M/S Thrissur Expressway Limited vs State Of Kerala
2022 Latest Caselaw 5648 Ker

               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.
                --------------------------------------------
                       W. P. (C). No. 15991 of 2022
                 --------------------------------------------
                   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

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

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

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

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

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

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

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

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

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

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

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.