Karnataka High Court
Capt. Arvind Sharma vs Government Of Karnataka on 10 July, 2014
Author: D.H.Waghela
Bench: D.H.Waghela
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W.P. No.24061/2014
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JULY 2014
PRESENT
THE HON'BLE MR.D.H.WAGHELA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE H.G.RAMESH
WRIT PETITION No.24061/2014 (GM-RES-PIL)
BETWEEN:
CAPT. ARVIND SHARMA
S/O SHRI J.P. SHARMA
AGED 45 YEARS
RESIDING AT 99/A, 17TH B MAIN ROAD
BLOCK 5, KORAMANGALA
BANGALORE - 560 095 ... PETITIONER
(CAPT. ARVIND SHARMA, PARTY-IN-PERSON)
AND:
1. GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA, BANGALORE - 560 001
REPRESENTED BY ITS CHIEF SECRETARY
2. PRINCIPAL SECRETARY
PWD, GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA, BANGALORE
3. MINISTRY OF ROAD TRANSPORT AND HIGHWAYS
GOVERNMENT OF INDIA
TRANSPORT BHAWAN, PARLIAMENT STREET
NEW DELHI - 110 001
REPRESENTED BY ITS SECRETARY
4. NATIONAL HIGHWAYS AUTHORITY OF INDIA
G5 & 6, SECTOR-10, DWARKA, NEW DELHI - 110 075
REPRESENTED BY ITS CHAIRMAN
5. NATIONAL HIGHWAYS AUTHORITY OF INDIA
(MINISTRY OF ROAD TRANSPORT AND HIGHWAYS)
(PROJECT IMPLEMENTATION UNIT)
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W.P. No.24061/2014
BANGALORE - 560 073
REPRESENTED BY ITS GENERAL MANAGER
6. NAVAYUGA DEVANAHALLI TOLLWAY PVT. LTD.
TOLL PLAZA AT KOGILU CROSS
INTERNATIONAL AIRPORT ROAD, DEVANAHALLI
BANGALORE RURAL DISTRICT
REPRESENTED BY ITS
GENERAL MANAGER ... RESPONDENTS
(BY SMT. SHILPA SHAH, SMT. RAJANI, ADVOCATES FOR R5;
SRI DHYAN CHINNAPPA, ADVOCATE FOR R6;
SMT. NILOUFER AKBAR, AGA FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT R-4
TO DIRECT ITS AGENTS, CONCESSIONAIRES ETC. TO
IMMEDIATELY STOP COLLECTING THE TOLL TILL SUCH TIME
THE PROJECT IS COMPLETED AND ALL THE CONDITIONS OF
THE CONCURRENCE GIVEN BY GOVERNMENT OF KARNATAKA
ARE SATISFIED ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
H.G.RAMESH. J., MADE THE FOLLOWING:
ORDER
H.G.RAMESH, J. (Oral):
1. In this writ petition, filed as a cause in public interest, the petitioner has prayed for the following reliefs:
"1. Issue a writ in the nature of mandamus directing the respondent no.4 to direct its agents, concessionaires etc to immediately stop collecting the toll till such time the project is completed and all the conditions of the concurrence given by Government of Karnataka are satisfied.
2. Issue a writ in the nature of mandamus directing respondent no.6 to stop the toll collection immediately and return the entire amount collected till date to the appropriate authorities as per law.-3- W.P. No.24061/2014
3. To issue any other writ or order or direction, the Honourable court deems fit under the circumstances of the case.
4. To award the costs."
2. We have heard the petitioner, who appeared in person and learned counsel for the respondents. The petitioner submitted that no service roads are provided by respondent No.6, who is awarded the contract for upgradation, operation and maintenance of National Highway No.7 on the stretch from k.m. 534.720 to k.m. 556.840 measuring about 22 kms. from Kempegowda International Airport trumpet junction to Hebbal, Bangalore and hence, collection of toll for using the said 22 kms. of the highway is illegal.
3. On the contrary, learned counsel for respondent Nos.4 to 6 submitted that the petition is not filed in public interest and hence is liable to be dismissed. They also submitted that service roads are provided except for a small stretch. In this behalf, they referred to their respective statement of objections.
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4. It is relevant to refer to the statement of objections filed by National Highways Authority of India-respondent Nos.4 and 5. It is stated therein that the petitioner has filed this petition due to his personal grievance and not in public interest. It is relevant to refer to paras 1 & 2 thereof:
"1. It is humbly submitted that the Petition is filed by the Petitioner claiming to be individually affected and the filing the top noted petition as a 'public spirited individual' is completely misconceived and is liable to be dismissed. It is submitted that the Petitioner along with M/s. Agni Aero Sport Adventure Academy (P) Ltd have filed Writ Petition No.50359-60/2013(GM-RES) before this Hon'ble High Court seeking a Writ in the nature of mandamus directing NHAI, the respondent No.5 herein to modify the plan in so far it relates to Elevated Highway running in front of the runway of Jakkur aerodrome. It is submitted that pursuant to decision taken at the meeting held on 19th May, 2014, the Aerodrome Operation Manager of Jakkur Aerodrome has suspended operation of all fixed wing Aircraft at Jakkur Aerodrome from 8th June, 2014 till further orders, which obviously adversely affects interest of the petitioner. It is clear from the above, that the Petitioner has personal grievances against the respondents. The petition is motivated and mala fides and in view thereof requires to be dismissed.
