{"id":138629,"date":"2011-04-19T00:00:00","date_gmt":"2011-04-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chief-vs-kanuji-on-19-april-2011"},"modified":"2017-08-13T11:30:56","modified_gmt":"2017-08-13T06:00:56","slug":"chief-vs-kanuji-on-19-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chief-vs-kanuji-on-19-april-2011","title":{"rendered":"Chief vs Kanuji on 19 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Chief vs Kanuji on 19 April, 2011<\/div>\n
Author: Mr.S.J.Mukhopadhaya,&Nbsp;Mr.Justice J.B.Pardiwala,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nLPA\/97\/2011\t 22\/ 22\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nLETTERS\nPATENT APPEAL No. 97 of 2011\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No.26834 of 2007\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE J.B.PARDIWALA\n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nCHIEF\nGENERAL MANAGER (TOLL) AHMEDABAD RING ROAD INFRASTRUC - Appellant(s)\n \n\nVersus\n \n\nKANUJI\nGABHAJI THAKORE & 3 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nNAVIN K PAHWA for\nAppellant(s) : 1, \nMR DR BHATT for Respondent(s) : 1, \nGOVERNMENT\nPLEADER for Respondent(s) : 2, \nMR PS CHAMPANERI for Respondent(s)\n: 3, \nMR HS MUNSHAW for Respondent(s) :\n4, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.B.PARDIWALA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 11\/04\/2011 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE J.B.PARDIWALA)<\/p>\n
\tThe
\nappellant – original respondent no.4 has preferred this Appeal
\nunder clause 15 of the Letters Patent challenging the judgment and
\norder passed by the learned Single Judge dated 5th August
\n2010 disposing of the above referred writ petition preferred by the
\noriginal petitioner, an agriculturist,  with appropriate directions
\nwhich, according to the appellant herein, are not in accordance with
\nlaw.\n<\/p>\n
\tThe
\npresent Appeal arises under peculiar set of facts and if the
\nappellant is aggrieved by the order of the learned Single Judge then
\nto a considerable extent the appellant himself is responsible for the
\nsame. We may summarize few facts relevant for the purpose of deciding
\nthe present Appeal :-\n<\/p>\n
The
\n\toriginal petition was preferred by one agriculturist residing near
\n\tRing Road, Toll Tax Booth at and post Ramol, District Ahmedabad with
\n\tthe following prayers:-\n<\/p>\n
“(a)
\nYour Lordships be pleased to issue an appropriate writ, order or
\ndirection directing the State Government and AUDA to make the payment
\nof compensation to the petitioner and to all the agriculturists,
\nwhose lands have been acquired for the purposes of construction of
\nSardar Patel Ring Road by AUDA from the vicinity of villages around
\nthe city of Ahmedabad.\n<\/p>\n
(b)
\nYour Lordships be pleased to issue an appropriate writ, order or
\ndirection directing the State Government and AUDA to provide the
\nfacilities to the petitioner and other agriculturists, which are
\nrequired to be provided upon implementation of T.P.Scheme, which has
\ncome into existence upon and for construction of Sardar Patel Ring
\nRoad in the interest of justice.\n<\/p>\n
(c)
\n\tYour Lordships be pleased to issue a writ of mandamus or any other
\n\tappropriate writ, order or direction directing that the respondent
\n\tno.4 has no authority in law to levy toll tax from the local
\n\tpublic\/traffic for passing through the Sardar Patel Ring Road in the
\n\tinterest of justice.”\n<\/p>\n
It
\n\tappears that the grievance of the petitioner was two-fold. Firstly,
