MUHAMMAD SHAN GUL, J.- Through the present judgment the following constitutional petitions are sought to be decided:
1. In Writ Petition No.19914 of 2014 titled "Times Institute (Al-Syal Educational Trust) vs. Federation of Pakistan etc" it has been prayed that the impugne d letter dated 19.12.2019 and notice 24.12.2019 issued by the National Highway Authority may very kindly be declared illegal and be set aside and that the respondents be restrained to take any coercive measures/cutting of road approach for recovery of any charges till final outcome of this petition.
2. In writ Petition No.5186 of 2021 titled "is Roomi Fabrics vs. Federation of Pakistan etc" it has been prayed that the letter dated 08.03.2021 issued by the National Highway Authority with regard to obtaining No Objection Certificate and payment of ARC (Approach Rental Charges) may kindly be declared to be illegal and void.
3. In writ petition No.9554 of 2017 titled "lltasood Anwar vs. National Highway Authority etc"it has been prayed that the act of respondent No.1, National Highway Authority in increasing the Rental Charges and imposition of rate of Rental Charge of urban area instead of rural area demanding through recovery notice dated 19.05.2017 may kindly be set aside.
4. In Writ Petition No.10435 of 2021 "Al-Burhan Filling Station etc vs. Federation of Pakistan etc" the petitioners have prayed that impugned decision taken by respondent No.2 National Highway Authority , in its 326th meeting held on 17.10.2019 conveyed through notices (annex-D, D/1, D/2 and D/3) may graciously be set aside and the respondents be restrained to take any coercive measures against the petitioners.
5. In Writ Petition No.3975 of 2021 titled "Zafar Ahmad vs. National Highway Authority etc" the petitioner has prayed that the impugned notices (annex.E, E/1 & E/2) issued by National Highway Authority for getting No Objection Certificate and payment of Approach Rental Charges may kindly be declared to be illegal and that the respondents be restrained to adopt any coercive measures against the petitioner for recovery of Approach Rental Charges.
6. In Writ Petition No.17869 of 2019 titled "Jamil Ahmad v. Federation of Pakistan and National Highway Authority etc" it has been prayed that impugned decision taken by respondent No.2, Chairman National Highway Authority through letter dated 25.10.2019 may graciously be set aside by declaring the same as illegal and that respondents be restrained to take any coercive measures against the petitioner for recovery of impugned charges.
7. In Writ Petition No. 15252 of 2020 titled " Jamil Ahmad vs. Govt. of Pakistan through Secretary Ministry of Communication etc" it has been prayed that impugned notice dated 08.10.2020 charging levy as well as increase in approach rental charges, may graciously be set aside.
8. In Writ Petition No. 4021 of 2021 titled "Roomi Industries (Pvt.) Ltd v. Govt. of Pakistan through Secretary Ministry of communication etc" it has been prayed that notice dated 08.03.2021 by demanding NOC fee and Approach Rental Charges may very kindly be declared as illegal and that the respondents be restrained to take any coercive measures against the petitioner .
9. In Writ Petition No.18654 of 2019 titled "Sardar Saqib Qureshi vs. Federation of Pakistan etc" it has been prayed that the impugned notice dated 21.11.2021 issued by respondents may kindly be struck down and may be declared to be illegal and without lawful authority .
10. In Writ Petition No. 4628 of 2021 titled "is Blessing filling station etc vs. Federation of Pakistan etc" it has been prayed that the decision taken by respondent No.2 in its meeting held on 17.10.2019 conveyed through letter dated 25.10.2019 may very graciously bet set aside and that the increase in approach rental charges be declared as nullity in the eye of law as the same has been made without any lawful authority .
11. In Writ Petition No. 1999 of 2019 titled "is Seven Star Petrol Pump PSO v. National Highway Authority etc" it has been prayed that impugned notice dated 27.12.2019 issued by respondent No.6 be declared as null and void.
12. In Writ Petition No.17778 of 2019 titled "Rana Abdul Jabbar etc vs. The Nation al Highway Authority etc" it has prayed that the decision taken in its 326th meeting held on 17.10.2019 conveyed through letter dated 25.10.2019 may be set aside by declaring the same as illegal, void, without due process of law in violation of National Highways and Strategic Road Control Rules as amended in 2002 and Regulatory Framework & SOPs' for preservation and commercial use of National Highway Authority Right of Way (Right of Way) 2002 and that increase in approach rental charges be declared as nullity in the eyes of law .
13. In Writ Petition No.21 1 of 2020 titled "Waqar Hussain vs. Secretary Ministry of Communication Islamabad, etc" it has been prayed that the speaking order passed by respondent No.2 and impugned public notice issued by respondent No.4 may very graciously be set aside by declaring the same as illegal and void.
14. In Writ Petition No.19717 of 2019 titled "Nishat Ahmad Khan etc vs Federation of Pakistan etc, it has been prayed that the decision taken in its 326th meeting held on 17.10.2019 conveyed through letter dated 25.10.2019 may very graciously be set aside by declaring the same as illegal, void, without due process of law in violation of National Highways and Strategic Road Control Rules as amended in 2002 and Regulatory Framework & SOPs' for preservation and commercial use of National Highway Authority Right of Way (ROW) 2002 and that increase in approach rental charges be declared as nullity in the eye of law .
15. In Writ Petition No. 88 of 2020 titled "is Fazal Cloth Mills vs Federation of Pakistan etc" it has been prayed that the impugned letter dated 04.12.2019 and notice dated 27.11.2019 issued by National Highway Authority may be declared, illegal unlawful and against the fundamental rights of the petitioner .
16. In Writ Petition No.15 of 2020 titled "Muhammad Saleem vs. G.M. National Highway Authority etc". it has been prayed that impugned notice issued by respondent No.3 may graciously be cancelled being illegal.
17. In Writ Petition No.14248 of 2020 titled "Arslan CNG Station vs. Govt. of Pakistan etc" it has been prayed that impugned notice dated 08.10.2020 annex-B1 speaking order passed by respond ent No.2 and impugned notice issued by respondent No.4 may be set aside by declaring the same as illegal void and without due process of law .
18. In Writ Petition No. 15253 of 2020 "Alif Laam Meem CNG vs. Govt. of Pakis tan etc" it has been prayed that impugned notice dated 08.10.2020 annex-B1 speaking order passed by respond ent No.2 and impugned notice issued by respondent No.4 may be set aside by declaring the same as illegal void without due process of law .
