TaxTMI 
TaxTMI 
2021 (9) TMI 1503
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....3, 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, these writ petitions are allowed and Respondents No. 6 and 11 are directed to shift the proposed construction of Toll Plaza at 194 km milestone of Patna-Bakhtiyarpur Section of N.H. 30 from its present location to any other place on new alignment which separates from old N.H. 30 so that 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 the decision of shifting the above stated Toll Plaza to any other place as discussed above within six weeks from today and till then Respondents shall not collect the toll tax from those persons 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....
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....ment 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 to give 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% work has been completed. 8. That the deponent further submits that the installation of Toll Plaza is not in violation of Rule 8 of 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 further that 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 within the municipal or town area limits or within a distance of five kilo....
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.... 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 their upgradation 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 u....
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.... 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. Regarding the DPR being in consonance with the second proviso to Rule 8, it was found that there was nothing in the DPR, which would show that the construction of the new alignment was primarily for the use of the local residents. Therefore, even if, there is approval of the DPR, the said approval was not in accordance with Rule, as there was nothing before the officials of the NHAI, to conclude that the second proviso to Rule 8, was complied with. We may further notice: 28. Annexure-I to the 3rd counter affidavit filed on behalf of NHAI reveals that four lane construction of N.H. 30 starts from 181 km. milestone and ends to 230 km. milestone where it touches N.H. 31. Furthermore, above stat....
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....er the statutory requirement. It was further found that from the Affidavits of the NHAI or the Concessionaire, they have not been able to establish that the Section in the NH30 was constructed primarily for the use of residents of the municipal area. 14. While dealing with the scope of second proviso, the court went on to discuss the case law. Apart from Rule 8, it was found, inter alia, that the larger the distance of the location of the toll plaza, the lesser was the responsibility of the Executing Authority/Concessionaire. Recording of reasons, which was found necessary by the learned Single Judge, was found to conform to the principles of 'substantial justice' and 'in furtherance of legislative intendment'. It was further found that until the matters reached the court, the Appellants were not even aware as to whether the location of toll plaza was covered by the first proviso or second proviso. The Appellants were found to be more concerned about the commercial viability. Reference is made to the Affidavits of the Appellant and the Concessionaire, to essentially find that the case of non-application of mind, was made out. The specific stand of the Appellants ....
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.... matters. 17. Per contra, Shri Shyam Divan, learned Senior Counsel, would point out that a holistic view of Rule 8 would result in the following inevitable conclusions. It is pointed out that, in words, which are couched in unambiguously mandatory terms, the toll plaza shall not be located within 10 km from a municipal or town area limits. This is the Rule. The first proviso carves out an exception. It permits the construction of toll plaza within a distance of 10 km but subject to it being five or more kilometres away. Conscious of the hazards of diluting the mandatory requirements contained in Rule 8(1), the Rule-maker has imposed the limitation that such dilution shall be accompanied by reasons. It is obvious that the reasons must be rational and bear a nexus between the decision and the object. The second proviso, sought to be invoked by the Appellant, makes a drastic inroad into the 10 kilometre plus distance, proclaimed in Rule 1. It enables the Authority to put up the toll plaza even within the municipal or town area limits. Therefore, having regard to the consequences that would ensue of departing from the Rule, not only, should the requirements in the second proviso, be....
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....2. This is for the reason that the Judgment of the Division Bench, in Writ Petition No. 4526 of 2013, attained finality. It was pointed out that it was the Concessionaire, who is Respondent No. 26 in the present Appeal before us, which filed appeals challenging the Judgment in both the Writ Petitions. The Concessionaire has not pursued the matter in this Court. 21. The learned Counsel for the Appellant would point out that it suffices in law that, the Judgment in Writ Petition No. 5643 of 2012, is challenged, having regard to the decision of this Court rendered in Shenoy and Co. and Ors. v. Commercial Tax Officer, Circle II, Bangalore and Ors. (1985) 2 SCC 512. THE STATUTORY FRAMEWORK 22. Section 7 of National Highways Act provides for a levy of fee. The relevant portion of Section read as follows: Section 7(1) The Central Government may, by notification in the Official Gazette, levy fees at such rates as may be laid down by Rules made in this behalf for services or benefits rendered in relation to the use of ferries, [permanent bridges the cost of construction of each of which is more than rupees twenty-five lakhs and which are opened to traffic on or after the 1....
