Punjab-Haryana High Court
Vishal Nagrath And Others vs The Union Of India And Others on 1 May, 2012
Equivalent citations: AIR 2012 (NOC) 407 (P.&H.)
Author: Mahesh Grover
Bench: Mahesh Grover
C.W.P.No.23971 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P.No.23971 of 2011
Date of decision : 1.5.2012
Vishal Nagrath and others
....Petitioners
Versus
The Union of India and others
...Respondents
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present: Mr.Ashish Aggarwal, Advocate
for the petitioners.
Mr.J.K.Sibal, Sr.Advocate with
Mr.Sunil K.Sahore, Advocate
for respondents No.2 to 6.
Mr.Karan Singla, Advocate
for respondent No.7.
Mr.Sumeet Goel, Advocate
for respondent No.8.
.....
MAHESH GROVER, J.
In this writ petition the petitioners pray that appropriate directions be issued to the respondents not to shift the existing Toll Plaza at Km.146.400 Karnal (Samana-Bahu) to Km.110 (Gharaunda). A prayer for quashing of the order/decision dated 5.4.2011 for giving a no objection to relocation of the Toll Plaza has also been prayed for. In furtherance of these two prayers a final prayer for removal of the Toll Collection Cabins has also been made. The objections of the C.W.P.No.23971 of 2011 -2- petitioners to the proposed action of the respondents to shift the Toll Plaza from the existing site to the proposed site can be briefly enumerated as below :-
i) It is in violation of the agreement between the Concessionaire and the National Highways Authority of India (hereinafter referred to as 'the NHAI'), especially Clause 48.1 of the Concession Agreement which prohibits a Toll Plaza to be located within a distance of 20 Km. and 10 Km. from the notified urban limits of the towns specified therein which includes Gharaunda where the proposed site is located.
ii) The notification issued by the Union of India under Rule 3 of the National Highways Fee (Determination of Rates and Collection), Rules 2008 (hereinafter referred to as '2008 Rules') specifically notifies the existing Toll Plaza at 146.400 Km. and also prescribed the rates for the toll and in the absence of any subsequent notification the Toll Plaza cannot be shifted.
iii) By virtue of the proposed relocation the change of length for levy of toll would be changed which cannot be done without a specific notification under the aforesaid 2008 Rules.
iv) It causes immense hardship to the local inhabitants and also poses a traffic hazard.
v) It is in violation of Rule 8 of the 2008 Rules which C.W.P.No.23971 of 2011 -3- prohibits the construction of a Toll Plaza beyond a distance of 10 Km. of municipal or local area town limits.
The NHAI and the Concessionaire have filed separate replies in response to the petition. It has been stated by the NHAI that the agreement between the Concessionaire and the NHAI takes care of the entire controversy as the Concessionaire had been given the right to choose the location in consultation with the NHAI. It has further been stated that the locations referred to as 146.400 Km. by the petitioners is one of the tentative location determined for the purpose of locating a Toll Plaza and that a Toll Plaza is to be located after Independent Engineer appointed by the NHAI grants his no objection after due consultation. Annexure P-7 is the report of the Independent Engineer categorically granting no objection to the relocation but subject to the Concessioners responsibility to mitigate any of the impacts of the relocation and by taking into consideration such effects sufficiently or otherwise effectively and efficiently. It has further been projected to the Court that the Concessionaire has a right to recover the cost of the project, as under the current arrangement it is the Concessionaire who is solely responsible for the financial aspect of the project which is monumental considering the involvement of more than Rs.4500 crores.
Intensive reference has been made to the Rules of 1997 and it has been denied that the 2008 Rule upon which reliance has been placed by the petitioners would govern the situation and this C.W.P.No.23971 of 2011 -4- fact has been fortified with reference to the notification which specifically mentions the 1997 Rules while acknowledging the right of the Concessionaire to recover toll and the rates prescribed thereunder.
The arguments which have been raised before this Court are expectedly on the lines of the grievance which has been highlighted above.
The foremost question that has to be considered is as to whether the petitioners have any locus to challenge the violation of any clause in the agreement; assuming that shifting the Toll Plaza results in the violation of any of the clauses of the agreement to which they are not a party.
The obvious answer to such a question would be that the petitioners have no locus and at best it can be the NHAI who could question the shifting of Toll Plaza on the ground of violation of any of the terms of the agreement.
Be that as it may, since the petitioners espouse the cause of public interest and also for the reason that the Court now has the benefit of the response of the NHAI and also the Concessionaire and has a clear picture of the controversy before it the Court does not intend to negate the plea of the petitioners solely on this ground and proceeds to determine the justification of shifting of the Toll Plaza.
