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2014 DIGILAW 1714 (PNJ)

Gram Panchayat Gangaicha Jat v. Union of India

2014-12-10

ANUPINDER SINGH GREWAL, ASHUTOSH MOHUNTA

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JUDGMENT : Anupinder Singh Grewal, J. This order shall dispose of two writ petitions bearing CWP No. 25794 of 2012 and 21169 of 2013 since similar questions of facts and law are involved in the same. For the sake of convenience, the facts are being taken from CWP No. 25794 of 2012. 2. Petitioner-Gram Panchayat Gangaicha Jat, Tehsil & Ditt. Rewari (for short "Gram Panchayat") by preferring the present writ petition under Article 226 of the Constitution, seeks a writ in the nature of Certiorari for quashing the Notification dated 20.09.2012 published on 20.10.2012 (P.6) whereby the land of the village of the petitioner had been notified for acquisition for the purpose of setting up of a Toll Plaza; with further issuance of a writ in the nature of Mandamus, directing the respondents to shift the said Toll Plaza by 2 kms. on either of the sides so as to save the only approach to the village of the petitioner. 3. The respondents had issued a Notification under Section 3-A (1) of the National Highway Act, 1956 (for brevity "Act") to acquire the land for the purpose of building (widening/four laning etc), maintenance, management and operation of National Highway No. 71 on the stretch of the land from 429.500 kilometers to 437.212 kilometers (Rohtak-Bawal section) in District Rewari. In the Notification, the land belonging to the petitioner comprised in Khasra No. 31/50 (0-14), 56 (1-7), 57 (1-1) and 58 (0-18) was also included for acquisition along with the land of private persons comprised in other Khasra numbers as mentioned in para 2 of the petition. 4. It is pleaded that the part of the aforesaid land of the petitioner- Gram Panchayat and that of private persons was being acquired for the purpose of setting up of the Toll Plaza on the bus stand of the Village Gangaicha Jat, which is at some distance from the National Highway and thereby it would have blocked the only approach road of the village. Being dissatisfied, the petitioner as well as some private persons filed objections against this proposed acquisition and after considering the objections, the toll plaza was decided by the respondents to be shifted from the place at which it was proposed at that time. Being dissatisfied, the petitioner as well as some private persons filed objections against this proposed acquisition and after considering the objections, the toll plaza was decided by the respondents to be shifted from the place at which it was proposed at that time. Therefore while issuing the final notification of acquisition on 03.12.2011, respondents though acquired the land of the petitioner and the private persons for widening the land, however, the land proposed to be acquired for setting up of Toll Plaza was released from acquisition. It is alleged that now at the behest of certain interested persons, again the impugned Notification dated 20.9.2012 published in 20.10.2012 (P.6) has been issued for acquiring the remaining land of the petitioner as well as private persons so that the toll plaza could be set up at the bus stand of the village Gangaicha Jat. 5. Upon notice, separate written statements on behalf of respondent Nos. 2 & 3, respondent No. 4 and respondent No. 5 were filed in Court. 6. In the written statement filed on behalf of respondent Nos. 2 & 3, it is stated that the power to acquire land for the development of a National Highway is vested under Section 3A of the Act and that the development of existing 2 lane road i.e NH-71 (Rohtak-Bawal Section) into 4 lane from 363.300 kilometers to 450.800 kilometers is to be executed as Built Operate Toll project on Design Build Finance Operate & Transfer pattern under NHDP Phase III in the State of Haryana. The concession agreement is stated to have been signed on 13.7.2010. The length of toll plaza is stated to be 900 meter (approx) which is indicated on the plan submitted by the petitioner whereas the extra land is required for development of 4-laning as well as for setting up of toll plaza for the aforesaid project and that structure compensation has been disbursed by the competent authority to the concerned land owners. 7. It is averred that the present location of toll plaza is about 7 kms approximately from the outer Municipal Limit of Rewari City and about 80% of the work has been executed at site for setting up of the said Toll Plaza. 7. It is averred that the present location of toll plaza is about 7 kms approximately from the outer Municipal Limit of Rewari City and about 80% of the work has been executed at site for setting up of the said Toll Plaza. It is assured that all the suitable arrangement for the village approach road to Gangaicha Jaat and also for connecting with the National Highway shall be provided by the answering respondent through its concessionaire. It is further stated that as per Article 27.3 of the concession agreement, for the convenience of the people of local/surrounding areas, concessional monthly passes will be provided for a sum of Rs. 150/- per month with reference to the base year 2007-08, to be revised annually in accordance with the fee rules to reflect the variation of Wholesale Price Index and then rounded off to the nearest Rs. 5/-. Moreover, two wheelers will be exempted from paying the toll at the toll tax barrier. 8. By relying on the proviso to Rule 8 (1) of the National Highways Fee (Determination of Rates & Collection) Rules, 2008, it is further stated that the executing authority may, for the reasons to be recorded in writing, locate or allow the concessionaire to locate a toll plaza within a distance of 10 KM of such municipal or local town area limits, but in no case within 5 KM of such municipal or local town area limits. It is alleged that the municipal limit of Rewari is 7 KM from the toll plaza being constructed and moreover the National Highway is being widened for the benefit of the local areas and also for smooth flow of traffic in and around the surrounding areas. Therefore, no norm of the Ministry of Road Transport and Highways is violated by the answering respondent by setting up the toll plaza. 9. We have heard learned counsel for the parties and gone through the record of the case minutely. 10. Learned counsel for the petitioner-Gram Panchayat contends that the toll plaza can only be established beyond ten kilometers from the municipal limit whereas the Village Gangaicha Jat is within 6.5 kms from the municipal limit of Rewari, therefore, the toll plaza deserves to be shifted from the present place as per their own Policy of the respondents. 11. 10. Learned counsel for the petitioner-Gram Panchayat contends that the toll plaza can only be established beyond ten kilometers from the municipal limit whereas the Village Gangaicha Jat is within 6.5 kms from the municipal limit of Rewari, therefore, the toll plaza deserves to be shifted from the present place as per their own Policy of the respondents. 