Toll should not be collected when highway is in bad shape: Jammu & Kashmir High Court

In a major relief to people traveling on the National Highway-44 (NH-44) from Punjab (Pathankot) to Jammu (Udhampur), the Jammu & Kashmir and Ladakh High Court on Tuesday ordered that only 20 percent of the toll fee be collected at two plazas on the highway till the completion of the construction [Sugandha Sawhney v Union of India and Others]..The Bench of Chief Justice Tashi Rabstan and Justice MA Choudhary said that if the highway is in bad shape due to different nature of construction activities, the National Highways Authority of India (NHAI) or the concessionaire cannot collect toll tax from the commuters who use the highway."This is based on the principle that tolls are collected to provide users with the benefit of well maintained infrastructure. If this highway is in a deteriorated condition and uncomfortable to drive on, it is considered unfair for commuters to continue paying tolls, rather the same is violation of fair service. Certainly, the commuters and drivers must be feeling frustrated by the poor state of this particular highway they are paying to use. The basic premise is that tolls should be a form of compensation for road users in exchange for smooth, safe, and well-maintained highways,” the Court said..The Court was dealing with a Public Interest Litigation (PIL) seeking exemption of toll tax at the toll plazas - Lakhanpur, Thandi Khui and Bann, located on the national highway from Pathankot to Udhampur, which is undergoing construction under the Delhi-Amritsar-Katra Expressway project. The plea was moved by Sugandha Sawhney, who appeared in person.The collection of toll tax at the Thandi Khui Toll Plaza had been closed since January 26 last year. The Court in the plea considered whether the tax ought to be exempted or reduced at the two other toll plazas when the construction under the project Delhi-Amritsar-Katra Expressway is ongoing..The Court noted that the authorities themselves have admitted that NH-44 is undergoing construction and service roads/diversions have been provided for the movement of traffic, meaning that the four-lane National Highway at most of the places has been reduced to single lane.“Actually dirt-path has been cleared for the vehicles to use the only alternative, as a result of which the daily use of this under construction stretch with such deteriorated conditions adds to wear and tear of vehicles. Otherwise too, it is not a hidden thing nor the learned counsel appearing for respondents has denied this that National Highway-44 from Pathankot to Bann Toll Plaza to Domel (Katra) is in a poor and deteriorated condition, there are grave hurdles, potholes and diversions due to complete destruction of this particular National Highway,” the Court said..It, thus, observed that commuters are being unfairly charged as they are not receiving the value they are paying for in terms of quality infrastructure. The Court added that it was expected from the government or the NHAI to suspend the toll collection until Delhi-Amritsar-Katra Expressway gets fully operational.However, it found that instead of suspending the toll collection, the authorities increased the toll fees at Lakhanpur Toll Plaza and Bann Toll Plaza on the same day when Thandi Khui Toll Plaza came to be closed.“It seems the general public is being made to suffer on both counts, i.e., bad highway due to construction activities and hefty toll. Thus, in this way the general public/commuters are feeling cheated as they are being forced to pay tolls for the highway which at present is in a poor and shabby condition that too when in ending June, 2024 Union Minister for Road, Transport and Highways Mr. Nitin Gadkari at a Global Workshop on Satellite-based tolling said that there is no justification of highway agencies charging toll, if roads are not in good condition or not upto their standards and people continue to face problems,” the Court said..The Court also took note of the spacing between two toll plazas on the national highway and employment of people with criminal background by the contractors. It proceeded to issue the following directions..Respondents are directed to withdraw the order/direction regarding redistributing the influence length from Lakhanpur to Udhampur among Lakhanpur and Bann toll plazas with effect from 26.01.2024 after the closure of Thandi Khui toll plaza. Respondents to withdraw the said order/direction positively within a period of one week from today. Respondents are directed to levy only 20% of the toll fee with immediate effect, i.e., the toll fee at Lakhanpur toll plaza and Bann toll plaza shall be 20% of the rates earlier in force before 26.01.2024 till the National Highway from Lakhanpur to Udhampur gets fully operational for smooth utilization of the public. Respondents to charge the full toll at both these toll plazas only after the issuance of a certificate in this regard by an independent surveyor. Respondents are directed not to establish any toll within 60 kms of the National Highway-44. Further, if there is any toll plaza in the UT of J&K or in the UT of Ladakh within 60 Kms on the National Highway, respondents to remove the same within two months from today. Further, there should not be mushrooming of toll plazas in the UT of J&K and the UT of Ladakh only with the sole aim and objective of minting money from the general public. Further, respondents are charging hefty toll fees at Bann toll plaza, whereas toll fees at other toll plazas are also high. Thus, not only the treasures of NHAI are being filled with thousands of crores of rupees, the private contractors are also enriching themselves by accumulating crores of rupees. Since the toll fee must be fair enough for the general public and should not be a source of revenue-generating mechanism, respondents, particularly the concerned Union Ministry, are directed to reconsider levying of fair and genuine toll fees at the toll plazas thereby slashing the existing toll fees at all the toll plazas as the current toll fees is at higher side. The decision in the regard be taken positively within a period of four months from today. Respondents as well as the contractors of the toll plazas are directed not to employee any person at the toll plazas having criminal background. Respondents as well as the contractors to deploy the persons at the toll plazas only after verification of such employees by the concerned police agency. In case of any deviation in this regard, the concerned SHO/Incharge shall be personally responsible for the same. .Petitioner Sugandha Sawhney appeared in person.Advocate Karan Sharma represented the respondents.[Read Judgment]