Madras High Court
No.41 vs 6 L & T Krishnagiri Walajahpet ... on 7 September, 2023
W.P.No.29396 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2023
CORAM :
THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.29396 of 2016
Anaithu Vyaparigal Sangam
Rep. by its Secretary (S.No.361 of 2002)
No.41, Kudiyatham Salai
Pallikonda, Vellore District. .. Petitioner
Vs
1 The Government of India
Rep. by the Secretary
Ministry of Surface/Road Transport
New Delhi - 110 010.
2 The National Highways Authority of India
Rep. by its Chairman
G-5 & G6, Sector 10
Dwaraka, New Delhi - 110 075.
3 The Chief General Manager (Coord-I & Public Grievances)
National Highways Authority of India
G-5 & G6, Sector 10
Dwaraka, New Delhi - 110 075.
4 The Project Officer
National Highways Authority of India
Krishnagiri
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W.P.No.29396 of 2016
5 The District Revenue Officer
Office of District Collectorate
Sathuvachari, Vellore.
6 L & T Krishnagiri Walajahpet Tollway Ltd
Pallikonda Toll Plaza, KM 98
520, Chennai-Bangalore Highway (NH-46)
Pallikonda-635 809. .. Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
seeking issuance of a writ of mandamus directing respondents 1 to
5 to relocate the Pallikonda Toll Plaza KM 98, 520 Chennai-
Bengaluru Highway (NH-46), Pallikonda-635 809, from its present
location to a different location within a stipulated time.
For the Petitioner : Mr.S.Ashwin Prashanth
for M/s.Pass Associates
For the Respondents : Mr.K.Srinivasamurthy, SPCCG
for 1st respondent
: Mr.Su.Srinivasan
for respondents 2 to 4
: Mrs.R.Anitha
Special Government Pleader
for 5th respondent
: Mr.Srinath Sridevan
Senior Counsel
for Mr.Thriyambak J.Kannan
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W.P.No.29396 of 2016
ORDER
(Order of the court was made by the Hon'ble Chief Justice)
We have heard Mr.S.Ashwin Prashanth, learned counsel for
the petitioner; Mr.K.Srinivasamurthy, learned Senior Panel Counsel
for the first respondent; Mr.Su.Srinivasan, learned counsel for
respondents 2 to 4; Mrs.R.Anitha, learned Special Government
Pleader for the fifth respondent; and Mr.Srinath Sridevan, learned
Senior Counsel for the sixth respondent.
2.1. Learned counsel for the petitioner submits that the toll
plaza is erected and established within the periphery of two
kilometers of the town. The same is prohibited as per Rule 8 of the
National Highways Fee (Determination of Rates and Collection)
Rules, 2008 [for brevity, “the Rules”].
2.2. Learned counsel for the petitioner further submits that
there was no impediment for the respondents to establish the toll
plaza beyond ten kilometers as is required. More than 16,000
persons of the said town use the said road and hardship is caused
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W.P.No.29396 of 2016
to them in view of collection of fee/toll.
2.3. Learned counsel for the petitioner relied upon a judgment
of a Division Bench of this Court in the case of R.Murali and another
v. The Chairman, National Highways Authority of India and others,
CDJ 2014 MHC 3208.
2.4. Learned counsel also relies upon the Circular dated
2.11.2018 issued by the Government of India, Ministry of Road
Transport and Highways.
3.1. Learned Senior Counsel for the sixth respondent submits
that the judgment of the Division Bench of this court in R.Murali
and another, on which reliance was placed by learned counsel for
the petitioner, has been overruled by the Supreme Court in the case
of The Chairman, National Highways Authority of India and others
v. R.Murali and another, (2015) 15 SCC 647.
3.2. According to learned Senior Counsel for the sixth
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W.P.No.29396 of 2016
respondent, the toll plaza was in existence since the year 2005.
The two-laning road was being converted into four-laning and,
subsequently, a concession agreement was entered into in the year
2010, valid for a period of 30 years.
3.3. It is further submitted that second proviso to Rule 8 of
the Rules, permits establishment of the toll plaza even within five
kilometers. It is also submitted that concession/discount as
contemplated under Rule 9 of the Rules is also provided.
