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Joseph Tajet v/s State of Kerala Represented by Chief Secretary To Government, Government Secretariat, Thiruvananthapuram


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    Writ Petition (Civil) Nos. 2812 & 32181 of 2019

    Decided On, 19 December 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.B. SURESH KUMAR

    For the Appearing Parties: G. Krishnakumar, M.L. Remya, K.V. Sohan, I. Sheela Devi, P.D. Pradeep Babu, M.V. Kini & Co, P. Vijayakumar, S. Sreekumar, P. Martin Jose, P. Prijith, Thomas P. Kuruvilla, P.T. Dinesh, Ranjith Xavier, K.A. Salil Narayanan, Advocates.



Judgment Text


1. The petitioners in these writ petitions seek virtually the same relief and they are, therefore, disposed of by this common judgment. The parties and exhibits are referred to in this judgment, unless otherwise mentioned, as they appear in W.P.(C) No.2812 of 2019.

2. The petitioners are persons residing within 10 kilometers radius of Paliyakkara Toll Plaza operated by the ninth respondent on NH-47 in the State in terms of a Build Operate and Transfer arrangement entered into by them with the National Highway Authority of India (NHAI) for construction and maintenance of a section of the National Highway covering the toll plaza. As per the said arrangement, the ninth respondent is entitled to collect user fee as prescribed by the Government of India for the vehicles passing through the Toll Plaza. When the ninth respondent started collecting the user fee from 05.12.2011 after constructing the said section of the Highway, the people in the locality raised objections to the collection of user fee on the ground that the same would be oppressive for them as they have to pass through the toll plaza multiple times a day. The State Government intervened in the matter and issued Ext.P3 order on 18.2.2012, in terms of which the State Government undertook to reimburse the ninth respondent the user fee payable in respect of car/van/jeep owned by persons residing within 10 kilometers radius of the Toll Plaza. In the light of Ext.P3, monthly passes were being issued by the ninth respondent in the form of smart cards to the beneficiaries of Ext.P3 order, so as to enable them to pass through the toll plaza without paying the user fee and the beneficiaries of the said order are accordingly passing through the toll plaza without payment of user fee for the last almost 8 years.

3. During 2017, in order to remove the bottlenecks associated with the manual collection of user fee and ensure seamless movement of traffic, the Government of India has decided to introduce Electronic Toll Collection (ETC) across National Highways in the country and to install, maintain and operate a uniform, inter-operable hybrid ETC system on all lanes of toll plazas in the country. In order to enable electronic toll collection, the users have to fix in the windscreen of their vehicle a device called FASTag for making payment of user fee directly from the prepaid or savings account linked to it. Monthly passes, wherever applicable, were being issued on multiple modes of payment including cash and FASTag. It was noticed in course of time that in reality, majority of monthly passes are being issued and processed through cash lanes leading to severe congestion at the toll plazas. In the circumstances, in order to ensure effective decongestion at the toll plazas, it has been decided that all monthly passes, wherever applicable, shall be issued only through FASTag with effect from 01.04.2018 and it is being implemented throughout the country. In so far as the State Government has agreed to reimburse the user fee payable by persons residing in 10 kilometers radius of Paliyakkara Toll Plaza, the Project Director of NHAI has written Ext.P7 letter requesting the State Government to work out the modality of payment for converting the reimbursable free passes issued in terms of Ext.P3 order to FASTag transaction. The State Government has not taken any decision on Ext.P7 request.

4. In the meanwhile, when steps have been taken by the ninth respondent to convert all lanes at the toll plaza as FASTag lanes, the first petitioner preferred Ext.P9 representation requesting the State Government to take necessary steps to enable him to enjoy the privilege extended in terms of Ext.P3 order, for, if alternative arrangements are not made by the Government for reimbursing the user fee payable by the beneficiaries of Ext.P3, they will be constrained to pay user fee for passing through the Toll Plaza, once all the lanes are converted as FASTag lanes. Government has not taken any decision on Ext.P9 representation. The petitioners have, therefore, approached this court, and in terms of Ext.P16 judgment, this court directed the Government to take a decision on Ext.P9 representation. Ext.P17 is the decision taken by the Government on Ext.P9 representation thereafter. In terms of Ext.P17, the Government rejected Ext.P9 representation holding that the Government would continue to reimburse the user fee payable by the beneficiaries of Ext.P3 order and it is for the NHAI to redress the grievance voiced by the first petitioner.

