Quashed

Bihar Truck Owner Association v. The State of Bihar through the Chief Secretary

Patna HC25 Apr 2022CWJC/4310/2021

Case brief

AI extract

What is this about?

The Patna High Court quashed a Bihar government notification prohibiting 14-wheeler trucks from carrying sand and stone chips. The court held the ban was arbitrary, lacked scientific basis, violated freedom of trade under Articles 19 and 301, and exceeded the State's legislative competence under the Motor Vehicles Act.

What did the court decide?

The impugned notification dated 16.12.2020 and the consequential communication dated 17.12.2020 were quashed. All writ petitions were allowed.

Bihar Truck Owner Association Vs The State of… — Civil Procedure and Limitation | Patna HC (2022)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4310 of 2021

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¶3

Bihar Truck Owner Association having its office at Shiv Puram Road No. -1, Vijay Nagar Rukunpura, Bailey Road, Patna-801503 through its president namely Bhanu Shekhar Prasad Singh, aged about 62 years, Gender (Male), Son of Late Bindeshwari Prasad Singh, resident of Mohalla-Jagdeo Nagar Bailey Road, P.S. Rupaspur Dinapur cum Khagaul, District Patna.

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... ... Petitioner/s

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Versus

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1. The State of Bihar through the Chief Secretary, Old Secretariat Government of Bihar, Patna.

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The Principal Secretary, Cabinet Secretariat, Bihar.

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The State Transport Secretary, Transport Department of Bihar, Patna.

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The State Transport Commissioner, Transport Department of Bihar, Patna.

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The Special Executive Officer Transport Department of Bihar, Patna.

¶11

The Union of India through the Secretary, Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi- 110001.

¶12

The Secretary, Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi- 110001.

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The Joint Secretary, Ministry of Road Transport, 1^st Parliament Street, New Delhi- 110001.

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National Highway Authority of India through its Chairman, Headquarter, G- 5 and 6, Sector- 10, Dwarka, New Delhi- 110075.

¶15

The Chairman, National Highway Authority of India, Headquarter, G-5 and 6, Sector- 10, Dwarka, New Delhi- 110075.

¶16

The Chief General Manager, Bihar National Highway Authority of India, Headquarter, G-5 and 6, Sector- 10, Dwarka, New Delhi- 110075.

¶17

The General Manager, Bihar National Highway Authority of India, Headquarter, G-5 and 6, Sector- 10, Dwarka, New Delhi- 110075.

¶18

The Deputy General Manager, Bihar National Highway Authority of India, Headquarter, G-5 and 6, Sector- 10, Dwarka, New Delhi- 110075.

¶19

The Chief General Manager, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna 800013.

¶20

The Chief General Manager (T)/ Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna 800013.

¶21

The National Highway Authority of India, New Delhi.

¶22

... ... Respondent/s

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¶24

with Civil Writ Jurisdiction Case No. 4217 of 2021

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¶26

Arvind Yadav Son of Late Shivdhari Yadav resident of Village Mafo, P.S.

¶27

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 2/78

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Mehuns, District Sheikhpura, Bihar.

¶29

Manoj Kumar, Son of Ganauri Paswan, resident of Village Kare, P.S. Sheikhpura, District Sheikhpura, Bihar.

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Dharmendra Yadav, Son of Sri Kishori Yadav, resident of Village Ramraipur, P.S. Sheikhpura, District Sheikhpura, Bihar.

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Sanoj Paswan, Son of Sri Ganauri Paswan, resident of Village Kare, P.S. Sheikhpura, District Sheikhpura, Bihar.

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Laloo Kumar, Son of Sri Ram Baran Yadav, resident of Village Nemdarganj, P.S. Sheikhpura, District Sheikhpura.

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... ... Petitioner/s Versus

¶34

The Union of India through Secretary, Ministry of Road Transport, Government of India, New Delhi.

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The State of Bihar, through the Chief Secretary, Government of Bihar, Patna.

¶36

The Principal Secretary, Department of Transport, Government of Bihar, Patna.

¶37

The Principal Secretary, Department of Mines and Geology, Government of Bihar, Patna.

¶38

The Deputy Secretary, Department of Transport, Government of Bihar, Patna.

¶39

The Secretary, Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi- 110001.

¶40

The Joint Secretary, Toll Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi- 110001.

¶41

National Highway Authority of India through its Chairman, Headquarter, G- 5 and 6, Sector- 10, Dwarka, New Delhi- 110075.

¶42

The Chairman, National Highway Authority of India, Headquarter, G-5 and 6, Sector- 10, Dwarka, New Delhi- 110075.

¶43

The Chief General Manager, Bihar, National Highway Authority of India, Headquarter, G-5 and 6, Sector- 10, Dwarka, New Delhi- 110075.

¶44

The General Manager, Bihar, National Highway Authority of India, Headquarter, G-5 and 6, Sector- 10, Dwarka, New Delhi- 110075.

¶45

The Deputy General Manager, Bihar, National Highway Authority of India, Headquarter, G-5 and 6, Sector- 10, Dwarka, New Delhi- 110075.

¶46

The Chief General Manager, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna 800013.

¶47

The Chief General Manager (T)/Regional Officer, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna 800013.

¶48

National Highway Authority of India, New Delhi.

¶49

... ... Respondent/s

¶50

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 3/78

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¶52

with

¶53

Civil Writ Jurisdiction Case No. 4223 of 2021

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¶55

Bhagalpur District Truck Owner Association having its Office at Housing Board, Zero Mile, Bhagalpur - 812001 through its President Deep Narayan Singh, Aged about - 44 years, S/o - Sri Kripa Narayan Singh, R/o - Babhangawan, P.S. - Kotwali, Bhagalpur.

¶56

... ... Petitioner/s

¶57

Versus

¶58

The State of Bihar, through the Principal Commissioner-cum-Secretary, Department of Transport, Government of Bihar, Patna.

¶59

The Principal Commissioner-Cum-Secretary, Department of Transport, Government of Bihar, Patna.

¶60

The Secretary-cum-Commissioner, Department of Transport, Government of Bihar, Patna.

¶61

The Joint Secretary, Department of Transport, Government of Bihar, Patna.

¶62

The Union of India through the Secretary, Ministry of Road Transport and Highways, Transport Bhawan 1, Parliament Street, New Delhi-110001.

¶63

The Secretary, Ministry of Road Transport and Highways, Transport Bhawan 1, Parliament Street, New Delhi-110001.

¶64

The Joint Secretary, Toll Ministry of Road Transport and Highways, Transport Bhawan 1, Parliament Street, New Delhi-110001.

¶65

National Highway Authority of India through its Chairman, Headquarter, G5 and 6, Sector-10, Dwarka, New Delhi-110075.

¶66

The Chairman, National Highway Authority of India, Headquarter, G5 and 6, Sector-10, Dwarka, New Delhi-110075.

¶67

The Chief General Manager, Bihar, National Highway Authority of India, Headquarter, G5 and 6, Sector-10, Dwarka, New Delhi-110075.

¶68

The General Manager, Bihar, National Highway Authority of India, Headquarter, G5 and 6, Sector-10, Dwarka, New Delhi-110075.

¶69

The Deputy General Manager, Bihar, National Highway Authority of India, Headquarter, G5 and 6, Sector-10, Dwarka, New Delhi-110075.

¶70

The Chief General Manager, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna, 800013.

¶71

The Chief General Manager (T)/Regional Officer, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna, 800013.

¶72

National Highway Authority of India, New Delhi.

¶73

... ... Respondent/s

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¶75

with

¶76

Civil Writ Jurisdiction Case No. 4296 of 2021

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¶78

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 4/78

¶79

Ravish Kumar Son of Sri Lalan Prasad resident of Mohalla Shivpuri, P.S.Barbigha, District- Sheikhpura, Bihar

¶80

Sanjay Kumar Sharma Son of Late Ram Briksh Sharma resident of village Ramraipur, P.S.- Sheikhpura, P.S.- Sheikhpura, District- Sheikhpura,

¶81

... ... Petitioner/s

¶82

Versus

¶83

1. The Union of India through Secretary, Ministry of Road Transport, Government of India, New Delhi.

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The State of Bihar through the Chief Secretary, Government of Bihar, Patna

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The Principal Secretary, Department of Transport, Government of Bihar, Patna.

¶86

The Principal Secretary, Department of Mines and Geology, Government of Bihar, Patna.

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The Deputy Secretary, Department of Transport, Government of Bihar, Patna.

¶88

The Secretary, Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi- 110001.

¶89

The Joint Secretary, Toll Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi- 110001.

¶90

National Highway Authority of India, through its Chairman, Headquarter, G-5 and 6, Sector-10, Dwarka, New Delhi- 110075.

¶91

The Chairman, National Highway Authority of India, Headquarter, G-5 and 6, Sector-10, Dwarka, New Delhi- 110075.

¶92

The Chief General Manager, Bihar, National Highway Authority of India, Headquarter, G-5 and 6, Sector-10, Dwarka, New Delhi- 110075.

¶93

The General Manager, Bihar, National Highway Authority of India, Headquarter, G-5 and 6, Sector-10, Dwarka, New Delhi- 110075.

¶94

The Deputy General Manager, Bihar, National Highway Authority of India, Headquarter, G-5 and 6, Sector-10, Dwarka, New Delhi- 110075.

¶95

The Chief General Manager, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna- 800013.

¶96

The Chief General Manager (T)/Regional Officer, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna800013.

¶97

National Highway Authority of India, New Delhi.

¶98

... ... Respondent/s

¶99

====================================================== with Civil Writ Jurisdiction Case No. 4734 of 2021

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¶101

Mukesh Kumar Madhukar son of Late Suresh Prasad resident of Mohalla Satbigahi, Ward No. 02, P.S. Sheikhpura, District Sheikhpura, Bihar.

¶102

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 5/78

¶103

Rakesh Kumar son of Sri Raghunandan Prasad resident of village Mahawat, P.S. Kasarh, District Sheikhpura, Bihar.

¶104

Amrendra Kumar son of Late Preman Prasad resident of Mohalla Satbigahi, P.S. Sheikhpura, District Sheikhpura, Bihar.

¶105

Dinkar Kumar son of Krishna Prasad resident of Mohalla Chandni Chowk, P.S. Sheikhpura, District Sheikhpura, Bihar.

¶106

... ... Petitioner/s

¶107

Versus

¶108

The Union of India, through Secretary, Ministry of Road Transport, Government of India, New Delhi.

¶109

The State of Bihar, through the Chief Secretary, Government of Bihar, Patna.

¶110

The Principal Secretary, Department of Transport, Government of Bihar, Patna.

¶111

The Principal Secretary, Department of Mines and Geology, Government of Bihar, Patna.

¶112

The Deputy Secretary, Department of Transport, Government of Bihar, Patna.

¶113

The Secretary, Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi- 110001.

¶114

The Joint Secretary, Toll Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi, 110001.

¶115

National Highway Authority of India through its Chairman, Headquarter, G 5 and 6, Sector - 10, Dwarka, New Delhi, 110075.

¶116

The Chairman, National Highway Authority of India, Headquarter, G 5 and 6, Sector - 10, Dwarka, New Delhi, 110075.

¶117

The Chief General Manager, Bihar National Highway Authority of India, Headquarter, G 5 and 6 Sector - 10, Dwarka, New Delhi, 110075.

¶118

The General Manager, Bihar, National Highway Authority of India, Headquarter, G 5 and 6, Sector - 10, Dwarka, New Delhi, 110075.

¶119

The Deputy General Manager, Bihar National Highway Authority of India, Headquarter, G 5 and 6, Sector - 10, Dwarka, New Delhi, 110075.

¶120

The Chief General Manager, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna, 800013.

¶121

The Chief General Manager (T)/Regional Officer, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna, 800013.

¶122

National Highway Authority of India, New Delhi.

¶123

... ... Respondent/s

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¶125

with Civil Writ Jurisdiction Case No. 4981 of 2021

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¶127

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 6/78

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Aashutosh Kumar Son of Nawal Kishor Prasad, resident of Mohalla Patel Nagar, Ward No. 2, P.S. Sheikhpura, District- Sheikhpura.

¶129

Shrawan Kumar, Son of Chandra Ram, resident of Mohalla Tarcha, P.S. Sheikhpura, District- Sheikhpura.

¶130

Binod Kumar, Son of Tanik Lal Gupta, resident of Mohalla Kachhari Road, Tinmohani Mor, P.S. Sheikhpura, District- Sheikhpura.

¶131

... ... Petitioner/s

¶132

Versus

¶133

The Union of India through Secretary, Ministry of Road Transport, Government of India, New Delhi.

¶134

The State of Bihar, through the Chief Secretary, Government of Bihar, Patna.

¶135

The Principal Secretary, Department of Transport, Government of Bihar, Patna.

¶136

The Principal Secretary, Department of Mines and Geology, Government of Bihar, Patna.

