High Court
Case Details
WP(C) 3805/2006 BEFORE THE HON’BLE MR JUSTICE HRISHIKESH ROY Heard Mr. M. Bhuyan, learned counsel for the petitioners. Mr. S. Saikia, the lea rned Standing Counsel for the Assam Agricultural Marketing Board hereinafter ref erred to as (cid:28)the Marketing Board (cid:29), appears for the respondents No. 2, 3 and 4. M r. J. Handique, Government advocate represents the respondents No. 5, 6 and 7. A dvocate Mr. Y.S. Mannan appears for the respondents No. 8 and 9. 2. The petitioners are permanent residents of Nagaon, Gogamukh in Dhemaji di strict and they challenge the legality of the check gate at km 381.500 on Nation al Highway-52, which was erected just outside their respective residences. They contend that the Marketing Board illegally erected them without permission from the Ministry of Surface Transport and Highways hereinafter referred to as the (cid:28)S urface Transport Ministry (cid:29) of the Government of India. Apart from questioning th e authority of the Marketing Board to erect such check gate on the NH-52, the p etitioners also project egress and ingress difficulties faced by them and also t he nuisance on account of urinal wastage and gambling activities happening withi n the constructed check gate. 3. The petitioners refer to their representation for removal of the check ga te and projects that the local revenue officials in their report of 29.9.2005 ha d indicated that the environment is vitiated through toilet waste and that illeg al activities like gambling is carried out in the check gate shed. On the petiti oners’ representation, the Deputy Commissioner, Dhemaji through his letter dated 28.2.2006 (Annexure -7) directed the CEO of the Marketing Board to remove the c heck gate in front of the petitioners’ residences.
Legal Reasoning
14. Interpreting the provisions of the National Highway Act this Court in Jaki r Hussain -Vs- State of Assam & Ors., reported in (2003) 1 GLT 644, where consti tutional validity of installation and levy of check gates on national highway wa s being questioned, had declared that national highways comprised within municip al areas are excluded from the area of operation of the Municipal Act. This obse rvation was given in the context of check gates erected on National Highway by t he municipal authorities of Guwahati. Based on this finding, this Court declared that setting up of check gates on the national highway by the Guwahati Municipa l Corporation is completely illegal. 15. Taking a cue from the ratio of the decision in Jakir Hussain (supra), wha t is seen here is that the check gate was erected by the Marketing Board on NH-5 2 on what is contended to be a notified market area under the Market Act. This n otification of market area might authorize the Marketing Board to erect check ga tes to ensure collection of cess from the traders. But if they wish to erect suc h check gates on national highway land, the Marketing Board is required to obta in prior written permission u/s 24 of the 2002 Act. In other words, a particular area may be notified as market area u/s 5 of the Market Act, but national highw ay lands which vest on the Union Govt. u/s 4 of the National Highway Act and Sec tion 23 of the 2002 Act, cannot be utilized by the Marketing Board and barriers cannot be erected on such vested land, without due permission from the Surface T ransport Ministry. 16. The counsel for the Marketing Board refers to the decision in Assam Rolle r Flour Mills Association Vs. State of Assam reported in (2009) 1 GLR 1 to cont end that the power of the Marketing Board to erect check gates u/s 21 (A) of the Market Act was upheld by the court. But this case is certainly not an authority for empowering the Marketing Board to erect check gates on national highway lan d, without prior permission of the Surface Transport Ministry. In fact in Assam Roller Flour Mills Association (supra) the Division Board had no occasion to exa mine the implication of the National Highways Act, 1956 and the Control of Natio nal Highways (Land and Traffic) Act, 2002. Therefore, in my considered opinion, this case cannot be an authority for enabling the Marketing Board to erect check gates on national highway land without due permission of the Surface Transport Ministry. 17. Consequently the petitioners’ challenge to erection of check gate at km 3 81.500 on National Highway-52 is found to be legally acceptable since the check gate was erected without permission from the Ministry of Surface Transport as is mandated u/s 24 of the 2002 Act. Having concluded thus, the respondents No. 2, 3 and 4 are directed to remove this check gate. If they wish to erect check gate on national highway, the same shouldn’t be erected without written permission f rom the competent authority of the Ministry of Surface Transport, Govt. of India . 18. With the above direction, the case stands allowed with no order on cost.