5. The case set out by the petitioners in the writ petition, in essence, is that in the light of Ext.P3 order of the State Government, the NHAI and the ninth respondent have to either continue the present arrangement so as to enable the petitioners and others to enjoy the benefits covered by Ext.P3 or introduce a FASTag specially for the beneficiaries of Ext.P3 order to pass through the Paliyakkara toll plaza without payment of user fee. The petitioner in W.P.(C) No.32181 of 2019 has also a case that the conduct of the respondents concerned in introducing FASTag on all lines without amending Rule 6(3) of the National Highways Fee (Determination of Rates And Collection) Rules, 2008, in terms of which payment of user fee is permissible by means of cash, smart card etc. as well, is illegal. The petitioners, therefore seek appropriate reliefs for the said purpose in the writ petitions.

6. A statement has been filed by the NHAI in W.P.(C) No.2812 of 2019. The stand taken by the NHAI in the statement is that the ninth respondent has issued in the light of Ext.P3 order about 43000 passes to persons residing within 10 kilometer radius of the toll plaza; that most of the vehicles covered by the said passes are commuting on daily basis through the toll plaza and the said vehicles are creating more queue at the toll plaza. It is also the stand of the NHAI that the present situation at Paliyakkara toll plaza demands immediate conversion of the free passes covered by Ext.P3 order to FASTag for effective decongestion of the traffic at the toll plaza. It is also the stand of the NHAI that it has no control over FASTag back end operations such as payments, permissions, transactions etc and the same are controlled by the National Payment Corporation of India and the Indian Highways Management Company Ltd. It is also the stand of the NHAI that in the light of the developments after Ext.P3 order, the State Government was apprised of the situation and requested to make alternative payment modality for persons covered by Ext.P3 order.

7. A statement has been filed by the ninth respondent. The stand taken by the ninth respondent in the statement is that in the light of the policy decisions by the Central Government, the existing lanes at the toll plaza are to be converted as FASTag lanes and monthly passes can be issued only on FASTag. It is also the stand of the ninth respondent that if the State Government requires to stick to the stand taken in Ext.P3 order, it is for them to make alternative arrangement for payment of the user fee payable by persons covered by Ext.P3 order. It is further stated by the ninth respondent that the monthly charges payable by persons covered by Ext.P3 is only Rs.150/- and the State Government has hitherto reimbursed only a miniscule portion of the fee payable by the beneficiaries of Ext.P3 order. It is stated that out of the claim of Rs.107.43 crores hitherto made, the State Government has reimbursed only Rs.3.59 crores upto September 2012.

8. Heard the learned counsel for the petitioners, the learned counsel for the NHAI, the learned Central Government Counsel, the learned Senior Counsel for the ninth respondent as also the learned State Attorney.

9. The fact that it is in terms of the policy decision taken by the Government of India that electronic toll collection mode is being implemented across the country in order to ensure seamless movement of traffic through toll plazas is not in dispute. The decision to issue monthly passes exclusively through FASTag is one taken in implementation of the said policy decision of the Central Government to ensure effective decongestion at the toll plazas. The policy decision of the Central Government is not under challenge. As noted, the case set out by the petitioners in the writ petitions is that in the light of Ext.P3 order of the State Government, the NHAI and the ninth respondent have to either continue the present arrangement, or introduce a FASTag specially for them to pass through the Paliyakkara toll plaza without payment of user fee. In the absence of any challenge in the writ petitions against the policy decision of the Central Government referred to above, the direction sought by the petitioners to the respondents concerned to continue the existing arrangements so as to enable them to pass through the toll plaza cannot be granted. That too, for the reason that they may not otherwise be entitled to avail the benefit of the privilege extended to them by the State Government in terms of Ext.P3 order. Similarly, in the absence of any challenge in the writ petitions against the policy decision of the Central Government referred to above, the direction sought by the petitioners to the respondents concerned to introduce a FASTag specially for them to pass through the Paliyakkara toll plaza without payment of user fee cannot also be granted, especially when the petitioners do not have a right to claim such a relief and when they do not have a case in the writ petitions that it is possible to introduce a FASTag specially for them. It is beyond dispute that the policy decision of the Central Government is one taken in the larger public interest. It is trite that when executive authorities take decisions in larger public interest, rights of individuals have to give way and the inconvenience if any, caused to the individuals in the context of such decisions cannot be taken note of by courts while examining the correctness of the decision, or justifiability of the modalities of its implementation.