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....t bridge, by-pass or tunnel constructed through a public funded project from levy of such fee or part thereof, and subject to such conditions as may be specified in that notification. (2) The collection of fee levied under Sub-rule (1) of Rule 3, shall commence within forty-five days from the date of completion of the Section of national highway, permanent bridge, by-pass or tunnel, as the case may be, constructed through a public funded project. xxx xxx xxx (4) No fee shall be levied for the use of the Section ....
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....sp; xxx 30. Rule 8, being the provision at the centre of the controversy, reads as follows: Rule 8(1) The executing authority or the concessionaire, as the case may be, shall establish a [fee plaza] beyond a distance of ten kilometres from a municipal or local town area limits: Provided that the executing authority may, for reasons to be recorded in writing, locate or allow the concessionaire to locate a [fee plaza] within a distance of ten kilometres of such municipal or local town area limits, but in no case within five kilometres of such municipal or local town area limits: Provided further that where a Section of the national highway, permanent bridge, by-pass or tunnel, as the case may be, is constructed within the 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 [fee plaza] may be established within the municipal or town area limits or within a distance of five kilometres from such limits. (2) Any other [fee plaza] on the same Section of national highway and in the same direction shall not ....
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....l Plans. The projects being implemented or proposed for implementation in the near future are related to 4-laning of NH-31 Section from Bakhtiyarpur to Begusarai via Mokama by NHAI on DBFO basis, 4/6 laning of NH-841 NH-30 from Patna to Buxar via Ara by NHAI on DBFO basis and up gradation of adjoining State Highways, Digha Didarganj Ganga Expressway by Path-Nirman Vibhag/IL&FS, Major district roads, ordinary district roads and village roads by State/Local authorities etc. These projects are going to enhance traffic circulation in and around the project area. As per the available information, the Patna Buxar road is proposed to be started from Km 181.3 at Saristabad while Khagaria-Begusarai-Bakhtiarpur Section of NH-31 is proposed to be starting from Km 153.30 on NH 31 (1100 meter south of Bakhtiarpur intersection). Accordingly, after confirmation from NHAI, the project road is planned to be developed between these two start and end points as 4 lane access-controlled facility DBFO basis. 34. The DPR was prepared by an international consultant. In fact, what is produced before the court, is not the entire DPR, only the portions of the Executive Summary. 35. We....
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....yarpur. The stretch of NH-30 on new bypass and from Didarganj ROB (km 196) to Fatua (km 208) is very congested with local and thorough traffic all along. However, while new bypass area upto Didarganj has available ROW of 60 m for widening to 4/6 laning, the area between Didarganj to Fatua is being encroached/has built up settlement on both sides with available ROW less than 15-20m. Immediately after Fatua town (km 208) to Bakhtiyarpur (Km 227), this area is relatively less congested, but has pockets of staggered settlement in between, including at Bakhtiyarpur. Due to above-mentioned existing features, widening of existing road to standard 4-lane configuration would present considerable difficulty due to the physical constraints. In view of above-mentioned features, the proposed alignments have been considered on the southern side of the existing NH-30. 36. Under traffic studies, it is stated that, the total tollable traffic, at km 195 and 215 km, is 27161 PCU and 19201 PCU, respectively, considering 35 percent leakage on car and 15 percent leakage on other vehicles. It is further stated as follows: Para 6.6. Toll plaza location The project road is pro....
