Rajasthan High Court - Jaipur
Jagdish Prasad Meena S/O Shri Prabhat ... vs The State Of Rajasthan on 8 April, 2022
Bench: Manindra Mohan Shrivastava, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ (PIL) Petition No.20668/2018
Jagdish Prasad Meena S/o Shri Prabhat Ram Meena, Aged About
42 Years, R/o 132, Vijay Singh Pura Basa, Tehsil Chomu,
Kushalpura Jaipur (District). Permanent Account No.-
AOXPM1511R, Aadhar No.530321018265, Mobile No.9694503387
----Petitioner
Versus
1. The State Of Rajasthan, Through The Chief Secretary,
Public Works Department, Government Of Rajasthan,
Jaipur (Raj.)
2. Secretary, Public Works Department, Government Of
Rajasthan, Jaipur (Raj.)
3. Chief Engineer (NH), Public Works Department, Jaipur
(Raj.)
4. Superintending Engineer (PPP-I), Public Works Department,
Jaipur (Raj.)
5. Project Director, PPP-I, Public Works Department, Jaipur
(Raj.)
6. Chomu Chandwaji Tollways Pvt. Ltd., Registered Office At
209, 210, Neelkanth Building, Opposite Sahkar Bhawan,
Bhawani Singh Road, C-Scheme, Jaipur- 302001.
7. Gopal Singh Narayan S/o Not Known, Director, Chomu
Chandwaji Tollways Pvt. Ltd. R/o 209, 210, Neelkanth
Building, Opposite Sahkar Bhawan, Bhawani Singh Road,
C-Scheme, Jaipur-302001.
8. Murari Lal Agrawal, S/o Not Known, Director, Chomu
Chandwaji Tollways Pvt. Ltd. R/o 209, 210 Neelkanth
Building, Opposite Sahkar Bhawan, Bhawani Singh Road,
C-Scheme, Jaipur-302001.
9. District Collector, Jaipur District (Raj.)
10. Sub Division Officer, Chomu, Tehsil District, Jaipur (Raj.)
11. Tehsildar, Chomu, Tehsil, Jaipur District (Raj.)
12. The Territory Manager (R), Bharat Petroleum Corporation
Limited, Regional Office Of Jaipur Division, Jaipur
13. Bharat Petroleum Corporation Limited, Through Its Chief
(Downloaded on 08/04/2022 at 09:19:53 PM)
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Vigilance Officer, Bharat Bahvan-1-486, Karim Morya Belar
Estate, Mumbai-400001
14. M/s. Kamal Mani Fuel Services, (A Unit Of Bharat
Petroleum Corporation, Through Neeraj Sharma), Bansa
Chitwari Mod, Chomu Chandwaji Road, Village Kushalpura,
Near Kushal Pura Toll Plaza, Tehsil Chomu, District, Jaipur
----Respondents
For Petitioner(s) : Mr. Sehban Naqvi, Advocate
For Respondent(s) : Mr. Rajendra Prasad, Senior Advocate
assisted by Mr. Ashish Sharma,
Advocate
Mr. Rajesh Maharshi, Additional
Advocate General assisted by
Mr. Udit Sharma, Advocate
Mr. Krishna Verma, Advocate for
Ms. Sukriti Kasliwal, Advocate
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
Order
8/04/2022
By the Court:(Per Manindra Mohan Shrivastava, Acting CJ.)
1. This petition, styled as Public Interest Litigation, has been filed by the petitioner seeking to challenge construction and operation of Toll Plaza named Chomu Chandwaji Tollways constructed by concessionaire, respondent no.6 arrayed along with his operators, respondent nos.7 & 8 at Kushalpura at Chomu Chandwaji SH-08 B.