¶137

The Deputy Secretary, Department of Transport, Government of Bihar, Patna.

¶138

The Secretary, Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi, 110001.

¶139

The Joint Secretary, Toll Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi, 110001.

¶140

National Highway Authority of India, through its Chairman, Headquarter, G 5 and 6, Sector - 10, Dwarka, New Delhi, 110075.

¶141

The Chairman, National Highway Authority of India, Headquarter, G 5 and 6, Sector - 10, Dwarka, New Delhi, 110075.

¶142

The Chief General Manager, Bihar National Highway Authority of India, Headquarter, G 5 and 6, Sector - 10, Dwarka, New Delhi, 110075.

¶143

The General Manager, Bihar National Highway Authority of India, Headquarter, G 5 and 6, Sector - 10, Dwarka, New Delhi, 110075.

¶144

The Deputy General Manager, Bihar, National Highway Authority of India, Headquarter, G 5 and 6, Sector - 10, Dwarka, New Delhi, 110075.

¶145

The Chief General Manager, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna, 800013.

¶146

The Chief General Manager (T)/Regional Officer, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna, 800013.

¶147

National Highway Authority of India, New Delhi.

¶148

... ... Respondent/s

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¶150

with Civil Writ Jurisdiction Case No. 5470 of 2021

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Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 7/78

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Shambhu Singh Son or Ram Vichar Singh Resident of Gram Ward No.14, Mohania, Post Mohania, PS- Mohania, District- Kaimur (Bhabhua), Bihar.

¶154

Amit Kumar Singh Son of Raj Narayan Singh Resident of Village Pursotampur, Post- Badhadi, District- Kaimur (Bhabua), Bihar.

¶155

Omprakash Gupta S/o Chandrika Prasad Sah R/o Village Didikhili, PostPostakodhi, P.S.- Durgawati, Kaimur (Bhabua), Bihar- 821109.

¶156

... ... Petitioner/s

¶157

Versus

¶158

1. The Union of India through the Secretary, Department Ministry of Road and Surface Transport, North Block, New Delhi- 110001.

¶159

The State of Bihar through the Chief Secretary, Government of Bihar, Patna, Bihar.

¶160

The Principal Secretary, Road Construction Department, Government of Bihar, Patna, Bihar.

¶161

The Principal Secretary, Department of Transport, Government of Bihar, Patna, Bihar.

¶162

The Secretary, Department of Transport, Government of Bihar, Patna, Bihar. 6. The Principal Secretary, Department of Mines and Geology, Government of Bihar, Patna, Bihar.

¶163

The Deputy Secretary, Department of Transport, Government of Bihar, Patna, Bihar.

¶164

The Secretary, Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi- 110001.

¶165

The Joint Secretary, Toll Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi- 110001.

¶166

National Highway Authority of India through its Chairman, Headquarter, G- 5 and 6, Sector-10, Dwarka, New Delhi- 110075.

¶167

Chairman, National Highway Authority of India, Headquarter, G-5 and 6, Sector-10, Dwarka, New Delhi- 110075.

¶168

Chief General Manager, Bihar, National Highway Authority of India, Headquarter, G-5 and 6, Sector-10, Dwarka, New Delhi- 110075.

¶169

General Manager, Bihar National Highway Authority of India, Headquarter, G-5 and 6, Sector-10, Dwarka, New Delhi- 110075.

¶170

Deputy General Manager, Bihar National Highway Authority of India, Headquarter, G-5 and 6, Sector-10, Dwarka, New Delhi- 110075.

¶171

Chief General Manager, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna- 800013.

¶172

Chief General (T)/Regional Officer, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna- 800013.

¶173

National Highway Authority of India, New Delhi.

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... ... Respondent/s

¶176

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 8/78

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with

¶178

Civil Writ Jurisdiction Case No. 7926 of 2021

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¶180

Raushan Kumar S/o Bhansho Singh Village- Rahatpur, P.S.- Suryagarha, Dist.- Lakhisarai, Bihar-811311

¶181

... ... Petitioner/s

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Versus

¶183

The State of Bihar through the Chief Secretary, Government of Bihar, Patna

¶184

The Principal Secretary, Department of Law, Govt. of Bihar, Patna

¶185

The Principal Secretary, Department of Transportation, Govt. of Bihar, Patna

¶186

The Union of India through Principal Secretary, Department of Transportation, Government of India

¶187

Shriram Transport Finance Co. Ltd. 101-105, Ist. Floor, B Wing, Shiv Chambers, Sector-11, C.B.D., Navi Mumbai-400614

¶188

The Branch Manager, Shriram Transport Finance Co. Ltd., 1st Floor, Purani Bazar, Main Road, Lakhisarai, P.s.- Lakhisarai, Dist.- Lakhisarai-811311

¶189

The Union of India through the Secreary, Ministry of Road Transport and Highways, Transport-Bhawan 1, Parliament Street, New Delhi-110001.

¶190

The Secretary, Ministry of Road Transport and Highways, TransportBhawan 1, Parliament Street, New Delhi-110001.

¶191

The Joint Secretary, Toll Ministry of Road Transport and Highways, Transport-Bhawan 1, Parliament Street, New Delhi-110001.

¶192

National Highway Authority of India through its Chairman, Headquarter, G 5 and 6Sector-10, Dwarka, New Delhi, 110075.

¶193

The Chairman, National Highway Authority of India, Headquarter, G5 and 6, Sector-10, Dwarka, New Delhi-110075.

¶194

The Chief Genral Manager, Bihar National Highway Authority of India, Headquarter, G5 and 6, Sector-10, Dwarka, New Delhi-110075.

¶195

The General Manager, Bihar, National Highway Authority of India, Headquarter, G5 and 6, Sector-10, Dwarka, New Delhi-110075.

¶196

The Deputy General Manager, Bihar National Highway Authority of India, Headquarter, G5 and 6, Sector-10, Dwarka, New Delhi-110075.

¶197

The Chief Genral Manager, Regional Office, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna, 800013.

¶198

The Chief General Manager(T)/ regional Officer, Regional Officer, Regional Officer, Shivmitra Apartment, 1st Floor, Vivekanand Marg, Boring Road, Patna,800013.

¶199

National Highway Authority of India, New Delhi.

¶200

... ... Respondent/s

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¶202

with

¶203

Civil Writ Jurisdiction Case No. 1133 of 2022

¶204

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 9/78

¶205

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¶206

JSP Projects Private Limited having its registered office at Flat No. 5, 2nd Floor, 3-B-2, Nehru Nagar, Ghaziabad-201001 Uttar Pradesh, through its authorised representative, the Chief Executive Officer, namely Sri Ashok Kumar, aged about 57 years (Male), son of Anirudha Prasad Sharma, resident of 168, C.D.A. Colony, P.S.-L.B.S. Nagar, Patna, Bihar-800023.

¶207

... ... Petitioner/s

¶208

Versus

¶209

The Union of India through Secretary (Transport), Ministry of Transport and Highway, Transport Bhawan, 1, Parliament Street, New Delhi-110001.

¶210

National Hihgway Authority of India through its Chairman, G-5 and 6, Sector-10 Dwarka, New Delhi-110075.

¶211

The State of Bihar through the Chief Secretary, Government of Bihar, Old Secretariat, Patna.

¶212

The Principal Secretary, General Administration Department, Government of Bihar, Old Secretariat, Patna.

¶213

The Principal Secretary, Transport Department, Government of Bihar, Vishwesaraiya Bhawan, Bailey Road, Patna-800 015.

¶214

... ... Respondent/s

¶215

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¶216

with

¶217

Civil Writ Jurisdiction Case No. 3179 of 2022

¶218

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¶219

All India Motor Transport Congress Having its Head Office at 1/16A, Asaf Ali Road, New Delhi - 110002 through its Secretary General, Naveen Kumar Gupta (Male), aged about 49 years, Son of Late Shri Suresh Chand Gupta, resident of B 4/43-B, LIG, DDA Flats, Ashok Vihar Phase 2, H.O. North West Delhi, Police Station - Ashok Vihar, Delhi - 110052.

¶220

... ... Petitioner/s

¶221

Versus

¶222

Union of India through Secretary (Transport), Ministry of Transport and Highway, Transport Bhawan, 1, Parliament Street, New Delhi - 110001.

¶223

National Highways Authority of India through its Chairman G 5 and 6, Sector - 10, Dwarka, New Delhi - 110075.

¶224

The State of Bihar through Chief Secretary, Government of Bihar, Old Secretariat, Patna.

¶225

The Department of Transport, Government of Bihar through Secretary (Transport), Vishwesaraiya Bhawan, Bailey Road, Patna - 800015.

¶226

... ... Respondent/s

¶227

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¶228

Appearance :

¶229

(In Civil Writ Jurisdiction Case No. 4310 of 2021)

¶230

For the Petitioner/s : Mr. P.K. Shahi, Sr. Advocate

¶231

Mr. Sujit Kumar Singh, Advocate

¶232

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 10/78

¶233

for the Union of India : Dr. Krishna Nandan Singh, ASG Mr. Anshuman Singh, Sr. CGST and CX Mr. Devansh Shankar Singh, J.C. to ASG Mr. Abhijeet Gautam, JC to ASG. Mr. Amarjeet, Advocate For the State : Mr. Lalit Kishore, Advocate General Mr. Ajay Kumar Rastogi, AAG-10 Mr. Rohitabh Das, A.C. to AAG-10 (In Civil Writ Jurisdiction Case No. 4217 of 2021) For the Petitioner/s : Mr. Prabhat Ranjan, Advocate Mr. Chandan Kumar, Advocate for the Union of India : Dr. Krishna Nandan Singh, ASG Mr. R.K. Sharma, CGC For the State : Mr. Lalit Kishore, Advocate General Mr. Ajay Kumar Rastogi, AAG-10 Mr. Rohitabh Das, A.C. to AAG-10

¶234

(In Civil Writ Jurisdiction Case No. 4223 of 2021) For the Petitioner/s : Mr. Arvind Kumar, Advocate Mr. Avinash Chandra, Advocate Mr. Prafull Chandra Jha, Advocate Ms. Archana Sinha, Advocate For the Union of India : Dr. Krishna Nandan Singh, ASG Mr. Kumar Priya Ranjan, CGC Mr. Adarsh Kumar Bhardwaj, J.C. to ASG Mr. Abhijeet Gautam, JC to ASG. For the State : Mr. Lalit Kishore, Advocate General Mr. Ajay Kumar Rastogi, AAG-10 Mr. Rohitabh Das, A.C. to AAG-10 (In Civil Writ Jurisdiction Case No. 4296 of 2021) For the Petitioner/s : Mr. Prabhat Ranjan, Advocate For the Union of India : Dr. Krishna Nandan Singh, ASG Mr. Kumar Priya Ranjan, CGC For the State : Mr. Lalit Kishore, Advocate General Mr. Ajay Kumar Rastogi, AAG-10 Mr. Rohitabh Das, A.C. to AAG-10 (In Civil Writ Jurisdiction Case No. 4734 of 2021) For the Petitioner/s : Mr. Prabhat Ranjan, Advocate Mr. Chandan Kumar, Advocate For the Union of India : Dr. Krishna Nandan Singh, ASG Mr. Ram Anurag Singh, CGC For the State : Mr. Lalit Kishore, Advocate General Mr. Ajay Kumar Rastogi, AAG-10

¶235

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 11/78

¶236

Mr. Rohitabh Das, A.C. to AAG-10 (In Civil Writ Jurisdiction Case No. 4981 of 2021) For the Petitioner/s : Mr. Prabhat Ranjan, Advocate For the Union of India : Dr. Krishna Nandan Singh, ASG Ms. Kanak Verma, Advocate For the State : Mr. Lalit Kishore, Advocate General Mr. Ajay Kumar Rastogi, AAG-10 Mr. Rohitabh Das, A.C. to AAG-10 (In Civil Writ Jurisdiction Case No. 5470 of 2021) For the Petitioner/s : Mr. Suraj Samdarshi, Advocate Mr. Ranjit Kumar, Advocate Mr. Pankaj Bhagat, Advocate For the Union of India : Dr. Krishna Nandan Singh, ASG Mr. Kumar Priya Ranjan, CGC For the State : Mr. Lalit Kishore, Advocate General Mr. Ajay Kumar Rastogi, AAG-10 Mr. Rohitabh Das, A.C. to AAG-10 Mr. Vikash Kumar, S.C. 11 Mr. Rewati Kant Raman, Advocate

¶237

(In Civil Writ Jurisdiction Case No. 7926 of 2021) For the Petitioner/s : Mr. Abhinay Priyadarshi, Advocate Mr. Ram Ratan Singh, Advocate Mr. Ritesh Kumar, Advocate For the State : Mr. Lalit Kishore, Advocate General Mr. Ajay Kumar Rastogi, AAG-10 Mr. Rohitabh Das, A.C. to AAG-10 Mr. Gyan Prakash Ojha, GA-7 (In Civil Writ Jurisdiction Case No. 1133 of 2022) For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate Mr. Pranav Kumar, Advocate Mr. Sumit Kumar Jha, Advocate Mr. Anil Kumar Singh, Advocate Mr. Ashish Giri, Advocate Ms. Shrishti Singh, Advocate For the Union of India : Dr. Krishna Nandan Singh, ASG Mr. Radhika Raman, CGC Mr. Abhijeet Gautam, JC to ASG. Mr. Adarsh Bhardwaj, Advocate For NHAI : Dr. Maurya Vijay Chandra, Advocate For the State : Mr. Lalit Kishore, Advocate General Mr. Ajay Kumar Rastogi, AAG-10

¶238

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 12/78

¶239

Mr. Rohitabh Das, A.C. to AAG-10 Mr. Pawan Kumar, A.C. to A.G. (In Civil Writ Jurisdiction Case No. 3179 of 2022) For the Petitioner/s : Mr. Avinash Chandra, Advocate Mr. Abhinav Chandra, Advocate Mr. Rakesh Kumar Singh, Advocate For the Union of India : Dr. Krishna Nandan Singh, ASG Mr. Kumar Priya Ranjan, CGC For the NHAI : Mr. Sanat Kumar Mishra, Advocate For the State : Mr. Lalit Kishore, Advocate General Mr. Ajay Kumar Rastogi, AAG-10 Mr. Rohitabh Das, A.C. to AAG-10 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

¶240

Date :25-04-2022

¶241

The instant petitions, in terms of the directions issued by Hon’ble the Supreme Court, were heard on priority basis.

