Mrs. Sushma Agarwal, aged about 52 years, wife of Mr. Pawan Kumar Agarwal, Resident v. 1. Union of India, through the Ministry of Road Transport and Highway, Transport Bhawan
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 318 of 2021 ---- Mrs. Sushma Agarwal, aged about 52 years, wife of Mr. Pawan Kumar Agarwal, Resident of Adhishree, Flat No. 15, 1st floor, Samridhi Enclave, Contractor’s Area, Road No. 3, P.O. & P.S. Bistupur, Town and District- Jamshedpur, Singhbhum (East), PIN Code-831001,Jharkhand. …..Appellant Versus 1. Union of India, through the Ministry of Road Transport and Highway, Transport Bhawan, 1, Parliament Street, P.O. and P.S. Sansad Marg, District-Delhi Central, New Delhi-110001. 2. National Highways Authority of India, through its Chairman, Government of India, G-5 and G-6, Sector-10, Dwarka, P.O. and P.S. Dwarka, District- Delhi South West, New Delhi-110075. 3. CGM(T), JH National Highways Authority of India, G-5 and G-6, Sector- 10, Dwarka, P.O. and P.S.-Dwarka, District-Delhi South West, New Delhi- 110075. 4. CGM-cum-RO Ranchi, National Highways Authority of India (Regional Office), C-129, Vidhyalaya Marg, Ashok Nagar, P.O. and P.S.-Ashok Nagar, District-Ranchi, Jharkhand-834002. 5. GM(T)-cum-Project Director, Project Implementation Unit-Jamshedpur, National Highways Authority of India, village-Asanbani, near Hill View Hotel & Resort, NH-33, P.O. and P.S. Kandrabera, District-Saraikella Kharsawan, Jharkhand-832401. ……Respondents/Respondent Coram: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY THE HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA -------- --------
Legal Reasoning
For the Appellant For the UOI :Mr. Abhijeet Kumar Singh, C.G.C. For the Respondent-NHAI : Mrs. Sweety Topno, Advocate ------- : Mr. M.S. Mittal, Sr. Advocate 10/13/08/2024 Heard Mr. M.S. Mittal, learned senior counsel for the appellant/writ petitioner, Mr. Abhijeet Kumar Singh, learned C.G.C. for the Union of India and Mrs. Sweety Topno, learned counsel appearing for the respondent- National Highway Authority of India. 2. by the learned Single Judge in W.P.C. No. 1943 of 2021 whereby and This appeal is directed against the order dated 13.09.2021 passed whereunder the writ application preferred by the petitioner-appellant has been dismissed. 3. The following prayers were made in the writ application:- (a) Issuance of an appropriate writ/order/direction or a writ in the nature of a declaration that acquisition of petitioner’s land for construction of a toll plaza at Mauza Putru ( Km 274.500) on National Highway-33 is in gross violation of National Highways Fee (Determination of rates and Collection)Rules, 2008, in particular, Rule 8(2) thereof, since the proposed toll plaza is within 60 kilometers of the existing toll plaza at Kokpara (Km 309.625) and no reasons in writing have been recorded prior to such acquisition in terms of the first proviso to Rule 8(2); (b) Issuance of an appropriate writ/order/direction or a writ in the nature of certiorari for quashing the letter dated 23.03.2021 issued by respondent no. 5 since post facto arbitrary and untenable reasons have been given for establishing a toll plaza within 60 kilometers of the existing toll, in violation of National Highways Fees (Determination of Rates and Collection) Rules, 2008; (c ) Issuance of an appropriate writ/order/direction or a writ in the nature of certiorari for quashing of notification dated 23.10.2020 issued by Respondent no. 1, so far as the same relates to acquisition of petitioner’s land for establishing a toll plaza within 60 kilometers of the existing toll plaza in violation of National Highways Fee (Determination of Rates and Collection) Rules, 2008 and since no reasons have been given in the said notification as postulated in the first proviso to the said Rules; (d) Issuance of an appropriate writ/order/direction or a writ in the nature of mandamus restraining the Respondents from taking possession of the petitioner’s land as mentioned in notification dated 23.10.2020 issued by Respondent no. 1 for the purpose of construction of the toll plaza at Mauza-Putru ( Km 274.500); ( e) Issuance of an appropriate writ/order/direction or a writ in the nature of mandamus commanding the Respondents to relocate the proposed toll plaza at Mauza- Putru ( Km-274.500) in a manner consistent with Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 and thereafter issue fresh notification for the purpose, as it deems fit and necessary, as per the Highway Act, 1956; 4. The factual aspects of the case reveal that pursuant to sale deeds 2 L.P.A. No.318 of 2021
Decision
