Nirbhay Prashant, Advocate vs The State Of Bihar
2021 Latest Caselaw 4422 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.21017 of 2019
     ======================================================

Nirbhay Prashant, Advocate S/o Bhagwan Dayal Tiwari resident of Village- Bhadwar (Nawadih), P.S. Bagen Gola, Buxar.

... ... Petitioner/s Versus

1. The State of Bihar through the Secretary, Transport Dept., Govt. of Bihar, Vishwesaraiya Bhawan, Bailey Road, Patna.

2. The Joint Commissioner cum Secretary, Regional Transport Tribunal, Govt.

of Bihar, Patna.

3. The Chief Executive Officer cum Municipal Commissioner, Patna Municipal Corporation, Patna.

4. The Superintendent of Police, Traffic, Patna.

5. The District Transport Officer, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Nirbhay Prashant (In Person) For the State : Mr. Ajay Kr. Rastogi, AAG10 Mr. Sunil Kumar Singh, AC to AAG-10 For the Patna Municipal Corporation: Mr. Jaweb Gaffar Khan, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)

Date : 03-09-2021

Heard learned counsel for the petitioner and learned

counsel for the respondents through video conferencing.

The petitioner has filed the instant application by way of a

public interest litigation for the following reliefs:

                            "a.        to issue writ of Mandamus or any
                            other    writ,    rule   or    direction    to      the

Respondent no.3 to ensure registration and insurance of vehicles about 925 of Patna Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

Municipal Corporation (hereinafter referred to as 'Corporation') which are using for the purpose of collecting garbage from its jurisdiction and may also direct Respondent authorities to ensure the collection of revenue loss caused by non- registration and non-

insurance of the vehicles of the Corporation. b. And may give any other relief/reliefs for which the petitioner is entitled in law."

The case of the petitioner in brief is that he came

across a news article in the hindi daily newspaper namely,

'Dainik Bhaskar' on 29.3.2019 and 22.7.2019 which contained

a news that the Municipal Corporation, Patna was operating its

vehicle on road for collecting garbage without registration and

insurance. Pursuant to the said news article, the petitioner filed a

representation before the Municipal Commissioner and the

Secretary, Transport Department, Government of Bihar bringing

to his notice the violation of the Motor Vehicles Act by the

Corporation. No action was taken by the authorities. Once again

the petitioner came across another news article in the hindi daily

'Hindustan' on 14.9.2019 with respect to the same subject

matter. On no action being taken by the authorities of the

Corporation, the petitioner has filed the instant writ application

for the reliefs as stated above.

Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

Counter affidavits were filed in the case on behalf of the

Principal Secretary, Urban Development and Housing

Department, Government of Bihar, the Chief Executive Officer-

cum-Municipal Commissioner, Patna Municipal Corporation

(respondent no.3) and the District Transport Officer, Patna

(respondent no.5). The District Transport Officer, Patna, in his

counter affidavit has stated that the Department of Transport

having received information from different sources that many

Government vehicles were being plied on road without getting

their registration, the Secretary, Transport Department, Bihar,

Patna vide his letter dated 16.7.2019 (Annexure-A to the counter

affidavit of respondent no.5) wrote to all the District

Magistrates, Senior Superintendent of Police, Superintendent of

Police, Municipal Commissioners and Executive Officers of the

State of Bihar for registration of their official vehicles. It was

further stated that a meeting was convened in the matter on

27.9.2019 wherein the Municipal Commissioners as also the

District Transport Officers (hereinafter referred to as 'the DTO')

were also requested to attend. The District Magistrates, the

Municipal Commissioners and the DTOs were informed that no

vehicle can be plied on any public road without getting its

registration and its insurance, the same being in violation of Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

section 39 of the Motor Vehicles Act (hereinafter referred to as

the 'M.V. Act'). They were requested to submit a list of vehicles

which were being plied in their respective regional offices and

municipalities without getting registration and insurance. It is

stated that the DTO, Patna wrote to the respondent no.3 that

consequent to non-registration of the official vehicle of the

Corporation as per the newspaper report, large number of

vehicles of the Corporation were still running without

registration. He was requested to get the registration of the

vehicles done immediately. The Municipal Corporation made

available the required papers/ information to the DTO, Patna on

which the tax and registration fee were attached and information

provided to the Corporation. In response thereto the Corporation

deposited a sum of Rs. 2.01 crores (approx) in the office of the

District Transport for registration of its official vehicles. It may

be stated here itself that as informed by the learned Additional

Advocate General appearing on behalf of the Transport

Department, the registration of all but one vehicle of the

Corporation has been done and it was further stated that the

registration of the remaining one vehicle would also be

completed in course of the day itself i.e 11.12.2020 itself.