\n\this land came to be acquired by Ahmedabad Urban Development
\n\tAuthority (for short, ‘AUDA’) for the purpose of construction of
\n\tRing Road and, for which, AUDA was not allotting alternative plots
\n\tin lieu of the land which was acquired for the purpose of
\n\tconstruction of Sardar Patel Ring Road. Second grievance was to the
\n\teffect that AUDA has not constructed service road, as a result of
\n\twhich, the petitioner and similarly situated villagers residing in
\n\tthe surrounding areas of the Toll Tax Booth have to pass through the
\n\ttoll tax booth after paying the toll tax. The grievance was that the
\n\tpetitioner and similarly situated other persons who are residing in
\n\tthe neighbouring areas of the toll tax booth are not obliged to pay
\n\tthe toll tax as they have to pass through that route every day for
\n\tthe purpose of employment, etc.<\/p>\n
So
\n\tfar as the first grievance of the original petitioner is concerned,
\n\tthe appellant herein has nothing to say because that relates to
\n\tallotment of alternative plot in lieu of the land which is acquired
\n\tfor the purpose of construction of Sardar Patel Ring Road. However,
\n\tthe appellant is aggrieved by the order of the learned Single Judge
\n\tas contained in paragraph 3 of the judgment. Paragraph 3 of the
\n\tjudgment and order passed by the learned Single Judge is reproduced
\n\thereinbelow :-\n<\/p>\n
“3.\tSo
\n\tfar as the prayer in terms of para 8(b) is concerned, it is
\n\tsubmitted that AUDA has proposed construction of service road for
\n\tpeople like petitioner and others so that
\n\tthey are not required to pay any toll tax.  He has produced on
\n\trecord the communication dated 18.12.2009 signed by the Executive
\n\tEngineer, AUDA, Ahmedabad as well as Deputy Executive Engineer,
\n\tAUDA, Ahmedabad submitting that a 25 km service road is to be
\n\tprepared on both sides of the Sardar Patel Ring Road, which is
\n\tlikely to cost Rs.36.65 Crores and the same would be on Ramol
\n\tJunction to N.H. 59 Odhav Junction (10.70 km) as well as Silaj
\n\tBridge Junction to Sanand Highway Junction (14.30 km) and that
\n\tconstruction of the service road on the aforesaid roads is likely to
\n\tstart from April 2010 and the same can be completed by March 2012.
\n\tThe aforesaid communication dated 18.12.2009 signed by the Executive
\n\tEngineer, AUDA, Ahmedabad as well as Deputy Executive Engineer,
\n\tAUDA, Ahmedabad is directed to be taken on record and respondent
\n\tNo.3 and all other connected authorities connected with the work of
\n\tproviding service road on the aforesaid roads to construct the
\n\tservice road on the aforesaid roads i.e. Ramol Junction to N.H. 59
\n\tOdhav Junction (10.70 km) as well as Silaj Bridge Junction to Sanand
\n\tHighway Junction (14.30 km) on or before March 2012 and to place the
\n\tcompliance report before this Court in the present Special Civil
\n\tApplication.”\n<\/p>\n
It
\n\tis evident from plain reading of paragraph 3 of the impugned
\n\tjudgment and order that learned Single Judge took notice of the fact
\n\tand recorded that 25 kms service road is to be prepared on both
\n\tsides of the Sardar Patel Ring Road at the estimated cost of
\n\tRs.36.65 crores and the same would be on Ramol Junction to National
\n\tHighway 59 Odhav Junction (10.70 kms) as well as Silaj Bridge
\n\tJunction to Sanand Highway Junction (14.30 kms) and that the
\n\tconstruction of the service road on the aforesaid roads is likely to
\n\tstart from April 2010 and the same can be completed by March 2012.
