NATIONAL HIGHWAYS AUTHORITY OF INDIA & OTHERS v. MADHUKAR KUMAR & OTHERS

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A c) Delays in the handling of business will inevitably follow and additional expense will be caused. The public at large will suffer. The benefit will not match the cost. d) The imposition of a general duty will have far-reaching implications for central government, local government, and for many other bodies of a public or semi-public character Many more decisions will be opened up to the possibility of legal challenge and a further step down the road of ‘judicialization’ of affairs will be taken. e) The Imposition of a [general] duty to give reasons will not necessarily mean that the true or complete reasons will be stated. Decision-makers will adapt to the new regime and acquire the art of stating sufficient by way of reasons to preclude successful challenge, but candour will not always be displayed.”

58Copy pinpoint58. In Jurgen Schwarze’s European Administrative Law, we notice the following position in regard to duty to give reasons. In regard to France, it is stated as follows: “.. the duty to give reason for administrative act is regulated by the law of 1979, the statutory duty to give reasons applies to all E unfavourable administrative decisions. The reasons must be in writing and must contain the essential matter concerning the factual and legal situation (Article 3).”

59Copy pinpoint59. In regard to the duty to give reasons in Italy, it is stated as follows: F “Italian administrative law does not recognise a general duty to give reasons. In addition to the case in which the duty to give reasons is expressly laid down by statute, the courts have developed in a vast line of cases groups of decisions in which the duty of the administration to give reasons for its decisions results “from the nature of the matter,”. This applies in particular to negative or unfavourable administrative decisions, as well as to discretionary decisions. In so far as there exists a duty to give reasons, the authority must set out in writing the considerations which led it to the adoption of the administrative act. It will suffice, however, if the grounds of the decision are available simply in the documents which accompany the decision. Exceptionally a tacit statement of

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reasons is also permissible. The statement of reasons sets out the circumstances of fact and law which were decisive for the formation of the decision by the authority. The infringement of the duty to give reasons does not necessarily lead to the annulment of the decision by the administrative courts, but rather only where a different decision would have been taken on the facts. The B position is different for discretionary decisions: here insufficient reasons will generally lead to the annulment of the administrative act, because the judge may not put his discretion the place of the discretion of the authority.” (Emphasis supplied) C

60Copy pinpoint60. We would hold that as noticed by the Bench of three Judges in M/s. Mahabir Jute Mills Ltd., Gorakhpore (supra), there is no general duty, when an administrative decision is taken, to give reasons. A Statute may, however, explicitly provide that the Executive Authority must provide reasons and it must be recorded in writing. A case in point is the first proviso to Rule 8 of the Rules itself. The desirability of a D general duty, in the case of administrative action to support decisions with reason, is open to question. One of the most important reason is, the burden it would put on the administration. It is apposite, at this juncture, to notice that administrative decisions are made in a wide spectrum of situations and contexts. The executive power of the Union and States E are provided in Articles 73 and 162 of the Constitution of India, respectively. 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. There may be something in the nature or the context, under which, the administrative action is taken, which may necessitate the authority being forthcoming with rational reasons. There are other decisions, which essentially belong more to the realm of executive policy-making, which ordinarily may not require the furnishing of reasons. The advantages, undoubtedly, of introducing a reasonsdriven regime, are as follows.

61Copy pinpoint61. Persons, who may have a right or an interest, would know, what are the reasons which impelled the Administrator to take a particular decision. Judicial review, in India, which encompasses the wide contours of public interest litigation as well, would receive immeasurable assistance, H

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A if the reasons for particular decisions, are articulated to the extent possible. The giving of reasons also has a disciplining effect on the Administrator. This is for the reason that the reasons would capture the thought process, which culminated in the decision and it would help the Administrator steer clear of the vices of illegality, irrationality and also disproportionality. Reasons could help establish application of mind. Conversely, the absence of reasons may unerringly point to non-application of mind. The duty to act fairly, may require reasons to be recorded but the said duty, though there is a general duty on all state players to act fairly, may have its underpinnings, ultimately in legal rights.

62Copy pinpoint62. It is one thing to say that there should be reasons, which persuaded the Administrator to take a particular decision and a different thing to find that the reasons must be incorporated in a decision. The question, relating to duty to communicate such a decision, would arise to be considered in different situations, having regard to the impact, which it, in law, produces. In fact, the second proviso to Rule 17 of the Rules, D provides not only for there being reasons, but the reasons for refusal to permit barricades, must be communicated. If the law provides for a duty to record reasons in writing, undoubtedly, it must be followed and it would amount to the violation of the Statute, if it were not followed. Even if, there is no duty to record reasons or support an order with reasons, there cannot be any doubt that, for every decision, there would be and there must be, a reason. The Constitution does not contemplate any Public Authority, exercising power with caprice or without any rationale. But here again, in the absence of the duty to record reasons, the court is not to be clothed with power to strike down administrative action for the mere reason that no reasons are to be found recorded. In certain situations, the reason for a particular decision, may be gleaned from the pleadings of the Authority, when the matter is tested in a court. From the materials, including the file noting’s, which are made available, the court may conclude that there were reasons and the action was not illegal or arbitrary. From admitted facts, the court may conclude that there was sufficient justification, and the mere absence of reasons, would not be sufficient to invalidate the action of the Public Authority. Thus, reasons may, in certain situations, have to be recorded in the order. In other contexts, it would suffice that the reasons are to be found in the files. The court may, when there is no duty to record reasons, support an administrative decision, with reference to the pleadings aided by materials. H

