Rajesh Kumar vs The State Of Bihar
2023 Latest Caselaw 3727 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.16905 of 2022
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Rajesh Kumar, Son of Shri Ramdtta Prasad Sharma, Resident of 132, C.D.A. Colony, East of Shiv Mandir, Shastri Nagar, L.B.S. Nagar, Police Station- Sashtri Nagar and District- Patna, Bihar 800023.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Mines and Geology, Government of Bihar, Patna.

2. The Principal Secretary, Department of Home, Government of Bihar, Patna.

3. The District Magistrate, Arwal.

4. The Superintendent of Police, Arwal.

5. The Mineral Development Officer, Arwal.

6. The S.H.O. Karpi Police Station, Arwal.

7. The Officer-in-charge, Shahar Telpa O.P., Police Station- Karpi, Arwal.

8. Navendu Singh, (Fathers name not known to the petitioner), Mineral Development Officer, Arwal, District Mining Office in the District of Arwal Pin Code- 804401, Bihar.

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

     For the Petitioner/s         : Mr. Avinash Chandra, Advocate
     For the State                : Mr. Gyan Prakash Ojha, GA-7
     For the Mines Department     : Mr. Naresh Dixit, Spl. P.P Mines

====================================================== CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT

Date : 16-08-2023

Heard learned counsel for the parties.

2. The petitioner has filed the instant writ application

praying therein for setting aside the order dated 20.10.2022

passed by the Mineral Development Officer, Arwal vide memo

no.1134; to release the truck of the petitioner in his favour

besides other reliefs.

3. The case of the petitioner in brief is that the Patna High Court CWJC No.16905 of 2022 dt.16-08-2023

petitioner happens to be the registered owner of a truck bearing

registration no. BR01-GA-9950, which was loaded with and

was carrying stone chips from a quarry in Aurangabad having a

valid mineral transit pass/challan issued on 3.8.2022 at 9:18

a.m. and which was valid for 24 hours. It is alleged that the

vehicle in question was stopped on way to its destination, a

demand for illegal gratification was made by the police officials

concerned and on the driver of the vehicle resisting the said

demand, was falsely implicated in the case alleging that the

vehicle was over-loaded. The respondents took the truck in their

possession. The truck was weighed, however, on refusal of the

respondents to release the vehicle after measurement of the

weight, the petitioner moved this Court by filing CWJC

no.13054 of 2022 praying therein for a direction to the

respondents to release the tuck of the petitioner and for other

reliefs.

4. By order dated 18.10.2022 (Annexure-12) CWJC

no.13054 of 2022 was disposed of on a submission made by

learned Spl.P.P. Mines that the petitioner's request for release of

the vehicle in terms of the circular of the State Government

allowing weightage to the extent permissible of excess weight

of the goods over and above the laden weight of the vehicle will Patna High Court CWJC No.16905 of 2022 dt.16-08-2023

be considered and decided within the next five working days.

5. Learned counsel for the petitioner submits that

subsequent thereto order contained in memo no.1134 dated

20.10.2022 was issued under the signature of the Mineral

Development Officer, Arwal, according to which in terms of

Rule 56(2) of the Bihar Minerals (Concession, Prevention of

Illegal Mining, Transportation & Storage) (Amendment) Rules,

2021 ('the Rules' in short) it was held that the State Government

had suffered a loss of Rs.2,05,525/- and as such the petitioner

should deposit the said amount within a period of three days so

that steps can be taken for release of the vehicle. It is against

this order that the instant writ application has been preferred.

6. Learned counsel for the petitioner submits that even

prior to passing of the order dated 18.10.2022, the respondents

had quantified the penalty, which would be evident from the

contents of letter dated 9.9.2022 addressed to the petitioner.

