# NATIONAL HIGHWAYS AUTHORITY OF INDIA & OTHERS v. MADHUKAR KUMAR & OTHERS

- **Citation:** [2021] 13 S.C.R. 299
- **Court:** Supreme Court of India
- **Decided:** 2021-09-23
- **Case number:** Civil Appeal No. 11141 of 2018
- **Bench:** K.M. Joseph, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/national-highways-authority-of-india-others-v-madhukar-kumar-others-35255
- **Pages:** 65

## Headnote

National Highways Fee (Determination or Rates and
Collection) Rules, 2008 - rr. 3, 8, 9, 17 - Construction of Toll Plaza
- Appellant-NHAI proposed for the construction of Toll Plaza at
the four laning of Patna-Bakhityarpur sectionofNH-30 - According
to the respondent, the appellant-NHAI had not assigned any reason
for establishing the toll plaza within a municipal area and
construction of the same was in violation of Rule 8 - Respondents
filed writ petition before the High Court - The Single Judge of the
High Court allowed the writ petitions and directed to shift the
proposed construction of Toll Plaza from its present location - The
Single Judge of the High Court also found that before taking
decision to construct a toll plaza within 10 km of the municipal
limits, the Executive Authority must assign reasons in writing and
also adhere to the conditions mentioned in the second proviso to
Rule 8 - The Division Bench of the High Court confirmed the order
of the Single Judge of the High Court - On appeal, held: 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 - Rule 8(1) provides that the Executing Authority or the
Concessionaire shall establish toll plaza beyond the distance of 10
km from a municipal or local town area limits - However, the first
proviso engrafts a limitation on the power of the Executing Authority
that the exercise of power under the first proviso, should not result
in the toll plaza being located within 5 km of such municipal or
local town area limits - In exercise of the said discretionary power,
the Executive Authority must record reasons in writing - On the
other hand, on the perusal of the second proviso, it leaves no doubt
that the factum of construction of a section of the national highway,
inter-alia, within the municipal or town area limits, is subject to the
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only condition that it must be primarily for the use of the residents
of such municipal or town area - The second proviso does not
indicate as to, in whom, the power to locate the toll plaza under the
second proviso, stands vested with - Also, the second proviso does
not contemplate that reasons for exercising the discretionary power,
is to be recorded in writing - Thus, the High Court erred in
concluding that the recording of reasons in writing was necessary
- The direction of the High Court, to shift toll plaza, cannot be
upheld and it is liable to be set aside.
Allowing the appeal, the Court
HELD: 1. This Court would hold that as noticed by the
Bench of three Judges in M/s. Mahabir Jute Mills Ltd.,
Gorakhpore, 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,
this Court 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 in the nature or the context,
under which, the administrative action is taken, which may
necessitate the authority b

## Text

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[2021] 13 S.C.R. 299
299
NATIONAL HIGHWAYS AUTHORITY OF INDIA & OTHERS
v.
MADHUKAR KUMAR & OTHERS
(Civil Appeal No(s). 11141 of 2018)
SEPTEMBER 23, 2021
[K.M. JOSEPH AND S. RAVINDRA BHAT, JJ.]
