Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : State Govt. Also Comes Within The Definition "executing Agency"; Nothing Prevents The State Govt. To Issue Auction Notice For Collection Of Fee.
JUDGEMENT TITLE : Vinay Kumar Pandey Vs. Union Of India & Others On 28/01/2010 By Allahabad High Court
CASE NO : WRIT - C NO. 71614 OF 2009
CORAM : Hon'ble Chandramauli Kumar Prasad,Chief Justice And Hon'ble Arun Tandon,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Civil Misc. Writ Petition No. 71614 Of 2009
Vinay Kumar Pandey Vs. Union Of India And Others
*****

Hon'ble C.K. Prasad,CJ
Hon'ble Arun Tandon,J

This Application Has Been Filed For Issuance Of A Writ In The Nature Of Certiorari For Quashing The Auction Notice Dated 3rd Of December, 2009 (Annexure No. 4) Issued By The Executive Engineer, Public Works Department, Varanasi.
Short Facts Giving Rise To The Present Writ Petition Are That A Bridge Exists Over River SAI On National Highway No. 56 At Jalalpur In The District Of Jaunpur. Executive Engineer, Public Works Department Issued Notice For Settlement Of The Right To Collect Toll Over The Aforesaid Bridge, By Public Auction On 5th Of January, 2010.
Petitioner Has Challenged The Aforesaid Auction Notice On The Ground That The Bridge Situated Over River SAI At National Highway No. 56 Belongs To The Union Government And Therefore, The Executive Engineer, Public Works Department, A Functionary Of The State Government, Has No Right To Issue Any Pubic Notice For Settlement Of Right To Collect Toll.
It Is Further Case Of The Petitioner That As National Highway No. 56 Is Maintained By The National Highway Authority Of India, The Executive Engineer Of The State Government Has No Authority To Issue Public Notice For Settlement Of The Bridge For Collection Of Toll.
Counter Affidavit Has Been Filed On Behalf Of Respondent Nos. 3, 4 & 5 And In Paragraph Nos. 12 And 13 Of The Counter Affidavit, They Have Stated As Follows:-
"12. That It Is Further Stated The Present Bridge Is At National Highway Division No.-1, P.W.D., Varansi And This Bridge Is Under The Public Works Department And As Such The Provisions Of National Highways Authority Of India Act, 1988 Are Not Applicable.
13. That It Is Further Stated That National Highway No. 56 Is Not Under National Highways Authority Of India And As Such The Provisions Of National Highways Authority Of India Act, 1988 Are Not Applicable."

Rejoinder Affidavit Has Been Filed By The Petitioner And In Paragraph No. 9 Thereof, It Has Been Stated As Follows:-
"9. That The Contents Of Para 12, 13 & 14 Of The Counter Affidavit As Stated Are Not Correct Hence Denied. It Is Submitted That Mere Entrusting The Responsibility To Maintain The Highway Or Bridge Will Not Exclude The Applicability Of National Highway Act, National Highway Authority Of India Act And Rules, 1997. The Contract To Collect Fee On National Highway Shall Be Given To A Franchisee By The Executing Agency. Executing Agency Has Been Defined Which Means National Highway Authority Of India. The Respondents Have Tried To Mislead The Hon'ble Court That National Highway Authority Of India Act, 1988 Is Not Applicable. Admittedly, National Highway No. 56 Has Been Notified And It Finds Mention In The Schedule At Serial No. 45."

