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Sameer Surendra Desai Versus State of Maharashtra And Ors.

2004 (4) TMI 624 - BOMBAY HIGH COURT

Dated:- 28-4-2004 - C Thakker and S Bobde, JJ. JUDGMENT C.K. Thakker, C.J. 1. By invoking Article 226 of the Constitution of India in Public Interest Litigation (PIL), the petitioner has prayed this Court to issue an appropriate writ, direction or order quashing and setting aside notification dated 28th February, 2003 and directing M/s. Ashok Infra, respondent No. 5 herein, to refund the entire amount collected by it towards collection of toll after it had received the amount to which it was oth .....

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B. I.). 2. The case of the petitioner in the petition is that he is a citizen of India. According to him, State of Maharashtra had adopted a policy of developing infrastructure like construction of tunnels, roads, bridges, etc. through private sector participation. Since the State Government was in financial crisis, it had adopted a new concept known as "Build, Operate and Transfer" ("BOT" for short). Under the said project, the Government hands over the work to a private sec .....

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t, Since more than hundred years were over, there was necessity either to repair it or to construct a new bridge. It was also necessary in view of increase in vehicular traffic. The Government considered the possibility of widening of existing old bridge but the British Company which had constructed the old bridge informed the State Government that estimated life of the old bridge of hundred years had come to an end and the said Company would not be responsible, if any eventuality would arise. A .....

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agent. The notification dated 28th February, 2000 permitted respondent No. 5 to collect toll as prescribed therein till December, 2005. Rates for various vehicles have been prescribed and exemption to certain vehicles have also been granted. 4. It is the case of the petitioner that with effect from 1st March, 2003, suddenly new charges were sought to be introduced and toll allowed to be collected on that basis. The said action is illegal, contrary to law and unlawful. It has been taken with con .....

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ts and having his shop at Kolhapur. He is having a four wheeler vehicle and for business purposes he has to travel to Sangli District several times. He has to cross through bridge over Krishna river. He has, therefore, to pay toll. According to the petitioner, therefore, "he has every right to ask that how much he has paid? How much more he will have to pay as toll? Therefore he is affected party. By the amendment, thus, the petitioner claims to be affected party or "aggrieved" pe .....

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timated by the department at ₹ 5.25 crores. Since the construction was under BOT policy, terms and conditions were specified in the tender form itself. Respondent No. 5 submitted its offer at ₹ 25.10 crores as the total estimated cost of construction and concession period of six years and nine months. "Concession period" would mean total period including period of construction and toll collection till the project is finally transferred and handed over to the State Governmen .....

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as "the Act") authorises the State Government to impose toll on motor vehicles passing over a bridge or through a tunnel constructed, repaired, improved or strengthened. It expressly states that the State Government and an entrepreneur/agent under BOT project may collect capital outlay. The expression "capital outlay" has been defined in Explanation to Section 20 (1A) of the Act. The contractor is, therefore, entitled to collect the amount in accordance with Section 20 of the .....

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iling affidavit. Time was granted and affidavits and further affidavits have been filed. 9. Executive Engineer, Public Works Department, Miraj, filed an affidavit dated 20th November, 2003, contending that the petition was misconceived and not maintainable at law. It was stated that on April 23, 199'8, the Executive Engineer, Public Works Department, Miraj invited tenders for construction of major bridges across river Krishna at Nagpur-Wardha-Yeotmal-Miraj-Kolhapur, M.S.H. 3 at Km. 181/400, .....

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. It is stated by the deponent that as per tender condition No. 8.2, a notification dated 28th February, 2000 was issued and respondent No. 5 was allowed to collect toll from 29th February, 2000. Toll was to be increased after three years as per the said condition (8.2). ("The rates of toll shall be increased after every three years."), After three years i.e. on 28th February, 2003, therefore, toll was increased which cannot be said illegal or unlawful. In the draft notification dated .....

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. The said mistake was subsequently rectified and revised notification was issued on 28th February, 2003 and increase in toll was permitted. Such action cannot be said illegal or objectionable. It also cannot be alleged that the record was tampered with to favour respondent No. 5. 10. It was stated by the deponent that Section 20(1-A) of the Act enacts that notwithstanding anything contained in Sub-section (1), but subject to provisions of Subsections (1-B), (1-C) and (1-D), the State Government .....

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th March, 1999 entrepreneur was allowed to collect toll for the remaining period i.e. up to 3rd December, 2005 with increase in toll rates after three years. Thus, collection of toll was permitted in accordance with law and as per terms and conditions of tender agreement. The petitioner, therefore, cannot make grievance against collection of Loll by respondent No. 5. 11. After the amendment in the petition, further affidavit was filed by the State Government. It was stated that the period for to .....

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ur would collect toll more than the total project cost of ₹ 2510.88 lakhs, it would be profit of the entrepreneur. As per the statement submitted by the entrepreneur to the Department, it had collected toll to the tune of ₹ 1235 lakhs up to end of December, 2003. The toll rates and collection period was given in the notification and it was clearly displayed on the Notice Board near toll plaza. As per tender condition No. 3.7.9, monthly toll collection statements are to be submitted b .....