National Highways Fee (Determination or Rates and
Collection) Rules, 2008 - rr. 3, 8, 9, 17 - Construction of Toll Plaza
- Appellant-NHAI proposed for the construction of Toll Plaza at
the four laning of Patna-Bakhityarpur sectionofNH-30 - According
to the respondent, the appellant-NHAI had not assigned any reason
for establishing the toll plaza within a municipal area and
construction of the same was in violation of Rule 8 - Respondents
filed writ petition before the High Court - The Single Judge of the
High Court allowed the writ petitions and directed to shift the
proposed construction of Toll Plaza from its present location - The
Single Judge of the High Court also found that before taking
decision to construct a toll plaza within 10 km of the municipal
limits, the Executive Authority must assign reasons in writing and
also adhere to the conditions mentioned in the second proviso to
Rule 8 - The Division Bench of the High Court confirmed the order
of the Single Judge of the High Court - On appeal, held: 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 - Rule 8(1) provides that the Executing Authority or the
Concessionaire shall establish toll plaza beyond the distance of 10
km from a municipal or local town area limits - However, the first
proviso engrafts a limitation on the power of the Executing Authority
that the exercise of power under the first proviso, should not result
in the toll plaza being located within 5 km of such municipal or
local town area limits - In exercise of the said discretionary power,
the Executive Authority must record reasons in writing - On the
other hand, on the perusal of the second proviso, it leaves no doubt
that the factum of construction of a section of the national highway,
inter-alia, within the municipal or town area limits, is subject to the
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only condition that it must be primarily for the use of the residents
of such municipal or town area - The second proviso does not
indicate as to, in whom, the power to locate the toll plaza under the
second proviso, stands vested with - Also, the second proviso does
not contemplate that reasons for exercising the discretionary power,
is to be recorded in writing - Thus, the High Court erred in
concluding that the recording of reasons in writing was necessary
- The direction of the High Court, to shift toll plaza, cannot be
upheld and it is liable to be set aside.
Allowing the appeal, the Court
HELD: 1. This Court would hold that as noticed by the
Bench of three Judges in M/s. Mahabir Jute Mills Ltd.,
Gorakhpore, 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,
this Court 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 in the nature or the context,
under which, the administrative action is taken, which may
necessitate the authority being forthcoming with rational reasons.
There are other decisions, which essentially belong more to the
realm of executive policy-making, which ordinarily may not require
the furnishing of reasons. The advantages, undoubtedly, of
introducing a reasons driven regime, are as follows. [Para 60]
[343-C-G]
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2. 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
the wide contours of public interest litigation as well, would
receive immeasurable assistance, if the reasons for particular
decisions, are articulated to the extent possible. The giving of
reasons also has a disciplining effect on the Administrator. This
is for the reason that the reasons would capture the thought
process, which culminated in the decision and it would help the
Administrator steer clear of the vices of illegality, irrationality
and also disproportionality. Reasons could help establish
application of mind. Conversely, the absence of reasons may
unerringly point to non-application of mind. The duty to act fairly,
may require reasons to be recorded but the said duty, though
there is a general duty on all state players to act fairly, may have
its underpinnings, ultimately in legal rights. [Para 61][343-G-H;
344-A-C]
3. It is one thing to say that there should be reasons, which
persuaded the Administrator to take a particular decision and a
different thing to find that the reasons must be incorporated in a
decision. The question, relating to duty to communicate such a
decision, would arise to be considered in different situations,
having regard to the impact, which it, in law, law, produces. In
fact, the second proviso to Rule 17 of the Rules, provides not
only for there being reasons, but the reasons for refusal to permit
barricades, must be communicated. If the law provides for a duty
to record reasons in writing, undoubtedly, it must be followed
and it would amount to the violation of the Statute, if it were not
followed. Even if, there is no duty to record reasons or support
an order with reasons, there cannot be any doubt that, for every
decision, there would be and there must be, a reason. The
Constitution does not contemplate any Public Authority,
exercising power with caprice or without 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
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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. [Para 62][344-C-H]
RULE 8 DEMYSTIFIED
4. Rule 8(1) provides that the Executing Authority or the
Concessionaire shall establish toll plaza beyond a distance of 10
kilometres from a municipal or local town area limits. In this
context, it is useful to bear in mind that under Rule 6, fee levied
under the Rules, has to be collected by the Central Government
or the Executing Authority or the Concessionaire at the toll plaza.