NATIONAL HIGHWAYS AUTHORITY OF INDIA v. 345 MADHUKAR KUMAR [K. M. JOSEPH, J.]

AN OFFICE MEMORANDUM AND A DIRECTION A

63Copy pinpoint63. The Writ Petitioners have produced Office Memorandum dated 5th September, 2017 and communication dated 2nd November, 2018 issued by MoRTH. We may notice that the communication dated 5th September, 2017, as produced in I.A. No.103415 of 2021,is as follows: “Office Memorandum B Subject: Location of Toll Plazas on National Highways - reg, The undersigned is directed to refer to the subject above and convey that toll plaza locations recommended by the consultants engaged for preparation of DPRs for NH projects sometimes pose problems at site during project implementation. C Ensuring accountability on the part of DPR consultants and adequate participation and commitment of the concerned State Government authorities while finalizing toll plaza locations for NH projects is likely to address this issue.

2. Accordingly, the following guidelines shall be followed in this D behalf for NH Projects to be awarded in future: (i) Toll Plaza locations recommended by the DPR consultants should be in conformity with the provisionsof the National Highways Fee (Determination of Rates and Collection) E Rules, 2008 including applicable amendments in this behalf. In case of any deviations from the above Rules vis-a-vis the recommended locations for the Toll Plazas, a reasoned justification shall have to be provided by the •DPR consultants. This requirement shall be suitably made a part of the Terms of Reference (ToR) for the DPR consultants; (ii) The Project execution authorities shall obtain the concurrence of the concerned State Government(s) regarding the locations of Toll Plazas upfront before inviting bids for the projects or declaring the ‘Appointed Dates’ in respect of road projects, especially in cases where a NH project is being implemented near a state capital or any urban area eg. Ring roads/ bypasses around capital cities. The concerned State Government should be required to furnish a written consent in this behalf to the project authority. H

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A (iii) The concerned State government must provide an undertaking to the project execution authority to continuously support the toll fees collection and compensate such authority for any loss/ foregone toll revenues on account of any disruption in collection of toll fees for any reasons attributable to the state Government. B (Debjani Chakrabarti) Director (Highways)” (Emphasis supplied)

64Copy pinpoint64. Thereafter, in the second memorandum, the communication dated 2nd November, 2018 after referring to O.M. dated 5th September, 2017, it is directed as follows: “Para 3. However, it has been observed that on several occasions the user fees plazas are being established in deviation to the provisions of NH Fee Rule 2008, and subsequently approval of the Competent Authority is being sought on various grounds.” “Para 4. In this regard, it has been decided that guidelines as below are to be followed for establishment of user fees plazas in all the projects under implementation as well as those in the planning stage: E (i) For all National Highways Project, that have been awarded post 5th September, 2017, the guidelines specified vide NH- 37012/0/2016-H dated 05.09.2017 shall be scrupulously followed. (ii) As a one-time measure, all the fee plazas, established in deviation to Rule 8 of NH Fee Rule 2008, 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. (iii) All the Executing Agencies shall ensure that, for the projects currently under execution, establishment of user fee plazas must be in conformity to NH Fee Rule 2008, and amendments there-to from time to time. (iv) Location of the user fee plaza w.r.t the nearest municipality area and w.r.t adjacent fee plazas on the same section, will also be specifically clarified in all cases taken up for approval by the SFC/EFC in future.”

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Reasoned justification by DPR consultants for deviation from the A Rules. This guideline is to be followed; it is reiterated for projects awarded after 05-09-2017. RULE 8 DEMYSTIFIED

65Copy pinpoint65. Rule 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. In this context, it is useful to bear in mind that under Rule 6, fee levied under the Rules, has to be collected by the Central Government or the Executing Authority or the Concessionaire at the toll plaza. We have already found that the Executing Authority has been defined in Rule 2(f), as an Officer or Authority notified under Section 5 of the National Highway Act. It would appear, therefore, that the Executing Authority, as defined, or the Concessionaire, is empowered to establish the toll plaza beyond a distance of 10 kilometres from a municipal or local town area limits.

