Paras Saklecha vs The State Of Madhya Pradesh
2022 Latest Caselaw 5113 MP

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        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                                 &
       HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

                 WRIT PETITION No. 6312 of 2022

     Between:-
     PARAS SAKLECHA S/O SHRI SHANTILAL JI SAKLECHA, AGED
     ABOUT 65 YEARS, OCCUPATION: SOCIAL ACTIVIST AND
     INDUSTRIALIST 19, SHANTI NAGAR, RATLAM (MADHYA
     PRADESH)
                                                   .....PETITIONER
     (BY SHRI PRATYUSH MISHRA, ADVOCATE)

     AND

   THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY
1.
   VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
   MANAGING    DIRECTOR    MADHYA      PRADESH    ROAD
2. DEVELOPMENT CORPORATION LTD 45-A, AREA HILLS,
   BHOPAL (MADHYA PRADESH)
   DIVISIONAL MANAGER UJJAIN MADHYA PRADESH ROAD
3. DEVELOPMENT CORPORATION LTD PWD CAMPUS, IN FRONT
   OF GRAND HOTEL, FREEGUNJ, UJJAIN (MADHYA PRADESH)
                                               .....RESPONDENTS
     (BY SHRI PUSHYAMITRA BHARGAV, ADDITIONAL ADVOCATE
     GENERAL.)
                      (HEARD ON 30.03.2022)
                    (ORDER PASSED ON 08.04.2022)
PER: VIVEK RUSIA, J.

The petitioner/Paras Saklecha resident of 19, Shantinagar, Ratlam a former Member of Legislature Assembly of Madhya Pradesh, Social Activist and the vigilant whistleblower has approached this court by way of Public Interest Litigation challenging that the respondents have already recovered the amount much more than the cost of construction of the aforesaid road long back and still illegally recovering the toll from the

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vehicles plying on (i) 124.15 km of SH-31 from Lebad to Jaora, and (ii) 127.81 km SH-31 from Jaora to Nayagaon road hence the respondents be restrained from recovering the toll from Lead Road to Jaora Nayagaon Road. The petitioner is also seeking relief that respondents be directed to maintain the aforesaid road by issuing a separate tender.

The facts collected by the petitioner for filing this writ petition are as under:-

Respondent no.2 entered into an agreement with M/s Western MP infrastructure and toll roads Pvt. Ltd. On 30.08.2007 for the construction and maintenance of 124.15 km of SH-31 from Lebad to Jaora. The estimated project cost was Rs.605.45 crores for the road. The period of the concessional agreement was 25 years. Therefore, the company has been permitted to collect the toll till 2013. The purpose of collection of toll is to recover the project along with reasonable financial benefit available to the builder/construction company. Article 26 of the agreement provides the payment of the concession fee which is Re.1 per annum till the 10th year of the appointment date. In addition to the above, there is a provision to pay the premium fee of 4.765% of the "Realisable Fee" from the Commercial Operation Date (COD) of the project. Article 27 of the agreement provides the exclusive right to the concessionary to collect the "User Fee". According to the petitioner that the construction company invested an amount of Rs.47.544 lacs from the year 2007 to 2009 and 80% cost had been recovered till 2016. Hence as per the available data, the project cost had already been recovered by M/s Western MP infrastructure and toll roads Pvt. Ltd. By collecting the toll to date the respondents have recovered Rs.1315.94/- which is more than 217% of the project cost.

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Likewise, M/s Jaora-Nayagaon toll road company Ltd., Ms. SERI Infrastructure Finance Ltd. And Ms. PNC construction company Ltd. & Ms. Subhash Project and Marketing Ltd. entered into an agreement dated 20.08.2007 with respondent no.2 for the construction and maintenance of 127.81 km SH-31 from Jaora to Nayagaon road. The estimated project cost was Rs.450.57 crores and the maintenance and toll recovery period are till 2033. For the said road also till 31.11.2020, the company has recovered from the toll Rs.1461 crores which is more than 300% to 400% of the project cost and still recovering the toll.

Learned counsel for the petitioner submits that the State of Madhya Pradesh is a welfare state having a duty to ensure the basic facility like electricity, air, road etc. After recovering the cost of construction under any of the mode, there should not be any recovery of toll from the public. It is further submitted by the learned counsel for that both the agreements be foreclosed and a fresh contract be awarded for maintenance of these roads and the maintenance purpose either the road be maintained by the govt. or by appointing some other agency.

Shri Pushyamitra Bhargav, Additional Advocate General for the respondent/State oppose the prayer by submitting that byways of this writ petition the petitioner is seeking cancellation of concessional agreement dated 30.08.2007 and 20.08.2007 which were executed between MPRDC and M/s Western MP infrastructure and toll roads Pvt. Ltd. & M/s Jaora-Nayagaon toll road company Ltd. Respectively. These two companies have not been impleaded as respondents in this petition therefore, the petition suffers from non-joinder of necessary parties and on this ground, only the petition is liable to be dismissed. The period of both the concessional agreements is for the period of 25 years

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which cannot be foreclosed in between and that would cost heavy liability and penalties to the government. The MPRDC is an expert body in respect of the construction and maintenance of roads. The total cost of the project was duly been approved by the competent authorities before execution of the agreements. It is further submitted by the learned Additional Advocate General That the collection of toll from these two roads is not only to recover the cost but will be used for maintenance and reconstruction of the road in the next 30 years therefore, the petition is nothing but a publicity stunt filed without understanding the concept of concessional agreement and its consequential effect after termination or foreclosure hence the petition is liable to be dismissed with cost.