\n\tAfter recording this, the learned Single Judge proceeded to issue
\n\tdirections to the respondent to undertake the work of construction
\n\tof service road and see to it that it is completed on or before
\n\tMarch 2012 and, thereafter, place the compliance report before the
\n\tCourt.\n<\/p>\n
\tLearned
\ncounsel for the appellant submits that the learned Single Judge ought
\nnot to have issued such directions to the respondents, more
\nparticularly, AUDA, as they are prejudicial to the interest of the
\nappellant. Counsel submits that a person travelling through service
\nlane, which is also  connected with the Highway, can cross the toll
\ngate through the service lane, and if persons are allowed to cross,
\nit will cause loss to the exchequer of the appellant as those who are
\ntravelling on the Highway would take circuit route through the
\nservice lane to avoid toll gate. Counsel would further submit  that
\nthe directions issued by the learned Single Judge are of such a
\nnature that AUDA is now left with no other option but to construct
\nservice road, and at any cost, the appellant does not want that there
\nmust be service road.\n<\/p>\n
\tWe
\ninquired with the learned counsel appearing for the appellant that
\nwhy objection was not raised at the relevant point of time when these
\ndirections were being issued by the learned Single Judge, if at all
\nsuch directions were prejudicial to the interest of the appellant
\ndefeating their legal rights, if any. To this, there is no
\nsatisfactory reply. On the contrary, in paragraph 3 of the appeal
\nmemo, it has been stated that after the directions were issued by the
\nlearned Single Judge, the appellant deputed its senior officers to
\nhave meeting with AUDA and requested AUDA to move appropriate
\napplication before the learned Single Judge for recalling the
\ndirections contained in paragraph 3 of the judgment. However, these
\nsteps were also not undertaken by the appellant.\n<\/p>\n
\tLearned
\ncounsel for the appellant would also submit that the Sardar Patel
\nRing Road is a Build, Operate and Transfer (BOT) basis project. As
\nper the BOT system, the contractor makes investment to construct the
\nroad. The amount so invested is recovered from collection of toll
\nfees from the road users during the concession agreement period. The
\nbidders conduct the survey of traffic which is likely to use the
\nproposed road and make the bid on the basis of estimate of generation
\nof toll fee collection.\n<\/p>\n
\tIt
\nis submitted that based on the estimate of recoverable revenue, the
\nbidders submit the bids and, thereafter, a concession agreement is
\nexecuted between the successful bidder and the authority under which
\nthe contractor is given the right of collection of toll fees from the
\nroad users for a fixed number of years. It is submitted that the bid
\nof the appellant was found to be successful and accordingly, a
\nconcession agreement came to be signed between the appellant on the
\none hand and AUDA on the other hand on 7th September 2006
\nfor the work of improvement and widening of four lane of existing two
\nlane Sardar Patel Ring Road around Ahmedabad city on BOT basis. It is
\nalso submitted that during pre-bid meetings, it was discussed between
\nthe parties that if service roads are provided, it will not make the
\nproject viable. It is also submitted that AUDA agreed to omit the
\nprovision of service road.\n<\/p>\n
\tPer
\ncontra, it is submitted on behalf of the respondent no.4 that the
\ndecision of laying down service road was in the interest of public at
\nlarge and, more particularly, for the local public of the surrounding
\nvillages.\n<\/p>\n
\tRespondent
\nno.4, in its affidavit-in-reply, has explained as to how appropriate
\ndecisions were taken from time to time and what were those decisions.
\nThe relevant paragraphs of the affidavit-in-reply, namely, paragraphs
\n4, 5, 6, 7, 8, 9 and 10 are as under:-\n<\/p>\n
“4.The
\nrespondent No.4 most respectfully states that the Ring Road having
\nlength of 76.35 kms. Known as Sardar Patel Ring Road was proposed in
\nthe month of August, 1999. Later on it was decided to construct the
\nsaid Ring Road by way of inviting tenders of Build, Operate and
\nTransfer (BOT) basis and the estimated cost of the said project was