2. The petitioner, who claims to be a public spirited person has filed this petition on the allegation as contained in the pleadings in the writ petition that respondent nos.1 to 5 entered into agreement with concessionaire i.e. respondent nos.6 to 8 for construction of Toll Plaza at Chomu Chandwaji State Highway No.8 in violation of (Downloaded on 08/04/2022 at 09:19:53 PM) (3 of 22) [CW-20668/2018] statutory provisions contained in Rajasthan State Highways Act, 2014 (hereinafter referred to as "the Act of 2014") and Rules framed thereunder known as Rajasthan State Highways Fee (Determination of Rates and Collections) Rules, 2015 (hereinafter referred to as "the Rules of 2015"). According to the petitioner, the location where Toll Plaza has been constructed, made operational, is surrounded by densely populated area of several villages and dhanis and the authorities ought not to have been allowed construction of Toll Plaza at the location in dispute. Further pleadings of the petitioner is that the location where Toll Plaza has been constructed, there are five adjoining local town area and Panchayats within a distance of 5 kms and no permission was obtained from Tehsildar and Sub-Divisional Officer. It is further stated that the disputed Toll Plaza is situated in District Chomu which is already surrounded by four other Toll Plazas namely Tatiyawas Toll Plaza on Jaipur Chomu National Highways 52, Maharkala Toll Plaza on Chomu Ajitgarh State Highway, Mehroli Toll Plaza on Sikar Chomu State Highway Near Mehroli and another under constructed Toll Plaza on Chomu Renwal Road.
3. Further case of the petitioner is that looking to the density of population in nearby adjoining villages and dhanis, the restrictions by way of keeping minimum distance from municipal area/local area as contained in the Act of 2014 have to be construed widely and liberally to include within a municipal/local area not only the limits of the municipality but also limits of various surrounding and adjoining villages and dhanis. Referring to the provisions contained in Rule 8 of the Rules of 2015, it has been contended that the Rules prohibiting establishment of Toll Plaza within a distance of 5 kms or (Downloaded on 08/04/2022 at 09:19:53 PM) (4 of 22) [CW-20668/2018] the limits of a municipal or local town area, on liberal and wide meaning, would include not only the limits of municipal or local area in district but also Panchayat area and dhanis, though, technically it may be situated outside municipal or local town area.
4. The other pleadings are that the location of Toll Plaza is in violation of norms laid down by the Department of Public Works of Rajasthan contained in the order dated 27.12.2004 which stipulates that the distance from the check barriers/toll plaza should be at least 1 km and no check barriers/toll plaza would be installed within one km of fuel stations/rest area. Further, referring to the guidelines issued by Indian Road Congress (IRC), Government of India guidelines, it has been averred that while establishing and operating Toll Plaza at the disputed site, various guidelines have also been violated as the Toll Plaza is situated within the prohibited distance from already existing petrol pump.
5. It is also the grievance ventilated through this petition that collection of toll fee is at a rate which is in contravention of the prescribed rule under the Rules of 2015 and directions issued in this regard from time to time by the State Authorities. It is, therefore, contended that the Toll Plaza is required to be removed from the existing location and established at a safe distance beyond the prohibited distance as stated in circular dated 27.12.2004 of the IRC, Government of India guidelines issued in this regard.
6. On the other hand, learned counsel for the respondent-State as also learned counsel appearing for the concessionaire (respondent nos.6 to 8) would argue that the petitioner is not a public spirited person but is a criminal. He has established a ration shop in the nearby area. Action was taken against him by the (Downloaded on 08/04/2022 at 09:19:53 PM) (5 of 22) [CW-20668/2018] authorities for violating guidelines and conditions in the matter for running of ration shops. It is further averred that against the petitioner number of criminal cases are also pending. All these facts were suppressed by the petitioner and falsely claiming him to be pro bono publico, the petitioner has filed this petition for ulterior motive.
7. It is further raised as common submission on behalf of the aforesaid respondents that establishment of Toll Plaza is governed by statutory provisions contained in the Act of 2014 as also the Rules of 2015. The toll notification was already issued on 08.12.2016 by the Government. The Toll Plaza is not located within the densely populated area in Chomu Tehsil but it is situated at a distance of about 8.89 km from Chomu Municipal Limit and a certificate to that effect has also been issued on 10.01.2017 by the Executive Officer, Nagar Palika Chomu clearly stating that on Chomu Chandwaji Road, the municipal limits of Chomu only extended till Morija-Bypass Flyover at a distance of 1.5 kms from the Chomu Bus Stand.