¶242

The following issues arise for consideration before this

¶243

Court:-

¶244

(i) Whether the scope of Section 115 of the Motor Vehicles Act, 1988 allow regulations of/ restrictions on the movement of goods?

¶245

(ii) Is the impugned notification prohibiting the carriage of goods confined only to sand and stone chips on certain specified vehicles so arbitrary and unreasonable that it cannot be sustained?

¶246

(iii) What is the nature, ambit and scope of Article 301 of the Constitution of India? Whether the

¶247

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022

¶248

13/78

¶249

power enumerated under Section 115 of the Motor Vehicles Act, 1988 are wide enough to impose a complete ban on intra and inter-state traffic with vehicles having 14 wheels or above?

¶250

(iv) Whether the State possesses the legislative competence to restrict the use of National Highways?

¶251

(v) Whether the impugned notification qualifies the requirement of reasonable restriction under Article 19 of the Constitution of India?

¶252

(vi) Whether the State can in pursuance of public safety issue direction on an issue upon which the Central Government has already done so?

¶253

Prayer/Relief

¶254

The petitioner(s)/its members are all owners and operators of multi-wheeled vehicles ordinarily used to transport goods, both inter and intra-State of Bihar. All petitions filed before this Court were heard together, keeping in view the near-identical nature of reliefs sought and the challenge laid.

¶255

Petitioners in (i) CWJC Nos.4310 of 202 1 titled as Bihar Truck Owner Association v. The State of Bihar & ors. ; (ii) 4217 of 202 1 titled as Arvind Yadav & Ors. vs. The Union of India & Ors.; (iii) 4223 of 2021 titled as Bhagalpur District

¶256

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 14/78

¶257

Truck Owner Association vs. The State of Bihar & Ors. ; (iv) 4296 of 202 1 titled as Ravish Kumar & Anr. v. The Union of India & Ors. ; (v) 4734 of 202 1 titled as Mukesh Kumar Madhukar & Ors. v. The Union of India & ors. ;(vi) 4981 of 202 1 titled as Ashutosh Kumar & Ors. V. The Union of India & Ors.; (vii) 7926 of 2021 titled as Raushan Kumar v. The State of Bihar & ors.; and (viii) 1133 of 2022 titled as JSP Projects Private Limited v. The Union of India & Ors. seek quashing of the impugned notification dated 16.12.2020 and consequential communication dated 17.12.2020. Also, they seek declaration with respect to the scope and power of Section 115 of the Motor Vehicles Act, 1988.

¶258

Petitioner in (ix) CWJC No.5470 of 2021 titled as Shambhu Singh & ors. V. The Union of India & Ors. also claiming similar relief, had filed a petition directly before Hon'ble the Supreme Court under Article 32 of the Constitution of India which stands transferred vide order dated 29.01.2021 passed in Writ Petition (Civil) No.99 of 2021 titled as Shambhu Singh & ors. V. The Union of India & ors.

¶259

Petitioner in (x) CWJC No.3179 of 2022 titled as All India Motor Transport Congress v. Union of India had earlier preferred a petition not only before Hon’ble the Supreme

¶260

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 15/78

¶261

Court but also this Court by filing a writ petition being CWJC No.19225 of 2021 titled as All India Motor Transport Congress v. The Union of India & Ors. which stood disposed of vide order dated 14.11.2021, granting liberty to make representation. The same now stands decided by the Secretary, Transport Department, Government of Bihar vide order dated 01.02.2022. Hence, a challenge is also laid to the said order.

¶262

The impugned Notification dated 16.12.2020 stands extracted hereinbelow:-

¶263

laŒ 03@vksojyksfMax ¼Mkyk fu/kkZj.k½&01@2020&ifjŒ&8536 iVuk] fnukad&16-122020

¶264

fcgkj jkT; esa ifjpkfyr gks jgs vksojyksMsM okguksa ls egRoiw.kZ lM+dksa] iqyksa] vk/kkjHkwr lajpukvksa dh {kfr ds lkFk jktLo Hkh izHkkfor gks jgk gSA iqyksa ,oa lM+dksa ds csgrj j[k&j[kko vkSj vksojyksMsM okguksa ds ikfjpkyu ij izHkkoh fu;a=.k fd, tkus dh vko”;drk gSA vr% eksVjokgd vf/kfu;e 1988 ¼;Fkk la”kksf/kr 2019½ dh /kkjk 115 esa jkT; ljdkj dks iznÙk “kfDr;ksa dk iz;ksx djrs gq,%&

¶265

1- rRdky izHkko ls 14 pDds ;k mlls vf/kd pDds ds Vªdksa dk iz;ksx ckyw@fxV~Vh ds mBko ,oa ifjogu ds fy, fuf’k) fd;k tkrk gSA

¶266

2- eksVjokgu vf/kfu;e ds varxZr okguksa ds fuca/ku iqLr esa fu/kkZfjr ynku {kerk ds vkyksd esa ckyw@fxV~Vh <+qykbZ gsrq] 6 pDdk ls 10 pDdk ds Vªdksa esa dkmy psfpl ds lc Ýse ds mij vf/kfu;e 3-00 QhV dh m¡pkbZ rFkk 12 pDdksa ds Vªdksa ¼MEij lfgr½ esa dkmy psfpl ds lc Ýse ds mij vf/kdre 3-5 QhV dh m¡pkbZ fu/kkZfjr dh tkrh gSA

¶267

;g vf/klwpuk fcgkj xtV esa blds izdk”ku dh frfFk ls izHkkoh gksxkA

¶268

fcgkj jkT;iky ds vkns”k lsA

¶269

gŒ@&

¶270

16-12-2020 ljdkj ds lfpo”

¶271

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 16/78

¶272

7. English Translated version reads as under:-

¶273

“ Government of Bihar

¶274

Transport Department

¶275

Notification

¶276

No.- 03/overloading (DALA Fixation) 01/2020 Tr. 8536 Patna dated 16-12-2020.

¶277

Overloaded vehicles operating in the State of Bihar are damaging important roads, bridges, infrastructure and also affecting the revenue. There is a need for better maintenance of Bridges and roads and effective control over the movement of overloaded vehicles. Therefore, in exercise of the powers conferred on the State Government in Section 115 of the Motor Vehicles Act, 1988 (as amended 2019).

¶278

The use of trucks having 14 wheels or more than 14 wheels for lifting and transportation of sand/stone chips is prohibited with immediate effect.

¶279

For carrying sand/stone chips in the light of loading capacity prescribed in the registration book of vehicles under the Motor Vehicle Act, maximum height of 3 feet above the subframe of cowl chassis in trucks of 6 wheels to 10 wheels and maximum height of 3.5 feet above the subframe of the cowl chassis in trucks of 12 wheels (including dumpers) are being fixed.

¶280

This notification shall be effective from the date of its publication in Bihar Gazette.

¶281

By the order of the Governor of Bihar

¶282

16.12.2020

¶283

Secretary to Government”

¶284

8. Noticeably, the Secretary, Department of

¶285

Transportation, Government of Bihar in furtherance of the Notification dated 16.12.2020, vide letter dated 17.12.2020 issued directions to all the District Magistrates to effect compliance with the restrictions imposed vide said

¶286

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 17/78

¶287

Notification. Those being-(a) the Prohibition of vehicles fourteen wheeled and above on all roads within the State of Bihar to carry sand and stone chips; (b) that dimensions of six to ten and more wheeled vehicles used to carry “sand” and “stone chips” be restricted to three feet and three and half feet

¶288

for those vehicles having twelve wheels. For ready reference, the letter is extracted hereinunder:-

¶289

“fcgkj ljdkj ifjogu foHkkx lafpdk laŒ&03@vksojyksfMax ¼Mkyk fu/kkZj.k½&01@2020 ifjŒ 8565

¶290

izs’kd] lat; dqekj vxzoky] HkkŒizŒlsŒ lfpo] ifjogu foHkkx] fcgkj] iVukA lsok esa] lHkh ftyk inkf/kdkjh] fcgkj]A iVuk] fnukad& 17-12-2020 fo’k;%& ckyw ,oa fxêh ds vksojyksM okguksa ds izHkkoh fu;a=.k gsrq 14 ls de pDdksa okys Vªd dk iz;ksx rFkk fu/kkZfjr ynku {kerk ds vuq:i Mkyk Å¡pkbZ ds varxZr <+qykbZ djus okys ekyokgd okguksa dk ifjpkyu lqfuf”pr djus ds laca/k esaA

¶291

izlax& foHkkxh; vf/klwpuk laŒ&8536] fnukad&16-12-2020

¶292

egk”k;]

¶293

mi;qZDr fo’k;d izklafxd vf/klwpuk dh Nk;kizfr layXu djrs gq, lwfpr djuk gS fd mRÑ’V dksfV ds fufeZr lM+dksa ,oa iqyksa dks {kfrxzLr gksus ls cpkus ds fy, vksojyksM ekyokgd okguksa ds ifjpkyu dks fu;af=r djus ds fy, jkT; ljdkj yxkrkj iz;kljr gSA Hkkjh ekyokgd okguksa }kjk vuqekU; ynku {kerk ls vf/kd ckyw rFkk fxêh dh <+qykbZ dks ns[krs gq, jkT; ljdkj bls fu;af=r djus ds fy, vR;Ur xaHkhj gSA

¶294

2- blh Øe esa eksVj okgu vf/kfu;e] 1988 dh /kkjk&115 esa jkT; ljdkj dks iznÙk “kfDr;ksa dk iz;ksx djrs gq, fnukad&15-12-2020 dh jkT; eaf=ifj’kn dh cSBd esa fuEukafdr fu.kZ; fy, x;s gSa%&

¶295

¼d½ rRdky izHkko ls 14 pDds ;k mlls vf/kd pDds ds Vªdksa dk iz;ksx ckyw@fxêh ds mBko ,oa ifjogu ds fy, fuf’k) dj fn;k x;k gSA ¼[k½ ekyokgd okguksa ds fuca/ku iqLr esa fu/kkZfjr ynku {kerk ds vuqlkj 6 ls 10 pDds ds Vªdksa esa dkmy psfpl ds lc Ýse ds mij vf/kdre 3 ¼rhu½ QhV dh Å¡pkbZ rFkk 12 pDdksa ds Vªdksa ¼MEij lfgr½ esa vf/kdre 3-5 QhV ¼rhu QhV N% bap½ dh Å¡pkbZ ds Mkyk rd gh ckyw ,oa fxêh dh <+qykbZ dh vuqefr iznku dh xbZ gSA

¶296

vr% vuqjks/k gS fd vius {ks=kf/kdkj ds varxZr lHkh iqyksa ,oa iFkksa ij

¶297

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 18/78

¶298

mDr fu.kZ; dk vuqikyu lqfuf”pr djus gsrq fuEukafdr dkjZokbZ lqfuf”pr djsa%& ¼d½ ckyw ,oa fxêh dk ifjogu fdlh Hkh ifjfLFkfr esa 14 pDds ds Vªdksa esa ugha fd;k tk ldsA

¶299

¼[k½ ckyw ,oa fxêh dk ifjogu 6 ls 10 pDdk ds Vªdksa esa vf/kdre rhu QhV dh Å¡pkbZ Mkyk rd ,oa 12 pDdk ds Vªdksa esa vf/kdre rhu QhV N% bZap dh Å¡pkbZ ds Mkyk rd gh fd;k tk ldsA

¶300

mYya?ku dh fLFkfr esa nksf’k;ksa ds fo:) dkuwu ,oa fu;eksa ds rgr izHkkoh dkjZokbZ ds lkFk gh ijfeV ,oa pkyd vuqKfIr jí djus gsrq Hkh vko”;d dkjZokbZ dh tk;A lkFk gh [kuu oanksoLr/kkjh ,oa [kuu inkf/kdkjh ds lkFk cSBd dj ;g lqfuf”pr fd;k tk, fd dksbZ Hkh Vªd fu/kkZfjr {kerk ,oa vuqekU; Specifications ds okgu ls gh ckyw rFkk fxêh dk ynku ,oa ifjogu ynku LFky ls lqfuf”pr gksA

¶301

Ñi;k bls mPp izkFkfedrk nh tk;A

¶302

vuqŒ&;FkksŒA

¶303

fo”oklHkktu

¶304

gŒ@& 17.12. lfpo ifjogu foHkkx] fcgkj] iVukA”

¶305

The translated version of the document reads as under:

¶306

“Government of Bihar

¶307

Transport Department

¶308

File No. - 03/overloading (Dala Fixation) – 01/2020 T. 8565

¶309

From,

¶310

Sanjay Kumar Agrawal, IAS, Secretary

¶311

Transport Deptt. Bihar, Patna.

