M/S THRISSUR EXPRESSWAY LIMITED & M/S MARKOLINES INFRA PRIVATE LIMITED v. STATE OF KERALA & ORS.

**(CR)** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944 WA NO. 741 OF 2022** **JUDGMENT IN WP(C) 15991/2022 OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** 1 M/S THRISSUR EXPRESSWAY LIMITED, HAVING ITS REGISTERED OFFICE AT #1-80/40/SP/58-65, SHILPA HOMES LAYOUT, GACHIBOWLI, HYDERABAD -500 032. ALSO AT: TOLL PLAZA BUILDING, PANNIYANKARA TOLL PLAZA, VADAKKENCHERRY (PO), PALAKKAD, REPRESENTED BY ITS AUTHORIZED SIGNATORY, MR.NIRANJAN REDDY, AGED 51 YEARS, S/O RAJASHEKARA REDDY, PIN - 678683 2 M/S MARKOLINES INFRA PRIVATE LIMITED, HAVING ITS REGISTERED OFFICE AT 6TH FLOOR, WING-A, SHREE NAND DHAM, SECTOR 11, CBD BELAPUR, NAVI MUMBAI- 400614. ALSO AT: TOLL PLAZA BUILDING, PANNIYANKARA TOLL PLAZA, VADAKKENCHERRY (PO), PALAKKAD REPRESENTED BY ITS AUTHORIZED SIGNATORY, MR.MUKUNDAN MANNIMMAL, AGED 51 YEARS, S/O NARAYANAN NAIR, PIN - 678683 WA Nos.741 & 785 of 2022 BY ADVS. THOMAS P.KURUVILLA P.MARTIN JOSE P.PRIJITH R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J HARIKRISHNAN S. S.SREEKUMAR (SR.) ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAWAN, NEW DELHI, PIN - 110001 3 THE NATIONAL HIGHWAY AUTHORITY OF INDIA, REPRESENTED BY ITS DEPUTY GENERAL MANGER & PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT, NO: 310A, CHANDRA NAGAR EXTENSION, PALAKKAD, PIN - 678007 4 THE SECRETARY, HOME DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 WA Nos.741 & 785 of 2022 5 THE TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE 2ND FLOOR, TRANS TOWERS, VAZHUTHACAUD, THYCAUD P.O., THIRUVANANTHAPURAM, PIN - 695014 6 THE DISTRICT COLLECTOR, PALAKKAD, COLLECTORATE, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, PIN - 678013 7 THE STATE POLICE CHIEF, STATE POLICE HEADQUARTERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM, PIN - 695010 8 THE DISTRICT POLICE CHIEF, PALAKKAD, YAKKARA ROAD, NEAR KSRTC BUS STAND, PALAKKAD, PIN - 678014 9 THE STATION HOUSE OFFICER, VADAKENCHERRY POLICE STATION, VADAKENCHERRY PO, PALAKKAD, PIN - 678683 10 THE REGIONAL TRANSPORT OFFICER (THRISSUR), CIVIL STATION, AYYANTHOLE P.O., THRISSUR , PIN - 680003 11 THE REGIONAL TRANSPORT OFFICER (PALAKKAD), KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, PIN - 678013 12 SMT. RAMYA HARIDAS, AGED 36 YEARS MEMBER OF PARLIAMENT, D/O HARI DASAN, RESIDING AT 16/119, SABARMATI, MAIN ROAD, ALATHUR P.O., PALAKKAD, PIN - 678541 13 KERALA STATE PRIVATE BUS OPERATORS CO-ORDINATION COMMITTEE, 34/470, 1ST FLOOR, TRAVELERS TOWER, SAKTHAN STAND, THRISSUR, REPRESENTED BY ITS GENERAL SECRETARY, PIN - 680651 WA Nos.741 & 785 of 2022 14 BUS OPERATORS ORAGNIZATION, STADIUM BUS STAND, SELVAPALAYAM, PALAKKAD REPRESENTED BY ITS GENERAL SECRETARY, PIN - 678001 15 ALL KERALA BUS OPERATORS ORGANIZATION, BUS BHAVAN, COIMBATORE ROAD, PALAKKAD, REPRESENTED BY ITS GENERAL SECRETARY, PIN - 678001 16 SHAJI K KODANKANDATH, AGED 52 YEARS S/O.JOSE KODANKANDATH, KODANKANDATH HOUSE, PEECHI, THRISSUR, PIN - 680653 17 KERALA TAURUS TIPPER ASSOCIATION, THRISSUR - DISTRICT COMMITTEE, 7/157/2 UDAYANAGAR, P.O. EAST FORT, THRISSUR REPRESENTED BY ITS SECRETARY JAISON C.P., AGED 47 YEARS, S/O.POULOSE, PIN - 680005 BY ADVS. B.G.BIDAN CHANDRAN R.K.MURALEEDHARAN P.DEEPAK K.V.GOPINATHAN NAIR K.B.GANGESH ## **OTHER PRESENT:** SRI. SAIGY JACOB PALATTY-SR. GP THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2022 ALONG WITH 785/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA Nos.741 & 785 of 2022 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944 WA NO. 785 OF 2022** **JUDGMENT IN WP(C) 15991/2022 OF HIGH COURT OF KERALA APPELLANT/RESPONDENT NO.3:** THE PROJECT DIRECTOR REPRESENTHD BY ITS DEPUTY GENERAL MANAGER & PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT, NO: 310A, CHANDRA NAGAR EXTENSION, PAIAKKAD, , PIN - 678007 BY ADVS. B.G.BIDAN CHANDRAN E.C.KURIAKOSE ## **RESPONDENTS/PETITIONERS 1 & 2 & RESPONDENTS 1, 2 & 4 TO** ## **15 AND ADDL.R16 & ADDL.R17:** 1 M/S THRISSUR EXPRESSWAY LIMITED REGISTERED OFFICE AT #1-80/40/SP/58-65, SHILPA HOMES LAYOUT, GACHIBOWLI, HYDERABAD- 500 032 ALSO AT: TOIL PLAZA BUILDING, PANNIYANKARA TOLL PLAZA, VADAKKENCHERRY PO), PAIAKKAD 678683. REPRESENTED` BY ITS AUTHORIZED SIGNATORY MR. NIRAN]AN REDDY, AGED 51 YEARS, S/O RATASHEKARA REDDY, PIN - 500032 WA Nos.741 & 785 of 2022 2 M/S MARKOLINES INFRA PRIVATE LIMITED 6TH FLOOR, WING-A, SHREE NAND DHAM, SECTOR 11, CBD BEIAPUR, NAVI MUMBAI-400614, ALSO AT: TOIL PLAZA BUILDING, PANNIYANKARA TOLL PIAZA, VADAKKENCHERRY Q'O) , PAIAKKAD 678683 REPRESENTED BY