TaxTMI 
TaxTMI 
2021 (9) TMI 1503
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 to be heard along with LPA No. 236 of 2015, filed by the concessi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 kilometres from such limits". So, the pray of relief/reliefs of Petitioners are unjustified and unlawful. 9. That with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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 up the work of four-laning of NH30 from kilometre 181.300 to 189.500, only to reduce the excessive pressure of traffic. Reference is made to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppellant) 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 stated Annexure-I reveals that between 194 km. milestone and 197 km milestone the proposed new alignment separates from old N.H. 30. It is also apparent f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 was found to be that the Section was constructed to remove traffic congestion but it was also found that there was no conclusion that the Section was meant pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions. 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 clearly established, but also, reasons, within the meaning of the first proviso, must be provided. The view of High Court represents the correct position in law. It ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 1st day of April, 1976,] temporary bridges and tunnels on national highways [and the use of Sections of national highways]." Rule 7.(2) Such fees when so levied shall be collected in a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(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 of national highway, permanent bridge, by-pass or tunnel, as the case may be, by two wheelers, three wheelers, [tractors, combine harvesters] and animal drawn vehicles: Provided that three wheelers, [tractors, combine harvesters] and animal-drawn v....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unicipal 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 be established within a distance of sixty kilometres: 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 [fee plaza] within a distance of sixty kilometres: Provided further that a [fee plaza] may be established ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ict 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 may notice the following portions of the DPR, again the Executive Summary thereof, filed by the writ Petitioners: (Page No. 46 of the reply affidavit of Respondents Nos. 3 to 7) Para 1.2. Existing road Network National Highway 30 connects Patna City, the state of Bihar with Bakhtiyarpur, a township on the eastern side around 50 km away in Patna District along the Ganga River on north of it. NH-30 start....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7), 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 proposed to be developed as Tolled Road. The project road being only 50 km long, only one toll plaza will be feasible to be provided. During site reconnaissance it was observed that free space is available near km 194 suitable for development of Toll Plaza System. Same is already discussed with NHAI officials during site visit. (Emphasis supplied) 37. The very same thing, as stated in paragraph-6.6, is stated in paragraph-12.2.5, also under Miscellaneous Facilities: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 and Industrial Development Corporation of Maharashtra Ltd. and Ors. (1990) 3 SCC 280, the question arose in the following facts. Under a Statue, a Government Company was empowered to dispose of land vested in it. The question arose, whether there was a duty to give reasons, and the highest offer obtained in response to the invitation by public tender, could be rejected without assigning any reason. The Court went on to hold as follows: 10. In recent times, judicial review of administrative action has become exp....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al 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 are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge. 21. Thus it is settled law that the reasons are harbinger between the mind of the maker of the order to the con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 personwho had an agreement to purchase. It is only necessary to notice the following discussion in this regard: 31. The recording of reasons which lead to the passing of the order is basically intended to serve a two-fold purpose: (1) that the "party aggrieved" in the proceeding before (sic the appropriate authority) acquires knowledge of the reasons and, in a proceeding before the High Court or the Supreme Court (since there is no right of appeal or revision), it has an opportunity to demonstrate that the reasons which persuaded the authority to pass an order ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 it ensures objectivity in decision making. In order to ascertain that due application of mind has taken place in a decision, the presence of reasons on record plays a crucial role. The presence of reasons would fulfil twin objectives of revealing objective application of mind and assisting the adjudicatory body in reviewing the decision. The question that arises here is, whether the statement in the recorded minutes of the CVC meeting ("the features of the proposed Parliament building should be in sync with the existing Parliament building") is or is not indicative of application of mind. 290. In case....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al. 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, the decision-maker who has given no reasons cannot complain if the court draws the inference that he had no rational reason for his decision. In Administrative Law, P.P. Craig notes that it is relevant to consider the context in which decision operates thus: The court will consider the nature of the decision maker, the context in which it operates and whether the provision of reasons is required on grounds of fairness. Mr. Craig also refers to R. v. Ministry of Defence, Exp. Murray wherein certain principles relating to duty of reasons were elaborated. Lord Chief Justice Bingham, in his opinion, observed that the requirem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at: 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 decision, and this is to be taken into account in all its aspects. 