19. In Writ Petition No.13129 of 2021 titled "Lal Khatak Petroleum Service PSO vs. Federation of Pakistan, etc" it has been prayed that the decision taken in its 326th meeting held on 17.10.2019 conveyed through impugned notice (Annex-D) may be set aside by declaring the same as illegal, void, without due process of law in violation of National Highways and Strategic Road Control Rules as amended in 2002 and Regulatory Framework & SOPs' for preservation and commercial use of National Highway Authority Right of Way (ROW) 2002 and that increase in approach rental charges be declared as nullity in the eyes of law .
20. In Writ Petition No. 16193 of 2021 titled "Sanwal Filling Station vs. Federatio n of Pakistan, etc. it has been prayed that the decision taken in its 326th meeting held on 25.10.2019 conveyed through impugned notice (Annex- D & D/1) may be set aside by declaring the same as illegal, void, without due process of law in violation of National Highways and Strategic Road Control Rules as amended in 2002 and Regulatory Framework & SOPs' for preservation and commercial use of National Highway Authority Right of Way (ROW) 2002 and that increase in approach rental charges be declared as nullity in the eyes of law .
21. In Writ Petition No. 5825 of 2020 titled "Ahmed Fine Weaving limited vs Govt. of Pakistan etc" it has been prayed that the decision taken by Executive Board of National Highway Authority dated 17.10.2019, 12.11.2019 and 24.10.2019 followed by the Notice dated 22.11.2019 may kindly be declared as illegal, null & void, without lawful authority .
2. All the afore-mentioned petitions have been filed to challenge, as is evident, decision of the Executive Board of respondent National Highway Authority taken in its 326 meeting held on 17.10.2019 and the consequent demand notices issued on various dates on the strength thereof and as highlighted in the earlier narrative.
3. A brief history why these petitions have been filed is necessary to understand the context, contours and circumstances involved and at stake.
4. The controversy in issue stems from imposition and collection of periodic Approach Rental Charges ("ARC") by the National Highway Authority (NHA) as a quid pro quo for using National Highway Authority Roads/Right of Way ("ROW") to access CNG Stations, Filling Stations, amenities in other building structures and similar utility outlets established (in some of the cases) on the private land of, and operated (in all cases) by , the petitioners.
5. National Highway Authority?s power to collect such Approach Rental Charges was initially assailed through Writ Petition 94/201 1 (reported as 2016 CLC Note 15 "Irshad Noor CNG Station through Proprietor v. National Highway Authority Islamabad and others through Chairman") where the petitioners asserted and claimed that
(i) National Highway Authority could collec t such charges only once at the time of grant of No Objection Certificate and there is no provision in the National Highway Authority Act, 1991 ("the Act, 1991") or National Highways and Strategic Roads (Control) Rules, 1998 ("the Rules, 1998) allowing periodic charging of Approach Rental Charges and (ii) National Highway Authority has increased the rates of Approach Rental Charges arbitrarily .
6. This reported Judgment traced the legal basis and factual history of levy of Approach Rental Charges and periodic increase thereof. The honourable Judge upheld the power of the National Highway Authority to levy Approach Rental Charges at the time of grant of No Objection Certificate and also and importantly upheld its periodic charging on the basis of Section 10(2)(viii) & 10(2) (xiii) of the Act, 1991 read with Rules 8 & 12 of the Rules, 1998 and Regulatory Framework and Standard Operating Procedures for Preservation and Commercial Use of Right of Way, (ROW) - 2002 ("SOPs") framed by the Executive Board of Nation al Highway Authority and further endorsed the increase in rate of Approach Rental Charges by the said Executive Board. Paragraph 15 of this judgment states as follows: "15. Under the above mentioned powers of the National Highway Authority Act, 1991 and National Highway Authority Rules 1998, National Highway Authority Executive Board approved the policy guidelines in its 92nd meeting and constituted a committee to finalize the Regulatory Framework and Standard Operating Procedures for Preservation and Commercial Use of Right of Way, (ROW) - 2002 (hereinafter referred to Policy 2002). The Executive Board in its 104th meeting held on 29.03.2002 implemented its Policy 2002 for Preservation/Commercial use of Right of Way regarding establishment of filling/CNG Stations hotels/motels, restaurants, nurseries, factories, shops, khokhas, kiosks, hoarding boards, utility lines, etc.th
22. From the above it is clear that the power to enhance rent rate/charges has not been exercised arbitrarily . It is also clear from the above that under the law/rules the authority to revise the rent rates/charges would solely rest with the National Highway Authority and the petitioners were not required to be heard before raising the rent rates/charges.
32. In view of what has been discussed above these writ petitions are dismissed."
7. A SECOND set of petitions were filed again decided by the honourable Lahore High Court Lahore and reported in and as (PLD 2019 Lahore 298) "Jamil Ahmad v. Government of Pakistan, through Secretary , Ministry of Communication, Islamabad" challenging the vires of Rules 4, 8 & 12 of the Rules, 1998 and Chapter IV of SOP s (under which Approach Rental Charges are imposed) alleging the same to be ultra vires of the Act of 1991 i.e. the parent statute.
8. This court while noting with approval the statutory power of National Highway Authority to levy and collect Approach Rental Charges on the basis of various provisions of the Act, 1991 read with Rules 8 & 12 of the Rules, 1998 and SOPs upheld the vires of the challenged provisions:
16. In view of the above discussion, the Rules of 1998 and Regulations 2002 are held to be intra vires the provisions of the Act of 1991 as well as the Constitution and the petitions to this extent are devoid of any merits.
However , some of the petitioners' claim that they are not covered by the said Rules but still notices have been issued to them demanding Approach Rental Charges, and some also alleged that the impugned demand is excessive and is not in conformity with the Rules and Regulations framed by the respondent- authority itself. To this extent, the matter is remitted to respondent-authority . The petitioners shall appear before the respondent-authority along with copy of this Court's order and file objections/replies. The respondent-authority shall provide opportunity of being heard to the petitioners and decide the matter strictly in accordance with law within thirty days, from the date of receipt of certified copy of this order , and shall not take coercive measures against the petitioners till decision of the notices already issued. If any of the petitioners is not covered by the impugned Rules/Regulations or impugned demand is exaggerated, their grievance shall be redressed strictly in accordance with law ."
