In Absence of Any Statutory Prohibitions, Establishment of Toll Plaza Couldn't Be Faulted Only On Ground That It Is In Vicinity of Adjoining Villages: Rajasthan HC

The court observed that the Toll Plaza, in the present case, is beyond the prohibited distance under Rule 8 of the Rajasthan State Highways Fee (Determination of Rates and Collections) Rules, 2015 and there being no violation of any statutory provisions governed, the establishment of Toll Plaza cannot be said to be in violation of law only on the ground of violation of the certain guidelines which are principle based..

Acting Chief Justice Manindra Mohan Shrivastava and Justice Vinod Kumar Bharwani, while dismissing the petition, observed,

"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."

Essentially, the PIL was filed challenging the construction and operation of Toll Plaza named Chomu Chandwaji Tollways at Kushalpura at Chomu Chandwaji SH-08 B. The petitioner, who claims to be a public spirited person, alleged that agreement for construction of the Toll Plaza violates provisions contained in the Act of 2014 and Rules, 2015. The petitioner alleged that Toll Plaza is surrounded by densely populated area of several villages and dhanis and the authorities ought not to have allowed its construction. The petitioner stated that there are five adjoining local town areas and Panchayats within a distance of 5 kms and no permission was obtained from Tehsildar and Sub-Divisional Officer. It is also stated that the Toll Plaza is situated in District Chomu which is already surrounded by four other Toll Plazas

The petitioner pleaded that Toll Plaza is in violation of Department of Public Works of Rajasthan norms 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 Indian Road Congress (IRC) 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 the already existing petrol pump. 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.

It was noted by the court that much emphasis has been laid on the State circular issued by the Chief Executive Engineer PWD Rajasthan, Jaipur. The court also noted that the instruction was issued prior to promulgation of Rajasthan State Highways Act, 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.

The court stated that petitioner's contention 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, as in the absence of there being anything in the Act of 2014 and Rules of 2015 in that regard.

In furtherance, the court observed that 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.

It was added that 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. While rejecting petitioner's contention, the court observed that If the petitioner's argument is accepted, then the provisions rendered will become completely unworkable as the State Highway on either side are adjoining various panchayats and village areas and dhanis.

Further, the court also rejected petitioner's argument that the Toll Plaza would endanger public safety if erected in such vicinity as there are various adjoining villages, on the ground that 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 the distance of Toll Plaza from the municipal area/local town area, added the court.

Moreover, the court opined that the IRC guidelines are recommendations which are adopted for establishment of petrol pump outlets. The court also opined that these guidelines are not statutory guidelines but only recommendations. The court stated that Clause 2 thereof, lays down the basic principles that the governing consideration for norms are to 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 and relate to national highways and not to State Highways, added the court.

It was also observed by the court that none of the cases relied upon by the petitioner is related to establishment of Toll Plaza but are only with regard to establishment of petrol pump/outlets. 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, added the court.

The court opined that vague pleadings have been made with regard to collection of toll fee in contravention of the rates prescribed under the Rules. The court noted that w.e.f. 01.04.2018 all the private vehicles have otherwise been exempted from levy of toll fee and it has been clearly stated that tractors, tractors with trolley carrying agriculture produce are also exempted from toll fee. It was also opined that no specific material has been placed in the petition to satisfy the court that the location of Toll Plaza endangers public safety.

Additionally, the court also remarked that it examined the issue raised in this petition as to whether the location of Toll Plaza is against public interest, even though serious allegations against the petitioner were levelled by the respondents 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.

Adv. Sehban Naqvi appeared for the petitioner, while Senior Adv. Rajendra Prasad assisted by Adv. Ashish Sharma, AAG Rajesh Maharshi assisted by Adv. Udit Sharma, Adv. Krishna Verma for Adv. Sukriti Kasliwal appeared for the respondents.

Case Title: Jagdish Prasad Meena v. The State Of Rajasthan

Citation: 2022 LiveLaw (Raj) 125

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