UDAIPUR TOLLWAY LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners have impugned Rule 4(9) of the National Highways Fee (Determination of Rates and Collection) Rules, 2008, issued under Section 9 of the National Highways Act, 1956, in the peculiar facts of the case. The petitioners have also impugned Office Memorandum dated 18.05.2020 issued by the Central Government for implementation inter alia by the Ministry of Road Transport and Highways and NHAI, and the consequent Policy Guidelines/BOT (Toll)/2020 dated 26.05.2020 issued by NHAI. That apart the petitioners have also prayed for directing the NHAI to maintain the same time gap of six months between the Revised Completion Date/ Date of Toll Tariff Revision and date of commencement of payment of premium, under the respective Concession Agreements (with the approved EOT); or in the event this Court comes to a conclusion that aforesaid prayer cannot be granted, to restrict the premium amount till the end of six months from the Revised Completion Date, to such balance amount from the fee collected in each of the previous months, which remains in Escrow Account after payment of monthly operation and maintenance charges and monthly debt servicing etc. as per the waterfall mechanism provided in Article 31 of the Model Concession Agreement, read with Section 8A of the National Highways Act, 1956 and Rule 7(1) of the National Highways Fee (Determination of Rates and Collection) Rules, 2008, and to refrain NHAI from taking any coercive action against the petitioners for the said period.

(2.) The respondents filed their replies opposing each of the prayers. It is submitted that the writ petition is not maintainable being related to purely contractual obligation and the challenge to the rules etc. is misconceived. Reliance is placed on the following observations in the judgment of the Hon'ble Supreme Court in JWS Infrastructure v. Kakinada Seaports Ltd., (2017) 14 SCC 170- 'thus it is apparent that in contractual matters, the writ courts should not interfere unless the decision taken is totally arbitrary, perverse or mala fide.'

(3.) An 'Additional Affidavit' dated 14.02.2021 was filed by the petitioners, to bring on record that post filing of the instant writ petition the respondents have already made appropriate revision in Clause 26.2.1 of the 'Model Concession Agreement for Capacity Augmentation of Projects under Tolling (6 laning BOT-Toll Projects) issued on 09.12.2020 on the website of Ministry of Road Transport and Highways, Government of India. AS per the revised Clause 26.2.1, now the obligation under such statutory contracts to pay premium from the Toll fee collection would commence only 'after the first (1st ) anniversary of the Projection Completion Date, for every year of the remaining Concession Period, to be calculated on total Realisable Fee'. The earlier gap of 'six months' between the completion date and date of obligation to pay premium is thus also revised as 'one year'. Cash Flow Charts certified by Statutory Auditor were also placed on record showing that cumulatively about Rs.5,000/- crores had been invested by them in the construction of these projects of NHAI including from promoter's/ sponsor contribution and finances availed. It further shows that the deposits into project account from the Toll Fee collection is significantly lower than what was appraised in view of impugned Rule 4(9) as well as effect of restrictions imposed on movements vide various orders issued pursuance to the Covid pandemic. The withdrawals from the project account, which are to be done sequentially in the order given in waterfall mechanism agreed between the parties, also show that till date not a single Rupee has been withdrawn by any of the petitioners either towards any reasonable return on investment or to gradually recover the capital contribution. It was also submitted that the entire capital amount already invested from the promoter's contribution sufficiently safeguards the interests of the NHAI towards disputed premium liability.