9. Intra Court Appeals against the above Judgment (PLD 2019 Lahore 298) "Jamil Ahmad v. Government of Pakistan, through Secretary , Ministry of Communication, Islamabad " were dismissed on 06.03.2019, against which CPLAs? No. 1581, 1582, 1583, 1584/2019 are pending before the honourable Supreme Court but no injunctive relief or stay orders have been passed by the honourable apex court. This court in (PLD 2019 Lahore 298) "Jamil Ahmad v. Government of Pakistan, through Secretary , Ministry of Communication, Islamabad " directed the National Highway Authority to decide the following two grievances of the petitioners:- i. Case of the petitioners who claim that they are not covered by the Rules, 1998 , yet Approach Rental Charges were being demanded from them by the National Highway Authority & ii. Rate of Approach Rental Charges demanded is exorbitant and is not in conformity with Rules, 1998 & SOPs.
But for these two questions all other issues raised were settled and the National Highway Authority was assigned the limited mandate and task to only decide these two questions and no more!
10. Apparently complying with the directions of this court, the National Highway Authority on 07.03.2019 held personal hearing in respect of eleven of the present petitioners (the others chose not to attend) and the Chairman National Highway Authority through order dated 07.03.2019 decided the issues. Relevant for the present purposes is what has been highlighted hereunder: Sr.# i. ii.Issue Petitioners having their business operational before July, 1999 enquire about charging of No Objection Certificate fee and rentals.
Rentals may be levied from the date of start of businessNational Highway Authority response.
It was explained that such installations are liable to pay approach rentals w .e.f July , 1999 Subject to provision of No Objection Certificate from any relevant Government department as an evidence regarding establishment of amenities prior to July , 1999 and in case of purchase of business; it may be levied from the date of ownership of existing ownership of existing owner .If an amenity is established after July , 1999, then rentals will be applied from that date whereas No Objection Certificate will be charged as per current rate being in vogue. iii. iv. v. vi. vii.Some petitioners argued that as they have already obtained permission/ No Objection Certificates from respective TMAs/ District Authorities at the time of establishing their businesses. So why they obtain No Objection Certificates from National Highway Authority now .
National Highway Authority has increased its No Objection Certificate & rental rates on very higher side, please compensate in these rates.
No Objection Certificate holders / Owners / dealers of OMCs requested for adjustment of paid amount by respective OMCs may be adjusted in their accounts.
The total outstanding amount may be allowed to be paid in installments considering the financial constraints of the petitioners.
National Highway Authority existing rates may be rationalized on the basis of criteria. Till finalization of the rates with the OCAC and CNGAs per Rule 3 of National Highways Strategic Roads ( Control) Rules 1998 as amended in 2002, no person is allowed to erect / construct permanent / temporary structure without the consent of the authority in writing within 220 feet ( 70 meters ) from the centerline of the nearby carriage. In addition , if an amenity is out of 220 feet but using approaches through dedicated roads to their amenities are bound to pay approach rental charges.
The maintenance & up- keeping of existing road network is the responsibility of National Highway Authority . For this purpose, a dedicated Road Maintenance Account (RMA) is being maintained under RMA Rules to finance the maintenance activities through Annual Maintenance Plan (AMP). This account is funded from own receipts of National Highway Authority i.e Toll, Fines, (W eigh & Police Fines) & Right Of W ay related receipts.
Therefore, in order to accommodate the inflationary trends, National Highway Authority has increased its rates to cater for increasing maintenance requirements as per approved procedure. Hence, request for compensation at this stage cannot be entertained.
It was informed that OMCs as an interim arrangement are paying rentals to National Highway Authority till finalization of yearly approach rentals. National Highway Authority has already accounted for the period amount in respective accounts of NOC holders / dealers / owners, hence the request was accepted.
As the matter involves financial implications, therefore, the request of the petitioners will be submitted before National Highway Authority Executive Board for decision to consider the request being the competent forum.
National Highway Authority is already in the process of discussions with OCAC Oil Companies Advisory Council) and CNG Association in this regard. Fixing of rates on Association, no coercive action may be taken against the petitioners / amenities.the basis of CPI ( Consumer Price Index) with effect from July , 2005 by taking rates of 2005 06 as the base rate for application of CPI to ascertain the yearly rentals w .e.f 2005-06 had already been deliberated upon through the Ministry of Communications. As and when the matter is decided it will be intimated to all stakeholders.
No crevice action is being taken so far , hence demand was accepted. viii. ix. x.National Highway Authority may advertise its rates and rentals in newspaper as publication for information of general public.
The wording of recovery notices does not fulfill legal aspects. In addition, its tone is very harsh and threatening.
Rates may be applied according to covered area / size of amenity especially in case of Hotels/ Motels etc.The request was agreed by National Highway Authority . As soon as an agreement regarding this reached. The revised rates will be published in news papers when ever revised, hence the demand was accepted.
The notice be amended as per the advice of National Highway Authority Legal Wing.
As per in vogue rates of 2009, No Objection Certificate fee and rental are being charged in respect of amenities such as Hotels/ Motels / Market/ Shops etc on the basis of area amenity having area up to 1 Kanal and amenity having area more than 01 Kanal.
However , a revision is under consideration and proposal will be kept in account before finalization of rates.
11. A THIRD set of petitions [W.P No. 8067/2019 (Sajja d Ahmad etc. Vs. Govt of Pakistan etc.), W.P No. 8263/2019 (Rana Abdul Jabbar etc. Vs. Govt. of Pakistan etc.), W.P No. 9826/2019 (Rao Zia ur Rehman etc. Vs. Govt. of Pakistan )] challenging order dated 07.03.2019 of the Chairman National Highway Authority were filed. Vide order dated 12.09.2019 of this court, the matter was sent back and re-routed to the Exec utive Board of National Highway Authority for a decision. Vide order dated 12.09.2019 this Court disposed of all these petitions whereby upon petitioners? request matter was transmitted to the National Highway Authority Executive Board to treat the petitions as representations and decide the matte r strictly in accordance with law within seven days. Respondent/National Highway Authority filed an application for extension of time. Vide order dated 18.11.2019, this Court granted thirty days more to the National Highway Authority Executive Board . It may be mentioned here that the centra l and pivotal decision making body in the National Highway Authority is its Executive Board.