It has not been denied before this Court that it is the Concessionaire who has the right to choose the location of the Toll Plaza but in consultation with the NHAI. As per Appendix I to C.W.P.No.23971 of 2011 -5- Annexure 1 of Schedule C of the Project Agreement, Toll Plaza has been described to mean the structures and barriers erected on project highways for the purpose of regulating the entry and exit of vehicles. The same is extracted herebelow :-
"Toll Plaza means the structures and barriers erected on project highways for the purpose of regulating the entry and exist of vehicles in accordance with the provisions of this agreement and shall include land, building, equipments and other facilities required in accordance with or incidental to the provisions of this agreement situated at location to be decided by the Concessionaire as per schedule D in consultation with NHAI and independent engineer. Tentative locations of the Toll Plaza are given in Appendix-I."
In Appendix-I three locations for the Toll Plaza have been set out which are extracted as under :
Appendix-1 Tentatively locations of Toll Plaza S.No. Chainage Remarks 1 146+400 The new Toll Plaza being built by NHAI in lieu of existing Karnal Toll Plaza at KM 132+000 2 212+000 Existing Shambhu Toll Plaza 3 328+050 The new Toll Plaza being built by NHAI in lieu of existing Doraha Toll Plaza at KM 296+000 C.W.P.No.23971 of 2011 -6- A perusal of the above clause reveals that the consultation of NHAI and the Independent Engineer is essential before any location of the Toll Plaza can be determined. The petitioners made a partial reference to Annexure P-3 to enhance their case, but if the final decision is to be considered then the Independent Engineer clearly opined as follows :
"As conveyed earlier, we have no objection to your relocation. However, it may be noted that it is the Concessionaire's responsibility to mitigate any negative impact of the relocation, and the Concessionaire shall address all such effects, social or otherwise, effectively and efficiently. As per Clause 12.3(c) no review by the Independent Engineer shall relieve the Concessionaire of its obligation."
By virtue of a miscellaneous application bearing No. 6051 of 2012 a complete break-up of the location of the entire length of the road measuring 291 Km (which is also a complete length of the project), the list of urban areas notified has been produced on record. The relevant extract of which is given hereunder :
Table 7.15 :List of Urban Areas S.No. Chainage Name of Town 1 Km 105000 to Km 108300 Gharonda 2 Km 115000 to Km 129000 Karnal 3 Km 143000 to Km 144800 Nilokheri 4 Km 156000 to Km 160000 Kurukshetra C.W.P.No.23971 of 2011 -7- S.No. Chainage Name of Town 5 Km 178000 to Km181000 Shahbad 6 Km 197000 to Km 208200 Ambala From the aforesaid learned counsel for the petitioners demonstrates that if Clause 48.1 is to be adhered to then it may not be possible to have a Toll Plaza which conforms to the requirement of the clause. It would be necessary to reveal the contents of Clause 48.1 at this stage which read as under :
"Clause 48.1 - Toll Plaza - means the structures and barriers erected of the Project Highways for the purpose of regulating the entry and exist of vehicles in accordance with the provisions of this Agreement and shall include all land, buildings, equipment, and other facilities required in accordance with or incidental to the provisions of this Agreement; provided that such toll Plaza(s) shall not be erected within a distance of 20 (twenty) Kilometers and 10(ten) kilometers from the notified urban limits of Karnal, Ambala, Ludhiana, Jalandhar cities and Gharaunda, Nilokheri, Kurukshetra, Shahabad, Rajpura, Sirhind, Mandi Govindgarh, Khanna, Doraha, Sahniwal, Pillor, Goraya, Phagwara towns respectively as notified on the date of this Agreement and shall be situated at locations to be decided by the Concessionaire in consultation with the Independent Engineer."C.W.P.No.23971 of 2011 -8-
The question now arises that if the location of the Toll Plaza is to be determined in consultation with NHAI and the Independent Engineer and in the absence of any objection to the shifting of the Toll Plaza by these two authorities named and noticing the fact that there is a positive stand taken by both these authorities regarding relocation then can the petitioners or any other agency question the same on the ground that it violates the agreement. The obvious answer is in the negative. Apart from this the whole scheme of the Act, the Rules and the agreement which protects the right of the Concessionaire to recover toll from the prospective users of the road cannot question the relocation firstly on the ground that it violates the agreement and even if the challenge is permitted on the ground that it violates just one of the passing clauses of the agreement which considering the location of the towns on the highway may be highly impractical to adhere to. This has been amply demonstrated by the list of urban areas notified.
