Skip to content


M/S. S and S Enterprises Vs. V. Vasanthan and Others - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberW.A.No.1287, 1290 of 2008
Judge
AppellantM/S. S and S Enterprises
RespondentV. Vasanthan and Others
Excerpt:
constitution of india – articles 245, 246, 246(1) and (3), municipality act 1994 – section 272, kerala highway protection act 1999 – section 12, kerala municipality act 1994 – sections 207, 207(1) and (2), kerala land conservancy act 1957, national highways authority of india act 1988, control of national highways (land and traffic) act 2002 – sections 3 and 3(1), national highways act 1956 – sections 4 and 5, government of india act 1935, general clauses act 1897 – section 22 -j. chelameswar, c. j. 1. these two appeals arise out of a judgment dated 25th march, 2008 in w p (c) no. 30668 of 2007. the appellants in wa no. 1287 of 2008 are respondents 2 and 3 and the appellant in wa no. 1290 of 2008 is the 5th respondent in the said writ petition respectively. 2. the writ petition was filed by the 1st respondent herein with the prayers as follows: "(i) a writ of mandamus or any other writ direction or order directing 2nd and 3rd respondents not to remove the road medians, handrails and bus shelter constructed by the petitioner on the national highway pursuant to exts. p1, p2 and p4 agreements and the advertisement display on the same. (ii) a declaration that the 2nd and 3rd respondents have no manner of right over national highways and state highways passing.....
Judgment:

J. Chelameswar, C. J.

1. These two appeals arise out of a judgment dated 25th March, 2008 in W P (C) No. 30668 of 2007. The appellants in WA No. 1287 of 2008 are respondents 2 and 3 and the appellant in WA No. 1290 of 2008 is the 5th respondent in the said writ petition respectively.

2. The writ petition was filed by the 1st respondent herein with the prayers as follows:

"(i) A writ of mandamus or any other writ direction or order directing 2nd and 3rd respondents not to remove the road Medians, handrails and Bus shelter constructed by the petitioner on the National Highway pursuant to Exts. P1, P2 and P4 agreements and the advertisement display on the same.

(ii) A declaration that the 2nd and 3rd respondents have no manner of right over National Highways and State Highways passing through the Municipal Corporation and as such no permission contemplated under S.272 of the Municipality Act, 1994 is required to erect or display advertisements along the National Highway.

(iii) A declaration that Ext. P13 agreement entered into between the 3rd and 5th respondent will not have any legal force in so far as it deals with National Highways and State Highways passing through the Municipal Corporation.

(iv) A declaration that S.272 of the Kerala Municipality Act, 1994 is void in so far as it gives power to the Municipal Corporation to give or deny permission to erect or display advertisements along the National Highway as ultra vires the legislative power vested with the state legislature being violative of Art.246 read with Entry 23 of list 1 of 7th schedule to the Constitution of India.

(v) Any other writ, direction or order which are just and necessary in the circumstances of the case."

3. Ext. P1 (dated 13/03/2006), P2 (dated 17/06/2006) and P4 (dated 08/08/2006) are agreements entered into between the writ petitioner and the 4th respondent on behalf of the State of Kerala. The pleading in this regard is paras 3 and 4 of the writ petition, which reads as follows:

