1. I.A. No. 10324 of 2010 has been filed by the President, Bihar Truck Owners Association, Patna for being impleaded as a party respondent to the writ petition. Although learned counsel for the petitioner vehemently opposes the impleadment of intervener as party respondent, but from the facts and circumstances of the case it is quite apparent that the intervener applicant as well as his Association is vitally interested in upkeep and maintenance of the roads of this State and the damage caused to the roads of the State adversely affects their business and hence the outcome of this writ petition is bound to have immense effect one way or the other upon interveners Association and its members. Accordingly, this interlocutory application is allowed and the intervener applicant Sri Bhanu Shekhar Prasad Singh, President, Bihar Truck Owners Association, Patna S/o late B.P. Sinha, resident of Village and P.O.- Majhaulia Estate, District-Sitamarhi (Bihar) is added as respondent no. 5 to the writ petition.

2. Petitioner is the owner of the Truck bearing Registration No. JH-02M-2857 registered with the authorities of the Transport Department at Hazaribagh Jharkhand and has filed this writ petition for quashing Letter No. 4047 dated . 10.8.2010 (Annexure-4) issued by the Secretary-cum Commissioner of Transport, Government of Bihar (respondent no. 2) by which directions were issued for prosecution of persons plying overloaded vehicles on the roads of the State of Bihar under the Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as the PDPP Act for the sake of brevity) and also for directing the respondents to provide adequate weighing facilities with trained hands to undertake the exercise of weighing of the vehicles for invoking the powers under Section 194 read with Section 200 of the Motor Vehicles Act, 1988 (hereinafter referred to as the M.V. Act for the sake of brevity) subject to the option of the transporter, without initiating any proceeding as per the impugned letter dated 10.8.2010 (Annexure-4) and for other ancillary reliefs.

3. The grounds taken by the petitioner in his writ petition was that the impugned letter which was an executive instruction from the authorities was violative of the provisions of the M.V. Act, which made the offence of overloading a compoundable offence under Section 200 of the M.V. Act and hence the direction of criminal prosecution for the offence of overloading without satisfying the condition precedents for invoking the provisions of the PDPP Act amounted to violation of the Fundamental Rights guaranteed under Article 19(1)(g) of the Constitution of India to practise Trade and Commerce including the Transport business without any unreasonable obstruction. It was also claimed that initiation of proceedings under the M.V. Act and the PDPP Act amounts to double jeopardy causing unreasonable and arbitrary restriction on the business of transportation which is an established trade of the petitioner. Petitioner has also taken the ground that despite noticing the facts that there may be possibility of damage to the road surface, pollution and safety hazard, the Honble Supreme Court had recommended the exercise of powers under the M.V. Act apart from taking sufficient steps for strict enforcement of the provisions relating to overloading under the M.V. Act, and the Central Motor Vehicles Rules, 1989. It was further claimed that the authorities are putting the transporters, including the petitioner to arbitrary and unreasonable restrictions under the threat of prosecution severely affecting petitioners right to pursue his transport business, as the impugned executive instruction issued by the authorities has conferred unbridled and unguided power upon the authorities to prosecute the allegedly overloaded vehicles without instruction to determine the factum of damage before initiating any prosecution.

4. Learned counsel for the petitioner very eruditely and elaborately argued