Jagdish Prasad Meena S/O Shri ... vs The State Of Rajasthan
2022 Latest Caselaw 3008 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

             D.B. Civil Writ (PIL) Petition No.20668/2018

Jagdish Prasad Meena S/o Shri Prabhat Ram Meena, Aged About
42 Years, R/o 132, Vijay Singh Pura Basa, Tehsil Chomu,
Kushalpura      Jaipur     (District).         Permanent          Account      No.-
AOXPM1511R, Aadhar No.530321018265, Mobile No.9694503387
                                                                    ----Petitioner
                                    Versus
1.    The State Of Rajasthan, Through The Chief Secretary,
      Public    Works     Department,           Government         Of   Rajasthan,
      Jaipur (Raj.)
2.    Secretary,    Public      Works       Department,           Government    Of
      Rajasthan, Jaipur (Raj.)
3.    Chief Engineer (NH), Public Works Department, Jaipur
      (Raj.)
4.    Superintending Engineer (PPP-I), Public Works Department,
      Jaipur (Raj.)
5.    Project Director, PPP-I, Public Works Department, Jaipur
      (Raj.)
6.    Chomu Chandwaji Tollways Pvt. Ltd., Registered Office At
      209, 210, Neelkanth Building, Opposite Sahkar Bhawan,
      Bhawani Singh Road, C-Scheme, Jaipur- 302001.
7.    Gopal Singh Narayan S/o Not Known, Director, Chomu
      Chandwaji Tollways Pvt. Ltd. R/o 209, 210, Neelkanth
      Building, Opposite Sahkar Bhawan, Bhawani Singh Road,
      C-Scheme, Jaipur-302001.
8.    Murari Lal Agrawal, S/o Not Known, Director, Chomu
      Chandwaji Tollways Pvt. Ltd. R/o 209, 210 Neelkanth
      Building, Opposite Sahkar Bhawan, Bhawani Singh Road,
      C-Scheme, Jaipur-302001.
9.    District Collector, Jaipur District (Raj.)
10.   Sub Division Officer, Chomu, Tehsil District, Jaipur (Raj.)
11.   Tehsildar, Chomu, Tehsil, Jaipur District (Raj.)
12.   The Territory Manager (R), Bharat Petroleum Corporation
      Limited, Regional Office Of Jaipur Division, Jaipur
13.   Bharat Petroleum Corporation Limited, Through Its Chief



                      (Downloaded on 08/04/2022 at 09:19:53 PM)
                                              (2 of 22)                  [CW-20668/2018]


          Vigilance Officer, Bharat Bahvan-1-486, Karim Morya Belar
          Estate, Mumbai-400001
  14.     M/s.   Kamal     Mani      Fuel     Services,       (A     Unit   Of   Bharat
          Petroleum Corporation, Through Neeraj Sharma), Bansa
          Chitwari Mod, Chomu Chandwaji Road, Village Kushalpura,
          Near Kushal Pura Toll Plaza, Tehsil Chomu, District, Jaipur
                                                                     ----Respondents


  For Petitioner(s)          :    Mr. Sehban Naqvi, Advocate
  For Respondent(s)          :    Mr. Rajendra Prasad, Senior Advocate
                                  assisted by Mr. Ashish Sharma,
                                  Advocate
                                  Mr. Rajesh Maharshi, Additional
                                  Advocate General assisted by
                                  Mr. Udit Sharma, Advocate
                                  Mr. Krishna Verma, Advocate for
                                  Ms. Sukriti Kasliwal, Advocate



HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
              HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

                                       Order

 8/04/2022

 By the Court:(Per Manindra Mohan Shrivastava, Acting CJ.)

1. This petition, styled as Public Interest Litigation, has been filed

by the petitioner seeking to challenge construction and operation of

Toll Plaza named Chomu Chandwaji Tollways constructed by

concessionaire, respondent no.6 arrayed along with his operators,

respondent nos.7 & 8 at Kushalpura at Chomu Chandwaji SH-08 B.