"3. As per S.12 of the Kerala Highway Protection Act, 1999 all State Highway are properties of the Government of Kerala. The petitioner therefore submitted a proposal to the Executive Engineer, PWD (Roads) Division, Quilon for providing and maintaining road Medians for a length of 68 meters in the then State High Way between Government Guest House and small bridge road passing in front of Musaliar Building at Chinnakkada on the basis of space marketing principle. The proposal was accepted by the Executive Engineer and an agreement was entered into between the petitioner and the PWD department to carry out the said work and maintain the same for three years on 13th March, 2006. A true copy of the said agreement is produced herewith and marked for reference as Ext. P1. Pursuant to the Agreement, the rent demanded in the agreement was paid and the work was executed by the petitioner. Advertisement space was allotted to various customers. Thereafter another proposal to erect a bus shelter on BOT basis at Taluk Office Junction, Quilon on the side of the State Highway was accepted by the PWD Department and an agreement to that effect was executed on 17th June, 2006. The agreement was to remain in force for 5 years. There was a condition in the agreement the 1/3 of the advertisement space should be reserved for National Savings etc. free of cost. Pursuant to the agreement the petitioner executed the said work also without any financial help from the Government. A true copy of the agreement dated 17/06/2006 is produced and marked for reference as Ext. P2. Thereafter the available advertisement space was utilised for various customers after receiving payment from them. For the purpose of getting electricity connection in the bus shelter a certificate of ownership of the bus shelter was required. An application to this effect was submitted to the Corporation and the Corporation issued the same showing the Assistant Engineer PWD Roads Section as the owner of the building. A true copy of the certificate issued by the 3rd respondent dated 17/07/2006 is produced herewith and marked for reference as Ext. P3.

4. Another agreement for providing median and handrail in front of Head Post Office Chinnakkada in skew bridge Vellayittambalam Road at Taluk Office junction, Kollam having a length of 116 metres was executed. The period of the agreement was for 5 years from 08/08/2006. A true copy of the agreement dated 08/08/2006 is produced herewith and marked for reference as Ext. P4. The petitioner had executed the said work also by utilising his own funds and the area available for Advertisement was given to various customers on receiving payment."

4. On the other hand, M/s. S and S Enterprises and the Municipal Corporation, Kollam (the appellants in these two appeals) entered into an agreement (Ext. P13) dated 8th May, 2006. To indicate the scope of the agreement, we may extract Clause 5 of the agreement, which reads as follows:

"5. The Corporation agreed to provide the licensee the sole right to use each of the S. V. Lamp post in the said area of erecting non - reflective type advertisement display board (on both sides) having maximum size of 5 feet height 2 1/2 feet width. The Corporation has also agreed to provide the licensee the sole right to use the lamp posts and hand rails of Chinnakkada overbridge and also the sole right to erect and display master boards in the entire territory of Kollam Corporation. Again, the Corporation has agreed to give permission to the licensee to erect new bus shelters, Traffic sign boards, traffic islands, hand rails at required areas and also to use the existing bus shelters and hand rails erected under the license of Corporation."

From the above, it can be seen that two different bodies, i.e. the State of Kerala as well as the Corporation of Kollam to enter into an agreement with a different person purporting to grant rights which are conflicting.

5. It appears from the writ petition that the Kollam Corporation took steps to remove the advertisement structures created by the writ petitioner on the basis of a complaint made by M/s. S and S Enterprises.

6. There was an earlier round of litigation between the parties herein in WP (C) No. 12830 of 2007, the details of which are not necessary for the present. It is stated in the judgment under appeal that some time in the interregnum, some portions of the State Highway covered under Exts. P1, P2 and P4 agreements were handed over to the National Highways Authority. The relevant portion of the judgment reads as follows:

"In the meanwhile State Highway portions were handed over to the National Highway and therefore agreements were executed between the National Highway authorities through the National Highway administration, viz., the 4th respondent and the petitioner. Ext. P19 letter of the Executive Engineer, National Highway and Exts. P20, P21 and P22 notices of the new agreement executed by the petitioner with National Highway Division, Kollam are relied on by the petitioner."

The agreements are marked as Exts. P20, P21 and P22. The relevant portion of all the agreements reads as follows:

"Since the road was transferred to NH Division, the above portion of the road is now under the custody of PWD (NH) Division, Kollam. Since the work has already been executed, and as the above road is now under PWD (NH) Division, this agreement is executed with additional conditions which are applicable to National Highways."

