Gram Panchayat, Dangdehri, And ...

vs Union Of India And Others on 25 January, 2012

Punjab-Haryana High Court Punjab-Haryana High Court Gram Panchayat, Dangdehri, And ... vs Union Of India And Others on 25 January, 2012 C.W.P. No. 21332 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 21332 of 2011 (O&M) Date of Decision : 25.01.2012 Gram Panchayat, Dangdehri, and others ........Petitioners Versus Union of India and others ........Respondents ****** CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.1. Whether Reporters of local newspapers may be allowed to see judgment? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Mr. Bhag Singh, Advocate, for the petitioners Mr. J.K. Sibal, Sr. Advocate with Mr. Dhawal Bhandari, Advocate and Mr. Karan Singla, Advocate, for NHAI. *** Alok Singh, J. (Oral) In nutshell, National Highways Authority of India has awarded contract to M/s Soma Isolux N.H.-1 Tollway Pvt. Ltd. (hereinafter referred as Concessionaire) for the project of six laning of Panipat-Jalandhar Section of NH-1 from Km 96.00 to Km 387.100 in the State of Haryana-Punjab on 09.05.2008. As per contract Concessionaire is responsible for surveys, design, validation, financing, procurement, construction, commissioning, operation and maintenance of the Project assets at its own risk including toll collection construction and concession for a period of 15 years. Earlier Toll Plaza was installed and working at present location commonly known as Shambhu Barrier.As per approved project Fly over has to be constructed at the present location within stipulated time, therefore, Respondents have decided to shift toll plaza at the proposed site 1.5 km C.W.P. No. 21332 of 2011 (O&M) 2 from the Municipal limit of Ambala. Feeling aggrieved, petitioners have invoked writ jurisdiction of this Court under Article 226 of the Constitution of India. Question involves in the present petition is :-

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Gram Panchayat, Dangdehri, And ... vs Union Of India And Others on 25 January, 2012

As to whether Concessionaire can shift and install toll plaza within 1.5 km from the Municipal Limits of Ambala City from the present location popularly known as Shambhu Barrier ? Mr. Bhag Singh, learned counsel for the petitioners has vehemently argued that initially the toll plaza was erected at Shambhu barrier and now it is being shifted towards Ambala City so as to extract money from every person who is using hardly 1 to 5 km National Highway No.1 commonly known as G.T. Road. He has further argued that the proposed toll plaza is being installed within 1.5 kms from the municipal limits of Ambala City in violation of Rule 8 of the National Highways Fees (Determination of Rates and Collection) Rules, 2008 (hereinafter referred as 'Rules 2008'). He has further argued that the earlier respondents also tried to shift Shambhu toll barrier at Shahabad, but due to the protest from the public, the Authorities removed the cabins from Shahabad area as the said collection centre was within 10 kms of municipal limits of Shahabad and now they are shifting said Shambhu toll plaza within 1.5 kms from the municipal limits of Ambala City just to cover every vehicle going towards Banur side by using only 1 km of G.T. Road and also to cover up the vehicles coming from the side of Banur towards Ambala City, with malafide intention. As per learned counsel Respondents can shift Toll Plaza within the territory of Punjab in District Patiala. On the other hand, Mr. J. K. Sibal, learned Senior Advocate for the respondent Nos. 2 to 6 has vehemently argued that the present toll plaza at KM 213 is one of the three toll plazas incorporated in the agreement dated C.W.P. No. 21332 of 2011 (O&M) 3 09.05.2008 and the said agreement was executed between the Concessionaire and the Government for a period of 15 years and as per the agreement every person whosoever crosses the toll plaza has to pay toll tax. He has further argued that as far as the persons who are residing within 20/10 kms of the toll plaza, their vehicles are entitled to concessional rates on the basis of monthly pass of `300/- or `150/- per month respectively and not at `80/- per trip. He has further argued that toll plaza at KM 213 is required to be shifted urgently because fly-over is to be constructed at the present location as per the approved project. He has further argued that the 2008 Rules do not apply to the present project agreement, as the agreement was entered into between the Concessionaire and the N.H.A.I before publication of the 2008 Rules. I have carefully considered the arguments of learned counsel for both the parties and have gone through the records. Rule 1 of 2008 Rules reads as under :1. Short title and commencement :- (1) These rules may be called the National Highways Fee (Determination of Rates and Collection) Rules, 2008. (2) They shall come into force on the date of their publication in the Official Gazette. (3) They shall not apply to agreements and contracts executed and bids invited prior to the publication of these rules. From the perusal of the above said Rule, more particularly sub-rule (3) of Rule 1, it is crystal clear that the 2008 Rules shall not apply to the agreements and contracts executed between the parties prior to the publication of these Rules. Not only this, if bids for contract were invited prior to the publication of Rules 2008, same shall have no application to the agreements or contracts executed pursuant to the bids invited prior to the publication of 2008 Rules. C.W.P. No. 21332 of 2011 (O&M) 4 Admittedly, the agreement/contract was executed between the Concessionaire and the N.H.A.I on 09.05.2008 whereas the said Rules came into force from the date of its publication in the official gazette i.e. on 05.12.2008. Thus, it is crystal clear that on the date of execution of the agreement between the Concessionaire and the N.H.A.I on 09.05.2008 the Rules 2008 were not existing and as such 2008 Rules do not apply to the agreement/contract in question. The decision of the respondents for shifting toll barrier from its present location towards Ambala side is not in violation of Rules 2008. The argument of the learned counsel for the petitioner that the residents of nearby villages of Ambala have to pay toll tax is no ground to quash the decision of the respondents for shifting of toll plaza. Every vehicle crossing toll tax Barrier has to pay toll tax imposed/fixed in accordance with law. Rates of Toll fee as fixed and being recovered is not under challenge in the present case. Moreover, shifting of
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Gram Panchayat, Dangdehri, And ... vs Union Of India And Others on 25 January, 2012

toll plaza from the present location to the proposed location seems to be bonafide in view of the fact that at the present location flyover has to be constructed to ease the traffic flow within stipulated time as per the agreement. Development and construction of National highway should not be stopped for the simple reason that some of the residents shall face inconvenience or shall be burdened with toll fee. Argument of Mr. Bhag Singh, learned counsel for the petitioner that toll plaza can be installed towards Rajpura Punjab cannot be accepted for the simple reason that N.H.A.I and Concessionaire, while choosing the site for installation of Toll tax, have to consider viability, availability of space/location including financial aspect. In the opinion of this Court at almost every location residents of nearby area shall have same objection that they will be using very very short part of National Highway and even then they have to pay toll tax. Therefore, C.W.P. No. 21332 of 2011 (O&M) 5 action/decision to shift toll plaza within 1.5 km from Ambala Municipal limit does not seem to be unjustified, arbitrary or in violation of Rules 2008. This Court, while exercising jurisdiction under Article 226 of the Constitution of India ordinarily should not review the policy decision of the Government unless in the peculiar facts and circumstances of the case, Court comes to the conclusion that policy to shift toll plaza is full of malafides or can be termed as totally unjustified and arbitrary to attract Article 14 of the Constitution of India. As observed hereinabove shifting of toll plaza is necessitated to facilitate construction of flyover at the present site. Petition has no force consequently deserves to be dismissed. Dismissed. No cost. ( Alok Singh ) Judge January 25, 2012 Anand

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