ITS AUTHORIZED SIGNATORY, MR.MUKUNDAN MANNIMMAL, AGED 51 YEARS, S/O NARAYANAN NAIR, PIN - 400614 3 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001., PIN - 695001 4 UNION OF INDIA REPRESENTED BY THE SECRETARY, DEPARTMENT OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAWAN, NEW DELHI , PIN - 110001 5 THE SECRETARY HOME DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,., PIN - 695001 6 THE TRANSPORT COMMISSIONER TRANSPORT COMMISSIONERATE 2ND FLOOR, TRANS TOWERS, VAZHUTIIACAUD, THYCAUD P.O. , THIRUVANANTHAPURAM, PIN - 695014 7 THE DISTRICT COLLECTOR PAIAKKAD, COLLECTORATE, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD., PIN - 678013 WA Nos.741 & 785 of 2022 - 8 THE STATE POLICE CHIEF STATE POLICE HEADQUARTERS, VAZHUTIIAKKAD, THIRUVANANTHAPURAM, PIN - 695010 - 9 THE DISTRICT POLICE CHIEF PALAKKAD, YAKKARA ROAD, NEAR KSRTC BUS STAND, PAIAKKAD,, PIN - 678014 - 10 THE STATION HOUSE OFFICER VADAKENCHERRY POLICE STATION, VADAKENCHERRY PO, PALAKKAD., PIN - 678683 - 11 THE REGIONAL TRANSPORT OFFICER (THRISSUR CIVIL STATION, ARVANTHOLE P.O., THRISSUR,, PIN - 680003 - 12 THE REGIONAL TRANSPORT OFFICER (PALAKKAD) KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD,, PIN - 678013 - 13 SMT. RAMYA HARIDAS AGED 36 YEARS MEMBER OF PARLIAMENT, D/O. HARI DASAN, RESIDING AT 16/119, SABARMATI, MAIN ROAD, ALATHUR P.O., PALAKKAD, PI, PIN - 678541 - 14 KERALA STATE PRIVATE BUS OPERATORS CO-ORDINATION COMMITTEE, 34/470, 1ST FLOOR, TRAVELERS TOWER, SAKTHAN STAND, THRISSUR. REPRESENTED BY ITS GENERAL SECRETARY, PIN - 680651 WA Nos.741 & 785 of 2022 - 15 BUS OPERATORS ORGANIZATION STADIUM BUS STAND, SELVAPALAYAM, PALAKKAD REPRESENTED BY ITS GENERAL SECRETARY, PIN - 678001 - 16 ALL KERALA BUS OPERATORS ORGANIZATION BUS BHAVAN, COIMBATORE ROAD, PALAKKAD, REPRESENTED BY ITS GENERAL SECRETARY, PIN - 678013 - 17 SHA]I K. KODANKANDATH AGED 52 YEARS S/O. JOSH KODANKANDATH, KODANKANDATH HOUSE, PEECHI, THRISSUR, PIN - 680653 - 18 KERALA TAURUS TIPPER ASSOCIATION THRISSUR - DISTRICT COMMITTEE, 7/157/2 UDAYANAGAR, P.O. EAST FORT, THRISSUR 680005. REPRESENTED BY ITS SECRETARY ]AISON C.P., AGED 47 YEARS, S/O. POLUOSE, PIN - 680005 ## **OTHER PRESENT:** SRI SAIGY JACOB PALATTY-SR. GP THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2022 ALONG WITH 741/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **(CR)** ## **ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.** --------------------------------------------------------------------------- ## WA Nos. 741 & 785 of 2022 [ _arising out of the impugned judgment dated 27.05.2022 in WP(C) No.15991/2022_ ] ---------------------------------------------------------- Dated this the 30[th] day of June, 2022 ## **JUDGMENT** ## ALEXANDER THOMAS, J. These appeals are disposed of on the basis of this common judgment as they arise out of the same impugned judgment dated 27.05.2022 rendered by the learned Single Judge in the instant Writ Petition (Civil), WP(C) No.15991/2022. For the sake of convenience, WA No.741/2022 filed by the petitioners in WP(C) No.15991/2022 is taken as the leading case. ## WA No.741/2022 2. The appellants herein are the petitioners in the writ petition and the respondents herein are the respondents in the writ petition. 3. The prayers in the instant writ petition, WP(C) No.15991/2022, are as follows; WA Nos. 741 & 785 of 2022 **==> picture [31 x 8] intentionally omitted <==** _“i. Issue a writ of Mandamus or such other writ order or direction compelling the Respondent Nos.7 to 9 to afford necessary and sufficient police protection to the Petitioners and their employees at the Panniyankara toll plaza at Vadakkancherry to collect user fee/toll fees from the users of the project highway in accordance with law and in particular from the private buses plying through the said route without any let, hindrance or obstruction from members of respondents 13 to 15 and their men and agents._ _ii. Issue a writ of Mandamus or such other writ order or direction directing the Respondents Nos.5, 10 and 11 to ensure that the private buses plying through the project highway and passing through the Panniyankara toll plaza are fitted with FASTags._ _iii. Issue such other writ, order or direction as may be just and necessary in the facts and circumstances of the case.”