The recital is identical in all the three agreements. The exact date of the execution of these agreements are not available from record, but it is stated at para 16 of WP (C) No. 3066 of 2007 as follows:

"While so, on 14/09/2007, the Executive Engineer PWD, National Highway, Kollam informed the petitioner that permission was accorded to continue the existing agreement with PWD subject to certain new conditions. A true copy of the letter No. D5-1277/07 dated 14/09/2007 is produced and marked for reference as Ext. P19. Pursuant to Ext. P19 letter separate agreements were executed with the National Highway, Division Kollam. True copies of the said agreements are produced and marked for reference as Exts. P20, 21 and 22. As per the new agreement the period is for 3 years. As per the agreement there is provision to display advertisements. So also there is provision to do erection work without the interference by local authority."

It is stated in all the three agreements that they (Exts. P20 to P22) are valid for a period of 3 years from the date of the corresponding original agreements, i.e. Exts. P1, P2 and P4 respective:

"The period of the agreement will be valid only for 3 years from the date of original agreement..."

7. It is in the background of the above facts, by the Judgment under appeal the learned Judge recorded the conclusions - (i) that by virtue of the operation of S.4 of the National Highways Act all the National Highways vest in Government of India; (ii) the said Act was made pursuant to the powers vested in the Parliament under Art.246(1) read with Entry 23 of List 1 of 7th Schedule to the Constitution; (iii) the powers granted to the Kollam Municipality under the provisions of the Kerala Municipalities Act are overridden by the powers of the appropriate authorities under the National Highways Act, 1956 and Control of National Highways (Land and Traffic) Act, 2002. The relevant portion of the judgment reads as follows:

"It is Art.245 and Art.246 of the Constitution which governs the scope of S.272 of the Kerala Municipalities Act. In my opinion cannot encroach upon the field of legislation earmarked for the Union under Entry 23 of the First List by invoking the power under Entry 55 of List II dealing with advertisement tax. The subject is already occupied by the Parliament as per the National Highway Act, 1956 and the Control of National Highway (Land and Traffic) Act, 2002. The State Legislature cannot encroach into the field even by means of an incidental legislation."

8. By the judgment under appeals, the writ petition was allowed. The operative portion reads as follows:

"13. The result of the above discussion is that the writ petition will stand allowed to the following extent.

(1) It is declared that R2 and R3 do not have control over National Highways and State Highways passing permission as contemplated under S.272 of the Municipalities Act, 1994 is required for erecting or displaying advertisements along (with) the National Highways administered by the 4th respondent.

(2) It is also declared that Ext. P13 agreement between the third respondent and the 5th respondent cannot have any legal effect upon the rights granted to the petitioner by virtue of Exts. P20, P21 and P22.

(3) Respondents 2 and 3 are directed not to remove the road medians, handrails, bus shelters, etc. constructed by the petitioner on National Highways pursuant to Exts. P1, P2 and P4 agreements and the advertisement displays made by the petitioner upon the same."

Hence these appeals.

9. Under S.207 of the Kerala Municipality Act, 1994, hereinafter referred to as "the Municipality Act", all public roads streets, lanes, paths, etc. and all adjacent land appertaining thereto in any municipal area vest absolutely in the Municipality. However, National Highways or State Highways or Major District roads do not vest in the Municipality in view of a statutory exclusion. S.207(1) reads as follows:

"207. Vesting of Public Streets and appurtenance in Municipality. -- (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958) or in any other law for the time being in force all public roads, streets, lanes and paths, the bridges, ditches, dykes and fences on or beside the same, and all adjacent land not being private property appertaining thereto in any municipal area other than National Highway or State Highway or major district road or roads classified by Government as such shall stand transferred to, and vest absolutely in the Municipality together with all pavements, stones and other materials and other things provided therein, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the Municipal fund or otherwise in, alongside or under such roads and all works, materials and things appertaining thereto."

