TMI Blog2021 (9) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... results, as a measure ofpunishment, accepting the Inquiry Report. Dealing with the argument that no reasons were recorded by the Inquiry Officers, this Court held The omission to record reasons in the present case is neither illegal, nor is violative of the principles of natural justice. Whether the conclusions are proved or not is yet another question and would need detailed consideration - It will, at once, be noted that, the facts in the said case, were not disputed, and therefore, the omission to record reasons, was found neither illegal nor violative of principles of natural justice. In KRANTI ASSOCIATES PVT. LTD. VERSUS MASOOD AHMED KHAN [ 2010 (9) TMI 886 - SUPREME COURT] , the National Consumer Disputes Redressal Commission (NCDRC), dismissed Revision Petition, only taking note of the fact that there were concurrent findings. This Court went on to find that the Order was vitiated but it is obvious that the Order of the Commission cannot be described as an administration decision. Persons, who may have a right or an interest, would know, what are the reasons which impelled the Administrator to take a particular decision. Judicial review, in India, which encompasses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 kms, the road project road passes through the municipal limits. In the Rules of 2008, Rule 2c defines a bypass as a Section of the national highway bypassing a town or a city. Therefore, the question may arise, whether, when Rule 8 speaks of construction of a Section of the national highway, which is within a municipal or town area limits, it will include a bypass, in view of the new definition. There is indication in the case that from 178 km, there was an existing bypass. The new construction was over the existing bypass. However, we do not explore this matter further as none of the parties addressed us on this and we proceed on the basis that there was construction of a National Highway partly within the municipal limits. It is thus concluded as follows: (1) The construction of the toll plaza at 194 kilometre was not illegal or arbitrary; (2) The direction by the High Court, to shift toll plaza, cannot be upheld and it is liable to be set aside; (3) The Appellants will look at the barricades (closing of service roads) in regard to the toll plaza and permit such barricades only as are permitted in Rule 17 of the Rules. Any unauthorised barricades will be removed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t using the new alignment of toll road. The parties shall bear their own cost. 2. The Appellants before us, who are NHAI, its Chairman and the General Manager, filed LPA No. 388 of 2015 against Writ Petition No. 5643 of 2012. The said Appeal came to be heard along with LPA No. 236 of 2015, filed by the concessionaire, arising from Judgment in Writ Petition No. 5643 of 2012 and LPA No. 332 of 2015 filed again by the concessionaire against Writ Petition No. 4526 of 2013, and by the impugned Judgment, the Division Bench confirmed the Judgment of the learned Single Judge. 3. Before we go to set down the contentions of the parties, it is necessary to have a look at the Writ Petition which generated the present Appeal, viz., Writ Petition No. 5643 of 2012. As noticed, it was filed by Respondent Nos. 1 to 17 in the present Appeal. THE CASE SET UP BY THE WRIT PETITIONERS 4. It was stated in the Writ Petition, inter alia, as follows: 4. That it is stated that there is proposal for the construction of the toll plaza at 194 km of NH-30 I in the four laning of Patna-Bakhityarpur Section of NH-30 from 181.300 km to 231.950 Km in the state of state of Bihar on BOT (toll) basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . So, the pray of relief/reliefs of Petitioners are unjustified and unlawful. 9. That with regard to the statement made in paragraph No. 2(i) of the writ petition it is humbly submitted that the location of Toll Plaza has been fixed at km. 194 as per the detailed survey by DPR consultant M/s. Meinhardt Consultant Pvt. Ltd. considering the ground condition, future development of the surrounding and viability of the project w.r.t. traffic density and its leakage as per the guidelines. If this Toll Plaza is being shifted to other location in bypass (in between km 194.7 to 231) there will huge traffic leakage from the old read and which will badly effect the viability of the project and is will be also violation of the agreement between NHAI and the concessionaire hence the project may be stopped by the concessionaire because this project is viable due to traffic count particularly at this Toll Plaza location. 8. There are other aver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated construction of a toll plaza at 194 kilometres. 