- (1.) The Union Government in the Ministry of Road Transport and Highways entrusted a stretch of National Highway No.24 comprised of the Hapur-Moradabad-Bareilly-Sitapur section (from kilometer 59.000 to kilometer 413.200) falling within the territory of the State of Uttar Pradesh to the National Highways Authority of India (NHAI) under Section 11 of the National Highways Authority of India Act, 1988 (Act of 1988). On 19 February 2010, NHAI entered into a concession agreement in respect of the Moradabad-Bareilly section comprised from kilometer 148.000 to kilometer 262.000 with Moradabad-Bareilly Expressway Limited. In respect of this section, a toll plaza has been constructed at Ch. 228.885. A separate and distinct agreement was entered into by NHAI for the development of the Bareilly-Sitapur section comprised from kilometer 262.000 to kilometer 413.200 for which a concession agreement was entered into with another concessionaire, BHPL. In respect of the Bareilly-Sitapur section, a toll plaza is to be set up at kilometer 267.000 and kilometer 370.000. It is the proposed location of the toll plaza at kilometer 267.000 on the Bareilly-Sitapur section which forms the subject matter of the challenge in the present public interest litigation.
(2.) The toll plaza which is proposed to be set up at kilometer 267.000 is sought to be questioned on four grounds: (i) The toll plaza is situated within a distance of 100 to 300 meters from the following educational institutions: a. Manas Sthali Sr. Secondary Residential Public School, with about 600 students with a residential hostel within an area of 200 meters from proposed Toll Plaza; b. Future Institute of Engineering and Technology, with about 1000 students and a hostel facility; c. Krishna Public Senior Secondary School with about 800 students within a distance of 100 meters from proposed Toll Plaza; (ii) Rule 8 (1) of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 (Rules of 2008) stipulates that a toll plaza should be situated beyond a distance of ten kilometers from municipal or local town area limits. In the present case, the proposed toll plaza, it has been submitted, is within two kilometers of the limits of the Nagar Palika Parishad at Faridpur; (iii) Rule 8 (2) stipulates that the distance between two toll plazas on the same section of a national highway and in the same direction shall not be within sixty kilometers. The toll plaza on the Moradabad-Bareilly section is situated at kilometer 228.885, whereas the proposed toll plaza on the Bareilly-Sitapur section at kilometer 267.000 will fall within the prohibited distance of sixty kilometers; and (iv) There will be a charging of a double fee because the concessionaire for the Moradabad-Bareilly section is charging a user fee upto kilometer 269.80, whereas the proposed toll plaza will cover a user fee from kilometer 267.000. In support of this submission, reliance has been placed on the receipts issued by the concessionaire for the Moradabad-Bareilly project, indicating that the fee is being charged from kilometer 212.30 to kilometer 269.80 at NH 24. On the basis of these fee receipts which have been annexed to the supplementary affidavit filed by the petitioners on 16 November 2015, it has been submitted that, in respect of the Bareilly-Sitapur section, charging of a fee at the toll plaza at kilometer 267 would overlap with a fee which has been charged by the concessionaire for the previous section. These four submissions fall for consideration. Rule 3 of the Rules of 2008 provides for the levy of a fee. Under rule 3 (1) the fee is levied for the use "of any section" of a national highway, permanent bridge, bypass or tunnel forming part of the national highway, as the case may be, in accordance with the provisions of the Rules. The base rate of fee is indicated in rule 4. The rate of fee is computed by multiplying the length of the section by the rates which are specified in the schedule for the base year 2007-08.
(3.) Rule 8 of the Rules of 2008 is in the following terms: "8. Location of toll plaza. - (1) The executing authority or the concessionaire, as the case may be, shall establish a toll plaza beyond a distance of ten kilometers from a municipal or local town area limits: Provided that the executing authority may, for reasons to be recorded in writing, locate or allow the concessionaire to locate a toll plaza within a distance of ten kilometers of such municipal or local town area limits, but in no case within five kilometers of such municipal or local town area limits: Provided further that where a section of the national highway, permanent bridge, bypass or tunnel, as the case may be, is constructed within the municipal or town area limits or within five kilometers from such limits, primarily for use of the residents of such municipal or town area, the toll plaza may be established within the municipal or town area limits or within a distance of five kilometers from such limits. (2) Any other toll plaza on the same section of national highway and in the same direction shall not be established within a distance of sixty kilometers: Provided that where the executing authority deems necessary, it may for reasons to be recorded in writing, establish or allow the concessionaire to establish another toll plaza within a distance of sixty kilometers: Provided further that a toll plaza may be established within a distance of sixty kilometers from another toll plaza if such toll plaza is for collection of fee for a permanent bridge, bypass or tunnel.";