ORDER :

L. Nageswara Rao, J.

I.A. No…………………of 2016 which is an application for exemption from filing certified copy of judgment dated 26.10.2016 passed by the High Court of Judicature at Allahabad in Public Interest Litigation (PIL) No. 60214 of 2012 is allowed.

2. Issue notice. Respondent Nos. 1, 2, and 9 are represented by Mr. Sanjay Hegde, learned Senior Advocate, Mr. Ranjit Saxena, Advocate and Mr. K.K. Venugopal, learned Senior Advocate respectively. Notice shall now go to the remaining Respondents only.

3. Federation of NOIDA Residents Welfare Association & Ors., Respondent No.1 herein, filed PIL No.60214 of 2012 in the High Court of Judicature at Allahabad for a declaration that collection of toll fee should be stopped on the DND Flyover between New Delhi and NOIDA.

4. A Concession Agreement (hereinafter referred to as “the Agreement”) was entered into between the Petitioner, NOIDA (Respondent No.2) and IL & FS Ltd. (Respondent No.9) on 12.11.1997 for development of infrastructure facility of a bridge and an access road. The Project was conceived on Build-Operate-Transfer (BOT) basis. The 9th Respondent IL & FS had to arrange the investment for the Project which could be recovered by levy of toll from the users of the road and the Project.

5. As the main dispute in the PIL filed in the High Court revolves around the recovery of the Project Cost by the proponent, it is essential to refer to some important provisions of the Agreement. Section 2.3 refers to the concession period which is as follows:-

“Section 2.3 Concession Period

(a) The Concession Period shall commence on the Effective Date and shall extend until the earlier of:

(i) A period of 30 years from the Effective Date; or

(ii) The date on which the concessionaire shall recover the Total Cost of Project and the Returns as determined by the Independent Engineer and Independent Auditor in accordance with Section 14 thereon through (a) the demand, collection, retention and Appropriation of Fee,

(b) the receipt, retention and appropriation of Development Income, or

(c) any other method as determined by the Parties.

(d) Upon the termination of the Concession Period, the Concessionaire shall transfer the Project Assets to NOIDA in accordance with the terms of Article 19.”

6. It is relevant to refer to the definition of ‘Effective Date’ which means the earlier of (a) the date of issuance of Certificate of Compliance or (b) the date of issuance of Certificate of Commencement. Article 19 provides that NOIDA will continue the operations of the DND project either directly or by its nominated agency from the ‘Transfer Date’ which is the day immediately following the last day of the concession period, including any extension thereto or earlier termination thereon in accordance with the terms of the Agreement.

7. Fixation and calculation of the fee is dealt with in Section 13. As per Section 14.1, the Total Cost of the Project shall be the aggregate of (i) Project Cost, (ii) Major Maintenance Expenses & (iii) Shortfalls in the recovery of returns in a specific financial year as per the formula in Section 14.2 (a).

8. Section 14.2 contemplates that recovery of the Total Cost of the Project and Returns therefrom shall be as illustrated in Annexure F. The calculation of the Returns shall be made at annual intervals from the effective date in the following manner:-

“Start with: Gross revenue from fee collections, income from advertising and Development income.

Less: O & M expenses

Less: Taxes (excluding any customs and import duties).”

9. “Returns” is defined in the Agreement as the returns on the Total Cost of Project recoverable by the Concessionaire from the effective date at the rate of 20 per cent per annum as per Section 14.2 of the Agreement.

10. Respondent No. 1 contended in the writ petition that the Total Cost of the DND Flyover Project was approximately Rs. 408.17 Crores and the cumulative toll income from the years 2001 to 2014 was Rs. 803.524 Crores. As on 31.03.2014 the cumulative net pr