4. An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (Emphasis supplied) 53. Still further, we may notice the following discussion: Turning to the present dispute I doubt the wisdom of discussing the problem in the contemporary vocabulary of "prisoner's rights", given that as a result of his own act the position of the prisoner is so forcibly distanced from that of the ordinary citizen, nor is it very helpful to say that the Home Secretary should out of simple humanity provide ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sp; xxx xxx 55. Doody concerned fairness as between the state and an individual citizen. The same principle is relevant also toplanning decisions, the legality of which may be of legitimate interest to a much wider range of parties, private and public (see Walton v. Scottish Ministers [2012] UKSC 44 : [2013] PTSR 51, paras 152-153 per Lord Hope). Here a further common law principle is in play. Lord Bridge saw the statutory duty to give reasons as the analogue of the common law principle that "justice should not only be done, but also be seen to be done" (see para 25 above). That principle of open justice or transparency extends as much to statutory inquiries and procedures as it does to the courts (see Kennedy v. The Charity Commission [2014] UKSC 20 : [2015] AC 455, para 47 per Lord Mance, para 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 court. The approach is illustrated by the comments of the Court of Appeal in R v. Lancashire County Council, ex parte Huddleston (1986) 2 All ER 941 at 945g and 947e, where reasons were encouraged in a spirit of co-operation by the public authority with the judicial review process. A second dimension is that the giving of reasons serves the interests of the person affected by the decision. This has to do with disclosure, to the 'parties'. It is exemplified by the decision of the House of Lords in R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, where reasons were required because of the prisoner's basic interest in knowing why decisions affecting liberty had been taken. The third dimension is that the giving of reasons s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ue 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 to France, it is stated as follows: .. the duty to give reason for administrative act is regulated by the law of 1979, the statutory duty to give reasons applies to all unfavourable administrative decisions. The reasons must be in writing and must contain the essential matter concerning the factual and legal situation (Article 3). 59. In regard to the duty to give reasons in Italy, it is stated as follows: Italian administrative law does not recognise a general duty to give reasons. In addition to the case in which the duty to give reasons is expressly laid down by statute, the courts have developed in a vast line of cases groups of decisions in which the duty of the administration to give reasons for its decisions results "from the nature of the matter,". This applies in particular to negative or unfavourable administrative d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re 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 impelled the Administrator to take a particular decision. Judicial review, in India, which encompasses the wide contours of public interest litigation as well, would receive immeasurable assistance, if the reasons for particular decisions, are articulated to the extent possible. The giving of reasons also has a disciplining effect on the Administrator. This is for the reason that the reasons would capture the thought process, which culminated in the decision and it would help the Administrator steer clear of the vices of illegality, irrationality and also disproportionality. Reasons could help establish application of mind. Conversely, the absence of reasons may unerringly point to non-application of mind. The duty to act fairly, may require reasons to be recorded but the said duty, though there is a general duty on all state players to act fairly, may have ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bject: 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 accountability on the part of DPR consultants and adequate participation and commitment of the concerned State Government authorities while finalizing toll plaza locations for NH projects is likely to address this issue. 2. Accordingly, the following guidelines shall be followed in this behalf for NH Projects to be awarded in future: (i) Toll Plaza locations recommended by the DPR consultants should be in conformity with the provisions of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 including applicable amendments in this behalf. In case of any deviations from the above Rules vis-à-vis the recommended locations for the Toll Plazas, a reasoned justification shall have to be provided by the DPR consultants. This requirement shall be suitably made a part of the Terms of Reference (ToR) for the DPR consultants; (ii) The Project execution aut....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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) provides that the Executing Authority or the Concessionaire shall establish toll plaza beyond a distance of 10 kilometres from a municipal or local town area limits. In this context, it is useful to bear in mind that Under Rule 6, fee levied under the Rules, has to be collected by the Central Government or the Executing Authority or the Concessionaire at the toll plaza. We have already found that the Executing Authority has been defined in Rule 2(f), as an Officer or Authority notified Under Section 5 of the National Highway Act. It would appear, therefore, that the Executing Authority, as defined, or the Concessionaire, is empowered to establish the toll plaza beyond a distance of 10 kilometres from a municipal or local town area limits. 66. The first proviso contemplates power with the Executing Authority to locate or allow the Concessionaire to locate a toll plaza within a distance of 10 km of such municipal or town area limits. However, the proviso engraft....
