IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 27TH DAY OF MAY 2022 / 6TH JYAISHTA, 1944
WP(C) NO. 15991 OF 2022
PETITIONERS:
1 M/S THRISSUR EXPRESSWAY LIMITED,
HAVING ITS REGISTERED OFFICE AT
#1-80/40/SP/58-65, SHILPA HOMES LAYOUT,
GACHIBOWLI, HYDERABAD -500 032.
ALSO AT:
TOLL PLAZA BUILDING,
PANNIYANKARA TOLL PLAZA,
VADAKKENCHERRY (PO), PALAKKAD 678683.
REPRESENTED BY ITS AUTHORIZED SIGNATORY
MR.NIRANJAN REDDY,
AGED 51 YEARS, S/O RAJASHEKARA REDDY.
2 M/S MARKOLINES INFRA PRIVATE LIMITED,
HAVING ITS REGISTERED OFFICE AT
6TH FLOOR, WING-A,
SHREE NAND DHAM, SECTOR 11, CBD BELAPUR,
NAVI MUMBAI- 400614.
ALSO AT:
TOLL PLAZA BUILDING,
PANNIYANKARA TOLL PLAZA,
VADAKKENCHERRY (PO),
PALAKKAD 678683.
REPRESENTED BY ITS AUTHORIZED SIGNATORY,
MR.MUKUNDAN MANNIMMAL,
AGED 51 YEARS, S/O NARAYANAN NAIR
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.THOMAS P.KURUVILLA
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.R.GITHESH
SRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SRI.SACHIN JACOB AMBAT
SMT.ANNA LINDA V.J
SRI.HARIKRISHNAN S.
WP(C) NO. 15991 OF 2022 2
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695001.
2 UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF ROAD TRANSPORT AND HIGHWAYS,
TRANSPORT BHAWAN,
NEW DELHI - 110001
3 THE NATIONAL HIGHWAY AUTHORITY OF INDIA,
REPRESENTED BY ITS DEPUTY GENERAL MANAGER
& PROJECT DIRECTOR,
PROJECT IMPLEMENTATION UNIT,
NO: 310A, CHANDRA NAGAR EXTENSION,
PALAKKAD, PIN - 678007
4 THE SECRETARY,
HOME DEPARTMENT,
GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
5 THE TRANSPORT COMMISSIONER,
TRANSPORT COMMISSIONERATE
2ND FLOOR, TRANS TOWERS,
VAZHUTHACAUD, THYCAUD P.O.,
THIRUVANANTHAPURAM, PIN - 695014
6 THE DISTRICT COLLECTOR
PALAKKAD, COLLECTORATE,
KENATHUPARAMBU, KUNATHURMEDU,
PALAKKAD, PIN - 678013
7 THE STATE POLICE CHIEF,
STATE POLICE HEADQUARTERS,
VAZHUTHAKKAD,
THIRUVANANTHAPURAM, PIN - 695010
8 THE DISTRICT POLICE CHIEF,
PALAKKAD, YAKKARA ROAD,
NEAR KSRTC BUS STAND,
PALAKKAD, PIN - 678014
WP(C) NO. 15991 OF 2022 3
9 THE STATION HOUSE OFFICER,
VADAKENCHERRY POLICE STATION,
VADAKENCHERRY PO,
PALAKKAD, PIN - 678683
10 THE REGIONAL TRANSPORT OFFICER (THRISSUR),
CIVIL STATION,
AYYANTHOLE P.O.,
THRISSUR, PIN - 680003
11 THE REGIONAL TRANSPORT OFFICER (PALAKKAD),
KENATHUPARAMBU, KUNATHURMEDU,
PALAKKAD, PIN - 678013
12 SMT. RAMYA HARIDAS,
AGED AROUND 36 YEARS
MEMBER OF PARLIAMENT,
D/O. HARI DASAN, RESIDING AT 16/119,
SABARMATI, MAIN ROAD, ALATHUR P.O.,
PALAKKAD, PIN - 678541
13 KERALA STATE PRIVATE BUS OPERATORS
CO-ORDINATION COMMITTEE,
34/470, 1ST FLOOR,
TRAVELERS TOWER, SAKTHAN STAND,
THRISSUR, PIN - 680651
REPRESENTED BY ITS GENERAL SECRETARY
14 BUS OPERATORS ORAGNIZATION,
STADIUM BUS STAND, SELVAPALAYAM,
PALAKKAD, PIN - 678001
REPRESENTED BY ITS GENERAL SECRETARY
15 ALL KERALA BUS OPERATORS ORGANIZATION,
BUS BHAVAN, COIMBATORE ROAD, PALAKKAD,
REPRESENTED BY ITS GENERAL SECRETARY
*ADDITIONAL RESPONDENTS 16 & 17 IMPLEADED
ADDL.R16 SHAJI K.KODANKANDATH,
AGED 52 YEARS, S/O.JOSE KODANKANDATH,
KODANKANDATH HOUSE, PEECHI, THRISSUR
ADDL.R17 KERALA TAURUS TIPPER ASSOCIATION,
THRISSUR - DISTRICT COMMITTEE,
7/157/2 UDAYANAGAR, P.O. EAST FORT,
WP(C) NO. 15991 OF 2022 4
THRISSUR 680005.
