KUNJ BIHARI Vs. SPECIAL JUDICIAL MAGISTRATE II

JUDGEMENT

(1.) By means of this writ petition, moved under Article 226 read with Article 227 of the Constitution of India, the petitioner has sought writ in the nature of certiorari calling for the records and quashing of the impugned order dated 21.3.2005 (copy Annexure -4 to the writ petition) passed by the Special Judicial Magistrate, Dehradun, in criminal complaint case No. 1242 of 2004, Cantonment Board v. Kunj Bihari.

(2.) BRIEF facts of the case as narrated in the writ petition are that the petitioner is owner of bus No. UP -07/ J 8703, having stage carriage permit to ply the vehicle between Dehradun and Dakpathar. The road between Dehradun and Dakpathar is part of National Highway No. 72. This National Highway No. 72 (for brevity hereinafter NH -72) starts from Rishikesh with terminal point at Ambala. The said Highway pass through Dehradun, Ponta Sahib and Nahan. NH -72 was notified as National Highway vide Notification dated 6.1.1999 and before that it was a State Highway. On 21.12.2004, the Executive Officer, Cantonment Board, Dehradun exercising its powers conferred under Section 82 of the Cantonment Act, 1924 (Act No. 2 of 1924) submitted a complaint against the petitioner before the Court of Special Judicial Magistrate, Dehradun by issuing challan No. 13 for nonpayment of toll tax at Premnagar barrier on 26.7.2004. The Special Judicial Magistrate (respondent No. 1) registered the complaint case No. 1242 of 2004 on the basis of the challani report, against the petitioner. The petitioner appeared before the Magistrate and filed his objections against the complaint on 21.1.2005, challenging the power of Cantonment Board (respondent No. 2) realizing any kind of toll or tax on a National Highway. According to the petitioner, the entire control over the National Highway vests with the Central Government under National Highways Act, 1956 (Act No. 48 of 1956) and the control of National Highways (Land and Traffic) Act, 2002 (Act No. 13 of 2003). In this connection, the petitioner has referred Section 4 and Section 7 of the Act. No. 48 of 1956. Petitioner has also raised the plea that under Section 15 of Act No. 13 of 2003, the jurisdiction of all the Courts except Supreme Court and High Court is barred in respect of any dispute regarding which the power has been given by the Central Government to Highway Administration/Highway Tribunals. It is further pleaded by the petitioner that Municipal Board or Cantonment Board has no power to collect any kind of toll or fee without approval of the Central Government. In this connection, the petitioner has referred the letters dated 9.2.2004 (copy Annexure -6 to the writ petition) and 30.7.2004 (copy Annexure -7 to the writ petition) issued by the Engineers of the National Highways. Public Works Department, Dehradun, wherein objection has been raised relating to realization of the toll by the Cantonment Board by putting a barrier over the National Highway. The Special Judicial Magistrate (respondent No. 1) before whom the complaint case is pending, after hearing the parties, rejected the objections of the petitioner vide its order dated 21.3.2005 (copy Annexure -4 to the writ petition) holding that it has the jurisdiction to proceed with the case in the matter. Aggrieved by the same, the present writ petition has been filed.

(3.) I heard learned Counsel for the parties at length and perused the affidavits and counter -affidavit filed by the parties alongwith the annexures annexed thereto.