2. The petitioner, who claims to be a public spirited person has

filed this petition on the allegation as contained in the pleadings in

the writ petition that respondent nos.1 to 5 entered into agreement

with concessionaire i.e. respondent nos.6 to 8 for construction of

Toll Plaza at Chomu Chandwaji State Highway No.8 in violation of

(3 of 22) [CW-20668/2018]

statutory provisions contained in Rajasthan State Highways Act,

2014 (hereinafter referred to as "the Act of 2014") and Rules

framed thereunder known as Rajasthan State Highways Fee

(Determination of Rates and Collections) Rules, 2015 (hereinafter

referred to as "the Rules of 2015"). According to the petitioner, the

location where Toll Plaza has been constructed, made operational, is

surrounded by densely populated area of several villages and dhanis

and the authorities ought not to have been allowed construction of

Toll Plaza at the location in dispute. Further pleadings of the

petitioner is that the location where Toll Plaza has been constructed,

there are five adjoining local town area and Panchayats within a

distance of 5 kms and no permission was obtained from Tehsildar

and Sub-Divisional Officer. It is further stated that the disputed Toll

Plaza is situated in District Chomu which is already surrounded by

four other Toll Plazas namely Tatiyawas Toll Plaza on Jaipur Chomu

National Highways 52, Maharkala Toll Plaza on Chomu Ajitgarh State

Highway, Mehroli Toll Plaza on Sikar Chomu State Highway Near

Mehroli and another under constructed Toll Plaza on Chomu Renwal

Road.

3. Further case of the petitioner is that looking to the density of

population in nearby adjoining villages and dhanis, the restrictions

by way of keeping minimum distance from municipal area/local area

as contained in the Act of 2014 have to be construed widely and

liberally to include within a municipal/local area not only the limits

of the municipality but also limits of various surrounding and

adjoining villages and dhanis. Referring to the provisions contained

in Rule 8 of the Rules of 2015, it has been contended that the Rules

prohibiting establishment of Toll Plaza within a distance of 5 kms or

(4 of 22) [CW-20668/2018]

the limits of a municipal or local town area, on liberal and wide

meaning, would include not only the limits of municipal or local area

in district but also Panchayat area and dhanis, though, technically it

may be situated outside municipal or local town area.

4. The other pleadings are that the location of Toll Plaza is in

violation of norms laid down by the Department of Public Works of

Rajasthan contained in the order dated 27.12.2004 which stipulates

that the distance from the check barriers/toll plaza should be at

least 1 km and no check barriers/toll plaza would be installed within

one km of fuel stations/rest area. Further, referring to the guidelines

issued by Indian Road Congress (IRC), Government of India

guidelines, it has been averred that while establishing and operating

Toll Plaza at the disputed site, various guidelines have also been

violated as the Toll Plaza is situated within the prohibited distance

from already existing petrol pump.

5. It is also the grievance ventilated through this petition that

collection of toll fee is at a rate which is in contravention of the

prescribed rule under the Rules of 2015 and directions issued in this

regard from time to time by the State Authorities. It is, therefore,

contended that the Toll Plaza is required to be removed from the

existing location and established at a safe distance beyond the

prohibited distance as stated in circular dated 27.12.2004 of the

IRC, Government of India guidelines issued in this regard.

6. On the other hand, learned counsel for the respondent-State

as also learned counsel appearing for the concessionaire

(respondent nos.6 to 8) would argue that the petitioner is not a

public spirited person but is a criminal. He has established a ration

shop in the nearby area. Action was taken against him by the

(5 of 22) [CW-20668/2018]

authorities for violating guidelines and conditions in the matter for

running of ration shops. It is further averred that against the

petitioner number of criminal cases are also pending. All these facts

were suppressed by the petitioner and falsely claiming him to be

pro bono publico, the petitioner has filed this petition for ulterior

motive.

7. It is further raised as common submission on behalf of the

aforesaid respondents that establishment of Toll Plaza is governed

by statutory provisions contained in the Act of 2014 as also the

Rules of 2015. The toll notification was already issued on

08.12.2016 by the Government. The Toll Plaza is not located within

the densely populated area in Chomu Tehsil but it is situated at a

distance of about 8.89 km from Chomu Municipal Limit and a

certificate to that effect has also been issued on 10.01.2017 by the

Executive Officer, Nagar Palika Chomu clearly stating that on Chomu

Chandwaji Road, the municipal limits of Chomu only extended till

Morija-Bypass Flyover at a distance of 1.5 kms from the Chomu Bus

Stand.