In any eventuality, I am firmly of the opinion that once the right of the petitioners to question the relocation of the Toll Plaza is suspect considering that they are not a party to the agreement and the authorities entitled to question are supporting of the relocation, then the only issue that requires to be considered is as to whether hardship as projected by the petitioners can be a ground to interfere in the decision to relocate the Toll Plaza. The answer to this question as well has to be in the negative as hardship cannot be a ground to negate a decision which is legitimately taken and is in the C.W.P.No.23971 of 2011 -9- permissible parameters of the agreement and law governing the situation. Besides this, the Independent Engineer has clearly stated while giving a no objection to the respondents to relocate the Toll Plaza by taking into consideration the hardships of the people and for that purpose Annexure R-4 which is the notification is testimony to the acknowledgment of fact that the difficulties of the residents of the area have been adequately addressed and is likely to be addressed once the Toll Place is relocated.
Annexure R-4 is the notification issued on 6.4.2009 which prescribed the schedule for collection of the toll and the fee to be levied. 'Local traffic' has been defined to mean the following type of traffic in relation to the fee payable for car/jeep/van. It would be relevant to bring out the extract of the notification to understand that the concerns of the residents and the local users have been adequately taken care of. The relevant extract of the same is as under
:-
"Notes : 1. For the purposes of this notification, --
(iii) "local traffic" means the following type of traffic in relation to the fee payable for car/jeep/van :
(a) "local traffic category I" shall include users falling into any of the following categories, namely :- (1) residents of villages/towns/cities whose boundary falls within a radius of ten kilometers of the fee collection booth (toll plaza);
(2) establishments/industrial units located within a C.W.P.No.23971 of 2011 -10- radius of ten kilometers of the fee collection booth (toll plaza);
(3) employees of establishments/industrial units located or which have their office within a radius of ten kilometers of the fee collection booth (toll plaza); (4) Self employed persons/businessmen having place of work within a radius ten kilometers of the fee collection booth (toll plaza).
(b) "local traffic category II" shall include local users falling into any of the following categories, namely :
(1) residents of villages/towns/cities whose boundary falls within a radius of more than ten kilometers but upto twenty kilometers of the fee collection booth (toll plaza);
xx xx xx xx
5.Concessionaire shall not collect fees from local traffic in excess of the following discounted rate:
(a) Car/Jeep/Van
(i) local traffic category I: Monthly pass of Rs.150.00
(ii) local traffic category II: Monthly pass of Rs.300.00 xx xx xx xx
7. Fee shall be collected at the fee plaza from the vehicles crossing the fee plaza and using the whole or part of the said stretch for the length mentioned as under : --C.W.P.No.23971 of 2011 -11-
(i) Fee plaza at km 146.40 for 110.00 km.length
(ii) Fee plaza at km. 212.00 for 66.00 km. length
(iii) Fee plaza at km.328.050 for 115.100 km.length"
The aforesaid also reveals that for every Toll Plaza there is a prescribed length of kilometers for which user pays for the said length. It is possible that a person may use a road and exit few kilometers before the ascribed length and in such an eventuality he will not pay anything even though he uses the road. For example, a Toll Plaza at point 'A' has an ascribed length of 100 Km. A person beginning the journey from point 'B' towards point 'A' exits the road after 95 Km. and proceed to his destination. In this eventuality even though this user has enjoyed the benefit of the road for 95 Km, yet he does not pay anything to the Concessionaire because he does not cross the Toll Plaza. There can thus be a grievance on the part of the Concessionaire as well but the foremost thing that has to be remembered is that the notification does take care of the local traffic which may be crossing the Toll Plaza at multiple points of time and that is why the provision of monthly pass at marginal rates has been prescribed.
The Court does not, therefore, find any infirmity in the decision of the respondents to relocate the Toll Plaza and the respondents are very well within their right to evaluate the location of the Toll Plaza considering the fact that they are being located in reference to the entire project of 291 Km. and the requirement is to C.W.P.No.23971 of 2011 -12- have only 3 Toll Plazas which have to be so located that they do not result in a situation of peristalsis movement of the traffic or create bottlenecks. Besides such decisions are to be left to the wisdom of the agencies involved in the execution of the project and merely because another location may be perceived to be a better one cannot be a ground to warrant judicial interference.
For the aforesaid reason, the writ petition is dismissed. 1.5.2012 (MAHESH GROVER) JUDGE dss