HON’BLE SRI JUSTICE V.ESWARAIAH W.P.NO.7321 OF 2002 Dt.5.8.2010 Between: Andhra Pradesh State Road Transport Corporation Rep. by its Managing Director. ..Petitioner And Government of Andhra Pradesh, Hyderabad, Rep. by its Principal Secretary, Road & Buildings Department and others ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH W.P.NO.7321 OF 2002 ORDER: Petitioner is the Andhra Pradesh State Road Transport Corporation (for short, the RTC), Hyderabad. Petitioner questions sub-clause (ix) of Clause 6 of the terms and conditions for collection of tolls in the agreement No.1/1999- 2000, date 2.8.1999, entered into between the Roads and Buildings Department, Government of Andhra Pradesh and respondents 4 and 5 as ultra vires and illegal and to set aside notification No.609/D3/97, dated 22.12.2001 issued by the Executive Engineer (Roads and Buildings Division), Kakinada, and the memo No.1118/C3/2002, dated 10.1.2002 of the Deputy Transport Commissioner, East Godavari District, Kakinada. It is the case of the petitioner – RTC that the Government of Andhra Pradesh entered into an agreement with respondents 4 and 5 on 2.8.1999 for formation of bypass road to Mandapeta town in East Godavari District and accordingly the bypass road was formed. As per the said agreement, respondents 4 and 5 have to construct the bypass from out of their own funds and as per the drawings prepared by the Department. Clause 6 of the agreement deals with terms and conditions for collection of toll and respondents 4 and 5 are entitled to collect toll at specified rates from the users of the bypass for a period of 19 years. For trucks/buses, the rate of toll to be charged is Rs.20/- per vehicle passing through the road per day. Sub-clause (ix) of the Clause 6 of the said agreement stipulates that the entrepreneur i.e., respondents 4 and 5 have got the authority for diverting the commercial traffic through bypass road. As per the clarification of the Deputy Transport Commissioner, East Godavari District, Kakinada, in memo No.1118/C3/2002, dated 10.1.2002, commercial traffic means all goods vehicles, trucks, tractor and tractors cranes, dozers, road rollers and all passenger vehicles (passenger buses, tourist buses, LT cab taxies), autos and motor cabs (vans). Petitioner questions the said clause of the agreement on the ground that the State Government have no statutory power to authorize entrepreneur to divert commercial traffic through bypass road so as to enable the entrepreneur to collect tolls from the vehicles and the said clause authorizing the contractor to collect toll fee from the RTC is illegal and arbitrary. The 2nd respondent Executive Engineer (R & B) filed counter stating that the traffic on Mandapeta – Jonnada road which has to pass through Mandapeta is very high due to high intensity of traffic there is lot of congestion and thereby accidents are being occurred and hence there is an immediate necessity of forming a bypass road to Mandapeta town through the outskirts of the town from Mandapeta to Jonnada road and joining Dwarapudi – Yanam road. If the commercial vehicles are passes through the existing Mandapeta – Jonnada Road through Mandapeta town, the purpose of formation of bypass road will serve no purpose and same traffic jams and accidents will occur causing inconvenience to the public and also business people. Hence, the Government have decided to divert commercial vehicles through the Mandapeta bypass road only. It is further stated that the scheme with regard to the collection of toll on commercial vehicles was intimated to all the concerned vide press notification and also about mentioning of the aforesaid condition in notification No.609/D3/97, dated 22.12.2001. The 1st respondent – Government of Andhra Pradesh represented by its Principal Secretary also files counter stating that due to high intensity of traffic and high density of population in Mandapeta town there is lot of congestion and thereby accidents were occurred, as such it was proposed to form a bypass road to Mandapeta town in East Godavari District under Build, Operate and Transfer (BOT) scheme with toll rates and accordingly bids were invited and the Engineer- in-Chief (R&B) has prepared financial viability statement indicating investment on the aforesaid road, amount required for routine maintenance, periodic maintenance etc., in addition to interest on borrowings and overheads. The calculation reveals that the BOT entrepreneur is going to get his investment along with interest within 19 years of toll collection after completion of project, anticipating that all the commercial vehicles will ply through the aforesaid bypass road. Accordingly, an arrangement was concluded with delegating the power to entrepreneur to divert the commercial traffic to bypass road. Keeping in view of Rule 26 of the guidelines issued for private investment in Road Projects in Andhra Pradesh vide G.O.Ms.No.107, R.T. & B (R.I) Department, dated 20.6.1998, and any deviation with law and agreement condition will attract legal obligations. In fact, the R.T.C. was permitted to ply their passenger vehicles through Mandapeta bypass road and accordingly they are plying their vehicles by paying toll tax and the same is being re-collected from the passengers in the form of fares including toll tax from the year 2006 onwards. The Government issued orders in G.O.Ms.No.107, dated 20.6.1998 empowering certain guidelines for private investment in Road Projects in Andhra Pradesh. By the aforesaid G.O., the Government have decided to encourage private parties to take up development and maintenance of certain road infrastructure projects on Build, Operate and Transfer (BOT) basis or Design, Build, Finance, Operate and Transfer (DBFOT) basis. The Government have taken a decision to accept for private investment in the road projects in the State of Andhra Pradesh and as per serial No.26 of the annexure to the said G.O., the management of the Road stretch built through private investment, the enterprise will have powers to regulate and control the traffic on the road stretch forming part of the agreement between the Government and the enterprise. Admittedly, the petitioner has not chosen to question the said Government Order. Pursuant to the said G.O., alone, the BOT scheme has been formulated entering into the agreement by the Government in favour of respondents 4 and 5 and therefore it cannot be said that sub-clause (ix) of Clause 6 of the said agreement dated 2.8.1999 is illegal and without any authority of law. However, learned counsel appearing for the RTC submits that as per Section 98 of the Motor Vehicles Act, 1988 (for short, the Act) the provisions of Chapter VI and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law. Chapter VI of the Act relates to special provisions relating to State Transport Undertakings. Chapter V of the Act relates to control of transport vehicles. Under Chapter V the transport authorities are required to control transport vehicles by granting stage carriage permits etc. The RTC is only permitted to ply on the roads as per the scheme. Therefore, the RTC has no right to object for formation or laying of roads. The RTC has got limited right to make use of the roads for plying its vehicles on the notified scheme. Therefore, with regard to the construction of road, it cannot be said that the RTC has any right to object for the formation of the new road. But, the RTC has not questioned the formation of new road. Its limited grievance is relating to the compulsory diversion of its buses through the bypass road. When the Government have got power to regulate the traffic, the diversion of commercial traffic is part and parcel of the scheme. Therefore, the petitioner is not entitled to any relief in this writ petition. Petitioner has not stated anything about affecting its existing right. The writ petition is accordingly dismissed. No order as to costs. _________________ V.ESWARAIAH, J. 5.8.2010 kpr