8. The official respondents i.e. respondent nos.1 to 5 have

stated that in order to construct and operate the public road for the

conveyance of the public, State entered into Concession Agreement

on Design, Build, Finance, Operate and Transfer (DBFOT) basis to

develop a section of State Highway No.08B from Km 0.000 to Km

15.450. The State Highway extend from Jatawali-Kaladera via

Chomu having a total length of 25.50 km. The present location of

disputed Toll Plaza i.e. Khushalpura Toll Plaza is neither from

densely populated area of Chomu Tehsil nor situated within the

prohibited distance as prescribed under Rule 8 of the Rules of 2015.

(6 of 22) [CW-20668/2018]

The Toll Plaza and the road side amenities have been constructed

strictly under Section 19 of the Act of 2014. In this regard,

reference has been made to Section 19 which empowers the State

Government or the Authority to enter into agreement with any

person in relation to the development and operation of the highway

and submitted that in exercise of such powers, concession

agreement was entered into with the respondent nos.6 to 8 and the

location of the Toll Plaza has also been notified vide notification

dated 08.12.2016 which is in accord with the statutory provisions.

The allegation of recovery of toll at roads in violation of law has

been denied. The official respondents in their reply have stated that

toll rates have been determined in accordance with Rule 4 of the

Rules of 2015 and the base rate fee per km for car, jeep or LMV is

fixed at Rs.1.05/Km for the base year 2015-16. It is further

submitted that as per Rule 3(5), the fee notified by the State

Government under these rules has to be rounded off and levied in a

multiple of the nearest of Rs.5. Therefore, the levy of toll fee is in

accordance with the Rules of 2015. The return of the official

respondents further declares that w.e.f. 01.04.2018, the toll fee is

not being levied on category of private vehicles and the tractors

carrying agriculture produce which are also exempted from levy of

toll fee. The Toll Plaza has been legally constructed provided with all

the safety measures. The grievance of the local residents as

reflected from the letter dated 27.02.2018 of Sarpanch Kushalpura

(Basa) was duly responded and private vehicles have already been

exempted from the toll fee w.e.f. 01.04.2018.

9. In addition, the private respondent nos.6 to 8 have opposed

the petition not only on the ground as has been raised by the official

(7 of 22) [CW-20668/2018]

respondents but it has also been pleaded that the official

respondents have entered into concession agreement for

development of road. On terms and conditions imposed under the

agreement they have made investment of more than 40 crores after

taking loan of 25.5 crores from the bank. It is further pleaded that

toll fee is being collected only from mechanical vehicles at specified

rates and no fee is levied for the use of toll roads for tractors trolley

carrying agriculture produce and animal drawn vehicles in terms of

Rule of 2015. The establishment of Toll Plaza and collection of toll

fee by the respondents is in accordance with the Act of 2014 and

Rules of 2015. It has further been pleaded that the norms laid down

by the Government circular dated 27.12.2004 are only guidelines

and do not have any statutory force but were issued in accordance

with the then prevailing Rajasthan Highways Act, 1995 which has

now been substituted by Rajasthan State Highways Act, 2014 where

under Rules of 2015 have been framed and there is clear provision

with regard to the location of the Toll Plazas. In the matter of

establishment and location of Toll Plaza, none of the provisions

contained in the Act or Rule have been violated. The Government

circular dated 27.12.2004 has lost its significance and force as the

aspect of location of toll plaza is completely governed by the

provisions of the Act and the Rules. Respondent nos.6 to 8 have

also questioned the maintainability of the writ petition on the

ground that petitioner having not challenged the legality and

validity of the toll notification dated 08.12.2016 nor having

challenged the same while filing petition and not even when this

was disclosed by the respondents, the petition deserves to be

dismissed on this ground. It has also been stated that petition

(8 of 22) [CW-20668/2018]

suffered from delay and laches as notification of Toll Plaza dated

08.12.2016 establishing Toll Plaza was never challenged and the

petitioner approached the Court after two years when construction

had been raised and huge amount invested, therefore, on the

ground of delay also, the petition is liable to be dismissed.

