Toll roads: India
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No toll for bad roads: SC
The Times of India, Aug 28 2015
No toll for bad roads, SC tells NHAI in pro-user order
Asks pvt contractor to refund Rs 11cr, slashes toll on NH-53 leg
In what will be music to the ears of long suffering highway users, the Supreme Court ruled that the National Highways Authority of India (NHAI) and concessionaires cannot collect toll from commuters if the road is in bad shape. Road users have had a long-standing grouse that they were fleeced by concessionaires who charged hefty toll on stretches of dilapidated national highways. They also believed that private contractors were enriching themselves while the NHAI looked the other way .
When a case relating to high toll on the poorly maintained 26-km Raipur-Durg stretch on NH-53 came before it, a bench of Justices T S Thakur and Kurian Joseph appointed a committee to inspect the road condition.
The panel, headed by a retired district judge, gave a stinging report about the road condition. This led the bench to tell NHAI and concession aries -“no toll for bad roads“.“General public should not be made to suffer on both counts -bad roads and hefty toll,“ the bench said while ordering the concessionaire to refund Rs 11 crore it had collected as toll to the Centre, which had taken over the road from the private party in March. The Centre wanted to score a point by informing the court that it had acted reasonably by reducing the toll by 60% since taking over the highway for repair work. But the court was unwilling to allow commuters to pay such charges when the condition of the 26-km stretch was poor.
However, taking into account the Centre's plea that the entire stretch was not completely damaged, the SC directed that the new toll would be 20% of the earlier fee.
The case would not have got such attention from the SC had a PIL petitioner, Lal Manohar Pandey , not approached the Chhattisgarh HC complaining against the pot-holed 26-km Raipur-Durg stretch.
Allahabad, Delhi HCs order stoppage of toll collection
Construction Cost Already Recovered: HC
DND Flyway, the 9.2km-long access-controlled 8-lane road connecting South Delhi to Noida and East Delhi, is now toll-free. On Wednesday , the Allahabad high court passed an order restraining Noida Toll Bridge Company Ltd (NTBCL) from collecting toll with immediate effect.
By Wednesday evening, cars that had to pay Rs 28 for a single trip, were zipping past the booths freely as the co ncessionaire had stopped collecting toll. “We welcome the historic verdict.... The public-friendly judgment has come after four years of waiting,“ said Chetan Sharma, secretary general of the Confederation of NCR Residents Welfare Associations (CONRWA).
This is the second time in Delhi that courts have stopped concessionaires from charging toll. In February 2014, the Delhi HC ordered dismantling of the toll plaza at Sirhaul on the Gurgaon Expressway. The Wednesday's order was passed by a divi sion bench of Justice Arun Tandon and Justice Sunita Agarwal, which said NTBCL has already realised the construction cost of the flyway , and so there was no need to continue collecting toll from vehicles.
The Federation of Noida Residents Welfare Associations (FONRWA), which had moved the Allahabad high court in 2012, filed a special leave petition in the Supreme Court in April this year seeking an order to restrain NTBCL from collecting toll on DND. In June, the Supreme Court directed the Allahabad high court to decide on FONRWA's plea in three months. But trouble had been brewing for long, and matters reached a head when NTBCL raised one-way toll for cars from Rs 25 to Rs 28 in April 2015. This triggered largescale protests, and chief min ister Akhilesh Yadav ordered a probe to find out if there was any justification in continuing to charge toll on the flyway .
Ranjit Saxena, the advocate for FONRWA, claimed that NTBCL had already collected about Rs 2,000 crore in toll and had more than recovered the Rs 408 crore it had cost them to build the flyway .The NTBCL spokesperson could not be reached for comments despite repeated attempts.
DND became operational in February 2001, when the toll was only Rs 10. In 1992, UP government signed an MoU with the Delhi administration and Infrastructure Leasing and Financial Services Ltd (IL&FS) to build a toll bridge across the Yamuna.IL&FS promoted NTBCL to make the flyway on a build, own, operate, transfer basis.In 1996, NTBCL was incorporated into a public listed company with its corporate headquarters in Lucknow.
In court, NTBCL leaned on the original terms of agreement in arguing its case. This agreement gave IL&FS and NTBCL sole charge of the flyway on a build-own-operate-transfer basis. The agreement also allowed NTBCL to fix toll rates on its own and authorised it to collect toll for at least 30 years, which could be extended if NTBCL did not earn enough returns on its investment. NTBCL was assured a 20% profit, the only agreement for a project with such a clause.
But on Wednesday , the court said the amended agreement between NTBCL and Noida permitting the company to collect toll till April 1, 2031, was arbitrary and violative of Article 14 of the Constitution (right to equality) and involved excessive delegation and was thus unfair and unjust. The petitioner's contention was that through toll collection, the company had already earned many times more than its total project cost but was still collecting toll from public.
NTBCL, however, argued that its contract with Noida was binding and collection of toll over the bridge was less than what was estimated in the contract. Hence, as per the contract, the liability of Noida had only increased in the last few years. Therefore, in case of breach of contract, the authority would be liable to pay a huge amount of compensation to NTBCL.
Further, as NTBCL had been given the authority to collect toll for a period of 30 years, it must be allowed to collect toll for the period to avoid activating the compensatory clause of the contract.
None of these arguments, however, convinced the high court.
The DND agreement and its two profit clauses
An NTBCL official said that the high court had only stopped toll collection and not cancelled the agreement signed between Noida Authority and NTBCL to build and operate the DND Flyway . -
DND is one of three bridges across the Yamuna connecting Noida and Delhi and the only one that collected toll.The Flyway was opened to traffic in February 2001 and was one of the few projects at the time to be developed under the public-private partnership model.
Noida Authority chairperson Rama Raman said that two provisions in the agreement -assured 20% profit on the Rs 408-crore investment to build the DND and NTBCL being allowed to add the annual shortfall to its costs -were against the interest of the public. In May last year, Raman had ordered a probe by two committees into the DND agreement after protests against toll collection. Chief minister Akhilesh Yadav had also asked for a probe to ascertain if toll collection was justified.
NTBCL urged Flyway users to bear with it. “There is no need to panic regarding money already paid by silver and gold card users,“ said the official, referring to its plan to move the apex court.