# Rahul Upadhyay v. Union of India & Ors

- **Citation:** (2015) 2 ILRA 682
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-18
- **Case number:** C.M.W.P. No. 6976 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-upadhyay-v-union-of-india-ors-43277
- **Pages:** 5

## Headnote

of Rates and Collection) Rules 2008-Rule
3(1)-Exemption on imposition toll feeissued by notification dated 02.01.2015state government under agency of union
government
executed
contract
on
29.03.2014 for three years-whether such
notification
of
exemption
applicable
retrospectively-?-held-'No'.
Held: Para-8
In other words, the exemption is with
prospective effect, from the date of
notification. The fact that the petitioner
has an existing contract would not result
in
the
notification
becoming
retrospective. It is
trite law that an
instrument of a statutory character does
not
become
retrospective
merely
because it may operate on some events
which may have taken place in the past.
No accrued rights have been taken away.
The contract provides that it is capable
of being terminated. Its term can be
curtailed.
(B)National highways fee (determination
of rates and collection)Rules 2008 Rule
3(1)-Right of contractor to collect toll fee
in
term
of
contract
executed
on
29.03.2014
for
3
years-exemption
notification
having
applicability
with
prospective
effect-whether
can
be
enforced under writ jurisdiction?-held-
'No'-in view of clause 17 schedule I of
contract-petitioner to invoke arbitration
clause-no reason to entertain the petition.
Held: Para-9
Basically, the petitioner is a collection
agent for the State for collecting the toll
on the use of the bridge under the terms
of the contract. At the highest, the
contractor can have a grievance that as a
result of the exemption which has been
granted
in
exercise
of
the
power
conferred by the proviso to Rule 3 (1) of
the Rules of 2008, the petitioner has
been deprived of the benefit of the
collection of the toll which would have
otherwise been permissible under the
terms of the contract. This is a grievance
which is redressable and quantifiable in
monetary terms. Such a contract cannot be
enforced by specific performance. The
claim of the petitioner would sound in
damages for which an arbitral remedy is
provided in Clause 17 of Schedule I of the
contract dated 29 March 2014. We,
accordingly, leave it open to the petitioner
to invoke arbitration by adopting suitable
proceedings in accordance with law.

## Text

682
 INDIAN LAW REPORTS ALLAHABAD SERIES
16. In view of the finding that Section
3(2)(v) of the Atrocities Act is not
applicable,
the sentence provided in
Section 376(2)(f), IPC does not per se
become life sentence."
17. Hon'ble Supreme Court in
Ramdas v. State of Maharashtra, (2007) 2
SCC 170 has held as under:
"11. At the outset we may observe that
there is no evidence whatsoever to prove the
commission of offence under Section 3(2)(v)
of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989.
The mere fact that the victim happened to be
a girl belonging to a Scheduled Caste does
not attract the provisions of the Act. Apart
from the fact that the prosecutrix belongs to
the Pardhi community, there is no other
evidence on record to prove any offence
under the said enactment. The High Court
has also not noticed any evidence to support
the charge under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 and was perhaps persuaded to
affirm the conviction on the basis that the
prosecutrix belongs to a Scheduled Caste
community. The conviction of the appellants
under Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 must, therefore, be set
aside."
18. On the basis of above discussion
it is explicitly clear that charged offence
of rape had not been committed because
victim-complainant was a member of
SC/ST community. This offence appears
to had been committed only for satisfying
the lusty desire of appellant. In such a
case offence punishable under section
3(2)(v) of Scheduled Castes or Schedule
Tribes Act has not been committed.
Therefore the finding of of trial Court
holding the appellant guilty for the
offence under SC/ST Act is erroneous and
is hereby set aside.
19.
Accordingly this appeal is partly
allowed. The punishment awarded to
appellant, in in Special S.T. No. 80 of 2002
(arising out of crime no. 40 of 2001) State v.
