in the case of Sh. Ghulam Mustafa Versus State of Jammu &
Kashmir and ors (writ petition No. 186 of 1979) decided on October
10,1979. A Division Bench of this court has held that the notification fails within the purview of Section 43 -A of the Motor Vehicles Act and is
constitutionally Valid. That knocks the bottom out of the reliefs claimed
in the writ petition and the same must be disallowed.
(2.) FACED with this situation, counsel for the petitioners tried to challenge the validity of the Notification on alternative grounds, which
are two fold. Firstly, that the notification is in the nature of the
executive instruction and insofar as it provides that" operation of goods
vehicle without Duly Slip will constitute an offence under the provisions
of the Motor Vehicles Act," it is vitiated. Secondly, that the proper
authority to implement the notification is the Motor Vehicles Department
and not the Police Department, who are actually carrying the notification
into effect. The relief claimed in the petition is patently unconnected
with this contention. So viewed the contention is irrelevant. Leave that
aside, the contention when considered on me its dose, not have any
substance in it. By providing that the operation of a Goods Vehicle
without duty slip will constitute an offence under the provisions of the
Motor Vehicles Act, the notification does not create any new offence. All
that it intends to convey is that the condition of the permit shall be
that the goods vehicle shall not operate without a duty slip and that the
contravention of such a condition, like the contravention of any other
condition of the permit shall constitute an offence under the Motor
Vehicle Act So providing the notification merely incorporates a statement
of law and nothing more. Therefore, the first limb of the argument is
(3.) SO far as the second limb of the argument is concerned, the police Department, as a Department charged with the duty of curbing
offences, would certainly come in where a goods vehicle operates without
a duty slip in contravention of the Notification inasmuch as the
department can prosecute the person concerned for the contravention of
the condition. So viewed the second limb of the argument is equally
mis -conceived and cannot prevail.
The result, therefore, is that this writ petition fails. It is
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