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....t record reasons for its decision. This is subject to the exception where the requirement has been expressly or by necessary implication done away. [See S.N. Mukherjee v. Union of India (1990) 4 SCC 594]. 41. In M/s. Mahabir Jute Mills Ltd., Gorakhpur v. Shri Shibban Lal Saxena and Ors. (1975) 2 SCC 818, one of the questions, which arose, was whether the refusal to refer a dispute Under Section 4K of the U.P. Industrial Disputes Act, 1947, was to be supported with reasons. This Court, inter alia, held as follows: 3. ... In a diverse society such as ours the Government has to work through several administrative agencies which have got a very wide sphere and if every administrative order is required to give reasons it will bring the governmental machinery to a standstill. It is well-settled that while the Rules of natural justice would apply to administrative proceedings, it is not necessary that the administrative orders should be speaking orders unless the statute specifically enjoins such a requirement. But we think it desirable that such orders should contain reasons when they decide matters affecting rights of parties. ... 42. In Star Enterprises and Ors. v. City ....
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....efer to following discussion by this Court: 10. There is no dispute that there is no Rule or administrative order for recording reasons in rejecting a representation. In the absence of any statutory Rule orstatutory instructions requiring the competent authority to record reasons in rejecting a representation made by a government servant against the adverse entries the competent authority is not under any obligation to record reasons. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer countersigning the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No ord....
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....e record should disclose reasons. It may not be like a judgment. But the reasons may be precise. In S.N. Mukherjee v. Union of India [(1990) 4 SCC 594 : 1991 SCC (L&S) 242 : 1990 SCC (Cri.) 669 : JT (1990) 3 SC 630], the Constitution Bench of this Court surveyed the entire case law in this regard, and we need not burden the judgment to reiterate them once over and at page 614, para 40 it held that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. In para 36 on pp. 612-13 it was further held that recording of reasons ... excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said principle would apply equally to all decisions and its applications cannot be confined to decisions which are subject to appeal, revision or judicial review. "It is not required that the reasons should be as elaborate as in the decision of a court of law." The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons ....
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....acts are disputed, necessarily the authority or the Enquiry Officer, on consideration of the material on record, should record reasons in support of the conclusion reached. Since the facts are admitted, the need for their reiteration was obviated and so only conclusions have been stated in the reports. The omission to record reasons in the present case is neither illegal, nor is violative of the principles of natural justice. Whether the conclusions are proved or not is yet another question and would need detailed consideration. (Emphasis supplied) 45. It will, at once, be noted that, the facts in the said case, were not disputed, and therefore, the omission to record reasons, was found neither illegal nor violative of principles of natural justice. 46. In C.B. Gautam v. Union of India and Ors. (1993) 1 SCC 78, Under Section 269-UD of the Income-Tax Act, 1961, an order for compulsory purchase, was made. Section 269-UD specifically mandate for reasons to be recorded in writing for the making of an order for purchase by the Central Government. The contention, which was raised, was that, recording of reasons did not obviate providing of an opportunity of hearing to the person....
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....Kranti Associates (P) Ltd. v. Masood Ahmed Khan (2010) 9 SCC 496, the National Consumer Disputes Redressal Commission (NCDRC), dismissed Revision Petition, only taking note of the fact that there were concurrent findings. This Court went on to find that the Order was vitiated but it is obvious that the Order of the Commission cannot be described as an administration decision. 49. Finally, we may notice a very recent Judgment in Rajeev Suri v. Delhi Development Authority and Ors. Transferred Case (Civil) No. 229 of 2020, Judgment dated 05.01.2020, which arose in the context of the decision, to go in for construction of the new Parliament building and certain other structures. While dealing with the question relating to non-application of mind, this Court also dealt with the impact of there being no reasons. We may notice the following discussion from the majority Judgment authored by A.M. Khanwilkar, J.: 289. Rules of natural justice are not embodied rules. They are means to an end and not end in themselves. The goal of these principles is to prevent prejudice. It is from the same source that the requirement of application of mind emerges in decision making processes as ....
