BY AD vs P.R.VENKATESH

Heard Mr.P.R.Venkatesh, learned counsel for the Petitioners, Mr.S.Biju, learned Senior Central Government Counsel appearing for Respondent Nos.1, 2 and 4 and Mr.Thomas P.Kuruvilla, learned counsel appearing for Respondent No.5.

2. This Public Interest Litigation (PIL) is filed in respect of levy of toll for the users of road between Mannuthy in Thrissur District and Vadakkencherry in Palakkad District.

3. Before filing the present PIL, a Division Bench of this Court in W.P(C)No.20796 of 2018, by judgment dated 9 March 2021, had issued certain directions for completion of the project in question by October 2021, subject to any unforeseen adverse conditions. This petition was filed raising a grievance that the construction of the tunnel is not complete and the Respondents have started collecting toll for the tunnel portion even though the construction has not been completed which is being undertaken by Respondent No.5, the concessionaire. The prayers in the PIL are as under : “a) Declare that the respondents cannot collect any toll fee for the tunnel portion as seen from Ext P9 reply W.P(C)No.14203 of 2024 4 issued to the 2nd petitioner P.P.George, which specifically fixed the fee for the tunnel at Rs.69.85, especially when the work which was undertaken by the consessionaire and bound to be completed before the opening of the project and part of the concessionarire agreement and now closed for completion of the said work; b) Issue a writ of mandamus or any other appropriate writ, order or direction restraining the respondents from collecting any amount as toll fee or otherwise for user of the tunnel to the tune of Rs.69.85 as stated in Ext P9 till the tunnel work is completed and opened for the user of the public;”

4. On 28 February 2025, when the Petition came up on board, the learned counsel for the Petitioner submitted that according to his information, the construction of the tunnel is complete and a counter affidavit was filed by Respondent No.5, the concessionaire, confirming the said position. However, in the earlier Writ Petition, this Court had placed the mandate on the National Highways Authority of India and it was upto the National Highways Authority of India to confirm that the work is complete. We called upon the National Highways Authority of India to place the statement of the responsible officer on record regarding the completion of the project and the collection of toll.

5. The learned Senior Central Government Counsel appearing for Respondent Nos.1, 2 and 4 has placed before us an affidavit filed by the Project Director, National Highways Authority of India, PIU, Palakkad. He has stated in the affidavit as under : W.P(C)No.14203 of 2024 5 “11. Therefore, upon completion of 90% of the Project Highway and issuance of PCC, the 5th Respondent became legally entitled to commence commercial operations and collect toll charges/user fees. Thereafter, upon successful completion of 1.230 km of the balance Project Highway and completion of the various tests stipulated in Article 14 and Schedule I of the Concession Agreement, a cumulative length of 26.955 km (i.e., PCC-1: 25.725 km + PCC-2 1.230 km) was opened for tolling, and user fee was revised with effect from 01.04.2022. Subsequently, upon completion of an additional 1.400 km of the balance Project Highway and completion of the requisite tests as per Article 14 and Schedule I of the Concession Agreement, a total cumulative length of 28.355 km (i.e., PCC-1: 25.725 km + PCC-2: 1.230 km + PCC-3: 1.400 km) was put into tolling, and user fee was revised with effect from 03.11.2022 for the entire Project Highway.

12. Accordingly, the entire length of the Project Highway became operational, and the user fee was rightly levied by the Concessionaire. As per the terms agreed under the Settlement Agreement dated 10th August 2023, the Left Hand Side (LHS) tube of the Kuthiran Tunnel was temporarily closed to carry out certain additional concrete lining works on the tunnel roof, which were not a part of the initial scope of works to be undertaken by the Concessionaire. The concrete lining was carried out so as to comply with the conditions setforth in the Supplementary agreement dated 10.03.2023, hence, the averment of the Petitioner that the tunnel works were incomplete as on the date of issuance of PCC is denied as false and baseless. Consequently, to complete the gantry concreting, only the LHS tube was closed for a period of five months from mid- January 2024 to mid-June 2024. During this period. although traffic was regulated, the Concessionaire ensured that the closure did not cause any inconvenience or safety concerns for the users. The gantry concreting was completed in June 2024, and the LHS tunnel was reopened to traffic with effect from 14.06.2024. W.P(C)No.14203 of 2024 6 13. It is submitted that the user fee was determined and approved by the NHAI strictly in accordance with the provisions of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 ("Rules"), and in consonance with the Concession Agreement and the User Fee Notification published for the said project.