10. Thereafter, a supplementary counter affidavit was filed by the Concessionaire. Therein, it is, inter alia, stated that the Bihar Government has taken up the work of four-laning of NH30 from kilometre 181.300 to 189.500, only to reduce the excessive pressure of traffic. Reference is made to the second proviso to Rule 8 of the 2008 Rules. The executive summary of the DPR Delhi-Pune Railway is relied upon to point out that it clearly mentions that the stretch from Didarganj ROB, from Kilometre 196 to Fatuha Kilometre 208, was very congestive. Reference is made to other parts of the DPR. It is, in short, the case of the Concessionaire that it is evident that initiation of widening of National Highway 181.30 was to ease the pressure of local and thorough traffic. It is pointed out also that access road is being provided from 181.3 kilometre to 194 kilometre. It is contended that writ Petitioners were required to leave 3 to 6 meters front set back, which they have not left. It is stated that there is compliance of second proviso to Rule 8 of the 2008 Rules, as four-Laning has been initiated to reduce the pressure of loca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exure-I to the 3rd counter affidavit filed on behalf of NHAI reveals that four lane construction of N.H. 30 starts from 181 km. milestone and ends to 230 km. milestone where it touches N.H. 31. Furthermore, above stated Annexure-I reveals that between 194 km. milestone and 197 km milestone the proposed new alignment separates from old N.H. 30. It is also apparent from the above stated Annexure-1 that a person who comes from Fatuha and goes to Patna, has to pay toll tax and, similarly, a person comes from Patna and goes to Fatuha through old N.H. 30 without using proposed new alignment which turns towards N.H. 31 will also have to pay toll tax because the proposed toll plaza is being constructed much prior to the place from where the new alignment separates from old N.H. 30. As I have already stated that the site of proposed Toll Plaza at 194 km. milestone was chosen in violation of Rule 8 of Rules 2008 and it is apparent that the proposed location for establishment of Toll Plaza is not only violation of Rule 8 of Rules 2008 but also charges tax from the persons who do not intend to use the toll road rather prefer to use old N.H. 30. No doubt, the expert agency proposed for location ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the commercial viability. Reference is made to the Affidavits of the Appellant and the Concessionaire, to essentially find that the case of non-application of mind, was made out. The specific stand of the Appellants was found to be that the Section was constructed to remove traffic congestion but it was also found that there was no conclusion that the Section was meant primarily for the use of the local residents. A project, executed for the removal of traffic congestion on the national highway, may be backed with sound reasoning, as it would help long distance travellers from not getting stuck in a long-drawn traffic jam. The learned Judge goes on to find that the requirement that, it would be primarily for the use of residents, was satisfied. Primacy was given to by the Legislature to the facilitation of the local residents. What prevailed, however, was found to be commercial viability. Equally, the contentions that there is no challenge to the DPR, and there was an alternate Rule, were rejected. The other learned Single Judge, who constituted the Bench, agreed with the aforesaid views. CONTENTIONS OF THE PARTIES 15. We heard Shri Neeraj Kishan Kaul, learned Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to put up the toll plaza even within the municipal or town area limits. Therefore, having regard to the consequences that would ensue of departing from the Rule, not only, should the requirements in the second proviso, be clearly established, but also, reasons, within the meaning of the first proviso, must be provided. The view of High Court represents the correct position in law. It is further contended that the residents in the area are compelled to pay toll even for using the old national highway, which branches of just a little distance being travelled after crossing the toll. Ideally and legally, the plaza ought to have been located on the construction, which is made after the road branches of as a bypass. The location of toll plaza at km 194, results in persons, who do not use the new bypass, also being called upon to pay the toll. This is impermissible, besides being unfair. 18. He drew out attention to the definition of the words Executing Authority in Rule 2(f), wherein it is defined to mean an Officer or Authority notified by the Central Government Under Section 5 of the Act (National Highways Act, 1956). 19. The National Highways Authority of India Act, 1988, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf for services or benefits rendered in relation to the use of ferries, [permanent bridges the cost of construction of each of which is more than rupees twenty-five lakhs and which are opened to traffic on or after the 1st day of April, 1976,] temporary bridges and tunnels on national highways [and the use of Sections of national highways]. Rule 7.(2) Such fees when so levied shall be collected in accordance with the Rules made under this Act. 23. It will be noticed that the words, and the use of Sections of National Highway , came to be inserted by Act 1 of 1993, with retrospective effect from 23.10.1992. The Rules, contemplated Under Section 7, are the Rules and they came into force on 05.12.2008. 