8. The official respondents i.e. respondent nos.1 to 5 have stated that in order to construct and operate the public road for the conveyance of the public, State entered into Concession Agreement on Design, Build, Finance, Operate and Transfer (DBFOT) basis to develop a section of State Highway No.08B from Km 0.000 to Km 15.450. The State Highway extend from Jatawali-Kaladera via Chomu having a total length of 25.50 km. The present location of disputed Toll Plaza i.e. Khushalpura Toll Plaza is neither from densely populated area of Chomu Tehsil nor situated within the prohibited distance as prescribed under Rule 8 of the Rules of 2015. (Downloaded on 08/04/2022 at 09:19:53 PM)
(6 of 22) [CW-20668/2018] The Toll Plaza and the road side amenities have been constructed strictly under Section 19 of the Act of 2014. In this regard, reference has been made to Section 19 which empowers the State Government or the Authority to enter into agreement with any person in relation to the development and operation of the highway and submitted that in exercise of such powers, concession agreement was entered into with the respondent nos.6 to 8 and the location of the Toll Plaza has also been notified vide notification dated 08.12.2016 which is in accord with the statutory provisions. The allegation of recovery of toll at roads in violation of law has been denied. The official respondents in their reply have stated that toll rates have been determined in accordance with Rule 4 of the Rules of 2015 and the base rate fee per km for car, jeep or LMV is fixed at Rs.1.05/Km for the base year 2015-16. It is further submitted that as per Rule 3(5), the fee notified by the State Government under these rules has to be rounded off and levied in a multiple of the nearest of Rs.5. Therefore, the levy of toll fee is in accordance with the Rules of 2015. The return of the official respondents further declares that w.e.f. 01.04.2018, the toll fee is not being levied on category of private vehicles and the tractors carrying agriculture produce which are also exempted from levy of toll fee. The Toll Plaza has been legally constructed provided with all the safety measures. The grievance of the local residents as reflected from the letter dated 27.02.2018 of Sarpanch Kushalpura (Basa) was duly responded and private vehicles have already been exempted from the toll fee w.e.f. 01.04.2018.
9. In addition, the private respondent nos.6 to 8 have opposed the petition not only on the ground as has been raised by the official (Downloaded on 08/04/2022 at 09:19:53 PM) (7 of 22) [CW-20668/2018] respondents but it has also been pleaded that the official respondents have entered into concession agreement for development of road. On terms and conditions imposed under the agreement they have made investment of more than 40 crores after taking loan of 25.5 crores from the bank. It is further pleaded that toll fee is being collected only from mechanical vehicles at specified rates and no fee is levied for the use of toll roads for tractors trolley carrying agriculture produce and animal drawn vehicles in terms of Rule of 2015. The establishment of Toll Plaza and collection of toll fee by the respondents is in accordance with the Act of 2014 and Rules of 2015. It has further been pleaded that the norms laid down by the Government circular dated 27.12.2004 are only guidelines and do not have any statutory force but were issued in accordance with the then prevailing Rajasthan Highways Act, 1995 which has now been substituted by Rajasthan State Highways Act, 2014 where under Rules of 2015 have been framed and there is clear provision with regard to the location of the Toll Plazas. In the matter of establishment and location of Toll Plaza, none of the provisions contained in the Act or Rule have been violated. The Government circular dated 27.12.2004 has lost its significance and force as the aspect of location of toll plaza is completely governed by the provisions of the Act and the Rules. Respondent nos.6 to 8 have also questioned the maintainability of the writ petition on the ground that petitioner having not challenged the legality and validity of the toll notification dated 08.12.2016 nor having challenged the same while filing petition and not even when this was disclosed by the respondents, the petition deserves to be dismissed on this ground. It has also been stated that petition (Downloaded on 08/04/2022 at 09:19:53 PM) (8 of 22) [CW-20668/2018] suffered from delay and laches as notification of Toll Plaza dated 08.12.2016 establishing Toll Plaza was never challenged and the petitioner approached the Court after two years when construction had been raised and huge amount invested, therefore, on the ground of delay also, the petition is liable to be dismissed.