¶312

To,

¶313

All District Officers,

¶314

Bihar.

¶315

Patna, dated- 17/12/2020

¶316

Subject :- Regarding the use of trucks having wheels less than 14 in number for effective control of the over loaded vehicles containing sand & chips and ensuring transportation of goods loading vehicles with the proper height of Dala according to the fixed loading capacity.

¶317

Sir,

¶318

Enclosing herewith the photocopy of relevant notification on the aforesaid subject, I am to inform you that the State Govt. has been making continuous efforts to control the transportation of overloaded goods vehicles for protecting the constructed roads of superior category and the bridges from being damaged. In view of the loading of sand & stone chips more than their loading capacity, by the heavy goods vehicles, the State Govt. is very serious to control the same. 2. In this context, exercising powers conferred to the State Govt. under

¶319

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 19/78

¶320

Section 115 of Motor Vehicles Act 1988, the State Cabinet has taken following decision in its meeting dated 15.12.2020:-

¶321

A. The use of trucks having 14 wheels or more than it for loading and transportation of sand and chips has been banned.

¶322

B. Maximum height of 3 feet above the frame of cowl chassis of the trucks having 6 to 10 wheels as per the load capacity fixed in the registration book of the goods loading vehicles and maximum height of Dala 3.5 feet in the trucks having 12 wheels (with damper) has been permitted for loading for sand and chips.

¶323

Hence, It is requested to ensure the compliance of the following decision with regard to all the bridges and roads under your jurisdiction:-

¶324

A. The transportation of sand and chips shall not be done by the trucks having 14 or more wheels, in any circumstances.

¶325

B. The transportation of sand and chips shall be done on the dala having maximum height of 3 feet in the trucks having 6 to 10 wheels and the transportation of sand and chips shall be done in the dala having maximum height of 3.5 feet in the trucks containing 12 wheels.

¶326

In case of violation, necessary action regarding effective steps under law and rule together with cancellation of permit and licence of driver shall be taken. At the same time, it shall be ensured in the meeting with the mining settlement holder that loading of sand and chips and its transportation from the loading place shall be done as per prescribed loading capacity and admissible specifications.

¶327

It may kindly be given top priority.

¶328

Motor Vehicles Act,1988

¶329

The Motor Vehicles Act, 1988 (referred to as the MV Act) divided into XIV Chapters comprises of more than 217 Sections and one Schedule. The Act inter alia deals with innovation, research and development in the field of mechanically propelled vehicle(s); registration of vehicular movement; and generally transportation of goods.

¶330

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 20/78

¶331

Chapter I deals with the definitions. Chapter II deals with licensing of drivers of motor vehicles; Chapter III deals with licensing of conductors of stage carriages; Chapter IV deals with registration of motor vehicles; Chapter V deals with Control of Transport Vehicles; Chapter VI deals with special provisions relating to State Transport Undertakings; Chapter VII deals with construction, equipment and maintenance of motor vehicles; Chapter VIII deals with control of traffic; Chapter IX deals with motor vehicles temporarily leaving or visiting India; Chapter X deals with liability without fault in certain cases; Chapter XI deals with insurance of motor vehicles against third party risks; Chapter XII deals with the establishment of Claims Tribunals; Chapter XIII deals with the Offences, penalties and Procedure(s); and Chapter XIV deals with miscellaneous matters.

¶332

For the purposes of adjudication of the instant lis , we need to dialect on the provisions contained in Chapter-I, i.e. the definitions- Section 2; Chapter V- Control of Transport Vehicles, from Section 66 to 96; and Chapter VIII Control of Traffic, from Section 112 to 138.

¶333

As per Section 66, no owner of a “motor vehicle” shall either use or permit the use of the “vehicle” as a

¶334

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 21/78

¶335

“transport vehicle” in any “public place”, save under the conditions of a “permit” granted or countersigned by a “Regional” or “State Transport Authority” or any other prescribed authority.

¶336

Section 2(34) of the Motor Vehicles Act, 1988, defines “public place” to mean a road, street, way, or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at passengers are picked up or set down by a stage carriage.

¶337

Both “vehicle” and “motor vehicle” synonyms to each other stands defined under sub-section (28) of Section 2 as under:-

¶338

“(28) “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twenty-five cubic centimetres];”

¶339

“Transport Vehicle” is defined under sub-section

¶340

(47) of Section 2 to read as under:-

¶341

“(47) “transport vehicle” means a public

¶342

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 22/78

¶343

service vehicle, a goods carriage, an educational institution bus or a private service vehicle;”

¶344

The definition clause (Section 2) defines different types of vehicles, i.e. “heavy goods vehicle” sub-section (16); “heavy passenger motor vehicle” sub-section (17); “light motor vehicle” sub-section (21); “maxicab” sub-section (22); “medium goods vehicle” sub-section(23); “medium passenger motor vehicle” sub-section (24); “motorcab” sub-section (25); “motor cycle” sub-section (27) “motor vehicle” or “vehicle” sub-section (28); “private service vehicle” sub-section (33); “public service vehicle” sub-section (35); “tourist vehicle” sub-section (43); “tractor” sub-section (44); “trailer” subsection (46); “goods carriage” sub-section (14); “educational institution bus” sub-section (11).

¶345

“Permit” has been defined under sub-section (31) of Section 2 to read as under:-

¶346

“(31) “permit” means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle;”

¶347

It is thus seen that for the use of the motor vehicle as

¶348

a “transport vehicle”, a “permit” is required to be issued by the

¶349

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 23/78

¶350

State/Regional Transport Authority.

¶351

The “transport vehicle” is inclusive of a vehicle used as a “goods carriage”, which, as defined under subsection (14) of Section 2, reads as under:-

¶352

“(14) “goods carriage” means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;”

¶353

Now, what is "goods" is also defined under subsection (13) of Section 2 and reads as under:-

¶354

“(13) “goods” includes live-stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle;

¶355

The distinction between “goods carriage” [subsection (14)] and “heavy goods vehicle” [sub-section (16)] is in terms of the gross weight of the vehicle. “Weight” is defined under sub-section (49) of Section 2 and reads as under:-

¶356

“(49) ‘weight” means the total weight transmitted for the time being by the wheels of a vehicle to the surface on which the vehicle rests or moves.”

¶357

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 24/78

¶358

We are dealing with cases where undisputedly permit(s) stand issued for carriage of goods for a vehicle, be it as a “goods carriage” or “heavy goods vehicle”.

¶359

The Transport Authorities, be it the State or the Regional Transport Authority, are constituted under Section 68 of Chapter V of the Act.

¶360

Under Section 69, all applications are required to be submitted before the “Regional Transport Authority” of the region in which the vehicle is proposed to be plied. The section itself takes care of a circumstance where, such a vehicle is required to be plied in different regions both within and/or outside the State. Section 77 enables the owner of a vehicle for the “carriage of goods” for hire or reward in connection with a trade or business to submit an application furnishing certain particulars. Accounting for the factors stipulated under Section 78, grant of a “goods carriage”, “permit” is issued subject to certain conditions specified therein.

¶361

Significantly, clause (iii) of sub-section (2) of Section 79 enables the “Regional Transport Authority” to specify the nature of “goods” which shall not be carried.

¶362

It is an admitted case of the parties that the owners

¶363

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 25/78

¶364

of the vehicles, be it individual or members of the Association before us, are complying with all the provisions of the Act; Rules framed thereunder, or conditions of the permit issued in respect of each of the vehicles.

¶365

Significantly, and undisputedly, neither the “State” nor the “Regional Transport Authority” has restricted the movement of any “goods” of a “specified nature”, to be carried anywhere either within or outside the country or within the State of Bihar.

¶366

In this backdrop, we now deal with the issue of restriction imposed by the State Government for carriage of certain goods, -(a) the Prohibition of vehicles fourteen wheeled and above on all roads within the State of Bihar to carry goods confined to sand and stone chips; (b) Restriction of carrying sand and stone chips up to a maximum height of three feet above the sub-frame of cowl chassis (Dala) in vehicles of six to ten wheels and three and half feet for vehicles with twelve wheels.

¶367

The State Government traces the source of such power under Section 115 of the Act which reads as under:-

¶368

“115. Power to restrict the use of vehicles .—The State Government or any authority authorised in this behalf by the State Government, if satisfied that it is necessary in

¶369

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 26/78

¶370

the interest of public safety or convenience, or because of the nature of any road or bridge, may by notification in the Official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in notification, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under section 116 at suitable places:

¶371

Provided that where any prohibition or restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction.”

¶372

Significantly, Section 113 of the Act enables the State Government to prescribe the conditions for the issuance of permits for transport vehicles by the State or Regional Transport Authorities. It may also prohibit the use of such vehicle in any area or route. Section 113 reads as under:-

¶373

“113. Limits of weight and limitations on use .—(1) The State Government may prescribe the conditions for the issue 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.

¶374

(2) Except as may be otherwise prescribed, no person shall drive or cause or allow to be driven in any public place any motor vehicle which is not fitted with pneumatic tyres.

¶375

(3) No person shall drive or cause or

¶376

Patna High Court CWJC No.4310 of 2021 dt.25-04-2022 27/78

¶377

allow to be driven in any public place any motor vehicle or trailer—

¶378

(a) the unladen weight of which exceeds the unladen weight specified in the certificate of registration of the vehicle, or

¶379

(b) the laden weight of which exceeds the gross vehicle weight specified in the certificate of registration.

¶380

(4) Where the driver or person in charge of a motor vehicle or trailer driven in contravention of sub-section (2) or clause (a) of sub-section (3) is not the owner, a Court may presume that the offence was committed with the knowledge of or under the orders of the owner of the motor vehicle or trailer.”

¶381

However, in so far as the provisions of Chapter VIII

¶382

(also containing Sections 113 and 115) are concerned, it does not in any way deal with prohibition, restriction, or regulation of any specified “goods” through a motor vehicle.

¶383

Section 115 enables the State Government upon its satisfaction and necessity arising out of public safety and convenience of plying of the vehicle on any road or bridge. The power to prohibit or restrict, subject to such exception and condition, is with regarding (a) driving of a motor vehicle; (b) of any specified class; or description; (c) use of trailer; (d) in any specified area or specified road.

¶384

We notice that Chapter VIII, which generally deals with the control of traffic, also enables the State Government

¶385

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¶386

to frame rules (Section 138) in the interest of road safety to regulate the activities. Rulemaking power is not specific to the subject of goods, though, under clause (i) to sub-section (2) of Section 138, the Government may frame rules generally for the prevention of danger, injury or annoyance to the public or any person, or of danger or injury to the property or of obstruction to traffic.

¶387

Binding Precedents

¶388

We now proceed to examine the various precedents laid down by Hon’ble the Supreme Court as well as observations made by Hon’ble High Courts as to the questions arising in this case.

¶389

The Hon’ble Apex Court in State of Himachal Pradesh and another v. Umed Ram Sharma and others, (1986) 2 SCC 68 (para-11), held that Article 21 read conjointly with Article 19(1) (d) gives right to move freely through the territory of India and, therefore, access to a road is access to life itself. Denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution.

