IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17979 of 2010 Vikash Kumar Singh, son of Sri Ram Bharosa Singh, resident of Suresh Colony, Hazaribagh, Police Station Sadar Hazaribagh, District Hazaribagh, Jharkhand……..Petitioner. Versus 1. The State of Bihar through the Principal Commissioner- cum-Secretary, Department of Transport, Government of Bihar, Patna. 2. The Secretary-cum-Commissioner, Department of Transport, Government of Bihar, Patna. 3. The Joint Secretary, Department of Transport, Government of Bihar, Patna District Transport Officer, Patna. 4. The District Transport Officer, Aurangabad. 5. Sri Bhanu Shekhar Prasad Singh, President, Bihar Truck Owner‟s Association (Bihar), Patna S/o Late B.P. Sinha, resident of village and P.O. Majhaulia Estate, District Sitamarhi (Bihar)….. ……….Respondents. For the petitioner : M/s Anand Kr. Ojha and Ashok Kr. Karna, Advocates. For the State : Mr. Ram Balak Mahto, Advocate General with M/s J.P. Karn, AAG-4 and Ashok Kr.Dubey, AC to AAG-4. For the intervener : Mr. Chittranjan Sinha, Sr. Advocate with M/s Rajeev Shekhar and Abhanjali, Advocates. P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN, J. ----------- O R D E R 07/ 21.02.2011 I.A. No.10324 of 2010 has been filed by the President, Bihar Truck Owner‟s Association, Patna for being impleaded as a party respondent to the writ petition. Although learned counsel for the petitioner vehemently opposes the impleadment of intervener as party respondent, but from the facts and circumstances of the case it is quite apparent that the intervener applicant as well as his Association is vitally interested in upkeep and maintenance of the roads of this State - 2 - and the damage caused to the roads of the State adversely affects their business and hence the outcome of this writ petition is bound to have immense effect one way or the other upon intervener‟s Association and its members. Accordingly, this interlocutory application is allowed and the intervener applicant Sri Bhanu Shekhar Prasad Singh, President, Bihar Truck Owner‟s Association, Patna S/o Late B.P. Sinha, resident of village and P.O. Majhaulia Estate, District Sitamarhi (Bihar) is added as respondent no.5 to the writ petition. 2. Petitioner is the owner of the Truck bearing Registration No.JH-02M-2857 registered with the authorities of the Transport Department at Hazaribag, Jharkhand and has filed this writ petition for quashing Letter No.4047 dated 10.08.2010 (Anneuxre-4) issued by the Secretary-cum Commissioner of Transport, Government of Bihar (respondent no.2) by which directions were issued for prosecution of persons plying overloaded vehicles on the roads of the State of Bihar under the Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as the PDPP Act for the sake of brevity) and also for directing the respondents to provide adequate weighing facilities with trained hands to undertake the exercise of weighing of the vehicles for invoking the powers under section 194 read with section 200 of the Motor Vehicle Act 1988 (hereinafter referred to as the M.V. Act for the sake of brevity) subject to the option of the transporter, - 3 - without initiating any proceeding as per the impugned letter dated 10.08.2010 (Anneuxre-4) and for other ancillary reliefs. 3. The grounds taken by the petitioner in his writ petition was that the impugned letter which was an executive instruction from the authorities was violative of the provisions of the M.V. Act, which made the offence of overloading a compoundable offence under section 200 of the M.V. Act and hence the direction of criminal prosecution for the offence of overloading without satisfying the condition precedents for invoking the provisions of the PDPP Act amounted to violation of the Fundamental Rights guaranteed under Article 19 (1) (g) of the Constitution of India to practise Trade and Commerce including the Transport business without any unreasonable obstruction. It was also claimed that initiation of proceedings under the M.V. Act and the PDPP Act amounts to double jeopardy causing unreasonable and arbitrary restriction on the business of transportation which is an established trade of the petitioner. Petitioner has also taken the ground that despite noticing the facts that there may be possibility of damage to the road surface, pollution and safety hazard, the Hon‟ble Supreme Court had recommended the exercise of powers under the M.V. Act apart from taking sufficient steps for strict enforcement of the provisions relating to overloading under the M.V. Act, and the Central Motor Vehicle Rules, 1989. It was further claimed that the authorities are putting the transporters, including the petitioner to arbitrary and unreasonable - 4 - restrictions under the threat of prosecution severely affecting petitioner‟s right to pursue his transport business, as the impugned executive instruction issued by the authorities has conferred unbridled and unguided power upon the authorities to prosecute the allegedly overloaded vehicles without instruction to determine the factum of damage before initiating any prosecution. 