The main legal point established is that the Central Government cannot levy fee under Rule 3(1) of the Rules before the completion of the section of National Highway.

Chakradhari Sharan Singh, J.

This application, in the nature of Public Interest Litigation, under Article 226 of the Constitution of India, has been filed raising a grievance that the respondents are levying fee, at Runni Toll Plaza, on "Muzaffarpur-Sonbarsa Section of NH-77" (from Km. 2.800 to Km. 89.00), even without completing construction of the road of the said section of the National Highway.

2. The petitioner claims to be public spirited person and a member of Sitamarhi District Bar, who had functioned as the president of the said District Bar Association.

3. The writ application was, originally, filed seeking a direction from this Court restraining the respondents from collection of fee, at Runni Toll Plaza, situated at a distance of 26.09 Km. from Sitamhari at NH-77, as, according to the petitioner, decision to levy fee was unauthorized and premature without completing the construction work of the said "Section of NH-77" starting from Muzaffarpur to Sonbarsa.

4. By filing an application seeking amendment in the writ application vide I.A. No. 7688 of 2015, the petitioner has sought to challenge the public notice, dated 7.7.2015, published in a local daily newspaper "Hindustan", whereby the National Highway Authority of India (hereinafter referred to as 'the NHAI') has notified the decision to collect fee at Runni Toll Plaza from 7.7.2015.

5. Since challenge to the said public notice, dated 07.07.2015, is based on same set of facts and grounds, we consider it expedient in the interest of justice to allow the amendment as sought for. I.A. No. 7688/2015 is allowed and accordingly, the petitioner is permitted to challenge the validity of the notice, dated 7.7.2015, issued by the NHAI. Contents of I.A. No. 7688 of 2015 have, accordingly, been treated to be part of the writ application.

6. From the materials on record and the submissions advanced on behalf of the petitioner, it appears that the impugned action of the respondents of collecting fee for use of the concerned section of the road has been put to challenge mainly on the ground that the same is in breach of Rule 3(2) of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 (hereinafter referred to as 'the Rules'), which, according to the petitioner, permits collection of fee only on completion of particular "section of a National Highway". An additional ground has been taken that such fee is, ordinarily, chargeable only for four or more lanes unless the average investment on two lanes exceeds Rupees one crore per kilometre and in such a case, the fee shall be 60% of the rate of fee specified under Rule 4(2) of the Rules.

7. The only question, which has arisen in the present proceeding, is as to whether it is within the competence of the Central Government to levy fee, invoking Rule 3(2) of the Rules, even before completion of the "section of National Highway", on the ground of part completion of the "section" of the said National Highway.

8. The Rules have been, admittedly, framed in exercise of powers conferred on the Central Government under Section 9 of the National Highways Act, 1956 (hereinafter referred to as 'the Act') for collection of fee for use of "sections of the National Highways, permanent bridges, bypasses and tunnels".

9. Rule 3 of the said Rules, interpretation whereof is crucial for the present application, is being extracted herein-below:

"Levy of fee.-(1) The Central Government may by notification, levy fee for use of any section of national highway, permanent bridge, bypass or tunnel forming part of the national highway, as the case may be, in accordance with the provisions of these rules.

Provided that the Central Government may, by notification, exempt any section of national highway, permanent bridge, bypass or tunnel constructed through a public funded project from levy of such fee or part thereof, and subject to such conditions as may be specified in that notification.

(2) The collection of fee levied under sub-rule (1