10. A separate reply has been filed by the respondent--Bharat Petroleum Corporation Limited stating that no relief is sought against it and it has been wrongly impleaded as a party. According to the averments made in their reply, the distance between the Toll Plaza and Bharat Petroleum Corporation retail outlet of M/s Kamal Mani Fuel Services is 175 meters.
11. Learned counsel for the petitioner would argue that the establishment of Toll Plaza and its location being construed in densely populated adjoining villages and dhanis is liable to removed as it endangers public safety. It is further submitted that State Government's circular dated 27.12.2004 has been violated, insofar as location of the Toll Plaza is concerned because it is within the prohibited distance from the petrol pump outlet.
12. The other submission based on the pleadings is that the location of Toll Plaza, upon rational construction of the expression "municipality/local town area" including Panchayat village area and dhanis, is in violation of the provisions contained in Rule 8 of the Rules of 2015. Reference has been made to IRC guidelines which have been filed along with the petition that siting of fuel station near existing check barriers should be avoided and that it should be at least 1 km away from the check barriers. As the petrol pump was already erected prior to coming into existence of the Toll Plaza, (Downloaded on 08/04/2022 at 09:19:53 PM) (9 of 22) [CW-20668/2018] while locating and constructing toll plaza, the aforesaid guidelines of IRC ought to be strictly applied with which has not been done.
13. Thus, according to the petitioner, location of Toll Plaza is in violation of the State Highways Circular dated 27.12.2004, IRC guidelines and Rule 8 of the Rules of 2015. On public safety consideration, appropriate order be issued for removal of the Toll Plaza. In support of his submission, learned counsel for the petitioner places reliance upon Indian Oil Corporation Ltd. and Others Versus Arti Devi Dangi reported in MANU/SC/1304/2015, Maliram Versus Bharat Petroleum Corporation Limited and others reported in MANU/Rh/0558/2019, Aditya H.P. Centre and Others Versus Union of India and Others reported in MANU/HP/0366/2021, Dalpat Singh Versus Union of India & others reported in RLW 2006 (1) RAJ 161 and Neeraj Kachhawaha Versus State of Rajasthan and Others reported in MANU/RH/0577/2013.
14. According to the respondents, what has been pleaded by them in their respective reply is that construction of Toll Plaza is beyond the prohibited distance as provided under Rule 8 of the Rules of 2015. The expression "municipality area/local town area" cannot be extended to include all other area of Panchayats and Dhanis in the absence of there being any specific provision in that regard contained either in the Act or in the Rules. According to the respondents, the IRC guidelines are non-statutory and have been issued mainly to restrict operations/establishment of petrol pump outlets. As location of Toll Plaza is governed by the statutory provisions contained in the Act of 2014 and Rules of 2015, the legality of the action is to be adjudged within four corners of the (Downloaded on 08/04/2022 at 09:19:53 PM) (10 of 22) [CW-20668/2018] statutory provisions and not on the basis of the guidelines which have no statutory force. The State circular dated 27.12.2004 was issued prior to coming into force of enactment of the Act of 2014 and the Rules of 2015. These are merely administrative orders of the authorities of the PWD which lost its force and significance after promulgation of the Act and the Rules. Such guidelines could not be made a basis to issue mandamus for removal of Toll Plaza when Toll Plaza is not violating any statutory guidelines. It has also been submitted that the toll notification being statutory act notified vide notification dated 08.12.2016, having not been challenged nor any relief sought, therefore, the petition was liable to be dismissed.
15. It is also highlighted that safety certificate have also been issued by the competent authority and no independent material has been placed on record to show as to how location of Toll Plaza endangers public safety. The petitioner has failed to demonstrate by any cogent material that establishment of Toll Plaza has affected the public interest and public safety. In support of their submissions, respondents relied upon Arun Kumar Acharya and Ors. Versus National Highway Authority of India and Ors. reported in MANU/OR/0206/2020, G. Sasikala Versus The Additional District Administrative, Krishnagiri District and Ors. reported in MANU/TN/0848/2019, M.G. Saravanan Versus The Commissioner of Police, Trichy City Police Office and Ors. reported in MANU/TN/5718/2020, Federation of Gujarat Petroleum Dealers Association and 2 Ors. Versus State of Gujarat and 11 Ors. reported in MANU/GJ/8102/2006 and Indian Oil Corporation Ltd. and Ors. Versus Collector and (Downloaded on 08/04/2022 at 09:19:53 PM) (11 of 22) [CW-20668/2018] District Magistrate, Jajpur and Ors. reported in MANU/OR/0600/2017.