24. The Rules were in supersession of the National Highways (Collection Of Fees By Any Person For The Use Of Section Of National Highways/Permanent Bridge/ Temporary Bridge On National Highways) Rules, 1997, inter alia. Under the Rules of 1997, Section 2(b) defined as follows: Rule 2(b). 'Section of national highway/permanent bridge/temporary bridge' means that length of national highway/permanent bridge/temporary bridge on national highway notified by Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase may be, where a service road or alternative road is available in lieu of the said national highway, permanent bridge, by-pass or tunnel: Provided further that where service road or alternative road is available and the owner, driver or the person in charge of a two-wheeler is making use of the Section of national highway, permanent bridge, by-pass or tunnel, as the case may be, he or she shall be charged fifty per cent of the fee levied on a car. Explanation I.-For the purposes of this rule,-- (a) alternative road means such other road, the carriageway of which is more than ten meters wide and the length of which does not exceed the corresponding length of such Section of national highway by twenty per cent thereof; (b) service road means a road running parallel to a Section of the national highway which provides access to the land adjoining such Section of the national highway. (Emphasis supplied) 28. Rule 4 deals with the base rate of fee. It goes on, in careful detail, to provide for the Regulation of the fee. 29. Rule 5 deals with Annual Revision of the rate of fee. Rule 6 deals with Collection of Fee. Rule 6 reads, inter alia, as follows: Rule 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government or the executing authority, as the case may be. 32. Rule 17 deals with Bar for installation of additional barrier and needs to be noticed; this is the framework we may also notice: Rule 17-No barrier shall be installed at any place, other than at the [fee plaza], except with the prior permission in writing of the Central Government or the executing authority, as the case may be, who after being satisfied that there is evasion of fee, may allow on such terms and conditions as it may impose, the installation of such additional barrier by the Central Government, the executing authority or the concessionaire, as the case may be, within ten kilometres from the [fee plaza], to check the evasion of fee: Provided that the Central Government or the executing authority, as the case may be, may, at any time, for reasons to be recorded in writing, withdraw such permission: Provided further that where the Central Government or the executing authority, as the case may be, do not allow installation of an additional barrier by the concessionaire, the reasons for such refusal shall be communicated to such concessionaire within a reasonable period. BRIEF LOOK AT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards east. En route, it passes through existing bypass from Patna City to Didarganj, Sabbalpur, Fatehganjpur, Kachi Dargah, Fatua, Baikatpur and Ghoswari. At km. 182+500 it crosses railway line (Patna-Gaya section) through a 2-lane ROB. Near to this ROB, NH-83 starts and proceeds toward south direction (towards Gaya). From km 180.0 to km 190.0 of bypass Section there is a very congested stretch due to the presence of Transport Nagar, residential buildings commercial activity. Further NH-30 intersects with NH-19 at km 188+500. At km 188+800, SH-1 starts from the Patna bypass and traverses towards south (towards Masaurhl). From km 190 km to km 195 of bypass Section there is agricultural land on both side of road. At km. 195+750, it further crosses railway line (Patna-Kolkata section) through a newly built 4-lane ROB. Further it traverses through Didarganj (km. 197). Thereafter upto km 210 of NH 30 road is passing through commercial residential settlement area. Near Didarganj (km 197) Kachhi Dargah (Km 200) Fatua town (km 205) road is passing through heavily congested area. There is a major bridge crossing over Punpun river near km 203.8. From km 210 to km 226, NH-30 is passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are seen provided at 182.55 km, 188.47 km, 207.4 km and 231.4 km. There are bridges, major and minor, also contemplated. ANALYSIS THE IMPACT OF THE DPR 39. The fact that the DPR was not challenged by the Writ Petitioners, cannot by itself, pose a hurdle in the allowing of the writ petition. It is, admittedly, a study with recommendations. Therefore, it constitutes the opinion of the Expert Body at best. However, what it does mean, is that, the court can proceed on the basis of the facts, which are brought out in the Report, and in the absence of a challenge to the same, proceed on the basis that, they are correct. In fact, the only case of the Writ Petitioners in this regard, is that, after the preparation of the Report, certain developments took place, but which are in the form of constructions which were made. Equally, the fact that the Report was not challenged, would allow the court to acknowledge that there was, indeed, a study by an Expert Body. More pertinently, the Expert Body did recommend the location of the toll plaza at km 194. Equally, there is nothing expressly stated that the location is justified with