NHAI Or Its Agents Can't Levy Toll If Road Is Pothole-Ridden: Supreme Court Affirms Kerala HC View

The Supreme Court affirmed the view of the Kerala High Court that the National Highways Authority of India cannot force commuters to pay toll if the highway is kept in a terrible condition.A bench comprising Chief Justice of India BR Gavai and Justice K Vinod Chandran dismissed the NHAI's appeal against the Kerala High Court's judgment which suspended the toll collection at Paliyekkara in Thrissur district along NH-544 due to the bad condition of the road.The bench expressly recorded its agreement with the High Court's view that a citizen paying toll acquires a corresponding right to demand good roads, and if that right is not protected, then the NHAI or its agents cannot demand toll.The bench observed :"We cannot but agree with the reasoning of the High Court that: “The obligation of the public to pay a user fee under statutory provisions is premised on the assurance that their use of the road will be free from hindrances. When the public is legally bound to pay a user fee, they simultaneously acquire a corresponding right to demand unhindered, safe, and regulated access to the road. Any failure on the part of the National Highways Authority or its agents to ensure such access constitutes a breach of the public's legitimate expectations and undermines the very basis of the toll regime” (sic)."In the order, the bench also lamented that a citizen, who has paid tax to ply a motor vehicle on the road, is forced to make a further payment of toll for the use of road."That, in a democracy, roads are laid on Build Operate and Transfer (BOT) contracts to ensure that the cost is collected from the users, when motor vehicle tax is remitted for their use on roads, is a sad reflection of free market. That, the successful bidder extracts much more than what is spent on construction and maintenance, is a comedy of errors. That, the roads fall into disrepair due to vagaries of nature and often rank neglect, is the stark reality. That, the toll collectors at the booths, often due to understaffing and overwork, behave like satraps, is a fact of life. That, the poor citizen is bound to wait for hours, in queue and in a cramped space, with the engine running but hardly moving, is a tragedy. That, the toll is really on the purse and the patience of the citizen, as also the environment, is the downside."The Court clarified that the NHAI or the concessionaire would be entitled to pray for the lifting of the suspension the minute the smooth traffic is resumed. Regarding the losses suffered by the concessionaire, the Court said that they can either raise it before the NHAI or seek extension of the period of operation, with or without the responsibility of maintenance."In the meanwhile, let the citizens be free to move on the roads, for use of which they have already paid taxes, without further payment to navigate the gutters and pot-holes, symbols of inefficiency," the Court observed.During the hearing, the bench had severely criticised the NHAI for the terrible condition of the road stretch, which witnessed a 12-hour long traffic snarl on the last weekend. The bench asked how the commuters can be asked to pay toll if the road is not in a motorable condition."Why should a person pay 150 Rs if it takes 12 hours for him to get from one end of the road to the other end?". "A road which is expected to take one hour, it takes 11 more hours and they have to pay toll as well!" CJI BR Gavai had observed during the hearing.Justice Vinod Chandran referred to media reports regarding the traffic congestion in the road stretch. Both judges also said that they have personally experienced the traffic congestion in the route.Solicitor General of India Tushar Mehta appeared for the NHAI. Senior Advocate Shyam Divan appeared for the concessionaire. Senior Advocate Jayant Muthuraj represented the passengers who petitioned the High Court against the toll collection.By the judgment dated August 6, a division bench of the Kerala High Court ordered the suspension of toll collection for four weeks on the ground that the Edapally-Mannuthy stretch was badly maintained and was facing severe traffic congestion due to the delay in the execution of works.The Court observed that toll fees cannot be collected from the public when access to highway is hindered due to ill-maintained roads and consequent traffic congestion."It is to be remembered that the public is obliged to pay the user fees at the toll for using the highway. It casts responsibility on the National Highways Authority to ensure smooth traffic without any barrier created by the NHAI or by its agents, who are the concessionaires. This relationship between the Public and the NHAI is bound by the tie of public trust. The moment it is breached or violated, the right to collect toll fees from the public created through statutory provisions cannot be forced on the public," the High Court observed.A detailed report on the factual background and the arguments can be found here Case Details : NATIONAL...

NHAI Or Its Agents Can't Levy Toll If Road Is Pothole-Ridden: Supreme Court Affirms Kerala HC View

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Citizens can't be forced to pay toll to navigate gutters and potholes, the Court stated.

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