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2017 Supreme(Kar) 956
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
G. NARENDAR, J.
Nandi Highway Developers Ltd. - Petitioner
Vs.
Executive Engineer (Union of India) Public Works, Ports & IWT Department & Ors. - Respondents
W.P. No. 105421 of 2016 (GM-RES)
Decided On : 24-10-2017
Advocate Appeared:
For the Petitioner: Sri. Dhyan Chinnappa, Sri. Rajashekhar Burji, Sri. S.B. Mathapati, Sri. Gururaj, K. Deshpande, Sri. Kotrabasappa H.
For the Respondents: Smt. Vidyavathi K., Sri. M.B. Kanavi, Sri. K.L. Patil, Sri. Dinesh M. Kulakarni, Sri. Mrutyunjaya Tata Bangi, Sri. R.V. Naik, Sri. Shivasai M. Patil
Headnote:NATIONAL HIGHWAYS ACT, 1956 [C.A. No. 48/1956] - Section 8-A - Development and maintenance of Highways - Exercise of police power is exclusive domain of State - Said statutory power cannot be bartered or parted away under guise of development - As per Section 8-A of Act concessionaire can only suggest Highway Authorities, measures that are required for achieving object of development and maintenance - It cannot be construed or interpreted to mean that concessionaire is vested with police power.
CONSTITUTION OF INDIA - Article 300-A - Right to property - It is a constitutional right - It cannot be negated by mere contract.
CONTROL OF NATIONAL HIGHWAYS (LAND & TRAFFIC) ACT, 2002 [C.A. No. 13/2003] - Sections 28, 33, 34 - Access to Highways - Meaning of Phrase 'access permission' - Concession agreement between petitioner and PWD for construction and maintenance of bye-pass - Clause in agreement giving power to petitioner to control access, limited to extent of regulating entry at access point in order to prevent leakage of revenue - Phrase 'access permission' denotes activity of establishment of a new access/entry point. Power as to regulation of access, diversion, imposition of restriction on access on highways etc. solely vests with Authority under Act .The right to regulate entry to project road and to grant access permission are wholly different concept and do not stand on same footing. Phrase 'access control' as used in Clause of Concession Agreement between petitioner and PWD denotes only vesting of right enabling concessionaire to regulate entry of motor vehicles only on outside of established/designated interchanges, i.e., by imposition of a fee or charge on person, who is desirous of using carriage way, developed and maintained by concessionaire. It is neither argued nor pleaded by petitioner that despite willingness of person to pay fee, right is envisaged concessionaire to deny entry to such person. Control envisaged under contract can only be equated with regulation and not with prohibition. Petitioner is not vested with power to establish entry points at its own will and volition at any point of stretch of road, developed and maintained by it. In absence of confirmation of such power on petitioner, its power to control access to highways cannot be equated with power to grant permission for access.
WORDS AND PHRASES - Regulation, Control and Prohibition - Meaning and definition - It depends on connotation and context they are used considering accompanying language of statute - Ought to be interpreted keeping in view, aims and objectives of legislation.
CONSTITUTION OF INDIA - Article 226 – 1- Writ petition - Delay and laches - Delay resulting in creation of third party interest - Writ Petition not maintainable.
Heard the learned senior counsel for the petitioner, the learned counsel for respondent No.1, the learned Addl. Government Advocate for respondent Nos.2 and 3, the learned counsel for respondent Nos.4 and 7, the learned counsel for respondent No.5 and the learned counsel for respondent No.6.
The brief facts necessary for adjudicating the lis between the parties is as follows:
2. The petitioner is a company incorporated and concessionaire under the Concession Agreement entered into and executed by the Union of India, State of Karnataka represented by its Secretary, Public Works Department and M/s. Bharat Forge Limited, a company incorporated under the provisions of Companies Act. M/s. Bharat Forge Limited is referred to as “bidders” to the Hubli-Dharwad Bypass Concession Agreement and M/s. Nandi Highway Developers i.e., the petitioner herein is referred to as “Special Purpose Vehicle” [“SPV” for short] under the Concession Agreement, which is produced and marked as Annexure-“B” to the writ petition.
3. The Concession Agreement dated 05.02.1998 has been entered into for the purpose of constructing and maintaining the Hubli-Dharwad bypass, being a part of the National Highway No.4. The project was conceived as a Build, Operate and Transfer [“BOT” for short] Scheme. In pursuance thereof, tenders were invited and M/s. Bharat Forge Limited, who is referred to as bidder in the Concession Agreement was declared as the successful bidder. Thereafter, the present petitioner was introduced into the Concession Agreement as a SPV. The project was conceived as a two lane highway bypass only.
4. It is claimed by the petitioner that under Clause 5.3.6 of the Concession Agreement, the right to develop and maintain part of the highway [by-pass] is vested with the concessionaire. That the right to maintenance would vest in it the absolute right to control traffic including the right to control access to the highway.
5. It is contended, that by the impugned proceedings i.e., grant of access permission by the 2nd respondent is violative of the provisions of the Concession Agreement more particularly, Clause 5.3.6 of the Concession Agreement and that the right to grant access permission is vested only with the petitioner in terms of the Concession Agreement vide Annexure-“B” and hence, the impugned proceedings is by an incompetent authority and hence is vitiated and illegal.
6. It is not in dispute that the 5th respondent had sought for a no objection certificate for the purpose of establishing a petroleum product dispensing retail out-let, in the land owned by the 6th respondent. It is also not in dispute that pursuant to the no objection/access permission, granted by the 2nd respondent, the 6th respondent commenced preparation and has executed civil work for establishing the retail unit. The photographs placed on record by the petitioner at Annexure-“J” series evidences the same.
7. It is contended by the learned senior counsel for the petitioner that the 7th respondent-Union Government with a view to encourage investments from private players, in the arena of infrastructure development, conceived participation of the private sector and one such sector was the development of national highways. That the Union Government with a view to achieve the object, amended the provisions of Section 8 of the National Highways Act, 1956 [“Act of 1956” for short] vide amendment Act 26 of 1995 and inserted the provisions of Section 8A into the National Highways Act, 1956. [“NH Act” for short]. Pursuant to the amendment, the Central Government came to be vested with the statutory power and authority to execute Concession Agreement’s for the purpose of achieving the object of development and maintenance of national highways, by which, either the whole or any part of national highway could be awarded and sub-Section (2) of the amended provision vested in favour of the Concessionaire a right entitling it to collect and retain fees at such rate, for the services or be