Several counter affidavits were filed on behalf of the Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

Chief Executive Officer-cum-Municipal Commissioner, Patna

Municipal Corporation (respondent no.3). It was stated therein

that all vehicles under the Patna Municipal Corporation has

been insured in the month of May-June, 2019 itself. It was

further stated that so far as registration of the vehicles are

concerned, the same were under process in the District

Transport Office. In the different counter affidavits filed from

time to time, the number of vehicles already registered and

those which remained to be registered were provided.

In the counter affidavit filed on behalf of the Principal

Secretary, Urban Development and Housing Department,

Government of Bihar it was stated that a three Member

Committee under the Chairmanship of the Joint Secretary-cum-

Assistant Director, Urban Development and Housing

Department, Government of Bihar was constituted on

27.12.2019 for holding an inquiry in the matter of negligence in

performance of statutory duty by allowing the vehicle of the

Corporation to be plied on public roads without registration. The

Inquiry Committee issued notice to the Municipal

Commissioner, Patna Municipal Corporation and on receipt of

reply, the Committee submitted its report dated 3.1.2020 to the

department. It has been stated that the said report is being Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

examined by the Urban Development and Housing Department

and action in terms of the report shall be taken in accordance

with law.

It may be stated here that consolidating the amendments

in law relating to motor vehicles which have taken place over

the years, the Motor Vehicles Act, 1988 was enacted. Chapter IV

of the M.V. Act deals with registration of Motor Vehicles.

Sections 39 and 40 of the M.V. Act are being quoted

hereinbelow for ready reference:

39. Necessity for registration. - No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:

Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.

40. Registration, where to be made.- Subject to the provisions of section 42, section 43 and section 60, every owner of a motor vehicle shall cause the vehicle to be registered by in whose jurisdiction he has the residence or place of Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

business where the vehicle is normally kept.

Further section 42 of the M.V. Act deals with special

provision for registration of Motor Vehicle of diplomatic

officers, etc. section 43 deals with temporary registration,

section 58 with special provision in regard to transport vehicle

and section 60 with registration of vehicle belonging to the

Central Government, and the same is quoted hereinbelow:

60. Registration of vehicles belonging to the Central Government. - (1) Such authority as the Central Government may, by notification in the Official Gazette, specify, may register any motor vehicle which is the property or for the time being under the exclusive control of the Central Government and is used for Government purposes relating to the defence of the country and unconnected with any commercial enterprise and any vehicle so registered shall not, so long as it remains the property or under the exclusive control of the Central Government, require to be registered otherwise under this Act. (2) The authority registering a vehicle under sub-

section (1) shall assign a registration mark in accordance with the provisions contained in the rules made in this behalf by the Central Government and shall issue a certificate in respect of that vehicle to the effect that such vehicle complies for the time being with all the Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

requirements of this Act and the rules made thereunder and that the vehicle has been registered under this section.

(3) A vehicle registered under this section shall carry the certificate issued under sub-section (2).

(4) If a vehicle registered under this section ceases to be the property or under the exclusive control of the Central Government, the provisions of sections 39 and 40 shall thereupon apply.

(5) The authority registering a vehicle under sub- section (1) shall furnish to any State Government all such information regarding the general nature, overall dimensions and axle weights of the vehicle as the State Government may at any time require.

Thus from the provision of the Motor Vehicles Act

quoted hereinabove it would transpire that section 39 of the

M.V. Act is very categorical when it states that no person shall

drive any motor vehicle and no owner of a motor vehicle shall

cause or permit the vehicle to be driven in any public place or in

any other place unless the vehicle is registered in accordance

with the Chapter and the certificate of registration of the vehicle

has not been suspended or cancel and the vehicle carries

registration mark display in the prescribed manner. The Chapter

mentioned in the section refers to Chapter IV which deals with

registration of motor vehicle and as stated above, section 40 Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

provides as to where the registration is to be made, section 41 as

to how the registration is to be made, section 42 with respect to

special provision for registration of motor vehicles of diplomatic

officers and section 43 with respect to temporary registration

which is to be valid for a period not exceeding one month.