reference to the second proviso to Rule 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore,commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so. The Court, however, did not apply the test to the case before it. 43. In a different context, the question again arose before this Court in Union of India and Ors. v. E.G. Nambudiri AIR 1991 SC 1216 : (1991) 3 SCC 38. The Respondent was communicated certain adverse remarks. His representation, being rejected, he moved the President of India. He received partial relief but some of the adverse remarks were not expunged. One of the contentions taken was that the President was ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphasis supplied) 44. Again, in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and Ors. (1991) 2 SCC 716, the question arose about the duty to give reasons in the following factual matrix. The Appellant, in the said case, conducted examinations. It was found that the moderators marksheets, relating to certain examinees, were tampered with. The results were withheld. An inquiry was conducted through seven Inquiry Officers, who proceeded to conduct an inquiry. The inquiry itself involved issuing notices to the students, inter alia. The Inquiry Officer submitted reports finding that the moderators marksheets had been fabricated. The students challenged the action of the Authority to withhold the results, as a measure ofpunishment, accepting the Inquiry Report. Dealing with the argument that no reasons were recorded by the Inquiry Officers, this Court held as follows: 20. Unless the Rule expressly or by necessary implications excludes recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure. In an administrative decision, its order/decision itself may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court Under Article 226 or the appellate jurisdiction of this Court Under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person. 22. From this perspective, the question is whether omission to record reasons vitiates the impugned order or is in violation of the principles of natural justice. The omnipresence and omniscience (sic) of the principle of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play. But the applicability of the principles of natural justice is not a Rule of thumb or a strait-jacket formula as an abstract proposition of law. It depends on the facts of the case, nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances. It is seen from the record and is not disputed, that all the students admitted the factum of fabrication and it was to his or her advantage and that the subject/subjects in which fabrication was committed belong to him or her. In view of these admissions the Enquiry Officer obviously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its order Under Sub-section (1) in respect of any immovable property to be served on the transferor . It is, therefore, inconceivable that the order which is required to be served by the appropriate authority Under Sub-section (2) would be the one which does not contain the reasons for the passing of the order or is not accompanied by the reasons recorded in writing. It may be permissible to record reasons separately but the order would be an incomplete order unless either the reasons are incorporated therein or are served separately along with the order on the affected party. We are, of the view, that reasons for the order must be communicated to the affected party. (Emphasis supplied) 47. In Sarat Kumar Dash and Ors. v. Biswajit Patnaik and Ors. 1995 Supp (1) SCC 434, this Court rejected the argument that when promotion was to be made on the basis of merit-cum-suitability basis, with due regard to seniority, it was incumbent on the Public Service Commission to give reasons for its recommendations. It was also found not necessary for the Government, which accepted the recommendation, to give reasons. In the course of itsopinion, this Court observed that natural justice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved, stakeholders, form and substance of the decision etc. The list is not exhaustive for the simple reason that drawing a conclusion of non-application of mind from mere absence of reasons is a matter of pure inference and the same cannot be drawn until and unless other circumstances too point in the same direction. ... (Emphasis supplied) 50. Thereafter, the Court, in Rajeev Suri (supra), relied upon the judgment in E.G. Nambudiri (supra): Thereafter it held: 293. Had it been a case of any other administrative committee required to adjudicate upon the rights of individuals, merely because it is not mandatory to record reasons would not absolve it of the requirement of objective consideration of the proposal. The ultimate enquiry is of application of mind and a reasoned order is merely one element in this enquiry. In a given case, the Court can still advert to other elements of the decision-making process to weigh the factum of application of mind. The test to be applied in such a case would be of a reasonable link between the material placed before the decision-making body and the conclusion reached in consideration thereof. The Court may decide in the context of overall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ordinarily there is no requirement to be accompanied by a statement of reasons unless there is an express statutory requirement in that regard. Again, in Sarat Kumar Dash, the Court observed that in the field of administrative action, the reasons are link between maker of the order or the author of the decision and the order itself. The record can be called to consider whether the author had given due consideration to the facts placed before him before he arrives at the decision. 