2012 PLP 569 (SCMR)

NASIR-UL-MULK, J.

The National Highway Authority (N.H.A.) had setup a Toll Plaza in Mansehra for levy and collection of toll tax on vehicles going in and out of Mansehra. The Station House Officer (SHO) Police Station Saddar Mansehra filed a complaint under section 145, Cr.P.C. before the Judicial Magistrate, Mansehra, pleading for attachment of the Toll Plaza in view of the secret reports of the agencies that the collection of toll tax is likely to create unrest resulting in law and order situation. The SHO had referred to an incident in the year 2004 where in a protest against the collection of toll tax, a police constable had lost his life. After due notice to the parties, the Magistrate on 19-5-2010 held that there was apprehension of breach of peace on account of collection of the toll tax and thus, the Toll Plaza was attached under section 146, Cr.P.C. till final resolution of the controversy by the Civil Courts of competent jurisdiction. This order of the Magistrate was upheld in revision by the Additional Sessions Judge, Mansehra, on 22-11-2010 and then by the High Court in its constitutional jurisdiction by the impugned judgment of 4-7-2011, which the N.H.A. has now impugned through this petition for leave to appeal.

2. We issued notice to the respondents, including the President of Mansehra Bar Association as well as the Advocate-General, K.P.K. and had summoned the D.P.O. Mansehra. The learned counsel for the petitioner pointed out that the toll tax was being collected at the said Toll Plaza from the year 2000 until 2010 when a dispute arose between N.H.A. and the District Government, Mansehra regarding collection of the tax. The collection of the tax for the said period was not disputed by the other side. It also came to light during the arguments that the District Government as agent of N.H.A. used to collect and retain a large share of the toll tax so collected. The learned counsel for the petitioner submitted that the issue was agitated when the petitioner decided to collect the toll tax through a contractor for which bids were invited.

3. The D.P.O., present in the Court, reiterated that objection was raised by the people against the collection of toll tax. Mr. Ghulam Mustafa Khan Swati, learned Advocate Supreme Court appearing for the President of Mansehra Bar Association, submitted that the collection of toll tax was a heavy burden on the people of the area and further that the setting up by the N.H.A. of a Toll Plaza was against the rules which prescribes a minimum distance between two plazas, whereas another Toll Plaza near Haripur falls within the restricted limits.

4. The question of legality or otherwise of the setting up of the Toll Plaza was not an issue in the present litigation where action under sections 145 and 146, Cr.P.C. was taken by the Magistrate. Undisputedly, the toll tax was being collected for 10 years from the year 2000 to 2010; even after the incident of 2004 the collection continued for further six years. Simultaneously, there was litigation between District Government and the N.H.A. where the former had filed a civil suit on 25-2-2010 against the National Highway Authority for the specific performance of an agreement dated 23-2-2005 to allow the District Government to administer the toll plaza. This suit was filed in the wake of advertisement in the national newspaper of 26-1-2010 by N.H.A. for auction of collection of the toll tax. The suit was dismissed on 31-3-2011. It is interesting that, simultaneously, on 10-4-2010 the SHO filed a complaint under section 145, Cr.P.C. for attachment of the Plaza. This action by the SHO lends some support to the argument of the learned counsel for the petitioner that the present process was tainted with mala fide when no such action was taken during the ten years when the toll tax continued to be collected until 2010.

5. Even on the legal plane, we find that the order of attachment under section 146, Cr.P.C. is flawed. The Magistrate has ordered the attachment till decision by the civil Court. There was nothing for the civil Court to decide as the only ground for moving application under section 145, Cr.P.C. was the apprehension of breach of peace. If there was any dispute, it was between the National Highway Authority and the District Government which stands determined by the civil Court. For the Magistrate to take cognizance under section 145, Cr.P.C. there must exist not merely apprehension of breach of peace but the same shall emanate from a dispute "concerning any land or water or boundaries thereof". In the present case, the Courts have overlooked the requirement of the second condition and had maintained the order of attachment under section 146, Cr.P.C. only upon apprehension of the breach of peace.

6. In view of the above, this petition is converted into appeal and allowed. The impugned judgment is set aside and the order of attachment passed by the Magistrate on 19-5-2010 is recalled. M.W.A./N-3/SC Appeal accepted.