Mr. R.C. Singh, Appearing On Behalf Of The Petitioner Draws Our Attention To Section 2 Of The National Highways Act, 1956 (hereinafter Referred To As 'Act') And Submits That Each Of The Highways Specified In The Schedule Is A National Highway Within The Meaning Of The Act. He Refers To Serial No. 45 Of The Schedule And Submits That The Highway Starting From Lucknow And Connecting Jagdishpur, Sultanpur And Jaunpur And Terminating Near Varanasi Is National Highway No. 56. He Points Out That The Bridge In Question Is Situated Over National Highway No. 56 And In View Of Section 4 (ii) Of The Act, All Bridges On The National Highways Vest In The Union Of India And Therefore, The Functionary Of The State Has No Authority To Issue Notice In Question.
In Answer Thereto, Mr. Pipersenia, Learned Standing Counsel, Appearing On Behalf Of Respondent Nos. 3 To 5, Submits That The Highway In Question Has Been Entrusted To The State Government In Terms Of Section 5 Of The Act And Therefore, The Functionary Of The State Has The Authority To Issue The Public Notice.
Having Appreciated The Rival Submissions, We Do Not Have The Slightest Hesitation In Accepting The Broad Submission Of Mr. Singh That National Highway No. 56 Is A National Highway On Account Of Its Inclusion In The Schedule To The Act. Further, The Bridge In Question Vests In The Union Of India In The Light Of The Section 4 (ii) Of The Act But That Does Not Mean That It Cannot Be Entrusted To The State Government. Section 5 Of The Act, Which Is Relevant For The Purpose Reads As Follows:-
"5. Responsibility For Development And Maintenance Of National Highways.-- It Shall Be The Responsibility Of The Central Government To Develop And Maintain In Proper Repair All National Highways; But The Central Government May, By Notification In The Official Gazette, Direct That Any Function In Relation To The Development Or Maintenance Of Any National Highway Shall, Subject To Such Conditions, If Any, As May Be Specified In The Notification, Also Be Exercisable By The Government Of The State Within Which The National Highway Is Situated Or By Any Officer Or Authority Subordinate To The Central Government Or To The State Government."

From A Plain Reading Of The Aforesaid Provision, It Is Evident That The Central Government May Direct That Any Function In Relation To The Development And Maintenance Of Any National Highway Be Exercisable By The Government Of The State Within Which The National Highway Is Situated Or By Any Officer Or Authority Subordinate To The Central Government Or To The State Government.
Respondent Nos. 3 To 5 In The Counter Affidavit As Incorporated Above, Have Specifically Pleaded That The Highway In Question Was Entrusted To The State Government. The Petitioner, In Reply Thereof, Nowhere Stated That In Fact In Terms Of Section 5 Of The Act, The Highway In Question Has Not Been Entrusted To The State Government. Therefore, There Is No Escape From The Conclusion That The State Government Has Been Entrusted The Highway In Question. Once It Is Held So, The Plea Of The Petitioner That The Bridge In Question Belonging To The Union Government, Cannot Be Settled By The State Government, Is Fit To Be Rejected.
To Put The Record Straight, Mr. Singh Submits That The Highway In Question In Fact Has Been Entrusted To The National Highways Authority Of India. However, No Document Has Been Placed On Record To Show That It Has Been So Entrusted.
Mohd. Ali, Appearing On Behalf Of The National Highways Authority Of India States That Till Date, The Highway In Question Has Not Been Entrusted To The National Highways Authority Of India.
Mr. Singh Then Draws Our Attention To Rule 5 Of The National Highways (Fees For The Use Of National Highways Section And Permanent Bridge--Public Funded Project) Rules,, 1997 (hereinafter Referred To As 'Rule') And Submits That All Fees Have To Be Collected By The Executing Agency Departmentally Or Through Private Contractors On The Basis Of Competitive Bidding On Behalf Of The Central Government. He Submits That Executing Agency Has Been Defined Under Rule 2 (b) Of The Aforesaid Rules Within Which The State Government Does Not Come, Hence It Cannot Act As The Executing Agency. According To Him, It Is Only The National Highways Authority Of India, Which Is An Executing Agency, Which Make The Settlement.
We Do Not Find Any Substance In The Submission Of Mr. Singh.
Rule 2 (b) Of The Rules, Which Defines Executing Agency, Reads As Follows:-
"2. (b) "executing Agency" Means--
(i)in The Case Of Those National Highways Administratively Placed Under The Charge Of Border Roads Organisation, The Border Roads Development Board (hereinafter Referred To As 'BRDB');
(ii)in The Case Of Those National Highways Or Part Thereof Entrusted To National Highways Authority Of India (hereinafter Referred To As 'NHAI'), The National Highways Authority Of India;
(iii)in Other Cases The State Government Or Union Territory, The Administration To Which Such Functions Are Delegated Under Section 5 Of The Act."
From A Plain Reading Of Rule 2 (b) (iii), It Is Evident That The State Government Also Comes Within The Definition The "executing Agency" And In View Of Rule 5 Of The Said Rules, Nothing Prevents The State Government To Issue The Auction Notice For Collection Of Fee.
As We Have Held That The Highway In Question Has Been Entrusted To The State Government, The Auction Proceedings Undertaken By One Of Its Functionary For Collection Of Fee Qua The Bridge, Cannot Be Faulted.
In The Result, We Do Not Find Any Merit In The Application And It Is Dismissed Accordingly.
Date: 28.01.2010

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