\nRs.410 crores. It is submitted that as once a decision was taken by
\nthe Board of Members of Ahmedabad Urban Development Authority in this
\nregard, it was thought fit to invite tenders by way of issuing public
\nnotices in various newspapers dated 16\/12\/2005 and the said public
\nnotice was also made available on website. It is pertaining to note
\nthat M\/s.Sai Consulting Engineers Pvt. Limited was appointed as
\nindependent consultant for execution of the said project and it had
\nprepared and submitted draft tender papers on 04\/02\/2006. The said
\ndraft tender papers were approved by the then Chairman of Ahmedabad
\nUrban Development Authority on 07\/04\/2006 and in all 14 contractors
\ncollected the tender forms after depositing Rs.50,000\/- per tender
\nform. It is most respectfully stated that in the schedule under
\nSection-2, Volume-II of Bid Documents under draft tender papers
\nprovided for service roads. The respondent No.4 further states that
\nClause-2.3 (Page-5) lays down that service road shall be provided on
\neither side of the main carriage way in built up area or has to
\nprovide civil movement of local traffic without disturbing through
\ntraffic and a copy of relevant portion of the Schedule-B is annexed
\nherewith and marked as Annexure-A. From kind perusal of Clause-2.3,
\nit would be clear to this Hon’ble Court that various other details
\nwere also provided with regard to service roads. The respondent No.4
\nat this stage makes it clear that as per the said bid-documents,
\nservice road was required to be constructed by the Bidder.\n<\/p>\n
5.The
\nrespondent No.4 humbly states that a Pre-Bid meeting of the bidders
\nwas held on 17\/04\/2006 and during the meeting the officers of
\nAhmedabad Urban Development Authority had provided some
\nclarifications relating to the project and the said clarifications
\nwere with regard to service road also and a copy of the Minutes of
\nthe meeting duly signed by the Chairman of Ahmedabad Urban
\nDevelopment Authority on 18\/04\/2006 is annexed herewith and marked as
\nAnnexure-B. The respondent No.4 craves leave to draw kind attention
\nof this Hon’ble Court to Note-1 through which Ahmedabad Urban
\nDevelopment Authority had provided some clarifications relating to
\nthe project. It is submitted that the said clarification
\ncategorically is with regard to service roads remaining length of the
\nproject road to be provided by Ahmedabad Urban Development Authority
\nas and when required in future. The respondent No.4 craves leave to
\nadd that the minutes of the meeting were made available to all the
\nbidders immediately on 20\/04\/2006.\n<\/p>\n
6.The
\nrespondent No.4 submits that thereafter the respondent No.4 took a
\nvital decision on certain issues including with regard to Clause-2.3
\nof Schedule-B, Section-II, Volume-II specifying the provisions of
\nservice roads to be constructed by the bidder\/contractor. It is
\nsubmitted that the authority decided to omit the said Clause from the
\nscope of the bidder and a copy of letter dated 12\/06\/2006 addressed
\nto all the bidders is annexed herewith and marked as Annexure-C. In
\nother words, the fact is that Ahmedabad Urban Development Authority
\nwas to lay down the service road on both the sides of the entire Ring
\nRoad was known to all the bidders well in advance. The respondent
\nNo.4 states that this decision of laying down the service roads was
\nin the interest of public at large and more particularly for the
\nlocal public of the surrounding villages.\n<\/p>\n
7.The
\nrespondent No.4 submits that thereafter it received tenders from only
\ntwo parties, namely (1) IL & FS Limited and (2) Sadbhav
\nInfrastructure JV. It is submitted that there were technical bid and
\nprice bid as part of the tender and the technical bids were open on
\n07\/07\/2006 in the presence of bidders, officers of Ahmedabad Urban
\nDevelopment Authority as well as independent consultant appointed by
\nthe respondent authority. It is submitted that the independent
\nconsultant opined on 10\/07\/2006 that both the technical bids were in
\naccordance with the requirement and thereafter Dy.Executive Engineer,
\nExecutive Engineer, Accounts Officer and Chief Executive Authority of
\nthe Authority declared both the bidders technically qualified on