Sub-section (2) of S.207 authorises the Government to withdraw from the control of the Municipality any public road, street, etc. by a notification in the Gazette and upon such notification, the road, street, etc. so notified shall "revest in the Government". Sub-section (2) reads as follows:

"(2) Notwithstanding anything contained sub-section (1) the Government may, by notification in the Gazette, at any time, withdraw such public roads and or streets, sewer drain, drainage work tunnel or culvert adjacent to it from the control of the Municipality for the purpose of classifying, it as any public road, street, National Highway, State Highway or Major District road under the control of Municipality and thereupon it shall revest in the Government on issuing such a notification:

Provided that before issuing such a notification, the Government shall consult the Municipality concerned and give due regard to the objections, if any."

10. On the other hand, Parliament made three enactments, known as "The National Highways Act, 1956", "The National Highways Authority of India Act, 1988" and "the Control of National Highways (Land and Traffic) Act, 2002." It is not necessary for us to deal with the entire scheme of the abovementioned three enactments, but we shall deal with the relevant provisions that are necessary for the purpose of adjudication of the issue on hand. S.4 of the National Highways Act, 1956 declares that all National Highways shall vest in the Union and for the purpose of such vesting, the expression "Highway" includes the various items enumerated in S.4. S.4 reads as follows:

"4. National highways to vest in the Union. -- All national highways shall vest in the Union, and for the purposes of this Act "highways" include --

(i) all lands appurtenant thereto, whether demarcated or not;

(ii) all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such highways; and

(iii) all fences, trees, posts and boundary, furlong and milestones of such highways or any land appurtenant to such highways."

It may be mentioned that S.2 (S.2. Declaration of certain highways to be national highways. - (1) Each of the highways specified in the Schedule is hereby declared to be a national highway.

(2) The Central Government may, by notification in the Official Gazette, declare any other highway to be a national highway and on the publication of such notification such highway shall be deemed to be specified in the Schedule.

(3) The Central Government may, by like notification, omit any highway from the Schedule and on the publication of such notification, the highway so omitted shall cease to be a national highway) of the Act declares that the highways specified in the Schedule of the Act are to be the National Highways and authorises the Government of India either to add or omit highways from the Schedule. Under S.8A, the Government of India is authorised to enter into an agreement with any person for the purpose of development and maintenance of the National Highways.

11. Coming to the National Highways Authority of India Act, 1988, S.3 authorises the constitution of an authority a body corporate with perpetual succession and common seal, known as "the National Highways Authority of India", the composition, etc. of the said authority are specified in the subsequent Sections. S.11 (S.11. Power of the Central Government to vest or entrust any national highway in the Authority. - The Central Government may, from time to time, by notification in the Official Gazette, vest in, or entrust to, the Authority, such national highway or any stretch thereof as may be specified in such notification) of the Act, the Government of India is authorised to "vest in or entrust to" such National Highways Authority, such National Highways or portions thereof, as may be specified in that behalf by notification in the Official Gazette. S.12 declares that upon the issuance of a notification under S.11, all the liabilities and obligations of the Government of India with respect to such National Highways or parts thereof, as the case may be, stand transferred to the National Highways Authority.

12. S.3 of the Control of National Highways (Land and Traffic) Act, 2002 contemplates the establishment of a body or authority, known as "Highway Administration" and also authorises the Government of India to specify the jurisdiction of such Highway Administration with respect to the Highway or portion thereof. Under S.23 (S.23. Highway land to be deemed as property of Central Government. - (1) All lands forming parts of a Highway which vest in the Central Government or which do not already vest in the Central Government but have been acquired for the purpose of Highway shall, for the purposes of this Act, and other Central Acts, be deemed to be the property of the Central Government as owner thereof.

(2) The Highway Administration shall cause to be maintained a record in the prescribed manner in which the particulars of the lands, relating to the Highway, of which the Central Government is the owner shall be entered and the entries of the particulars of such lands in any record maintained for such purpose before the commencement of this Act shall be deemed to be the entry of the particulars of such lands made in the first said record and accordingly the Central Government shall be deemed to be the owner of the lands regarding which the entries have been made in such records maintained before the commencement of this Act.