14. In the above context, the 4th respondent has issued letter No. 12276/PIU PKD/NH544/V-T/KL3/IE/819 dated 27.06.2024 to the Independent Engineer, M/s Dhruv Consultancy Services Ltd according approval for issuance of completion certificate pursuant to the settlement agreement dated 10.08.2023. True copy of the letter No. 12276/PIU- PKD/NH544/V-T/KL3/IE/819 dated 27.06.2024 is produced herewith and marked as Exhibit R4(a). Pursuant to Ext. R4(a) communication, the Independent Engineer has issued completion certificate certifying completion of all works pertaining to concession agreement dated 24.08.2009 as completed. A true copy of the letter NO. DCSL VA/NHA/KL03/2024-25/530 dated 28.06.2024 issued by the M/s independent Engineer, M/s Dhruv Consultancy Services Ltd is produced herewith and marked as Exhibit R4(b).

15. It is submitted that in view of Ext. R4(a) and R4(b), the grievances of the petitioner as highlighted in the writ petition has been redressed and the prayers in the writ petition has become infructuous, In view of the above, none of the grounds stated in support of the reliefs in the Writ Petition is maintainable and the same is liable to be dismissed.

16. In view of the above contentions, the reliefs sought in the Writ Petition cannot survive and the same may be rejected.” W.P(C)No.14203 of 2024 7

6. In view of the above position placed before us, we do not deem it necessary to take the cause raised in this PIL any further.

7. The Writ Petition is accordingly closed. Sd/- Nitin Jamdar Chief Justice Sd/- S. Manu Judge vgd/09.04.25 W.P(C)No.14203 of 2024 8 APPENDIX OF WP(C) 14203/2024 PETITIONERS’ EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 TRUE COPY OF DETAILS OF THE CONCESSION AGREEMENT DATED 24.8.2009 ALONG WITH TYPED COPY OF EXT P1 TRUE COPY OF ORDER DATED 10.12.2012 IN W.P. (C) NO. 20656/2012 OF THIS HON’BLE COURT TRUE COPY OF ORDER DATED 16.1.2013 IN W.P. (C) NO. 20656/2012 OF THIS HON’BLE COURT TRUE COPY OF ORDER DATED 29.1.2013 IN W.P. (C) NO. 20656/2012 OF THIS HON’BLE COURT TRUE COPY OF ORDER DATED 2.4.2013 IN W.P. (C) NO. 20656/2012 OF THIS HON’BLE COURT TRUE COPY OF JUDGMENT DATED 9.3.2021 IN W.P.(C) NO. 20796/2018 OF THIS HON’BLE COURT TRUE COPY OF THE REPLY DATED 02.06.2022 GIVEN TO THE 1ST PETITIONER BY THE DGM(T) & PROJECT DIRECTOR TRUE COPY OF THE SAID PROVISIONAL CERTIFICATE ISSUED BY T.P. VELAYUDHAN DATED 9.3.2024 EXHIBIT P9 TRUE COPY OF THE REPLY DATED 03.02.2024 OF THE PROJECT DIRECTOR TO THE 2ND PETITIONER RESPONDENTS’ EXHIBITS EXHIBIT R5(A) TRUE COPY OF THE COMPLETION CERTIFICATE DATED 28-06-2024ISSUED BY THE INDEPENDENT ENGINEER ANNEXURE R4(A) TRUE COPY OF THE LETTER NO. 12276/PIU-PKD/NH544/V-T/KL3/IE/819 DATED 27.06.2024 ANNEXURE R4(B) A TRUE COPY OF THE LETTER NO. W.P(C)No.14203 of 2024 EXHIBIT R4(A) EXHIBIT R4(B) 9 DCSL-VA/NHA/KL03/2024-25/530 DATED 28.06.2024 ISSUED BY THE M/S INDEPENDENT ENGINEER, M/S DHRUV CONSULTANCY SERVICES LTD TRUE COPY OF THE LETTER NO. 12276/PIU-PKD/NH544/V-T/KL3/IE/819 DATED 27.06.2024 TRUE COPY OF THE LETTER NO. DCSLVA/NHA/KL03/2024-25/530 DATED 28.06.2024 ISSUED BY THE M/S INDEPENDENT ENGINEER, M/S DHRUV CONSULTANCY SERVICES LTD

Heard Mr.P.R.Venkatesh, learned counsel for the Petitioners, Mr.S.Biju, learned Senior Central Government Counsel appearing for Respondent Nos.1, 2 and 4 and Mr.Thomas P.Kuruvilla, learned counsel appearing for Respondent No.5.