10. A separate reply has been filed by the respondent--Bharat

Petroleum Corporation Limited stating that no relief is sought

against it and it has been wrongly impleaded as a party. According

to the averments made in their reply, the distance between the Toll

Plaza and Bharat Petroleum Corporation retail outlet of M/s Kamal

Mani Fuel Services is 175 meters.

11. Learned counsel for the petitioner would argue that the

establishment of Toll Plaza and its location being construed in

densely populated adjoining villages and dhanis is liable to removed

as it endangers public safety. It is further submitted that State

Government's circular dated 27.12.2004 has been violated, insofar

as location of the Toll Plaza is concerned because it is within the

prohibited distance from the petrol pump outlet.

12. The other submission based on the pleadings is that the

location of Toll Plaza, upon rational construction of the expression

"municipality/local town area" including Panchayat village area and

dhanis, is in violation of the provisions contained in Rule 8 of the

Rules of 2015. Reference has been made to IRC guidelines which

have been filed along with the petition that siting of fuel station

near existing check barriers should be avoided and that it should be

at least 1 km away from the check barriers. As the petrol pump was

already erected prior to coming into existence of the Toll Plaza,

(9 of 22) [CW-20668/2018]

while locating and constructing toll plaza, the aforesaid guidelines of

IRC ought to be strictly applied with which has not been done.

13. Thus, according to the petitioner, location of Toll Plaza is in

violation of the State Highways Circular dated 27.12.2004, IRC

guidelines and Rule 8 of the Rules of 2015. On public safety

consideration, appropriate order be issued for removal of the Toll

Plaza. In support of his submission, learned counsel for the

petitioner places reliance upon Indian Oil Corporation Ltd. and

Others Versus Arti Devi Dangi reported in

MANU/SC/1304/2015, Maliram Versus Bharat Petroleum

Corporation Limited and others reported in

MANU/Rh/0558/2019, Aditya H.P. Centre and Others Versus

Union of India and Others reported in MANU/HP/0366/2021,

Dalpat Singh Versus Union of India & others reported in RLW

2006 (1) RAJ 161 and Neeraj Kachhawaha Versus State of

Rajasthan and Others reported in MANU/RH/0577/2013.

14. According to the respondents, what has been pleaded by them

in their respective reply is that construction of Toll Plaza is beyond

the prohibited distance as provided under Rule 8 of the Rules of

2015. The expression "municipality area/local town area" cannot be

extended to include all other area of Panchayats and Dhanis in the

absence of there being any specific provision in that regard

contained either in the Act or in the Rules. According to the

respondents, the IRC guidelines are non-statutory and have been

issued mainly to restrict operations/establishment of petrol pump

outlets. As location of Toll Plaza is governed by the statutory

provisions contained in the Act of 2014 and Rules of 2015, the

legality of the action is to be adjudged within four corners of the

(10 of 22) [CW-20668/2018]

statutory provisions and not on the basis of the guidelines which

have no statutory force. The State circular dated 27.12.2004 was

issued prior to coming into force of enactment of the Act of 2014

and the Rules of 2015. These are merely administrative orders of

the authorities of the PWD which lost its force and significance after

promulgation of the Act and the Rules. Such guidelines could not be

made a basis to issue mandamus for removal of Toll Plaza when Toll

Plaza is not violating any statutory guidelines. It has also been

submitted that the toll notification being statutory act notified vide

notification dated 08.12.2016, having not been challenged nor any

relief sought, therefore, the petition was liable to be dismissed.

15. It is also highlighted that safety certificate have also been

issued by the competent authority and no independent material has

been placed on record to show as to how location of Toll Plaza

endangers public safety. The petitioner has failed to demonstrate by

any cogent material that establishment of Toll Plaza has affected the

public interest and public safety. In support of their submissions,

respondents relied upon Arun Kumar Acharya and Ors. Versus

National Highway Authority of India and Ors. reported in

MANU/OR/0206/2020, G. Sasikala Versus The Additional

District Administrative, Krishnagiri District and Ors. reported

in MANU/TN/0848/2019, M.G. Saravanan Versus The

Commissioner of Police, Trichy City Police Office and Ors.

reported in MANU/TN/5718/2020, Federation of Gujarat

Petroleum Dealers Association and 2 Ors. Versus State of

Gujarat and 11 Ors. reported in MANU/GJ/8102/2006 and

Indian Oil Corporation Ltd. and Ors. Versus Collector and

(11 of 22) [CW-20668/2018]

District Magistrate, Jajpur and Ors. reported in

MANU/OR/0600/2017.

