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2020 DIGILAW 430 (MP)

Devendra Pratap Singh v. State of Madhya Pradesh

2020-03-17

SUBODH ABHYANKAR

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ORDER : Subodh Abhyankar, J. 1. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the order dated 3.7.2015 (Annexure P-3) passed by the respondent No. 2/Director, National Highways Authority of India whereby the petitioner's land bearing Khasra No. 58/2/kha ad-measuring 0.324 hectares and Khasra No. 58/3 ad-measuring 0.607 hectares which are the parts of Khasra No. 58 situated at Village Bela, Halka Bela, Revenue Circle Mohari Katra, Tahsil Amarpatan District Satna, as also Khasra No. 48/1/Ka ad-measuring 0.405 hectares, Khasra No. 48/1/kha ad-measuring 0.279 hectares and Khasra No. 48/2 ad-measuring 0.405 hectares being the parts of Khasra No. 48 at the same place has been acquired for the purposes of establishment of Toll Plaza. 2. The case of the petitioner is that the respondent No. 2/Director, National Highways Authority of India issued a notification under Section 3A of the National Highways Act, 1956 (for short " Act, 1956") on 25.5.2012 in which the aforesaid Khasra numbers were not included as the National Highway was adjoining the aforesaid khasra numbers. It is the case of the petitioner that subsequently the respondent No. 3/Divisional Manager, Madhya Pradesh Road Development Corporation, Rewa decided to construct a Toll Plaza on the land situated at Khasra No. 58/2/Kha and 58/3 as also Khasra No. 48/1/Ka, 48/1/Kha and 48/2 which belong to the petitioner. It is further the case of the petitioner that the respondent No. 2 also issued a fresh notification on 3.7.2015 in which the aforesaid khasra numbers were also included and the petitioner, in terms of Section 3C of the Act, 1956 did not have any remedy as the said section provides that the person interested can "object to the use of land for the purpose or purposes mentioned in that section", and the case of the petitioner is that since the objection of the petitioner was based on the application of the statutory rules, namely Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 (hereinafter as "Rules, 2008") he did not file any objection before the respondent No. 5/competent authority, however, a representation was filed by the petitioner before the respondent No. 5 on 3.10.2015 and the respondent No. 5 vide its order dated 31.10.2015 directed the Naib Tahsildar to submit the report. The Tahsildar, vide his report dated 2.11.2015 has found that the location of Khasra No. 48 and 58 is 6.2 kms from the Nagar Panchayat limits, hence toll plaza cannot be permitted to be constructed at the proposed location. 3. Learned counsel for the petitioner has submitted that the acquisition of the petitioner's land for the purpose of construction of toll plaza is contrary to Rule 8 of the Rules, 2008 in light of the report submitted by the Naib Tahsildar. In such circumstance the impugned order is liable to be set aside. 4. On the other hand learned counsel for the respondents has opposed the prayer of the petitioner and has submitted that a toll plaza cannot be constructed within 10 kms of the municipal or local town area limits as provided under Rule 8 of the Rules, 2008, as after issuance of the notification dated 3.7.2015 which is under challenge, the authorities have already proceeded to issue final notification under Section 3D of the Act, 1956 and in terms of the same the award has also been passed and the amount of compensation has been deposited before the competent authority/Land Acquisition officer. Thus, it is submitted that the petition is liable to be dismissed on the ground that the final award has also been passed and which has not been assailed by the petitioner. Learned counsel has also relied upon Rule 8(1) of the Rules, 2008, which provides for location of toll plaza by which executing authority has been granted the power to construct a toll plaza within the distance of 10 kms of municipal or local town area limits. Relying upon the aforesaid provisions, it is stated that the case of the respondents falls within first proviso to the aforesaid rule, which provides 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 own area limits, but in no case within five kilometers of such municipal or local town area limits. 5. Learned counsel for the respondents has further submitted that in the impugned order the reasons have clearly been assigned by the respondents in establishing the proposed toll plaza. 5. Learned counsel for the respondents has further submitted that in the impugned order the reasons have clearly been assigned by the respondents in establishing the proposed toll plaza. It is further submitted that a notification dated 27.7.2016 by exercising power conferred under Section 8A of the Act, 1956 read with Rule 3 of the Rules, 2008 has also been issued. Thus the order impugned has also attained the finality. 6. Learned counsel for the respondents has further submitted that so far as the report dated 2.11.2015 submitted by the Naib Tahsildar is concerned, the same is distinguishable on the ground that the Naib Tahsildar has not taken into account the aforesaid provisions of Rule 8 of the Rules, 2008 which allows the respondents to construct a toll plaza within 10 kms. within the periphery. Thus it is submitted that the petition is liable to be dismissed. In support of his contention learned counsel for the respondents has relied upon the decisions of this Court in the case of Purshottam Yadav v. Union of India, decided on 13.10.2015 (WP No. 5584/2014 and in the case of Manish Jaiswal and another v. State of MP and others, decided on 23.7.2014 (WP No. 4149/2014-PIL). Reported in ( AIR 2014 M.P. 165 ) 7. Heard the learned counsel for the parties and perused the record. 