66Copy pinpoint66. The first proviso contemplates power with the Executing D Authority to locate or allow the Concessionaire to locate a toll plaza within a distance of 10 km of such municipal or town area limits. However, the proviso engrafts a limitation on the power of the Executing Authority in that the exercise of power under the first proviso, should not result in the toll plaza being located within 5 kilometres of such municipal or local town area limits. A closer look at the first proviso will indicate the following features. Unlike the main Rule, where the power is conferred on the Executing Authority and the Concessionaire, to locate a toll plaza, which must, indeed, be more than 10 kilometres from the municipal or local town area limits, there is no power conferred on the Concessionaire to locate a toll plaza within the distance of 10 kilometres. In other words, the Executing Authority is the only Authority, which can locate or allow the Concessionaire to locate within a distance of 10 kilometres but not less than 5 km. In other words, the exercise of power, under the first proviso, can result in the location of a toll plaza at a distance of five or more kilometres and below 10 kilometres from the municipal or local town area limits. The further important sine qua non for the exercise of the discretionary power conferred on the Executing Authority, is that, the Executing Authority must record reasons in writing at the time when he exercises the power to locate or permit the Concessionaire to locate the toll plaza within the distance as already mentioned. H

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67Copy pinpoint67. Moving forward to the second proviso, it commences with the words “provided further”. Therefore, for all intents and purposes and at first blush, it is a proviso. More about it, a little later. Continuing the narrative, the second proviso, as it is described, consists of the following features. If a section of the national highway, permanent bridge, bypass or tunnel, is constructed within the municipal or town area limits, B then, the toll plaza may be established within the municipal or town area limits. This is subject to the only requirement that the construction of the section of national highway, permanent bridge, bypass or tunnel, whichever may be the case, is constructed within the municipal or town area limits, primarily for the use of residents of such municipal or town area limits. C If the aforesaid two requirements are fulfilled, then, the embargo that the toll plaza must be located beyond 10 kilometres from the municipal or local town area limits, contained in Rule 8, would cease to apply. Equally, the second proviso contemplates that, if a section of the national highway, permanent bridge, bypass or tunnel is located within 5 kilometres from the municipal or town area limits, then, the last limb of the proviso, would apply, and the toll plaza may be located within a distance of 5 kilometres from such limits.

68Copy pinpoint68. It will be seen that whether the construction of the section of the national highway, permanent bridge, bypass or tunnel is constructed within the municipal or town area limits or within 5 kilometres from such limits, the common requirement for invoking the power under the second proviso and to locate the toll plaza, either within the municipal limits or town limits or within a distance of 5 kilometres from such limit, is that the construction in question, must be primarily for the use of the residents of such municipal or town area.

69Copy pinpoint69. To further recapitulate, we may summarise as follows: The second proviso produces the following results: i. Upon construction being made of a section of the national highway (which is what we are concerned with in this case) G 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 H

NATIONAL HIGHWAYS AUTHORITY OF INDIA v. 349 MADHUKAR KUMAR [K. M. JOSEPH, J.]

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.

70Copy pinpoint70. Therefore, a perusal of the second proviso leaves us in no doubt, whatsoever that the statutory requirements to apply the second proviso and to locate a toll plaza within the municipal or town area limits, is the factum of construction of a section of the national highway,inter alia, within the municipal or town area limits, subject to the only condition that it must be primarily for the use of the residents of such municipal or town area. It would be noticed further 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. In other words, unlike the main Rule and the first proviso, the Rule-maker has not indicated the person or Authority, who is to decide. Lastly, we must notice 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. D

71Copy pinpoint71. It would be apposite to enquire into the rationale, why the requirement of reasons being recorded, is not incorporated in the second proviso. The answer is not far to seek.The first proviso does not provide any condition precedent for locating a toll plaza at a distance of less than 10 kilometres but 5 or more kilometres from the municipal or local town area limits.The requirement is the recording of reasons. No other guidance is forthcoming. In fact, the only check on the power to relax the rigour of the Rule, that the toll plaza must be located at a distance of more than 10 kilometres from the municipal or local town area limits, are two in number. Firstly, the power is located only with the Executing Authority. Secondly, the Executing Authority is obliged, in law, to give reasons, which must be recorded in writing. Besides these safeguards, there are no other indispensable requirements to reduce the distance, as provided in the Rule. This is in stark contrast with the purport of the second proviso. The second proviso deals with a specific situation. We have already spelt out the requirements. These requirements alone would justify the location of the toll plaza either within the municipal or town limits or within a distance of 5 kilometres from such limits. The requirements are neatly articulated and cast in stone. They are objective criteria. They become the requirements of the Statue. If those requirements are met, then, the toll plaza can be established, relaxing the Rule. H

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72Copy pinpoint72. In such circumstances, we are of the clear view that the High Court has erred in reading 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 B 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.