We have heard the learned counsel for the parties and perused the record.

It is correct that the petitioner is challenging the validity of the concession agreement dated 30.08.2007 and 20.8.2007 executed between MP Road Development Corporation Ltd. with M/s Western MP infrastructure and toll roads Pvt. Ltd. & M/s Jaora-Nayagaon toll road company Ltd. respectively without impleading the company as a party. No relief can be granted in this Public Interest Litigation against these companies without impleading them in this petition. Hence the petition suffers from non-joinder of the parties and this ground itself is sufficient to dismiss the petition.

The MPRDC had resolved to augment the existing roads Four-Lanning on the build, operate and transfer (BOT). Accordingly, NITs were issued. The Secretary, Public Work Department, of M.P. issued a certificate relating to the total project cost on 25.01.2007 certifying that the total project cost of

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the project is reasonable as has been fixed in accordance with the standard and specifications normally followed by a similar project. Another certificate Appendix-B has been issued prescribing 25 years concession period as a reasonable period. Thereafter concessional agreements were executed with M/s Western MP infrastructure and toll roads Pvt. Ltd. Before issuing NIT and finalization of execution of the agreement. As per Article 3, MPRDC has granted the concessionaire the concession set forth herein including the exclusive right, license and authority during the subsistence of this agreement to construct, operate and maintain the Project (the "Concession") for a period of 25 years commencing from the appointed date.

Clause 3.1.2 is reproduced below:-

Subject to and in accordance with the provisions of this agreement the concession hereby granted shall oblige or entitle (as the case may be) the concessionaire to:-

(a) Right of way, access and license to the Site for the purpose of and to the extent conferred by the provision of this Agreement.

             (b)     Construct the Project Highway.
             (c)     manage, operate and maintain the Project

Highway and regulate the use thereof by third parties.

(d) demand, collect and appropriate fee from vehicles and personally liable for payment of Fee for using the Project Highway or any part thereof and refuse entry of any vehicle if the Fee due is not paid.

(e) perform and fulfill all of the Concessionaire's obligations under and in accordance with this Agreement,

(f) bear and pay all costs, expenses, and charges in connection with or incidental to the performance of the obligations of the concessionaire under this agreement and

(g) not assign, transfer, or sublet or create any lien or Encumbrance on this Agreement or the Concession

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hereby granted or on the whole or any part of the Project Highway nor transfer, lease or part possession thereof save and except as expressly permitted by this Agreement or the Substitution agreement.

Therefore, during the validity of the concessional period builder/construction company is entitled to collect the appropriate fee from the vehicle using the project highway. Apart from the involvement of MPRDC, State Government financial institutions, banks and consultants are stakeholders in these BOT projects who are entitled to get their share in the collection of toll fees for the period of 25 years. There is a maintenance clause, retention of security of the company etc. Therefore, the recovery of construction costs is not the only objective behind the collection of tolls on a regular basis. Even after recovery of the total cost project, it is obligatory on the part of the company to maintain the road after every rainy season and if required they have to do re- carpeting. The maintenance of signboards, dividers, milestones, basic amenities in toll plazas etc. for 25 years is also the responsibility of the private companies.

The petitioner has placed reliance on the judgment passed by the apex court in the case of Mandsaur Transport Association Vs. State of M.P. And others reported in the year 2001 (9) SCC 328 in which the apex court has held that there is no reason why the collection of toll continues henceforth where the construction cost and cost of maintenance have been recovered by the state government several times over by way of a toll on that bridge. Therefore, the direction is that no toll can be collected on the bridge at Shivna. In the aforesaid case after recovery of the construction cost and the maintenance cost, the Government appointed a contractor by public auction to collect the toll. The State Government is recovering the toll and utilizing it for the

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general welfare activity of the state. The facts of the present case are different in that the toll is being recovered during the concessional agreement period and the said agreement cannot be terminated or foreclosed during the validity of its period which would cost extra heavy liability to the State Government. Hence, the writ petition in the nature of Public Interest Litigation is totally misconceived and hence dismissed.

           (VIVEK RUSIA)                                         (AMAR NATH (KESHARWANI))
               JUDGE                                                       JUDGE


  Ajit/-



AJIT
                  Digitally signed by AJIT KAMALASANAN
                  DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
                  BENCH INDORE, ou=HIGH COURT OF MADHYA

PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh,

KAMALASA 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba 241effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1EE 901C09EF29,

NAN serialNumber=7F0BEE2D78BD57DA058F3247441C8 7E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.04.12 10:42:26 +05'30'