12. The Executive Board, after issuing notices of hearing to the petitioners heard them on 17.10.2019 and in its 326th meeting decided the following "relevant" issues: Sr.No Objections of the Petitioners/NOC Holders(National Highway Authority Executive Board Decision) a. The last revision of rates by National Highway Authority 2009 without any consultation with stakeholders.Under Section 7 of the National Highway Authority Act, 1991, the management of the Authority vests Highway Authority in with the Executive Board, which is authorized to exercise all powers, functions and do all acts and things which are to be done by the Authority . By exercising the powers under Section 7, 10 and 21 of the Act, National Highway Authority Executive Board approved rates in the year 2009. As per decision of the Lahore High Court in Irshad Noor CNG Station case referred herein below , hearing of petitioners /stakeholder is not necessary before enhancement of rates of Approach Rental Charges.
The Board observed that in a reported case 2016 Note 15 Irshad Noor CNG Station etc Vs. National Highway Authority , wherein the challenge was made inter alia to the revised rates in the year 2009 which were approved by the National Highway Authority Executive Board in its meeting held on 19.01.2009, on the basis of which notices were issued to the said petitioners for payment of rental /charges. The Honorable Lahore High Court has decided the matter in favour of National Highway Authority , by holding in paragraph 22 of the above said judgment " From the above it is clear that power to enhance rent/changes have not been done in arbitrarily . It is also clear from the above that the law/ rules the authority to revise the rent rates / changers were solely rest with the National Highway Authority and the petitioners were not required to be heard before raising the rent rates/ charges ." It is also found by the Executive Board that the Honorable Lahore High Court Multan, Bench (in referred case- matter under consideration) PLD 2019 Lahore 298 "Jameel Ahmed and others Vs. Govt. of Pakistan", in paragraph 12 has observed that " As the respondent-authority has been established to manage, roads, therefore the roads assigned to the authority are to be managed and operated by the authority on the terms as it deemed fit by the authority . Therefore, Board cannot go beyond the mandate/ scope of the judgments of the Honourable High Court referred herein above. b. Basis of revision i.e. reach- wise total traf fic of North & South Bound is not based on ground facts rather it is arbitrary .Revision of rates for NOC Fee, Approach Rental Charges etc has been made on the basis of traf fic data on the road. These factors are built-in in the survey . c. Existing rates should be rationalized on the basis of sound criteria.The Board has decided that existing rates for filling and CNG stations (based on traf fic volume) continued to be implemented till June 30, 2020.
The Board also agreed, in principle, that with effect from July 01, 2020 CPI based proposed/revised rates be submitted for consideration/approval and implementation. Rates for rest of amenities including Hotel, Motel, Market, Restaurant, W orkshop, Cinema, Furniture / Car Showroom, Marriage Hall, Agriculture Farms, Marque, Bank & Shop / Shops, etc have been rationalized. d. Payment of arrears can?t be made in one go. Therefore, they requested for payment of outstanding dues in installments.The Board keeping in view the financial constraints of the petitioners decided that the outstanding payments of petitioners in W .P No. 17576 of 2018, 8263/2019, 8067/2019 & 9826/2019 installments are allowed to the petitioners, along with other No Objection Certificate holders of amenities, where payments are outstanding as arrears, as per following proposal: Outstanding/Default amount. Proposed Installment Cutoff date Upto Rs. 0.5 million 02 quarterly June 2020 Between Rs. 0.5 to 1.0 million 04 quarterly Dec- 2020 Between Rs. 1.0 to 1.5 million 06 quarterly June-2021 Between Rs. 1.5 to 2.0 million 08 quarterly Dec- 2021 Above 2.0 million 10 quarterly June-2022 It was unanimously decided by the Board that in case of default of any single installment by any of the petitioners / NOC holders of amenities who are being allowed payment of outstanding of arrears as per above schedule, the whole of the balance amount will be recovered in lump sum, without any further relaxation of time period and concerned staff of National Highway Authority will take the necessary action as per National Highway Authority Act and Rules for the recovery of balance amount in case of default. e. National Highway Authority may advertise its rates and rental charges in newspapers for information of general public.The Board decided to advertise revised rates in widely circulated newspapers for information of general public along with its posting on National Highway Authority's website.
CURRENT PETITIONS:
13. This is the FOURTH round of litigation and the National Highway Authority Executive Boards' decision dated 17.10.2019 in its 326th meeting has been challenged this time round!
14. Some of the petitioners here have already established CNG Stations, filling stations, amenities in other building structures and utility outlets on their private land after obtaining No Objection Certificates from the National Highway Authority . The petitioners are still aggrieved of the Approach Rental Charg es imposed upon them through letter dated 25.10.2019, which in turn emanate out of the decision of Executive Board of National Highway Authority in its 326th meeting dated 17.10.2019.
15. The decision of the National Highway Authority Executive Board dated 17.10.2019 was aimed at complying with the directions of this Court in (PLD 2019 Lahore 298) "Jamil Ahmad v. Government of Pakistan, through Secretary , Ministry of Communication, Islamabad" . This Court's direction was to decide (i) if the rate of Approach Rental Charges is exorbitant, and (ii) if some of the petitioners do not fall in the purview of the regulatory regime of the National Highway Authority and hence, the National Highway Authori ty cannot demand any Approach Rental Charges since Rules, 1998 or SOPs do not apply to them.
16. The Executive Board through its verdict dated 17.10.2019 even though decided the first issue, albeit without amplifying the formula (if any) adopted for the calculation of Approach Rental Charges. The second question regarding the application of Act of 1991, Rules, 1998 & SOPs on some of the petitioners, however , remained unanswered.
17. The vires of Rules, 1998 and SOPs have already been upheld in (PLD 2019 Lahore 298) "Jamil Ahmad v.
Government of Pakistan, through Secretary , Ministry of Communication, Islamabad ". The petitioners still have the same grievance which they had earlier and the National Highway Authority Executive Board's decision still does not address one of the two issues sent its way! This shall be discussed in the discourse ahead and while attending to and dealing with the other contentions raised by the petitioners.