73Copy pinpoint73. With regard to a proviso, the reliance placed by the Writ C Petitioners on the Judgment of this Court in Mohan Kumar Singhania v. Union of India16, is misplaced. In the said case, the Court was dealing with the challenge to the second proviso to Rule 4 therein. The Court went on repel the contention, no doubt, that the second proviso travelled beyond the intent of the main Rule. In fact, it is pertinent to note the following paragraphs: “Para 69. Maxwell in his 12th edition has quoted a passage from Attn. Gen. v. Chelsea Waterworks Co. [(1731) Fitzg 195] which reads that if a proviso cannot reasonably be construed otherwise than as contradicting the main enactment, then the proviso will prevail on the principle that “it speaks the last intention of the makers”. Para 70. It is pointed out in Piper v. Harvey [(1958) 1 QB 439 : (1958) 1 All ER 454] that if, however, the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision which it immediately follows, it must be given such wider effect.”

74Copy pinpoint74. Lush, J., observed in Mullins vs. Treasurer of Survey17, “when one finds a proviso to a section, the natural presumption is that, but for the proviso, the enacting part would have included the subject matter of the proviso.” The general Rule is that, the function of the proviso is to qualify or provide an exception to the main provision to which it is a proviso. It can be a guide to glean the purport of the provision, in case there is ambiguity in the main provision. Ordinarily, the proviso is not

16 1992 Supp (1) SCC 594 17 H 1880 QBD 170

NATIONAL HIGHWAYS AUTHORITY OF INDIA v. 351 MADHUKAR KUMAR [K. M. JOSEPH, J.]

permitted to operate beyond the ken of the main provision to which it is A a proviso. At the same time, proviso, in a case, may be a substantive provision. In other words, having regard to the wording and the object sought to be achieved, a proviso may transcend its ordinary province and may be intended to operate as a substantive provision [See in this regard Commissioner of Commercial Taxes, Board of Revenue, B Madras & Anr. v. Ramkishan Shrikishan Jhaver etc.18, which is being relied upon in Indore Development Authority v. Manoharlal and others19.]. These are well settled principles and we do not intend to burden the Judgment with further case law. Having regard to the provision in question, viz., Rule 8, we are of the clear view that the second proviso to the Rule is an instance of the proviso representing a substantive provision in itself. In other words, while the Rule proclaims a total embargo against the location of the toll plaza within ten kilometres of the municipal or town area limits, the second proviso permits the location of the toll plaza even within the municipal limits or town area limits. Even if it were treated as constituting an exception to the Rule, full effect must be given to its mandate.

75Copy pinpoint75. As far as the question, as to who can take a decision under the second proviso, we would think, on a conspectus of Rule 8, that, in the absence of any express reference to the power to take a decision,within the meaning of the second proviso, being lodged with any particular Body, the said power must be found vested with the E 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, F 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 G take decision under the second proviso, is lodged with the Executing Authority.

18 AIR 1968 SC 59 19 2020 (8) SCC 129 H

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76Copy pinpoint76. To invoke the second proviso, what is required is, the existence of the conditions, as explained.

77Copy pinpoint77. However, a decision must be taken. It must be taken by the Competent Authority. The Authority, we have found is the Executing Authority. It must apply its mind and be convinced that a section of the national highway,interalia, is constructed within the municipal or town area limits. This is a pure question of fact. Secondly, it must conclude that the said construction is ‘primarily’ or ‘mainly’ for the ‘use’ of the residents of the municipal limits. This is again a factual matter. We may also find that the second proviso does not compel the Authority to locate the plaza within the municipal or town area limits. It is a matter of discretion to be exercised, no doubt, taking into consideration the maximization of toll collection also and avoiding of leakage of toll,bearing in mind the fact that the Concessionaire is permitted to collect the toll only for the period of the Concessionaire Agreement under Rule 16. To show application of mind, there must be material. Even in the absence of reasons, recorded as such, there must be proper pleadings with materials, unless facts are not in dispute. WHETHER INVOCATION OF THE SECOND PROVISO TO RULE 8 IN THE FACTS ILLEGAL?

78Copy pinpoint78. Though originally, the Ministry of the Road Transport and E Highways (MoRTH),proposed upgradation of the existing two-lane stretch from Patna to Bakhtiyarpur to four/six-lane highway based on the appraisal notes of the Planning Commission and DEA, the Patna- Bakhtiyarpur project received final approval for the development of the stretch as a four-lane highway. This is evident from the record note of discussion of the meeting of the Public Private Partnership Appraisal Committee (PPPAC) dated 10th February, 2010. Even prior to the same, a Detailed Project Report (DPR) was prepared by an International Consultant. Thereafter, the Cabinet Committee cleared the project under NHDP Phase III on DBFOT basis, i.e., Design, Build, Finance, Operate and Transfer. It is apposite to notice, in the appraisal note [when the proposal was for four/six-laning of the Patna-Bakhtiyarpur section], the following: “Para 3.4. As observed from Schedule A and B in the DCA, new bypass starting from km 195 to km 231 has been proposed. This appears in continuation to an existing bypass from km 178 to km