_ 4. The main plea of the petitioners in the writ proceedings is for seeking a mandamus to compel the official respondents 7 to 9 (police authorities) to afford necessary police protection to them and their employees at the Panniyankara toll plaza at Vadakkancherry, Thrissur District, to collect user fee/toll fee from the users of the project highway. The learned Single Judge, after hearing both sides, has disposed of the writ petition as per the impugned judgment dated 27.05.2022, whereby it has been ordered that, the petitioners can now be permitted to operate the toll plaza by collecting fee only on the basis of the rates mentioned in Ext.P6 proceedings dated 05.03.2022 and that, as of now, they WA Nos. 741 & 785 of 2022 **==> picture [31 x 8] intentionally omitted <==** are not legally entitled to charge the revised fee covered by Ext.P13 dated 30.03.2022, unless such revision has been made in accordance with the rules. The present intra court appeal has been filed by the writ petitioners on the limited plea that the learned Single Judge should have actually permitted the writ petitioners to collect the revised fee in terms of Ext.P13 with effect from 01.04.2022 and that, the direction in the impugned judgment to the extent that the petitioners can collect fee only on the basis of the pre-revised rate, as per Ext.P6, is not correct inasmuch as the revision, as per Ext.P13, has taken effect from 01.04.2022. The direction to grant police protection to collect fee at the rate at Ext.P6 has not been challenged by the contesting respondents. 5. Heard Sri.S.Sreekumar, learned senior counsel instructed by Sri.Thomas P. Kuruvilla, learned counsel appearing for the appellants; Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1 & 4 to 11; Sri.S.Manu, learned Assistant Solicitor General of India appearing for the 2[nd] respondent/Union of India; Sri.B.G.Bidan Chandran, learned Standing Counsel for NHAI appearing for the 3[rd] respondent; Sri.R.K.Muraleedharan, learned counsel appearing for WA Nos. 741 & 785 of 2022 **==> picture [31 x 8] intentionally omitted <==** the 12[th] respondent; Sri.P.Deepak, learned counsel appearing for the 13[th] respondent; and Sri.K.V.Gopinathan Nair, learned counsel appearing for respondents 14 & 15; and Sri.K.B.Ganesh, learned counsel appearing for additional respondents 16 & 17. 6. A brief reference to the facts of this case would be pertinent. The case of the appellants/petitioners is that, on the basis of Ext.P1 concession agreement dated 24.08.2009 executed between the 1[st] appellant and the 3[rd] respondent to carry out the work in relation to the laying of six lane National Highway 47 (NH 47) on Build Operate and Transfer (BOT) basis, though the work was started in 2012, the same could not be completed in time due to various constraints including the problems for completion of the twin tunnels at the Kuthiran Hills, which had prolonged the completion of the project. That, after completion of 90% of the project, the appellants became entitled to collect toll fee from the users of the project highway. For that purpose, they had alerted the authorities concerned including the District Collectors of Thrissur and Palakkad Districts about the commencement of user fee collection at the aforesaid toll plaza from 09.03.2022. Ext.P3 is a copy of the National Highways Fee (Determination of Rates and WA Nos. 741 & 785 of 2022 **==> picture [31 x 8] intentionally omitted <==** Collection) Rules, 2008 (for short, “the Rules”). Rule 3 thereof deals with levy of fee. Rule 3(3) thereof mentions that in case of private investment project, the collection of fee levied under sub-rule (1) shall be made in accordance with the terms of the agreement entered into by the concessionaire. It is submitted by Sri.S.Sreekumar, learned senior counsel appearing on behalf of the appellants, that Rule 3(3) _supra_ has been deleted from the statutory book with effect from 16.12.2013. Rule 4 in Ext.P3 deals with base rate of fee. Rule 5 deals with annual revision of rate of fee. In that regard, Rule 5(4) of the Rules stipulates that annual revision of rate of fee under Rule 5 shall be effective from 1[st] of April, every year. 7. Clause 27.2 of the Ext.P1 concession agreement dated 24.08.2009 deals with revision of fee. In particular, Clause 27.2.1 thereof mentions that, the parties thereto acknowledge and agree that the fee shall be revised annually on 1[st] of April in accordance with the provisions of the Fee Rules, provided, however, that such revision shall not be effected until a period of six months has elapsed from COD (Commercial Operation Date). 