¶390

In Mohd. Faruk v. State of M.P., (1969) 1 SCC 853, the Court observed as under:-

¶391

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¶392

“8. The power to issue Bye-laws indisputably includes the power to cancel or withdraw the Bye-laws, but the validity of the exercise of the power to issue and to cancel or withdraw the Bye-laws must be adjudged in the light of its impact upon the fundamental rights of persons affected thereby. When the validity of a law placing restriction upon the exercise of fundamental rights in Article 19(1) is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable lies upon the State. A law requiring that an act which is inherently dangerous, noxious or injurious to public interest, health or safety or is likely to prove a nuisance to the community, shall be done under a permit or licence of an executive authority, it is not per se unreasonable and no person may claim a licence or permit to do that act as of right. Where the law providing for grant of a licence or a permit confers a discretion upon an administrative authority regulated by rules or principles expressed or implied, and exercisable in consonance with rules of natural justice, it will be presumed to impose a reasonable restriction. Where, however, power is entrusted to an administrative agency to grant or withhold a permit or licence in its uncontrolled discretion, the law ex facie infringes the fundamental right under Article 19(1). Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition, but when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the State.

¶393

(Emphasis supplied)

¶394

However, as held by the Hon’ble Supreme Court in

¶395

State of Tamil Nadu v. P. Krishnamurthy, (2006) 4 SCC

¶396

517 , it was reaffirmed that, while there is a presumption of

¶397

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¶398

constitutional validity of subordinate legislation and the one laying challenge to it has to show it to be otherwise.

¶399

In Ram Krishna Dalmia v. Justice S.R. Tendolkar and Ors., (1959) SCR 279, Hon’ble the Supreme Court observed that a law may be deemed as constitutional even though it relates to single individual if on account of special circumstances or reasons applicable solely on such person that individual is treated as a class by himself.

¶400

The Hon’ble Supreme Court in Gulf Goans Hotels

¶401

Co. Ltd. v. Union of India, (2014) 10 SCC 673, held as under:-

¶402

“15. The question ‘what is “law”?’ has perplexed many a jurisprude; yet, the search for the elusive definition continues. It may be unwise to posit an answer to the question; rather, one may proceed by examining the points of consensus in jurisprudential theories. What appears to be common to all these theories is the notion that law must possess a certain form ; contain a clear mandate/explicit command which may be prescriptive, permissive or penal and the law must also seek to achieve a clearly identifiable purpose. While the form itself or absence thereof will not be determinative and its impact has to be considered as a lending or supporting force, the disclosure of a clear mandate and purpose is indispensable.

¶403

16. It may, therefore, be understood that a government policy may acquire the “force of ‘law’” if it conforms to a certain form possessed by other laws in force and

¶404

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¶405

encapsulates a mandate and discloses a specific purpose. It is from the aforesaid prescription that the guidelines relied upon by the Union of India in this case, will have to be examined to determine whether the same satisfies the minimum elements of law…”

¶406

(Emphasis supplied )

¶407

The Hon’ble Supreme Court in Govt. of A.P. v. T.

¶408

Anjeneyulu, (2005) 9 SCC 312, held that :-

¶409

“9. … There are some definite and defined areas earmarked for the functionaries of the State. Merely because the objectives in the ultimate may be for the good of a society, that will not permit overstepping the limitations prescribed by law and defined areas of government functioning…”

¶410

In Union of India v. Dinesh Engg. Corpn. (2001)

¶411

8 SCC 491, Hon’ble the Supreme Court observed that

¶412

“…There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinize whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record.”

¶413

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¶414

The Hon’ble Supreme Court in State of Rajasthan

¶415

v. Sevanivatra Karamchari Hitkari Samiti, (1995) 2 SCC 117 (Para-24) held that the wisdom in a policy decision of the Government, as such, is not justiciable unless the policy decision is wholly capricious, arbitrary and whimsical, thereby offending the rule of law as enshrined in Article 14 of the Constitution or if such a decision offends any statutory provision or the Constitution itself. It is only in these cases where the Court enters into the uncharted ocean of public policy.

¶416

In Shweta Kapoor v. Govt. of NCT of Delhi &

¶417

ors. 2016 SCC Online Del 155, the Hon’ble Supreme Court

¶418

held that:-

¶419

“13. The views on the efficacy of such government policy may differ, however, the question is whether the policy decision warrants interference by this Court in exercise of power of judicial review. The law is well settled that on matters affecting policy this Court will not interfere unless the policy is unconstitutional or contrary to statutory provisions or arbitrary or irrational or in abuse of power, since the policy decisions are taken based on expert knowledge and the Courts are normally not equipped to question the correctness of the same. The scope of judicial enquiry is therefore confined to the question whether the decision taken by the Government is against any statutory provision or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution of India.”

¶420

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¶421

In Parisons Agrotech (P) Ltd. v. Union of

¶422

India, (2015) 9 SCC 657 , Hon’ble the Supreme Court while considering number of judgments on writ jurisdiction observed with profit that judicial review is a power weapon to restrain unconstitutional exercise of power by the legislature and the executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. The check on such power is judicial interference, but the check on court’s own power is self imposed discipline and judicial restraint. Referring to State of Orissa v. Gopinath Dash, (1989) Supp. (2) SCC 364, the Court observed that judicial enquiry of administrative action is confined to the question whether decision taken by the Government is against any statutory provision or it violates the fundamental rights of citizens or is opposed to provisions to the constitution.

¶423

Similar view was taken in Manohar Lal Sharma

¶424

v. Union of India & Anr. (2013) 6 SCC 616 (Para 13).

¶425

The Hon’ble Supreme Court in Centre for Public

¶426

Interest Litigation v. Union of India & Ors., (2016) 6 SCC 408 held that judicial review of a policy decision is not warranted if the said decision is not found to be

¶427

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¶428

arbitrary, based on irrelevant consideration, mala fide or against statutory provision, if the decision is outcome of deliberation of experts.

¶429

The Hon’ble Apex Court in Om Kumar v. Union of India, (2001) 2 SCC 386, while expounding on the proportionality doctrine, held as under:-

¶430

“28. By “proportionality”, we mean the question whether, while regulating exercise of fundamental rights, the appropriate or leastrestrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality.”

¶431

“30. On account of a Chapter on Fundamental Rights in Part III of our Constitution right from 1950, Indian Courts did not suffer from the disability similar to the one experienced by English Courts for declaring as unconstitutional legislation on the principle of proportionality or reading them in a manner consistent with the charter of rights. Ever since 1950, the principle of “proportionality” has indeed been applied vigorously to legislative (and administrative) action in India. While dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India — such as freedom of speech and expression, freedom to assemble peaceably, freedom to form associations and unions, freedom

¶432

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¶433

to move freely throughout the territory of India, freedom to reside and settle in any part of India, — this Court has occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices. The burden of proof to show that the restriction was reasonable lay on the State. “Reasonable restrictions” under Articles 19(2) to (6) could be imposed on these freedoms only by legislation and courts had occasion throughout to consider the proportionality of the restrictions. In numerous judgments of this Court, the extent to which “reasonable restrictions” could be imposed was considered. In Chintamanrao v. State of M.P. [AIR 1951 SC 118 : 1950 SCR 759] Mahajan, J. (as he then was) observed that “reasonable restrictions” which the State could impose on the fundamental rights “should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public”. “Reasonable” implied intelligent care and deliberations, that is, the choice of a course which reason dictated. Legislation which arbitrarily or excessively invaded the right could not be said to contain the quality of reasonableness unless it struck a proper balance between the rights guaranteed and the control permissible under Articles 19(2) to (6). Otherwise, it must be held to be wanting in that quality. Patanjali Sastri, C.J. in State of Madras v. V.G. Row [AIR 1952 SC 196: 1952 SCR 597: 1952 Cri LJ 966], observed that the Court must keep in mind the “nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time”. This principle of proportionality vis-à-vis legislation was referred to by Jeevan Reddy, J. in State of A.P. v. McDowell & Co. [(1996) 3 SCC 709] recently. This level of scrutiny has been a common feature in the High Court and the Supreme Court in the last fifty years. Decided cases run into thousands.”

¶434

The Constitution Bench of the Hon’ble Supreme

¶435

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¶436

Court in K S Puttaswamy v. Union of India, (2019) 1 SCC 1, propounded the four pronged proportionality test. The four prongs are- (i) a measure stipulated to restrict a right must have legitimate goal; (ii) means must exist to further that goal; (iii) there must not be an effective alternative to the purpose of such restriction; and (iv) that it must not have a disproportionate impact on the right holder.

¶437

The Hon’ble Supreme Court in Akshay N. Patel v. Reserve Bank of India & Anr., 2021 SCC OnLine 1180 has held that

¶438

“… However, the substance of the enquiry behind each of the limitations under these Articles is similar to a proportionality analysis. In essence, the rights' limitation is considered justified if it pursues a legitimate aim, has a rational nexus to the objective and there is a balance between the limitation of the right and the public interest which the rights-limitation aims to achieve. This analysis has been considered similar to a proportionality inquiry, with the “necessity” prong being considered missing.”

¶439

In Godawat Paan Masala IP Ltd. v. Union of India, (2004) 7 SCC 68 , the Hon’ble Supreme Court observed that when licences have already been granted under a particular statutory provision, there must be a statutory scheme for cancellation and suspension of licence. The power in the State Authority to suddenly bring out the result of cancellation or suspension of licence without procedure safeguard would

¶440

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¶441

certainly be arbitrary and liable to hit by Article 14.

¶442

In Tata Cellular v. Union of India, (1994) 6 SCC

¶443

651, the Hon’ble Supreme Court recorded at considerable length what is irrational, in the following terms:-

¶444

“By “irrationality” I mean what can now be succinctly referred to as “Wednesbury unreasonableness”. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] ) It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at.’ ”

¶445

(1) It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld…”

¶446

“(2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson [(1989) 88 LGR 73] the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down.”

¶447

“83. A modern comprehensive statement about judicial review by Lord Denning is very apposite; it is perhaps worthwhile noting that he stresses the supervisory nature of the jurisdiction:

¶448

“Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the courts will not themselves take the place of the body to whom Parliament has entrusted the decision. The courts will not themselves embark on a rehearing of the matter. See Healey v. Minister of Health [(1955) 1 QB 221 : (1954) 3 All ER 449 : (1954) 3 WLR 815] . But

¶449

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¶450

nevertheless, the courts will, if called upon, act in a supervisory capacity. They will see that the decisionmaking body acts fairly. See H.K. (an infant), Re [(1967) 2 QB 617, 630 : (1967) 1 All ER 226 : (1967) 2 WLR 692] , and R. v. Gaming Board for Great Britain, ex p Benaim and Khaida [(1970) 2 QB 417 : (1970) 2 All ER 528 : (1970) 2 WLR 1009] . The courts will ensure that the body acts in accordance with the law. If a question arises on the interpretation of words, the courts will decide it by declaring what is the correct interpretation. See Punton v. Ministry of Pensions and National Insurance [(1963) 1 WLR 186 : (1963) 1 All ER 275] . And if the decision-making body has gone wrong in its interpretation they can set its order aside. See Ashbridge Investments Ltd. v. Minister of Housing and Local Government [(1965) 1 WLR 1320 : (1965) 3 All ER 371] . (I know of some expressions to the contrary but they are not correct). If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the court will interfere. See Padfield v. Minister of Agriculture, Fisheries and Food [1968 AC 997 : (1968) 1 All ER 694] . If the decision-making body comes to its decision on no evidence or comes to an unreasonable finding — so unreasonable that a reasonable person would not have come to it — then again the courts will interfere. See Associated Provincial Picture Houses Ltd. v. WednesburyCorpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] If the decision-making body goes outside its powers or misconstrues the extent of its powers, then, too the courts can interfere. See Anisminic Ltd. v. Foreign Compensation Commission [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2 WLR 163] . And, of course, if the body acts in bad faith or for an ulterior object, which is not authorised by law, its decision will be set aside. See Sydney Municipal Council v. Campbell [1925 AC 338 : 1924 All ER Rep 930] . In exercising these powers, the courts will take into account any reasons which the body may give for its decisions. If it gives no reasons — in a case when it may reasonably be expected to do so, the courts may infer that it has no good reason for reaching its conclusion, and act accordingly. See Padfield case (as AC pp. 1007, 1061) [1968 AC 997 : (1968) 1 All ER 694] .”

¶451

In order to strike down a delegated legislation as

¶452

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¶453

arbitrary it has to be established that there is manifest arbitrariness. The expression “arbitrarily” means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone. [ Sharma Transport v. State of A.P., (2002) 2 SCC 188 ]

¶454

Article 14 is not meant to perpetuate illegality or fraud. It has a positive concept. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or Court in a negative manner. (Fuljit Kaur v. State of Punjab and others, (2010) 11 SCC 455).

¶455

In Shayra Bano v. Union of India, (2017) 9 SCC 1 , the Apex Court held: ―

¶456

“87. The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three Judges’ Bench decision in State of A.P. v. McDowell and Co., (1996) 3 SCC 709, when it is said that a constitutional challenge can succeed on the ground that a law is ―disproportionate, excessive or unreasonable‖, yet such challenge would fail on the very ground of the law being ―unreasonable, unnecessary or unwarranted‖. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore,

¶457

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¶458

do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.”