Section 44 provides that the vehicle has to be produced before

the registering authority at the time of registration or renewal of

the certificate of registration. It would be relevant to refer to

section 192 of the M.V. Act which deals with the penal

consequences of using a vehicle without registration. Section

192 of the M.V. Act is quoted hereinbelow:

192. Using vehicles without registration.- (1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both:

Provided that the Court may, for reasons to be recorded, impose a lesser punishment.

(2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

conveyance of persons suffering from sickness or injuries or for the transport of food or materials to relieve distress or of medical supplies for a like purpose:

Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use.

(3) The Court to which an appeal lies from any conviction in respect of an offence of the nature specified in sub-section (1), may set aside or vary any order made by the Court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made.

From perusal of section 192 of the M.V. Act it would

transpire that the same categorically provides that whoever

drives a motor vehicle or causes or allows the motor vehicle to

be used in contravention of the provision of section 39, shall be

punished with the fine as prescribed therein.

Thus it is clear from a reading of the relevant provision of

the M.V. Act that any motor vehicle, as defined under section

2(8) of the M.V. Act, can be driven in any public place only

after the same has been registered in accordance with Chapter

IV of the M.V. Act and not otherwise. Exceptions to the same is

provided in proviso to section 39 itself and for some of the Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

vehicles of the Central Government under section 60 of the Act.

It goes without saying that once a statue provides for an

act to be done in a particular manner, the same has to be done in

that manner alone. No exception having been provided to any

class of vehicle except to a motor vehicle in possession of a

dealer and a vehicle belonging to the Central Government which

is being used for Government purpose relating to defence of the

country, no other category of vehicle can claim exemption from

registration under the M.V. Act.

The next question which would arise is as to whether the

statutes are binding against the State. Though in the case of

Director of Rationing versus Corporation of Calcutta (AIR 1960

SC 1355) it was held that the Director of Rationing could not be

prosecuted for failure to obtain a licence for storing rice etc., but

this decision was overruled by the judgment in the case of State

of West Bengal versus Corporation of Calcutta (AIR 1967 SC

997). Paragraph no.23 of the judgment is quoted herein below

for ready reference:

"23. The next question is whether this Court should adopt the rule of construction accepted by the Privy Council in interpreting statute vis-a-vis the Crown. There are many reasons why the said rule of construction is inconsistent with and incongruous in the present Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

set-up. We have no Crown: the archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic; it is inconsistent with the rule of law based on the doctrine of equality. It introduces conflicts and discrimination. To illustrates: (1) State "A" made a general Act without expressly making the Act binding on the said State. In the same State, States "B", "C" and "D" and the Union have properties.

Would the rule of construction apply only to the properties of State "A" or to the properties of all the States and the Union? (2) The Central Act operated in different States; the rule of construction was accepted in some States and rejected in other States. Is the Central Act to be construed in different States in different ways? (3) Acts in general terms might be made in different States- States where the said rule of construction was accepted and the States where it was not so accepted. Should different States construe the general Acts in different ways, some applying the presumption and some ignoring it? There is, therefore, no justification for this Court to accept the English canon of construction, for it brings about diverse results and conflicting decisions. On the other hand, the normal construction, namely, that the general Act applies to citizens as well as to State unless it expressly or by necessary implication exempts the State from its operation, steers clear of all the said anomalies. It prima Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

facie applies to all States and subjects alike, a construction consistent with the philosophy of equality en-shrined in our Constitution. This natural approach avoids the archaic rule and moves with the modern trends. This will not cause any hardship to the State. The State can make an Act, if it chooses, providing for its exemption from its operation. Though the State is not expressly exempted from the operation of an Act, under certain circumstances such an exemption may necessarily be implied. Such an Act, provided it does not infringe fundamental rights, will give the necessary relief to the State. We, therefore, hold that the said canon of construction was not 'the law in force' within the meaning of Art. 372 of the Constitution and that in any event having regard to the foregoing reasons the said canon of construction should not be applied for construing statutes in India. In this view it is not necessary to express our opinion on the question whether the aforesaid rule of construction would not apply to the trade activities of the State, even if it applied to its sovereign activities."

Thereafter, the Hon'ble Apex Court in the case of Union

of India versus Jubbi (AIR 1968 SC 360) held as follows:

"4.........................................................