The Executing Authority has been defined in Rule 2(f), as an
Officer or Authority notified under Section 5 of the National
Highway Act. It would appear, therefore, that the Executing
Authority, as defined, or the Concessionaire, is empowered to
establish the toll plaza beyond a distance of 10 kilometres from a
municipal or local town area limits. [Para 65][347-B-D]
5. The first proviso contemplates power with the Executing
Authority to locate or allow the Concessionaire to locate a toll
plaza within a distance of 10 km of such municipal or town area
limits. However, the proviso engrafts a limitation on the power
of the Executing Authority in that the exercise of power under
the first proviso, should not result in the toll plaza being located
within 5 kilometres of such municipal or local town area limits. A
closer look at the first proviso will indicate the following features.
Unlike the main Rule, where the power is conferred on the
Executing Authority and the Concessionaire, to locate a toll plaza,
which must, indeed, be more than 10 kilometres from the
municipal or local town area limits, there is no power conferred
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on the Concessionaire to locate a toll plaza within the distance of
10 kilometres. In other words, the Executing Authority is the
only Authority, which can locate or allow the Concessionaire to
locate within a distance of 10 kilometres but not less than 5 km.
In other words, the exercise of power, under the first proviso,
can result in the location of a toll plaza at a distance of five or
more kilometres and below 10 kilometres from the municipal or
local 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. [Para 66][347-D-H]
6. 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 fulfilled, then, the embargo that the toll plaza
must be located beyond 10 kilometres from the municipal or local
town area limits, contained in Rule 8, would cease to apply. Equally,
the second proviso contemplates that, if a section of the national
highway, permanent bridge, bypass or tunnel is located within 5
kilometres from the municipal or town area limits, then, the last
limb of the proviso, would apply, and the toll plaza may be located
within a distance of 5 kilometres from such limits. [Para 67]
[348-A-D]
7. It will be seen that whether the construction of the section
of the national highway, permanent bridge, bypass or tunnel is
constructed within the municipal or town area limits or within 5
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kilometres from such limits, the common requirement for
invoking the power under the second proviso and to locate the
toll plaza, either within the municipal limits or town limits or within
a distance of 5 kilometres from such limit, is that the construction
in question, must be primarily for the use of the residents of such
municipal or town area. [Para 68][348-E-F]
8. Therefore, a perusal of the second proviso leaves this
Court in no doubt, whatsoever that the statutory requirements
to apply the second proviso and to locate a toll plaza within the
municipal or town area limits, is the factum of construction of a
section of the national highway, inter alia, within the municipal or
town area limits, subject to the only condition that it must be
primarily for the use of the residents of such municipal or town
area. It would be noticed further that, unlike the main Rule and
the first proviso, the second proviso does not indicate as to, in
whom, the power to locate the 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, it must also to noticed 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. [Para 70][349-B-D]
9. 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 recorded in writing.
Besides these safeguards, there are no other indispensable
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requirements to reduce the distance, as provided in the Rule.
This is in stark contrast with the purport of the second proviso.
The second proviso deals with a specific situation. We have already
spelt out the requirements. These requirements alone would
justify the location of the toll plaza either within the municipal or
town limits or within a distance of 5 kilometres from such limits.
The requirements are neatly articulated and cast in stone. They
are objective criteria. They become the requirements of the
Statue. If those requirements are met, then, the toll plaza can be
established, relaxing the Rule. [Para 71][349-D-H]
10. In such circumstances, this Court is of the clear view
that the High Court has erred in reading the second proviso in
continuation with the first proviso and thereby concluding that,
even the requirement of the first proviso, viz., the recording of
reasons in writing, would also become necessary to invoke the
power under second proviso. [Para 72][350-A-B]
11. As far as the question, as to who can take a decision
under the second proviso, on a conspectus of Rule 8, that, in the
absence of any express reference to the power to take a decision,
within the meaning of the second proviso, being lodged with any
particular Body, the said power must be found vested with the
Executive Authority. The Court says this for the reason that, some
person must, indeed, take the decision that the situation warrants
locating the toll plaza, in exercise of the power under the second
proviso. This Court certainly cannot lodge that power with a
Concessionaire. The Rule-maker has conferred the power on
the Concessionaire, expressly when it declared in Rule 8, that
the Concessionaire may, apart from the Executing Authority, locate
the toll plaza beyond 10 kilometres from the municipal or town
area limits. The power under the first proviso, is conferred only
upon the Executing Authority. Having regard to the nature of the
power, viz., to locate the toll plaza, in complete contradiction with
the mandate of the Rule, within the municipal area, inter alia, this
Court holds that, the power to take decision under the second
proviso, is lodged with the Executing Authority. [Para 75]
[351-D-H]
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12. To invoke the second proviso, what is required is, the
existence of the conditions, as explained. However, a decision
must be taken. It must be taken by the Competent Authority.