(3) Any person claiming against the ownership of the Central Government referred to in sub-section (2) shall make written complaint to the Highway Administration and prove his claim before it and the Highway Administration, after considering the evidence produced by such person, may correct such records or reject the claim) of the said Act, once again it is declared that all lands which are vested in the Government of India by virtue of such lands forming part of such Highways are deemed to be the property of Government of India as owner thereof. S.24 prohibits the occupation of such land by any person, etc. It further authorises the Highway Administration to grant permission for various activities enumerated in sub-section (2) thereof.

13. The authority / legislative competence to declare a highway to be a National Highway and make laws with respect to such National Highways is assigned exclusively to the Parliament under Art.246(1) (Art.246(1). Subject - matter of laws made by Parliament and by the Legislatures of States. - (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List")) read with Entry 23 (Entry 23 - Highways declared by or under law made by Parliament to be national highways) of List I of the Seventh Schedule, whereas the authority to legislate upon the subject of roads, bridges, etc. is conferred exclusively upon the Legislatures of the various States under Art.246(3) Art.246(3) - Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List") read with (Entry 13 Entry 13 - Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways, ropeways, inland waterway's and traffic thereon subject to the provisions of List I and List III with regard to such waterway's; vehicles other than mechanically propelled vehicles) of List - II of the Seventh Schedule. It can be seen from Entry 13 that the authority in the State Legislatures is subject to the provisions of List I. Therefore, S.207 of the Municipality Act in so far as it purports to exclude the operation of the said Section to the National Highways, in our opinion, is superfluous.

14. The only question raised and argued in these two appeals is whether the legislature of a State is competent to make any law affecting in any way the highways declared to be National Highways by or under a law made by the Parliament or totally incompetent to deal with the subject. If total incompetence is to be inferred, does it flow from the fact that the authority to legislate with respect to National Highways is exclusively conferred on the Parliament or from the fact that the ownership and control of the land forming part of the National Highways is vested in the Central Government by virtue of the declaration made by the law of the Parliament.

15. We may straight away say that if the authority of the legislature of a State is dependent upon the declaration of ownership of the land forms part of the National Highways, it may happen that the Parliament at some point of time make a contra declaration. The competence of the legislature of the State cannot, under the scheme of our Constitution, generally depend upon such variable fact situation. We say generally because we are conscious of the fact that such a contingency is provided for in certain limited situations governed by the Entries 52 to 54, 56, 62 to 64 and 67 of the List I of the Seventh Schedule to the Constitution of India.

16. So, in our opinion, the declaration made by the Parliament that the control and ownership of the land forming part of the National Highways is irrelevant for determining the question of the competence or otherwise of the State Legislature to deal with some aspect of regulation or control of the National Highways in exercise of the authority exclusively entrusted to State Legislature under Art.246(2) read with List II of the Seventh Schedule to the Constitution.

17. Therefore the limitation, if any, on the authority of the State Legislature must flow from the scheme of the Constitution. It is well settled by a long line of authorities of the Supreme Court and the Privy Council that the Entries contained in the various Lists of the Seventh Schedule of the Constitution of India or similar Entries occurring in the Government of India Act, 1935, etc. must be given the widest amplitude and understood as conferring the authority to legislate upon every aspect of the matter relating to the subject - matter of the Entry (see - Navinchandra v. Commr. of I.T., Bombay, 1955 KHC 321 : AIR 1955 SC 58 : 1955 (1) SCR 829 : 1954 (26) ITR 758; Madras State v. G. Dunkerley and Co., 1958 KHC 461 : AIR 1958 SC 560 : 1959 SCR 379 : 1958 (9) STC 353. However, it is also well settled that under the scheme of the Constitution of India and the organisation of the Entries in the Seventh Schedule, approximately first half of both Lists I and II deal with the general entries and the later part of the Lists deal with entries pertaining to the taxing power. It is a settled position of law that the Concurrent List does not contain any entry dealing with taxation Further that a general entry does not take within its sweep the taxing power (see - M. P. V. Sundararamier and Co. v. State of A.P., 1958 KHC 452 : AIR 1958 SC 468 : 1958 SCR 1422 : 1958 (9) STC 298; Synthetics and Chemicals Ltd. v. State of U.P., 1990 KHC 701 : AIR 1990 SC 1927 : 1990 (1) SCC 109).