8. Ext.P4 is a gazette notification dated 06.06.2013 issued WA Nos. 741 & 785 of 2022 **==> picture [31 x 8] intentionally omitted <==** as a statutory order, S.O. 1462(E), by the competent authority of the Government of India in the Ministry of Road Transport & Highways, in exercise of powers under Section 8A of the National Highways Act, 1956 (48 of 1956) r/w Rule 3 of Ext.P3 Rules in relation to a stretch of 26.76 km of the National Highway road covered by Ext.P1 agreement. Clause 8 of Ext.P4 notification dated 06.06.2013 mentions that based on the base rate of fee per kilometer for the base year 2007-08 as mentioned in Tables 1 & 2, the actual amount of fee to be charged from the mechanical vehicles so also the discounts will be calculated by the authority and revised annually in accordance with Rule 5 of the Rules provided that no revision shall be effected within six months and the same shall be published in, at least, one newspaper, each in English and vernacular language accordingly. 9. Ext.P6 dated 05.03.2022 is the rate initially permitted in the case of the appellants by the competent authority, the respondent NHAI. The table dealing with the rate of fee for various categories of vehicles as mentioned in Ext.P6 reads as follows; WA Nos. 741 & 785 of 2022 ..7.. |Type of Vehicles|Single<br>Journey<br>(Rs.)|Multiple<br>Journey<br>(Rs.)|Monthly<br>Pass<br>(Rs.)|Local Pass for Non-<br>commercial vehicle<br>registered within 20<br>Km(Rs)| |---|---|---|---|---| |Car, Jeep, Van or<br>Light Motor Vehicle|90|135|3005|285| |Light Commercial<br>Vehicle, Light Goods<br>Vehicle or Mini Bus|140|210|4645|| |Bus or Truck|280|425|9400|| |Heavy Construction<br>Machinery (HCM) or<br>Earth Moving<br>Equipment (EME)<br>or Multi Axle Vehicle<br>(MAV) 3 to 6 Axles|430|645|14315|| |Oversized Vehicles<br>(7 or more Axles)|555|830|18490|| 10. It is the case of the appellants that the fee initially fixed, as per Ext.P6 dated 05.03.2022, has been subsequently revised, as per Ex.P13 dated 30.03.2022, in terms of Rule 5 of Ext.P3 Rules effective from 01.04.2022. The table of revised fees mentioned in Ext.P13 reads as follows; |Type of Vehicles|Single<br>Journey<br>(Rs.)|Multiple<br>Journey<br>(Rs.)|Monthly<br>Pass<br>(Rs.)|Local Pass for Non-<br>commercial vehicle<br>registered within 20<br>Km(Rs)| |---|---|---|---|---| |Car, Jeep, Van or<br>Light Motor Vehicle|100|150|3365|315| |Light Commercial<br>Vehicle, Light Goods<br>Vehicle or Mini Bus|155|235|5205|| WA Nos. 741 & 785 of 2022 ..8.. |Bus or Truck|315|475|10540|| |---|---|---|---|---| |Heavy Construction<br>Machinery (HCM) or<br>Earth Moving<br>Equipment (EME)<br>or Multi Axle Vehicle<br>(MAV) three to six<br>Axles|480|725|16065|| |Oversized Vehicles<br>(seven or more<br>Axles)|620|935|20730|| 11. The learned Single Judge, after hearing both sides, has taken a view that going by the stipulations contained in Clause 8 of Ext.P4 notification dated 06.06.2013 as well as Clause 27.2.1 of Ext.P1 concession agreement dated 24.08.2009, no revision shall be effected within six months. Hence, it has been observed in the impugned judgment that since the initial fixation of fee, as per Ext.P6, was rendered only on 05.03.2022, a further revision, which is otherwise permissible as per Ext.P3 Rules, could have been legally done only after the expiry of a minimum period of six months from the issuance of Ext.P6 dated 05.03.2022 in view of the inhibitions contained in Clause 8 of Ext.P4 r/w Clause 27.2.1 of Ext.P1 concession agreement. Hence, it has been ordered in the impugned judgment that though the petitioners are entitled for WA Nos. 741 & 785 of 2022 **==> picture [31 x 8] intentionally omitted <==** police protection to run the toll plaza, they can be permitted to collect fee only in terms of Ext.P6 for the time being and that the increase in fee, as per Ext.P13, is not legally permissible as it has been done within a period of 20 days or so and not after the minimum six months' waiting period as conceived in Clause 8 of Ext.P4 as well as Clause 27.2.1 of Ext.P1 concession agreement. The appellants would contend that they are challenging the impugned judgment only to the limited extent that they should have been permitted to collect the revised fee at Ext.P13 with effect from 01.04.2022 and that, the impugned judgment has been rendered thereafter on 27.05.2022 and that, hence, the fetters put in the judgment regarding the entitlement of the appellants to collect the revised fee in terms of Ext.P13 is not legally correct. 