COL T PRASAD Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition has been filed by two officers of the Indian Army. The grievance of the petitioners is that when persons belonging to the Armed Forces, such as the petitioners, cross over from Delhi to Uttar Pradesh or vice-versa through Delhi Noida Direct Flyway (hereinafter referred to as the 'DND Flyway') they have to pay a fee for each such crossing. According to the petitioners, such personnel were exempted from paying any toll or fee in view of Section 3 of the Indian Tolls (Army and Air Force) Act, 1901 (hereinafter referred to as the '1901 Act').

(2.) In response, the respondent No.4, namely, the Noida Toll Bridge Company Ltd (hereinafter referred to as 'the company') has taken the preliminary objection that this petition is not maintainable before this court on account of lack of territorial jurisdiction. Another plea that has been taken by the respondent No.4 is that the interpretation of the 1901 Act cannot be stretched to such an extent as to include the fee charged by the company which is not a public authority. It is further contended that the fee that is being charged by the company is for the use of the DND Flyway and it is being charged on the basis of a Concessionaire Agreement entered into between the company and the New Okhla Industrial Development Authority (NOIDA) [Rrespondent No.3] on 12.11.1997. It is further contended that this Concessionaire Agreement was entered into in terms of the New Okhla Industrial Development Area (Levy of Infrastructure Fee) Regulations, 1998 which, in turn, were formulated in exercise of powers under Section 19 of the Uttar Pradesh Industrial Area Development Act, 1976. It was contended that the Act as well as the regulations permitted NOIDA, either by itself or through a developer on the basis of the agreement, to develop, construct, provide or maintain or continue to provide or maintain the infrastructure in the area covered under the New Okhla Industrial Development Area. Regulation 3 of the 1998 regulations also specifically provides for this. Regulation 2 (e) defined the term "developer" as a person who constructs, develops, maintains or provides an infrastructure or collects fee therefor in the New Okhla Industrial Development Area on the basis of an agreement. Regulation 2 (f) defines fee to mean, in relation to an infrastructure, an amount levied upon or payable by a person under the said regulations for the use of an infrastructure in the New Okhla Industrial Development Area. Regulation 3 (b) specifically provides that the agreement that may be entered into with a developer, as indicated above, may provide for, inter alia, the fee to be levied and collected for the said infrastructure and Regulation 5 of the 1998 regulations further provide that the respondent No.3 would have the powers to authorise the developer to collect and appropriate the fee levied under the regulations in accordance with the agreement and that the developer's right to collect or appropriate the fee assignable to the lenders or the developer. It was also provided that where the respondent No.3 authorises the developer to collect and appropriate the fee, the agreement should also provide for a mechanism for determination of levies and publication of the rate of fee.

(3.) The learned counsel appearing on behalf of the respondent No.4 as well as on behalf of the respondent No.3 have stated that the collection of fee by the company is pursuant to an agreement entered into between them and in terms of the 1998 Regulations and the Uttar Pradesh Industrial Area Development Act, 1976. It is contended that the company by virtue of the aforesaid agreement, regulations and the Act, have been granted exclusive rights to build, operate and transfer the DND Flyway connecting Delhi and Noida and charge the users of such facility a fee as defined in the Concessionaire Agreement. The relevant portions of the Concessionaire Agreement are indicated hereinbelow:- "Fee"means the amount of money demanded, charged, collected, retained and appropriated by the Concessionaire for and on behalf of NOIDA from the users of the Noida Bridge as fee for the provision of the Noida Bridge, in accordance with the rules prepared by NOIDA under Section 19 of the Act and the provisions of Article 13 herein." "Noida Bridge"means the bridge which will connect Maharani Bagh at the Delhi end with Okhla Barrage at the Noida end and shall include (a) an eight lane, 552.5 meter bridge which will expand over the Yamuna River, (b) three interchange bridges, (c) cloverleaf flyovers, (d) a toll plaza, located at the Noida end, (e) river protection works and (f) inter-change roads to inter-face with the existing road network, all as more fully described in Appendix A to D hereto." "User"means the persons who travel over or utilise the Noida Bridge for the purpose of commuting across the River Yamuna in any motor vehicle." "Grant of Concession