- (1.) HEARD learned counsel for the parties. Learned counsel for the respondents raised an objection that the order dated 26th September, 2011 impugned in this special appeal was also under challenge in connected D.B. Civil Special Appeal No. 1873/2011 arising out of S.B. Civil Writ Petition No. 11546/2011. This court dismissed the said special appeal on 14.12.2011, therefore, the present case is fully covered by the aforesaid order.
(2.) WE have considered the submissions of learned counsel for the parties.
(3.) FOLLOWING order was passed on 14th December, 2011 in connected D.B. Civil Special Appeal No. 1873/2011: This intra court appeal has been preferred questioning the order dated 26.9.2011 rejecting the S.B. Civil Misc. Stay Application No. 10619/2011 as also the order dt. 26.9.2011 passed in S.B. Civil Writ Petition No. 6463/2011 vacating the interim order dated 9.9.2011. A perusal of the order dated 26.9.2011, which has been passed in CWP No. 6463/2011 by the Single Bench indicates that the Single Bench after considering the matter in extensive details, has vacated the interim order dated 9.9.2011. In the instant case, the order of the Single Bench also indicates that whatever decision the respondents may take regarding construction of the toll plaza will be subject to final outcome of the writ application. It is submitted by Mr. S.K. Saksena, learned counsel appearing on behalf of the appellant, that the toll plaza is being constructed at a different place than as agreed in the agreement and it is also in violation of the Rules of 2008 called National Highways Fee (Determination of Rates and Collection) Rules, 2008. Mr. M.D. Agarwal, learned counsel appearing on behalf of the respondents, has submitted that no case for interference is made out; there is no breach of the Rules of 2008; the toll plaza is being constructed at the appropriate place; the balance of convenience is not in favour of the appellant; the Single Bench has passed a detailed order; and no case is made out so as to interfere in the discretionary order, which has been passed by the Single Bench. After hearing the learned counsel for the parties, we are of the opinion that the construction of toll plaza is such a matter, which is mainly in the domain of the respondents. However, this question has to be gone into, while deciding the main writ application. In the facts of the case, the Single Bench has considered it appropriate not to grant interim order. The order is discretionary one. We find no illegality in the order of the Single Bench so as to warrant any interference in the intra court appeal. The intra court appeal stand dismissed. The stay application is also dismissed. Para 1 of the above order makes it clear that present order dated 26th September, 2011 passed in SBCWP No. 6463/2011 was also under challenge in D.B. Special Appeal No. 1873/2011, which was dismissed on 14.12.2011.;