12. Sri.S.Sreekumar, learned senior counsel appearing for the appellants, would point out that the respondent NHAI authorities have issued Ext.P6 dated 05.03.2022 on the basis of Annexure B dated 01.03.2022. Thereafter, the respondent NHAI authorities have issued Annexure D dated 29.03.2022 and it is on that basis that, the fee has been revised, as per Ext.P13 dated WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** 30.03.2022. Further that, Annexure D dated 29.03.2022 refers to Annexure E circular of the Headquarters of the NHAI. Annexure E would show that necessary clearance has been obtained from the competent authority of the Government of India, whereby it has been held that the initial fixation of fee is not a revision, but an initial determination of the fee rates and the revision will be applicable from the next date of increase in user fee rates, i.e., 1[st] of April, irrespective of the duration between achieving Commercial Operation Date (COD)/appointed date and the next scheduled revision, i.e., 1[st] of April. Hence, it is pointed out that in view of the guidelines issued by the Government of India, as referred to in Annexure E dated 13.06.2013, the scenario covered by Ext.P6 dated 05.03.2022 is only an initial fixation of fee and therefore, the embargo that at least six months should have elapsed as between the Commercial Operation Date (COD) and 1[st] of April of the next financial year is no longer relevant and even if the said period is less than six months, the revision in terms of Rule 5 of Ext.P3 Rules is permissible and it is on the basis of Annexures D & E that Ext.P13 has been issued. 13. _Per contra,_ the contention raised by Sri.P.Deepak, WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** learned counsel appearing for the 13[th] respondent, and other learned counsel appearing for various contesting respondents is that the inhibitions contained in Clause 8 of Ext.P4 and Clause 27.2.1 of Ext.P1 concession agreement will be exceptions to revision, which could have been otherwise done on annual basis from the 1[st] of April of every financial year concerned, and that, where the operation commences, as in a case covered by Ext.P6, then, the time gap between the Commercial Operation Date (COD) and 1[st] of April of the next financial year should be at least six months and if it is less than six months, then, the revision, which should have been otherwise feasible in terms of Rule 5 of Ext.P3, is not permissible. That, in the instant case, the COD is 09.03.2022 after the issuance of Ext.P6 dated 05.03.2022 and the time gap between o9.03.2022 up to 01.04.2022 is hardly 20 days, which is much less than the minimum stipulated period of six months. That, the rationale for the same is that when the commercial operation starts for collection of fee in the new toll plaza at the rate fixed as in Ext.P6, then, the public and users should be given at least six months' time, before they have to suffer the next higher revision. That, the limitations in Clause 8 of Ext.P4 and Clause WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** 27.2.1 of Ext.P1 are exceptions to the revision, which are otherwise legally feasible as covered by Rule 5 of Ext.P3. That, where the time gap between the COD and the 1[st] of April of the next financial year is six months or above, then, certainly revision is possible, and where it is less than six months, as in the instant case, then, the revision is possible only by the commencement of the next financial year concerned, i.e., 1[st] of April of the next financial year. Hence, it is strongly urged by the learned counsel for the contesting respondents that the learned Single Judge is fully right in taking the view. Further, Sri.P.Deepak, learned counsel for the contesting 13[th] respondent, would point out that the benefit of Annexure E cannot be claimed by the appellants in the facts and circumstances of this case. In that regard, Sri.P.Deepak, learned counsel, would pointedly invite our attention to the contents of Annexure E, which reads as follows; _“A reference is drawn to the Concession Agreements of DBFOT (Toll) & OMT Projects having the following provision about the revision of fee:_ _Clause 27.2.1 : The Parties hereto acknowledge and agree that the Fee shall be revised annually on 1[st] April subject to and in accordance with the provisions of the Fee Rules; provided, however, that no revision shall be effected within a period 6 (six) months from the date of the preceding revision of Fee._ _2. NHAI has sought a clarification from the Ministry on_ WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** _the applicability of annual revision of fee where the gap between COD/initial fixation of fee and next annual revision (1[st] April) is less than 6 (six) months. In consultation with Internal Finance Division (IFD) of Ministry and Ministry of Law, Ministry had decided as under:_ _“the initial fixation of fee is not a revision but is an initial determination of the fee rates. The revision will be applicable from the next date of increase in user fee rates, i.e., 1[st] April irrespective of the duration between achieving COD/appointed date and the next scheduled revision, i.e., 1[st] April.”