IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 7050 of 2006(S) --------------------------------------- PETITIONER(S): -------------------------- NAVEEN. M.V., S/O. VISWAMBHARAN, MADIAMPARAMBIL HOUSE, TRIPUNITHURA, ERNAKULAM DISTRICT. BY ADV. SRI.JOBY JACOB PULICKAKUDY RESPONDENT(S): --------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD TRANSPORT & HIGHWAY, TRANSPORT BHAVAN, DELHI. 2. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT,TRIVANDRUM. * 3. ROADS AND BRIDGES DEVELOPMENT CORPORATION OF KERALA LTD., REPRESENTED BY ITS MANAGING DIRECTOR (TRIVANDRUM)DELETED & CORRECTED. * THE ADDRESS OF THE THIRD RESPONDENT IS CORRECTED AS: “2ND FLOOR, PREETHI BUILDINGS, M.V. ROAD, PALARIVATTOM, KOCHI - 25”. AS PER ORDER DTD. 21/03/2006 IN I.A.NO.4180/2006. Kss ..2/- ...2.... WPC.NO.7050/2006 S **ADDL.R4 IMPLEADED: R4. M/S.E.K.K. & CO., 2ND FLOOR, MUNICIPALITY BUILDING, PERUMBAVOOR, ERNAKULAM DISTRICT REPRESENTED BY ITS MANAGING PARTNER E.K.K.MUHAMMED. (**ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 23/11/2007 IN I.A.NO.15400/2007) R1 BY ADV. SRI. S. KRISHNAMOORTHY R1 BY ADV. SRI. AJITH KRISHNAN, ADDL.CGSC BY ADVOCATE GENERAL SRI. C.P.SUDHAKARA PRASAD R2 BY GOVERNMENT PLEADER SMT. K.MEERA R3 BY ADVS. SRI.M.VIJAYA KUMAR, SC, RBDCK, SRI.KURIAN GEORGE KANNANTHANAM,SC,RBDCK. R4 BY ADV. SRI.VINOD MADHAVAN SRI.M.V.BOSE SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7050/2006 S APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RECEIPT FOR PAYMENT OF USER FEE FOR THE BRIDGES ISSUED TO THE PETITIONER. P2: COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 2/03/2006. RESPONDENT'S EXHIBITS: R3(A): COPY OF NOTIFICATION DTD. 15/02/2005 ISSUED BY GOVERNMENT OF KERALA. R3(B): COPY OF ORDER G.O.(RT) NO.715/2000/PWD DTD. 24/07/2000 OF THE PUBLIC WORKS (K) DEPARTMENT. R3(C): COPY OF DOCUMENT ISSUED BY ASST.ENGINEER P.W.D. (ROADS)SECTION. R3(D): COPY OF A ROUGH SKETCH OF THE 3 BRIDGES SHOWING THEIR LOCATION. R3(E): COPY OF ORDER G.O.(RT) NO.396/2000/PWD DTD. 11/04/2000 OF THE PUBLIC WORKS (E) DEPARTMENT. R3(E): COPY OF THE MEMORANDUM OF UNDERSTANDING. R3(F): COPY OF G.O.(RT) NO.692/2000/PWD DTD. 18/07/2000 OF THE PUBLIC WORKS (E) DEPARTMENT. R3(F): COPY OF AGREEMENT. R3(G): COPY OF THE STATEMENT AS PER DIRECTION OF THIS HON'BLE COURT. R3(H): N I L R3(I): COPY OF THE GAZETTE NOTIFICATION DTD. 8/10/2009. R3(J): COPY OF AGREEMENT NO.RBDC/MISC/58/2007 DTD. 15/05/2007. R3(K): COPY OF COMMUNICATION MADE BY THIS RESPONDENT AND 4TH RESPONDENT DTD. 30/07/2007. Kss ..2/- ...2..... WPC.NO.7050/2006 R3(L): COPY OF COMMUNICATION MADE BY THIS RESPONDENT AND 4TH RESPONDENT DTD. 4/09/2007. R3(M): COPY OF COMMUNICATION MADE BY THIS RESPONDENT AND 4TH RESPONDENT DTD. 14/11/2007. R3(N): COPY OF COMMUNICATION MADE BY THIS RESPONDENT AND 4TH RESPONDENT DTD. 24/11/2007. R3(O): COPY OF COMMUNICATION MADE BY THIS RESPONDENT AND 4TH RESPONDENT DTD. 28/03/09. R3(P): COPY OF COMMUNICATION MADE BY THIS RESPONDENT AND 4TH RESPONDENT DTD.10/08/09. R3(Q): COPY OF COMMUNICATION MADE BY THIS RESPONDENT AND 4TH RESPONDENT DTD. 12/08/09. R3(R): COPY OF COMMUNICATION MADE BY THIS RESPONDENT AND 4TH RESPONDENT DTD. 7/10/09. ANNEXURE A1: COPY OF THE FIRST TWO PAGES OF THE AGREEMENT, DTD. 15/05/2007 EXECUTED BETWEEN THE 3RD RESPONDENT IN THE WRIT PETITION AND THE FIRM. /TRUE COPY/ P.A.TO JUDGE Kss C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. --------------------------- W.P.(C) No. 7050 OF 2006 -------------------------- Dated this the 2nd day of June, 2010 J U D G M E N T Ramachandran Nair, J. This is a public interest litigation filed by a local citizen challenging the continued collection of toll (users fee) for an over bridge constructed by the Roads and Bridges Development Corporation of Kerala (hereinafter referred to as the RBDCK) over the national highway 49 at S.N.Junction at Tripunithura. 