dated 11.11.2003 and 16.02.2004 the writ petitioner had acquired all the part and parcel of land situated at Plot Nos.572, 573, 574, 575, 576, Halka No. II, Khata No. 95, Mouza-Putru, Subdivision-Ghatshila having a Total area of 0.7385674 Hectares. These lands are situated near National Highway-33 which is running through the length of the Jharkhand. It has been stated that sometimes in January, 2021, the writ petitioner was informed that her land along with adjoining areas have been acquired by the National Highway Authority of India (in short NHAI). The petitioner being not aware about such acquisition made an enquiry and came across a notification dated 23.10.2020 published in the Extraordinary Gazette vide S.O. 3801 (E) wherein it has been stated that the Central Government in terms of Section 3D of the National Highways Act, 1956 had acquired certain lands from Km 233.35 to Km 277.569 in the district of East Singhbhum and that from the date of publication of the notification in the gazette, the said land would vest with the Central Government free from all encumbrances. The writ petitioner being aggrieved with such acquisition of land submitted a representation to the authorities primarily stating therein that as per Rule 8 (2) of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 ( In short Rules of 2008), the minimum distance between two Toll Plazas ought to be at least 60 Km and building a Toll Plaza within an operational Toll Plaza situated at Kokpara in the same direction at a distance of 35 Kms. is de hors the provisions of Rule 8 (2) of the Rules of 2008. The representation of the petitioner was responded by the authorities in which the distance between the proposed Toll Plaza and existing Toll Plaza at Kokpara of 35 Kms. was admitted but at the same time it was mentioned that the Toll Plaza was being constructed to plug leakages in toll collection occurring at Galudih (Km 277.658), Ghatshila (Km 287.00) and Dhalbhumgarh (Km 300.820). The writ petitioner being aggrieved with such response preferred W.P.C No. 1943 of 2021 which was dismissed on 13.9. 2021 and which is the order impugned to the present Letters Patent Appeal. 5. the writ petitioner/appellant that Rule 8(2) of the Rules of 2008 mandates It has been submitted by Mr. M.S. Mittal, learned senior counsel for that no Toll Plaza shall be established within a distance of 60 Kms. from an existing Toll Plaza in the same direction but the respondent authorities have violated such provision by establishing another Toll Plaza within a distance of 35 Km. It has been submitted that the provision stipulates an exception but the same if invoked has to be backed up by sufficient reasons recorded 3 L.P.A. No.318 of 2021 at the time of acquisition as the rules of 2008 do not permit such post facto justification. The respondents by such act will assume unbridled power and will construct Toll Plazas as per their wills and by violating the rules without there being any necessity to set up such Toll Plazas as is in the present case. Certain developments have been sought to be introduced by way of filing a supplementary affidavit which has been taken on record as per the order dated 14.3.2023 and Mr. Mittal, learned senior counsel, based on the averments made in the supplementary affidavit has submitted that since in the land of the petitioner which was acquired no construction has taken place and therefore the ownership of the land should be reverted back to the writ petitioner. It has been submitted that though the averments made in the supplementary affidavit is a subsequent development but so far as the initial prayer of the writ petitioner is concerned, the learned Single Judge had erred in dismissing the writ application based on a misinterpretation of the relevant provisions of law. 6. from supporting the impugned order dated 13.9.2021 has submitted that Mrs. Sweety Topno, learned counsel appearing for the NHAI, apart there is no provision in the National Highways Act to return back the acquired land to the original owner after vesting of its same on acquisition. 7. Rule 8 of the Rules 2008 reads as follows:- 8. Location of toll plaza. (1) The executing authority or the concessionaire, as the case may be, shall establish a toll plaza beyond a distance of ten kilometres from a municipal or local town area limits: Provided that the executing authority may, for reasons to be recorded in writing, locate or allow the concessionaire to locate a toll plaza within a distance of ten kilometres of such municipal or local town area limits, but in no case within five kilometres of such municipal or local town area limits: Provided further that where a section of the national highway, permanent bridge, bypass or tunnel, as the case may be, is constructed within the municipal or town area limits or within five kilometres from such limits, primarily for use of the residents of such municipal or town area, the toll plaza may be established within the municipal or town area limits or within a distance of five kilometres from such limits. (2) Any other toll plaza on the same section of national highway and in the same direction shall not be established within a distance of sixty kilometres: Provided that where the executing authority deems necessary, it may for reasons to be recorded in writing, establish or allow the concessionaire to establish another toll plaza within a distance of sixty kilometres: Provided further that a toll plaza may be established within a distance of sixty kilometres from another toll plaza if such toll plaza is for collection of fee for a permanent bridge, bypass or 4 L.P.A. No.318 of 2021 tunnel. 