H 196. It has also been observed the entire Project highway has

NATIONAL HIGHWAYS AUTHORITY OF INDIA v. 353 MADHUKAR KUMAR [K. M. JOSEPH, J.]

urban/ built up settlements across the stretch. Thus, providing for A a bypass for through traffic appears justified. However, the distribution of local traffic and through traffic is not provided in the documents.The same may be provided to the members of the PPPAC. Through the traffic details will be the base for revenue assessments and therefore beneficial to suitably analyse the viability of the Project.” (Emphasis supplied)

79Copy pinpoint79. The broad scope of the work is shown as follows: “Para2. Scope of work C 2.1 The broad scope of work as per the Schedules B and of the DCA consists of construction and up-gradation to 4/6-lane road (km 178.60 at Patna) – (Km 230 at Bakhtiyarpur) from 2-lane with provision of project facilities, operation and maintenance (O&M) of the Project and performance and fulfilment of all other obligations of the Concessionaire. It includes: D i. By pass 36.4 km, from km(195-231.4) ii. Service Road onboth Total length of 8.5 km sides of the road iii.Major intersections, 2 nos. at km 181.3(Anisabad) E

3-legged at-grade & km 188.47 (Zero mile) iv. Minor junctions 11nos. v. Grade separated 4 nos. At km (188.25, 188.47, F intersections 207.6 &231.4) vi. Vehicular underpass 1 vii. Cattle underpasses 7 nos. at village roads viii. Reconstruction of 57 nos. G culverts ix. Bus bayes 6 nos. x. Road furniture and signages and plantations” H

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80Copy pinpoint80. By Notification dated 07.05.2010, in exercise of power under Section 11 of the National Highway Authority of India Act, 1988, the Central Government entrusted the project, which consisted of the stretch from 181.300 km to 231.950 km. of the NH 30, in the State of Bihar, to NHAI. On 12.02.2011, NHAI made a general Notification inviting objectionsfrom the general public towards the proposed construction to B the toll plaza at 194km. This is on the basis of the DPR, which, after detailed study, recommended the construction of the toll plaza at 194 km. The public meeting/hearing on 12.02.2011, was allegedly attended by about 71 local residents.The appellant invited proposals for construction, operation and maintenance of the project in question. The C Concessionaire Agreement was entered into with the highest bidder, i.e., PBTC, on 31.03.2011. The Agreement provided, inter alia, for the toll plaza being located at 194 km. Work was apparently in progress, when the Writ Petitions came to be filed.

81Copy pinpoint81. We may further notice from the Executive Summary of the D Detailed Project Report. It reads as under: “The Project Road (National Highway -30) From km 180.0 to km 190.0 of bypass section there is a very congested stretch due to the presence of Transport Nagar, residential buildings & commercial activity. Further NH-30 E intersects with NH-19 at Km 188+500. At Km. 188+800, SH-1 starts form the Patna bypass and traverses towards south (towards Masaurhi). From km 190 to km 195 of bypass section there is agricultural land on both side of road. At Km. 195+750, it further crosses railway line (Patna-Kolkata section) through a newly built F 4-lane ROB. Further it traverses through Didarganj (Km. 197). The stretch of NH-30 on new bypass and from Didarganj ROB (Km 196) to Fatua (Km 208) is very congested with local and thorough traffic all along. However, while new bypass area upto Didarganj has available ROW of 60 m for widening to 4/6 lanning, G the area between Didarganj to Fatua is being encroached/has built up settlement on both sides with available ROW less than 15-20m. Immediately after Fatua town (Km 208) to Bakhtiyarpur (Km 227), this area is relatively less congested, but has pockets of staggered settlement in between, including at Bakhtiyarpur. Due to above-mentioned existing features, widening of existing H

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road to standard 4-lane configuration would present considerable A difficulty due to the physical constraints. In view of above- mentioned features, the proposed alignments have been considered on the southern side of the existing NH-30. Toll Plaza Location The project road is proposed to be developed as Tolled Road. The B project road being only 50km long, only one toll plaza will be feasible to be provided. During site reconnaissance it was observed that free space is available near km 194 suitable for development of Toll Plaza System. Same is already discussed with NHAI officials during site visit. C Service Road The concept of service is being conceived at built up area and grade separated intersections (Flyover & Underpass locations) which will come along the proposed alignment. The list of the proposed service road stretches are as follows: D i. 181.3 to 189.11 ii. 206.8 to 207.4" (Emphasis supplied)

