'In India, Every State Action Must Be Fair, Failing Which It Will Fall Foul Of Article 14' : Supreme Court Sets Aside Direction To Shift NH Toll Plaza

The Supreme Court set aside a Patna High Court judgment which directed the National Highway Authority of India to shift the toll plaza on Patna-Bakhtiyarpur four-lane road (NH-30) from Karmalichak near Deedarganj."Undoubtedly, in India, every state action must be fair, failing which, it will fall foul of the mandate of Article 14. It is, at this juncture, we may also notice that the duty to give reasons, would arise even in the case of administrative action, where legal rights are at stake and the administrative action adversely affects legal rights", a bench comprising Justices KM Joseph and S Ravindra Bhat observed in the judgment.The Patna High Court, while allowing the writ petitions challenging the setting up of Toll Plaza, had held that the toll plaza location was violation of Rule 8 of National Highways Fee (Determination of Rates and Collection) Rules, 2008 which provides that a toll plaza must be constructed beyond 10 kilometres of a municipal or town area and, in no condition, should be within five-kilometre limits.Rule 8Rule 8(1) provides that the Executing Authority or the Concessionaire shall establish toll plaza beyond a distance of 10 kilometres from a municipal or local town area limits. First Proviso states that the executing authority may, for reasons to be recorded in writing, locate or allow the concessionaire to locate a [fee plaza] within a distance of ten kilometres of such municipal or local town area limits, but in no case within five kilometres of such municipal or local town area limits:Second Proviso reads as follows: 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 kilometres from such limits, primarily for use of the residents of such municipal or town area, the [fee plaza] may be established within the municipal or town area limits or within a distance of five kilometres from such limits.In appeal, the Apex Court noted that High Court has read the second proviso in continuation with the first proviso and thereby concluding that, even the requirement of the first proviso, viz., the recording of reasons in writing, would also become necessary to invoke the power under second proviso."We would think that such an interpretation would fly in the face of the clear words used in the second proviso, and would, what is more, amount to rewriting the Rule. The real safeguard, which is present in the second proviso, is the nature of the objective and inflexible requirements, which are declared therein.", the court said. According to the court, the second proviso should be construed as : i. Upon construction being made of a section of the national highway within municipal or town area limits and upon the construction being primarily for the use of the residents of the municipal or town area then the toll plaza can be located within the municipal or town area limits.ii. Similarly, if the construction of section of the national highway is made within 5 km from the municipal or town area limits and the construction is primarily for the use of the residents of such municipal or town area the toll plaza may be set up within a distance of 5 km from such limits.The court noticed that, unlike the main Rule and the first proviso, the second proviso does not indicate as to, in whom, the power to locate the toll plaza under the second proviso, stands vested with. Also that, unlike the first proviso, the second proviso does not contemplate that the reasons for exercising the discretionary power, is to be recorded in writing.The power to take decision under the second proviso, is lodged with the Executing Authority.The court thus proceeded to consider the question about who can take a decision under the second proviso in the absence of any express reference to the power to take a decision. It said:76. The said power must be found vested with the Executive Authority. We say this for the reason that, some person must, indeed, take the decision that the situation warrants locating the toll plaza, in exercise of the power under the second proviso. We certainly cannot lodge that power with a Concessionaire. The Rule-maker has conferred the power on the Concessionaire, expressly when it declared in Rule 8, that the Concessionaire may, apart from the Executing Authority, locate the toll plaza beyond 10 kilometres from the municipal or town area limits. The power under the first proviso, is conferred only upon the Executing Authority. Having regard to the nature of the power, viz., to locate the toll plaza, in complete contradiction with the mandate of the Rule, within the municipal area, inter alia, we hold that, the power to take decision under the second proviso, is lodged with the Executing Authority.Duty of the Executing AuthorityThe court also explained the duty of the Executing Authority in this regard:77. However, a decision must be taken. It must be taken by the Competent Authority. ...

'In India, Every State Action Must Be Fair, Failing Which It Will Fall Foul Of Article 14' : Supreme Court Sets Aside Direction To Shift NH Toll Plaza

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