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....a sole element (of no reasons or lack of elaborate reasons) cannot be enough to make or break the decision as long as judicial mind is convinced of substantial application of mind from other circumstances. Even in common law jurisprudence, there is no absolute requirement of reasoned order in all decisions. In Lonrho plc v. Secretary of State for Trade and Industry and Anr., it was contended that the decision is not based on convincing reasons and therefore, must be declared as illegal. The House of Lords refused to entertain this contention and noted that mere absence of reasons would not render the decision as irrational. Lord Keith, in his opinion, noted that the only significance of absence of reasons would be that if circumstances overwhelmingly point towards a different conclusion that the one reached by the body, it would be fatal. He noted thus: The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, ....
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....der, and in regard to whom, the view of the Court, in respect of the sentence to be undergone, was to be departed from by the Secretary of State, the Secretary was obliged to give reasons for such difference of opinion. The Court took the view that the decision of the Home Secretary vitallyaffected the future of the prisoner. The Court went on to make the following observations, inter alia: What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that: 1. Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. 2. The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. 3. The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the deci....
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....nder no general common law duty to give reasons for their decisions; but it is well-established that fairness may in some circumstances require it, even in a statutory context in which no express duty is imposed (see R. v. Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531; R v. Higher Education Funding Council, Ex p Institute of Dental Surgery [1994] 1 WLR 242, 263A-D; De Smith's Judicial Review 7th ed, para 7-099). xxx xxx xxx 55. Doody concerned fairness as between the state an....
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....ary, then: (1) there is no general duty to give reasons for a decision, but there are classes of case where there is such a duty. (2) One such class is where the subject matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reasons, at least for particular decisions, be given as of right. (3) (a) Another such class is where the decision appears aberrant. Here fairness may requirereasons so that the recipient may know whether the aberration is in the legal sense real (and so challengeable) or apparent; (b) it follows that this class does not include decisions which are themselves challengeable by reference only to the reasons for them. A pure exercise of academic judgment is such a decision. 56. In "Administrative Law Text and Materials", by Beatson, Mathews and Elliots, reference is made to the three dimensions in regard to duty to give reasons, which reads as under: Fordham, 'Reasons: The Third Dimension' [1998] JR 158 A first dimension is that the giving of reasons serves the interests of the court (or other tribunal) reviewing the decision. This rationale has to do with disclosure, to the cou....
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....mong decision-makers, unimpeded by considerations of what can or cannot be made public subsequently. b) A general requirement of reasons will impose an intolerable burden on the machinery of government. c) Delays in the handling of business will inevitably follow and additional expense will be caused. The public at large will suffer. The benefit will not match the cost. d) The imposition of a general duty will have far-reaching implications for central government, local government, and for many other bodies of a public or semi-public character Many more decisions will be opened up to the possibility of legal challenge and a further step down the road of 'judicialization' of affairs will be taken. e) The Imposition of a [general] duty to give reasons will not necessarily mean that the true or complete reasons will be stated. Decision-makers will adapt to the new regime and acquire the art of stating sufficient by way of reasons to preclude successful challenge, but candour will not always be displayed. 58. In Jurgen Schwarze's European Administrative Law, we notice the following position in regard to duty to give reasons. In regard ....
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....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, we 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. 61. Persons, who may have a right or an interest, would know, what are the reasons which impel....
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....ns 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. AN OFFICE MEMORANDUM AND A DIRECTION 63. The Writ Petitioners have produced Office Memorandum dated 5th September, 2017 and communication dated 2nd November, 2018 issued by MoRTH. We may notice that the communication dated 5th September, 2017, as produced in I.A. No. 103415 of 2021, is as follows: Office Memorandum Subject: Location of Toll Plazas on National Highways-reg, The undersigned is directed to refer to the subject above and convey that toll plaza locations recommended by the consultants engaged for preparation of DPRs for NH projects sometimes pose problems at site during project implementation. Ensuring accounta....