82Copy pinpoint82. We have referred to the pleadings. We have also noticed the E relevant parts of the DPR.In the Writ Petition, petitioners themselves have pleaded that the road in question is a national highway, and what is more, that it has been constructed merely for the use of the residents of the Patna Municipality Area. In our view, this pleading is fatal to the case of the petitioner that there is violation of the second proviso. As F already found by us, the only requirement to locate the toll plaza within the municipal limits, is that a section of the national highway,interalia, is constructed within the municipal limits and the construction must be primarily for the residents living in the said municipal limits. There is hardly any dispute that the national highway, which means the project road, commences from 181.300 kms from the Patna side and it goes to G the east and till 196 kms, it is located within the municipal limits. After 196 kms, it branches of towards the south, which is the new bypass consisting of nearly 36 kms. The total stretch consists of a little over 50 kms. For nearly 14 kms, the road project road passes through the municipal limits. H

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83Copy pinpoint83. The DPR would show that the construction of the project road and other roads, will bring about greater circulation of traffic in the area. In other words, it means that, the project road which begins from 181.300 kms, which was a two-lane road was widened to a four-lane road and the project road ends at 231 kms, where NH30 meets NH31. The Project Report also makes it clear that from km 180 to km 190 of the bypass section, there is a very congested stretch. From km 190 to km 195, it is further stated that there is agricultural land on both sides. Didardanj is located even further to the east, and still further is, Fatua town. Construction of the bypass in that area, was found to be impracticable and it is accordingly that from 196 kms, the new alignment towards the south, was carried out. The Project Report further reveals that the project road is only 50 kilometres long. Only one toll plaza could be provided. In this regard, Rule 8(2) contemplates the distance of 60 kilometres between two toll plazas. The Project Report further reveals that the NHAI Officials were available at the site along with the persons who prepared the DPR, and it is thereafter that this location was quite clearly accepted by the NHAI, as when it entered into the agreement with the Concessionaire, the agreement itself provides for the site of the toll plaza being km 194. It may be true that there may not be any decision which specifically incorporates the view of the NHAI regarding the site. What has apparently happened is, in keeping with the newly introduced Rule (Rule 8 of the 2008 Rules), the NHAI has proceeded to accept the recommendation of the Expert Body to locate the toll plaza at km 194.

84Copy pinpoint84. We are not unmindful of the fact that counter affidavit of the appellants betrays a certain degree of ambiguity. This is for the reason that, what is pleaded in both the counter affidavits, was that, even if the toll plaza is located within the municipal limits, the second proviso to Rule 8 comes to the rescue of the appellant. This is sought to be exploited by the Writ Petitioners to point out that even appellants were not clearly aware, whether the toll plaza was being located within the municipal limits or not. Writ Petitioners also harp upon the clarity being infused by the counter affidavit filed by the Municipal Council of Patna that the toll plaza was located within the municipal area. We also agree that the matter becomes a little worse, when we read the pleadings of the Concessionaire. In the first counter affidavit, it was contended that the proposed toll plaza at km 194 is much beyond 5 kilometres stipulated in H

NATIONAL HIGHWAYS AUTHORITY OF INDIA v. 357 MADHUKAR KUMAR [K. M. JOSEPH, J.]

the first proviso. There is also pleading, which indicates that understanding of the Concessionaire was that the construction was for the overall population of the area. However, we must also not ignore that the upgradation was stated to be also aimed at benefitting the local population for the speedy movement from Patna to Bhaktiyarpur and vice-versa. In the second supplementary counter affidavit, it is contended that the four-laning was initiated to reduce the pressure of the local traffic as well and that it is primarily for the benefit of the local residents.

85Copy pinpoint85. We are, indeed, troubled by the manner in which the case was approached by the Concessionaire, in particular. However, the appellants definitely set up the case under Rule 8 in both the counter affidavits filed by it. The statement that the second proviso applies, even if the construction is made within the municipal limits, is emphasised by the Writ Petitioners, to show the non-application of minds. We must, in this regard, bear in mind the nature of the lis, as also the rights of the Writ Petitioners. The High Court did not find any Fundamental Rights with the writ petitioners in the matters. The only issue is relating to violation of Rule 8.We have already found that upon the satisfaction of the objective criteria laid down in the second proviso, construction of the toll plaza, as provided therein, is permissible. Apart from the statement of the Writ Petitioners themselves, that the road is a national highway and it is merely for the use of the local residents, the undeniable fact is that, in place of the two-lane road, after a huge investment, it was upgraded to a four-lane road and nearly 14 kilometres of the project road, indisputably, passed through the municipal limits and the most important beneficiary of the said construction, can clearly be stated to be the residents in the municipal area. The project road, did enurechiefly to the residents of the Patna Municipality. The road from 180 to 190 kms was found to be a very congested stretch. The construction of the widened road, undoubtedly, helped mainly the residents of the municipal area. There are other features, apart from widening, including the graded separators. No doubt, it may be true that many persons may be using the said stretch, who may not be residents of the Patna Municipality, would also benefit from the construction, but that cannot detract from requirement of the second proviso being fulfilled, viz., that the construction was primarily for the benefit of the residents of the municipal area. The second proviso does not require that the construction must be solely for the benefit of the residents of the municipal area. H

