NHAI Can't Force Public To Pay Toll If Highways Are Not Well-Maintained: Kerala High Court

The Kerala High Court recently 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, therefore, suspended the toll collection in Paliyekkara Toll Plaza in Thrissur district for four weeks.

The Division Bench of Justices A. Muhammed Mustaque and Harisankar V. Menon observed:

"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 Bench was considering a batch of writ petitions, which had challenged the toll collection stating that there were severe traffic congestion on the road caused due to commencement of construction of underpasses and flyovers, and black spot rectification works by the National Highways Authority (NHAI) when the service roads were not properly provided.

The Court relied on the Supreme Court decision of Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. v. M.P. Road Development Corporation and Another wherein the right to well-maintained and safe roads was held to be fundamental right guaranteed under Article 21 of the Constitution, casting a duty on the State to ensure the same.

Stating that these works may have been a contributing factor for the traffic congestion, the Court focused on the issue whether the collection of toll fees can be sustained in such circumstances. It also found that the NHAI ought to have considered and addressed the issue at the appropriate stage.

The Court further observed that the NHAI ought to have taken into consideration the hindrance to traffic that would be caused as a result of the construction work undertaken.

The ASGI appearing for the NHAI pointed out that the Supreme Court had stayed the judgment of the Madras High Court, which had halted the toll collection by NHAI on Madurai-Tuticorin Highway till road was relaid and maintained in a good condition. However, the Bench opined that the matter was pending consideration and the stay granted therein cannot be a ground to absolve the NHAI in this case.

"...it cannot overlook the reality that the congestion and hardship currently experienced by commuters have resulted directly from a distinct construction activity undertaken by the National Highways Authority through separate contractors or on account of failure on the part of the concessionaire to maintain the service roads."

If the public is not receiving the intended benefit of road usage in return for the user fees imposed, the State cannot compel payment of such a fee solely based on a private contractual arrangement. Public accountability requires not only supervision of such projects but also active management with a view to upholding public interest. 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."

Thus, it suspended the collection of toll fees for a period of 4 weeks. Regarding the loss sustained by the concessionaire as result, the Court held that the same can be raised by the NHAI in an appropriate manner.

Case Title - Shaji J Kodankadath v Union of India and connected cases

Case No - WP(C) 20253/2021 and connected cases

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