16. We have gone through the records of the case, pleadings

made by the learned counsel for the parties and submissions made

as also various decisions relied upon by both the sides.

17. The challenge to the location of Toll Plaza is based on the

ground that it is in violation of Rule 8 of the Rules of 2015. The

second ground to challenge is that it is in violation of IRC

guidelines. The third ground to challenge is that the location of Toll

Plaza is in violation of Public Works Department instructions dated

27.12.2004. It has also been challenged on the ground that it

endangers public safety as Toll Plaza is surrounded by several

adjoining villages and dhanis with dense population.

18. The Act of 2014 has been enacted to provide for the

declaration, development, operation, safety and regulation of State

Highways and use of land pertinent thereto, acquisition of land for

highways and other roads, constitution of Rajasthan State Highway

authorities and for matters connected therewith or incidental

thereto. The provisions of the Act of 2014, authorizes to develop

certain highways to be State highways; Section 5 thereof empowers

acquisition of land; under Section 19 thereof, the State is

empowered to enter into an agreement with any person in relation

to the development and operation of the whole or any part of a

highway and such agreement may, if deemed necessary, include the

terms and conditions for development of wayside amenities,

habitations, townships or industrial corridors in the vicinity of such

highway. Sub-Section 2 thereof provides that a person with whom

concession agreement has been entered into shall be entitled to

(12 of 22) [CW-20668/2018]

collect and retain fees in such a manner and at all such rates as

may be prescribed by rules made under Section 18 and in

accordance with the terms of the agreement referred to in sub-

section (1) of Section 19. In exercise of powers under Section 18 of

the Act, Rules have been framed known as Rules of 2015. Rule 8

thereof, being relevant is reproduced hereinbelow:-

"8. Location of toll plaza.- (1) The executing authority or the concessionaire, as the case may be, shall not establish a toll plaza within a distance of five kilometers from the limits of a municipal or local town area:

Provided that the executing authority may, for reasons to be recorded in writing, locate or allow the concessionaire to locate a toll plaza within a distance of five kilometers of such limits of a municipal or local town area, but in no case within two kilometers of such limits of a municipal or local town area.

Provided further that where a section of the state highway, permanent bridge, bypass or tunnel, as the case may be, is constructed within the municipal or town area limits or within two kilometers from such limits, primarily for use of the residents of such municipal or town area, the toll plaza may be established within the limits of the municipal or town area or within a distance of two kilometers from such limits.

(2) Any other toll plaza on the same section of state highway and in the same direction shall not be established within a distance of forty kilometers:

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 toll plaza within a distance of forty kilometers.

Provided further that a toll plaza may be established within a distance of forty kilometers from another toll plaza if such toll plaza is for collection of fee for a permanent bridge, bypass or tunnel.

Provided also that two toll plazas on the same state highway may be established within a distance of forty kilometers if they are located on different sides of

(13 of 22) [CW-20668/2018]

a town having a population exceeding twenty thousand. Provided also that the restrictions specified in this rule shall not apply to a section of the state highway specified in sub-rule (6) of rule 4."

19. According to this Rule, a Toll Plaza shall not be allowed to be

established within a distance of 5 kms from the limits of a municipal

or local town area. Proviso, further, empowers the authority to allow

concessionaire to locate a Toll Plaza within a distance of 5 kms of

limits of municipal or local town area, for reasons to be recorded in

writing. It further provides that in any case, such permission for

location of Toll Plaza shall not be allowed within two kms of limits of

municipal or local town area. Under further proviso, in exceptional

cases, Toll Plaza may be established within the limits of the

municipal or local town area within the distance of two kms from

such limits. Rule also provides for rates of fee and also contains

certain exemption clause from payment of fee.