_ _The above decision of Ministry is circulated for implementation as and where necessary.”_ He would point out that the language employed in the agreement proforma referred to in Annexure E dated 13.06.2013 is distinct from the corresponding Clause 27.2.1 of Ext.P1 agreement, which is the one executed between the appellants and the 3[rd] respondent on 24.08.2009. Clause 27.2.1 of Ext.P1 agreement dated 24.08.2009 reads as follows; - _“27.2.1 The Parties hereto acknowledge and agree that the Fee shall be revised annually on April 1 in accordance with the provisions of the Fee Rules, provided, however, that such revision shall not be effected until a period of 6 (six) months has elapsed from COD. For the avoidance of doubt, it is agreed that revision on account of variation in WPI shall be restricted to 40% (forty per cent) of the variation in WPI to be determined in accordance with the Fee Rules.”_ Hence, it is argued that only if the agreement is worded in the manner shown in the proforma clause 27.2.1 of Annexure E, the benefit of Annexure E can be claimed. That, in the instant case, the WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** wordings of these clauses in Ext.P1 and Annexure E are distinctly different and that therefore, the appellants cannot claim the benefit of Annexure E. 14. _Per contra_ , Sri.S.Sreekumar, learned senior counsel appearing for the appellants, would point out that a reading of Ext.P1 would make it clear that the same has been executed long ago, i.e., on 24.08.2009, which should have been only on the basis of the then proforma agreement and that, the proforma agreement could have changed much later and that, Clause 27.2.1 of the proforma agreement shown in Annexure E is the one that was in vogue at the time of issuance of Annexure E on 13.06.2013. That, merely because the proforma has changed, it does not mean that the substance of the decision of the Government of India, which is beneficial to the toll operators, can be taken away. Further that, the competent authorities of the respondent NHAI have duly applied their mind and have, after due consideration of the relevant aspects including the Rules governing the field as well as Annexure E, issued Annexure D, pursuant to which, Ext.P13 revision has been made. That, once the competent authorities of NHAI, in exercise of its powers and functions, have issued Ext.P13 dated 30.03.2022, WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** then, the contesting respondents cannot be permitted to challenge the correctness or otherwise of Ext.P13 in writ proceedings filed by the appellants herein, in which, the contesting respondents are on the opposite side. If at all, such obstructors, like the present contesting respondents, have any grievance in the matter in regard to Ext.P13, they should have challenged the same in the manner known to law and without doing so, they cannot be permitted to make a collateral challenge of Ext.P13 in a writ proceedings for police protection, filed at the instance of the appellants, who are the beneficiaries of Ext.P13. 15. We have given our anxious consideration to the rival pleas. It is, by now, well settled by a series of rulings of this Court in cases as in _**Illyas**_ v. _**State of Kerala**_ [2014 (4) KLT 362 (FB)], _**Baby**_ v. _**Deputy Superintendent of Police**_ [2019 (4) KLT 12 (DB)] etc., that, where the civil rights of a party seeking for police protection in writ proceedings have already been duly finalized in civil litigative proceedings and they have secured decrees of the court, which have been affirmed, and even execution proceedings have also been completed and thereafter, if any further obstruction is caused to such beneficiaries, then, police protection could be WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** granted in the discretionary exercise of jurisdiction under Article 226 of the Constitution of India and such persons need not be again driven to the civil courts. In such a scenario, if an obstructor or respondent takes up the plea that the judgment of the court below, which has finalized the civil disputes, is legally wrong in some manner or other, will it be right and proper for this Court, sitting on a plea for police protection, to adjudge the correctness of such finalized verdicts of the court below? 