National Highways Authority of India vs Madhukar Kumar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 557

SUPREME COURT OF INDIA
K.M. JOSEPH, S. RAVINDRA BHAT, JJ.
National Highways Authority of India & Others - Appellants
Versus
Madhukar Kumar & Others - Respondents
Civil Appeal No(S).11141 of 2018
Decided On : 23-09-2021

Advocates appeared:
For the Appellant(s) :Neeraj Kishan Kaul, Madhu Sweta, Rahul Shyam Bhandari, Shivangi Khanna, Advocates
For the Respondent(s):Rajesh Srivastava, Shyam Divan, Ravi Bharuka, Ankit Agrawal, Adith Deshmukh, Shreeyash Lalit, Devashish Bharuka, Arup Banerjee, Sanjeev Sharma, Rudra Kumar Dey, T. Mahipal, Shyam Divan, Rajesh K. Singh, Rovins Verma, Harish Pandey, Samir Ali Khan, Rudreshwar Singh, Kaushik Poddar, Advocates

Headnote:
Constitution of India,1950 - Articles 14, 226, 136 , 141, 73 and 162 - National Highways Act, 1956 - Section 5 and 7 - Proposal for the construction of the toll plaza - Concession agreement - Construction of toll plaza four laning section state of state of on BOT (toll) basis under NHDP III - DPR for four laning was prepared a few years back in which toll plaza was proposed - Appellants before us, who Chairman and General Manager, filed against Writ Petition - Appeal came to be heard along with filed by concessionaire, arising from Judgment in Writ Petition filed again by concessionaire against Writ Petition impugned Judgment, Division Bench confirmed the Judgment of learned Single Judge - Installation of Toll Plaza is not in violation of rule 8 of National Highways Fee (Determination of rates and collection) rules 2008 published in extra ordinary Gazette even if Toll Plaza location comes under municipal limit - It is already mentioned in rule 8 that "Provided further that here a section of under municipal or town area limits or within five kilometres from such limits - Primarily for use of residents of such municipal or town area, Toll Plaza may be established within the municipal or town area limits or within a distance of five kilometres from such limits - So pray of relief/reliefs of petitioners are unjustified and unlawful – Held, Decision to locate site of toll plaza at 194 kilometre is arbitrary. Under Article 14 of Constitution, no State action can pass muster, if it is found to be arbitrary - Different or even an incorrect decision, would not make an otherwise lawful decision vulnerable to judicial scrutiny - Arbitrary decision would be one which is bereft of any rationale or which is capriciously wrong, and not merely an erroneous view, in the perception of the Court - Any other view would tantamount to substituting its view for that of Authority - Judged by said standard, and also nature of dispute, it cannot be held that toll plaza, having been located at a point where there was sufficient space and which would prevent leakage of traffic, and also noticing that stretch itself consisted of a little over 50 kilometres, quite clearly - Case based on arbitrariness, is only to be repelled - Court have found that Executing Authority is Competent Authority to take decision under the second proviso to Rule 8 of the Rules – Court no doubt, have found, there is no duty to record reasons – Court have explained the duty of Executing Authority - Executing Authorities must maintain record, which must contain the decision to locate a toll plaza, invoking the second proviso - Appellants and the Concessionaire are duty bound to extend concessions to local residents, in particular. We have noticed the stand of the appellants that this Court may issue appropriate direction in this regard as this Court finds fit - Appellants will look at the barricades (closing of service roads) in regard to the toll plaza and permit such barricades only as are permitted in Rule 17 of the Rules - Unauthorised barricades will be removed without any delay and at any rate within 2 weeks from today - First Appellant will issue suitable directions to all Executive Authorities to maintain distinct records containing the decision, invoking the second proviso to Rule 8 of the Rules – Appeal is allowed.

JUDGMENT :

K.M. JOSEPH, J.