16. We have gone through the records of the case, pleadings made by the learned counsel for the parties and submissions made as also various decisions relied upon by both the sides.
17. The challenge to the location of Toll Plaza is based on the ground that it is in violation of Rule 8 of the Rules of 2015. The second ground to challenge is that it is in violation of IRC guidelines. The third ground to challenge is that the location of Toll Plaza is in violation of Public Works Department instructions dated 27.12.2004. It has also been challenged on the ground that it endangers public safety as Toll Plaza is surrounded by several adjoining villages and dhanis with dense population.
18. The Act of 2014 has been enacted to provide for the declaration, development, operation, safety and regulation of State Highways and use of land pertinent thereto, acquisition of land for highways and other roads, constitution of Rajasthan State Highway authorities and for matters connected therewith or incidental thereto. The provisions of the Act of 2014, authorizes to develop certain highways to be State highways; Section 5 thereof empowers acquisition of land; under Section 19 thereof, the State is empowered to enter into an agreement with any person in relation to the development and operation of the whole or any part of a highway and such agreement may, if deemed necessary, include the terms and conditions for development of wayside amenities, habitations, townships or industrial corridors in the vicinity of such highway. Sub-Section 2 thereof provides that a person with whom concession agreement has been entered into shall be entitled to (Downloaded on 08/04/2022 at 09:19:53 PM) (12 of 22) [CW-20668/2018] collect and retain fees in such a manner and at all such rates as may be prescribed by rules made under Section 18 and in accordance with the terms of the agreement referred to in sub- section (1) of Section 19. In exercise of powers under Section 18 of the Act, Rules have been framed known as Rules of 2015. Rule 8 thereof, being relevant is reproduced hereinbelow:-
"8. Location of toll plaza.- (1) The executing authority or the concessionaire, as the case may be, shall not establish a toll plaza within a distance of five kilometers from the limits of a municipal or local town area:
Provided that the executing authority may, for reasons to be recorded in writing, locate or allow the concessionaire to locate a toll plaza within a distance of five kilometers of such limits of a municipal or local town area, but in no case within two kilometers of such limits of a municipal or local town area.
Provided further that where a section of the state highway, permanent bridge, bypass or tunnel, as the case may be, is constructed within the municipal or town area limits or within two kilometers from such limits, primarily for use of the residents of such municipal or town area, the toll plaza may be established within the limits of the municipal or town area or within a distance of two kilometers from such limits.
(2) Any other toll plaza on the same section of state highway and in the same direction shall not be established within a distance of forty kilometers:
Provided that where the executing authority deems necessary, it may for reasons to be recorded in writing, establish or allow the concessionaire to establish another toll plaza within a distance of forty kilometers.
Provided further that a toll plaza may be established within a distance of forty kilometers from another toll plaza if such toll plaza is for collection of fee for a permanent bridge, bypass or tunnel.
Provided also that two toll plazas on the same state highway may be established within a distance of forty kilometers if they are located on different sides of (Downloaded on 08/04/2022 at 09:19:53 PM) (13 of 22) [CW-20668/2018] a town having a population exceeding twenty thousand. Provided also that the restrictions specified in this rule shall not apply to a section of the state highway specified in sub-rule (6) of rule 4."
19. According to this Rule, a Toll Plaza shall not be allowed to be established within a distance of 5 kms from the limits of a municipal or local town area. Proviso, further, empowers the authority to allow concessionaire to locate a Toll Plaza within a distance of 5 kms of limits of municipal or local town area, for reasons to be recorded in writing. It further provides that in any case, such permission for location of Toll Plaza shall not be allowed within two kms of limits of municipal or local town area. Under further proviso, in exceptional cases, Toll Plaza may be established within the limits of the municipal or local town area within the distance of two kms from such limits. Rule also provides for rates of fee and also contains certain exemption clause from payment of fee.