PETITIONERS CONTENTIONS: I. CNG/FILLING STATIONS AND AMENITIES ARE LOCA TED ON ROADS NOT ASSIGNED TO NATIONAL HIGHW AY AUTHORITY :
18. Most of the petitioners claim that their CNG Stations and amenities are located on private land and the roads leading up to such land are not such roads which are maintained by or assigned to the National Highway Authority and hence, the National Highway Authority has no authority to charge such Approach Rental Charges from the Petitioners i.e the Petitioners (or their customers) do not use the National Highway Authority roads or Right of Way to access their CNG Stations. Whereas the National Highway Authority asserts that the petitioners are using National Highway Authority roads or its Right of W ay to access their CNG Stations and other amenities.
19. The petitioners, on the one hand admit the authority of the National Highway Authority over their CNG Stations and amenities since they have obtained No Objection Certificates from the National Highway Authority and have also paid Approach Rental Charges at the time of grant of No Objection Certificates but on the other hand state that the National Highway Authority has no control over the land which is used to access the CNG Stations and hence, no Approach Rental Charges should be levied.
20. A perusal of Rules 4 and 8 read with Chapter IV of SOPs shows that the requirement of initial grant of No Objection Certificate and period Approach Rental Charges, both, are imposed upon the CNG or filling Stations and amenities established even on private land (even out of the Right of Way of Nationa l Highway Authority) but access to which is through National Highway Authority Roads or Right of Way. If the petitioner's CNG or filling stations or amenities are located on roads other than the roads assigned to or maintained by the National Highway Authority and such roads are not even used to access the Petitioners' CNG Stations and amenities there should not have been any need to obtain No Objection Certificates' from the National Highway Authority in the first place!
Rule 4. Prohibition to Construct or Layout any Means of Access:- "No person shall, without the consent, in writing, of the Authority , construct or layout any means of access to or from a national highway , motorway , strategic road or any other road or bridge declared as such under the Act".
Rule 8. Construction of Means of Access to or From the Road or to Construct a Building, Structure and Other Amenities Within a Building Line:-
(1) Any person wishing to obtain the consent of the Authority to construct a means of access to or from the highway or to construct a building, structure and other amenities within the Building Line determined under Rule 5 or under any provincial law before the commencement of Act shall apply to the Authority for grant of its permission.
(2) The applicant shall furnish to the Authority such plans, other relevant documentation and fees as it may require in this behalf as prescribed under National Highway Authority regulatory framework and SOPs for preservation and commercial use of Right of W ay.
21. Whether the roads used to access the CNG Stations and amenities of some of the petitioners are the ones assigned to or maintained or still assigned to or maintained by the National Highway Authority or not is the only question left outstanding and which requires assessment in respect of factual details and disputes and which can hardly be undertaken by this Court in its constitutional jurisdiction and which is what now needs to be determined by the Executive Board but individually and in each case so as to obviate any further challenge, this being the fourth round spread over nearly seven years.
22. From the proceedings of personal hearing dated 07.03.2019 (held in compliance of (PLD 2019 Lahore 298)
"Jamil Ahmad v. Government of Pakistan, through Secretary , Ministry of Communication, Islamabad") it appears that this aspect has not been decided by the respondent National Highway Authority! Neither has this aspect been taken note of in the second round by the National Highway Authority?s Executive Board on 17.10.201 19. It is still maintained by some of the petitioners herein that they are not covered by the National Highway Authority regime on account of their CNG stations being housed on private land with no use of National Highway Authority access roads.
23. It may be observed that while the Executive Board over-compensated while deciding issue No.1, it only very partially attempted to answer issue No.2 presuming perhaps that the only objection with reference to issue No.2 could only be based on operations commencing prior to coming into force of the National Highway Authority Act 1991 or of the petitioners being regulated by some municipal bye-Laws or regulations or that access to private lands was only through National Highway Authority assigned and maintained roads. It would therefore be proper and legal and, of course, in accord with the spirit and ethos of the judgment reported as (PLD 2019 Lahore 298) "Jamil Ahmad v. Government of Pakistan, through Secretary , Ministry of Communication, Islamabad" to examine the case of each and every petitioner on an individual basis since all of them are differently situated and then decide once and for all.
II. NA TIONAL HIGHW AY AUTHORITY CANNOT COLLECT APPROACH RENT AL CHARGES PERIODICALL Y:
24. The petitioners contend that Rules, 1998 only allow the National Highway Authority to collect fee at the time of grant of No Objection Certificates and no "periodical charges" can be imposed upon the petitioners. This question has already been decided in (2016 CLC Notes 15) "Irshad Noor CNG Station through Proprietor v. National Highway Authority Islamabad and others through Chairman": As mentioned above the last enhancement which is under challenge before this Court has been made after following a criteria and also keeping in view the ground realities. Further under the contract National Highway Authority had the power to enhance the rent/charges periodically . Therefore, the said judgment is also not relevant to the case in hand.
From the above it is clear that the power to enhance rent rate/charges has not been exercised arbitrarily . It is also clear from the above that under the law/rules the authority to revise the rent rates/charges solely rests with the National Highway Authority and the petitioners were not required to be heard before raising the rent rates/charges.
III. THE TERM APPROACH RENT AL CHARGES IS NEITHER MENTIONED IN THE ACT OF 1991 NOR IN RULES, 1998 BUT IT IS MENTIONED ONL Y IN SOPs:
25. Again, the issue has been adjudicated upon in (2016 CLC Notes 15) "Irshad Noor CNG Station through Proprietor v. National Highway Authority Islamabad and others through Chairman" , (above) which judgment has evaluated the provisions of the Act of 1991, Rules, 1998 as well as SOPs and has upheld the levy of Approach Rental Charges as imposed through SOP s. Furthermore, Rule 8(2) itself contemp lates that such charges shall be imposed and collected as prescribed by SOPs. It is to be noted that such charges are imposed upon "commercial use of National Highway Authority land/Right of Way" and not an routine travellers who pay toll for using the National Highway Authority roads. And in this regard the suggestion of one of the counsel, Mr. Muhammad Ali Siddiqui, indeed carries weight and is worthy of consideration by the Authority . According to Mr. Muhammad Ali Siddiqui, the sale receipts of CNG Stations and amenities and utility outlets should be a relevant and dominant consideration in chalking out Approach Rental Charges on an individual basis. The National Highway Authority should court this suggestion for the purpose of working out Approach Rental Charges hence onwards. A suggestion whole-heartedly acknowledged by the General Manager (ROW) National Highway Authority Islamabad.