4. Learned counsel for the petitioner very eruditely and elaborately argued various aspects of the case and claimed that M.V. Act is a self-contained sufficient enactment prevailing over the general laws. It is also stated that sections 113(3), 114 and 115 thereof provide limit of weight and load on the vehicles as per the Certificate of Registration which is granted under section 41 of the Act, whereas section 194 (1) & (2) of the Act provides punishment for plying vehicle with weight in excess to the permissible limit for which fine is provided and not imprisonment, whereas section 200 of the Act provides that any offence punishable under sections 177, 178, 179, 180, 181, 182, 183, 184, 186, 189, 190, 191, 192, 194, 196 and 198 of the Act, shall be compounded by such officers or authorities and for such amount as the State Government may satisfy on this behalf and as soon as the offence is compounded the offender if in custody shall be discharged and no further proceeding shall be taken against him in respect of such offence. Learned counsel for the petitioner further claimed that this is a benevolent provision - 5 - which had been duly affirmed as such by the Apex Court in case of P. Ratnakar Rao and others vs. Govt. of A.P. and others, reported in (1996) 5 Supreme Court Cases 359. He also relied upon another decision of the Apex Court in case of Paramjit Bhasin and ors. vs. Union of India and ors., reported in 2006 (1) PLJR (SC) 65 holding that it was 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. 5. Learned counsel for the petitioner also argued that the then Commissioner of Transport, Government of Bihar issued letter dated 10.05.2010 (Annexure-2) to all the District Magistrates of the State for taking action against plying of overloaded vehicles under the provisions of the PDPP Act, but the said order was objected to by several persons and hence the Secretary of the Department stayed the said letter of the Commissioner until a policy decision is taken by the Government vide letter dated 14.05.2010 (Annexure-3). It was further claimed that when the earlier Commissioner of Transport became Secretary of the Department he issued the impugned letter dated 10.08.2010 (Annexure-4) restoring the directions passed by him as Commissioner vide letter dated 10.05.2010 (Annexure-2) without any mention of the earlier letter of stay issued by the then Secretary of the Department on 14.05.2010 (Annexure-3) in spite of the fact that no policy - 6 - decision in that regard had been taken by the Government. 6. Learned counsel for the petitioner asserted that in spite of the aforesaid facts and circumstances and merely on the basis of the above mentioned impugned letter of the Secretary-cum-Commissioner of Transport dated 10.08.2010 (Annexure-4) an F.I.R. was lodged against the petitioner for the alleged offence of overloading under the provisions of the PDPP Act. It was also submitted that an objection was raised with respect to the said action of criminal prosecution in case of overloading before the Hon‟ble Minister, Department of Transport but it was never replied and hence this writ petition has been filed. It was further asserted that the statements made by the respondents in their counter affidavit denying the claims of the petitioner are not backed by any document and hence such unsubstantiated statements made in the counter affidavit cannot be legally entertained as had been held by the Apex Court in case of Bharat Singh and others vs. State of Haryana and others along with other analogous cases, reported in (1988) 4 Supreme Court Cases 534 : AIR 1988 SC 2181. 7. Learned counsel for the petitioner averred that the PDPP Act applies only in case of public commotions, riots, etc. as is apparent from its Statement of Objects and Reasons and hence it is not at all applicable to the facts of the instant case where there is no question at all of any public commotions, riots etc. It was further claimed that section 3 of - 7 - the PDPP Act is with respect to the place where mischief causing damage had taken place, but the said provision does not include road, but in spite of the aforesaid fact an F.I.R. has been lodged under the aforesaid provision although admittedly the vehicle was seized from the road and there was no allegation of damage to any public property as mentioned in the said provision. He further stated that in these facts and circumstances the provisions of the PDPP Act were wrongly applied whereas the offence committed under sections 113, 114 and 115 of the M.V. Act provide only punishment of fine under section 194 and even that punishment is compoundable under section 200 at the instance of the owner of the vehicle, who was always ready to pay fine. In this connection he relied upon a decision of the Apex Court in case of Utkal Contractors and Joinery Pvt. Ltd. and others vs. State of Orissa and others, reported in (1987) 3 Supreme Court Cases 279 in which it was held that administrative action should not be against the objects of the Act and also relied upon another decision of the Apex Court in case of Hira Lal Hari Lal Bhagwati vs. CBI, New Delhi, reported in (2003) 5 Supreme Court Cases 257 in which it was held that parallel procedure for the same offence cannot be legally adopted. 8. It is further contended by learned counsel for the petitioner that High Court is a court of construction and while dealing with the language of a statute it has to be ascertained from and accord to, the statute, the meaning, the - 8 - purpose, the will and the object which the legislature intended for, as had been held by the Apex Court in case of Tinsukhia Electric Supply Co. Ltd. vs. State of Assam and others, reported in AIR 1990 Supreme Court 123 as well as in case of Chern Taong Shang and others vs. Commander S.D. Baijal and others, reported in (1988) 1 Supreme Court Cases 507. He further contended that it would not be correct to assume that the expression as defined in the interpretation, Clause would necessarily carry the same meaning throughout the statute as has been held by the Supreme Court in case of Indian Handicrafts Emporium and others vs. Union of India and others, reported in 2003 AIR SCW 4617. 