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....ementation as well as those in the planning stage: (i) For all National Highways Project, that have been awarded post 5th September, 2017, the guidelines specified vide NH-37012/0/2016-H dated 05.09.2017 shall be scrupulously followed. (ii) As a one-time measure, all the fee plazas, established in deviation to Rule 8 of NH Fee Rule 2008, may be notified as temporary fee plazas, with the condition that the Executing Agency shall relocate the fee plaza as per the provisions of the Rule within a period of two years. (iii) All the Executing Agencies shall ensure that, for the projects currently under execution, establishment of user fee plazas must be in conformity to NH Fee Rule 2008, and amendments there-to from time to time. (iv) Location of the user fee plaza w.r.t. the nearest municipality area and w.r.t. adjacent fee plazas on the same section, will also be specifically clarified in all cases taken up for approval by the SFC/EFC in future. Reasoned justification by DPR consultants for deviation from the Rules. This guideline is to be followed; it is reiterated for projects awarded after 05-09-2017. RULE 8 DEMYSTIFIED 65. Rule 8(1) prov....
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....vided 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 pla....
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....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 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 lim....
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....n to which it is a proviso. It can be a guide to glean the purport of the provision, in case there is ambiguity in the main provision. Ordinarily, the proviso is not permitted to operate beyond the ken of the main provision to which it is a proviso. At the same time, proviso, in a case, may be a substantive provision. In other words, having regard to the wording and the object sought to be achieved, a proviso may transcend its ordinary province and may be intended to operate as a substantive provision [See in this regard Commissioner of Commercial Taxes, Board of Revenue, Madras and Ors. v. Ramkishan Shrikishan Jhaver etc. AIR 1968 SC 59, which is being relied upon in Indore Development Authority v. Manoharlal and Ors. 2020 (8) SCC 129.]. These are well settled principles and we do not intend to burden the Judgment with further case law. Having regard to the provision in question, viz., Rule 8, we are of the clear view that the second proviso to the Rule is an instance of the proviso representing a substantive provision in itself. In other words, while the Rule proclaims a total embargo against the location of the toll plaza within ten kilometres of the municipal or town area limit....
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....d 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. WHETHER INVOCATION OF THE SECOND PROVISO TO RULE 8 IN THE FACTS ILLEGAL? 78. Though originally, the Ministry of the Road Transport and Highways (MoRTH), proposed upgradation of the existing two-lane stretch from Patna to Bakhtiyarpur to four/six-lane highway based on the appraisal notes of the Planning Commission and DEA, the Patna-Bakhtiyarpur project received final approval for the development of the stretch as a four-lane highway. This is evident from the record note of discussion of the meeting of the Public Private Partnership Appraisal Committee (PPPAC) dated 10th February, 2010. Even prior to the same, a Detailed Project Report (DPR) was prepared by an International Consultant. Thereafter, the Cabinet Committee cleared the project under NHDP Phase III on DBFOT basis, i.e., Design, Build, Finance, Operate and Transfer. It is apposite to notice, in the appraisal note [when the proposal was for four/six-l....
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....o km 190.0 of bypass Section there is a very congested stretch due to the presence of Transport Nagar, residential buildings & commercial activity. Further NH-30 intersects with NH-19 at Km 188+500. At Km. 188+800, SH-1 starts form the Patna bypass and traverses towards south (towards Masaurhi). From km 190 to km 195 of bypass Section there is agricultural land on both side of road. At Km. 195+750, it further crosses railway line (Patna-Kolkata section) through a newly built 4-lane ROB. Further it traverses through Didarganj (Km. 197). The stretch of NH-30 on new bypass and from Didarganj ROB (Km 196) to Fatua (Km 208) is very congested with local and thorough traffic all along. However, while new bypass area upto Didarganj has available ROW of 60m for widening to 4/6 laning, the area between Didarganj to Fatua is being encroached/has built up settlement on both sides with available ROW less than 15-20m. Immediately after Fatua town (Km 208) to Bakhtiyarpur (Km 227), this area is relatively less congested, but has pockets of staggered settlement in between, including at Bakhtiyarpur. Due to above-mentioned existing features, widening of existing road to standard 4-lane con....