Santosh Mishra, p.s. Shivrajpur, Kanpur
Dehat passed by the Court of Addl. Sessions
Judge/ Spl. Judge (SCST Act), Kanpur
Dehat is amended. The appeal is confirmed
for the conviction and punishment of charge
u/ss 323, 376, 504, 506 IPC. But the
conviction and punishment for the charge u/s
376 IPC read with section 3(2)(v) of
Scheduled Castes or Schedule Tribes Act is
set aside and accused-appellant is acquitted
of the said charge. All sentences would run
concurrently
and
the
period
already
undergone in jail by accused-appellant in this
case will be adjusted in his punishment.
20. The copy of this judgment be
sent to concerned Superintendent Jail
Superintendent and also to Sessions
Judge,
Kanpur
Dehat
for
ensuring
compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
C.M.W.P. No. 6976 of 2015
Rahul Upadhyay
...Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Sri W.H. Khan, Sri J.H. Khan, Sri Gulrej
Khan
2 All] Rahul Upadhyay Vs. Union of India & Ors.
683
Counsel for the Respondents:
C.S.C., A.S.G.I./2015/0253, Sri Pankaj
Mehrotra
(A)National Highways fee (Determination
of Rates and Collection) Rules 2008-Rule
3(1)-Exemption on imposition toll feeissued by notification dated 02.01.2015state government under agency of union
government
executed
contract
on
29.03.2014 for three years-whether such
notification
of
exemption
applicable
retrospectively-?-held-'No'.
Held: Para-8
In other words, the exemption is with
prospective effect, from the date of
notification. The fact that the petitioner
has an existing contract would not result
in
the
notification
becoming
retrospective. It is
trite law that an
instrument of a statutory character does
not
become
retrospective
merely
because it may operate on some events
which may have taken place in the past.
No accrued rights have been taken away.
The contract provides that it is capable
of being terminated. Its term can be
curtailed.
(B)National highways fee (determination
of rates and collection)Rules 2008 Rule
3(1)-Right of contractor to collect toll fee
in
term
of
contract
executed
on
29.03.2014
for
3
years-exemption
notification
having
applicability
with
prospective
effect-whether
can
be
enforced under writ jurisdiction?-held-
'No'-in view of clause 17 schedule I of
contract-petitioner to invoke arbitration
clause-no reason to entertain the petition.
Held: Para-9
Basically, the petitioner is a collection
agent for the State for collecting the toll
on the use of the bridge under the terms
of the contract. At the highest, the
contractor can have a grievance that as a
result of the exemption which has been
granted
in
exercise
of
the
power
conferred by the proviso to Rule 3 (1) of
the Rules of 2008, the petitioner has
been deprived of the benefit of the
collection of the toll which would have
otherwise been permissible under the
terms of the contract. This is a grievance
which is redressable and quantifiable in
monetary terms. Such a contract cannot be
enforced by specific performance. The
claim of the petitioner would sound in
damages for which an arbitral remedy is
provided in Clause 17 of Schedule I of the
contract dated 29 March 2014. We,
accordingly, leave it open to the petitioner
to invoke arbitration by adopting suitable
proceedings in accordance with law.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, J.)
1. The petitioner has sought to
challenge the legality of a notification
issued by the Union Government in the
Ministry
of
Road
Transport
and
Highways on 2 January 2015 in exercise
of the power conferred by Rule 3 of the
National Highways Fee (Determination of
Rates and Collection) Rules, 20081. By
the notification, the Central Government
has exempted eight bridges in the State of
Uttar Pradesh from the levy of a user fee.
The bridge in question to which the
petition relates is at serial number four
and is described as Tons (Katka-Setu) at
Kilometer 430 of NH-76E (35). A
contract was entered into between the
petitioner and the State Government
acting as an agency of the Union
Government on 29 March 2014 for the
collection of a fee for a period of three
years from 1 April 2014 to 31 March
2017. The Union Ministry of Road
Transport
and
Highways
issued
a
notification on 2 January 2015 exempting
the imposition of the levy of a user fee on
eight bridges including the bridge covered
by the contract to the petitioner. The
power has been exercised under the Rules
of 2008.