295. Therefore, the requirement of reasons in cases which do not demand it in an express manner is based on desirability and the same is advised to the extent possible without impinging upon the character of the decision-making body and needs of administrative efficiency. (Emphasis supplied) 51. In England, the Courts have not recognised a general duty on the part of the Administrator to perform administrative functions to give reasons. 52. In Regina v. Secretary of State for the Home Department (Original Appellant and Cross-Respondent) ex parte Doody (A.P.) (1994) 1 A.C. 531, the Court, inter alia, had to consider the question, as to whether, if in regard to a prisoner convicted for murder, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venient, but I can see no ground at all why it should be against the public interest: indeed, rather the reverse. This being so, I would ask simply: Is refusal to give reasons fair? I would answer without hesitation that it is not. As soon as the jury returns its verdict the offender knows that he will be locked up for a very long time. For just how long immediately becomes the most important thing in the prisoner's life. ... (Emphasis supplied) The Court finally declared that the Secretary of State was obliged to give reasons for departing from the period recommended by the judiciary as the period which he was to serve for the purpose of retribution and deterrence. 54. This view has been reiterated in a planning case, which came to be decided in the year 2017 in Dover District Council v. CPRE Kent NU (2017) UKSC 79. The question, which actually arose was, when the Local Planning Authority granted permission for a controversial development against the advice of its own Professional Advisor, whether it was under a duty to state reasons for its decision. The Court, inter alia, held as follows: 51. Public authorities are under no general common law duty to give reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces where the objective is not achieved by other means, there should be no objection to the common law filling the gap. 55. In Regina v. Higher Education Funding Council Ex parte Institute of Dental Surgery [1994] 1 WLR 242, the applicant, an educational institution, sought judicial review to quash the decision of the Funding Council, to place the Applicant at Level 2, for the purpose of determining the grant for research for 1993-1994. Failure by the Council to provide reasons, was canvassed by the applicant. The Court held, inter alia, as follows: In summary, then: (1) there is no general duty to give reasons for a decision, but there are classes of case where there is such a duty. (2) One such class is where the subject matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reasons, at least for particular decisions, be given as of right. (3) (a) Another such class is where the decision appears aberrant. Here fairness may requirereasons so that the recipient may know whether the aberration is in the legal sense real (and so challengeable) or apparent; (b) it follows that this class does not include decisions which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion-makers to give reasons? We noted at the outset of this chapter that the starting-point of English law is that no such duty exists, albeit that certain circumstances may trigger a requirement to give reasons. The concerns which underlie the reluctance of English law to embrace a general duty were summarized in the following terms by the JUSTICE-All Souls Committee in their report, Administrative Justice: Some Necessary Reforms (Oxford 1988) at 70-71: a) Efficient administration requires free and uninhibited discussion among decision-makers, unimpeded by considerations of what can or cannot be made public subsequently. b) A general requirement of reasons will impose an intolerable burden on the machinery of government. c) Delays in the handling of business will inevitably follow and additional expense will be caused. The public at large will suffer. The benefit will not match the cost. d) The imposition of a general duty will have far-reaching implications for central government, local government, and for many other bodies of a public or semi-public character Many more decisions will be opened up to the possibility of legal challenge and a further step down the road ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iced by the Bench of three Judges in M/s. Mahabir Jute Mills Ltd., Gorakhpur (supra), there is no general duty, when an administrative decision is taken, to give reasons. A Statute may, however, explicitly provide that the Executive Authority must provide reasons and it must be recorded in writing. A case in point is the first proviso to Rule 