20. The statutory scheme of the Act of 2014 and the Rules of 2015

particularly Rule 8 restricts location of Toll Plaza within prohibited

limits of municipal area/local town area and in only exceptional

cases, covered under the proviso to Sub-Rule (1) of Rule 8 thereof,

Toll Plaza could be allowed to be established within the prohibited

limits. Except this statutory prohibition, there is no statutory

prohibition in terms of distance of the Toll Plaza from the municipal

limits or from the local town area. The expression municipal

area/local town area has not been defined either in the Act of 2014

or the Rules of 2015. In the absence of any definition of such term

under Rajasthan General Clauses Act, 1955, this expression has to

be understood in terms of the provisions contained in the Rajasthan

Municipalities Act which defines municipal area. Under the

(14 of 22) [CW-20668/2018]

Rajasthan Municipality Act, 'municipal area' has been defined as

below:-

"municipal area" means the territorial area of a Municipality as notified by the State Government from time to time;

21. The expression municipal area/local town area, therefore,

would not include within its scope and ambit Panchayat area/village

area.

22. The contention of learned counsel for the petitioner that for

the purposes of the Act, expression municipal area/local town area

as used in Rule 8 of the Rules of 2015 should be given a liberal

interpretation to include Panchayat and village area cannot be

accepted in the absence of there being anything in the Act of 2014

and Rules of 2015 in that regard.

23. The expression municipal or local town area, in the absence of

that expression defined under the Act of 2014 or the Rules of 2015

will take its meaning from the provisions contained in the

Municipality Act only and cannot be given or assigned any meaning

other than that which has been provided under the local laws of the

State namely Municipality Act. There is no compelling reason for us

to include Panchayat area or dhanis within the expression

"municipal or local town area" for the purpose of establishment of

Toll Plaza as provided under Rule 8 of the Rules of 2015. If the

argument of learned counsel for the petitioner is accepted, the

provisions will be rendered completely unworkable as the State

Highway on either side are adjoining various panchayats and village

areas and dhanis, therefore, argument in this regard is liable to be

rejected.

(15 of 22) [CW-20668/2018]

24. The other argument of learned counsel for the petitioner that

as there are various adjoining villages and in any case, it would

endanger public safety if Toll Plaza is erected in such vicinity is liable

to be rejected because there is no such legal impediment either

under the Act of 2014 or the Rules of 2015. The statutory

prohibition is only with reference to distance of Toll Plaza from

municipal area/local town area. The rule making authority in its

wisdom, allowed construction of Toll Plaza maintaining safe distance

of at least 5 kms and in exceptional case even less than 5 kms,

from more densely populated area of municipal and local town area

rather than imposing any restrictions in terms of distance from

village or panchayat area or dhanis.

25. The statutory scheme is very clear. Therefore, in the absence

of any statutory prohibitions, establishment of Toll Plaza could not

be faulted only on the ground that the Toll Plaza is in the vicinity of

adjoining villages and dhanis. In the absence of any statutory

provisions, only on that ground, location of Toll Plaza cannot be said

to be illegal.

26. One of the main argument on which the learned counsel for

the petitioner laid great emphasis was that there are guidelines

issued by IRC and therefore, establishment of Toll Plaza on State

Highway is required to be erected in compliance with those

guidelines. The guidelines issued by the Government of India on

24.07.2013 have also been referred to.

27. The IRC guidelines which have been annexed along with the

petition as Annexure 24 are recommended practice for location and

layout of roadside motor fuel and motor fuel filling cum service

stations. The Clause 1.1 reads as under:-

(16 of 22) [CW-20668/2018]

"1.1 The following principles have been laid down by the Specifications and Standards Committee (personnel given on the inside front and back cover) for general adoption after carefully considering the views of the representatives of major distributors of motor fuels."

28. Clause 4.4 thereof states that siting of fuel filling stations near

existing check barriers should be avoided and they should be at

least 1 km away from the check barrier.

29. Further Appendix 1 to the Government of India

guidelines/norms dated 24.07.2013 (Annexure-25) provides for

norms for Location, Layout and access to Fuel Stations alongwith

National Highways. Clause 4.7 thereof, restricts location of fuel

station within the distance of 1000 meters from any barrier

including that of Toll Plaza and railway level crossing. It provided

that no check barriers or Toll Plaza should be located within 1000

meters of a fuel station. These guidelines, however, relate to

national highways and not to State Highways.