¶459

Our Opinion

¶460

Thus the law clearly sets out how a challenge as to violation of Articles 14 and 19 has to be dealt with. The Courts’ power of judicial review of a delegated legislation; policy decision; reasonableness of Government action; principles and facets of arbitrariness, including manifest arbitrariness; the four pronged proportionality test already stand discussed.

¶461

In our considered view, the impugned notification and the consequential communication do not meet the standard of reasonable nexus to the object sought to be achieved and reasonable classification based on intelligible differentia imposed by Article 14.

¶462

The ban solely based on the type of goods being carried in vehicles with fourteen wheels or above or restricted to a carriage up to a certain height in certain specified vehicles cannot be stated to meet the nexus of protection of roadways and purported loss of revenue caused, due to damage to bridges etc..

¶463

There is no material placed on record, save and

¶464

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¶465

except, communications by NHAI vide Letter No.2195 dated 29.11.2019 (Annexure-H to the supplementary counter affidavit dated 04.08.2021 filed on behalf of Respondents 3 to 5) with regard to stopping of movement of traffic on Rajendra Setu, Rail cum Road Bridge over river Ganga between Hathida and Barauni in the duration of maintenance to ensure structural integrity to bear heavy load; Letter dated 25.02.2020 issued by General Manager, East Central Railways, Hajipur (Annexure-I to the supplementary counter affidavit dated 04.08.2021 filed on behalf of Respondents 3 to 5) regarding overstress on J.P. Setu as a result of plying of heavy vehicles; and letter dated 12.05.2020 issued by Dy. Chief Engineer Bridge Line, East Central Railways, Hajipur (Annexure-J to the supplementary counter affidavit dated 04.08.2021 filed on behalf of Respondents 3 to 5) as regards to overloading of vehicles on J.P. Bridge over river Ganges.

¶466

In light of the above, suitable action being the said notification is taken to prevent such vehicles from plying on those bridges as has been mentioned in the order rejecting the representation filed by the petitioner in CWJC No.3179 of 2022, namely All India Motor Transport Congress, by the Secretary, Transport Department, Government of Bihar, Patna

¶467

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¶468

(Page 113-115).

¶469

The record does not reflect any cogent material that may form the basis of issuing such a notification spread all over the State and that too on all the Highways. The restriction of the petitioners' right in totality cannot be based entirely on three communications unsubstantiated by any scientific study or data.

¶470

The State did not furnish any material to substantiate claims of overloading. Neither did they place any scientific study that justified the total restriction on carrying goods such as sand and stone chips, and not others of equal weight, within the State of Bihar by specified vehicles. Is there any empirical data showing that sand and stone chips alone damage the road? None whatsoever.

¶471

Therefore, the impugned notification appears to be, though prompted, without any application of mind or proper appreciation and application of the MV Act in enforcing the provision, checking the alleged malpractices of overloading the vehicle(s) of such goods. This vitiates both the decision and the decision-making process as any conclusive cogent material did not support it.

¶472

The ground of arbitrariness as held by Hon’ble the

¶473

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¶474

Apex Court is not a separate ground within Indian Law. It is subsumed by Article 14. One must satisfy non-arbitrariness for any law to pass muster.

¶475

In the present case, the State takes a loosely formed ground of public safety while exercising a power situate under Chapter VIII of the MV Act termed as 'Control of Traffic' and justification provided is of damage to roadways and bridges upon three letters furnished by the NHAI and Railways. However, it does not satisfy how a total or restricted ban can be held to be good in fact or law.

¶476

On Article 19, it is argued that the selective restriction on the type of good and the near-complete ban derogates the right to freedom of trade and profession stipulated therein. Further, arguments have been made to submit that the impugned notification falls short of the standard envisaged by the proportionality test as laid down by Hon'ble the Supreme Court, principles whereof we have already discussed. [ Om Kumar (supra); K S Puttaswamy (supra); Akshay N. Patel(supra)]

¶477

In the considered view of this Court, the four prongs are not satisfied. The legitimate goal indicated by the words of the notification, "It is necessary to maintain bridges and roads

¶478

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¶479

properly and control the transportation of overloaded vehicles effectively,” was to prevent overloading. Here only we take note of Section 58 of the MV Act, which is titled as special provisions regarding transport vehicles, explicitly empowering the Central Government to specify by notification the maximum weight both gross and axle. Connectedly, an effective alternative does exist, i.e. the imposition of penalty under Section 194 of the MV Act and regulation of weight according to a notification dated 16.07.2018 issued by the Ministry of Road Transport And Highways, Government of India, under Section 58(1) of the said Act which lays down maximum safe axle weight¹ .

¶480

The goal of preventing overloading could have been met by effectively implementing existing policies and laws, thereby failing to meet the third prong, which may be termed the necessity analysis. This analysis casts a shadow of doubt on the ban's ‘complete’ nature, which is discussed later.

¶481

The final test is conducting a balancing exercise, and in the present case, the same has been foregone to a disproportionate disadvantage to the truck owners and users.

¶482

The very Chapter VIII under which Section 115 was

¶483

1 https://morth.nic.in/sites/default/files/circulars_document/Advisory_regarding_revision_of_safe_axle_1.pdf

¶484

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¶485

invoked gives the State Authorities different kinds of power to effectively implement policies and protect their roads. Section 112 (2) gives the State Government the authority to restrict motor vehicle speed in the interest of public safety, considering the nature of the road or bridge. Section 113 empowers the State Government to prescribe conditions for the issue of permits by the State/ Regional Transport Authorities for transport vehicles and to restrict the use of such vehicles on any area or route etc. Section 114 empowers the Motor Vehicle Department or any other person authorized by the State Government to weigh a vehicle within specific parameters as prescribed. The State Government has the power of regulating traffic restricting entry of certain vehicles at a particular place. But did the State do so? No. Why not so? No explanation is forthcoming.

¶486

All this was not done.

¶487

Rule making power is not confined to the subject of goods, though under clause (i) to sub-section (2) of Section 138 of MV Act, the Government may frame rules generally for the prevention of danger, injury or annoyance to the public or any person, or of danger or injury to the property or of obstruction to traffic. We notice that Chapter VIII, which

¶488

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¶489

generally deals with traffic control, also enables the State Government to frame rules (Section 138) in the interest of road safety to regulate certain activities. Significantly, Section 113 of the Act allows the State Government to prescribe the conditions for issuing permits for transport vehicles by the State or Regional Transport Authorities. It may also prohibit the use of such vehicles in any area or route.

¶490

However, in so far as the provisions of Chapter VIII are concerned, it does not in any manner deal with prohibition, restriction, or regulation of any specified goods through a motor vehicle.

¶491

Elaborating further, Section 115 enables the State Government upon its satisfaction and necessity arising out of interest of public safety and convenience of plying of the vehicle on any road or bridge. The power to prohibit or restrict, subject to such exception and conditions, is regarding(a) driving of a motor vehicle; (b) of any specified class; (c) description; (d) use of trailer; (e) in any specified area or specified road. The power to restrict and prohibit, in our considered view, is specific only to a motor vehicle, be it of whatever description, but not goods carried by such vehicle. That power rests only with the State Government/Regional

¶492

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¶493

Transport Authority issuing the permit for carriage of goods. The Transport Authority, a creation of the Statute, is an authority independent of the State. Hence, in our considered view, the impugned action is totally contrary to the law and is not sustainable in law.

¶494

Section 110 (1) gives the power to the Central Government to make rules regulating the construction, equipment and maintenance of motor vehicles. Section 110 reads as the power of the Central Government to make Rules under Chapter VII "construction, equipment and maintenance of motor vehicles". Clause (a) thereof reads "the width, height, length and overhand of vehicles and of the loads carried". Section 111 gives the power to the State Government to make rules in matters other than what is specified in Section 110(1). This amply clarifies that the physical particulars of the vehicle are to be made under rules notified by the Central Government.

¶495

The fourteen or more wheeler trucks whose cowl chassis has been restricted by the impugned notification (only for sand and stone chips) usurps power from the Centre. The State Government cannot restrict material particulars of a vehicle, neither under this Chapter nor under Chapter VIII.

¶496

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¶497

The rule making power in the Act enables both the Centre and the State to do so under each chapter and such power must be exercised in that context.

¶498

The control of weight on roads is regulated by the Central Government which has, as mentioned, issued a notification in 2018 in this regard. The attempt of the State to regulate weight goes against the division of power set out in the Act. Various provisions, in particular Sections 110 and 111, lend themselves to such division of power. Section 58, under which control of weight notification has been issued, also empowers the Central Government to notify heavier weights for particular localities and types of vehicles.

¶499

The object of the enabling legislation, i.e. the MV Act, already stands elucidated by us. The primary focus of this Act was to consolidate and amend laws relating to motor vehicles as well as to keep the parent legislation in line with technological advancement and the changes brought on thereby. An overall reading of the Act shows clearly this intent of the legislature. In the considered view of this Court, regulation of goods, that too vide a generally worded power, was not the intent . Such an understanding is also borne out from the Chapter VIII in which Section 115 is housed and the

¶500

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¶501

provision's wording.

¶502

The heading of Chapter VIII is “Control of Traffic”. As Hon’ble the Supreme Court has noted, relying on Maxwell on Interpretation of Statute (10^th Edition) “The Headings prefixed to sections or set of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the Statute but they may explain ambiguous words.” If there is any doubt in the interpretation of the words in the section, the heading certainly helps us to resolve that doubt. [Bhinka v. Charan Singh, 1959 Supp (2) SCR 798]

¶503

Control of Traffic as a term cannot be stated to be lending itself to banning of particular kind/size of vehicle carrying only specified goods, when the intent is not as displayed in the heading and is instead prevention of overloading. The words of the Section are themselves clear regarding the power to restrict plying of vehicles in specified areas or roads. Even so, if the generality of the wording is conceded to, the heading of the Chapter circumscribes the area of exercise of the power vested in said section.

¶504

Further, the scheme of the Act rests certain powers with either the Centre or the State. As previously noted, it is

¶505

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¶506

under Section 58 that the maximum weight (gross vehicle weight and axle) can be prescribed by the Central Government by notification. The power it does have is to levy fines under Section 194 and ensure that overloading does not damage its roads. The prohibitive restrictions imposed by the impugned notification, particularly reference to restriction on sand and stone chips, are conclusively against the Act's nature, object, and scheme.

¶507

Submission on behalf of the respondents that the power under Section 115 of the MV Act is wide in its amplitude and empowers the State Government to impose any prohibition and restriction on vehicular movement in the interest of public safety, based on three letters written by the authorities of NHAI and East Central Railway, Hajipur is, in our considered view, fallacious. The record does not reflect any positive steps taken to strengthen the existing measures, nor does it show any investigation or study to link the damage to the roads, particularly to sand and stone chips.

¶508

83. Expounding on the doctrine of proportionality, while referring to other judgments, Hon’ble the Supreme Court stated in Anuradha Bhasin v. Union of India , (2020) 3 SCC 637 :

¶509

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¶510

“60. The doctrine of proportionality is not foreign to the Indian Constitution, considering the use of the word “reasonable” under Article 19 of the Constitution. In a catena of judgments, this Court has held that “reasonable restrictions” are indispensable for the realisation of freedoms enshrined under Article 19, as they are what ensure that enjoyment of rights is not arbitrary or excessive, so as to affect public interest. This Court, while sitting in a Constitution Bench in one of its earliest judgments in Chintaman Rao v. State of M.P. [ Chintaman Rao v. State of M.P. , AIR 1951 SC 118] interpreted limitations on personal liberty, and the balancing thereof, as follows : (AIR p. 119, para 7)

¶511

“ 7 . The phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public . The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)( g ) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.”

¶512

(emphasis supplied) This Court in State of Madras v. V.G. Row [ State of Madras v. V.G. Row , AIR 1952 SC 196 : 1952 Cri LJ 966] , while laying down the test of reasonableness, held that : (AIR p. 200, para 15)

¶513

“ 15 . … It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict .”

¶514

(Emphasis supplied )

¶515

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¶516

In Ram Sahai Varma v. State of Madhya Pradesh, 1989 SCC OnLine MP 77, Hon’ble High Court Madhya Pradesh held as under:-

¶517

“7. .. There can be no mechanical exercise of power in respect of traffic restriction relying merely on recommendations of a non-statutory body when indeed, in the minutes is not reflected the fact that in the interest of general public such restrictions were required for “safety or convenience” of the public generally.