8 of the Rules itself. The desirability of a general duty, in the case of administrative action to support decisions with reason, is open to question. One of the most important reason is, the burden it would put on the administration. It is apposite, at this juncture, to notice that administrative decisions are made in a wide spectrum of situations and contexts. The executive power of the Union and States are provided in Articles 73 and 162 of the Constitution of India, respectively. Undoubtedly, in India, every state action must be fair, failing which, it will fall foul of the mandate of Article 14. It is, at this juncture, we may also notice that the duty to give reasons, would arise even in the case of administrative action, where legal rights are at stake and the administrative action adversely affects legal rights. There may be something ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out any rationale. But here again, in the absence of the duty to record reasons, the court is not to be clothed with power to strike down administrative action for the mere reason that no reasons are to be found recorded. In certain situations, the reason for a particular decision, may be gleaned from the pleadings of the Authority, when the matter is tested in a court. From the materials, including the file noting's, which are made available, the court may conclude that there were reasons and the action was not illegal or arbitrary. From admitted facts, the court may conclude that there was sufficient justification, and the mere absence of reasons, would not be sufficient to invalidate the action of the Public Authority. Thus, reasons may, in certain situations, have to be recorded in the order. In other contexts, it would suffice that the reasons are to be found in the files. The court may, when there is no duty to record reasons, support an administrative decision, with reference to the pleadings aided by materials. AN OFFICE MEMORANDUM AND A DIRECTION 63. The Writ Petitioners have produced Office Memorandum dated 5th September, 2017 and communication dated 2nd Nov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 2017, it is directed as follows: Para 3. However, it has been observed that on several occasions the user fees plazas are being established in deviation to the provisions of NH Fee Rule 2008, and subsequently approval of the Competent Authority is being sought on various grounds. Para 4. In this regard, it has been decided that guidelines as below are to be followed for establishment of user fees plazas in all the projects under implementation as well as those in the planning stage: (i) For all National Highways Project, that have been awarded post 5th September, 2017, the guidelines specified vide NH-37012/0/2016-H dated 05.09.2017 shall be scrupulously followed. (ii) As a one-time measure, all the fee plazas, established in deviation to Rule 8 of NH Fee Rule 2008, may be notified as temporary fee plazas, with the condition that the Executing Agency shall relocate the fee plaza as per the provisions of the Rule within a period of two years. (iii) All the Executing Agencies shall ensure that, for the projects currently under execution, establishment of user fee plazas must be in conformity to NH Fee Rule 2008, and amendments there-to from time to time. (iv) Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocal town area limits. The further important sine qua non for the exercise of the discretionary power conferred on the Executing Authority, is that, the Executing Authority must record reasons in writing at the time when he exercises the power to locate or permit the Concessionaire to locate the toll plaza within the distance as already mentioned. 67. Moving forward to the second proviso, it commences with the words provided further . Therefore, for all intents and purposes and at first blush, it is a proviso. More about it, a little later. Continuing the narrative, the second proviso, as it is described, consists of the following features. If a Section of the national highway, permanent bridge, bypass or tunnel, is constructed within the municipal or town area limits, then, the toll plaza may be established within the municipal or town area limits. This is subject to the only requirement that the construction of the Section of national highway, permanent bridge, bypass or tunnel, whichever may be the case, is constructed within the municipal or town area limits, primarily for the use of residents of such municipal or town area limits. If the aforesaid two requirements are fulf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he toll plaza under the second proviso, stands vested with. In other words, unlike the main Rule and the first proviso, the Rule-maker has not indicated the person or Authority, who is to decide. Lastly, we must notice that, unlike the first proviso, the second proviso does not contemplate that the reasons for exercising the discretionary power, is to be recorded in writing. 