Immediately after passing of the order dated 18.10.2022, the

order impugned dated 20.10.2022 was passed asking the

petitioner to deposit the amount of penalty for release of the

truck. Learned counsel for the petitioner submits that the order

imposing penalty and the entire procedure adopted by the

respondents is bad for non-application of mind and material Patna High Court CWJC No.16905 of 2022 dt.16-08-2023

error in measuring the weight of the vehicle in question which is

evident on the face of it. While at the time of loading of the

vehicle the volume of the material loaded was 608.75 cubic ft.,

the gross laden weight was 35.60 mt. tonnes. At the time of the

vehicle being intercepted while the volume of the material

loaded increased to 660 cubit ft., the gross laden weight reduced

to 35.17 mt. tonnes. Thus, it is submitted that in view of the

apparent error, the order imposing penalty on the petitioner is

unsustainable and be set aside.

7. Learned Spl.P.P. Mines appearing for the

respondents Mines Department submitted that the vehicle in

question was intercepted by the police officials for overloading

of stone chips and was taken in possession. On the same being

weighed and finding the weight to be beyond the permissible

limit of 35 mt. tonnes, the penalty was imposed. There is no

illegality in the order imposing penalty, the same having been

done strictly in accordance with Rule 56.

8. It may be noted here that this Court having heard the

submission made on behalf of the petitioner as to how there

could be an increase of volume and at the same time reduction

of the weight of the laden goods, by order dated 4.1.2023

directed the respondents to file a supplementary counter Patna High Court CWJC No.16905 of 2022 dt.16-08-2023

affidavit explaining the procedure in measuring the volume of

the goods as also directed for release of the vehicle upon the

petitioner's furnishing security. The vehicle was accordingly

released. Order dated 4.1.2023 is being reproduced herein

below:-

"Shri Naresh Dikshit, learned Special Public Prosecutor, Mines, states that subject to the outcome of the present petition and without prejudice to the respective rights and contentions of the parties, more so in view of the submissions made by the petitioner, for there could not have been any increase of volume with the reduction of the weight of the laden goods, the vehicle in question would be released within next 24 hours upon petitioner's furnishing a security.

Let supplementary counter affidavit explaining the procedure with the department in measuring the volume of the goods be filed positively within a period of three weeks.

Rejoinder thereto as also the counter affidavit already filed be filed within a period of four weeks thereafter.

List this case on 1st of March, 2023."

9. Although a supplementary counter affidavit was filed

on behalf of the respondents Mines Department, however, the

same does not answer the query made by this Court in its order

dated 4.1.2023. Once again by order dated 4.4.2023, this Court Patna High Court CWJC No.16905 of 2022 dt.16-08-2023

considering the above contention raised by learned counsel for

the petitioner adjourned the case giving liberty to the Mines

Department to file a detailed counter affidavit. No further

counter affidavit was filed.

10. Having heard learned counsel for the parties, this

Court finds that the order impugned dated 20.10.2022 was

passed by the District Mines Officer, Arwal, imposing the

penalty of Rs.2,05,525/- on the allegation that the vehicle in

question was carrying 52 cubic ft. stone chips more than the

permissible limit. At the same time, this Court finds from the

records of the case that at the time of loading the volume of the

material loaded was 608.75 cubic ft. and the gross laden weight

was 35.60 mt. tones. On the vehicle being intercepted and

measurements being taken, the volume of the material loaded

went up to 660 cubic ft. while the gross laden weight of the

vehicle came down by 430 kgs to 35.17 mt. tones. The

respondents having been confronted with this anomaly did not

have any reply to the same and thus no further counter affidavit

was filed. The consequential benefit of this discrepancy will

have to go in favour of the petitioner.

11. In view of the facts and circumstances stated herein

above, the fact with respect to the volume of the material loaded Patna High Court CWJC No.16905 of 2022 dt.16-08-2023

going up and at the same time gross laden weight of the vehicle

coming down, the penalty imposed on the petitioner by order

contained in memo no.1134 dated 20.10.2022 under the

signature of the Mines Development Officer, Arwal cannot be

sustained and the same is quashed.

12. Consequently, the respondents shall make the

petitioner free from the security furnished for release of the

vehicle pursuant to the order dated 4.1.2023.

13. The writ application is allowed.

(Partha Sarthy, J) avinash/-

AFR/NAFR
CAV DATE                N/A
Uploading Date          16.08.2023
Transmission Date       N/A