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....project road ends at 231 kms, where NH30 meets NH31. The Project Report also makes it clear that from km 180 to km 190 of the bypass section, there is a very congested stretch. From km 190 to km 195, it is further stated that there is agricultural land on both sides. Didardanj is located even further to the east, and still further is, Fatua town. Construction of the bypass in that area, was found to be impracticable and it is accordingly that from 196 kms, the new alignment towards the south, was carried out. The Project Report further reveals that the project road is only 50 kilometres long. Only one toll plaza could be provided. In this regard, Rule 8(2) contemplates the distance of 60 kilometres between two toll plazas. The Project Report further reveals that the NHAI Officials were available at the site along with the persons who prepared the DPR, and it is thereafter that this location was quite clearly accepted by the NHAI, as when it entered into the agreement with the Concessionaire, the agreement itself provides for the site of the toll plaza being km 194. It may be true that there may not be any decision which specifically incorporates the view of the NHAI regarding the s....
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....ady 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 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 ....
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....rs are permitted but within 10 kilometres from the toll plaza. We notice these provisions to pronounce on the complaint of the Writ Petitioners that there is blocking of the service roads near the toll plaza. We make it clear that barriers shall be permissible only in compliance with Rule 17 of the Rules. IMPACT OF APPELLANTS NOT CHALLENGING JUDGMENT IN WRIT PETITION NO. 4526 OF 2013 89. The further question to be considered, is the effect of Appellant not challenging the Judgment rendered in the Writ Petition No. 4526 of 2013, filed by one Ritesh Ranjan Singh. The said Petitioner filing the Writ Petition, was filing it as Public Interest Litigation and it was so treated. It was, however, made over to learned Single Judge, who heard it along with Writ Petition No. 5643 of 2012. We have already noted, in first paragraph of this judgment, the manner in which both Writ Petitions were disposed of. 90. It is true that the Appellant filed LPA in 2015 only against Writ Petition No. 5643. Concessionaire filed two Appeals. All the three Appeals came to be dismissed. The present Appeal is filed only against the Judgment in LPA No. 388 of 2015, which in turn, was directed against Wri....
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....ds to the initiation of action. In this case, the Petitioners-Appellants assert that the mandamus in their case was issued by the High Court commanding the authority to desist or forbear from enforcing the provisions of an Act which was not validly enacted. In other words, a writ of mandamus was predicated upon the view that the High Court took that the 1979 Act was constitutionally invalid. Consequently the Court directed the authorities under the said Act to forbear from enforcing the provisions of the Act qua the Petitioners. The Act was subsequently declared constitutionally valid by this Court. The Act, therefore, was under an eclipse, for a short duration; but with the declaration of the law by this Court, the temporary shadow cast on it by the mandamus disappeared and the Act revived with its full vigour, the constitutional invalidity held by the High Court having been removed by the judgment of this Court. If the law so declared invalid is held constitutionally valid, effective and binding by the Supreme Court, the mandamus forbearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. Th....
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....ion 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. 95. We have found that the Executing Authority is the Competent Authority to take decision under the second proviso to Rule 8 of the Rules. We, no doubt, have found, there is no duty to record reasons. In paragraph-77 of our Judgment, we have explained the duty of the Executing Authority. In the light of this, the Executing Authorities must maintain record, which must contain the decision to locate a toll plaza, invoking the second proviso. 96. Rule 9 of the Rules provides for discounts. The Appellants and the Concessionaire are duty bound to extend the concessions to the local residents, in par....