\n14\/07\/2006. In view of this, price bid of both the parties were
\nopened on 20\/07\/2006 and as M\/s.Sadbhav Infrastructure JV was the
\nlowest bidder, it was decided by the Chairman of the Authority to
\naccept the bid and a letter to that effect was addressed to it on
\n31\/07\/2006 and a copy of letter of acceptance is annexed herewith and
\nmarked as Annexure-D. It is pertinent to note that through the said
\nacceptance letter dated 01\/07\/2006 it was made known to the
\nsuccessful bidder that all the letters including minutes of pre-bid
\nmeeting were part of the agreement. In other words, it was known to
\nthe successful bidder that the service roads were to be provided by
\nAhmedabad Urban Development Authority on both sides of the entire
\nRing Road as per the convenience of the authority.\n<\/p>\n
8.The
\nrespondent No.4 craves leave to make it clear as it was expected from
\nthe successful bidder to constitute a Special Purpose Vehicle (SPV)
\nfor the said project, it was thought fit by the successful bidder to
\nform Ahmedabad Ring Road Infrastructure Limited and an intimation to
\nthat effect was made available to the respondent No.4 authority
\nthrough a letter dated 05\/09\/2006 and a copy thereof is annexed
\nherewith and marked as Annexure-E.\n<\/p>\n
9.The
\nrespondent No.4 submits that after completion of the entire
\nprocedure, the appellant herein entered into an agreement with
\nAhmedabad Urban Development Authority on 07\/09\/2006 and therefore, it
\nis crystal clear that the appellant was well aware that service roads
\non both sides of entire Ring Roads were to be laid by Ahmedabad Urban
\nDevelopment Authority in accordance with its requirements and hence
\nthe appellant has no right to object the said public service by
\nAhmedabad Urban Development Authority in any circumstances and,
\ntherefore, this Hon’ble Court is humbly prayed to reject the present
\nLetters Patent Appeal with cost in the interest of justice.\n<\/p>\n
10.The
\nrespondent No.4 humbly submits that as mentioned hereinabove, the
\nappellant herein has never objected the stand of Ahmedabad Urban
\nDevelopment Authority on the issue of constructing service roads
\nduring the hearing of Special Civil Application No.26834 of 2007. The
\nrespondent No.4 submits that immediately after disposal of Special
\nCivil Application No.26834 of 2007 on  5\/8\/2010 necessary
\nprocedure was initiated for construction of service road having
\nlength on 12.5 kms on both the sides of service roads from (1) Ramol
\nJunction to Odhav Road and (2) Sheelaj Bridge Junction to Sanand Road
\nJunction at the cost of Rs.35 crores to be borne by Ahmedabad Urban
\nDevelopment Authority for the benefit of local villagers. It is
\nstated that the authority has not only invited tenders for the said
\nproject, but even technical bids are also opened on 19\/01\/2011 and
\nthe financial bids will be opened within a short time, so that the
\nproject can be completed at the earliest. It is pertinent to note
\nthat the said road is to be completed latest by March 2012 as per the
\norders of the Hon’ble High Court of Gujarat duly passed in Special
\nCivil Application.”\n<\/p>\n
\tRespondent
\nno.4, in its affidavit-in-surrejoinder, has further explained that
\nwhy there would not be leakage of toll and why the interest of the
\nappellant is not likely to be prejudiced. Paragraphs 2, 3, 4, 5 and 6
\nof the affidavit-in-surrejoinder read as under:-\n<\/p>\n
“2.The
\nrespondent No.4 humbly submits that in its affidavit-in-reply the
\nentire issue with regard to the provision of service road is made
\nclear and the Hon’ble Court is not mislead as alleged by the
\nappellant. At the cost of repetition, it is stated that the appellant
\nherein is fully aware about the provision of service road parallel to
\nRing Road and 7 Toll Plazas on the entire Ring Road. It is stated
\nthat as such there is a provision in the Pre-Bid Minutes pursuant to
\nqueries from Patel Infrastructure Pvt. Ltd. that the contractor can
\nerect tolls at both entry as well as exit points of all identified
\nexisting junctions with the permission of Ahmedabad Urban Development
\nAuthority. In other words, it is open to the appellant herein to
\nerect tolls at both entry as well as exit points of identified