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86Copy pinpoint86. There is another aspect, which we cannot ignore. The construction was completed in accordance with the agreement with the Concessionaire. The Judgment of the Division Bench came to be stayed by this Court and the toll has been collected from the toll plaza. Secondly, the High Court may not be justified in finding that the commercial expediency trumped the law. Commercial expediency is, undoubtedly, a B relevant fact. The exact location of the toll plaza is also geared to garner maximum revenue. Concessionaire Agreement lasts for a particular period of time. It is the Concessionaire, who makes the construction, after making the entire investment. The contract contemplates “Design, Build, Finance, Operate and Transfer (the “DBFOT”) under Rule 16 of C the Rules, upon the expiry of the agreement, the fee is to be collected by the Central Government or the Executing Authority. Therefore, in such circumstances, any leakage in the toll, would naturally be sought to be avoided. As long as the site of the toll plaza is otherwise supportable, with reference to the second proviso, then, the area of judicial review, in such matters, would be extremely narrow. D

87Copy pinpoint87. We may notice one dimension. In the Rules of 2008, Rule 2C defines a bypass as a section of the national highway bypassing a town or a city. Therefore, the question may arise, whether, when Rule 8 speaks of construction of a section of the national highway, which is within a E municipal or town area limits, it will include a bypass, in view of the new definition. There is indication in the case that from 178 km, there was an existing bypass. The new construction was over the existing bypass. However, we do not explore this matter further as none of the parties addressed us on this and we proceed on the basis that there was construction of a National Highway partly within the municipal limits. F RULE 17; CLOSING OF SERVICE ROADS

88Copy pinpoint88. Rule 17 permits additional barriers to prevent evasion of fees at the toll plaza. At places, other than “at the toll plaza”, with prior permission of the Central Government or Executing Authority, additional G barriers are permitted but within 10 kilometres from the toll plaza. We notice these provisions to pronounce on the complaint of the Writ Petitioners that there is blocking of the service roads near the toll plaza. We make it clear that barriers shall be permissible only in compliance with Rule 17 of the Rules.

NATIONAL HIGHWAYS AUTHORITY OF INDIA v. 359 MADHUKAR KUMAR [K. M. JOSEPH, J.]

IMPACT OF APPELLANTS NOT CHALLENGING A JUDGMENT IN WRIT PETITION NO. 4526 OF 2013

89Copy pinpoint89. The further question to be considered, is the effect of appellant not challenging the Judgment rendered in the Writ Petition No. 4526 of 2013, filed by one Ritesh Ranjan Singh. The said petitioner filing the Writ Petition, was filing it as Public Interest Litigation and it was so treated. B It was, however,made over to learned Single Judge, who heard it along with Writ Petition No. 5643 of 2012. We have already noted, in first paragraph of this judgment, the manner in which both Writ Petitions were disposed of.

90Copy pinpoint90. It is true that the appellant filed LPA in 2015 only against Writ C Petition No. 5643. Concessionaire filed two Appeals. All the three Appeals came to be dismissed. The present Appeal is filed only against the Judgment in LPA No. 388 of 2015, which in turn, was directed against Writ Petition No. 5643 of 2012, therefore, the obstacle, which is sought to be set up by the Writ Petitioners (Respondent Nos. 1 to 17) that the Judgment in Writ Petition No. 4526 of 2013 has become final. In other words, if the present Appeal is allowed, it would lead to a consistent decision, one by this Court and another contradiction with our Judgment rendered final, viz., the Judgment in Writ Petition No. 4563 of 2013.

91Copy pinpoint91. The contention, which is pressed before us by the learned counsel for the appellant, is by drawing support from the Judgment of this Court in Shenoy & Co. v. Commercial Tax Officer, Circle II, Bangalore and Others20 .

92Copy pinpoint92. No doubt, that was the case where the constitutionality of a statute was challenged in a number of writ petitions. The provisions were struck down by the High Court. From the Judgment of the High F Court, only one of the Writ Petition was challenged before this Court. While so, there were other developments, insofar as there was legislative activity aimed at removing infirmities of the law, which was struck down by the High Court and giving it retrospective effect also. More importantly, this Court allowed the Appeal and set aside the Judgment of the High G Court. Thereafter, fresh notices were issued after the Judgment of this Court, upholding the original enactment of the year 1979. Notices were sent to all the Writ Petitioners, who had secured Judgment from the High Court, which Judgments were not appealed against. This Court 20 (1985) 2 SCC 512 H

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A was dealing with the contention that, as far as their cases are concerned, since no Appeal was carried in their case, Judgment of the High Court remained intact. While rejecting this argument, Court drew upon the provision of Article 141. The Court, inter alia, held as follows: “23. …..To contend that this conclusion applies only to the B party before this Court is to destroy the efficacy and integrity of the judgment and to make the mandate of Article 141 illusory. But setting aside the common judgment of the High Court, the mandamus issued by the High Court is rendered ineffective not only in one case but in all cases.