.................................The position now thereof is that a statute applies to State as much it does to a Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

citizen unless it expressly or by necessary implication exempts the State from its operation.

5........................................................... .................Broadly stated, if the legislature intended to exclude the applicability of the Act to the State it could have easily stated in Section 11 itself or by a separate provision that the Act is not to be applied to the Union or to lands held by it. In the absence of such a provision, in a constitutional set up as the one we have in this country, and of which the overriding basis is the broad concept of equality, free from any arbitrary discrimination, the presumption would be that a law of which the avowed object is to free the tenant of landlordism and to ensure to him security of tenure would bind all landlords irrespective of whether such a landlord is an ordinary individual or the Union."

So far as the Motor vehicle Act is concerned, no provision

thereof exempts the State by any express provision or by

necessary implication from registration of the vehicles of the

State as mentioned in section 60 quoted above. It is not even the

case of the respondent-State of Bihar that the Vehicles of the

Corporation are in any manner exempt from registration.

So far as the instant case is concerned, it is not the case of

the respondent- State of Bihar that the vehicles of the

Corporation are in any manner exempt from registration. Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

That being the position, it goes without saying that

henceforth no vehicle of the State Government or its authorities

would be plied unless and until the same are duly registered

under the M.V. Act. As stated by the learned Additional

Advocate General, all the vehicles of the Corporation having

been registered no further direction is required to be given in the

instant application. However, as directed in the earlier order in

the instant case the Principal Secretary, Urban Development

Department, Government of Bihar would ensure that the action

initiated against the erring officers/officials for being negligent

in performing of their statutory duty and allowing

approximately 925 vehicles to be plied for various purposes on

the public roads within the municipal limits of Patna without

getting the vehicles registered under the M.V. Act shall be taken

to its logical conclusion within a period of 4 months.

The application stands disposed of.

( Partha Sarthy, J)

(Per: HONOURABLE THE CHIEF JUSTICE)

With pleasure, I concur with the scholarly opinion

rendered by my learned Brother. The issue of public importance

needs highlighting with additional reasons.

It is difficult to fathom that Patna Municipal

Corporation, a municipal body originally established in 1922, Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

was oblivious of the factum of the requirement of getting 925

vehicles (Approx.) registered under the provisions of the Motor

Vehicles Act, 1988 (referred to as the Act). Such vehicles were

allowed to be plied in public places for a considerable period,

thus potentially jeopardizing public and put interest,

endangering human life and property.

It is only under the monitoring of this Court from

time to time and more particularly interim orders dated

02.12.2019; 08.01.2020; 13.01.2020; 31.01.2020 that the

Corporation took steps for complying with the mandate of law

and getting the vehicles registered under the Act.

My learned Brother has elaborately dealt with the

statutory mandate of getting the motor vehicles registered

(Section 39) unless so exempted under the law (Section 60).

Also, Section 146 of the Act mandates all motor

vehicles to be plied with a cover of policy insurance, unless

under sub-sections (2) and (3) thereof exempted, which could be

done only after:-(a) fund is established and maintained by the

authority as per the rules for meeting the liability, if any, arising

out of use of the vehicle; and (b) such exemption is granted by

an appropriate authority. All these stands are not complied with.

The Motor Vehicles Act being a welfare legislation, Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

was enacted to ensure road safety, compensation for victims of

road accidents, third party insurance and health and safety of

vehicles. Registration of vehicles is an essential step in

achieving this objective.

The object and purpose of registration being (a)

ensuring the persons' ownership of the vehicle and its authority

to ply the same; (b) Helps in identification of the vehicle for

preparation of statistics and identification of persons involved in

accidents; (c) All registered vehicles are coupled with insurance

and certificate to establish the fitness of the vehicle, that it meets

the permissible limits of pollution etc. A fitness certificate is

also essential concerning the lives of pedestrians, persons

travelling in other vehicles and properties of persons along the

road.

Registration is also followed by relevant permits

for vehicles intended to be used as 'transport vehicles.'

The Apex Court in National Insurance Co. Ltd. v.

Swaran Singh (2004) 3 SCC 297, Lakshmi Chand v.