20. The statutory scheme of the Act of 2014 and the Rules of 2015 particularly Rule 8 restricts location of Toll Plaza within prohibited limits of municipal area/local town area and in only exceptional cases, covered under the proviso to Sub-Rule (1) of Rule 8 thereof, Toll Plaza could be allowed to be established within the prohibited limits. Except this statutory prohibition, there is no statutory prohibition in terms of distance of the Toll Plaza from the municipal limits or from the local town area. The expression municipal area/local town area has not been defined either in the Act of 2014 or the Rules of 2015. In the absence of any definition of such term under Rajasthan General Clauses Act, 1955, this expression has to be understood in terms of the provisions contained in the Rajasthan Municipalities Act which defines municipal area. Under the (Downloaded on 08/04/2022 at 09:19:53 PM) (14 of 22) [CW-20668/2018] Rajasthan Municipality Act, 'municipal area' has been defined as below:-
"municipal area" means the territorial area of a Municipality as notified by the State Government from time to time;
21. The expression municipal area/local town area, therefore, would not include within its scope and ambit Panchayat area/village area.
22. The contention of learned counsel for the petitioner that for the purposes of the Act, expression municipal area/local town area as used in Rule 8 of the Rules of 2015 should be given a liberal interpretation to include Panchayat and village area cannot be accepted in the absence of there being anything in the Act of 2014 and Rules of 2015 in that regard.
23. The expression municipal or local town area, in the absence of that expression defined under the Act of 2014 or the Rules of 2015 will take its meaning from the provisions contained in the Municipality Act only and cannot be given or assigned any meaning other than that which has been provided under the local laws of the State namely Municipality Act. There is no compelling reason for us to include Panchayat area or dhanis within the expression "municipal or local town area" for the purpose of establishment of Toll Plaza as provided under Rule 8 of the Rules of 2015. If the argument of learned counsel for the petitioner is accepted, the provisions will be rendered completely unworkable as the State Highway on either side are adjoining various panchayats and village areas and dhanis, therefore, argument in this regard is liable to be rejected.
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24. The other argument of learned counsel for the petitioner that as there are various adjoining villages and in any case, it would endanger public safety if Toll Plaza is erected in such vicinity is liable to be rejected because there is no such legal impediment either under the Act of 2014 or the Rules of 2015. The statutory prohibition is only with reference to distance of Toll Plaza from municipal area/local town area. The rule making authority in its wisdom, allowed construction of Toll Plaza maintaining safe distance of at least 5 kms and in exceptional case even less than 5 kms, from more densely populated area of municipal and local town area rather than imposing any restrictions in terms of distance from village or panchayat area or dhanis.
25. The statutory scheme is very clear. Therefore, in the absence of any statutory prohibitions, establishment of Toll Plaza could not be faulted only on the ground that the Toll Plaza is in the vicinity of adjoining villages and dhanis. In the absence of any statutory provisions, only on that ground, location of Toll Plaza cannot be said to be illegal.
26. One of the main argument on which the learned counsel for the petitioner laid great emphasis was that there are guidelines issued by IRC and therefore, establishment of Toll Plaza on State Highway is required to be erected in compliance with those guidelines. The guidelines issued by the Government of India on 24.07.2013 have also been referred to.
27. The IRC guidelines which have been annexed along with the petition as Annexure 24 are recommended practice for location and layout of roadside motor fuel and motor fuel filling cum service stations. The Clause 1.1 reads as under:-
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(16 of 22) [CW-20668/2018] "1.1 The following principles have been laid down by the Specifications and Standards Committee (personnel given on the inside front and back cover) for general adoption after carefully considering the views of the representatives of major distributors of motor fuels."
28. Clause 4.4 thereof states that siting of fuel filling stations near existing check barriers should be avoided and they should be at least 1 km away from the check barrier.
29. Further Appendix 1 to the Government of India guidelines/norms dated 24.07.2013 (Annexure-25) provides for norms for Location, Layout and access to Fuel Stations alongwith National Highways. Clause 4.7 thereof, restricts location of fuel station within the distance of 1000 meters from any barrier including that of Toll Plaza and railway level crossing. It provided that no check barriers or Toll Plaza should be located within 1000 meters of a fuel station. These guidelines, however, relate to national highways and not to State Highways.