2. We have heard the learned counsel appearing for the petitioner, the learned Advocate General appearing for the State Government, the learned standing counsel appearing for the RBDCK and the additional standing counsel appearing for the Central Government Ministry of Road Transport and Highways and the counsel appearing for the previous contractor. The above bridge was constructed in the year 2004 by RBDCK and they started collection of toll from 2005 onwards. In fact it is the admitted position that the bridge is constructed by the RBDCK without any clearance from the Central Government Ministry of Road Transport and Highways. The portion of the national highway 49 over which W.P.(C).No.7050/2006 2 this bridge is constructed happens to be part of the Seaport-Airport road constructed and maintained by the RBDCK, which is under the control of the Government of Kerala. Besides this bridge, there is another railway over bridge constructed by the RBDCK at Irumpanam in the Seaport-Airport road. The toll collection for both these bridges and also for the Chithrapuzha bridge over the river which is in the Seaport-Airport road and which is fairly an old one started in 2005 and the total toll collection as of now is something above Rs.12 crores. The cost of construction of the old Chitrapuzha bridge is not on record. However, it is stated that the cost of construction of the bridge at S.N.Junction is around 5.10 crores whereas the cost of construction of the bridge at Irumpanan in the Seaport-Airport road is around Rs.5.82 crores. The learned Advocate General contended that on account of interest, the cost of the bridge constructed at S.N.Junction has gone up to Rs.7 crores and above. The communication between the State Government and the Central Government is produced by the learned Advocate General before us which clearly establish that the construction of the over bridge at S.N.Junction was unnecessarily taken up by the RBDCK because it W.P.(C).No.7050/2006 3 was the duty of the national highway authority to construct the over bridge. It is the contention of the petitioner that substantial portion of the cost of the over bridge is recovered by the RBDCK from Southern Railways. The further allegation is that even Cochin Refineries was made to share part of cost of construction. Even though the learned Advocate General has denied receipt of funds from Railways and Cochin Refineries, we do not think we should enquire into these matters because the further toll collection for the bridge in NH 49 cannot be permitted for the simple reason that its cost is fully recovered as the toll collection as of now is above Rs.12 crores for the two bridges. Further no toll can be collected under the Kerala Road Fund Act for the bridge on the national highway which itself ought to have been constructed by the national highway authority under whose norms, toll can be collected only for bridges costing above Rs.5 crores. Apart from these, the collection of toll under Section 7 of the National Highway Act authorises collection up to the cost of the bridge or road, as the case may be. Irrespective of whether the collection of tolls so far by the RBDCK is correct or not, we do not think they are entitled to collect toll any more for the bridge W.P.(C).No.7050/2006 4 in S.N.Junction, the cost of which is fully recovered. Since the bridge is on the national highway, we allow the writ petition by directing respondents not to proceed with auction of the right to collect toll for the current year or for any subsequent years. Respondents are accordingly prohibited from collecting toll for the railway over bridge at S.N.Junction in Tripunithura. However respondents are free to arrange for collection of toll for Seaport- Airport road or on the bridge at Irumpanam in accordance with the norms. C.N.RAMACHANDRAN NAIR (JUDGE ) P.S.GOPINATHAN (JUDGE ) vps W.P.(C).No.7050/2006 5 W.P.(C).No.7050/2006 6