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dent No. 5 was accepted which was for six years and nine months as concession period including two years' period of construction. The second lowest offer was given by M/s. Ameya Developers Pvt. Ltd., Pune with concession period of eight years and three months. The entrepreneur had quoted total project cost at ₹ 2510.88 lakhs. He was, therefore, entitled to recover a total project cost of ₹ 2510.88 lakhs quoted in its tender form which was legal and valid. Since concession period .....

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y permitting collection of toll before a period of two years or from collecting toll at enhanced rate with effect from 1st March, 2003, illegality has been committed by Respondent-State. The petition, therefore, deserves to be dismissed. 13. An affidavit-in-reply is also filed by respondent No. 5 on 27th January, 2004. A preliminary objection has been raised that PIL is false, frivolous and filed with mala fide intention as it really reflects "the interest of the private party". 14. On .....

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o the notification dated 28th February, 2000. Again, a reminder was sent on 3rd January, 2003. Those letters have also been annexed to the affidavit-in-reply. Respondent No. 1, therefore, rightly issued notification on 28th February, 2003 permitting increase in toll rate. It was also stated that according to the tender document, concession period was six years and nine months including construction period of two years but as the work was completed before two years, respondent No. 5 was legally a .....

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ect cost. Respondent No. 5 is suffering a loss and has not even achieved the expected toll collection. It was, therefore, submitted that the petition deserves to be dismissed. 15. Having heard the learned counsel for the parties, in our opinion, it cannot be said that any illegality has been committed by respondent No. 1 or respondent No. 5 has been unduly benefited by the officers of respondent No. 1. So far as BOT is concerned, it is in consonance with the provisions of the Act. Apart from the .....

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tion, it may be necessary to consider the relevant provisions of the Act. The Act has been enacted to consolidate and amend the law relating to taxation of motor vehicles in the State of Bombay and to provide for certain other matters. Section 20 of the Act imposes a bar to levy tolls on motor vehicles except as provided therein. The said section has been amended and Sub-section (1-A) of Section 20 expressly provided that notwithstanding anything contained in Sub-section (1), but subject to the .....

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over any bridge or through any tunnel including an approach road thereto or any section of road or any by-pass described hereunder in Clauses (a) and (b), or (ii) passing over or through any portion or a part of any such bridges or tunnels including the approach roads thereto or sections of roads or by-passes, the cluster of which is situated in a well defined zone and declared by the State Government under the said Clause (a) as one single entity, including the motor vehicles and trailers draw .....

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by-pass or a cluster of such bridges or tunnels including approach roads thereto or sections of roads or by-passes situated. in a well defined zone and declared by the State Government, by a notification in the Official Gazette, as one single entity, which is newly constructed, reconstructed, improved or repaired as the case may be, after the commencement of the Bombay Motor Vehicles Tax (Amendment) Act, 1987, at the expense of the State Government or at the expense of any person or body or asso .....

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h entrepreneur or agent under the Build, Operate and Transfer (B.O.T.) Projects and the total capital outlay of which construction, reconstruction, improvement or repairs, as the case may be, is not less than ten lakhs of rupees; or (b) in respect of a bridge or tunnel including approach road thereto or section of road or by-pass which, in the opinion of the State Government, is of special service to the public. Explanation.- For the purposes of this section, the expression "Capital Outlay& .....

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e invited and the lowest bid of respondent No. 5 was accepted. An agreement was entered into between the parties, work order was issued and on the basis of terms and conditions of tender, respondent No. 5 was allowed to collect toll. It is also clear that under the agreement, respondent No. 5 can collect toll up to 3rd December, 2005. Admittedly, the said period is not over. It, therefore, cannot be said that by allowing respondent No. 5 to continue to collect toll, any favour has been shown by .....

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2000. It, therefore, cannot be said that by permitting increase in rate with effect from 1st March, 2003 by a notification dated 28th February, 2003, an illegal action was taken by the first respondent to extend undue benefit in favour of respondent No. 5 and by allowing it to increase rates with effect from 1st March, 2003. Even that contention, therefore, cannot be said to be well founded. 18. Regarding extra period, it is clear that though period of two years for construction of work was give .....

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thus allowed respondent No. 5 to collect toll which was in consonance with terms and conditions of the agreement and no objection can be raised against such a course adopted by the first respondent-State. It was expected of the State Government to abide by the terms and conditions of the agreement by allowing the respondent No. 5 to start collection of toll. Regarding period, it is the case of both, respondent No. 5 as well as respondent No. 1 and not disputed by the petitioner that the period .....

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sion of this Court in Vinayak V. More v. The Maharashtra State Road Development Corporation Ltd., 2000 Bom CR 437 : (AIR 2000 Bom 309), Considering the provisions of Section 20, as amended in 1987, this Court held that normally when the figures of costs and expenses are furnished by the Corporation before the Court, the Court would not proceed on the basis that they were incorrect and the collection was arbitrary. It was observed that ordinarily it is not for a High Court to go into such aspects .....

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