SUSHMA AGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The present writ petition has been filed for quashing notification dtd. 23/10/2020 (Annexure-1 to the writ petition) so far as the same relates to acquisition of the land of the petitioner for establishing toll plaza at Mauza-Putru (Kms. 274.500) on National Highway-33 contending that the same is in gross violation of National Highways Fee (Determination of Rates and Collection) Rules, 2008 (hereinafter referred to as "Rules, 2008") in particular, rule 8(2) thereof since the proposed toll plaza is within 60 kilometres of the existing toll plaza at Kokpara (Kms. 309.625) and no reason in writing has been recorded prior to such acquisition in terms with first proviso to rule 8(2) of the Rules, 2008. Further prayer has been made for quashing letter dtd. 23/3/2021 issued by the respondent no. 5 -GM(T)-cum-Project Director, Project Implementation Unit-Jamshedpur, National Highways Authority of India, Kandrabera, Seraikella-Kharsawan, whereby post facto reasons have been given for establishing a toll plaza at 'Putru' which is 35 Kms. from the succeeding toll plaza at 'Kokpara'. The petitioner has also prayed forest raining the respondents from taking possession of her land pursuant to notification dtd. 23/10/2020. It is further prayed for issuance of direction upon the respondents to relocate the proposed toll plaza at Mouza-Putru (Kms. 274.500) in a manner consistent with rule 8 of the Rules, 2008 and thereafter fresh notification for the said purpose be issued as may be necessary in view of the National Highways Act, 1956.

(2.) The factual matrix of the case as stated in the writ petition is that the petitioner purchased the land situated at plot nos. 572, 573, 574, 575, 576, Halka No. II, Khata No. 95, Mouza-Putru, measuring an area of 0.7385673 hectares, Taluka and Subdivision-Ghatsila (hereinafter referred to as "the said land") by virtue of a registered sale deed dtd. 11/11/2003. The said land is situated near National Highway-33 running in stretch through the State of Jharkhand. The petitioner having come to know that the National Highways Authority of India was intending to acquire the said land for establishing a new toll plaza, made a representation dtd. 7/3/2021 to the respondent no. 5 raising objection against the proposed acquisition of her land for establishing a toll plaza which was replied by the respondent no. 5 vide letter dtd. 23/3/2021 stating that the said toll plaza was being constructed to plug leakages in toll collection occurring at Galudih (Kms. 277.568), Ghatshila (Kms. 287.00) and Dhalbhumgarh (Kms. 300.820). It was further stated in the said reply that the acquisition procedure for the said land had been completed by depositing the required compensation with the District Land Acquisition Officer, East Singhbhum and the physical possession of the land by NHAI was under progress. Hence, the present writ petition.

(3.) Mr. M.S. Mittal, the learned Senior Counsel for the petitioner submits that National Highways Act, 1956 has been enacted declaring certain Highways to be National Highways and for the matters connected therewith. In exercise of powers conferred under Sec. 9 of the Act, 1956, the Central Government framed the Rules, 2008 for collection of fee for use of Sec. of national highways, permanent bridges, by-passes and tunnels. It is further submitted that rule 8(2) of the Rules, 2008 makes it clear that once a toll plaza is established on a National Highway, any other toll plaza on the same sec. of National Highway and in the same direction shall not be established within a distance of 60 Kms. Its purpose is thus clear and unambiguous that on the same sec. of a National Highway and towards the same direction, there must be a distance of 60 Kms. between two toll plazas within which no other toll plaza can be established. The intent behind such rule is to restrict the respondents from exercising unabridged power to establish toll plazas at any stretch of national highway. The said rule also connotes that the fee levied at a toll plaza is sufficient for use of 60 kilometers on a national highway. It is also submitted that the first proviso to rule 8(2) provides that where the executing authority deems necessary, it may for reasons to be recorded in writing, establish or allow the concessionaire to establish another toll plaza within a distance of 60 kilometers, however, this proviso is in the nature of an exception to the main rule and, hence must be mandatorily and strictly complied. The rule 8(2) of the Rules, 2008 is couched in a negative language and has used the word 'shall not' meaning thereby that it is mandatory in nature. In the present case, undoubtedly the proposed toll plaza at Mouza-'Putru' is only 35.5 Kms. away from the next toll plaza established at 'Kokapra' and no reason in writing was provided by the respondents at the time of acquiring the petitioner's land for construction of toll plaza within a distance of 60 Kms. from another toll plaza. Since it was quite clear that the toll plaza to be constructed on the petitioner's land at Mouza-'Putru' was within 60 Kms. from the succeeding toll plaza at 'Kokpara', it was incumbent upon the respondents to provide reasons in writing at the time of acquiring the said land and on this ground alone, the acquisition process of the petitioner's land is liable to be quashed. It is further submitted that only when the petitioner represented the respondent no. 5, he intimated the petitioner by providing reasons in writing for establishing the toll plaza at Mouza-Putru, which is within 60 kilometers of the succeeding toll plaza at Kokpara. The Rules, 2008 do not contemplate or permit such post facto justification. The Hon'ble Supreme Court in catena of decisions has held that toll being compensatory in nature, cannot be used to generate revenue of the government. It is only a sum of money taken in respect of a benefit arising out of the temporary use of land. However, in the present case, from the reasons given by the respondents, it is clear that the said toll plaza is being constructed only in order to increase the revenue of the respondents. Leakages in toll collection can never be a ground to construct another toll plaza within sixty kilometers. It is also submitted that letter dtd. 2/11/2018 issued by the respondent no. 1 - Union of India through the Ministry of Road Transport and Highways, New Delhi to various authorities dealing with development and maintenance of National Highways including the respondent no. 2 - National Highways Authority of India, through its Chairman, Government of India, New Delhi specifically provides certain guidelines to be followed for establishment of user fee plazas in all the projects under implementation as well as those at planning stage wherein guideline no. 3 mentions that all the executing agencies shall ensure that, for the projects currently under execution, establishment of user fee plazas must be in conformity of the Rules, 2008 and the amendments thereto as may be carried out from time to time. However, the respondent nos. 2 to 5 have breached the directives of the respondent no. 1. Notification dtd. 28/8/2020 issued by the respondent no. 1 was never brought to the notice of the petitioner and in any event if the said notification is found in violation of rule 8(2) of the Rules, 2008, the same has no force of law. It is also submitted that Sec. 3C of the Act, 1956 entitles a person to object to the use of land for the purposes mentioned in sub-sec. (1) of Sec. 3A, however, acquisition for the purpose of construction of a toll plaza has not been referred therein and, therefore, it would have been a futile exercise for the petitioner to object the notification dtd. 28/8/2020. The construction of toll plaza is governed by the Rules, 2008 and only under the said Rules, construction of toll plaza can be objected. The notice of the said acquisition was given sometimes in October, 2020 and during the said period, the entire country was adversely affected due to Covid-19 pandemic and, hence it was impossible for the petitioner to make inquiries about the notice of acquisition of her land. The petitioner has also come to know that none of the land losers has received any compensation from the respondents.