30. The IRC guidelines are recommendations for being adopted and that too in the matter of establishment of petrol pump outlet. These guidelines are not statutory guidelines but only recommendations. Clause 2 thereof, lays down the basic principles that the governing consideration for norms are to be minimize, as much as possible, interference to normal flow of traffic on the road by vehicles using the amenity and also to ensure safety. Therefore, such guidelines are for consideration of the State Authorities.
31. Taking into consideration all other relevant factors to minimize as much as possible, interference to normal flow of traffic on the road by vehicles using amenity and also to ensure safety, such (Downloaded on 08/04/2022 at 09:19:53 PM) (17 of 22) [CW-20668/2018] recommendations are made. Guidelines, however, do not have the force of law.
32. Much emphasis has been laid by the petitioner on various judgment which have been cited at bar particularly the decision of the Supreme Court in the case of Indian Oil Corporation Ltd. and Others Versus Arti Devi Dangi (supra). That was a case where on facts, it was found that IRC guidelines were adopted by the PWD of Madhya Pradesh. The clause in the advertisement required the tenderer to fulfill all the requirements under the Rules and the Sub-Rule of Public Works Department and having found that IRC has been adopted by the concerned State would construe the terms of the advertisement and pre-conditions for the tenderer to fulfill eligibility criteria, the argument that the IRC guidelines are not mandatory, was not sustained, keeping in mind the provisions of the advertisement, purports and objects of the norms, uniform application of the same to all the tenderers by the corporation and the requirement of public interest.
33. The other decision in the case of Maliram Versus Bharat Petroleum Corporation Limited and others (supra) was based on the decision in the case of Neeraj Kachhawaha Versus State of Rajasthan and Others (supra) wherein taking into consideration that the condition in NOC have to be strictly adhered to for compliance of guidelines of IRC, the guidelines were found to be mandatory for that reason as the conditions of NOC. The decision in the case of Aditya H.P. Centre and Others Versus Union of India and Others (supra) is also on its own facts. (Downloaded on 08/04/2022 at 09:19:53 PM)
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34. None of the aforesaid cases, relied upon by the petitioner, related to establishment of Toll Plaza but only with regard to establishment of petrol pump/outlets.
35. In the present case, establishment of Toll Plaza is governed by certain statutory provisions and statutory prohibition contained in Rule 8 of the Rules of 2015 would be applicable.
36. Learned counsel for the respondents have referred to various decisions including decisions of the Supreme Court in the case of Chief Commercial Manager, South Central Railway, Secunderabad and others Versus G. Ratnam and Others reported in (2007) 8 SCC 212 where it has been held that administrative instructions, guidelines, regulations which have no statutory force cannot be enforced in courts of law. The writ petition against any breach would not be maintainable, though the said breach may expose the authorities to disciplinary or other appropriate action. The decisions in the cases of Federation of Gujarat Petroleum Dealers Association and 2 Ors. Versus State of Gujarat and 11 Ors. (supra) and M.G. Saravanan Versus The Commissioner of Police, Trichy City Police Office and Ors. (supra), G. Sasikala Versus The Additional District Administrative, Krishnagiri District and Ors. (supra) and Arun Kumar Acharya and Ors. Versus National Highway Authority of India and Ors. (supra) as also in the cases of S. Shanmugharaja Versus The District Collector Puducherry District and Others reported in MANU/TN/2714/2017 and Saroj Bhatia Versus Indian Oil Corporation Ltd. reported in MANU/MP/0743/2014 have laid down that IRC guidelines are only administrative and not statutory.
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37. The cases cited by the petitioner dealt with case where the location of the petrol pump outlet was not governed by any statutory provision and the terms and conditions of eligibility in the advertisement impliedly or expressly included compliance of IRC guidelines.