1. Respondent Nos. 1 to 17 in this appeal (hereinafter referred to as, ‘the writ petitioners’), filed Writ Petition No. 5643 of 2012. The relief sought in this Writ Petition was to restrain the construction of a toll plaza at 194 km of NH-30 in the four-laning of Patna-Bakhtiyarpur section of NH30, in violation of Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 (hereinafter referred to as, ‘the Rules’, for short). The said Writ Petition was heard along with Writ Petition No. 4526 of 2013, filed by one Shri Ritesh Ranjan Singh @ Bittu Singh. By Judgment dated 22.07.2014, the Writ Petitions were allowed in the following manner by the learned Single Judge:

“32. Thus, on the basis of aforesaid discussions, these writ petitions are allowed and respondents no. 6 and 11 are directed to shift the proposed construction of Toll Plaza at 194 km milestone of Patna-Bakhtiyarpur Section of N.H. 30 from its present location to any other place on new alignment which separates from old N.H. 30 so that the violation of Rule 8 of Rules 2008 could be avoided and the persons who do not have intend to use toll road could be exempted from paying toll tax. The respondent no. 6 should take the decision of shifting the above stated Toll Plaza to any other place as discussed above within six weeks from today and till then respondents shall not collect the toll tax from those persons who do have intend to go through the old N.H. 30 without using the new alignment of toll road. The parties shall bear their own cost.”

2. The appellants before us, who are NHAI, its Chairman and the General Manager, filed LPA No. 388 of 2015 against Writ Petition No. 5643 of 2012. The said Appeal came to be heard along with LPA No. 236 of 2015, filed by the concessionaire, arising from Judgment in Writ Petition No. 5643 of 2012 and LPA No. 332 of 2015 filed again by the concessionaire against Writ Petition No. 4526 of 2013, and by the impugned Judgment, the Division Bench confirmed the Judgment of the learned Single Judge.

3. Before we go to set down the contentions of the parties, it is necessary to have a look at the Writ Petition which generated the present Appeal, viz., Writ Petition No. 5643 of 2012. As noticed, it was filed by Respondent Nos. 1 to 17 in the present Appeal.

THE CASE SET UP BY THE WRIT PETITIONERS

4. It was stated in the Writ Petition, inter alia, as follows:

“4. That it is stated that there is proposal for the construction of the toll plaza at 194 km of NH-30 I in the four laning of Patna-Bakhityarpur section of NH-30 from 181.300 km to 231.950 Km in the state of state of Bihar on BOT (toll) basis under NHDP III. The DPR for four laning was prepared a few years back in which the toll plaza was proposed at 194 Km of NH-30.”

5. Thereafter, it is stated that, during the preparation of the Detailed Project Report (DPR) and its final approval, there was a sea change in the actual ground condition in the area. A number of important commercial institutions came up in the area. Thereafter, the principal bone of contention, however, was the transgression of Rule 8 of the Rules. It is necessary, in this context, to notice :

It is further stated that the road in question is a national highway and it has been constructed merely for the use of the residents of Patna Municipality area.

18. That it is further stated that establishment of this toll plaza at its present location will cause great difficulties to the residents of the locality because they will have to cross the toll plaza on many occasions in a day and on all the occasions, they will be liable to pay toll.”

(Emphasis supplied)

6. It was alleged in the Writ Petition that the Writ Petitioners moved representation and, thereafter, the

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2021 Supreme(SC) 557

SUPREME COURT OF INDIAK.M. JOSEPH, S. RAVINDRA BHAT, JJ.National Highways Authority of India & Others - AppellantsVersusMadhukar Kumar & Others - RespondentsCivil Appeal No(S).11141 of 2018Decided On : 23-09-2021

SUPREME COURT OF INDIA
K.M. JOSEPH, S. RAVINDRA BHAT, JJ.
National Highways Authority of India & Others - Appellants
Versus
Madhukar Kumar & Others - Respondents
Civil Appeal No(S).11141 of 2018
Decided On : 23-09-2021