The Authority is the Executing Authority. It must apply its mind
and be convinced that a section of the national highway, inter
alia, is constructed within the municipal or town area limits. This
is a pure question of fact. Secondly, it must conclude that the said
construction is 'primarily' or 'mainly' for the 'use' of the residents
of the municipal limits. This is again a factual matter. 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.
[Paras 76 and 77][352-A-D]
WHETHER INVOCATION OF THE SECOND PROVISO
TO RULE 8 IN THE FACTS ILLEGAL?
14. The appellants definitely set up the case under Rule 8
in both the counter affidavits filed by it. The statement that the
second proviso applies, even if the construction is made within
the municipal limits, is emphasised by the Writ Petitioners, to
show the non-application of minds. This Court 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. This Court has 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
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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,
helped mainly the residents of the municipal area. There are other
features, apart from widening, including the graded separators.
No doubt, it may be true that many persons may be using the said
stretch, who may not be residents of the Patna Municipality, would
also benefit from the construction, but that cannot detract from
requirement of the second proviso being fulfilled, viz., that the
construction was primarily for the benefit of the residents of the
municipal area. The second proviso does not require that the
construction must be solely for the benefit of the residents of the
municipal area. [Para 85][357-C-H]
15. There is another aspect, which this Court cannot ignore.
The construction was completed in accordance with the agreement
with the Concessionaire. The Judgment of the Division Bench
came to be stayed by this Court and the toll has been collected
from the toll plaza. Secondly, the High Court may not be justified
in finding that the commercial expediency trumped the law.
Commercial expediency is, undoubtedly, a relevant fact. The exact
location of the toll plaza is also geared to garner maximum
revenue. Concessionaire Agreement lasts for a particular period
of time. It is the Concessionaire, who makes the construction,
after making the entire investment. The contract contemplates
"Design, Build, Finance, Operate and Transfer (the "DBFOT")
under Rule 16 of the Rules, upon the expiry of the agreement,
the fee is to be collected by the Central Government or the
Executing Authority. Therefore, in such circumstances, any
leakage in the toll, would naturally be sought to be avoided. As
long as the site of the toll plaza is otherwise supportable, with
reference to the second proviso, then, the area of judicial review,
in such matters, would be extremely narrow. [Para 86][358-A-D]
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16. 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. This Court proceed on the basis that there
was construction of a National Highway partly within the municipal
limits. [Para 87][358-D-F]
RULE 17: CLOSING OF SERVICE ROADS
17. 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. The Court notice these provisions
to pronounce on the complaint of the Writ Petitioners that there
is blocking of the service roads near the toll plaza. This Court
makes it clear that barriers shall be permissible only in compliance
with Rule 17 of the Rules. [Para 88][358-F-H]
WHETHER THE DECISION IS ARBITRARY
18. It is the case of the Writ Petitioners 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. [Para 94][361-F-H; 362-A]
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19. This Court has found that the Executing Authority is
the Competent Authority to take decision under the second
proviso to Rule 8 of the Rules. This Court, no doubt, has found,
there is no duty to record reasons. [Para 95][362-B]
20. The upshot of the above discussion is 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 without any delay. (4) The First Appellant will
issue suitable directions to all Executive Authorities to maintain
distinct records containing the decision, invoking the second
proviso to Rule 8 of the Rules. Such direction shall be issued
within 3 weeks from today. (5) This Court directs the appellants
as also the Concessionaire to extend the fullest benefits of the
concessions under Rule 9 of the Rules. (6) Resultantly, this Court
allows the Appeal and set aside the impugned Judgment of the
High Court and the direction to shift the toll plaza is set aside.