30. The IRC guidelines are recommendations for being adopted

and that too in the matter of establishment of petrol pump outlet.

These guidelines are not statutory guidelines but only

recommendations. Clause 2 thereof, lays down the basic principles

that the governing consideration for norms are to be minimize, as

much as possible, interference to normal flow of traffic on the road

by vehicles using the amenity and also to ensure safety. Therefore,

such guidelines are for consideration of the State Authorities.

31. Taking into consideration all other relevant factors to minimize

as much as possible, interference to normal flow of traffic on the

road by vehicles using amenity and also to ensure safety, such

(17 of 22) [CW-20668/2018]

recommendations are made. Guidelines, however, do not have the

force of law.

32. Much emphasis has been laid by the petitioner on various

judgment which have been cited at bar particularly the decision of

the Supreme Court in the case of Indian Oil Corporation Ltd.

and Others Versus Arti Devi Dangi (supra). That was a case

where on facts, it was found that IRC guidelines were adopted by

the PWD of Madhya Pradesh. The clause in the advertisement

required the tenderer to fulfill all the requirements under the Rules

and the Sub-Rule of Public Works Department and having found

that IRC has been adopted by the concerned State would construe

the terms of the advertisement and pre-conditions for the tenderer

to fulfill eligibility criteria, the argument that the IRC guidelines are

not mandatory, was not sustained, keeping in mind the provisions of

the advertisement, purports and objects of the norms, uniform

application of the same to all the tenderers by the corporation and

the requirement of public interest.

33. The other decision in the case of Maliram Versus Bharat

Petroleum Corporation Limited and others (supra) was based

on the decision in the case of Neeraj Kachhawaha Versus State

of Rajasthan and Others (supra) wherein taking into

consideration that the condition in NOC have to be strictly adhered

to for compliance of guidelines of IRC, the guidelines were found to

be mandatory for that reason as the conditions of NOC. The

decision in the case of Aditya H.P. Centre and Others Versus

Union of India and Others (supra) is also on its own facts.

(18 of 22) [CW-20668/2018]

34. None of the aforesaid cases, relied upon by the petitioner,

related to establishment of Toll Plaza but only with regard to

establishment of petrol pump/outlets.

35. In the present case, establishment of Toll Plaza is governed by

certain statutory provisions and statutory prohibition contained in

Rule 8 of the Rules of 2015 would be applicable.

36. Learned counsel for the respondents have referred to various

decisions including decisions of the Supreme Court in the case of

Chief Commercial Manager, South Central Railway,

Secunderabad and others Versus G. Ratnam and Others

reported in (2007) 8 SCC 212 where it has been held that

administrative instructions, guidelines, regulations which have no

statutory force cannot be enforced in courts of law. The writ petition

against any breach would not be maintainable, though the said

breach may expose the authorities to disciplinary or other

appropriate action. The decisions in the cases of Federation of

Gujarat Petroleum Dealers Association and 2 Ors. Versus

State of Gujarat and 11 Ors. (supra) and M.G. Saravanan

Versus The Commissioner of Police, Trichy City Police Office

and Ors. (supra), G. Sasikala Versus The Additional District

Administrative, Krishnagiri District and Ors. (supra) and

Arun Kumar Acharya and Ors. Versus National Highway

Authority of India and Ors. (supra) as also in the cases of S.

Shanmugharaja Versus The District Collector Puducherry

District and Others reported in MANU/TN/2714/2017 and

Saroj Bhatia Versus Indian Oil Corporation Ltd. reported in

MANU/MP/0743/2014 have laid down that IRC guidelines are

only administrative and not statutory.

(19 of 22) [CW-20668/2018]

37. The cases cited by the petitioner dealt with case where the

location of the petrol pump outlet was not governed by any

statutory provision and the terms and conditions of eligibility in the

advertisement impliedly or expressly included compliance of IRC

guidelines.