C 24. A writ or an order in the nature of mandamus has always been understood to mean a command issuing from the Court, competent to do the same, to a public servant amongst others, to perform a duty attaching to the office, failure to perform which leads to the initiation of action. In this case, the petitioners- appellants assert that the mandamus in their case was issued by the High Court commanding the authority to desist or forbear from enforcing the provisions of an Act which was not validly enacted. In other words, a writ of mandamus was predicated upon the view that the High Court took that the 1979 Act was constitutionally invalid. Consequently the Court directed the authorities under the said Act to forbear from enforcing the provisions of the Act qua the petitioners. The Act was subsequently declared constitutionally valid by this Court. The Act, therefore, was under an eclipse, for a short duration; but with the declaration of the law by this Court, the temporary shadow cast on it by the mandamus disappeared and the Act revived with its full vigour, the constitutional invalidity held by the High Court having been removed by the judgment of this Court. If the law so declared invalid is held constitutionally valid, effective and binding by the Supreme Court, the mandamus forbearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. The declaration of the law is binding on everyone and it is therefore, futile to contend that the mandamus would survive in favour of those parties against whom appeals were not filed.

25. The fallacy of the argument can be better illustrated by looking at the submissions made from a slightly different angle.

NATIONAL HIGHWAYS AUTHORITY OF INDIA v. 361 MADHUKAR KUMAR [K. M. JOSEPH, J.]

Assume for argument’s sake that the mandamus in favour of the appellants survived notwithstanding the judgment of this Court. How do they enforce the mandamus? The normal procedure is to move the Court in contempt when the parties against whom mandamus is issued disrespect it. Supposing contempt petitions are filed and notices are issued to the State. The State’s answer to the Court will be: “Can I be punished for disrespecting the mandamus, when the law of the land has been laid down by the Supreme Court against the mandamus issued, which law is equally binding on me and on you?” Which Court can punish a party for contempt under these circumstances? The answer can be only in the negative because the mandamus issued by the High Court C becomes ineffective and unenforceable when the basis on which it was issued falls, by the declaration by the Supreme Court, of the validity of 1979 Act.”

93Copy pinpoint93. Actually, this is a plea, which may really not be available to the Writ Petitioners.At any rate,if we were to apply the same principles to the facts of this case, we would come to the conclusion that if we were to find that there is no violation of Rule 8, the location of toll plaza at 194kilometre is not flawed and the judgment of the Court is set aside, then, it would attract Article 141. The relief, which has been granted in other Writ Petition, is in the form of mandamus to shift the toll plaza, whichmay become unenforceable, in view of our finding that toll plaza was constructed lawfully and, therefore, need not be removed. As already noticed, the appellants have challenged the Judgment in the Writ Petition filed by the Writ Petitioners. WHETHER THE DECISION IS ARBITRARY F

94Copy pinpoint94. 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 G 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 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 H

p. 362 Copy page pinpoint

A 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.

95Copy pinpoint95. We have found that the Executing Authority is the Competent Authority to take decision under the second proviso to Rule 8 of the B 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.

96Copy pinpoint96. 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 notice that there is no appeal by the Concessionaire against the impugned order. D

97Copy pinpoint97. The upshot of the above discussion is that we find as follows: (1) The construction of the toll plaza at 194 kilometre was not illegal or arbitrary;

E (2) The direction by the High Court, to shift toll plaza,cannot be upheld and it is liable to be set aside; (3) The appellants will look at the barricades (closing of service roads) in regard to the toll plaza and permit such barricades only as are permitted in Rule 17 of the Rules. Any F unauthorised barricades will be removed without any delay and at any rate within 2 weeks from today. (4) The First Appellant will issue suitable directions to all Executive Authorities to maintain distinct records containing the decision, invoking the second proviso to Rule 8 of the G Rules. Such direction shall be issued within 3 weeks from today. (5) We direct the appellants as also the Concessionaire to extend the fullest benefits of the concessions under Rule 9 of the Rules. H

NATIONAL HIGHWAYS AUTHORITY OF INDIA v. 363 MADHUKAR KUMAR [K. M. JOSEPH, J.]

(6) Resultantly, we allow the Appeal and set aside the impugned A Judgment and the direction to shift the toll plaza is set aside. (7) There shall be no order as to costs.

Ankit Gyan Appeal allowed. B