[Para 97][362-D-H; 363-A]
Union of India and others v. E.G. Nambudiri (1991) 3
SCC 38 : [1991] (2) SCR 451; Maharashtra State Board
of Secondary and Higher Secondary Education v. K.S.
Gandhi and others (1991) 2 SCC 716 : [1991] (1) SCR
772; C.B. Gautam v. Union of India and others (1993)
1 SCC 78 : [1992] (3) Suppl. SCR 12; Rajeev Suri v.
Delhi Development Authority and others Transferred
Case (Civil) No. 229 of 202; M/s. Mahabir Jute Mills
Ltd., Gorakhpore v. Shri Shibban Lal Saxena and others
(1975) 2 SCC 818 : [1976] (1) SCR 168 - relied on.
Chairman, National Highways Authority of India &
others v. R. Murali & others (2015) 15 SCC 647; Shenoy
and Co. and others v. Commercial Tax Officer, Circle
II, Bangalore and others (1985) 2 SCC 512 : [1985]
(3) SCR 659; S.N. Mukherjee v. Union of India (1990)
4 SCC 594 : [1990] (1) Suppl. SCR 44; Star Enterprises
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and others v. City and Industrial Development Corpn.
of Maharashtra Ltd. And others (1990) 3 SCC 280 :
[1990] (2) SCR 826; Sarat Kumar Dash and others v.
Biswajit Patnaik and others 1995 Supp (1) SCC 434 :
[1994] (5) Suppl. SCR 223; Kranti Associates (P) Ltd.
v. Masood Ahmed Khan (2010) 9 SCC 496 : [2010]
(10) SCR 1070; Mohan Kumar Singhania v. Union of
India 1992 Supp (1) SCC 594 : [1991] (1) Suppl. SCR
46; Commissioner of Commercial Taxes, Board of
Revenue, Madras & Anr. v. Ramkishan Shrikishan
Jhaver etc. AIR 1968 SC 59 : [1968] SCR 148; Indore
Development Authority v. Manoharlal and others 2020
(8) SCC 129 : [2020] (3) SCR 1 - referred to.
Regina v. Secretary of State for the Home Department
(Original Appellant and Cross-respondent) ex parte
Doody (A.P.) (1994) 1 A.C. 531; Dover District Council
v. CPRE Kent (2017) UKSC 79; Regina v. Higher
Education Funding Council Ex parte Institute of Dental
Surgery [1994] 1 WLR 242; Mullins vs. Treasurer of
Survey 1880 QBD 170 - referred to.
Case Law Reference
(2015) 15 SCC 647
referred to
Para 16
[1985] (3) SCR 659
referred to
Para 21
[1990] (1) Suppl. SCR 44
referred to
Para 40
[1976] (1) SCR 168
relied on
Para 41
[1990] (2) SCR 826
referred to
Para 42
[1991] (2) SCR 451
relied on
Para 43
[1991] (1) SCR 772
relied on
Para 44
[1992] (3) Suppl. SCR 12
relied on
Para 46
[1994] (5) Suppl. SCR 223
referred to
Para 47
[2010] (10) SCR 1070
referred to
Para 48
[1991] (1) Suppl. SCR 46
referred to
Para 73
[1968] SCR 148
referred to
Para 74
[2020] (3) SCR 1
referred to
Para 74
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11141
of 2018.
From the Judgment and Order dated 25.07.2018 of the High Court
of Judicature at Patna, in Letters Patent Appeal No.388 of 2015 in Civil
Writ Jurisdiction Case No.5643 of 2012.