¶518

“9. … Power envisaged under those provisions is to be exercised judiciously and reasonably. Minimum and reasonable restrictions matching the avowed objective can only stand the constitutional cavil of Art. 19(1)(d) guaranteeing freedom of movement to citizens…”

¶519

(Emphasis supplied )

¶520

In Zakir Hussain Yusufali v. State of

¶521

Maharashtra, 2000 SCC OnLine Bom 542, the Hon’ble High Court of Bombay while adjudicating upon a notification issued under Section 115 of the Motor Vehicles Act opined as under:-

¶522

“19. … The only requirement under section 115 of the Act is whether there is a requisite material or circumstances exist before the Competent Authority to reach the necessary satisfaction in order to issue prohibitory order in the interest of public safety or convenience…”

¶523

The Hon’ble High Court of Karnataka in Smt.

¶524

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¶525

Kathiza & Ors. v. The District Magistrate & Ors., 1997 SCC OnLine Kar 598 has held that a notification under Section 115 is not meant to hold the field permanently, but the decision needs to be reviewed periodically. We see it fit to reproduce what the learned coordinate Bench had stated:-

¶526

“14. One argument advanced by the Learned Counsel for the appellants/Writ Petitioner is that the Notification issued under Section 115 of the Act is not meant to hold the field permanently but that the decision needs to be reviewed periodically. We agree with this submission. The proviso to Section 115 itself gives an indication in this regard. It contemplates that any prohibition or restriction under Section 115 could be meant to remain in force even for a period less than one month in which event, notice in the official gazette would not be necessary but only local publicity would suffice. Even without the aid of the said proviso, it could be seen that the paramount considerations leading to issuance of the Notifications under Section 115 of the Act, namely the interest of public safety, convenience, nature of road or a bridge are not such as to remain permanently in the same condition as they stood on the date the concerned authority issued notification. The nature of the road on which plying of vehicles is prohibited or restricted could be improved by repairs. A weak bridge could be repaired or replaced by a new bridge. Convenience of the members of the public may necessitate more number of vehicles being required to be permitted in the area concerned. Thus, by the very nature of considerations that weighed in issuing the Notifications under Section 115, the authority concerned needs to review the position from time to time. The moment the concerned road or bridge is repaired, prohibition/restriction earlier imposed needs to be withdrawn. Even on the aspect of convenience, some of the considerations that weighed with the authority in issuing the

¶527

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¶528

notification under Section 115 may change in course of time… Several situations that may warrant review of the decision taken earlier and taking a fresh decision under Section 115 of the Act may arise and, it is absolutely necessary for the District Magistrate to have such periodical review, and, on such, review, to either withdraw prohibition/restriction or to modify the prohibition/restriction earlier imposed, would be necessary. We, therefore, hold that periodical review is inherent in the scheme under Section 115 of the Act.”

¶529

The Hon’ble Supreme Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 observed that the expression “interest of general public” is a wide expression which covers within its broad sweep all kinds of interest of the general public, including interest of the sovereignty and integrity of India, security of India and friendly relation of India with foreign States.

¶530

The Hon’ble Supreme Court in State of Gujarat v. Mirzapur Moti Quarashi Kassab Jamat and others, (2005) 8 SCC 534, in para 75, held in reference to the word ‘restriction’ as under:-

¶531

“75. Three propositions are well settled: ( i ) “restriction” includes cases of “prohibition”; ( ii ) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and ( iii ) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to

¶532

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¶533

the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that right. Reference may be made to M.B. Cotton Assn. Ltd. v. Union of India [AIR 1954 SC 634], Krishna Kumar v. Municipal Committee of Bhatapara [Petn. No. 660 of 1954 decided on 21-2-1957 by the Constitution Bench subsequently reported at (2005) 8 SCC 612.] (see Compilation of Supreme Court Judgments , 1957 Jan-May, p. 33, available in Supreme Court Judges' Library), Narendra Kumar v. Union of India [(1960) 2 SCR 375 : AIR 1960 SC 430] , State of Maharashtra v. Himmatbhai Narbheram Rao [AIR 1970 SC 1157 : (1969) 2 SCR 392] , Sushila Saw Mill v. State of Orissa [(1995) 5 SCC 615] , Pratap Pharma (P) Ltd. v. Union of India [(1997) 5 SCC 87] and Dharam Dutt v. Union of India [(2004) 1 SCC 712] .”

¶534

Further in the same case, precedent was discussed where it was held that the Court while striking a balance between rights of individuals and the rights of citizenry as a whole the financial loss caused to individual becomes insignificant if it serves the larger public interest.

¶535

Hon’ble the Apex Court in Narendra

¶536

Kumar v. Union of India, (1960) 2 SCR 375, held that the word “restriction” in Articles 19(5) and 19(6) of the Constitution includes cases of “prohibition” also; that where a restriction reaches the stage of total restraint of rights special care has to be taken by the Court to see that the test of reasonableness is satisfied by considering the question in the background of the facts and circumstances under which the

¶537

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¶538

order was made, taking into account the nature of the evil that was sought to be remedied by such law, the harm caused to individual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law was more than what was necessary in the interests of the general public.

¶539

In Mithilesh Garg v. Union of India, (1992) 1

¶540

SCC 168, Hon’ble the Supreme Court observed as under:-

¶541

“9. Article 19(1)(g) of the Constitution of India guarantees to all citizens the right to practice any profession, or to carry on any occupation, trade or business subject to reasonable restrictions imposed by the State under Article 19(6) of the Constitution of India. A Constitution Bench of this Court in Saghir Ahmad v. State of U.P. [(1955) 1 SCR 707 : AIR 1954 SC 728] held that the fundamental right under Article 19(1)(g) entitles any member of the public to carry on the business of transporting passengers with the aid of vehicles. Mukherjea, J. speaking for the Court observed as under: (SCR p. 708)

¶542

“Within the limits imposed by State regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of vehicles. It is to this carrying on of the trade or business that the guarantee in Article 19(1)(g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article.”

¶543

The Hon’ble Supreme Court in Laxmi Khandsari

¶544

v. State of U.P., (1981) 2 SCC 600, observed that when

¶545

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¶546

imposing restrictions on fundamental rights the State must adopt an objective standard amounting to social control by restricting the rights of citizens where necessities of situation demand. Such restriction must be in public interest, striking a balance between deprivation of right and the danger/evil sought to be avoided. A doctrinaire approach should not be adopted and the real purpose should be sub-served.

¶547

The Hon’ble Supreme Court in N.K. Bajpai v.

¶548

Union of India & Anr, (2012) 4 SCC 652, held that

¶549

“16. No person can be divested of his fundamental rights. They are incapable of being taken away or abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests emerge:

¶550

( a ) The restriction can be imposed only by or under the authority of law. It cannot be imposed by exercise of executive power without any law to back it up.

¶551

( b ) Each restriction must be reasonable.

¶552

( c ) A restriction must be related to the purpose mentioned in Article 19(2).”

¶553

“19. It is necessary to be clear about the meaning of the word “fundamental” as used in the expression “fundamental in the governance of the State” to describe the directive principles which have not been made legally enforceable. Thus, the word “fundamental” has been used in two different senses under our Constitution of India. The essential character of the fundamental rights is secured by limiting the legislative power and by providing that any transgression of the limitation would render the offending law pro tanto void. The word “fundamental” in Article 37 of the Constitution also means basic or essential, but it is

¶554

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¶555

58/78

¶556

used in the normative sense of setting, before the State, goals which it should try to achieve. As already noticed, the significance of the fundamental principles stated in the directive principles have attained greater significance through judicial pronouncements.

¶557

20. As difficult as it is to anticipate the right to any freedom or liberty without any reasonable restriction, equally difficult is it to imagine the existence of a right not coupled with a duty. The duty may be a direct or indirect consequence of a fair assertion of the right. Although Part III of the Constitution of India confers rights, still the duties and restrictions are inherent thereunder. These rights are basic in nature and are recognised and guaranteed as natural rights, inherent in the status of a citizen of a free country, but are not absolute in nature and uncontrolled in operation. Each one of these rights is to be controlled, curtailed and regulated, to a certain extent, by laws made by Parliament or the State Legislature. In spite of there being a general presumption in favour of the constitutionality of a legislation under challenge in case of allegations of violation of the right to freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation being made out, the onus shifts upon the State to show that the legislation comes within the permissible restrictions set out in clauses (2) to (6) of Article 19 and that the particular restriction is reasonable. It is for the State to place appropriate material justifying the restriction and its reasonability on record.”

¶558

The Hon’ble Supreme Court in Bennett Coleman &

¶559

Co & Ors. v. Union of India & Ors., (1972) 2 SCC 788, observed that the law which lays excessive and prohibitive burden will not be saved by Article 19(2) of the Constitution of India.

¶560

The contention that restriction so imposed by the

¶561

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¶562

impugned notification qualifies the test of Article 14 does not find favour as already noted. The fundamental right guaranteed under Article 19(1) (g) of the Constitution of India is subject to reasonable restriction in the interest of the public, and the Section under which the impugned notification was issued also contains the term 'safety of the public'. In light of the above decisions by Hon’ble the Apex Court, no solid basis is exhibited from the record for the classification made as to restrict the movement only of sand and stone chips. A complete ban in the present case cannot be saved as a reasonable restriction as it infringes directly and almost entirely on freedom of trade and profession enshrined under Article 19. It is also noted that the non-restriction of transportation of sand and stone chips via vehicles with less than 14 wheels is not a ground to state that such right has not been infringed as the size and scale of transportation so carried out greatly impacts the economies of the particular work being undertaken.

¶563

In the considered opinion of this Court, the total ban cast by the impugned notification affects not only the State Highways but also National Highways, which the State does not have the power to regulate. Sections 4 and 5 of the

¶564

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¶565

National Highways Act, 1956 (referred to as the Highways Act) clearly stipulate the control of the Central Government, and it is only via a notification that the power to develop and maintain a National Highway contained within its borders can be assigned to a State. Presently, no such notification has been issued to justify authorization enabling the State to issue the impugned notification.

¶566

In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641, the Hon’ble Supreme Court held that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.

¶567

As held by the Hon’ble Supreme Court in State of

¶568

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¶569

Tamil Nadu v. P. Krishnamurthy, (2006) 4 SCC 517 , it was reaffirmed that, while there is a presumption of constitutional validity of subordinate legislation and the one laying challenge to it has to show it to be otherwise. A subordinate legislation can be challenged under any of the following grounds:

¶570

(a) Lack of legislative competence to make the subordinate legislation; (b) Violation of fundamental rights guaranteed under the Constitution of India; (c) Violation of any provision of the Constitution of India; (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act; (e) Repugnancy to the laws of the land, that is, any enactment; (f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).

¶571

The Hon’ble Supreme Court in Employees’ Welfare Association v. Union of India & Anr., (1989) 4 SCC 187, held that an arbitrary exercise of power can be set aside, as violative of Article irrespective of its nature of subordinate legislation or otherwise. It is so either because the authority has acted in excess of its power, in a limited sense or that its action may have resulted in abuse of power, i.e. being

¶572

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¶573

in bad faith or for an inadmissible purpose.

¶574

Expounding on the relationship between the parent legislation and the delegated legislation, Hon’ble the Apex Court observed the following in St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 :

¶575

“10. … The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details…. The regulations made under power conferred by the statute are supporting legislation and have the force and effect, if validly made, as an Act passed by the competent legislature. (See Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi [(1975) 1 SCC 421 : 1975 SCC (L&S) 101 : AIR 1975 SC 1331] ”

¶576

Legislative competence is determined by the Constitution which enumerates three Lists clearly determining the areas in which legislature of the Centre and the States are to operate. Under List III, where both are considered legislatively competent, a set of rules, conditions all actions. In

¶577

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¶578

the present case, the conflict as presented is between Entry 23, List I; Entry 13 List II and Entry 35 of List III.

¶579

Entry 23, List I reads “Highways declared by or under law made by Parliament to be national highways.” And Entry 42 of List I reads as “Inter-State trade and commerce”.

¶580

Entry 13, List II reads “Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles.”

¶581

Entry 35 of List III reads as “Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.”

¶582

In view of this Court, the distinction is clear. National Highways are a kind of roadway, specifically listed separately. The term ‘National’ has been placed to suggest the connectedness of the entire country through them. Entry 13, List II particularly says other means of communication not specified in List I. Therefore, with National Highways, particularly listed in List I, the State lacks legislative competence to regulate the flow of traffic on such Highways.

¶583

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¶584

Further as per Entry 35 List III empowers and enables the Central Government, by virtue of the MV Act to deal with “mechanically propelled vehicles” and as per Article 246 of the Constitution of India, it is the legislation enacted by the Parliament which is to prevail over the legislation enacted by the State.

¶585

The total ban cast by the impugned notification affects the State Highways and National Highways. And, as already noticed, ‘National Highways’ are meant for the entire country. Article 257 of the Constitution clarifies that any exercise of power by the State must be done so, in a way not to impede the executive power of the Union. And further, Clause 2 refers to directions to the State as to the construction and maintenance of means of communication declared to be of National Importance.