\nexisting junctions and a copy of said Minutes of Pre-Bid meeting is
\nannexed herewith and marked as Annexure-A. It is submitted that the
\nservice road is to be provided and built up by Ahmedabad Urban
\nDevelopment Authority and the appellant herein has no say in it. The
\nrespondent No.4 craves leave to add that the interest of the
\nappellant will be protected as it is open to it to erect tolls at
\nboth entry and exit points of all identified existing junctions with
\nthe permission of Ahmedabad Urban Development Authority. In view of
\nthis, as and when the service road is constructed, the appellant
\nherein can make necessary provision for erection of new tolls at both
\nentry and exist points for cross check. The respondent No.4 submits
\nthat there is already a provision for 19 existing points where
\nservice roads would meet with cross major junctions. The respondent
\nNo.4 craves leave to annex herewith a Key Plan of the Ring Road
\nshowing the details of service roads as well as major junctions and
\ntraffic survey locations and marked as Annexure-B.\n<\/p>\n
3.The
\nrespondent No.4 humbly states that so far as the Ring Road is
\nconcerned, there is provision for three lanes on either of the sides
\nand at present in all four lanes are provided and the land for the
\nremaining two lanes is available, but at present there is no proposal
\nand planning for constructing remaining two lanes. It is stated that
\nas per the planning, a 5.5 meter wide lane is kept open for future
\nplanning and thereafter there is a provision for closed storm water
\ndrainage system having width of 2.5 meters. It is submitted that only
\nthereafter there is a provision of service roads having width of 7.5
\nmeters. In other words, laying down of service roads is not likely to
\naffect the interest of the appellant company considering the fact
\nthat there is vast difference between the service roads and existing
\nmain carriage road i.e. Ring Road. The respondent No.4 submits that
\neven otherwise, there would be level difference between ring road and
\nservice road and that would also protect the interest of the
\nappellant. Apart from this, it is categorically stated that there
\ncannot be a provision for crash barrier\/curbing nearing the Toll
\nPlazas to separate the vehicular traffic of service road and ring
\nroad.\n<\/p>\n
4.The
\nrespondent No.4 submits that as per the provisions of contract, the
\nappellant herein cannot charge toll from two wheelers, three
\nwheelers, tractors and such other vehicles used for agriculture
\npurpose. In other words, the apprehension of the appellant that there
\nwould be leakage of toll, has no substance.\n<\/p>\n
5.The
\nrespondent No.4 craves leave to state that considering the overall
\ndevelopment of the city of Ahmedabad, it is necessary to construct
\nservice roads for the local people and, therefore, at present it is
\ndecided to construct service road near the areas of village Bopal and
\nVastral. It is stated that these two areas are not only rapidly
\ndeveloping  but also in requirement of service roads due to its
\nlocations.\n<\/p>\n
6.The
\nrespondent No.4 categorically denies the averments made by the
\nappellant that six lane ring road is to be provided in a near future.
\nIt is submitted that as such there is no decision on the issue of
\nconstruction of additional two lanes and the Memorandum of
\nUnderstanding to by the appellant cannot be a ground for non
\nconstruction of service roads meant for local people and nearby
\nvillagers. The respondent No.4 states that from kind perusal of the
\nMemorandum of Understanding on Page No.103, it would be clear to this
\nHon’ble Court that it does not provide for any details as well as
\nterms and conditions for such projects and under its shelter the
\nappellant is trying to restrain the authority from putting up
\nconstruction of service roads to suit his purpose by way of
\nmisleading the Hon’ble Court. It is also stated that the officers of
\nAhmedabad Urban Development Authority has not held any meeting for
\nconstruction of such additional lanes as it is not to be laid in the
\nnear future. It is stated that even if the 5th and 6th
\nlanes are to be constructed, then also the provision for service
\nroads is altogether different as it is a must for the local people.