16. Ordinarily, where the rights of the parties have already been adjudicated and finalized in the manner known to law in adjudicatory proceedings as above, then, if the enjoyment of the rights are obstructed, then, such aggrieved persons can seek police protection in writ remedy and the scope of enquiry for the writ court is to ascertain as to whether the rights have been crystallized in the manner known to law and in such a process, if the respondent takes up the plea about the very correctness or otherwise of the verdicts secured by the petitioners therein, it would not be right and proper for a writ court deciding on a police protection plea, to sit in judgment over the already concluded and finalized verdicts or proceedings. These aspects would also be analogically applicable in WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** the instant case. 17. There is no dispute that the respondent NHAI is a statutory authority under the National Highways Authority of India Act, 1988, and is also the statutory authority entrusted by the Government of India for the new management and administration of BOT projects as in the instant case, where the competent authority of the respondent NHAI has duly issued not only Ext.P6 on the basis of Annexure B, but has also revised the same in terms of Annedure D. In that process, if the respondent NHAI has taken the view that the benefits of Annexure E circular, based on the opinion of the Government of India, could also be given in favour of the appellants, and has duly finalized the revision of fee in terms of Ext.P13, will it be right and proper for this Court to sit in judgment over the correctness or legality of Ext.P13? Ordinarily, it may not be the right approach to adjudge the correctness or otherwise of Ext.P13. Of course, we would add a caveat that there could be rare and exceptional cases, where the order or proceedings, which are cited as beneficial to the petitioners claiming police protection, may be manifestly unjust and unreasonable, which may have serious public interest consequences. Ordinarily, the approach WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** would be not to entertain a collateral challenge against the verdicts or proceedings finalized in favour of the party claiming police protection. There is no dispute that Ext.P13 proceedings has been duly issued by the respondent NHAI, after following the due procedure and the same is in pursuance of Annexure D, which, in turn, is on the basis of Annexure E. 18. So also, in order to ensure whether the exercise of discretion made by us is on the correct line, we also made a broad comparison of the initial fee given in the afore quoted table in Ext.P6 vis-a-vis the table in Ext.P13. We find that the revision of fee is not on the higher scale. Further, it appears that the said revision is in accordance with the parameters for revision, which is otherwise permissible in terms of Ext.P3 Rules. 19. Hence, in the facts and circumstances of the case, we are of the view that the critiques made by the contesting respondents, so as to adjudge the correctness or otherwise of Ext.P13, may not be entertained in a writ proceedings for police protection in the facts and circumstances of the instant case. If at all, the contesting respondents have any grievance thereto, it is for them to work out the remedies and to challenge Ext.P13 in the WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** manner known to law in appropriate proceedings. Having not done so, ordinarily, they cannot be permitted to make a collateral challenge as against Ext.P13 in a proceedings initiated by the present appellants. 20. Further, a reading of Annexure D would make it clear that the same has been issued on the basis of Annexure E issued by the Headquarters of the respondent NHAI on 13.06.2013, which, in turn, is on the basis of the views of the Ministry of Law of the Union Government. True, that the language employed in Clause 27.2.1 of Ext.P1 concession agreement has been executed long ago on 24.08.2009 and the language employed in the proforma clause 27.2.1, referred to in Annexure E, issued on 13.06.2013 is slightly different. _Prima facie,_ we feel that this could be on account of the change of the agreement proforma at the time of issuance of Annexure E compared to the one that was in vogue at the time of execution of Ext.P1. 