71. It would be apposite to enquire into the rationale, why the requirement of reasons being recorded, is not incorporated in the second proviso. The answer is not far to seek. The first proviso does not provide any condition precedent for locating a toll plaza at a distance of less than 10 kilometres but 5 or more kilometres from the municipal or local town area limits. The requirement is the recording of reasons. No other guidance is forthcoming. In fact, the only check on the power to relax the rigour of the Rule, that the toll plaza must be located at a distance of more than 10 kilometres from the municipal or local town area limits, are two in number. Firstly, the power is located only with the Executing Authority. Secondly, the Executing Authority is obliged, in law, to give reasons, which must be reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows, it must be given such wider effect. 74. Lush, J., observed in Mullins v. Treasurer of Survey 1880 QBD 170, when one finds a proviso to a section, the natural presumption is that, but for the proviso, the enacting part would have included the subject matter of the proviso. The general Rule is that, the function of the proviso is to qualify or provide an exception to the main provision to which it is a proviso. It can be a guide to glean the purport of the provision, in case there is ambiguity in the main provision. Ordinarily, the proviso is not permitted to operate beyond the ken of the main provision to which it is a proviso. At the same time, proviso, in a case, may be a substantive provision. In other words, having regard to the wording and the object sought to be achieved, a proviso may transcend its ordinary province and may be intended to operate as a substantive provision [See in this regard Commissioner of Commercial Taxes, Board of Revenue, Madras and Ors. v. Ramkishan Shrikishan Jhaver etc. AIR 1968 SC 59, which is being relied upon in Indore Development Authority v. Manoharlal and Ors. 2020 (8) SCC 129.]. These are well settled principles and we do not intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nicipal limits. This is again a factual matter. We may also find that the second proviso does not compel the Authority to locate the plaza within the municipal or town area limits. It is a matter of discretion to be exercised, no doubt, taking into consideration the maximization of toll collection also and avoiding of leakage of toll, bearing in mind the fact that the Concessionaire is permitted to collect the toll only for the period of the Concessionaire Agreement Under Rule 16. To show application of mind, there must be material. Even in the absence of reasons, recorded as such, there must be proper pleadings with materials, unless facts are not in dispute. WHETHER INVOCATION OF THE SECOND PROVISO TO RULE 8 IN THE FACTS ILLEGAL? 78. Though originally, the Ministry of the Road Transport and Highways (MoRTH), proposed upgradation of the existing two-lane stretch from Patna to Bakhtiyarpur to four/six-lane highway based on the appraisal notes of the Planning Commission and DEA, the Patna-Bakhtiyarpur project received final approval for the development of the stretch as a four-lane highway. This is evident from the record note of discussion of the meeting of the Public Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to with the highest bidder, i.e., PBTC, on 31.03.2011. The Agreement provided, inter alia, for the toll plaza being located at 194 km. Work was apparently in progress, when the Writ Petitions came to be filed. 81. We may further notice from the Executive Summary of the Detailed Project Report. It reads as under: The Project Road (National Highway -30) From km 180.0 to km 190.0 of bypass Section there is a very congested stretch due to the presence of Transport Nagar, residential buildings commercial activity. Further NH-30 intersects with NH-19 at Km 188+500. At Km. 188+800, SH-1 starts form the Patna bypass and traverses towards south (towards Masaurhi). From km 190 to km 195 of bypass Section there is agricultural land on both side of road. At Km. 195+750, it further crosses railway line (Patna-Kolkata section) through a newly built 4-lane ROB. Further it traverses through Didarganj (Km. 197). The stretch of NH-30 on new bypass and from Didarganj ROB (Km 196) to Fatua (Km 208) is very congested with local and thorough traffic all along. However, while new bypass area upto Didarganj has available ROW of 60m for widening to 4/6 laning, the area between Didarganj to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project road passes through the municipal limits. 83. The DPR would show that the construction of the project road and other roads, will bring about greater circulation of traffic in the area. In other words, it means that, the project road which begins from 181.300 kms, which was a two-lane road was widened to a four-lane road and the project road ends at 231 kms, where NH30 meets NH31. The Project Report also makes it clear that from km 180 to km 190 of the bypass section, there is a very congested stretch. From km 190 to km 195, it is further stated that there is agricultural land on both sides. Didardanj is located even further to the east, and still further is, Fatua town. Construction of the bypass in that area, was found to be impracticable and it is accordingly that from 196 kms, the new alignment towards the south, was carried out. The Project Report further reveals that the project road is only 50 kilometres long. Only