Civil Appeal No.3426 of 2015

7th April, 2015.

Petitioner Counsel: Mr. PARAG P. TRIPATHI, Sr. Adv., Mr. GUNJAN S. JAIN, Ms. MAHIMA GUPTA, Mr. ANISH CHAWLA, Mr. SIDDHARTH JAIN, Adv. for M/s. M.V. KINI & ASSOCIATES, Mr. R. SATHISH
Respondent Counsel: Mr. SHYAM DIVAN, Sr. Adv., Mr. TAPESH KUMAR SINGH, Mr. SUKANT VIKRAM, Mr. MOHD. WAQUAS

JUDGMENT

JUDGMENT :- Leave granted.

2. The challenge in this appeal is against the following operative directions passed by the High Court of Madras in the Writ Petition filed by the respondent No.1:

"(iii) Writ Petition (MD) Nos. 13906 of 2012 and 14535 of 2012 are disposed of directing the National Highways Authority of India to shift the Kappalur Toll Plaza, from its present location, to a place near the interjection where N.H. 7 and N.H. 208 bifurcates, so that there is no violation of the second proviso to Rule 8(1) or at least to ensure that persons who use a small section of N.H. 7 for the purpose of proceeding to N.H. 208 are not charged the same rate of toll fee as charged for those taking N.H.7 and

(iv) The National Highways Authority of India shall take a decision on the above lines within a period of four weeks from the date of receipt of a copy of this order. Until then the respondents shall not collect toll fee from the vehicles proceeding to N.H. 208. This can be done by opening a check post near the junction where the N.H. 7 and N.H. 208 parts and refunding at that check post, the money collected from vehicles taking N.H. 208. There will be no impediment for collecting toll fee from vehicles proceeding in N.H. 7 itself. No costs. Consequently, connected miscellaneous petitions are closed."

3. The High Court has issued the aforesaid directions on recording a finding that the Toll Plaza in question had been located contrary to the provisions of Rule 8 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 (for the sake of convenience, hereinafter referred to as "the said Rules") and is not saved by the provisions contained in the second proviso to the said Rules. The second ground on which the High Court had thought it proper to issue the aforesaid directions is that the persons of the neighbourhood towns who use N.H.7 for the purposes of accessing N.H.208 are being made to pay toll despite the fact that they use only about 7 kilometers of the N.H.7.

4. Rule 8 of the said Rules may be conveniently extracted herein below.

"8. Location of toll plaza:

(1) The executing authority or the concessionaire, as the case may be, shall establish a toll plaza beyond a distance of ten kilometers from a municipal or local town area limits:

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 ten kilometers of such municipal or local town area limits, but in no case within five kilometers of such municipal or local town area limits:

Provided further that where a section of the national highway, permanent bridge, by-pass or tunnel, as the case may be, 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 toll plaza may be established within the municipal or town area limits or within a distance of five kilometers from such limits.

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

Provided further that a toll plaza may be established within a distance of sixty kilometers from another toll plaza if such toll plaza is for collection of fee for a permanent bridge, by-pass or tunnel."

5. Under the second proviso to Rule 8(1), it is evident that a toll plaza may be established within the municipal or town area limits or within a distance of five kilometers from such limits provided the concerned section of the national highway is intended primarily for the use of the residents of such municipal or town area. In this regard, the High Court had recorded a finding that there was no averment in the counter affidavit filed by the appellant-National Highways Authority of India to show that the conditions stipulated by the second proviso did exist in the present case. Insofar as the payment of toll by the limited users of N.H.7 is concerned, the High Court took the view that the obligation on such limited user to pay full toll is unjustified and needs to be remedied by the impugned directions to shift the toll gate to the location identified by the High Court.

6. Having heard the learned counsels for the parties at some length and upon perusal of the relevant materials on record, we disagree with the High Court on both counts. In the counter affidavit of the respondents Nos.1 and 2 (appellants herein) filed before the High Court in Writ Petition (Civil) No.13906 of 2012, there is a clear statement in paragraph 14 that the concerned stretch of N.H.7 has been "constructed only to give relief to Traffic congestion in Thirumangalam Town." In the face of the aforesaid statement made in the counter affidavit of the said respondents (appellants herein), the High Court could not have come to the finding that there is no statement on record to the effect that the particular stretch of the highway was not intended for the benefit of the residents of Thirumangalam and nearby places.

7. Insofar as the limited use of N.H.7 for people who really want to access N.H.208 and the obligation to pay full toll is concerned, in the additional counter affidavit filed by the respondents 1 and 2 (appellants herein) in the Writ Petition (Civil) No.13906 of 2012, there is a clear and unequivocal averment made in paragraphs 11 and 12 to the effect that monthly passes for local vehicles owners at the rate of Rs.200/- (enhanced to Rs.215/-) per month are available. There is a further statement that such exemptions have also been granted for owners of two-wheelers, three-wheelers, tractors and the vehicles carrying agricultural goods.

8. In the light of the aforesaid concession available to the owners of the different kinds of motor vehicles living in the neighbourhood, we are at a loss to understand how the High Court could have felt justified to issue the impugned directions for shifting the Toll Plaza to the location identified in the order. Though the learned counsel for the appellants has made an additional argument that there is an alternative road available to access N.H.208 without using N.H.7, we do not consider it necessary to go into the said issue in view of the provision for concessional toll as mentioned by the appellants in the counter affidavits filed before the High Court.

9. In the light of the above, we are of the view that the impugned directions of the High Court cannot be justified. We, therefore, set aside the same and allow the appeal.

Appeal allowed.