REPRESENTED BY ITS SECRETARY JAISON C.P.,
AGED 47 YEARS, S/O.POLUOSE
*ADDL.R16 & R17 ARE IMPLEADED AS PER ORDER DATED
27.05.2022 IN I.A.NO. 1 OF 2022
BY ADVS.
SRI.B.S.SYAMANTHAK, GOVT. PLEADER
SRI.S.MANU,ASGI
SRI.B.G.BIDAN CHANDRAN
SRI.R.K.MURALEEDHARAN
SRI.P.DEEPAK
SRI.K.V.GOPINATHAN NAIR
SRI.K.B.GANGESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 15991 OF 2022 5
T.R. RAVI, J.
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W. P. (C). No. 15991 of 2022
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Dated this the 27th day of May, 2022
JUDGMENT
The petitioners have approached this Court seeking a direction to the respondents 7 to 9 to afford necessary and sufficient Police protection to the petitioners and their employees at the Panniyankara toll plaza at Vadakkancherry to collect user fee/toll fees from the users of the project highway in accordance with law and in particular from the private buses plying through the said route without any let, hindrance or obstruction from members of respondents 13 to 15 and their men and agents. Respondents 13 to 15 are the organizations and co-ordination committee representing bus operators.
2. Heard Sri S.Sreekumar, Senior Advocate, instructed by Sri P.Martin Jose, on behalf of the petitioners, Sri B.S.Syamanthak, Government Pleader on behalf of respondents 1 and 4 to 11, Sri S. Manu, ASGI, on behalf of the 2nd respondent, Sri B.G.Bidan Chandran, learned Standing Counsel for NHAI on behalf of the 3 rd respondent, Sri R.K.Muraleedharan, on behalf of the 12th respondent, Sri P.Deepak, on behalf of the 13th respondent, Sri WP(C) NO. 15991 OF 2022 6 K.V.Gopinathan Nair, on behalf of respondents 14 and 15 and Sri K.B.Gangesh on behalf of additional respondents 16 & 17.
3. The petitioners, on the basis of Ext.P1 concession agreement with the 3rd respondent, carried out the work relating to the laying of six lane National Highway 47 on Build Operate and Transfer (BOT) basis. Ext.P1 is the concession agreement executed in 2009. The work was started only in 2012 and the major portion of the work is stated to have been completed. One of the major components was the construction of the twin tunnels in the Kuthiran Hills, which according to the petitioners, consumed lot of time. After completion of more than 90% of the project, petitioners submit that they have become entitled to collect toll fees from the users of the project highway. For the above said purpose, they constructed a toll plaza at Panniyankara as provided under the Concession Agreement. On 04.03.2022, the 3rd respondent intimated the District Collectors of Thrissur and Palakkad Districts about the commencement of user fee collection at Panniyankara toll plaza with effect from 00.00 hours on 09.03.2022 and requested the District Collectors to render necessary support and co-operation and to provide necessary Police assistance for smooth commencement and to avoid untoward incidents during the user fee collection. The 3 rd respondent on WP(C) NO. 15991 OF 2022 7 05.03.2022 intimated the Independent Engineer M/s ICT Private Limited about the toll charges approved by the NHAI. The Independent Engineer on 09.03.2022 issued a provisional certificate declaring that the project highway is fit for entry into commercial operation at 00.00 hours on 09.03.2022. Thereafter, the 1 st petitioner commenced collection of the toll fee. The 2 nd petitioner is the agent appointed by the 1st petitioner for collection of fee.
