Nagendrasinh Jaswantsinh Bhati vs State Of Gujarat And Others

S.R. Brahmbhatt, J

Heard learned counsel for the parties.

Present petition has been taken out as a Public Interest Litigation for seeking following reliefs on the basis of the allegations and averments made in the petition.

"(12).....

(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions declaring that the installation of Toll Plaza at Village-Gaajan is illegal, unauthorized and contrary to Notifications and without following due process of law and further be pleased permanently restrain the respondent no. 3 from collecting the toll tax and may further be pleased to direct the respondents herein to install toll plaza at the exact location as per the Original Notification, i.e. at Lunavada-Modasa at Chainage Kilo meter 472/200, which would be at "Jalodar" pick-up station which is on way from Modasa Malpur;

(B) During pendency and Final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondents herein to place on record the procedure/necessary formalities undertaken by respondents herein for installation of Toll Plaza at Village-Gajan;

(C) During pendency and Final disposal of the present petition, YOUR LORDSHIPS may be pleased to restrain the respondent-authorities (more particularly, respondent no. 3) from operating and from levying user fees/toll tax amount at Gaajan Toll Plaza;

(D) Pass any other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;"

The petition was essentially filed for two grievances, namely, that the locals were put to undue hardships on account of various contentions raised in the petition and the location of toll plaza not being in accordance with the respondent-State's own declared policy. Learned counsel appearing for the petitioner submitted that so far as the first grievance qua local's hardship is concerned, the same is by and large taken care on account of the Notification dated 12.8.2016, which came to be issued after filing of this petition and, therefore, now the grievance qua the location of the toll plaza may be examined.

Learned counsel appearing for the petitioner invited the Court's attention to page 31 of the compilation to indicate that the location of toll plaza was clearly earmarked in the Notification dated 3.3.2014 and, if page 49 is perused, it would indicate that location is shifted and the same has resulted into shortening the distance between two toll plazas, which again is contrary to the declared policy of maintaining adequate distance of 25 to 30 kms. between two toll plazas.

Learned counsel appearing for the respondents invited the Court's attention to the affidavit-in-reply and laid emphasis upon page no. 71 to indicate that the contention raised on behalf of the petitioner, unfortunately, is contrary to the facts on record. The relevant paragraph of the affidavit along with tabular depiction deserves to be set out as under for ready reference.

"The chainages mentioned in the Fee Notification were existing chainages of the Halol-Godhra-Shamlaji Road starting from chainage km. 335/170 and ending at chainage km. 501/400 when a length of Godhra Bypass was not there. It would be most relevant to note that after construction & addition of new length of Godhra Bypass, (of length 6.83 km out of total length of the bypass 17.62 km.) the chainages of each tolling section and toll plaza are changed. However, length of all the four sections of the Project Highway which is under tolling remains the same as originally envisaged in Concession Agreement and as mentioned in the Fee Notification. Hence, due to change in chainage of section and toll plaza; there is no effect on per km rate of User Fee and amount of User Fees to be collected. Due to construction of Godhra Bypass there is net change of 6.83 km. length in the project highway which is already envisaged in Concession Agreement and fee notification resulting into change in chainage of end point of the project highway coming to km (501.40+6.83=508.23) 508.23. The Kilometer stones on the road side are fixed as per final executed length after addition of newly constructed length of Godhra Bypass. The details of four sections of the project highway having total length of 173.06 km. for which User Fee is being collected are as follows:

Sr. No

Section

Location of Toll Plaza as per Final Chainage

Final Chainage Final Chainage after addition of newly constructed length of Godhra Bypass

Length in Km.

1.

Halol-Godhara

357/100

335/170

379/430

44.26

2.

GodharaLunawada

409/372

379/430

421/990

42.56

3.

Lunawada - Modasa

453/00

421/990

479/030

57.04

4.

Shamlaji

484/690

479/030

508/230

29.2

A map showing the Project Highway marked with existing and final chainages showing start and end of of each tolling section and location of Toll Plaza of a section is annexed herewith and marked as Annexure-II.

For kind appraisal of this Honourable Court it is to stated that the Project Highway is divided into four toll section and each section is equipped with the Toll Plaza from where, the User Fee is collected for the length falling under the particular section. So the length of a Section is multiplied with the per km rate of Fees for a particular Financial Year. The resultant figure is rounded to nearest rupees five (Rs. 5/-) and such derived User Fee is notified by the Roads and Buildings Department of the Government of Gujarat on such request made by Gujarat State Road Development Corporation Ltd. (GSRDC); a wholly owned Government of Gujarat company implementing the Project and collected by the Concessionaire of the project as he is entitled for the same as per the Concession Agreement signed. The latest notification for FY 2016-17 is annexed as Annexure- III herewith."

This Court passed an order on 22.8.2019, which reads as under:-

"Learned counsel for the respondent nos. 2 and 3 have invited Court's attention to the Affidavit-in-Reply filed on behalf of respondent no. 2 and laid emphasis upon various aspects including that of issuance of notification dated 12.08.2016, whereunder the private vehicles mentioned in the notification, so far as this toll plaza is concerned, have been exempted.

The counsel for the respondent no. 2 also laid emphasis upon the past incidence of the present petitioner seeking exemption passes and his interaction with the authorities in this behalf.

Learned counsel Shri. Kausal Patel, at this stage, submitted that Shri. Jadeja, learned counsel for the petitioner handle the matter, though there is one more counsel Shri. D.A. Sankhesara. But, as there is sick note, we propose to put up the matter tomorrow with specific observation that the matter will be proceeded with irrespective of leave note and sick note. Put up on 23.08.2019."

In view of aforesaid, this Court is of the considered view that first grievance would now not survive on account of the Notification dated 12.8.2016 and, so far as the second grievance is concerned, the same appears to be illusory on account of the portion of affidavit-in-reply, which has remained uncontroverted. In that view of the matter, nothing survives in the petition and the petition deserves to be dismissed. Accordingly, the petition is dismissed. Notice is discharged. No order as to costs.