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2011 (2) GCD 1132 (Guj) (DB)
Hon’ble Mr. Chief Justice S.J. Mukhopadhaya &
Hon’ble Mr. Justice J.B. Pardiwala
Chief General Manager (Toll) Ahmedabad Ring Road Infrastruc
Versus
Kanuji Gabhaji Thakore & Ors.
Letters Patent Appeal No. 97 of 20111—Decided on 11/04/2011
(a) Letters Patent Appeal — Clause 15 — Construction of service road or additional roads — On both side of Sardar Patel Ring Road — So that villagers residing in surrounding area are not obliged to pay toll tax every day while passing through the route for the purpose of employment — Direction by Single Judge to that effect — Challenge on ground that such direction are prejudicial to the interest of petitioner — Objection held not sustainable.
Held :
The concept of service road is not a new concept. It is an age old concept. Service roads are provided with a definite idea. AUDA has clarified that the construction of service road would be in such a way that it may have adequate level difference or developed plantation, garden, open drain or laying of curbing stones so that traffic of ring road may not approach the service road in between with the sole intention of avoiding the toll. The service road cannot be permitted to be merged with the toll plazas constructed by the appellant, otherwise the entire purpose of constructing service road for the benefit of local people would be frustrated. If this is done, then the local people residing in the surrounding nearby villages and localities of service road would be the sufferers because they may have to face undue hardship by paying toll frequently.
[Para 8]
Court is of the view that by merging of service road with the ring road at each and every toll plazas, as submitted by the learned counsel for the appellant, would be nothing but an additional lane on existing ring road only. In that case, it would not be a service road in any sense for local people. Adequate safeguards and remedies can be taken care of for the purpose of preventing leakage of toll fees by putting cross barriers, manual check points, etc. at the probable points of leakage of toll fees.
[Para 9]
It is not possible to accept the submission of learned counsel for the appellant that there should not be any service road at all as that would lead to great financial loss to the appellant. [Para 10]
Head Note :
(b) Principle of ‘Damnum Sine Injuria’ — Meaning and scope explained.
Held :
The rule of law is that the exercise of an ordinary right is no wrong even if it causes damage. This legal maxim is based on the principle of law that as a price of our free action, which the law permits, the other person must abide by some measure of inconvenience from equal freedom of one’s neighbour. This is what the phrase ‘damnum sine injuria’ means. This is a case of ‘damnum sine injuria’ – a case where damage or loss is inflicted without the act being unlawful. It is an act though harmful to the appellant is not wrongful on the part of the respondent, and no right of action accrues to the appellant. [Para 10]
Law Laid Down :
The exercise of ordinary right is no wrong even if it causes damage.
J.B. Pardiwala, J.—The appellant – original Respondent No. 4 has preferred this Appeal under clause 15 of the Letters Patent challenging the judgment and order passed by the learned Single Judge dated 5th August 2010 disposing of the above referred writ petition preferred by the original petitioner, an agriculturist, with appropriate directions which, according to the appellant herein, are not in accordance with law.
The present Appeal arises under peculiar set of facts and if the appellant is aggrieved by the order of the learned Single Judge then to a considerable extent the appellant himself is responsible for the same. We may summarize few facts relevant for the purpose of deciding the present Appeal :—
1.1 The original petition was preferred by one agriculturist residing near Ring Road, Toll Tax Booth at and post Ramol, District Ahmedabad with the following prayers:-
“(a) Your Lordships be pleased to issue an appropriate writ, order or direction directing the State Government and AUDA to make the payment of compensation to the petitioner and to all the agriculturists, whose lands have been acquired for the purposes of construction of Sardar Patel Ring Road by AUDA from the vicinity of villages around the city of Ahmedabad.
(b) Your Lordships be pleased to issue an appropriate writ, order or direction directing the State Government and AUDA to provide the facilities to the petitioner and other agriculturists, which are required to be provided upon implementation of T.P. Scheme, which has come into existence upon and for construction of Sardar Patel Ring Road in the interest of justice.
(c) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing that the Respondent No. 4 has no authority in law to levy toll tax from the local public/traffic for passing through the Sardar Patel Ring Road in the interest of justice.”
2. It appears that the grievance of the petitioner was two-fold. Firstly, his land came to be acquired by Ahmedabad Urban Development Authority (for short, ‘AUDA’) for the purpose of construction of Ring Road and, for which, AUDA was not allotting alternative plots in lieu of the land which was acquired for the purpose of construction of Sardar Patel Ring Road. Second grievance was to the effect that AUDA has not constructed service road, as a result of which, the petitioner and similarly situated villagers residing in the surrounding areas of the Toll Tax Booth have to pass through the toll tax booth after paying the toll tax. The grievance was that the petitioner and similarly situated other persons who are residing in the neighbouring areas of the toll tax booth are not obliged to pay the toll tax as they have to pass through that route every day for the purpose of employment, etc.
3. So far as the first grievance of the original petitioner is concerned, the appellant herein has nothing to say because that relates to allotment of alternative plot in lieu of the land which is acquired for the purpose of construction of Sardar Patel Ring Road. However, the appellant is aggrieved by the order of the learned Single Judge as contained in Paragraph 3 of the judgment. Paragraph 3 of the judgment and order passed by the learned Single Judge is reproduced hereinbelow :—
“3. So far as the prayer in terms of Para 8(b) is concerned, it is submitted that AUDA has proposed construction of service road for people like petitioner and others so that they are not required to pay any toll tax. He has produced on record the communication dated 18.12.2009 signed by the Executive Engineer, AUDA, Ahmedabad as well as Deputy Executive Engineer, AUDA, Ahmedabad submitting that a 25 km service road is to be prepared on both sides of the Sardar Patel Ring Road, which is likely to cost Rs. 36.65 Crores and the same would be on Ramol Junction to N.H. 59 Odhav Junction (10.70 km) as well as Silaj Bridge Junction to Sanand Highway Junction (14.30 km) and that construction of the serv
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