4. There were serious objections to the collection of toll fee and the petitioners submit that the local buses, KSRTC buses, passenger cars, tippers etc. refused to pay the user fee and started manhandling the staff and even forcibly removed the barricades. On 11.03.2022, the 1st petitioner submitted Ext.P8 complaint before the 9th respondent. On 17.03.2022, the 3 rd respondent wrote to the 8 th respondent about the above incidents and pointed out that such violations will cause financial loss to the concessionaire and requested to depute necessary Police force to maintain law and order. The petitioners have produced Exts.P14, P17, P18, P20, P22 and P23 complaints which had been placed before the Police authorities for affording necessary and efficient protection. It is submitted that no action was taken by the Police. The petitioners submit that even now the private bus operators are continuing to ply WP(C) NO. 15991 OF 2022 8 through the project highway without paying the user fee and without installing FASTags by forcibly opening the boom barriers and by threatening the staff of the petitioners.
5. The contesting respondents have entered appearance through counsel. Counter affidavits have been filed on behalf of respondents 13 and 15. The main contention raised on behalf of the respondents is that the petitioners have not followed the procedure laid down by law for the purpose of starting the toll collection and as such the entire actions is bad and unauthorized. It is hence submitted that since the Police protection is a discretionary remedy, this Court is not expected to help persons who are attempting to make unauthorized collections. Reference is made to Ext.R13(a) notification dated 12.01.2011, whereby sub-rule (3A) was included in Rule 9 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 (hereinafter referred to as the 2008 Rules). Sub-rule (3A) says about the discount available to persons who own commercial vehicles registered with address on the registration certificate of a particular district, while using the highway, in terms of toll payable. It is submitted that as per the Rule, it is required that there is a proper publication of all the details of the fee in the prescribed format including details of discounts. Referring to WP(C) NO. 15991 OF 2022 9 Ext.R13(c) publication made by the petitioner, it is submitted that the publication is not in accordance with the Rules and does not contain the required details. It is specifically stated that the discount available as per Rule 9 (3A) has not even been mentioned. It is also submitted that even though the publication relates to collection of toll fee from 09.03.2022, it was followed by another decision which has been produced by the petitioner as Ext.P13 which shows that there has been a revision of the fee by 10% and more in all the categories. Ext.P13 would show that it is an approval granted by the 3rd respondent to the Independent Engineer for collection of "revised user fee" at Panniyankara toll plaza. The counsel for the respondents pointed out that as per Rule 5 of the 2008 Rules, which has been produced as Ext.P3, an annual revision is permitted with effect from 1st day of April every year. But no such revision can be made within six months of the initial fixation of the fee. It is pointed out that after fixing the fee initially on 09.03.2022, there could not have been a revision on 30.03.2022. It is contended that what is sought to be demanded as fee is the revised rate for which the petitioners are not legally entitled to. Reference is made to Article 27 of Ext.P1 agreement which says that there cannot be a revision within six months. The counsel for the 15 th respondent referred to WP(C) NO. 15991 OF 2022 10 the averments in the counter affidavit and submitted that there was an attempt for conciliation and the issue is before the 1 st respondent who is yet to arrive at a plausible solution. It is submitted that it would not be possible for the bus operators to operate on such huge fee particularly since many of the buses are taking multiple trips during a day and will be forced to take at least 4 monthly passes for each bus which would come to more than ₹40,000/-.
6. The counsel for the petitioners and the NHAI submit that the remedy for the grievances which have been voiced by the contesting respondents is not to take law into their hands and damage public property. It is pointed out that there is no challenge to the notification as on date or to the fixation of the fee in a manner known to law.