11. He has also contended that no Toll Plaza cannot be established within 1 kilometer from existing fuel station whereas two filling stations exist near the Bus Stand and the Toll Plaza is sought to be established on the land of the petrol pump itself. The Toll Plaza is also causing inconvenience to the villagers to approach the road due to the setting up of Toll Plaza. Learned counsel for the petitioner has placed heavy reliance upon Rule 8 of the National Highway Fees (Determination of Rates & Collection) Rules, 2008. The relevant extract of Rule 8 is reproduced hereunder : "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 kilometers from a municipal or local town area limits : Provided that the executing authority may, for the reasons to be recorded in writing, locate or allow the concessionaire to locate a toll plaza within a distance of ten kilometers of such municipal or local town area limits, but in no case within five kilometers of such municipal or local town area limits : Provided further that where a section of the national highway, permanent bridge, by-pass or tunnel, as the case may be, is constructed within the municipal or town area limits or within five kilometers 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 limit or within a distance of five kilometers 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 kilometers : 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 kilometers : Provided further that a toll plaza may be established within a distance of sixty kilometers from another toll plaza if such toll plaza is for collection of fee for a permanent bridge, by-pass or tunnel." A perusal of the Rule 8(2) indicates the distance between two Toll Plazas has to be 60 kilometers. The respondents have stated that this Toll Plaza is 60 kilometers from the Toll Plaza on the outskirts of Rohtak, therefore, taking it with any further away from the municipal limits of Rewari will breach the condition stipulated in Rule 8(2). It is thus patent that the petitioners are interested more in shifting of the Toll Plaza rather than compliance with the Rule 8 of the aforestated rules. Even if the Toll Plaza is to be shifted 2 kilometers away as demanded by the petitioners it would still breach the clause 8(1) of 10 kilometers within the municipal limits, besides breaching Clause 8(2) which stipulates 60 kilometers limit between two Toll Plazas. 12. We now proceed to deal with the contention that Clause 8(1) for setting up Toll Plaza beyond 10 kilometers can be relaxed for reasons to be recorded in writing. We have perused the record. The photo copies of the relevant record have been produced before us during the course of hearing which indicate that the NHAI was requested to record reasons for setting up the Toll Plaza within 10 kilometers. In compliance of the observations of the Ministry of Road Transport and Highways the NHAI has recorded reasons as under : "(i) The location of Toll Plazas are as per the Concession Agreement and in accordance to the site conditions. (ii) The Concession Agreement for time subject Project was signed on 13th July 2010." There is no doubt that proper reasons should have been recorded by NHAI while breaching this condition stipulated in Rule 8(1). However, the rationale of the NHAI behind setting up this Toll Plaza is discernible from the record. (ii) The Concession Agreement for time subject Project was signed on 13th July 2010." There is no doubt that proper reasons should have been recorded by NHAI while breaching this condition stipulated in Rule 8(1). However, the rationale of the NHAI behind setting up this Toll Plaza is discernible from the record. It is reiterated that if this condition of shifting the Toll Plaza beyond 10 kilometers had to be complied with then, of course the conditions stipulated in Clause 8(2) would have been violated inasmuch as the two Toll Plazas would have been at the gap of less than 60 kilometers. 13. We have also carefully considered the site plan Annexure R-2/5 and are satisfied about the location of the Toll Plaza. The action of the authorities in locating the Toll Plaza at the site is bona fide and as per the agreement arrived at between the concessionaire and the NHAI. The location of the Toll Plaza is a result of the contractual agreement between the parties concerned and the petitioners can challenge the same only if their legal rights or statutory rules have been violated. Even otherwise the location of Toll Plaza is a matter to be decided by the authorities concerned and unless it can be established that it is arbitrary, unreasonable or in violation of the law, the Courts would refrain from adjudicating on such matters. These matters are within the domain of the experts and the authorities concerned. Judicial restraint should be exercised while dealing with such matters. We draw support from the judgment of this Court in LPA No. 170 of 2012 decided on 6.12.2012 case titled as Gram Panchayat, Dangdehri v. The Union of India and others wherein the Division Bench while dealing with similar matter about the location of the Toll Plaza held as under : "13. Normally, the choosing of location of Toll Plaza is to be left to the parties concerned. When in the present case, two States as well as government undertaking like the National Highway Authority of India are involved in the decision making process and they have considered viability, availability of space/location including financial aspects, the Courts are ill equipped to go into the rationale of such decisions. When in the present case, two States as well as government undertaking like the National Highway Authority of India are involved in the decision making process and they have considered viability, availability of space/location including financial aspects, the Courts are ill equipped to go into the rationale of such decisions. After it is found that the decision is bonafide; it does not suffer from any oblique motive; and it is not in violation of any statutory provisions, no further judicial scrutiny on the merits of such a decision is admissible in law. 14. We, therefore, do not find any merit in this appeal, which is accordingly dismissed." 14. It is necessary to mention that respondent-authorities have stated that all suitable arrangements for the village to approach roads to Gangaicha Jat for connecting with the national highway shall be provided/developed through its concessionaire. It is also stated in the reply of the respondent No. 5 that the main construction work of the proposed Toll Plaza at KM 430 is already complete and photographs in respect thereof have been annexed as Annexure R-5/6. 15. In view of the above, the action of the respondents towards acquisition of land and location of Toll Plaza cannot be said to be arbitrary, illegal or irrational warranting interference in the writ jurisdiction. The writ petitions are accordingly dismissed.