IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 WP(C).No. 37354 of 2010(T) ----------------------------------------------- PETITIONER(S): --------------------- T.M.IJAS, THANNICKAL HOUSE, AZAD ROAD, KALOOR, KOCHI -17. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN RESPONDENT(S): ------------------------- 1. THE SUPERINTENDENT OF POLICE, ALAPPUZHA PIN - 688001. 2. THE DEPUTY SUPERINTENDENT OF POLICE, LAW AND ORDR, CHERTHALA PIN-688524. 3. CIRCLE INSEPCTOR OF POLICE, LAW AND ORDER, KUTHIATHODE-PIN-688533. 4. SUB INSEPCTOR OF POLICE, LAW AND ORDER, AROOR PIN-688534. 5. THE SUPERINTENDING ENGINEER, OFFICE OF THE SUPERINTENDING ENGINEER, NATIONAL HIGHWAY (CENTRAL) CIRCLE VYTTILA, KOCHI PIN-682019. BY GOVERNMENT PLEADER SHRI T. K. VIPINDAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.37354 OF 2010 T PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF EXTENSION AGREEMENT DATED 08.12.2010 NO.XIII/SE/NH/CC/KOCHI TO ORIGINAL AGREEMENT NO.2/2009-2010. EXT.P2 TRUE COPY OF REPORT PUBLISHED AT PAGE 17 IN MANORAMA DAILY, DATED 09.12.2010. EXT.P2(a) TRUE COPY OF THE REPORT PUBLISHED AT PAGW 3 IN MADHYAMAM DAILY DATED 09.12.2010. EXT.P2(b) TRUE COPY OF REPORT WHICH CAME OUT AT PAGE 2 OF MALAYALA MANORAMA DAILY. EXT.P2(c) TRUE COPY OF REPORT WHICH IS PUBLISHED AT PAGE 10 OF MALAYALA MANORAMA DAILY DATED 11.12.2010. EXT.P2(d) TRUE COPY OF THE REPORT PUBLISHED AT PAGE 14 OF THE MALAYALA MANORAMA DAILY, DATED 12.12.2010. EXT.P3 TRUE COPY OF REPRESENTATION DATED 08.12.2010. EXT.P4 TRUE COPY OF THE RECOMMENDATION OF THE 5TH RESPONDENT DATED 08.12.2010. RESPONDENTS' EXHIBITS: NIL. //True Copy// PS to Judge. K.M. JOSEPH & M. C. HARI RANI, JJ. ----------------------------------------- W.P.(C).NO. 37354 OF 2010 T ------------------------------------------ Dated this the 22nd December, 2010. JUDGMENT K.M. Joseph, J. Case of the petitioner in brief, is as follows: Petitioner is a contractor. The bridges set at Kumbalam - Aroor are located on the National Highway 47 which is notified in the Schedule to the National Highways Act, 1956 (hereinafter referred to as the Act). Under Section 7 of the Act, the Central Government is empowered to levy fee from the bridges on the National Highways by laying down necessary Rules for the purpose. Accordingly, the National Highways (Fees for the Use of National Highway Section and Permanent Bridge - Public Funded Projects) Rules, 1997 has been enacted. The State Government is the executing agency as per Rule 2(b) of the Rules. As per Rule 9, collection is permitted through a contractor. Petitioner was the successful contractor. The original period expired and the period WPC.37354/2010 T 2 is being extended for a period of twentyone days. The last extension is produced as Ext.P1. The extension as per Ext.P1 is from 09.12.2010 to 29.12.2010. The general public was all along against the collection of toll. The construction of a new bridge is over at Kumbalam - Aroor. As the traffic on the old bridge is dense and congested, the vehicles towards north is now diverted through the new bridge. The agreement executed enables the petitioner to collect toll from vehicles going towards north and south and the rate is based on the traffic towards north and south. Because of the traffic congestion in the old bridge, the Authorities have diverted traffic through the new bridge and the petitioner is allowed to collect toll from the vehicles using both the bridges. The members of the public took a defiant stand against the toll collection and quarreled with employees at the toll booth by refusing to pay toll. Ext.P2 series are reports in various newspapers. Reference is made to the Rules to contend that the police is bound to stand guard at the end of the bridge in the case WPC.37354/2010 T 3 of collection of fees departmentally. Petitioner is collecting fees on behalf of the Department. Petitioner filed Ext.P3 petition seeking police protection before the fifth respondent. The fifth respondent, namely the Superintending Engineer, National Highway (Central) Circle, Vyttila, Kochi recommended protection. Ext.P4 is the said recommendation and the petitioner is before us, seeking the following reliefs: "(i) Issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding respondents 1 to 4 to offer adequate and effective police protection to the petitioner for collection of toll from both the bridges located at Kumbalam-Aroor of Kochi Byepass in N.H.47 (mentioned in Exhibit P1) by providing sufficient police personnel at either ends of both the bridges. (ii) Declare that the petitioner is entitled to have police protection for collection of toll as and when necessitated for ensuring smooth and prompt collection of toll." WPC.37354/2010 T 4 2. We heard Shri Vinod Madhavan, learned counsel for the petitioner and also the learned Government Pleader. 3. Ext.P1 extension agreement, inter alia, reads as follows: "Agreement entered into this the 8th day of December, 2010 (Two thousand and ten) between Sri. T. M. Ijas, Thannickal House, Kaloor, Kochi, the existing toll contractor on the one part and the Superintending Engineer, National Highway (Central) Circle, Kochi, Vyttila P.O. for and on behalf of the Governor of the State of Kerala on the other part for the work of "Collection of toll from the vehicles passing through the bridge Kumbalam-Aroor of Kochi Byepass in N.H.47" (vehicles using the both bridges for avoiding traffic congestion) hereby agree by this extension agreement to collect the toll for the period of 21 (twenty one) days from 09.12.2010 to 29.12.2010 (including both days) by the former for the use of the Public Works Department of the said Government of Kerala as per the conditions of the contract approved by the Superintending Engineer, National Highway (Central) Circle, Kochi, Vyttila P.O." WPC.37354/2010 T 5 4. Under the Rules, Rule 11 provides that the fee shall be collected in perpetuity by the executing agency. Learned counsel for the petitioner does not dispute that the cost of construction of the bridge has, in fact, been already recovered. But, his contention is that under the Rules, the collection is to be made in perpetuity. Learned Government Pleader also draws our attention to the Judgment of a learned Single Judge of this Court in W.P.(C). No.36746/2007, wherein the learned Judge took the view that as long as Rule 11 stands, it may not be open to contend that once the cost is recovered, no further collection can be permitted. Learned Government Pleader also submits that the toll is being levied only in respect of the old bridge and only to ease the traffic, vehicles going from south to north are diverted through the new bridge. In other words, the specific contention of the Government Pleader is that no toll is being collected for the new bridge as such and no additional amount is being collected for the new bridge. In such circumstances, the demand made for police protection by the WPC.37354/2010 T 6 petitioner is legitimate and there is a duty on the part of the Police Officers to grant protection. Accordingly, we dispose of the Writ Petition by making the interim order absolute till 29.12.2010. Sd/= K.M. JOSEPH, JUDGE Sd/= M.C. HARI RANI, JUDGE kbk. //True Copy// PS to Judge