7. I have considered the relevant rules, the pleadings, the documents produced as well as the arguments advanced by the counsel on either sides. There can be no challenge to a policy whereby public works are undertaken on BOT basis. When such works are undertaken in BOT basis, necessarily the concessionaire should be allowed to the benefit of collecting user fee which alone is the manner in which he can recoup the expenses that have been met by him for providing a public benefit. As long as the State is WP(C) NO. 15991 OF 2022 11 not paying such expenses and is continuing to entrust such work on BOT basis, the State also has a duty to ensure that such concessionaires are allowed to collect the fee which is fixed in accordance with law. Hence the State Government is bound to provide necessary Police protection to the petitioners for collection of such fee. No person can be allowed to take law into their hands and destroy public property or create obstruction for collection of fee which the petitioners are entitled to.
8. Be that as it may, the question still remains whether the petitioners can be allowed to collect the fee at the revised rate. The counsel for the petitioners submitted that Ext.P1 is an agreement between the petitioners and 3rd respondent and contesting respondents cannot take advantage of the matters contained in the agreement since they are not parties to the agreement and the contents of the agreement cannot have effect of statutory Rules. The counsel appearing for the contesting respondents submitted that though Ext.P1 is an agreement, it has gained a statutory force when Ext.P4 order came into existence wherein also it is specifically stated that there can be no revision within 6 months. The petitioners do not have a case that on 09.03.2022 the rates were not published. As such, what was published on 09.03.2022 can only be the initial WP(C) NO. 15991 OF 2022 12 fixation and any increase on the said fee can only be treated as a revision. It is true that the hike that has been made is not in consonance with the 3% hike which is provided for in Rule 5 of Ext.P3 Rules. That does not however make it any the less a revision. In view of the above discussion, the writ petition is disposed of with the following directions:
(i) Respondents 7 to 9 are directed to afford necessary and sufficient Police protection to the petitioners and their employees at the Panniyankara toll plaza at Vadakkancherry to collect user fee/toll fees from the users of the project highway in accordance with law and in terms of Ext.P6 rates from the users of the project highway and in particular from the private buses plying through the said route without any let, hindrance or obstruction from the members of respondents 13 to 15 and their men and agents.
(ii) The petitioners will not be entitled to charge the revised fee stated in Ext.P13 unless such revision is made in accordance with the rules.
(iii) This order will not in any way affect any attempt for conciliation of the issue at the instance of the 1 st WP(C) NO. 15991 OF 2022 13 respondent to arrive at a plausible solution to the grievances put forward by respondents 13 to 15.
(iv) There will be a direction to the respondents 5, 10 and 11 to ensure that the private buses plying through the project highway and passing through the Panniyankara Toll plaza are fitted with FASTags so as to ensure that there is no further dispute. The above direction is made only for the reason that failure to have FASTags will result in payment of higher fee.
(v) This judgment will not in any way affect the amounts that have been collected prior to this judgment.
Sd/-
T.R. RAVI JUDGE Pn WP(C) NO. 15991 OF 2022 14 APPENDIX OF WP(C) 15991/2022 PETITIONERS' EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT PORTIONS OF THE CONCESSION AGREEMENT DATED 24-8-2009 EXECUTED BETWEEN THE 1ST PETITIONER AND THE 3RD RESPONDENT Exhibit P2 TRUE COPY OF RELEVANT PORTION OF STATE SUPPORT AGREEMENT DATED NIL ENTERED BETWEEN THE 1ST RESPONDENT WITH THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF RELEVANT PORTION OF NATIONAL HIGHWAYS FEE (DETERMINATION OF RATES AND COLLECTION) RULES, 2008 Exhibit P4 TRUE COPY OF NOTIFICATION NO: SO 1462(E) DATED 6-6-2013 Exhibit P5 TRUE COPY OF LETTER DATED 4-3-2022 OF THE 3RD RESPONDENT ADDRESSED TO THE DISTRICT COLLECTORS, OF THRISSUR AND PALAKKAD DISTRICTS.