38. We therefore come to the conclusion that, on facts, compliance of IRC guidelines was not mandatory, therefore, the present case where the location of Toll Plaza is governed by statutory provisions contained in the statutory Rules of 2015 framed in exercise of statutory powers under the Act of 2014 will hold the field and in the absence of there being statutory provisions under the law regulating location of Toll Plaza, there being no condition incorporated either in the advertisement or in the terms and conditions of eligibility for erection of Toll Plaza or in the concession agreement between government and the concessionaire, establishment of Toll Plaza cannot be said to be illegal or opposed to law.
39. In the present case, it being an admitted position that Toll Plaza is beyond the prohibited distance under Rule 8 of the Rules of 2015 and there being no violation of any statutory provisions governed, only on the ground of violation of the certain guidelines which are principle based, establishment of Toll Plaza cannot be said to be in violation of law.
40. Safety certificate has also been issued in favour of the respondent, copy of which has been placed on record which is annexed by respondent nos.6 to 8 as R/6-5 issued by the Chief Coordinator of Civil Engineering Department on 23.01.2018. (Downloaded on 08/04/2022 at 09:19:53 PM)
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41. Upon satisfaction arrived at on the basis of the compliance report on safety audit preliminary report and inspection held on 22.01.2018 which verified compliance of observations in that certificate, it has been observed that M/s. Chomu Chandwaji Tollways Pvt. Ltd. has complied all the observations and the project highway is safe and reliable for commercial operations.
42. Much emphasis has been laid on the State circular dated 27.12.2004 issued by the Chief Executive Engineer PWD Rajasthan, Jaipur. That instruction was issued prior to promulgation of the Act of 2014 and Rules of 2015. Once the location of Toll Plaza is regulated by the statutory provisions contained in Rules of 2015, prior circular could not be made a basis to contend that the location of Toll Plaza is illegal or opposed to law.
43. When the provisions with regard to location of Toll Plaza are regulated by the statutory rules, administrative norms issued prior to promulgation of Rules cannot be read into Rules to expose the terms of restrictions with reference to distance from the petrol pump. There being statutory regulation to regulate the location of Toll Plaza, guidelines as contained in IRC guidelines and the State Government letter dated 27.12.2004, by itself, would not bind the contractor.
44. Though vague pleadings have been made with regard to collection of toll fee in contravention of the rates prescribed under the Rules, reply of the respondent particularly official respondents is that collection of toll fee is in accordance with the Rules and the petitioner has failed to demonstrate with regard to specific rates that there is illegal levy of toll fee. Moreover, w.e.f. 01.04.2018 all the private vehicles have otherwise been exempted from levy of toll (Downloaded on 08/04/2022 at 09:19:53 PM) (21 of 22) [CW-20668/2018] fee and it has been clearly stated that tractors, tractors with trolley carrying agriculture produce are also exempted from toll fee.
45. Except pleadings that there are violation of certain guidelines, no specific material has been placed in the petition to satisfy this Court that the location of Toll Plaza as such, endangers public safety and therefore, it should be directed to be removed. The distance of petrol pump is stated to be about 175 meters from the Toll Plaza.
46. Respondent nos.6 to 8 cannot be faulted because they have acted in accordance with the Rules and there is no case of violation of the terms and conditions of concession agreement between the concessionaire and the respondents. Guidelines which have no statutory force or the administrative instructions could not be made basis to issue writ of mandamus to respondent nos.6 to 8 to remove Toll Plaza because such conditions were neither incorporated in the advertisement for construction of roads on PPP basis nor any condition was imposed on respondent nos.6 to 8 in line with the IRC guidelines or letter dated 27.12.2004 in the agreement. Respondent nos.6 to 8 is not bound by such instructions unless it is incorporated in the agreement or eligibility criteria laid down in the process of award for construction of State Highways.
47. Even though serious allegations against the petitioner were levelled by the respondents in their reply stating that the petitioner is not a law abiding citizen and against him action was taken for violation of the terms and conditions for operating ration shops and against him number of criminal cases have been registered, we examined the issue raised in this petition as to whether the location of Toll Plaza is against public interest.
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48. In the result, we do not find any merits in the petition. The petition is, therefore, dismissed.
(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ Karan/ (Downloaded on 08/04/2022 at 09:19:53 PM) Powered by TCPDF (www.tcpdf.org)