18. Entry 23 of List I, to which all the three enactments made by the Parliament referred to earlier, is a general entry and it does not confer the power upon the Parliament to make a law authorising the levy and collection of any tax with respect to the National Highways. Therefore, the Parliament, under the scheme of the Constitution, is authorised to make any law with respect to National Highways except a law purporting to authorise the levy and collection of any tax in connection with the National Highways. We have already taken note of the fact that the Parliament did make laws declaring certain Highways to be National Highways and also declaring that the control and ownership of the land forming part of the National Highways vest in the Government of India. The law also obligates the Government of India under S.5 of the National Highways Act to develop and maintain in proper repair all National Highways. Such an obligation is required to be discharged by the Government of India, either by itself or through the State Government within, the territory of which the National Highway is situate or even entrust such responsibility to any person by an agreement under S.8A, which was introduced by Act 26 of 1995 with effect from 16/06/1995).

19. In our opinion, an enquiry into the Constitutional questions raised is not justified in the instant appeals, as it is the well settled principle of law that the Constitutional questions will not be examined by the Courts unless it is absolutely necessary to do so (see - Govt. of National Capital Territory v. Inder Pal Singh Chadha; 2002 (9) SCC 461 Basheshar Nath v. I. T. Commr., 1959 KHC 464 : AIR 1959 SC 149 : 1959 Supp (1) SCR 528 : ILR 1959 Punj 319 : 1959 (35) ITR 190.; M. M. Pathak v. Union of India, 1978 KHC 499 : AIR 1978 SC 803 : 1978 (2) SCC 50 : 1978 SCC (LandS) 103 : 1978 (1) LLJ 406 : 1978 Lab IC 612). In Basheshar Nath's case (supra), the Apex Court held as follows:

"We take the view that this Court should not make any pronouncement on any question which is not strictly necessary for the disposal of the particular case before it."

In M. M. Pathak's case (supra), the Supreme Court held as follows:

"It is the settled practice of this Court to decide no more than what is absolutely necessary for the decision of a case."

In the instant case, we are of the opinion that such an enquiry ought not to have been entertained by the learned Single Judge or we do not wish to entertain the same for the following reasons.

20. As already noticed, the learned Judge embarked upon to consider the Constitutional questions on the premises that the road in question is a National Highway. The relevant portion of the judgment under appeal is already extracted in paragraph 6 (supra).

21. We are of the opinion that there is no legal basis or material on record to commence the enquiry on the premises that the roads in question are National Highways. On the other hand, Exts. P1, P2 and P4 are executed by the Assistant Executive Engineer, PWD Roads Sub Division, Kollam on behalf of the Governor of Kerala on 20th March, 17th June and 8th August of 2006 respectively. It is clearly averred in the writ petition that the road in question is a State Highway and the property of the Government of Kerala in view of the declaration contained in S.12 of the Kerala Highway Protection Act, 1999 (see para 3 of the writ petition). However, it is stated in para 13 of the writ petition as follows:

"The road portion which was part of State Highway was later handed over to National Highway in exchange of certain part of the National Highway."

It is further stated in para 16 as follows:

"While so, on,14/09/2007, the Executive Engineer, PWD, National Highway, Kollam informed the petitioner that permission was accorded to continue the existing agreement with PWD subject to certain new conditions. A true copy of the letter No. D5-1277/07 dated 14/09/2007 is produced and marked for reference as Ext. P19. Pursuant to Ext. P19 letter, separate agreements were executed with the National Highway, Division Kollam. True copies of the said agreements are produced and marked for reference as Ext. P20, 21 and 22. As per the new agreement the period is for 3 years. As per the agreement there is provision to display advertisements. So also there is provision to do erection work without the interference by local authority."