Exhibit P6 TRUE COPY OF LETTER DATED 5-3-2022 OF THE 3RD RESPONDENT ADDRESSED TO THE INDEPENDENT ENGINEER, M/S.ICT PRIVATE LIMITED Exhibit P7 TRUE COPY OF PROVISIONAL CERTIFICATE ISSUED BY THE INDEPENDENT ENGINEER, M/S ICT PRIVATE LIMITED, ON 08-03-2022 Exhibit P8 TRUE COPY OF LETTER DATED 11-3-2022 OF THE 1ST PETITIONER TO THE 9TH RESPONDENT Exhibit P9 TRUE COPY OF LETTER DATED 17-3-2022 OF THE 3RD RESPONDENT TO THE 8TH RESPONDENT Exhibit P10 TRUE COPY OF LETTER DATED 17-3-2022 OF THE 3RD RESPONDENT TO THE 6TH RESPONDENT WP(C) NO. 15991 OF 2022 15 Exhibit P11 TRUE COPY OF LETTER DATED 17-3-2022 WROTE BY THE 1ST PETITIONER TO THE 9TH RESPONDENT Exhibit P12 TRUE COPY OF 1ST PETITIONER'S LETTER DATED 29-3-2022 TO THE 3RD RESPONDENT Exhibit P13 TRUE COPY OF LETTER DATED 30-3-2022 ISSUED BY THE 3RD RESPONDENT ADDRESSED TO THE INDEPENDENT ENGINEER, M/S ICT PRIVATE LIMITED Exhibit P14 TRUE COPY OF REPRESENTATION DATED 10.4.2022 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 9TH RESPONDENT Exhibit P15 TRUE COPY OF 1ST PETITIONER'S REPRESENTATION SUBMITTED THROUGH EMAIL ON 4-5-2022 BEFORE THE 7TH RESPONDENT Exhibit P16 TRUE COPY OF THE 1ST PETITIONER'S REPRESENTATION SUBMITTED THROUGH EMAIL ON 4-5-2022 BEFORE THE 8TH RESPONDENT Exhibit P17 TRUE COPY OF 1ST PETITIONER'S REPRESENTATION SUBMITTED THROUGH EMAIL ON 4-5-2022 BEFORE THE 9TH RESPONDENT Exhibit P18 TRUE COPY OF LETTER DATED 4-5-2022 OF THE 1ST PETITIONER ADDRESSED TO THE 6TH RESPONDENT Exhibit P19 TRUE COPY OF COMPLAINT SUBMITTED BY THE 1ST PETITIONER ADDRESSED TO THE 5TH RESPONDENT DATED 4-5-2022 Exhibit P20 TRUE COPY OF COMPLAINT SUBMITTED BY THE 2ND PETITIONER TO THE 9TH RESPONDENT DATED 4-5-2022 Exhibit P21 TRUE COPY OF LETTER DATED 5-5-2022 OF THE 1ST PETITIONER TO THE 1ST RESPONDENT, CHIEF SECRETARY WP(C) NO. 15991 OF 2022 16 Exhibit P22 TRUE COPY OF COMPLAINT DATED 5-5-2022 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 9TH RESPONDENT Exhibit P23 TRUE COPY OF EMAIL DATED 9-5-2022 SENT BY THE 2ND PETITIONER TO THE 9TH RESPONDENT Exhibit P24 TRUE COPY OF PHOTOGRAPHS SHOWING FORCIBLE OPENING OF BOOM BARRIERS TO LET THE PRIVATE BUSES PLY WITHOUT PAYMENT OF TOLL CHARGES RESPONDENTS' EXHIBITS Exhibit R13(A) A TRUE COPY OF G.S.R. 15(E), DATED 12TH JANUARY, 2011 Exhibit R13(B) A TRUE COPY OF THE NHAI POLICY CIRCULAR NO. 11041/217/2007-ADMN DATED 21.08.2015 WITH COPIES OF THE APPROVED FORMATS.
Exhibit R 13(C) A TRUE COPY OF THE PUBLIC NOTICE PUBLISHED IN THE MATHRUBHUMI DAILY NOTIFYING COLLECTION OF USER FEE WITH EFFECT FROM 09.03.2022 Exhibit R15(A) A TRUE COPY OF THE AGREEMENT EXECUTED BY OPERATORS ASSOCIATION WITH THE COMPANY.
Exhibit R15(B) TRUE COPY OF THE RECEIPT REMITTED AT PALIYAKKARA TOLL PLAZA ON 18-2-2022.
Exhibit R15(C) TRUE COPY OF THE RECEIPT REMITTED AT PALIYAKKARA TOLL PLAZA ON 18-2-2022.
Exhibit R15(D) TRUE COPY OF THE RECEIPT REMITTED AT PALIYAKKARA TOLL PLAZA ON 18-2-2022.