THANKACHAN Vs. NATIONAL HIGHWAY AUTHORITY OF INDIA

JUDGEMENT

(1.) This is a Public Interest Litigation filed by a business man basically doing business in Bahrain, and also in the State of Kerala. The grievance highlighted by the petitioner is in respect of the traffic block and traffic congestion occurred frequently in a toll plaza situated at Paliyekkara in Thrissur District in the National Highway stretch of NH 47.

(2.) The case of the petitioner is that, in accordance with the concession agreement entered into by and between the first respondent i.e, the National Highway Authority of India and the 5th respondent contractor, a toll plaza is to be constructed, which shall have 6 lanes in each direction, including a separate service lane for oversize vehicles and for toll free traffic. However, the 5th respondent is operating the toll plaza in an inefficient manner and callously, which results in long queues, at times as long as 100s of vehicles on either side. That apart, it is pointed out that there were occasions when it took about 2 hours to cross a toll plaza because of the long queue and inefficiency in the collection of the toll. That apart, due to the huge traffic block that occurs in the toll plaza, several litigations and complaints were instituted before the statutory authorities. Earlier, W.P.(C) No. 16944 of 2017 was filed before this Court by a Public Interest Litigant seeking appropriate directions to the respective statutory authorities to take appropriate action to decongest the traffic at the toll plaza, in which Ext.P3 judgment is rendered by this Court. That apart, it is pointed out that consequent to the directions given in Ext.P3 judgment, the District Collector has issued directions to the Contractor to ensure that not more than 5 vehicles are queued up in the toll plaza and if more vehicles are queuing up, then the lane shall be opened so as to decongest the traffic. In order to establish the said contention, the petitioner has relied upon Ext.P1, which is schedule C of the project facility of the concession agreement, wherein it is specified that "normally the service time allowed is 15 seconds for manual/semiautomatic system with a queue length of not more than 5 vehicles at any point of time'. According to the petitioner, the District Collector has issued necessary directions to the contractor to open up the toll plaza when more than 5 vehicles have queued up in the toll plaza. Anyhow, the petitioner has submitted Ext.P4, a detailed representation, before the Project Director, National Highway Authority of India dated 20.09.2007. However, according to the petitioner, no action was initiated. It is also pointed out that the petitioner has made many suggestions, including the implementation of the electronic toll collection so as to avoid traffic congestion in the toll plaza. It is alleged that even though the electronic toll collection is introduced by the National Highway Authority, the contractor has not taken any steps to implement the said system.

(3.) A detailed counter affidavit is filed by the first respondent refuting the allegations and the claims and the demands raised by the petitioner. Among other contentions, it is stated that the claim for toll free usage of the national highways on account of the block at the toll plaza is not permissible under the National Highways Fee (Determination of Rates and Collection) Rules, 2008 ('the Rules, 2008' for short). The first respondent has relied upon rule 3 of the said Rule to canvass the proposition that the contention advanced by the petitioner that the toll plaza shall be opened as and when the vehicles exceed 5 in number, is not a sustainable argument. Moreover, it is submitted that Ext.P1 schedule of the concession agreement only states that the time taken for clearing a vehicle is 15 seconds in a manual or semi automatic system with a queue length of not more than 5 vehicles at any point of time and that has nothing to do with any facility, for opening up the toll plaza for decongesting the traffic block. That apart, it is submitted that towards a 'stoppage free passage' through the toll plaza, the National Highway Authority of India has implemented a scheme of Electronic Toll Collection (ETC) under which any vehicle owner may obtain a sticker with bar codes to be fixed on the front windscreen of the vehicle, known as 'FASTAG' under which the vehicle with the sticker and the bar code may pass through the toll plaza without stopping the vehicle. The sticker may be purchased at the toll plaza or downloaded from the website of the Common Service Centre, located near the toll plaza. Further, online sale of 'FASTAG' has been enlarged to issuer Banks through their websites as also through the websites of National Highway Authority of India and IHMCL. The payment of user fee is done by the electronic debit of the account of the payer or purchaser of the sticker which is produced as Ext.R1(a) and a model 'FASTAG' is also produced as Ext.R1(b). Therefore, the sum and substance of the contention advanced by the National Highway Authority of India is that the vehicle owners and motorists who are anxious of avoiding wastage of time by lining up the toll plaza, may avail of the 'FASTAG' scheme.