684
 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Rule 3 (1) provides as follows:
"3. Levy of fee. - (1) The Central
Government may by notification, levy fee
for use of any section of national
highway, permanent bridge, bypass or
tunnel forming part of the national
highway, as the case may be, in
accordance with the provisions of these
rules:
Provided
that
the
Central
Government may, by notification, exempt
any
section
of
national
highway,
permanent bridge, bypass or tunnel
constructed through a public funded
project from levy of such fee or part
thereof, and subject to such conditions as
may be specified in that notification."
3. Two submissions have been urged
on behalf of the petitioner. The first is
based on the proviso to sub-section (3) of
Section 7 of the National Highways Act,
1956. Section 7 provides as follows:
"7. Fees for services or benefits
rendered on national highways. - (1) The
Central government may, by notification
in the Official Gazette, levy fees at such
rates as may be laid down by rules made
in this behalf 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 1
April 1976, temporary bridges and tunnels
on national highways and the use of
sections of national highways.
(2) Such fees when so levied shall be
collected in accordance with the rules
made under this Act.
(3) Any fee leviable immediately
before the commencement of this Act for
services or benefits rendered in relation to
the use of ferries, temporary bridges and
tunnels on any highway specified in the
Schedule shall continue to be leviable
under this Act unless it is altered in
exercise of the powers conferred by subsection (1):
Provided
that
if
the
Central
Government is of opinion that it is
necessary in the public interest so to do, it
may, by like notification, specify any
bridge in relation to the use of which fees
shall not be leviable under this subsection."
4. The submission is that the proviso
which is extracted above under which the
Central Government has been empowered to
exempt the payment of fees in public interest
leviable on any bridge is a proviso which
applies to the entire Section 7 and not only to
Section 7 (3). The second submission is that
the notification which has been issued on 2
January 2015 cannot apply retrospectively to
contracts which were executed prior to the
date of notification and hence, to that extent
it is ultra vires in so far as it affects accrued
rights.
5. Under Section 7 (1), the Union
Government has been empowered to levy
fees at such rates as may be prescribed by
rules made in that behalf for services or
benefits rendered inter alia in relation to
the use of ferries and permanent bridges
the cost of construction of each of which
is in excess of rupees twenty-five lakhs
and which are opened to traffic on or after
1 April 1976, as well as temporary
bridges and tunnels on national highways.
Sub-section (3) deals with fees leviable
immediately before the commencement of
the Act for services or benefits rendered
in relation to the use of ferries, temporary
bridges and tunnels on any highway
2 All] Rahul Upadhyay Vs. Union of India & Ors.
685
specified in the Schedule. These fees under
sub-section (3) were to continue to be
leviable under the Act unless and until they
were altered in exercise of the powers
conferred by sub-section (1). The proviso
which follows is evidently a proviso to subsection (3) of Section 7. This is evident from
two aspects. The first is the plain language of
the proviso which stipulates that the Central
Government may, if it is of the opinion that it
is necessary in public interest to do so,
specify that fees shall not be leviable "under
this sub-section" on any bridge specified.
The expression "under this sub-section" is in
reference to sub-section (3). Secondly, the
proviso which is preceded by a colon. A
colon in grammatical use is a punctuation
which is associated with what immediately
precedes it. Hence, there would be no merit
in the submission that the proviso qualifies
the entire Section 7.
6. The power which has been
exercised by the Central Government is
under the proviso to Rule 3 (1) of the
Rules of 2008 under which the Central
Government has been empowered to issue
a notification exempting any section of a
national highway, permanent bridge,
bypass or tunnel constructed through a
public funded project from the levy of
such fee or part thereof.
7. The second submission is that the
power to issue a notification under the
proviso to Rule 3 (1) of the Rules of 2008
has been exercised retrospectively by
taking away accrued rights and hence, is
unlawful.
8. We find no element of
retrospectivity in the notification dated 2
January 2015. The notification expressly
states that the Central Government
"hereby exempt" all eight bridges in the
State of Uttar Pradesh mentioned in the
notification from the levy of a user fee. In
other words, the exemption is with
prospective effect, from the date of
notification. The fact that the petitioner
has an existing contract would not result
in the notification becoming retrospective.