¶586

The Hon’ble Supreme Court in State of Karnataka v. Union of India, (1977) 4 SCC 608 , observed

¶587

that:-

¶588

“Indeed, a glance through Chapter 11 in part XI shows that, apart from articles 256 and 257 (1), it deals only with some special matters, such as maintenance of national highways, water ways, and railways, constructions to be undertaken for objects of national or military importance,…”

¶589

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¶590

The above paragraph shows the control of the Centre over National Highways as also them being considered objects of National importance.

¶591

In Godawat Paan Masala IP Ltd. v. Union of India, (2004) 7 SCC 68 , the Hon’ble Supreme Court observed that it is an accepted cannon of construction that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions of the same Act so as to make a consistent, harmonious enactment of the whole statute. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed, but to the scheme of the entire statute.

¶592

It has been held by the Hon’ble Supreme Court in Madhubhai Amathalal Gandhi v. Union of India, AIR 1961 SC 21 that “i f an Act is a self-contained one and the notification issued thereunder only restates the provisions of the Act, the validity of the notification cannot obviously be questioned as the validity of its contents were accepted. But if the Act confers a power on the State in general terms and the notification issued thereunder infringes one or other of the fundamental rights, the validity of the Act cannot equally obviously prevent an attack on the notification. In the former

¶593

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¶594

case the notification only reflects the provisions of a valid Act and in the latter it is the notification and not the Act that infringes the fundamental rights .”

¶595

The impugned notification is also in contravention of Section 35 of the Control of Highways (Land and Traffic) Act, 2002 (Referred to as the Traffic Act). The object of the Traffic Act is to give the Central Government power to prevent or remove encroachments on land under the National Highways or restrict access to them from the adjacent land, or to regulate traffic movement of any category of vehicles or animal on National Highways. Section 35 deals with the power to restrict the use of vehicles. It empowers the Highway Administration to issue prohibitions or restrict the use of National Highways. Reading of the object and reasons clause, as the said section clarifies, that the power to restrict vehicles on National Highways rests solely with the Central Government. Therefore, the impugned notification steps on the power resting with another agency.

¶596

113. The State did have the power under Section 115 to restrict the use of certain vehicles in the interest of public safety, keeping in mind the nature of road or bridge, which was not done. The basis of the ban, put forward by the State,

¶597

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¶598

were letters issued by the Railways and the NHAI as instances of damage referred to in the counter affidavit filed by the competent authority on Rajendra Setu as well as other roads. A complete ban as already discussed, on certain specified goods, cannot be sustained. All cessation of use of motor vehicles with 14 wheels or above for the particular purpose of carrying sand and stone chips only does not satisfy the test of reasonableness or reasonable classification.

¶599

114. The respondent's reliance on Virendra Singh v.

¶600

State of Himachal Pradesh, 2018 SCC OnLine HP 2983, giving an expansive interpretation of the power under Section 115, cannot be applied to the present set of facts as the object of the notification in the present case is entirely different. The regulation sought is of a particular kind of good that cannot be permitted and cannot be termed reasonable.

¶601

The duty of the State is to govern. Governance includes the implementation of the statutes in existence. Failure of the Government to have the provisions of a statute implemented amounts to failure in governance. This failure in governance by a Government cannot be permitted to be condoned by incorporating such amendments, resulting in condoning mis-governance.

¶602

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¶603

The power to issue the notification is also traced to Rule 73(7) (x) of the Bihar Motor Vehicles Rules, 1992, prescribing form in N P. Pu.C. whereby, purportedly the authority can regulate the nature of the goods to be carried as goods carriage. It is true that the person desirous of obtaining a national permit is required to disclose the nature of goods to be carried as a goods carriage. Equally it can be said that the Regional Transport Authority can prescribe or restrict the goods to be carried as a goods carriage. But then as already discussed, such power has to be exercised only by the authorized competent authority, to whom the application is submitted, and not the State Government in exercise of its power under Section 115 of the MV Act.

¶604

Can a delegated exercise of power, which does violence with the Preamble and aims & objects of the Principal Act, be permitted to remain in force? In our considered view, no. It is destructive of the aim and object of the Parent Statute; it defeats its laudable object; it defies the constitutional provisions; it is demonstratively and excessively contradictory and mutually destructive, similar to the one which the Apex Court found in K.R. Lakshmanan (Dr.) v. State of Tamil Nadu, (1996) 2 SCC 226.

¶605

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¶606

The “rule of law” means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is unpredictable, and such a decision is the antithesis of a decision taken in accordance with the rule of law. The “rule of law” as emerges from the spirit of Article 14 is that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law and would be struck down.

¶607

The notification traverses the State boundaries and severely impacts inter-state trade, which is guaranteed to be free under Article 301. Further, such right under Article 301 is not absolute in nature and the State does possess the power to impose restrictions under Article 304.

¶608

The word 'intercourse' used under Article 301 of the Constitution of India has to be read in light of its purpose. Trade and commerce within the territory of India, therefore, will include intercourse. The ability to restrict as under Article 304(b) has to be read as 'trade, commerce and intercourse’ as opposed to 'or' to affect the framers' intention properly. Article 304 empowers a State legislature to impose restrictions on

¶609

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¶610

trade, commerce, and intercourse among states. Article 304(b), applicable to the present case, as stipulated in the proviso, when exercised, must have been the sanction of the President of India.

¶611

The impugned notification, per contra, has been issued by the Secretary, Department of Transport, Government of Bihar. According to the proviso thereof, such restrictions imposed must receive the sanction of the Hon'ble President of India. The use of power vested in the State under Section 115 of the MV Act cannot, by way of its nature of the statute, confer wholesome power to restrict which otherwise the Central Government stands empowered. Therefore, this restriction cannot be held good.

¶612

Submission of the learned counsel for the respondents that the imposition of restriction under Section 115 includes restrictions or regulations of goods being transported on vehicles meant explicitly for such transportation as defined under Sections 2(14), 2(16) and 2(23) only merits rejection in view of our earlier discussion.

¶613

Submission that a close examination of three Lists mentioned in Seventh Schedule of the Constitution makes it clear that control and regulation of carriage goods in specific

¶614

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¶615

vehicles falls within the domain of the State cannot be upheld because as already above noted, the regulation of goods is not a subject matter regulated under Section 115 of the MV Act.

¶616

The submission that the restriction imposed by the State does not create a class within a class and is within the confines of the Articles 19(5) and (6) of the Constitution of India as, Section 115 states “specified class or description” is equally unsustainable. Article 14 prohibits the making of a class within a class. It is apparent from the facts of the present case that restriction is only imposed on vehicles with 14 wheels or above and that is too carrying sand and stone chips and not any other class of goods. As also noted this classification does not stand on solid ground; therefore, this submission has to be answered negatively.

¶617

The respondents’ reliance on Zakir Hussain Yusufali (supra) , does not sway this Court for a multiplicity of reasons- (a) the facts situation was different on many important counts and (b) that in the considered opinion of this Court the requirement of abiding of the principles of natural justice are implicit within any exercise of law, particularly when such exercise impacts fundamental rights of a person. The restrictions placed in this case were only on three roads as

¶618

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¶619

opposed to Statewide ban in the present case. The authorities when issuing said restrictions were acting upon complain received from the public totaling 44 in number. In the instant case, NHAI as well as the Railways in their correspondence have raised concern over overloading and not with respect to plying of certain vehicles.

¶620

The issues arising for consideration under this lis are answered hereinunder :-

¶621

(i) Whether the scope of Section 115 of the Motor Vehicles Act, 1988 allow regulations of/ restrictions on the movement of goods?

¶622

Section 115 of the Motor Vehicles Act is a generally worded power under Chapter VIII of the Act, not dealing with good. The exercise of such power rests on the satisfaction and necessity of the competent authority accounting for public safety and convenience to issue directions for the movement of vehicles, with restriction and/or the prohibition on a specified area or road.

¶623

ii) Is the impugned notification prohibiting the carriage of goods confined only to sand and stone chips on certain specified vehicles so arbitrary and unreasonable that it cannot be sustained?

¶624

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¶625

For any action to be arbitrary or unreasonable, the basic test is that no person of reasonable prudence could arrive at such a decision on the application of mind. In the instant case, the restriction imposed by the impugned notification is based on flimsy grounds of three letters, contents thereof unsubstantiated, being sent by the authorities of the National Highways Authority of India and the Railways, without any independent scientific study undertaken corroborating the contents thereof. In restricting fundamental rights, which by definition would need to be reasonable, the State must take all care to ensure that such restriction is backed by cogent material. The particular restriction of transport of sand and stone chips without adequately highlighting the causal link; restricting the rights severely under Article 19 of the Constitution of India cannot be, therefore, deemed to be an action done with prudence. The impugned notification issued under this power entirely prohibited the movement of a vehicle of a particular description carrying particular goods. The intention of Section 115 does not support such a restriction. A notification issued under this Section is subject to periodic revision meant for a specified area or road.

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(iii) What is the nature, ambit and scope of Article

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301 of the Constitution of India? Whether the power enumerated under Section 115 of the Motor Vehicles Act, 1988 are wide enough to impose a complete ban on intra and inter-state traffic with vehicles having 14 wheels or above?

¶629

Article 301 of the Constitution of India guarantees free trade, commerce and intercourse, both within the State and throughout the country. The impugned notification goes against the spirit of this Article. Reasonable restrictions are permitted, as this right is not absolute in nature. Article 304 of the Constitution of India itself deals with the situations where such restrictions may be imposed. Article 304(a) deals with goods produced within a State vis-a-vis those imported from outside the State, and 304(b) deals with the reasonable restriction imposed in the public interest. The power envisaged under Section 115 is statutory, whereas Article 301 is a constitutional guarantee. Restrictions imposed under the former are subject to the limits cast by the latter constitutional. Hence it cannot be that Section 115 overpowers Article 301.

¶630

The power of Section 115 of the MV Act cannot be stated to be wider than Article 301 of the Constitution of India and cannot facilitate a ban on interstate traffic.

¶631

(iv) Whether the State possesses the legislative

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competence to restrict the use of National Highways?

¶634

The Union Government legislatively controls national Highways. Entry 23, List I deal with the demarcation of National Highways. The State, in exercise of it's power, limited by territorial jurisdiction, cannot affect what falls under the Entries of the Union List. Even when acting in the interest of public safety and convenience, the Government lacks legislative competence in restricting movement on roads. The restriction imposed by the Government of Bihar, in effect, transcends the boundary affecting the movement of goods, interstate, even when vehicles may be merely passing through the State of Bihar.

¶635

(v) Whether the impugned notification qualifies the requirement of reasonable restriction under Article 19 of the Constitution of India?

¶636

As held by Hon'ble the Supreme Court of India, a restriction imposed on fundamental rights must be reasonable and non-arbitrary. It must also be proportional to the goals sought to be achieved by imposing such restrictions. The impugned notification fails to satisfy the four prongs of the proportionality test. There were alternate means to achieve the

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goal, the necessity analysis was not satisfied by cogent material. Therefore, the impugned notification is not saved by reasonable permissible restrictions under Article 19.

¶639

( vi) Whether the State can in pursuance of public safety issue direction on an issue upon which the Central Government has already done so?

¶640

In its power under Section 58 of the Motor Vehicles Act, the Central Government had issued directions with respect to the particulars of weight to be borne by axle and otherwise. Also, it is the Central Government that, under Section 110, makes rules for the height, weight etc., of vehicles. In issuing the impugned notification, the state Government overstepped its power under Section 115. The issue of public safety is most certainly of great importance for which undoubtedly the State has to take action, but without transgressing the division of power envisaged under the Constitution of India and the enabling legislation, i.e. the Motor Vehicles Act, 1988.

¶641

The issues are answered accordingly.

¶642

In view of the foregoing discussion, we quash the impugned notification dated 16.12.2020 issued by the Secretary to the Government, Transport Department,

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Government of Bihar and all consequential action, including communication dated 17.12.2020 issued by the Secretary, Transport Department, Government of Bihar.

¶645

Further, considering the importance of the issue highlighted as well as the prime concern of public safety, we deem it appropriate to issue the following directions:-

¶646

The Director General of Police, Bihar and Secretary, Transport Department, Government of Bihar, shall ensure proper implementation of the provisions of the Chapter VIII of the Motor Vehicles Act, 1988, and more specifically-

¶647

(a) post sufficient number of traffic personnel fully equipped to check the compliance of speed limits as stipulated under Section 112 and the corresponding rules framed with regard thereto;

¶648

(b) keeping in mind the condition of the bridges and other roads which may require such regulation, directions may be issued to the State or the Regional Transport Authority with regard to laden weight that may be allowed on them;

¶649

(c) to ensure that mechanism to weighbridges (Section 114) in accordance with the prescribed limit may be available at regular intervals so as to ensure that overloaded vehicles do not cause damage, both physical or monetary;

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(d) prescribed weight per vehicle class type be made visible on road signs on the J.P. Setu, Rajendra Setu and anywhere else the authorities may deem fit.

¶652