10. True, petitioners are enjoying a privilege under Ext.P3 order. In a case of this nature, it is for the State Government to make alternative arrangements to extend the privilege to the petitioners and others, if at all the Government chooses to continue the same. As noted, though the NHAI has brought the issue to the notice of the State Government and requested the State Government to work out the modality of payment with the National Payment Corporation of India and the Indian Highways Management Company Ltd., the State Government has not taken any action till date as requested for by the NHAI. Instead, the State Government has rejected the similar request made by the first petitioner in terms of Ext.P17 order. In other words, the State Government does not want to stand in the way of the NHAI converting all lanes of the toll plazas to FASTag lanes and issuing monthly passes exclusively through FASTag. This stand of the State Government has been informed at the time of hearing by the State Attorney also. When a specific question was put to the State Attorney as to how the State Government is proposing to honour the commitment made in terms of Ext.P3 order, it was submitted by the learned State Attorney that the beneficiaries can claim reimbursement from the State Government directly. As noted, what is extended by the State Government to persons residing within 10 km radius from the toll plaza is only a privilege and the State Government can therefore decide the modality of extending the privilege. It is also within the powers of the State Government to change the modality, if circumstances compel the State Government to do so. The stand taken by the State that the petitioners and other similarly placed persons can claim reimbursement of the user fee from the State Government is not acceptable to the petitioners. Since the petitioners have no right to pass through the toll plaza without payment of user fee, the only option left to them for availing the benefit, according to me, is to claim reimbursement of the user fee from the State Government.

11. There is no substance in the contention taken by the petitioner in W.P.(C) No.32181 of 2019, based on Rule 6(3) of the National Highways Fee (Determination of Rates And Collection) Rules, 2008 also. Rule 6(3) reads thus :

"6. Collection of fee.-

x x x x x x

x x x x x x x

(3) The fee collected under these rules shall be paid either in cash or through smart card [or through FASTag. or on board unit (transponder) or any other like device:

Provided that no additional charges shall be realised for making the payment of fee by use of a smart card or on board unit (transponder) or any other such device:

Provided further that user of the vehicle not fitted with "FASTag" entering into "FASTag lane" of the [fee plazas. shall pay a fee equivalent to two times of the fee applicable to that category of vehicles as per subrule (2) of rule 4."

True, in terms of the said Rule, payment of user fee is permissible by means of cash, smart card etc. as well. But, I do not think that the said Rule is of any help to the petitioner, as the same is intended for enabling payment of user fee and not for claiming exemption from payment of user fee. Even otherwise, I do not think that the said Rule would be an impediment for the Central Government or the NHAI in taking a policy decision to issue monthly passes exclusively through FASTag.

12. Above all, it is seen that National Highways are now being constructed and operated on build operate and transfer arrangements without spending money from the exchequer and it is to enable the concessionaire to recover the investments made that he is

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permitted to collect user fee, that too, at the rate prescribed by the Central Government. It is also seen that the monthly user fee payable by persons like the petitioners who have the financial background to own vehicles is only a paltry sum of Rs.150/- for their multiple movements in a month through the toll plaza. The stand of the petitioners that they cannot spare a meagre sum of Rs.150/- per month towards the nation building process cannot be appreciated. Be that as it may. The State Government has taken upon itself the onerous task of reimbursing the user fee payable by the petitioners and others to the ninth respondent and it has come out that the liability incurred by the State Government in this regard during the last 8 years is more than hundred crores. As noted, even now, the State Government is prepared to extend the privilege covered by Ext.P3 and prepared to reimburse the user fee payable by the petitioners and others directly to the ninth respondent. The only change brought about is that the petitioners have to pay now user fee and claim reimbursement from the Government. An approach to this court by the petitioners taking the stand that the said course is not acceptable to them and that the ninth respondent, therefore, has either to continue the present arrangement or introduce a FASTag specially for them to pass through the toll plaza without payment of user fee cannot be appreciated at all. The writ petitions, in the circumstances, are without substance and the same are, accordingly, dismissed.
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