NHAI Act | NHAI Obliged To Develop, Manage & Maintain National Highways And Construct Amenities: J&K High Court

Reiterating the statutory duties of the National Highways Authority of India (NHAI) under the National Highways Authority of India Act, 1988, the Jammu and Kashmir and Ladakh High Court has held that NHAI is legally obliged to develop, manage, and maintain national highways vested in it and to construct wayside amenities near such highways.

Justice Sanjay Dhar made these significant observations while dismissing a writ petition filed by one Rajinder Singh challenging the leasing of land to a private party for setting up a petrol pump and public amenities along the Jammu–Srinagar National Highway.

Background:

The petitioner had sought directions restraining NHAI from executing a lease deed in favour of the respondent, a private firm, in respect of land which had been acquired from him for the four-laning of the national highway. He also sought directions that the lease be executed in his favour or, alternatively, that the land be retrieved to him. The petitioner claimed a preferential right over the unutilized land adjoining his hotel and shopping complex contending that construction of a petrol pump there would affect his business.

NHAI, however, stated that the land was acquired for the widening and development of the national highway, including the creation of wayside and public amenities, such as rest areas, toilets, and fuel stations. The land, according to the Authority, had been allotted to respondent through a tender process, in which the petitioner had not participated.

Courts Observations:

Justice Dhar examined whether leasing out a portion of acquired land for a petrol pump would deviate from the “public purpose” for which it was acquired. Referring to Section 16(2)(f) of the NHAI Act, 1988, the Court noted that NHAI is statutorily mandated to develop, maintain and manage the national highways and to provide such facilities and amenities for users of the highways vested in it as are necessary for the smooth flow of traffic.

“NHAI is obliged to develop, manage and maintain national highways vested in it and to construct wayside amenities near the national highways vested in it.”, remarked Justice Dhar.

The Court further relied upon the Ministry of Transport's Circular, which lists essential facilities to be developed along national highways including parking lots, restaurants, toilets, restrooms, first aid centres, telephone booths, petrol pumps, and kiosks. “Thus, it is clear that NHAI, in whom the Jammu-Srinagar national highway has been vested, is duty bound to provide wayside amenities of the type mentioned hereinabove,” the Court said.

Justice Dhar clarified that under Section 13 of the NHAI Act, any land acquired by the Authority is deemed to be land needed for a public purpose. Hence, using the acquired land for constructing petrol pumps and other public facilities cannot be viewed as a deviation from public purpose.

“If the respondents have decided to utilize the land which has remained unused after the widening of the national highway for the purpose of establishment of petrol pump or for creating any other wayside amenities, the same can, by no stretch of reasoning, be termed as a purpose other than public purpose,” the Court remarked.

Rejecting the petitioner's reliance on M/s Royal Orchid Hotels Ltd. v. G. Jayarama Reddy & Ors. (2011) 10 SCC 608, the Court held that the precedent did not apply to the present case. In Royal Orchid, land acquired for a tourism project had been diverted for a private housing scheme, which amounted to fraud on the power of eminent domain.

Here, Justice Dhar emphasized, “It is not a case where NHAI has transferred the land to a private person for a purpose entirely alien to the development of the national highway but a case where NHAI has leased out the land for developing a wayside amenity, namely a petrol pump, which is included in the development of national highway.”

The Court also rejected the petitioner's claim of pre-emption, observing that the Jammu and Kashmir Right of Prior Purchase Act has already been repealed. Consequently, the petitioner could not claim any right over the land on that basis. Justice Dhar further held that since the petitioner had not participated in the tender process, he had no legal claim to seek allotment of the land in his favour.

Finding no illegality in NHAI's decision, the Court dismissed the writ petition, upholding the lease in favour of respondent.

“Utilization of the land by NHAI for creating such amenities in the face of deeming provision of Section 13 of the Act becomes a public purpose. Thus, the petition is devoid of merit and is accordingly dismissed.”, Justice Dhar concluded.

Case Title: Rajinder Singh Vs Union of India & Ors

Click Here To Read/Download Judgment