2. This Public Interest Litigation (PIL) is filed in respect of levy of toll for the users of road between Mannuthy in Thrissur District and Vadakkencherry in Palakkad District.

3. Before filing the present PIL, a Division Bench of this Court in W.P(C)No.20796 of 2018, by judgment dated 9 March 2021, had issued certain directions for completion of the project in question by October 2021, subject to any unforeseen adverse conditions. This petition was filed raising a grievance that the construction of the tunnel is not complete and the Respondents have started collecting toll for the tunnel portion even though the construction has not been completed which is being undertaken by Respondent No.5, the concessionaire. The prayers in the PIL are as under : “a) Declare that the respondents cannot collect any toll fee for the tunnel portion as seen from Ext P9 reply W.P(C)No.14203 of 2024 4 issued to the 2nd petitioner P.P.George, which specifically fixed the fee for the tunnel at Rs.69.85, especially when the work which was undertaken by the consessionaire and bound to be completed before the opening of the project and part of the concessionarire agreement and now closed for completion of the said work; b) Issue a writ of mandamus or any other appropriate writ, order or direction restraining the respondents from collecting any amount as toll fee or otherwise for user of the tunnel to the tune of Rs.69.85 as stated in Ext P9 till the tunnel work is completed and opened for the user of the public;”

4. On 28 February 2025, when the Petition came up on board, the learned counsel for the Petitioner submitted that according to his information, the construction of the tunnel is complete and a counter affidavit was filed by Respondent No.5, the concessionaire, confirming the said position. However, in the earlier Writ Petition, this Court had placed the mandate on the National Highways Authority of India and it was upto the National Highways Authority of India to confirm that the work is complete. We called upon the National Highways Authority of India to place the statement of the responsible officer on record regarding the completion of the project and the collection of toll.

5. The learned Senior Central Government Counsel appearing for Respondent Nos.1, 2 and 4 has placed before us an affidavit filed by the Project Director, National Highways Authority of India, PIU, Palakkad. He has stated in the affidavit as under : W.P(C)No.14203 of 2024 5 “11. Therefore, upon completion of 90% of the Project Highway and issuance of PCC, the 5th Respondent became legally entitled to commence commercial operations and collect toll charges/user fees. Thereafter, upon successful completion of 1.230 km of the balance Project Highway and completion of the various tests stipulated in Article 14 and Schedule I of the Concession Agreement, a cumulative length of 26.955 km (i.e., PCC-1: 25.725 km + PCC-2 1.230 km) was opened for tolling, and user fee was revised with effect from 01.04.2022. Subsequently, upon completion of an additional 1.400 km of the balance Project Highway and completion of the requisite tests as per Article 14 and Schedule I of the Concession Agreement, a total cumulative length of 28.355 km (i.e., PCC-1: 25.725 km + PCC-2: 1.230 km + PCC-3: 1.400 km) was put into tolling, and user fee was revised with effect from 03.11.2022 for the entire Project Highway.

12. Accordingly, the entire length of the Project Highway became operational, and the user fee was rightly levied by the Concessionaire. As per the terms agreed under the Settlement Agreement dated 10th August 2023, the Left Hand Side (LHS) tube of the Kuthiran Tunnel was temporarily closed to carry out certain additional concrete lining works on the tunnel roof, which were not a part of the initial scope of works to be undertaken by the Concessionaire. The concrete lining was carried out so as to comply with the conditions setforth in the Supplementary agreement dated 10.03.2023, hence, the averment of the Petitioner that the tunnel works were incomplete as on the date of issuance of PCC is denied as false and baseless. Consequently, to complete the gantry concreting, only the LHS tube was closed for a period of five months from mid- January 2024 to mid-June 2024. During this period. although traffic was regulated, the Concessionaire ensured that the closure did not cause any inconvenience or safety concerns for the users. The gantry concreting was completed in June 2024, and the LHS tunnel was reopened to traffic with effect from 14.06.2024. W.P(C)No.14203 of 2024 6 13. It is submitted that the user fee was determined and approved by the NHAI strictly in accordance with the provisions of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 ("Rules"), and in consonance with the Concession Agreement and the User Fee Notification published for the said project.