X X X X Extracts X X X X
X X X X Extracts X X X X
....templates that, if a Section of the national highway, permanent bridge, bypass or tunnel is located within 5 kilometres from the municipal or town area limits, then, the last limb of the proviso, would apply, and the toll plaza may be located within a distance of 5 kilometres from such limits. 68. It will be seen that whether the construction of the Section of the national highway, permanent bridge, bypass or tunnel is constructed within the municipal or town area limits or within 5 kilometres from such limits, the common requirement for invoking the power under the second proviso and to locate the toll plaza, either within the municipal limits or town limits or within a distance of 5 kilometres from such limit, is that the construction in question, must be primarily for the use of the residents of such municipal or town area. 69. To further recapitulate, we may summarise as follows: The second proviso produces the following results: i. Upon construction being made of a Section of the national highway (which is what we are concerned with in this case) within municipal or town area limits and upon the construction being primarily for the use of the residents of the municipal o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d proviso deals with a specific situation. We have already spelt out the requirements. These requirements alone would justify the location of the toll plaza either within the municipal or town limits or within a distance of 5 kilometres from such limits. The requirements are neatly articulated and cast in stone. They are objective criteria. They become the requirements of the Statue. If those requirements are met, then, the toll plaza can be established, relaxing the Rule. 72. In such circumstances, we are of the clear view that the High Court has erred in reading the second proviso in continuation with the first proviso and thereby concluding that, even the requirement of the first proviso, viz., the recording of reasons in writing, would also become necessary to invoke the power under second proviso. We would think that such an interpretation would fly in the face of the clear words used in the second proviso, and would, what is more, amount to rewriting the Rule. The real safeguard, which is present in the second proviso, is the nature of the objective and inflexible requirements, which are declared therein. 73. With regard to a proviso, the reliance placed by the Writ Petitio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 limits, the second proviso permits the location of the toll plaza even within the municipal limits or town area limits. Even if it were treated as constituting an exception to the Rule, full effect must be given to its mandate. 75. As far as the question, as to who can take a decision under the second proviso, we would think, on a conspectus of Rule 8, that, in the absence of any express reference to the power to take a decision, within the meaning of the second proviso, being lodged with any particular Body, the said power must be found vested with the Executive Authority. We say this for the reason that, some person must, indeed, take the decision that the situation warrants locating the toll plaza, in exercise of the power under the second proviso. We certainly cannot lodge that power with a Concessionaire. The Rule-maker has conferred the power on the Concessionaire, expressly when it declared in Rule 8, that the Concessionaire may, apart from the Executing Authority, locate the toll plaza beyond 10 kilometre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....DP 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-laning of the Patna-Bakhtiyarpur section], the following: Para 3.4. As observed from Schedule A and B in the DCA, new bypass starting from km 195 to km 231 has been proposed. This appears in continuation to an existing bypass from km 178 to km 196. It has also been observed the entire Project highway has urban/built up settlements across the stretch. Thus, providing for a bypass for through traffic appears justified. However, the distribution of local traffic and through traffic is not provided in the documents. The same may be provided to the members of the PPPAC. Through the traffic details will be the base for revenue assessments and therefore beneficial to suitably analyse the viability of the Project. (Emphasis supplied) 79. The broad scope of the work is shown as follows: Para 2. Scope of work 2.1 The broad scope of work as per the Schedules B and C of the DCA consists of construction and up-gradation to 4/6-lane road (km 178.60 at Patna) - (Km 230 at Bakhtiyarpur) from 2-lane with provision of project fac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncluding 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. Toll Plaza Location The project road is proposed to be developed as Tolled Road. The project road being only 50km long, only one toll plaza will be feasible to be provided. During site reconnaissance it was observed that free space is available near km 194 suitable for development of Toll Plaza System. Same is already discussed with NHAI officials during site visit. Service Road The concept of service is being conceived at built up area and grade separated intersections (Flyover & Underpass locations) which will come along the proposed alignment. The list of the proposed service road stretches are as follows: i. 181.3 to 189.11 ii. 206.8 to 207.4 (Emphasis supplied) 82. We have referred to the pleadings. We have also noticed the relevant parts of the DPR. In the Writ Petition, Petitioners themselves have pleaded that the road in question is a nationa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which specifically incorporates the view of the NHAI regarding the site. What has apparently happened is, in keeping with the newly introduced Rule (Rule 8 of the 2008 Rules), the NHAI has proceeded to accept the recommendation of the Expert Body to locate the toll plaza at km 194. 84. We are not unmindful of the fact that counter affidavit of the Appellants betrays a certain degree of ambiguity. This is for the reason that, what is pleaded in both the counter affidavits, was that, even if the toll plaza is located within the municipal limits, the second proviso to Rule 8 comes to the rescue of the Appellant. This is sought to be exploited by the Writ Petitioners to point out that even Appellants were not clearly aware, whether the toll plaza was being located within the municipal limits or not. Writ Petitioners also harp upon the clarity being infused by the counter affidavit filed by the Municipal Council of Patna that the toll plaza was located within the municipal area. We also agree that the matter becomes a little worse, when we read the pleadings of the Concessionaire. In the first counter affidavit, it was contended that the proposed toll plaza at km 194 is much beyond 5 k....