38. We therefore come to the conclusion that, on facts,

compliance of IRC guidelines was not mandatory, therefore, the

present case where the location of Toll Plaza is governed by

statutory provisions contained in the statutory Rules of 2015 framed

in exercise of statutory powers under the Act of 2014 will hold the

field and in the absence of there being statutory provisions under

the law regulating location of Toll Plaza, there being no condition

incorporated either in the advertisement or in the terms and

conditions of eligibility for erection of Toll Plaza or in the concession

agreement between government and the concessionaire,

establishment of Toll Plaza cannot be said to be illegal or opposed to

law.

39. In the present case, it being an admitted position that Toll

Plaza is beyond the prohibited distance under Rule 8 of the Rules of

2015 and there being no violation of any statutory provisions

governed, only on the ground of violation of the certain guidelines

which are principle based, establishment of Toll Plaza cannot be said

to be in violation of law.

40. Safety certificate has also been issued in favour of the

respondent, copy of which has been placed on record which is

annexed by respondent nos.6 to 8 as R/6-5 issued by the Chief

Coordinator of Civil Engineering Department on 23.01.2018.

(20 of 22) [CW-20668/2018]

41. Upon satisfaction arrived at on the basis of the compliance

report on safety audit preliminary report and inspection held on

22.01.2018 which verified compliance of observations in that

certificate, it has been observed that M/s. Chomu Chandwaji

Tollways Pvt. Ltd. has complied all the observations and the project

highway is safe and reliable for commercial operations.

42. Much emphasis has been laid on the State circular dated

27.12.2004 issued by the Chief Executive Engineer PWD Rajasthan,

Jaipur. That instruction was issued prior to promulgation of the Act

of 2014 and Rules of 2015. Once the location of Toll Plaza is

regulated by the statutory provisions contained in Rules of 2015,

prior circular could not be made a basis to contend that the location

of Toll Plaza is illegal or opposed to law.

43. When the provisions with regard to location of Toll Plaza are

regulated by the statutory rules, administrative norms issued prior

to promulgation of Rules cannot be read into Rules to expose the

terms of restrictions with reference to distance from the petrol

pump. There being statutory regulation to regulate the location of

Toll Plaza, guidelines as contained in IRC guidelines and the State

Government letter dated 27.12.2004, by itself, would not bind the

contractor.

44. Though vague pleadings have been made with regard to

collection of toll fee in contravention of the rates prescribed under

the Rules, reply of the respondent particularly official respondents is

that collection of toll fee is in accordance with the Rules and the

petitioner has failed to demonstrate with regard to specific rates

that there is illegal levy of toll fee. Moreover, w.e.f. 01.04.2018 all

the private vehicles have otherwise been exempted from levy of toll

(21 of 22) [CW-20668/2018]

fee and it has been clearly stated that tractors, tractors with trolley

carrying agriculture produce are also exempted from toll fee.

45. Except pleadings that there are violation of certain guidelines,

no specific material has been placed in the petition to satisfy this

Court that the location of Toll Plaza as such, endangers public safety

and therefore, it should be directed to be removed. The distance of

petrol pump is stated to be about 175 meters from the Toll Plaza.

46. Respondent nos.6 to 8 cannot be faulted because they have

acted in accordance with the Rules and there is no case of violation

of the terms and conditions of concession agreement between the

concessionaire and the respondents. Guidelines which have no

statutory force or the administrative instructions could not be made

basis to issue writ of mandamus to respondent nos.6 to 8 to remove

Toll Plaza because such conditions were neither incorporated in the

advertisement for construction of roads on PPP basis nor any

condition was imposed on respondent nos.6 to 8 in line with the IRC

guidelines or letter dated 27.12.2004 in the agreement. Respondent

nos.6 to 8 is not bound by such instructions unless it is incorporated

in the agreement or eligibility criteria laid down in the process of

award for construction of State Highways.

47. Even though serious allegations against the petitioner were

levelled by the respondents in their reply stating that the petitioner

is not a law abiding citizen and against him action was taken for

violation of the terms and conditions for operating ration shops and

against him number of criminal cases have been registered, we

examined the issue raised in this petition as to whether the location

of Toll Plaza is against public interest.

(22 of 22) [CW-20668/2018]

48. In the result, we do not find any merits in the petition. The

petition is, therefore, dismissed.

(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ

Karan/

Powered by TCPDF (www.tcpdf.org)