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4.1 The counsel for respondent no. 2 & 3 - NHAI submits that the National Highway No. 2 (hereinafter referred to as NH2) is a major highway of notable importance both geographically and historically constituting a major portion of the Grand Trunk Road and connecting the states of Delhi, Haryana, Uttar Pradesh, Bihar, Jharkhand and West Bengal. It is also one of the busiest highways in the country. Since, it passes through major and populous cities of the country, it witnesses an astonishing amount of accidents. To prevent these incidents, the proposal to construct FOBs was 6 of 25 Neutral Citation No:=2024:PHHC:137877 CWP-2852-2024 (O&M). -7- discussed in various District Road Safety meetings for providing a safe passage to public at large and the same was to be done on priority basis. 4.2 The counsel further states that as per the recommendation made by the Independent Engineer in consultation with the Concessionaire, Road Safety Experts, District Administration and Traffic Police Authorities, the location of 7 FOBs in District Faridabad and 5 FOBs in District Palwal had been identified and finalized. For additional safety, provision for fixing of additional median guard rail on the highway, pedestrian guard rail and widening of the service road at certain location on the Delhi Agra Highway was also included in the estimate for the work of FOBs. After inviting tender vide NIT dated 03.07.2023 for the construction of FOBs, a Letter of Award (hereinafter referred to as LOA) was issued in favor of the contractor M/s SEC Buildtech Pvt. Ltd. and the agreement was signed. In the instant case the FOB is being constructed at Km. 32+560 near YMCA. 4.3 The counsel further argues that on receipt of the letter of representation of the petitioner dated 06.01.2024 requesting reconsideration of construction of the abovementioned FOB, the respondent-NHAI vide letter dated 10.01.2024 bearing no. NHAI/CMU/MTR/6-Laning/2024/D- 73565 forwarded the representation of the petitioner to the Independent Engineer i.e. M/s L.N. Malviya Infra Projects Pvt. Ltd. and to the concessionaire i.e. M/s DA Toll Road Pvt. Ltd. for comments and recommendations. The Independent Engineer, after duly considering the submissions of concessionaire contained in the letter dated 11.01.2024 bearing no. DATR/SITE/NHAI/2024/01/1364, informed the respondent-




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                                    Neutral Citation No:=2024:PHHC:137877

CWP-2852-2024 (O&M).                                            -8-

NHAI vide letter dated 20.01.2024 bearing no. LNMIPPL/PD/NHAI/Delhi- Agra/2024/1086, that the location of the FOB near the YMCA was finalized after inspecting the site with the concessionaire and the Police Department and the same is proposed at the location where the pedestrians cross the Highway and have the most probability of getting in an accident. In fact, the concessionaire in its letter dated 11.01.2024 specifically mentioned that the location has been jointly finalized by taking inputs from the Traffic Police, the NHAI, the Independent Engineer and the Concessionaire for the safety of the pedestrians and as per the demand of the public thereby, ensuring the maximum utilization of the FOB by the General Public. 4.4 The counsel vehemently argues that any change in the location of the FOB would not serve its destined purpose and is not feasible in the interest of public safety. The matter was even reconsidered on receipt of the representation and it was observed that in case the location is shifted, the use of the FOB would be minimal as people would avoid crossing the highway through the FOB if the location of the FOB is too far from the crossing point and therefore, there would be no purpose of constructing the said FOB. Thus, keeping in mind the larger public interest, the location of the FOB could not be changed.

for the construction of the FOBs, preconstruction activities were carried out by the contractor, prior to the commencement of the construction of the said FOB. The Independent Engineer, vide letter dated 01.02.2024 bearing no. LNMIPPL/NHAI (SEC-FOB)/Delhi Agra/2024/006, had intimated NHAI regarding the objections raised by the local people against the construction of FOBs at different locations and requested the support and assistance from the local administration. A detailed table comprised of the chainage, location of the FOB on the highway, site availability, and name and numbers of the persons raising objections to the construction of the FOBs was also mentioned. As far as the objections raised by the petitioners at the site of the FOB at Km. 32+560, are concerned, it was concluded by the Independent Engineer that keeping in view the situation on the ground, the change in the location of the FOB would not be in the public interest. The site ensures the safety of the public and maximum utilization. 4.7 The counsel for the respondent-NHAI emphasizes that various High Courts across the country have upheld that the infrastructural projects for the larger public interest keeping in view that the safety of the general public is of paramount importance and therefore, the same must supersede private interest. To establish the same, she places reliance on the judgment of Delhi High Court in the matter of Panchshilla Cooperative House Building Society Limited & Ors. v. State (Govt) of NCT of Delhi & Ors. reported as 2015 (222) DLT 10 wherein the court held that:

4.10 Further, the counsel draws attention of this court by showing photographs of the actual and current status of the construction site of the FOB in question which shows that the foundation for the construction of the structure of the FOB on right hand side has been completed and that the construction of the same would not hinder the business of the petitioner as the same is at a location away from the gates of the land of the petitioner. Moreover, she contends that both the gates of the establishment of the petitioner are free and none of the gates are blocked or hindered by the construction of the said FOB. He refers to the photographs, detailed layout plan and the aerial view of the location and contends that the said FOB is being constructed at the most suitable location to facilitate the commuters/pedestrians/workers travelling across the highway from the nearby villages, other connecting roads and the several industrial houses situated in close proximity of the location. Apart from this, there is an existing flyover starting at Km. 32+470 which makes it infeasible to shift the location of the FOB. He contends that from the perusal of the letter of the contractor dated 18.03.2024 bearing no. SEC/NHAI/FOB/NH-2/24/37, 12 of 25 Neutral Citation No:=2024:PHHC:137877 CWP-2852-2024 (O&M). -13- it is evident that the petitioner waited silently till cement concrete was laid in the foundation before raising an objection at the site against the location of the FOB at Km. 32+560 due to which police support from the Deputy Commissioner, Faridabad was requested by the contractor to ensure timely completion.