Neeraj Kishan Kaul, Sr. Adv., Ms. Madhu Sweta, Rahul Shyam
Bhandari, Ms. Shivangi Khanna, Pritha Suri, Advs. for the Appellants.
Shyam Divan, Sr. Adv., Rajesh K. Singh, Rovins Verma, Rajesh
Srivastava, Harish Pandey, Ravi Bharuka, Ankit Agrawal, Adith
Deshmukh, Devashish Bharuka, Arup Banerjee, Ms. Prakriti Raj, Sanjeev
Sharma, Rudra Kr. Dey, T. Mahipal, Samir Ali Khan, Rudreshwar Singh,
Kaushik Poddar, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Respondent Nos. 1 to 17 in this appeal (hereinafter referred to
as, 'the writ petitioners'), filed Writ Petition No. 5643 of 2012. The relief
sought in this Writ Petition was to restrain the construction of a toll plaza
at 194 km of NH30 in the four-laning of Patna-Bakhtiyarpur section of
NH30, in violation of Rule 8 of the National Highways Fee (Determination
of Rates and Collection) Rules, 2008 (hereinafter referred to as,'the
Rules', for short). The said Writ Petition was heard along with Writ
Petition No. 4526 of 2013, filed by one Shri Ritesh Ranjan Singh @ Bittu
Singh. By Judgment dated 22.07.2014,the Writ Petitions were allowed
in the following manner by the learned Single Judge:
"32.Thus, on the basis of aforesaid discussions, thesewrit petitions
are allowed and respondents no. 6 and 11 are directed to shift the
proposed construction of Toll Plaza at 194 km milestone of PatnaBakhtiyarpur Section of N.H. 30 from its present location to any
other place on new alignment which separates from old N.H. 30
sothat the violation of Rule 8 of Rules 2008 could be avoided and
the persons who do not have intend to use toll road could be
exempted from paying toll tax. The respondent no. 6 should take
thedecision of shifting the above stated Toll Plaza toany other
place as discussed above within six weeks from today and till
then respondents shall not collect the toll tax from those persons
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who do have intend to go through the old N.H. 30 without 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 fourlaning of PatnaBakhityarpur section of NH-30 from 181.300 km to 231.950 Km
in the state of state of Bihar on BOT (toll) basis under NHDP III.
The DPR for four laning was prepared a few years back in which
the toll plaza was proposed at 194 Km of NH-30."
5. Thereafter, it is stated that, during the preparation of the Detailed
Project Report (DPR) and its final approval, there was a seachange in
the actual ground condition in the area. A number of important
commercial institutions came up in the area. Thereafter, the principal
bone of contention, however, was the transgression of Rule 8 of the
Rules. It is necessary, in this context, to notice:
"17.That the respondent authority has not assigned any reason
for establishing the toll plaza within municipal area. It is further
stated that the road in question is a national highway and it has
been constructed merely for the use of the residents of Patna
Municipality area.
18. That it isfurther stated that establishment of this toll plaza at
its present location will cause great difficulties to the residents of
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the locality because they will have to cross the toll plaza on many
occasions in a day and on all the occasions, they will be liable to
pay toll."
(Emphasis supplied)
6. It was alleged in the Writ Petition that the Writ Petitioners
moved representation and, thereafter, the Writ Petition is filed.
THE CASE OF THE APPELLANTS
7. In the counter affidavit on behalf of the NHAI, the First
Appellant,inter alia, stated as follows:
"7. That with regard to the statement made in paragraph no.1 of
the writ petition it is humbly submitted that the said paragraph is
by way of relief sought for hence reply is not needed but togive
scrupulous assistance to the Hon'ble court it is humbly submitted
that NHAI has made an concession agreement with M/s PBTL
to construct the 4-lane project on BOT (Toll Basis) for the public
interest,whose contractor M/s BSC-C&(JV) respondent no.10 is
constructing the Toll Plaza at km. 194 of NH-30 as per Ideation
fixed in concession agreement and more than 60°/o work has
been completed.