Though there is a mention regarding the transfer of the State Highway (in connection with which Exts. P1, P2 and P4 were initially executed in favour of the writ petitioner) allegedly in favour of the National Highways and as a consequence three new agreements, i.e. Exts. P20, P21 and P22, came to be executed no relief based on such agreements is sought in the writ petition. The reliefs are entirely based on Exts. P1, P2 and P4 contracts entered on behalf of the State of Kerala, but not on behalf of any authority under any one of the laws passed by the Parliament, i.e. The National Highways Act, 1956, The National Highways Authority of India Act, 1988 and The Control of National Highways (Land and Traffic) Act, 2002.

22. On the other hand, the three agreements (Exts. P20, P21 and P22) are purported to have been executed by the Executive Engineer, National Highway Division, Kollam on the premises that the road in question was "transferred to the National Highway Division". The relevant clause, i.e. the opening clause of all the three agreements, is similar and insofar as Ext. P20 is concerned, it reads as follows:

"An agreement was executed vide Agreement No. 2 / AEEK / 2006-07 on 17th June, 2006 between the Asst. Executive Engineer, PWD Roads Sub Division, Kollam and New Line Communications, Flat No. II, Nedumparambil Building, Thanickal, Elamakkara P.O., Kochi 682026 for "Erecting waiting shed on the left side of Screw Bridge, Vellayittamblam Road at Taluk Office Junction, Kollam" under the PWD Roads Sub Division Kollam. Since the Road was transferred to NH Division, the above portion of the road is now under the custody of PWD (NH) Division, Kollam. Since the work has already been executed, and as the above road is now under PWD (NH) Division, this agreement is executed with additional conditions which are applicable to National Highways."

It is not clear, first of all, as to what exactly is meant by transfer of the road to NH Division mentioned in the above extracted portion of the agreement. We may also state that in the counter - affidavit filed by the 4th respondent, i.e. the Executive Engineer, National Highway Division, Kollam, it is stated at para 2 as follows:

"The road skew bridge to Vellayittambalam was under the Public Works Department (Roads Division). It was taken over by the National Highway wing on 01/06/2007. While the road was under the PWD (Roads Division) the Writ Petitioner approached the Executive Engineer and submitted proposal for providing and maintaining road medians in Chinnakkada. Another proposal to construct bus shelter at Taluk Hospital junction on BOT basis was also submitted by him. Both the proposals were accepted and agreements were executed and the copies are produced in the Writ Petition Exts. as P1 and P2."

Again at para 6 it is stated as follows:

"The Government of India by notification No. SO. 76(E) dt. 20/01/2005 entrusted the PWD (NH) Department to develop and maintain the National Highway in the State of Kerala.

The Executive Engineer (NH), Kollam has been appointed as Highway Administration. The control of National Highway (Land and Traffic) Act, 2002, empowers the Highway Administration to exercise such powers and discharge such functions as may be necessary for the upkeep and maintain of National Highways. The jurisdiction of the 4th respondent is as follows:

(1) KM 387/300 TO 535/000 of NH 47 connecting Salem to Kanyakumari, (2) KM 0/000 TO 81/250 of NH 208 connecting Kollam to Thirumangalam, (3) KM 0/000 to 106/000 of NH 220 connecting Kollam to Teny. A true copy of the notification No. SO 76(E) dt. 21/01/2005 of the Ministry of Shipping, Road Transport and Highways (Department of Road Transport and Highways) is produced herewith and marked as Ext. R4(a). A true copy of the endorsement made by the Chief Engineer, National Highways, Thiruvananthapuram is also produced herewith and marked as Ext. R4(b)."