8. Rule 8(2) of the aforesaid rules holds centre stage as it is based on this provision that the writ petitioner has challenged such acquisition. Rule 8(2) mandates that no Toll Plaza shall be established on the same section of National Highway and in the same direction within a distance of 60 Km. from any other Toll Plaza. What could be gathered from a reading of Rule 8(2) of the Rules of 2008 is that the words “same section” and “same distance” are not mutually exclusive but are fixated by the word “and”. A Toll Plaza may be set up in the same direction as of an operational Toll Plaza but the same may not be in the same section and in such situation Rule 8(2) of the Rules 2008 will not be applicable. Though it is the case of the writ petitioner that the Toll Plaza at Kokpara is at a distance of 35 Kms. from the Toll Plaza which was to be set up and is in the same direction but it is the specific case of the respondent-NHAI that the Toll Plaza at Kokpara is under a different section and therefore Rule 8(2) of the Rules of 2008 will have no relevance to the cause of the writ petitioner. The issue in the present case was predominantly the issue before the Allahabad High Court in the case of Chetna Society (Regd.) & Anr. Vs. Chief General Manager Technical & Ors. reported in 2015 SC OnLine ALL 6270 wherein it has been held as follows:- “9. We shall next deal with the challenge on the ground that under Rule 8(2), the distance between two toll plazas should not be less than sixty kilometers on the same section of a national highway and in the same direction. The crucial words of Rule 8(2) are “any other toll plaza on the same section of national highway and in the same direction”. In other words, where one section of the national highway is being developed under a concession agreement, the distance of another toll plaza on that section should not be within sixty kilometers. Evidently, this requirement of Rule 8(2) is not breached in the present case. The error on the part of the petitioners lies in connecting two separate sections of the national highway and treating them as if they are one. Two separate concession agreements have been entered into by NHAI, one for the Moradabad-Bareilly section from kilometer 148.000 to 262.000 which was awarded on 19 February 2010. The second and distinct section is for the stretch from Bareilly to Sitapur falling from kilometer 262.000 to 413.200 of NH 24 for which a concession agreement was executed on 22 June 2010. There are two separate concession agreements for the development of two separate sections of NH 24. Hence, the requirement of Rule 8(2) is not breached. The toll plaza which is being established at kilometer 267.000 is on the Bareilly-Sitapur section and hence, for the purpose of computing the distance within the meaning of Rule 8(2), the toll plaza on the Moradabad-Bareilly section would be of no relevance. The provisions of Rule 8(2) have, therefore, not been breached.” 9. The first proviso to Rule 8(2) of the Rules of 2008 gives power to the 5 L.P.A. No.318 of 2021 Executing Authority to allow the concessionaire to establish another Toll Plaza within a distance of 60 Kms. for reasons to be recorded in writing. As per NHAI reasons have been mentioned to the effect that Toll Plaza to be constructed was to plug leakages in toll collection occurring at Galudih (Km 277.658)Ghatshila ( Km 287.00) and Dhalbhumgarh (Km 300.820). The reasons are in sufficient compliance to the first proviso to Rule 8(2) of the Rules of 2008. Therefore the writ petitioner has failed to demonstrate non compliance of either Rule 8(2) of the Rules of 2008 or the first proviso to Rule 8(2) and the learned Single Judge therefore has rightly dismissed the writ application. 10. So far as the claim for return of the land is concerned having not been utilized despite the completion of the Toll Plaza, the said land has vested absolutely in the Central Government after issuance of the notification under section 30 of the National Highways Act and there is no provision in the Act for restoration of the land to the original land owner once the same has vested even in spite of its not having been utilized. The reply of NHAI to the supplementary affidavit further reveals that possession has not been provided to NHAI by the State Government for any land out of 21.48 acres even after disbursement of compensation to land owners to the tune of Rs.2.527 crores out of Rs.6.98 crores provided for compensation disbursement and the Toll Plaza at Putru was constructed on the existing land available with NHAI operationalizing the Toll Plaza with effect from 22.11.2020. Thus, the subsequent issue raised by the writ petitioner/appellant will also have no bearing on the acquisition of the land for setting up of Toll Plaza at Putru and we do not find such plea tenable in the eyes of law. 11. On the basis of the discussions made hereinabove we do not find any reason to interfere in the impugned order dated 13.9.2021 passed in WPC No. 1943 of 2021 and consequently we dismiss this appeal. ( Rongon Mukhopadhyay, J) (Pradeep Kumar Srivastava,J) Rakesh/- 6 L.P.A. No.318 of 2021