9. Learned counsel for the petitioner also submitted that as per the provision of section 138 of the M.V. Act no rule has been made by the State Government and such matters are dealt with only by executive instructions, but the impugned letter has travelled much beyond the scope of the M.V. Act specially when damage to roads is not a separate question rather it is incidental to the violation of permits with regard to overloading, which is covered under the M.V. Act. It was further averred that vide Article 19 (1) (g) of the Constitution protection has been guaranteed to the citizens to practise any profession or to carry on any occupation, trade or business according to their own free will which has been blatantly violated by the action of the authorities which is illegal and hence even if any illegal action seemed to be - 9 - reasonable it cannot be justified. Hence, it was claimed that the impugned action of the respondents authorities was not sustainable in law. 10. Learned Advocate General appearing for respondents State of Bihar and its authorities very precisely and succinctly argued that M.V. Act does not deal with Damage of Public Property rather it is only with respect to the violation of permit and certificate of registration granted by the authority for plying the vehicle, whereas the PDPP Act is with respect to the other aspect, namely Damage of Public Property caused by the vehicle, which is the concern of impugned order of the authority dated 10.08.2010 (Annexure-4). It was also claimed that the vires of PDPP Act is not under challenge in the instant case and the object of the said Act is to curb the damages on the public road itself and to protect it from damages and the impugned direction is only to implement or/ and enforce the law and not to demolish it. He further claimed that the authorities by their impugned actions are not violating the provision of Article 19 (1) (g) of the Constitution rather they are imposing reasonable restrictions as permitted under Article 19 (6) thereof on the exercise of right conferred by the said clause in the interest of the general public and for protection of the public road. In this connection he relied upon several decisions of the Apex Court e.g. in case of Saghir Ahmad and another vs. State of U.P. and others, reported in AIR 1954 Supreme Court 728, in case of B.P. Sharma vs. - 10 - Union of India and others, reported in AIR 2003 Supreme Court 3863 and in case of M.R.F. Ltd. vs. Inspector Kerala Govt. and others, reported in (1998) 8 Supreme Court Cases 227. 11. It was further argued that several studies have been conducted on the road crust damages due to overloading of commercial vehicles, which is quite apparent from letter dated 19.11.2010 (Annexure-B) issued by the Secretary of the Road Construction Department to the Secretary of Road Transport Department and hence action had to be taken under the PDPP Act which was specifically enacted for that purpose, whereas the provisions of the M.V. Act are only with respect to the violation of the permit and certificate of registration, hence there being two separate causes of action, there is no question of any double jeopardy as had been decided by the Apex Court in case of State of Madhya Pradesh vs. Veereshwar Rao Agnihotri, reported in AIR 1957 Supreme Court 592 as well as by this court in case of Ishodanand Biswas and others vs. The State, reported in AIR 1955 Patna 396. Thus, he asserted that the action of the authority concerned was well within the scope and precinct of the Constitution and the concerned enactments. 12. Learned counsel for the intervener respondent submitted that plying of commercial vehicles, overloaded beyond the prescribed limit, had been causing serious damage to the roads of Bihar since several years resulting in great - 11 - losses and difficulties not only to the intervener‟s Association and its members but also to the other commercial and private vehicles of the State. He further claimed that the intervener respondent had been raising this matter before the authorities concerned since much before and only after due enquiries made in that regard the authorities had passed the impugned orders which were quite legal and justified. 13. From the arguments raised by learned counsel for the parties as well as from the materials on record, it is apparent that undisputedly petitioner is the owner of the Truck bearing Registration No.JH-02M-2857 which was loaded with coal and was intercepted on the Grand Trunk Road in the district of Aurangabad by the District Transport Officer, Aurangabad (respondent no.4) because it was found to be overloaded by 19,980 Kg. as the maximum R.L. weight allowed as per the registration certificate granted for the said vehicle was 25,000 Kg., but it was found to be weighing 44,980 Kg. as per Kanta Challan (Annexure 1 series). Accordingly, an F.I.R. bearing Aurangabad (M) P.S. Case No.135 of 2010 dated 17.08.2010 (Annexure-1) was lodged making the owner of the vehicle, namely the petitioner as an accused for plying an overloaded vehicle exceeding the limit prescribed in the certificate of registration punishable under sections 177, 194, 113 and 114 of the M.V. Act. The petitioner is not aggrieved by the said action as it is punishable only with fine under the provision of section 194 of the M.V. Act which is also compoundable under section 200 of - 12 - the M.V. Act on the willingness of the accused as has been held by the Apex Court in case of P. Ratnakar Rao and others (Supra). 