4. Learned counsel for the National Highways Authority of
India submits that the Rules are being followed. Two-wheelers and
three-wheelers are not being charged any toll/fee. That apart, the
vehicles meant for transportation of agricultural produce, such as
tractors, are also not being charged any toll/fee. Toll/fee is
collected only from four-wheelers and heavy vehicles.
5. The National Highways Authority is required to consider all
the pros and cons for establishment of the fee plaza. The second
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W.P.No.29396 of 2016
proviso to Rule 8 of the Rules provides that where a section of the
national highway is constructed within the municipal or town area
limits or within five kilometers from such limits, primarily for use of
the residents of such municipal or town area, the plaza may be
established within the the municipal or town area limits or within a
distance of five kilometers from such limits.
6. Rule 9 of the Rules provides for the discounts. As per Sub-
Rule (1) to Rule 9 of the Rules, the executing authority or the
concessionaire, as the case may be, provide for multiple journey to
cross the toll plaza within the specified period at the rates specified
in Sub-Rule (2) to Rule 9 of the Rules.
7. The circular dated 2.11.2018 issued by the Government of
India, Ministry of Road Transport and Highways, provides that, as a
one-time measure, all the fee plazas established in deviation to Rule
8 of the Rules 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.
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W.P.No.29396 of 2016
However, the same appears to be a circular and not an amendment
to the statutory rules.
8. Moreover, the National Highways Authority is the
competent authority to consider whether, and in what manner,
discounts are to be granted to the local residents and what would
be effect on the concessionaire.
9. No doubt, as per the second proviso to Rule 8 of the Rules,
Fee Plaza/Toll Plaza can be established within a distance of five
kilometers from the municipal or town area limits and under Rule 9
of the Rules, discounts are also recognised. However, it is for the
National Highways Authority to consider the statistics/data with
regard to the collection of the fee/toll from the local residents and
also other aspects while determining the discounts.
10. The Apex Court in the case of The Chairman, National
Highways Authority of India and others, supra, has observed about
the permissibility of establishment of the toll plaza within a distance
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W.P.No.29396 of 2016
of five kilometers from the municipal or town area limits and also
with regard to the discounts available under Rule 9 of the Rules.
11. In the case of National Highways Authority of India and
others v. Madhukar Kumar and others, 2021 SCC OnLine SC 791,
the Apex Court observed that under Article 14 of the Constitution of
India, no State action can pass muster if it is found to be arbitrary,
but, then, a different or even an incorrect decision, would not make
an otherwise lawful decision vulnerable to judicial scrutiny. The
relevant paragraphs of the said judgment read thus:
“99. It is the case of the Writ Petitioners that the
decision to locate site of toll plaza at 194 kilometre is
arbitrary. Under Article 14 of the Constitution, no
State action can pass muster, if it is found to be
arbitrary. But, then, a different or even an incorrect
decision, would not make an otherwise lawful
decision vulnerable to judicial scrutiny. An arbitrary
decision 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
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W.P.No.29396 of 2016
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.
100. 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.
101. 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
particular. We have noticed the stand of the
appellants that this Court may issue appropriate
direction in this regard as this Court finds fit. We
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W.P.No.29396 of 2016
notice that there is no appeal by the Concessionaire
against the impugned order.”
12. In the light of the above said decision, we may not pass
any orders in the present writ petition. We, however, expect the
National Highways Authority to consider the collection of fee/toll, so
also the rate that can be collected from the local residents.
With these observations, the writ petition is disposed of.
There will be no order as to costs. Consequently, W.M.P.No.25420
of 2016 is closed.
(S.V.G., CJ.) (P.D.A., J.)
07.09.2023
Index : Yes/No
Neutral Citation : Yes/No
sasi
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W.P.No.29396 of 2016
To:
1 The Secretary
Government of India
Ministry of Surface/Road Transport
New Delhi - 110 010.
2 The Chairman
National Highways Authority of India
G-5 & G6, Sector 10
Dwaraka, New Delhi - 110 075.
3 The Chief General Manager (Coord-I & Public Grievances)
National Highways Authority of India
G-5 & G6, Sector 10
Dwaraka, New Delhi - 110 075.
4 The Project Officer
National Highways Authority of India
Krishnagiri
5 The District Revenue Officer
Office of District Collectorate
Sathuvachari, Vellore.
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W.P.No.29396 of 2016
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU,J.
(sasi)
W.P.No.29396 of 2016
07.09.2023
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