Indraprastha Gas Limited v. Union of India & Anr

NAVIN CHAWLA, J FEBRUARY 12, 2020/Arya

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 16.01.2020 Date of Decision: 12.02.2020 + W.P.(C) 82/2015 & CM No.131/2015 INDRAPRASTHA GAS LIMITED ..... Petitioner Through Mr.K.K. Rai, Sr. Adv. with Mr.S.K. Panday, Mr.Awanish Kumar, Mr.Chandrashekhar A.Chakalabbi, Mr.Anshul Rai, Mr.Sreoshi Chatterjee, Mr.Ram Krishna Veerendra and Mr.D.P.S. Rajesh, Advs. versus UNION OF INDIA & ANR. ..... Respondents Through Ms.Padma Priya and Mr.Dhruv Nayar, Advs. Mr.Mankh Mohan, Adv. for UOI. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition challenges the Guidelines/Norms dated 24.07.2013 for access permission to Fuel Stations, Private Properties, Rest Area Complexes and such other facilities along National Highways, issued by the respondent no.1, to the limited extent insofar as it prescribes levy of a penalty of Rs.25 lacs on existing Fuel Stations constructed without prior approval of the respondent no.1. The petition further challenges the order dated 11.08.2014 passed by the Court of Highway Administration levying the penalty of Rs.25 lacs on the petitioner. Page 2 2. The ground of challenge to the Circular and the Impugned Order is that Section 29 (4) of the Control of National Highways (Land and Traffic) Act, 2002 (hereinafter referred to as the "Act") does not provide for levy of any penalty on the person gaining access to a Highway without permission of the Highway Administration. Relying upon the judgment of the Supreme court in State of U.P. and Ors. v. Saraya Industries Ltd, (2006) 11 SCC 129 and State of Bihar and Ors. v. Industrial Corporation (P) Ltd. & Others, (2003) 11 SCC 465, the learned senior counsel for the petitioner submits that where the Act itself does not prescribe for levy of a penalty on the contravention of any provision, such penalty cannot be prescribed by way of a mere Circular. 3. On the other hand, the learned counsel for the respondents submits that in the present case, apart from the petitioner gaining access to the Highway without the permission of the Highway Authority, it was also found to be in "unauthorized occupation" of 63.40 sq. mtrs of the highway land. She submits that therefore, the penalty has been rightly levied on the petitioner in terms of Section 26(6) of the Act. 4. In the alternative, the learned counsel for the respondents submits that Section 28(2) of the Act provides for grant of access to the highways subject to the guidelines and instructions issued by the Central Government from time to time. Section 29 (2) of the Act further provides that such permission to access the highways shall be granted with or without the terms and conditions as may be prescribed. In view of these provisions, the Circular, insofar as it prescribes Page 3 imposition of penalty for regularization of the earlier unauthorized access as a condition for grant of licence, cannot be faulted. Placing reliance on the judgment of the Supreme Court in Pallawi Resources Ltd. v. Protos Engineering Company Pvt. Ltd., MANU/SC/0205/2010, she submits that the Act must be read as a whole and not in isolation. As the land is forming part of the highway that vests in the Central Government, the prescription of penalty as a condition for grant of licence to access the highways cannot be faulted. 5. Lastly, she submits that in any case, mere use of the word "penalty" in the Impugned Circular is not determinative of the nature of the demand. She submits that the nature of the demand is in fact of regularization charge and is therefore a fee. 6. I have considered the submissions made by the learned counsels for the parties. Section 23 of the Act prescribes that all land forming part of the Highways vests in the Central Government. Section 24(1) of the Act provides that no person shall occupy any Highway Land or discharge any material through drain on such land without obtaining prior permission, in writing, of the Highway Administration. Section 26 of the Act provides for removal of "unauthorized occupation"