S. NAVEEN KUMAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned counsel appearing for the petitioner, the learned Additional Government Advocate appearing for the first respondent, the learned counsel appearing for the second and third respondents, the learned counsel appearing for the fourth and fifth respondents and the learned counsel appearing for the seventh respondent.

(2.) This petition concerns the project of the second respondent (Karnataka Road Development Corporation Limited). The project is of improvement of a road from Yelahanka to Andhra Pradesh State Border (SH-09) from KM 13+800 to KM 88+145. For that purpose, in exercise of the powers under Section 19A of the Karnataka Highways Act, 1964 (for short 'the Highways Act '), a tripartite Concession Agreement has been executed by the State Government, the second respondent and the fourth respondent. The prayer in this petition under Article 226 of the Constitution of India is for issuing a writ of prohibition for preventing collection of toll on the said section of the road unless 100% work of the road is completed. As far as the collection of toll is concerned, Clause 15.1 of the said Concession Agreement is relevant. It provides that the date of the project shall be the date on which the Completion Certificate or a Provisional Certificate is issued under Article 14 of the Concession Agreement. As per Article 14.3.2 , a Provisional Certificate can be issued if at least 75% of the length of the highway is completed. Article 15.1 provides that the Commercial Operation Date shall be the date on which a Completion Certificate or a Provisional Certificate is issued. It is stated in Article 15.1 that the Project Highway shall enter into commercial service on Commercial Operation Date whereupon the Concessionaire shall be entitled to demand and collect toll in accordance with Article 27 of the Concession Agreement. Article 27.1.1 of the Concession Agreement provides that on and from the Commercial Operation Date till the Transfer Date, the Concessionaire shall have the sole and exclusive right to demand, collect and appropriate fee from the users as per the Toll Notification dated 26th May 2009.

(3.) Apart from the stand taken in the statement of objections, as per the directions of this Court, the Independent Engineer (M/s.Aarvee Associates Architects Engineers and Consultants Pvt. Ltd.,) has filed the affidavit of Sri K.V.S.Prasad. To the said affidavit, a copy of the Provisional Certificate issued on 19th September 2018 in terms of Article 14.3 of the Concession Agreement has been annexed. Apart from that, to the said affidavit, a copy of the status report regarding the Punch List items has been also annexed.