The Chairman, National Highways Authority of India vs Arvind Kumar Thakur, Union of India

2024 INSC 556 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2996 OF 2017

CHAIRMAN, NATIONAL HIGHWAYS AUTHORITY ..... APPELLANT(S) OF INDIA & ANR.

VERSUS

ARVIND KUMAR THAKUR & ANR. ..... RESPONDENT(S)

O R D E R

This appeal by the National Highways Authority of India 1,

through its Chairman and the Project Director, PIU, impugns the

judgment dated 05.04.2016, whereby the writ petition filed by

respondent No. 1, Arvind Kumar Thakur, was allowed with a direction

that the appellant, NHAI, will not levy and collect any fee from

the users at Runni Toll Plaza on Muzaffarpur-Sonbarsa section of

National Highway-77 with effect from 07.07.2015. It was further

directed that the appellant, NHAI, shall not levy any fee in

exercise of its power under Rule 3(1) of the National Highways Fee

(Determination of Rates and Collection) Rules, 20082 till

completion of the project.

Our attention has been drawn to Rule 3(1) of the 2008 Rules,

which refers to the section of the national highway being complete Signature Not Verified Digitally signed by Deepak Guglani Date: 2024.07.27 13:30:19 IST Reason:

1 “NHAI”, for short.

2 “2008 Rules”, for short.

1 and, thereupon, the highway users can be asked to pay the

prescribed fee by way of toll. The expression “section of national

highway” has not been specifically defined in the National Highways

Act, 19563 or the 2008 Rules. However, in the context of the

present case, we need not go into the said aspect. The aforesaid

issue is left open.

Our attention has been drawn to the notification dated

26.11.2013 issued under Section 11 of the National Highways

Authority of India Act, 1988, in relation to the stretch from

kilometre 0.000 to kilometre 89.000 (Muzaffarpur-Sonbarsa Section

of National Highway-77). The said notification states that the

section length of 61.70 kilometres for use of two laning with paved

shoulder had been completed. It is also stated that the length of

20.38 kilometres of the bypasses had also been completed and,

therefore, the Central Government proposed to levy and collect fee

from the road users. The fee prescribed for 61.70 kilometres is 60%

of the base rate specified in the table given in the notification,

whereas, the fee prescribed for 20.38 kilometres of the bypasses is

at the rate of 90% of the base rate specified in the table given in

the notification.

After issuing the aforesaid notification, an independent

contractor, namely, Intercontinental Consultants and Technocrats

Pvt. Ltd. examined and verified the two laning with paved shoulder

of the Muzaffarpur-Sonbarsa Section of National Highway-77. It

issued provisional completion certificate dated 29.06.2015.

In the present case, the toll is being collected by NHAI, as

3 “1956 Act”, for short.

2 the highway being constructed is under “Build, Operate and

Transfer” basis. The contractor responsible for laying the highway

is being paid annuity, which has been fixed in terms of the

contract.

Having regard to the aforesaid facts, we are of the opinion

that the impugned judgment of the High Court, giving the aforesaid

directions, is unsustainable. The judgment merely refers to Rule

3(1) of the 2008 Rules, but does not interpret or go into the other

aspects and facts which were highlighted and pointed out by the

NHAI. Moreover, in the facts of the present case, this Court, while

issuing notice, vide order dated 25.04.2016, had stayed the

operation of the impugned judgment subject to the condition that

the amount collected towards toll on the completed portion of the

highway/road shall be deposited in a nationalized bank. The toll

users have, therefore, paid the toll which is now lying with the

nationalized bank. The private contractor, who had laid the

highway, has also been paid the annuity. The annuity, it may be

noted, is payable at the rate specified for 15 years. The NHAI

collects the toll till the actual costs are recovered with a

stipulation that after recovery of the capital cost the fee

leviable would be reduced to 40% of the user fee.

The toll/fee, having been collected and being available in

the bank, today, it will be impossible to return the same to the

road users. Any order passed by this Court, modifying the interim

order, would in fact, be detrimental and harmful to the road users

as additional amounts would have to be collected to make up for the

cost of the highway.

3 The amount lying deposited in the nationalized bank along

with interest may now be utilized by NHAI and would be treated as

toll/fee collected from the users. It will be accounted towards the

actual cost to be recovered.

Recording the aforesaid, we set aside the judgment dated

05.04.2016 and allow the present appeal. Civil Writ Jurisdiction

Case no. 12858/2015 will be treated as dismissed.

Nevertheless, we deem it appropriate to observe that the

Union of India and NHAI may examine the question as to whether the

expression “section of national highway” requires proper

elucidation and clarification in a manner permitted by law.

Pending application(s), if any, shall stand disposed of.

..................J. (SANJIV KHANNA)

..................J. (SANJAY KUMAR)

..................J. (R. MAHADEVAN) NEW DELHI;

JULY 24, 2024.

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