21. The broad directives issued by the Government of India, as referred to in Annexure E, are that the initial fixation of fee is not a revision, but, only an initial determination of fee rates and the revision will be applicable from the next date of WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** increase in user fee, i.e., 1[st] of April, irrespective of the duration between the Commercial Opening Date (COD)/appointment date and the next scheduled revision, i.e., 1[st] of April. For the present purposes, we are inclined to take a _prima facie_ view that the view taken by the NHAI in giving the benefit of Annexure E, as per Annexure D, which resulted in Ext.P13, cannot be said to be manifestly perverse or unreasonable. However, we need not pronounce any final opinion on the same. 22. In the light of these aspects, we are of the view that the restrictions imposed in the impugned judgment, holding that even after 01.04.2022, the appellants can collect fee only at the initial rates as per Ext.P6, are not on the basis of revision as per Ext.P13 or may not be the correct approach in a plea for police protection. To that limited extent, the impugned judgment would require interdiction at the hands of this appellate court. However, we would make it clear that the contesting respondents will be at liberty to challenge Ext.P13 fixation in the manner known to law in appropriate proceedings. If any such appropriate proceedings are so set in motion, then, the said issue should be determined finally untrammeled and uninfluenced, in any manner, by the WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** observations made either in the impugned judgment of the learned Single Judge or in this judgment. In other words, such determination or resolution of such issues at the instance of the contesting respondents herein should be effectuated in such proceedings independently and in accordance with law. 23. The upshot of the above discussion is that the directions in the impugned judgment in the writ petition to the limited extent it placed restrictions, will have to be set aside. Accordingly, it is ordered that the impugned judgment and the orders to the limited extent that the appellants are permitted to collect fee only on the basis of Ext.P6 even after 01.04.2022 and not on the basis of Ext.P13, will stand set aside. In other words, the appellants will be at liberty to charge the revised fee as per Ext.P13. So also, needless to say, all the other directions issued in the impugned judgment for grant of police protection will stand affirmed and confirmed. The competent respondent police authorities will ensure that due and adequate police protection is afforded to the appellants to carry out their toll plaza operations, whereby they are enabled to collect the fee on the basis of Ext.P13. With these observations and directions, WA No.741/2022 WA Nos. 741 & 785 of 2022 **==> picture [37 x 8] intentionally omitted <==** will stand disposed of. ## WA No.785/2022 This writ appeal has been filed at the instance of the National Highways Authority of India, who has been arrayed as the 3[rd] respondent in the instant writ petition, WP(C) No.15991/2022. The directions and orders passed by us in the judgment in WA No.741/2022 will fully cover this case. No other orders and directions are called for. With these observations and directions, WA No.785/2022 will also stand finally disposed of. **Sd/-** ## **ALEXANDER THOMAS** ## **JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN JUDGE** bka/- WA NOS.741 & 785 of 2022 ## **APPENDIX OF WA 741/2022** PETITIONER ANNEXURES - Annexure A TRUE COPY OF LETTER DATED 2-2-2022 FROM THE APPELLANT NO: 1 ADDRESSED TO THE 3RD RESPONDENT SEEKING INITIAL USER FEE RATES PROPOSED TO BE COLLECTED FROM THE TOLL PLAZA AT PANNIYANKARA - Annexure B TRUE COPY OF LETTER DATED 1-3-2022 ISSUED BY THE INDEPENDENT ENGINEER TO THE 3RD RESPONDENT AND REVISED RECOMMENDATION FOR USER FEE FOR THE YEAR 2021-2022 - Annexure C TRUE COPY OF LETTER DATED 16-3-2022 ISSUED BY THE APPELLANT NO: 1 TO THE INDEPENDENT ENGINEER M/S ICT PRIVATE LIMITED, RESUBMITTING THE USER FEE CALCULATION FOR THE FINANCIAL YEAR 2022-2023 Annexure D TRUE COPY OF LETTER DATED 29-3-2022 FROM THE INDEPENDENT ENGINEER TO THE 3RD RESPONDENT, FORWARDING RECOMMENDATION REGARDING THE USER FEE CALCULATION WITH EFFECT FROM 1-4-2022 Annexure E TRUE COPY OF NHAI CIRCULAR NO.NHAI/13013/CO/12-13 DATED 13.06.2013 ISSUED BY THE 3RD RESPONDENT WA NOS.741 & 785 of 2022 ## **APPENDIX OF WA 785/2022** PETITIONER ANNEXURES Annexure A TRUE COPY OF LETTER OF CLARIFICATION, DATED 10TH JUNE, 2013, ISSUED BY THE 4TH RESPONDENT TO THE NHAI