one toll plaza could be provided. In this regard, Rule 8(2) contemplates the distance of 60 kilometres between two toll plazas. The Project Report further reveals that the NHAI Officials were available at the site along with the persons who prepared the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, is emphasised by the Writ Petitioners, to show the non-application of minds. We must, in this regard, bear in mind the nature of the lis, as also the rights of the Writ Petitioners. The High Court did not find any Fundamental Rights with the writ Petitioners in the matters. The only issue is relating to violation of Rule 8. We have already found that upon the satisfaction of the objective criteria laid down in the second proviso, construction of the toll plaza, as provided therein, is permissible. Apart from the statement of the Writ Petitioners themselves, that the road is a national highway and it is merely for the use of the local residents, the undeniable fact is that, in place of the two-lane road, after a huge investment, it was upgraded to a four-lane road and nearly 14 kilometres of the project road, indisputably, passed through the municipal limits and the most important beneficiary of the said construction, can clearly be stated to be the residents in the municipal area. The project road, did enure chiefly to the residents of the Patna Municipality. The road from 180 to 190 kms was found to be a very congested stretch. The construction of the widened road, undoubtedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was construction of a National Highway partly within the municipal limits. RULE 17; CLOSING OF SERVICE ROADS 88. Rule 17 permits additional barriers to prevent evasion of fees at the toll plaza. At places, other than at the toll plaza , with prior permission of the Central Government or Executing Authority, additional barriers are permitted but within 10 kilometres from the toll plaza. We notice these provisions to pronounce on the complaint of the Writ Petitioners that there is blocking of the service roads near the toll plaza. We make it clear that barriers shall be permissible only in compliance with Rule 17 of the Rules. IMPACT OF APPELLANTS NOT CHALLENGING JUDGMENT IN WRIT PETITION NO. 4526 OF 2013 89. The further question to be considered, is the effect of Appellant not challenging the Judgment rendered in the Writ Petition No. 4526 of 2013, filed by one Ritesh Ranjan Singh. The said Petitioner filing the Writ Petition, was filing it as Public Interest Litigation and it was so treated. It was, however, made over to learned Single Judge, who heard it along with Writ Petition No. 5643 of 2012. We have already noted, in first paragraph of this judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the High Court is rendered ineffective not only in one case but in all cases. 24. A writ or an order in the nature of mandamus has always been understood to mean a command issuing from the Court, competent to do the same, to a public servant amongst others, to perform a duty attaching to the office, failure to perform which leads to the initiation of action. In this case, the Petitioners-Appellants assert that the mandamus in their case was issued by the High Court commanding the authority to desist or forbear from enforcing the provisions of an Act which was not validly enacted. In other words, a writ of mandamus was predicated upon the view that the High Court took that the 1979 Act was constitutionally invalid. Consequently the Court directed the authorities under the said Act to forbear from enforcing the provisions of the Act qua the Petitioners. The Act was subsequently declared constitutionally valid by this Court. The Act, therefore, was under an eclipse, for a short duration; but with the declaration of the law by this Court, the temporary shadow cast on it by the mandamus disappeared and the Act revived with its full vigour, the constitutional invalidity held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners that the decision to locate site of toll plaza at 194 kilometre is arbitrary. Under Article 14 of the Constitution, no State action can pass muster, if it is found to be arbitrary. But, then, a different or even an incorrect decision, would not make an otherwise lawful decision vulnerable to judicial scrutiny. An arbitrary decision would be one which is bereft of any rationale or which is capriciously wrong, and not merely an erroneous view, in the perception of the Court. Any other view would tantamount to substituting its view for that of the Authority. Judged by the said standard, and also the nature of dispute, it cannot be held that toll plaza, having been located at a point where there was sufficient space and which would prevent the leakage of traffic, and also noticing that stretch itself consisted of a little over 50 kilometres, quite clearly, the case based on arbitrariness, is only to be repelled. 95. We have found that the Executing Authority is the Competent Authority to take decision under the second proviso to Rule 8 of the Rules. We, no doubt, have found, there is no duty to record reasons. In paragraph-77 of our Judgment, we have explained the duty of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