IV. RULE-12 IMPOSES GROUND RENT AL CHARGES AND FEE UPON CNG STATIONS AND AMENITIES ESTABLISHED ON GOVERNMENT LAND ONL Y:-
26. The petitioners state that Rule-12 only relates to CNG Stations and amenities established on Government land and since Petitioners? Filling Stations are constructed on private land, no charges can be imposed upon the petitioners.
27. It appears that Rules 8 & 12 contemplate and cater to two different scenarios. Rule 8(1) imposes an obligation upon "Any person wishing to obtain the consent of the Authority to construct a means of access to or from the highway ..." i.e a person who establishes CNG or filling Stations on his private land but uses National Highway Authority roads to access the same whereas Rule 12 deals with a situation where license is granted for the establishment of CNG or filling Stations on National Highway Authority land. Ground Rental Charges are imposed for the use of National Highway Authority land (Rule-13) and under Rule-12 a further license to construct approach road is granted.
12. License for the Grant of Permission to Construct Approach Roads or Culverts for the use of Government Land for Construction, Installation of Filling/CNG Stations, Other Amenities and Laying of Utility Lines Through, Across, Under and Over the Road or Bridge:-
(1) The Authority may, at its discretion, with due regard to the safety and convenience of the road user and subject to such conditions as it may impose and on payment of such fees and rental charges/lease charges as it may fix, permit any person or agency to; (a) setup filling/CNG stations , hotel/motel, restaurants, sign boards, nurseries, shops, khokhas, hoardings, banners for a specific period; (b) to carry any cable, wire, pipeline, drain, duct, sewer or channel of any kind through, across, under or over any national highway , motorway , strategic road and bridge under its control; (c) to manage the national highway , strategic road or bridge corridor including all amenities in Sections or Sub-sections or part thereof as commercial entity through managem ent contractor on behalf of the Authority , at a fee or ground rental charges prescribed by the Authority in the duly executed contract agreement approved by the Board or as prescribed under Regulatory Framework and SOPs of the Authority .
28. Accordingly , Chapter IV of SOPs prescribes conditions and imposes charges for two different situations i.e Approach Rental Charges in case of Lease of Government Land for Installation of Filling/CNG Stations (Rule- 12/SOP Chapter IV-Clauses 2 & 3) and No Objection Certificate Requirement for approach rental charges for using the National Highway Authority land for approaches to Filling/CNG Stations installed out of National Highway Authority Right of W ay (ROW) (Rule-8/SOP Chapter IV -Clause 4).
29. Hence, Approach Rental Charges are imposed upon the petitioners under Rule-8 and SOPs framed under Rule-8.
V. THE PETITIONERS CNG STATIONS/FILLING STATIONS ARE LOCA TED ON PRIV ATE LAND AND IMPOSITION OF APPROACH RENT AL CHARGES FOR THE USE OF NATIONAL HIGHW AY AUTHORITY LAND IS AN INTERFERENCE IN RIGHT OF EASEMENT OF PETITIONERS:
30. Although it is primarily for the Civil Courts to determine if the Petitioners even have any absolute right of easement i.e unencumbered access to their land over which CNG/Filling Stations are located, a bare perusal of Easements Act, 1887 reveals that the petitioners have to first establish the use of their land for the purpose of CNG Stations for at least 60 years.
12. Who may acquire easements . An easement may be acquired by the owner of the immoveable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.
15. Acquisition by prescription . Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person' s land or things affixed thereto has been peaceably received by another person' s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air , support or other easement shall be absolute.
Explanation I.-Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation IV .- ............
When the property over which a right is claimed under this section belongs to the Government, this section shall be read as if, for the words "twenty years" the words "sixty years" were substituted.
Limitation Act, 1908
26. Acquisition of right toeasements .___(1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse, or the use of any water , or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption, and for twenty years , the right to such access and use of light or air, way, watercourse, use of water , or other easement shall be absolute and indefeasible.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates contested.
(2) Where the property over which a right is claimed under sub-section (1) belongs to the Government that sub- section shall be read as if for the words "twenty years" the words "sixty years" were substituted.
31. There is nothing on record to reflect that the Petitioners have been running their CNG/Filling Stations for a period of 60 years. Determination of such factual questions is, anyway , reserved for the Civil Court, where the petitioners shall have the right to produce evidence and witnesses, record depo sitions, request discoveries and interrogatories and local commissions with near impunity and rely on all procedures and processes associated with a regular civil suit.
32. Also, the petitioners were granted No Objection Certificates by the National Highway Authority upon their undertaking, specifically agreeing to the payment of Approach Rental Charges and hence, the previous use of National Highway Authority roads to access amenities and CNG Stations cannot be considered to have bestowed any right of easement upon the Petitioners in view of Explanation I of Section 15 above.
33. In (2021 SCMR 624) "Province of Punjab through Secret ary Communication and Works Department, Lahore v. Yasir Majeed Sheikh" while adjudicating upon the assertion of easement rights for the properties adjacent to Punjab Provincial Highway it was held that: 6... In these circumstances, existence of right of easement in respect of the respondent is a question of fact, which needs to be decided after recording of evidence and the same could not have been done in the constitutional jurisdiction. Extraordinary writ jurisdiction in such like situations, which is based upon factual propositions, should not be exercised mere on the apprehension of the party . The jurisdiction conferred on the High Courts under Article 199 of the Constitution is an extraordinary relief and the same has to be exerci sed in aid of justice and not to interfere in jurisdictions of other statutory forums unless it is shown that order , action or inaction is in violation of any provision of law or without lawful authority or jurisdiction. When the law has provided an adequate remedy , constitutional jurisdiction under Article 199 of the Constitution cannot be exercised as the same has to be exercised in exceptional circumstances, which could justify invoking the said jurisdiction. It has time and again been said by this Court that propensity to bypass remedy provided under relevant statue by resorting to constitutional jurisdiction is to be discouraged so that legislative intent is not defeated. The same is meant to be exercised in extraordinary circumstances and not in run of the mill cases. Therefore, we are compelled to observe that the very constitution petition was not maintainable as disput ed question of facts were involved, which cannot be decided unless evidence is recorded to that effect. Learned counsel for the respondent has cited certain judgments but those are squarely distinguishable on the facts and law , therefore, of no avail to the respondent in any manner .
34. It is also apparent that right of easement is acquired by and available to the owner or possessor of the property for routine access to his land. In this case both Rules, 1998 and SOPs are aimed at regulating Commercial use of Right of W ay.
VI. ENHANCEMENT IN RA TE OF RIGHT OF W AY
35. Approach Rental Charges were first levied through Regulatory Framework and Standard Operating Procedures for Preservation and Commercial Use of Right of Way, (ROW) - 2002. First amendment in the rates was made in September 2005 and last enhancement was effected in 2009. The National Highway Authority contends that the rates imposed in 2009 (by the Executive Board on 19.01.2009) continue till date and no further enhancement has been made.
36. The said enhancement made in the year 2009 was thoroughly probed in the judgment reported as (2016 CLC Notes 15) "Irshad Noor CNG Station through Proprietor v. National Highway Auth ority Islamabad and others through Chairman " when the criteria used by National Highway Authority for the said enhancement was evaluated. (Paragraph 21 of the Judgment): 15.3. Background. The Executive Board, in its 164th meeting held on December 5, 2008 considered a proposal seeking introduction of recessing/registra tion fee on commercial outlets and revision of approach/rental charges on/along National Highway Authority's Right of W ay on national highway network but directed: a. Submission of a fresh comprehensive proposal after detailed in house deliberations. b. Suggested fee/charges should be proportionate to importance/size of the area but not less than that given below:- Sr.No. Category Rs. in M i. Rural arrears 0.50 Urban Areas ii. Minor cities 1.00 iii. Major cities including motorway link roads2.00 15.4. Re-evaluation. Differentiation of rates on the basis of urban/rural area is not feasible as volume of traffic on different roads sections does not vary on this principle. As such, rates should be asked on traffic volume/other considerations.
15.5. Basis of Rationalization. a. Tremendous increase in CPI since 2005. b. Traffic volume/commuters on roads has increased manifold, thereby enha ncing business activities of all commercial outlets located on National Highway Authority network. c. No Objection Certificate/commercial fees charged by organizations such as CDA/LDA kept in perspective.
15.6. Criteria Followed. a. CPI taken from the Economic Survey of Pakistan for 2007-08. b. Traffic Volume considered instead of area based categorization.
15.7. Formula. The following formula was applied while taking 2005 as the base year:- Formula T = T x (1 x 1 )/1 l Last CPI/inflation value available prior to toll revision viz 155.74 for FY 2007-08 l Last RPI/CPI inflation value available prior to setting the base year viz 121.98 for FY 2004-05 T Current rate T Revised rate CPI Consumer Price Index RPI Retail Price Index 15.8. Revised Fee While keeping the minimum threshold given in Para 15.3 in view, revised processing/registration fee and approach/rental charges on different categories of commercial outlets such as filling/CNC station, hotels, motels, restaurants, kiosks, khokhas, etc, and other Right of Way related activities were suggested. Details are in Annex-G to X.
15.9. Guiding Principle. Following principle was approved suggesting the revised fees/rental structure: a. Minimum charge rate fixed for traf fic volume 5000 vehicles per day (vpd). b. Minimum charge rate fixed for traf fic ranging 5001-10000 vpd. c. Application of premium on 'b' above at the following rate for higher ranges of traf fic volume:- Sr.No. V ehicles Per Day Premium i. 10001-14000 10% ii. 14001-20000 30% iii. 20001-25000 45% iv. 25001-30000 60% v. 30001-45000 75% vi. 45001 and above 100% 15.10 Other Conditions a. No Objection Certificate/commercial registration fee (non-refundable would be applicable on all legally executed letter GoP/National Highway Authority land since the year 2002. b. All other fees/revised rates will be applicable January 1, 2009. c. Approach rental charges for motorways expressways will be as per concession agreement. d. All No Objection Certificate/registration fees would be non-refundable: e. All cash security deposits would be refundable. f. The responsibility for collection of approach/rental charges would be outsourced through a transport competitive mechanism. g. Anomalies in application of new fees/revised rates if any, will be identified and brought to the notice of Executive Board with suggested corrective action.
From the above it is clear that the power to enhance rent rate/charges has not been exercised arbitrarily . It is also clear from the above that under the law/rules the authority to revise the rent rates/charges solely rests with the National Highway Authority and the petitioners are not required to be heard before raising the rent rates/charges.x xo x xo xo x xo xo x
37. The existing rates have already been approved by this court and there has not been any further enhancement, hence, the Petitioners? grievance regarding unjustified enhancement is unfounded.
VII. RULES, 1998 ONLY MENTION FEE & NOT CHARGES, HENCE CHARGES CAN NOT BE LEVIED THROUGH SOPs: Section 10(2)(viii) of the Act, 1991, which was considered as the foundational basis for National Highway Authority to levy Approach Rental Charges in the earlier judgments reads as under:
10. The Powers of the Authority:
(2) Without prejudice to the generality of the powers conferred by Sub-section(1), the Authority may for the purpose of carrying out the purpose of this Act ---
(viii) License facilities on roads under its control on such terms as it deems fit; Rule-8 allows the levy of fee in case of access through National Highway Authority Road/Right of Way to CNG Stations built out of such roads/Right of W ay.
Rule-8 (2) The applicant shall furnish to the Authority such plans, other relevant documentation and fees as it may require in this behalf as prescribed under National Highway Authority regulatory framework and SOPs for preservation and commercial use of Right Of W ay.
SOPs define Approach Rental Charges in Clause 1(iv) of Chapter-II
(iv) "Approach Rental Charges " means the charges prescribed by the authority for use of National Highway Authority land for approaches to filling/CNG station, structures and other amenities established out of National Highway Authority Right of W ay (ROW).
The term Charge is defined as: "Charge" Charge is a price required or demanded for services rendered....
(The Law Lexicon 2nd Edition)
"Charge".
An encumbrance, lien or claim ..... cost or expense..."
(Black' s Law Dictionary)
Fee has been repeatedly held to mean payment against a service rendered by the Government.
(PLD 2020 SC 641 ) "Khurshid Soap Factory v . Federation"
There were two kinds of fee-imposing legislative enactments. One was based purely on the principle of quid pro quo i.e. a charge was payable for rendering a specific service or extending a specific privilege which the payers could avail subject to the conditions that may be attached to it. In other words, it could be called as fee- simplicitor'.
It was also argued that in Section 3(1) of the GIDC Act, 2015 the terms 'levied' and 'charged' are used which demonstrate that it is a tax imposing enactment and not 'fee'. ......When the terms like 'levy' or 'charge' are used in any revenue raising enactment, it does not mean that it cannot be a fee imposing enactment. ......... In any case the terms 'levied' or 'charged' mean 'to impose by legal authority'. Whether tax is being imposed or a fee, it entirely depends upon the object of the legislation and has nothing to do with the use of such terms.
Even in Article 279 of the Constitution the term 'levied' is used for tax as well as for fee imposing legislations. So mere use of terms like 'levied' or 'charged' cannot be made basis to describe a law as tax imposing enactment. As the GIDC Act, 2015 contains a well-defined object meant for making future availability of natural gas more convenient and without interruption that would mainly benefit the industrial and commercial consumers which the appellants, the petitioners and the interveners undeniably are, therefore, in pith and substance the GIDC Act, 2015 is a fee-imposing enactment and use of terms like 'levied' or 'charged' would not change the object with which it was legislated.
(2013 PTD 969 ) "M/s Shahbaz Garments (Pvt.) L TD. and others Vs. Federation of Pakistan"
14..... A fee can be regarded as a charge or payment for a service rendered by the Government to its payer . If one wants to utilize service available with the Government against a charge of money then upon its utilization whatever is required to be paid is a "fee".
(1990 CLC 638) "Sind Glass Industries Ltd v . Chief Controller" "fee is a charge which is levied for rendering service..."
38. The word "fee" as mentioned in Rules , 1998 is against service i.e. maintenance of the roads and Right of Way which is used for access to CNG Stations and other amenities, the levy and current quantum of which is already adjudicated. From the above judgments, it is obvious that both as a verb or noun , fee is synonymous to charges.
There is no distinctive feature of "Charges" contended by the Petitioners. A fee is "charged" (as a verb) and is a charge (as a noun). The underlying purpose of the Rules, 1998 was to charge fee for the provision of service i.e maintenance of National Highway Authority Road. Fee translates into "charges" in SOPs and still does not lose its validity for imposition especially when the "Approach Rental Charges" are levied for a purpose which is clearly mentioned in Rule-8 i.e. use of National Highway Authority Roads/Right of Way for accessing CNG Stations and amenities built on private land.
RATIONALE
39. Before concluding it must be mentioned here that Section 10(ii)(viii) of the National Highway Authority Act 1991 confers wide discretion on the National Highway Authority as does Rule 8(iii) of the Rules 1998. The National Highway Authority has been statutorily permitted and allowed to decide the terms as it deems fit' and `to determine conditions as it may deems fit' or `on payment of such fee as it may fix'. To state that subjective discretion as opposed to structured and objective discretion has been allowed to the National Highway Authority in the present context would be an understatement. However , at the same time it is trite that unstructured, unfettered or no-holds barred discretion is legal anathema and belongs to the past having been burried in the now famous case of Padfield (1968 AC 997). Moreover , power always has limits, which the courts delineate and enforce. Un-structured discretion is, therefore, an unauthorized gloss and no adjective can take away the power of judicial review in ensuring structuring of discretion. As has been aptly noted in Bancoult (2001 QBD 1067), "widely worded discretion is like a very large tapestry , but every tapestry has a border".
40. Therefore, while greater latitude confe rred by Parliament must be respected, it is unimaginable to allow it to be ousted from the purview of the judicial review. It must be remembered that in case of greater statutory latitude, a higher threshold of judicial review based on doctrines of restraint, deference, mutual respect and the forbidden substitutionary approach is adopted and employed which is akin to the red hair teacher type of review? i.e. where a woman is asked to resign only because of the colour of her hair or where the decision is outrageous in its defiance of logic, unreasonable in the wednesbury sense or perverse. In considering whether a public body has abused its powers the courts must not abuse theirs. What else with the underlying as also the over-arching aim of judicial review being to uphold and implement the intent of the Parliament as contained in a statute.
41. As Lord Hoffmann has aptly remarked in the case of Prolife Alliance 2004 1(AC) 185, " the court themselves often have to decide the limits of their own decision making power . But it does not mean that their allocation of decision making power to the other branches of Government is a matter of courtesy or deference. The principles upon which decision making powers are allocated are principles of law. Hence, when a court decides that a decision is within the proper competence of the executive it is deciding the law".
42. Just as in the present matter before this court, where determination is entrusted to the primary decision maker i.e. the National Highway Authority , this court through the medium of judicial review cannot take away from the Authority the power and discretion proper ly vested in it by law and substitute its own opinion. Where the existence or determination of a fact is left to the judgment and discretion of a public body and such determination involves analyzing the obvious as also the debatable, it is the duty of the court to leave such a decision to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that the public body is acting perversely .
43. In Secretary of State vs. Tameside? (1977 AC 1014) it has been held that, "the very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinio n as to which is to be preferred". In such a case an exercise of discretion can only be challenged in a strictly limited context and on very narrow grounds.
44. The decision of the Executive Board of the National Highway Authority taken in its 326th meeting on 17.10.2019 stemming out of wide discretion and power conferred by the parent statute can only therefore be susceptible to interference if the same suffers from illegality or perversity of approach, absolute irrationality of reasoning or if the same is absolutely discriminatory or disproportionate. In the opinion of this court, but for the limited aspect highlighted in paragraphs 21, 23 and 45 of this judgment, the decision dated 17.10.2019 is quite right and therefore justified.
45. In view of what has been discussed above the only question that now remains to be answered at the end of the National Highway Authority Executive Board is the one noted and highlighted at paragraphs 21, 23 and 45 of this judgment. To reiterate, what needs to be determined in each case on an individual basis is whether the petitioners are still using National Highway Authority Land to access their CNG Stations or whether roads leading access to CNG/Filling Stations and amenities of the petitioners are or are not located on National Highway Authority roads.
46. For the said purpose, the Executive Board of the National Highway Authority shall advert to each and every case individually , of course, after calling each of the petitioners for hearing and determine the issue. This exercise shall be completed within forty days from today and it is expected that before making such determination coercive measures shall not be employed.
47. All petitions are decided in the above terms.