14. In the above context, the 4th respondent has issued letter No. 12276/PIU PKD/NH544/V-T/KL3/IE/819 dated 27.06.2024 to the Independent Engineer, M/s Dhruv Consultancy Services Ltd according approval for issuance of completion certificate pursuant to the settlement agreement dated 10.08.2023. True copy of the letter No. 12276/PIU- PKD/NH544/V-T/KL3/IE/819 dated 27.06.2024 is produced herewith and marked as Exhibit R4(a). Pursuant to Ext. R4(a) communication, the Independent Engineer has issued completion certificate certifying completion of all works pertaining to concession agreement dated 24.08.2009 as completed. A true copy of the letter NO. DCSL VA/NHA/KL03/2024-25/530 dated 28.06.2024 issued by the M/s independent Engineer, M/s Dhruv Consultancy Services Ltd is produced herewith and marked as Exhibit R4(b).

15. It is submitted that in view of Ext. R4(a) and R4(b), the grievances of the petitioner as highlighted in the writ petition has been redressed and the prayers in the writ petition has become infructuous, In view of the above, none of the grounds stated in support of the reliefs in the Writ Petition is maintainable and the same is liable to be dismissed.

16. In view of the above contentions, the reliefs sought in the Writ Petition cannot survive and the same may be rejected.” W.P(C)No.14203 of 2024 7

6. In view of the above position placed before us, we do not deem it necessary to take the cause raised in this PIL any further.

7. The Writ Petition is accordingly closed. Sd/- Nitin Jamdar Chief Justice Sd/- S. Manu Judge vgd/09.04.25 W.P(C)No.14203 of 2024 8 APPENDIX OF WP(C) 14203/2024 PETITIONERS’ EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 TRUE COPY OF DETAILS OF THE CONCESSION AGREEMENT DATED 24.8.2009 ALONG WITH TYPED COPY OF EXT P1 TRUE COPY OF ORDER DATED 10.12.2012 IN W.P. (C) NO. 20656/2012 OF THIS HON’BLE COURT TRUE COPY OF ORDER DATED 16.1.2013 IN W.P. (C) NO. 20656/2012 OF THIS HON’BLE COURT TRUE COPY OF ORDER DATED 29.1.2013 IN W.P. (C) NO. 20656/2012 OF THIS HON’BLE COURT TRUE COPY OF ORDER DATED 2.4.2013 IN W.P. (C) NO. 20656/2012 OF THIS HON’BLE COURT TRUE COPY OF JUDGMENT DATED 9.3.2021 IN W.P.(C) NO. 20796/2018 OF THIS HON’BLE COURT TRUE COPY OF THE REPLY DATED 02.06.2022 GIVEN TO THE 1ST PETITIONER BY THE DGM(T) & PROJECT DIRECTOR TRUE COPY OF THE SAID PROVISIONAL CERTIFICATE ISSUED BY T.P. VELAYUDHAN DATED 9.3.2024 EXHIBIT P9 TRUE COPY OF THE REPLY DATED 03.02.2024 OF THE PROJECT DIRECTOR TO THE 2ND PETITIONER RESPONDENTS’ EXHIBITS EXHIBIT R5(A) TRUE COPY OF THE COMPLETION CERTIFICATE DATED 28-06-2024ISSUED BY THE INDEPENDENT ENGINEER ANNEXURE R4(A) TRUE COPY OF THE LETTER NO. 12276/PIU-PKD/NH544/V-T/KL3/IE/819 DATED 27.06.2024 ANNEXURE R4(B) A TRUE COPY OF THE LETTER NO. W.P(C)No.14203 of 2024 EXHIBIT R4(A) EXHIBIT R4(B) 9 DCSL-VA/NHA/KL03/2024-25/530 DATED 28.06.2024 ISSUED BY THE M/S INDEPENDENT ENGINEER, M/S DHRUV CONSULTANCY SERVICES LTD TRUE COPY OF THE LETTER NO. 12276/PIU-PKD/NH544/V-T/KL3/IE/819 DATED 27.06.2024 TRUE COPY OF THE LETTER NO. DCSLVA/NHA/KL03/2024-25/530 DATED 28.06.2024 ISSUED BY THE M/S INDEPENDENT ENGINEER, M/S DHRUV CONSULTANCY SERVICES LTD