X X X X Extracts X X X X
X X X X Extracts X X X X
....from the construction, but that cannot detract from requirement of the second proviso being fulfilled, viz., that the construction was primarily for the benefit of the residents of the municipal area. The second proviso does not require that the construction must be solely for the benefit of the residents of the municipal area. 86. There is another aspect, which we cannot ignore. The construction was completed in accordance with the agreement with the Concessionaire. The Judgment of the Division Bench came to be stayed by this Court and the toll has been collected from the toll plaza. Secondly, the High Court may not be justified in finding that the commercial expediency trumped the law. Commercial expediency is, undoubtedly, a relevant fact. The exact location of the toll plaza is also geared to garner maximum revenue. Concessionaire Agreement lasts for a particular period of time. It is the Concessionaire, who makes the construction, after making the entire investment. The contract contemplates "Design, Build, Finance, Operate and Transfer (the "DBFOT") Under Rule 16 of the Rules, upon the expiry of the agreement, the fee is to be collected by the Central Government or the Execu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....8 of 2015, which in turn, was directed against Writ Petition No. 5643 of 2012, therefore, the obstacle, which is sought to be set up by the Writ Petitioners (Respondent Nos. 1 to 17) that the Judgment in Writ Petition No. 4526 of 2013 has become final. In other words, if the present Appeal is allowed, it would lead to a consistent decision, one by this Court and Anr. contradiction with our Judgment rendered final, viz., the Judgment in Writ Petition No. 4563 of 2013. 91. The contention, which is pressed before us by the learned Counsel for the Appellant, is by drawing support from the Judgment of this Court in Shenoy & Co. v. Commercial Tax Officer, Circle II, Bangalore and Ors. (1985) 2 SCC 512. 92. No doubt, that was the case where the constitutionality of a statute was challenged in a number of writ petitions. The provisions were struck down by the High Court. From the Judgment of the High Court, only one of the Writ Petition was challenged before this Court. While so, there were other developments, insofar as there was legislative activity aimed at removing infirmities of the law, which was struck down by the High Court and giving it retrospective effect also. More importantl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to perform a negative duty. The declaration of the law is binding on everyone and it is therefore, futile to contend that the mandamus would survive in favour of those parties against whom appeals were not filed. 25. The fallacy of the argument can be better illustrated by looking at the submissions made from a slightly different angle. Assume for argument's sake that the mandamus in favour of the Appellants survived notwithstanding the judgment of this Court. How do they enforce the mandamus? The normal procedure is to move the Court in contempt when the parties against whom mandamus is issued disrespect it. Supposing contempt petitions are filed and notices are issued to the State. The State's answer to the Court will be: "Can I be punished for disrespecting the mandamus, when the law of the land has been laid down by the Supreme Court against the mandamus issued, which law is equally binding on me and on you?" Which Court can punish a party for contempt under these circumstances? The answer can be only in the negative because the mandamus issued by the High Court becomes ineffective and unenforceable when the basis on which it was issued falls, by the declaration by ....