\nAt the cost of repetition, it is stated that additional two lanes
\nwould be for the benefit of commercial vehicles while service roads
\nare for the purpose of local people. The respondent No.4 states that
\nthe averments and allegations made by the appellant that Ahmedabad
\nUrban Development Authority cannot lay service roads are thoroughly
\nbaseless and the authority craves leave to rely upon the averments
\nmade in the affidavit-in-reply.”\n<\/p>\n
\tHaving
\nregard to the rival contentions of the respective parties and in the
\nfacts and circumstances of the case, we are of the view that the
\nentire challenge and claim of the appellant is misconceived and not
\ntenable in law.\n<\/p>\n
\tThe
\nconcept of service road is not a new concept. It is an age old
\nconcept. Service roads are provided with a definite idea. AUDA has
\nclarified that the construction of service road would be in such a
\nway that it may have adequate level difference or developed
\nplantation, garden, open drain or laying of curbing stones so that
\ntraffic of ring road may not approach the service road in between
\nwith the sole intention of avoiding the toll. The service road cannot
\nbe permitted to be merged with the toll plazas constructed by the
\nappellant, otherwise the entire purpose of constructing service road
\nfor the benefit of local people would be frustrated. If this is done,
\nthen the local people residing in the surrounding nearby villages and
\nlocalities of service road would be the sufferers because they may
\nhave to face undue hardship by paying toll frequently.\n<\/p>\n
\tWe
\nare of the view that by merging of service road with the ring road at
\neach and every toll plazas, as submitted by the learned counsel for
\nthe appellant, would be nothing but an additional lane on existing
\nring road only. In that case, it would not be a service road in any
\nsense for local people. Adequate safeguards and remedies can be taken
\ncare of for the purpose of preventing leakage of toll fees by putting
\ncross barriers, manual check points, etc. at the probable points of
\nleakage of toll fees.\n<\/p>\n
\tIt
\nis not possible to accept the submission of learned counsel for the
\nappellant that there should not be any service road at all as that
\nwould lead to great financial loss to the appellant.\n<\/p>\n
\tIn
\nthe facts and circumstances of the case, principle of ‘Damnum Sine
\nInjuria’ would be applicable. The rule of law is that the
\nexercise of an ordinary right is no wrong even if it causes damage.
\nThis legal maxim is based on the principle of law that as a price of
\nour free action, which the law permits, the other person must abide
\nby some measure of inconvenience from equal freedom of one’s
\nneighbour. This is what the phrase ‘damnum sine injuria’
\nmeans. This is a case of ‘damnum sine injuria’ – a case
\nwhere damage or loss is inflicted without the act being unlawful. It
\nis an act though harmful to the appellant is not wrongful on the part
\nof the respondent, and no right of action accrues to the appellant.\n<\/p>\n
\tIn
\nthis view of the matter and the principle of law, the Appeal is
\ndevoid of merits and the same deserves to be dismissed with cost.\n<\/p>\n
\tThe
\nAppeal is hereby dismissed with cost of Rs.30,000=00. The cost of
\nRs.30,000=00 shall be paid by the appellant to the Red Cross Society,
\nAhmedabad and he shall produce the receipt of the same to the
\nregistry within a period of fifteen days from the date of this order.
\nNotice stands discharged.\n<\/p>\n
\tAd-interim
\nrelief, if any, stands vacated forthwith.\n<\/p>\n
(S.J.Mukhopadhaya,
\nCJ.)<\/p>\n
(J.B.Pardiwala,
\nJ.)<\/p>\n
\/moin<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Chief vs Kanuji on 19 April, 2011 Author: Mr.S.J.Mukhopadhaya,&Nbsp;Mr.Justice J.B.Pardiwala,&Nbsp; Gujarat High Court Case Information System Print LPA\/97\/2011 22\/ 22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 97 of 2011 In SPECIAL CIVIL APPLICATION No.26834 of 2007 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-138629","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nChief vs Kanuji on 19 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chief-vs-kanuji-on-19-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chief vs Kanuji on 19 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/chief-vs-kanuji-on-19-april-2011\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2011-04-18T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2017-08-13T06:00:56+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"22 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chief-vs-kanuji-on-19-april-2011#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chief-vs-kanuji-on-19-april-2011\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Chief vs Kanuji on 19 April, 2011\",\"datePublished\":\"2011-04-18T18:30:00+00:00\",\"dateModified\":\"2017-08-13T06:00:56+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chief-vs-kanuji-on-19-april-2011\"},\"wordCount\":4263,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Gujarat High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chief-vs-kanuji-on-19-april-2011#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chief-vs-kanuji-on-19-april-2011\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chief-vs-kanuji-on-19-april-2011\",\"name\":\"Chief vs Kanuji on 19 April, 2011 - 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