Reliance General Insurance (2016) 3 SCC 100, held that -(a)

The prescription of Certificate of Registration, the existence of

valid Permit and availability of Fitness Certificate, throughout

the use, are closely interlinked in the case of a vehicle, and one Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

requirement cannot be segregated from the other. (b) Any breach

in the requirements shall be considered a fundamental breach

and not a technical breach that can be remedied later. (c) The

safety of passengers and the general public was of serious

concern and consideration for the law makers.

The Hon'ble Apex Court, way back in 2014, in

Narinder Singh v. New India Assurance Co. Ltd., (2014) 9

SCC 324, had elaborately discussed the need to register vehicles

under the Act. Despite the same, the respondent-Corporation,

with audacity, took a stand of there being no requirement for the

vehicles to be registered, purportedly under a misconception

that they are above the law. Realizing its erroneous stand taken

vide affidavit dated 27.11.2019 the error was corrected

informing the Court of such fact vide supplementary affidavits,

more so specifically dated 08.01.2020. In this endeavour, role

played by Shri Ajay Kumar Rastogi, learned Additional

Advocate General- 10 (since designated as Senior Advocate) is

highly appreciable.

The concept of the rule of law, simply put, is that

none is above the law irrespective of its rank, position, status

and composition. It inheres to the three core principles of (1)

supremacy of law, (2) Equality before the law and (3) Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

Predominance of legal spirit.

The concept of the rule of law, as enunciated by

Hon'ble the Apex Court in Chief Settlement Commissioner,

Punjab v. Om Prakash & Ors., AIR 1969 SC 33, equally

binding the State and its instrumentalities are as under:

"......With all its defects delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations." In our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court. The rule of law rejects the conception of the Dual State [(This term is derived from Frankel, The Dual State (1941)] in which governmental action is placed in a privileged position of immunity from control by law. Such a notion is foreign to our basic constitutional concept."

Further in Rajeev Suri v. Delhi Development

Authority and Ors. 2021 SCC Online SC 7, Hon'ble the Apex

Court held that:

Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

"Rule of Law inter alia posits four universal tenets. It is a system of laws, institutions, norms and community commitment that envisages-Accountability of Government and private actors alike under the law; The laws must be just, clear, publicized and stable and applied evenly, protect fundamental rights and human rights; Open Government-meaning thereby the processes by which the laws are enacted, administered and enforced are accessible, fair and efficient; and Accessible justice-to include timely delivery of justice by competent, ethical, and independent representations and neutrals who are accessible, have adequate resources and mirror the traits of the communities they serve."

The direction for taking appropriate action against

the erring officers/officials, negligent in performing of their

statutory duty may not be construed to be only of civil nature,

but also in relation to the one envisaged under Section 192 of

the Act, of which my learned Brother has taken note of.

The directions are crystallized as under:-

                         (i)     No vehicle of the Municipal Corporation,
                                 Patna;     the    State   Government   or   its

authorities would be plied in derogation of the provisions of the Motor Vehicles Act, 1988.

(ii) The Principal Secretary, Urban Development Department, Government of Bihar would Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

have an enquiry conducted and take appropriate action against the erring officers/officials who were negligent in complying with the statutory provisions by allowing the vehicles to be plied for various purposes in public roads.

(iii) The disciplinary proceedings must be completed within four months from today.

(iv) Simultaneously, the proceedings under Section 192 of the Act would be initiated against the erring officers/officials within a period of four months from today.

(v) The petition needs to be allowed with cost payable by the Patna Municipal Corporation. Fine quantified at Rs.5,00,000/- (Rupees Five Lacs) to be deposited in the fund created by the State Government under Section 146 of the Act. Liberty reserved to the Corporation to recover the same from the erring officers/officials.

(vi) We place on record with appreciation the efforts put in by Shri Ajay Kumar Rastogi, learned Senior Advocate in convincing his client making mends and assisting the Court in a fair manner. Equally, we place on record with appreciation the assistance rendered by Sri Nirbhay Prashant, petitioner in person, who is an advocate of this Court.

Patna High Court CWJC No.21017 of 2019 dt.03-09-2021

The Writ petition stands disposed of in the above terms.

Interlocutory Application, if any, shall stand disposed of.

                                                                     (Sanjay Karol, CJ)

                       Partha Sarthy, J.          I agree.



                                                                     ( Partha Sarthy, J)

Bibhash/Sujit


AFR/NAFR               AFR
CAV DATE               11.12.2020
Uploading Date         03.09.2021
Transmission Date