It is trite law that an instrument of a
statutory character does not become
retrospective merely because it may
operate on some events which may have
taken place in the past. No accrued rights
have been taken away. The contract
provides that it is capable of being
terminated. Its term can be curtailed.
9. That leads to the Court to the
basic question as to the remedy which is
available to a contractor, such as the one
in the present case, who claims to have a
contract for the collection of a toll. In the
contract which has been entered into
between the petitioner and the State on 29
March 2014, there is an arbitration
agreement in Clause 17 of Schedule I of
the contract. Basically, the petitioner is a
collection
agent
for
the
State
for
collecting the toll on the use of the bridge
under the terms of the contract. At the
highest, the contractor can have a
grievance that as a result of the exemption
which has been granted in exercise of the
power conferred by the proviso to Rule 3
(1) of the Rules of 2008, the petitioner has
been deprived of the benefit of the
collection of the toll which would have
otherwise been permissible under the
terms of the contract. This is a grievance
which is redressable and quantifiable in
monetary terms. Such a contract cannot
be enforced by specific performance. The
claim of the petitioner would sound in
damages for which an arbitral remedy is
provided in Clause 17 of Schedule I of the
contract dated 29 March 2014. We,
686
 INDIAN LAW REPORTS ALLAHABAD SERIES
accordingly, leave it open to the petitioner
to invoke arbitration by adopting suitable
proceedings in accordance with law.
10. For these reasons and leaving it
open
to
the
petitioner
to
invoke
arbitration, we see no reason to entertain
the petition, which is, accordingly,
dismissed. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Criminal Misc. Writ Petition No. 8053 of 2015
Jangali Pasi
 ...Petitioner
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Petitioner:
Sri R.S. Shukla
Counsel for the Respondents:
A.G.A.
Constitution of India-Art.-226-Writ petitionscope of interference discussed where
statutory remedy of appeal provided
under Section 18 of U.P. Gangsters and
anti social activities (prevention) Act
1986-against ceasure of property-writ
court
declined
to
interfere-on
two
grounds-discussed.
Held: Para-27 & 28
27. In such a situation if release is
refused, then an appellate forum with
co-extensive powers should be available
and that is what Section 18 purports to
do when it recites the words any order or
judgment. This is analogous to Section
452 of the Cr.P.C. and therefore the
legislature was conscious of also making
a provision that Chapter XXIX will
mutatis mutandis apply.
28. Even though the writ jurisdiction
may
not
be
barred
in
appropriate
matters as held in Badan Singh's case
(supra) but if the statutory remedy of
appeal is available, then filing of writ
petitions stands obviated for at least two
reasons. First that in an appeal all
questions of fact and law can be pleaded,
evidence
led
and
be
adjudicated.
Secondly, ordinarily questions of fact
that may be disputed, cannot be gone
into in the exercise of jurisdiction under
Article 226 of the Constitution.
Case Law discussed:
AIR 1987 Alld. 235; 2013 (8) SCC 368; 2012
(76) ACC page 187; 2001 ALJ page 2852;
2012 (6) ADJ page 231; 2008 (63) ACC page
687; 2015 (1) JIC 435 Alld.; 2010 (3) ADJ
page 69; 2001 Cr.L.J. 949 page 4; 2000 Cr.L.J.
Page 949.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. The petitioner who is a member
of the scheduled caste, has come up
before this Court questioning the order of
the District Magistrate, Kaushambi dated
18.12.2014 arising out of proceedings of
attachment and refusal to release a truck
that had been seized invoking the
provisions of U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986.
The background in which this seizure was
made is to the effect that the petitioner
was implicated in three other criminal
cases, namely, Case Crime No.117 of
2012 under Section 379 IPC r/w Section
136 of the Indian Electricity Act, Case
Crime No.140 of 2012 under Section 379
IPC r/w Section 136 of the Indian
Electricity Act and the third case being
Case Crime No.146 of 2012 under
Sections
399/401
IPC.