14. The petitioner is aggrieved by Memo No.4047 dated 10.08.2010 (Annexure-4) issued by the Secretary-cum- Commissioner of Transport, Government of Bihar (respondent no.1) by which directions were given to all the District Magistrates of the State to initiate a separate proceeding against the drivers, permit holders and owners of the vehicles found to be overloaded under section 3(2)(e) of the PDPP Act after getting the weight measured over the Weigh Bridge. It is claimed that due to such actions double jeopardy shall be caused to the persons concerned as for the same offence they will be punished twice, i.e. under section 194 of the M.V. Act as well as under section 3(2)(e) of the PDPP Act. 15. Section 113 of the M.V. Act provides that the State Government may prescribe the conditions for the issuance 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 and no person shall drive or cause or allow to be driven in any public place, any motor vehicle, the weight of which exceeds the weight specified in the certificate of registration of the vehicle. Section 114 of the M.V. Act empowers the Authorized Officer to get the vehicle and its contents weighed if he has reason to believe that the goods, vehicle or trailer is being used in contravention of section 113 of the M.V. Act. - 13 - Section 115 of the M.V. Act empowers the Authorized Officers to restrict the use of vehicles if he is satisfied that it is in the interest of public safety or convenience or because of the nature of any road or bridge etc. 16. The petitioner cannot raise any dispute with regard to the fact that the certificate of registration issued to him for his transport vehicle by the State/Regional Transport Authority under section 41 of the Act prescribed certain limits of weight which was not followed and accordingly the aforesaid provisions of the M.V. Act were contravened and hence F.I.R. was lodged under section 194 of the said Act after getting the loaded vehicle weighed on the Kanta Challan, which is clear from Annexure 1 series. The provision of section 194 of the M.V. Act reads as follows: “(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 fine which may extend to three thousand rupees.” 17. The objects & reasons of the M.V. Act as provided therein is to consolidate and amend law relating to motor vehicles taking into account the fast increasing number of - 14 - commercial as well as personal vehicles, adoption of higher technology in automotive sector, greater flow of passenger and freight with the least impediments, road safety standards & pollution control measures, simplification of procedure & policy, liberalization for private sector and effective ways of tracking down traffic offenders. From the aforesaid objects & reasons as well as the provisions made in the M.V. Act it is quite apparent that the said Act is only with respect to the motor vehicles and compliance of the specific provisions therein and to punish the offenders for violating the terms of permit and registration certificate granted by the authorities and for contravening the provisions of the Act. As is apparent from the nomenclature of the Act, namely Motor Vehicles Act as well as from the aforementioned objects & reasons and the provisions of the Act, it is only concerned with the vehicle and its contents and is not concerned with the resultant damages caused to the roads and bridges etc. 18. On the other hand, the objects & reasons of the PDPP Act is prevention of damage to public property and curbing the acts of vandalism and damage to the public property including destruction and damage caused during riots and public commotion and to deal effectively with the cases of damage to public property by punishing such offenders to the public property. The PDPP Act in section 3 provides as follows: “(1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a - 15 - term which may extend to five years and with fine. (2) Whoever commits mischief by doing any act in respect of any public property being- (a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy; (b) any oil installations; (c) any sewage works; (d) any mine or factory; (e) any means of public transportation or of tele- communications, or any shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine: Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.” 19. There can be no doubt that the government roads and highways are public properties. Ordinance No.3 of 1984 has defined „Public Property‟ as any property, whether immovable or movable, which is owned by, or in the possession of, or under the control of the Central Government, or any State Government, or any local authority, or any corporation established by, or under, a Central, Provincial or State Act, or any Company as defined in section 617 of the Companies Act, 1956, or any such other institution, concern or undertaking financed wholly or substantially by funds provided directly or indirectly by the Central Government or by one or more State Governments, or partly by the Central Government and partly by one or more State Governments as the Central Government may, by notification in the Official Gazette, specify in this behalf. The same definition is provided under section 2(b) of the PDPP Act. - 16 - 20. So far the word „Mischief‟ used in section 3 of the PDPP Act is concerned, it is not defined in the said Act, but section 425 of the Indian Penal Code defines „Mischief‟ and provides that whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any