8. After perusing the record, this Court is of the considered opinion that the writ petition is liable to be dismissed for the simple reason that there is no violation of Rule 8 of the Rules, 2008, which reads as under:- "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. 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 own 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 local 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 local town area limits or within a distance of five kilometers from such limits." Learned counsel for the respondents has also placed on record the spot map of Satna-Bela Road depicting the municipal limits of Rampur Baghelan vis-a-vis the proposed toll plaza to demonstrate that the municipal limits of Rampur Baghelan is 193.50 kms whereas the proposed toll plaza is 198.50 km., which is exactly 5 km. from the municipal limits. 9. So far as the reasons assigned to construct the proposed toll plaza are concerned, the respondents have also placed on record a document in this behalf as Annexure R-1, which reads as under:- “Reasons for locating toll Plaza within 10 km of municipal/town limit (check list point) Name of Project-Four Laning of Satna-Bela section of NH-75 from km 155.000 to km 203.04 on DBFOT basis. The details are as under – S.No. Toll Plaza Name of municipal/town Chainage Distance of toll plaza from municipal/town 1 Existing Ch.-km 194.100 Design Ch.-km 198.400 Rampur Baghlen Existing Ch.-km 188.000 Design Ch.-km 189.500 6.60 Reason : As per Toll Fee notification by MoRTH dated 5.12.2008 Cl. 8(1) Para 2, the Toll Plaza can be located within the distance of 10 km from municipal/town limit. 8(1) Para 2, the Toll Plaza can be located within the distance of 10 km from municipal/town limit. As per the said clause "Provided further that where a section of the national highway, permanent bridge or tunnel, as the case may be, is constructed within the municipal limit, primarily for the use of residents of such municipal or town area, the toll plaza may be established within the municipal or town area limits or within the distance of Five kilometers from such limits." the location of Toll Plaza is satisfying the above criteria. In the present case the there is a bypass on the Project Highway namely 'Rarapur Baghelan Bypass' within the municipal/town limit of the mentioned town. However, the proposed Toll Plaza is situated at more than 5 km from municipal/town limit. The location of Toll Plaza is as per the provisions in the Concession Agreement. With reference to the above, the present location of Toll Plaza at Km 198.500 is in compliance to the MoRTH's Toll notification and as per Concession Agreement." Thus from the aforesaid reasoning it is apparent that the respondents have taken note of the fact that there is a bypass on the project highway namely 'Rampur Baghelan Bypass' within the municipal/town limit. However, the proposed toll plaza is situated at more than 5 km from municipal/town limit, which is in accordance with Concessionaire Agreement and the location of toll plaza at 198.500 kms has been assigned. 10. On close scrutiny of the documents on record, this Court finds force with the contention raised by the learned counsel for the respondents that the Tahsildar vide his report dated 2.11.2015 has not taken into consideration the provision to Rule 8 of the Rules, 2008 and thus the report so submitted by the Tahsildar at best be used to hold that the toll plaza is proposed to be constructed within 10 kms of municipal limits. However, as the reasons assigned appear to be just and proper and in accordance with law, the same need no interference. 11. The Division Bench of this Court in the case of Purshottam Yadav (supra) has held as under:- "Proviso to Rule 8 of the Rules, which deals with location of Toll Plaza provides that the Toll Plaza may be established within a distance of 5 Kms. of municipal or town area limits. 11. The Division Bench of this Court in the case of Purshottam Yadav (supra) has held as under:- "Proviso to Rule 8 of the Rules, which deals with location of Toll Plaza provides that the Toll Plaza may be established within a distance of 5 Kms. of municipal or town area limits. It is well settled in law that issue relating to alignment of road and also about the location of Toll Plaza is essentially subjective satisfaction of the appropriate authority and judicial review thereof is not permissible. See: Soma Isolux NH one Tollway Private Limited v. Harish Kumar Puri and others (2014) 6 SCC 75 : ( AIR 2014 SC 2495 ). In the instant case, learned senior counsel for the petitioner was unable to point out a single instance where the toll has been charged from a person in contravention of the provisions of the concession agreement. No provision has been brought to our notice that the present location of the Toll Plaza is contrary to the provisions of the concession agreement and is not permissible under the agreement. For the aforementioned reasons, we do not find any merit in the writ petition. Same fails and is hereby dismissed." 12. As a result, in view of the aforesaid discussion, the petition being devoid of merits stands dismissed with no order as to costs.