Arguments
4. Mr. M. Bhuyan learned counsel refers to the Schedule -II of the National H ighway Act, 1926 hereinafter referred to as the (cid:28)N.H. Act (cid:29) and points out that N H-52 passing through the Dhemaji district was declared to be a National Highway u/s 2 of the N.H. Act. Consequently, by applying the provisions of Section 4, th e NH-52 with all lands appurtenant thereto vest in the Union Government and ther efore, without authorization of the Surface Transport Ministry, none including t he Marketing Board can erect any check gate on NH -52. 5. The learned Central Govt. counsel, Mr. Choudhury, appears for the respondents No. 10 and 11 and he refers to the counter affidavit filed by the Executive Eng ineer of the 1353 G.E.(GREF) to project that the check gate at km 381.500 on NH- 52 was erected without permission from the Surface Transport Ministry. He argues that check gates cannot be established on national highway lands, without prior approval of the competent authority u/s 24 of National Highway (Land and Traffi c) Act, 2002 hereinafter referred to as the (cid:28)2002 Act (cid:29). According to the C.G.S. C., barriers on the national highway can be provided only with prior permission of the Ministry of Surface Transport and in emergency situations like national c alamities or law & order requirement, only temporary barricades can be erected. In fact the Union Ministry has written to the Assam Govt. authorities to remove the check gate on NH-52 as the same were erected without permission. 6. Representing the respondents No. 8 and 9, advocate Mr. YS Mannan submits th at earlier the State PWD was delegated u/s 5 of the NH Act with highway maintena nce works but since May,2002, the GREF/BRO is entrusted with this task and the S tate has nothing to do with maintenance of the concerned stretch under the NH-52 . 7. On behalf of Marketing Board, advocate Mr. S. Saikia firstly submits that this case has not been filed bona fide and in order to project that the petitio ners have no serious objection to the check gate opposite their houses, the coun sel refers to the petitioners’ letter to the Marketing Board, wherein they have applied for the shed repair contract to be entrusted to them. 8. Mr. Saikia submits that the concerned area where the check gate is erected is notified as a market area u/s 5 of the Assam Agricultural Produce Market Act, 1972 hereinafter referred to as the (cid:28)Market Act (cid:29) and accordingly the counsel ar gues that the check gate can be erected within the market area u/s 21 (A) to pr event evasion of cess by the traders of the market. 9. From the counter affidavit filed by the respondents No. 2, 3 and 4, Mr. Sai kia projects that the Executive Engineer, PWD (N.H. Division) had granted permis sion for erection of a temporary shed and this permission was lastly renewed thr ough the letter dated 16.8.1990 and since there is no direction by the PWD to di smantle the temporary shed, the counsel submits that the legality of their const ruction cannot be questioned by the petitioners. 10. The above submission requires the Court to decide whether the check gate a t km 381.500 on National Highway-52 were legally erected by the Marketing Board and whether the petitioners by their conduct had forfeited their right to questi on the legality of the check gate. 11. After the check gate started functioning on petitioners’ complaint the mat ter was enquired at site and the revenue officials reported that the check gate has caused multifarious difficulties for the local residents. No doubt the petit ioners applied to undertake repair work for the constructed shed but since this was in the context of engagement of some outsider, this by itself should not in my view, lead to rejection of their challenge at the threshold, without consider ation of the merit of the challenge. 12. While Section 21(A) of the Market Act permits the Marketing Board to establish check gates within the market area, when the area in question happens to be notified national highway land, use or occupation of such land is impermis sible u/s 24 of the 2002 Act, without obtaining prior written permission from th e highway authorities. Section 23 vests highway land on the Central Government a nd therefore the competent authority to grant permission to raise any barrier/ch eck gate on National Highway is the Ministry of Surface Transport. Admittedly th e Marketing Board had not obtained any permission from the Surface Transport Min istry and having regard to the provisions of the 2002 Act, the so called permiss ion granted by the Executive Engineer, PWD, (NH Division) cannot in my view conf er any legal authority to the Marketing Board, to construct temporary shed on NH -52. 13. Moreover, since May, 2002, the State PWD has nothing to do with this stret ch of the NH-52 where the concerned check gate was erected and therefore the so called temporary permission (which has not been extended) of the Executive Engin eer of the State PWD, can’t confer legitimacy to the check gate.