This notification referred as Ext. R4(a) in the above extracted para 6 notification issued by the Government of India in the Department of Road Transport and Highways. The notification insofar as it is relevant for the present purpose reads as follows:

"MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS

(Department of Road Transport and Highways)

NOTIFICATION

New Delhi, the 20th January, 2005

S. O. 76(E). -- In exercise of the powers conferred by sub-section (1) of S.3 of the Control of National Highways (Land and Traffic) Act, 2002 (13 of 2003) read with S.22 of the General Clauses Act, 1897 (10 of 1897), the Central Government hereby. --

(a) establishes the National Highways Administration mentioned in column 2 of the table given below in respect of the National Highways as specified in the corresponding column 4 of the said table to exercise the powers and discharge the functions conferred on it under the said Act, and

(b) defines the limits of the Highway as specified in corresponding column 3 of the said table within which or the length of the Highways as mentioned in the corresponding column 5 thereof on which the Highways administration as shown in the corresponding entry in column 2 shall be jurisdiction.

Table

It can be seen from the above extracted notification that the notification purports to be a notification issued in exercise of the powers under S.3(1) of the Control of National Highways (Land and Traffic) Act, 2002. S.3 of the Act reads as follows:

"3. Establishment of Highway Administrations. -- (1) The Central Government shall, by notification in the Official Gazette, --

(a) establish, for the purposes of this Act, a body or authority consisting of one or more officers of the Central Government or the State Government to be known as Highway Administration to exercise powers and discharge functions conferred on it under this Act; and

(b) define the limits of the Highway within which, or the length of Highway on which, a Highway Administration shall have jurisdiction:

Provided that the Central Government may, in the notification issued under this sub-section or by any general or special order, impose any condition or limitation subject to which a Highway Administration shall exercise powers and discharge functions conferred on it under this Act.

(2) The Central Government may establish on or more Highway Administrations for a State or Union territory or for a Highway under sub-section (1).

(3) Subject to the provisions of this Act, the Highway Administration shall exercise powers and discharge functions conferred on it under this Act in such manner as may be prescribed."

It authorises the Government of India to establish a body or an authority, known as the "Highway Administration" to exercise the powers and discharge functions conferred on it under the Act. Under sub-section (1)(b) of S.3, the Central Government may, by notification, define the limits of the Highways to which the Highway Administration shall have jurisdiction. The expression "Highway" itself is defined under S.2(e) of the Act as follows:

"2(e) "Highway" means a National Highway declared as such under S.2 of the National Highways Act, 1956 (48 of 1956) and includes any Expressway or Express Highway vested in the Central Government, whether surfaced or unsurfaced, and also includes --

(i) all lands appurtenant to the Highway, whether demarcated or not, acquired for the purpose of the Highway or transferred for such purpose by the State Government to the Central Government;

(ii) all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such Highway; and

(iii)all trees, railings, fences, posts, paths, signs, signals, kilometre stones and other Highway accessories and materials on such Highways."

Therefore, to be a "National Highway" over which a Highway Administration can exercise powers and discharge functions, it must be a Highway declared as such under S.2 of the National Highways Act, 1956. There is nothing on record to show as to when the State Highway, with reference to which Exts. P1, P2 and P4 agreements are executed, is notified to be a National Highway under S.2 of the National Highways Act; nor is there any such material in Ext. R4(a). At any rate, nothing is brought to our notice to correlate the State Highway referred to above with anyone of the National Highways covered by Ext. R4(a) notification so far as it pertains to the State of Kerala.

23. In the absence of any clear pleading regarding the basic facts as to how a Highway which was admittedly a State Highway, over which rights were created under Exts. P1, P2 and P4, became a National Highway, in our view, a debate on the Constitutional questions such as the one made before the learned Judge is wholly unwarranted. In our opinion, the learned Judge erred in embarking on such an enquiry. As already noticed, the prayer in the writ petition is absolutely silent regarding Exts. P20, P21 and P22.

In the above circumstances, the Writ Appeals are allowed, the Writ Petition is dismissed as a Writ Petition without any cause of action as disclosed from the records and the chaotic pleading in the writ petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //