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IN THE HIGH COURT OF JUDICATURE AT MADRAS
SANJAY KISHAN KAUL & T.S. SIVAGNANAM, JJ.
Govind Chandrasekhar – Petitioner
Versus
The Union of India, Represented by its Secretary & Others – Respondent
W.P. No. 11497 of 2014
Decided on : 26-06-2015
National Highway Fee (Determination of Rates and Collection) Rules, 2008 – Rules 3, 5, 11, 8 – National Highways Act, 1956 – Section 7 – Toll roads are an ancient concept. Aristotle in his writings mention use of tolls in many parts of Asia including India where tolls were levied as far back as the 4th century BC, tolls were used in the 14th and 15th centuries in the Holy Roman empire. – Some may wonder why we have to continue to pay for roads that are “already paid for.” – The simple truth is, roads are never paid for -they need a steady stream of funding to support ongoing maintenance that will keep them safe and drivable. – Toll roads are to ensure free flow of traffic, save commuters time, ensure safety, increase fuel economy etc. – Petitioner a practising Advocate of this Court by way of this Writ Petition filed as a public interest litigation seeks for issuance of a Writ of Mandamus, to forbear the respondents from collecting Toll Fee at its Toll Plaza at Paranur, Chengalpet alleging the establishment of the said toll plaza is illegal and the toll fee collected is exorbitant. – Held, Service road should have clear obstruction free approach, so that the public who are to reach the villages and towns along side the National Highway do not haphazardly come into the main stream. Barricading is essential not only to regulate the flow of traffic, but also to keep cattle at bay. – Court can take judicial notice of the fact that often slow moving vehicles and bullock cart use the National Highway/toll road without using the service road, since there is no proper barricading and there are encroachments in the service road. – Further as the National Highways/Toll Roads have designated places for crossing over either by construction of underpasses or providing of U turn facility invariably Motorist in the nearby villages and towns, use the National Highway by travelling in the opposite direction, so that they need not travel for a little distance to use the underpass or the U turn facility to move over to the opposite side. – This results in head on collusion between the vehicles and in most cases resulting in death of the passengers. – National Highways in co-ordination with the local Superintendent of Police and District Collector of the respective Districts should device ways and means to ensure that the National Highways/toll Road is clearly barricaded and the travelling public in the villages and towns near the National Highway are sensitized not to cross the National Highways except in places designated, as they are putting their life to peril. – The sensitisation programme should reach the commoner in the villages, who could only afford to buy slow moving vehicles such as mopeds or who may use bullock cart. An earnest endeavour should be made by the State as well as the NHAI to ensure not only the safety of the travelling public who use the toll road, but also to prevent accidents on account of persons crossing over the National Highway in other than places earmarked. – For such purpose well illuminated signboards containing word and pictorial warnings should be erected at conspicuous places where people including pedestrian often crossed the National Highways. – Court hope and trust the observations made are taken note of seriously and adequate steps be taken in this regard. – Writ Petition Dismissed
T.S. Sivagnanam, J.
1. Toll roads are an ancient concept. Aristotle in his writings mention use of tolls in many parts of Asia including India where tolls were levied as far back as the 4th century BC, tolls were used in the 14th and 15th centuries in the Holy Roman empire. Some may wonder why we have to continue to pay for roads that are “already paid for.” The simple truth is, roads are never paid for -they need a steady stream of funding to support ongoing maintenance that will keep them safe and drivable. Toll roads are to ensure free flow of traffic, save commuters time, ensure safety, increase fuel economy etc.
2. The petitioner a practising Advocate of this Court by way of this Writ Petition filed as a public interest litigation seeks for issuance of a Writ of Mandamus, to forbear the respondents from collecting Toll Fee at its Toll Plaza at Paranur, Chengalpet alleging the establishment of the said toll plaza is illegal and the toll fee collected is exorbitant.
3. The petitioner would state that the second respondent, National Highways Authority of India, (NHAI) entered into a contract with the fourth respondent on 31.05.2013, empowering the fourth respondent to collect toll fee from the subject toll plaza. The petitioner alleges that the demand made by the fourth respondent is in excess of the sum stipulated in the contract. The petitioner is said to have reached the Toll Plaza on 12.04.2014, on his way to Uthiramerur and was directed to pay a toll of Rs.55/- (return journey), when the notification displayed in the toll booth stated otherwise. The petitioner is said to have picked up a quarrel with the persons/authorities in the toll plaza and stated to have obtained a copy of the agreement entered into by the fourth respondent and by relying upon the same, he would state that the collection of toll by the fourth respondent is far in excess of the amount permitted and therefore illegal.
4. The petitioner contends that the establishment of the toll plaza at Paranur is illegal and contrary to Rule 8 of the National Highway Fee (Determination of Rates and Collection) Rules, 2008, having been established within a distance of 5kms from Chengalpet City. It is further contended that in terms of Rule 8(2), no toll plaza can be established in the same section within a distance of 60kms and therefore, the very establishment of the toll plaza being contrary to the Rules is illegal. Further, it is submitted that the collection of toll in the subject toll plaza is exorbitant and contrary to the approved rates. In this regard reference was made to the notification dated 16.05.2012 and the contract agreement, dated 30.05.2013 entered into between NHAI and the fourth respondent. Placing reliance on the order of the Hon'ble Supreme Court in the case of M. S.K. Projects (I)(JV) Ltd., vs. State of Rajasthan in Civil Appeal No.5416/2011, dated 21.07.2011, it is submitted by the learned counsel for the petitioner that while it is competent for the State to levy/collect toll fee, it cannot be a source of revenue for the State. Therefore, it is submitted that the very establishment of the toll plaza and the rates of toll collected is illegal and violative of Article 14 of the Constitution of India.
5. The learned Senior counsel appearing for the NHAI by referring to the affidavit filed by its Project Director submitted that the work of four laning had been completed under 'BOT (Annuity) category' for the stretch from Km 25.00 to Km 121.00 between the Tambaram and Tindivanam, was completed in the year 2004 and commercial operation commenced from 01.04.2005; the capital cost of the project was Rs.418.56 crores besides cost of supervision consultant, land acquisition and utility shifting cost at Rs.30.03 crores and the total cost of the project was Rs.448.59 crores. It is further submitted that NHAI has to pay annuity of Rs.1255.68 crores in 30 installments (twice in a year) to the BOT (Annuity) Concessionaire for a period of 15 years fro
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