8.That the deponent further submits that the installation of Toll
Plaza is not in violation of rule 8of National Highways Fee
(Determination of rates and collection) rules 2008 published in
extra ordinary Gazette on 05.12.2008 even if the Toll Plaza location
comes under municipal limit. It is already mentioned in rule 8 that
"Provided furtherthat here a section of the under 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 withinthe 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
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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 willbadly 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 averments, which have paled into insignificance,
as they are not canvassed by the parties before us. We may only notice
paragraph-19, as related to concessions available to local residents. There
was a second counter affidavit. Therein it is, interalia, stated that the
installation of the toll plaza did not violate Rule 8, even if the toll plaza
location came within municipal limits. We may only notice paragraph-13
in the secondCounter Affidavit:
"13.That 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 road and which will badly effectthe 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 which is obvious from
the Map and strip plan of NH-30 BOT Project from Patna to
Bakhtiyarpur."
THE CASE OF THE CONCESSIONAIRE
9. In the first counter affidavit filed by Concessionaire, the
Concessionaire, no doubt, took the contention that the proposed toll plaza
at 194 kilometres, was going to be at least 13.1 kilometres approximately
from Anisabad roundabout on the new bypass. It is thereafter stated
that, thus, on the face of it, the proposed toll plaza at 194 kms is much
beyond 5 kilometres stipulated in the first proviso. It is further contended
that Noida toll plaza is not even one kilometre in distance from Sector
15A Noida (U.P.), which is purely a residential colony and within municipal
limit of Noida. It was also contended that Gurgaon toll plaza, constructed
on NH8, was well within the municipal limit of Gurugram. Also, the
Mumbai-Pune Expressway toll Plaza is within the municipal limits of
Greater Mumbai and Pune. The Concessionaire, no doubt, goes on to
state that the idea behind the construction of national highway or
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theirupgradation and construction, was for the overall population of the
said area. Such construction is a harbinger of development.It is also
stated that such upgradation is also aimed at benefitting the local
population for the speedy movement from Patna to Bakhtiyarpur and
vice versa. The NHAI (first appellant) has invited for proposals for
request for qualification on 08.09.2009.The Concessionaire agreement,
dated 31.03.2011, specifically 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
local traffic as well. It is also averred that, as such, it is primarily for the
benefit of local resident, as per the feasibility report.
THE FINDINGS OF THE LEARNED SINGLE JUDGE
11. The learned Single Judge finds that, before taking a decision
to construct a toll plaza within 10 km of the municipal limits, the Executing
Authority must assign reasons in writing. The second proviso, being in
continuation of the first proviso, if the toll plaza is constructed under the
second proviso, the concerned Authority, it was found, is not only dutybound to give reasons in writing but also adhere to the conditions mentioned
in the second proviso to Rule 8.The appellants, it was pointed out, were
found to have not stated that the new alignment is intended primarily for
the use of the local residents of the Patna Municipal Corporation. It was
further found that thelocal residents are being restrained to use even the
old NH30, and furthermore, due to construction of the toll plaza at the
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point, the persons, who do not intend to use the new alignment, would
have to pay toll tax, even for use of the old NH30. Therefore, it was
found that there is violation of Rule 8. Dealing with the argument that no
Fundamental Rights were violated, the learned Single Judge finds that
Rule 8 was violated and, therefore, the court had jurisdiction under Article
226. Repelling the contention that the WritPetitioners had not challenged
the DPR, it was found that the DPR was only a proposal prepared by
the private Consultant Agency and it was the duty of the NHAI (appellant)
to look into the detailed Report and ascertain whether it was prepared in
accordance with the Rules.It was further found that the proposal for
construction of toll plaza at 194 km, was apparently against Rule
8.Nothing was brought before the court, it was found to show that before
giving approval to the DPR, the matter was discussed.