2. It is submitted that the collection of User fee commenced on 25th April, 2011 and over three years have been lapsed since then. Apart from public Notice given by the respondent no.6 in Times of India and Kannada Prabha, prior to commencement of such collection of User Fee, there were various reports published in newspapers subsequent to commencement of collection of User fee covering protest by the commuters and challenging of such -5- W.P. No.24061/2014 collection before the Civil Judge & JMFC, Devanahalli, in Original Suit bearing No.O.S.337/2012 filed under Section 91(1)(b) of Civil Procedure Code. Further the public notices were issued in English and Kannada newspapers prior to revision in the User Fee brought into effect on 1st April, 2012 and 1st April, 2013. The Petitioner kept quiet for all these years and all of a sudden has filed this petition, only after decision on suspension of operation of all fixed wing Aircraft at Jakkur Aerodrome was taken. It is apparent that this petition has been filed by the Petitioner in his personal interest in guise of public interest and hence it requires dismissal. This petition also requires to be dismissed on the ground of delay and latches."
(Underlining supplied)
5. Respondent No.6 in its statement of objections has also stated that the petition is not filed in public interest, but is filed in private interest as the project has affected the petitioner personally. It is relevant to refer to para 2 of the statement of objections filed by respondent No.6. It reads as follows:
"2. It is submitted that this Petitioner has no locus standi to present the petition. The Petition does not merit consideration as the Petitioner has failed to show any public interest as alleged. The Petitioner is a pilot instructor and is involved in a flying school in Jakkur. The Petitioner is not a person who has experience in the matter of collection of toll, road construction and therefore cannot provide this Hon'ble Court with any specific information in relation to matters relating to the issues in this writ petition. The lack of specific knowledge of the subject matter is also a matter -6- W.P. No.24061/2014 which requires to be examined by this Hon'ble Court at the time of entertaining a petition by the Petitioner. While the Petitioner may or may not use the road and therefore may or may not pay toll, the Petitioner does not have sufficient interest to justify or maintain the present petition in purported public interest. The present petition filed in apparent public interest cannot be sustained."
(Underlining supplied)
6. The aforesaid statements made by respondent Nos.4 to 6 in their respective statement of objections is not denied by the petitioner by filing any rejoinder. The petitioner also does not dispute that the project has affected him personally inasmuch as it affected his job as Pilot Instructor at the flying school which has suspended its operations due to the project. Accordingly, we find that this petition is not filed in public interest, and hence, it is liable to be dismissed.
7. Coming to the contention urged by the petitioner that no service roads are provided, respondent Nos.4 and 5 have denied the same and have stated as follows in their statement of objections:
"25. .................................................................. None of the conditions stipulated therein requires providing of service road which is free from user fee. Service road is provided through-out the said stretch in accordance with the terms as agreed for in the -7- W.P. No.24061/2014 Concession Agreement except at Km. 550.770 which is under implementation and has been delayed due to delay in issuance of caution order by Railway Authority and the same been included in the Punch List items annexed along with the Provisional Completion Certificate (Annexure R12). It is submitted that a small stretch of service road could not be constructed in Airforce area Yelahanka due to non-availability of Airforce land. It is submitted that the process of transfer of land is pending at the Airforce Head Quarters and the same has also been included in the Punch List items annexed along with the Provisional Completion Certificate (Annexure R12). It is further submitted that service road near rail over bridge (ROB) at Bettahalsur has not been constructed as same was not provided for in Concession Agreement. It is submitted that the same was clarified even in the pre bid meetings itself when clarification was sought for in that regard. Copy of the relevant extract of the minutes of the pre-bid meeting is herewith produced as Annexure 'R14'. It is further submitted that in the same letter of GoK in para (4) has agreed that "locals not crossing the toll plaza will be exempted from the toll." This contention makes it clear that those crossing toll can be tolled as per toll policy. It is further submitted that all of the conditions stipulated by the Government of Karnataka have been complied with and the averments made by the Petitioner are baseless. It is further submitted that subsequently, vide letter dated 20th December 2011, the Respondent No.1 has even conveyed its No Objection to levy of User Fee on vehicles returning from the Airport heading towards Bangalore City on a return trip basis (Annnexure-R6)."
As could be seen from the above, which is not denied by the petitioner, only work relating to a small stretch of service road is pending due to non-availability of Air Force -8- W.P. No.24061/2014 land and the process of transfer of the required land is under process.
8. In view of the above, the writ petition is liable to be dismissed as not having been filed bona fide in public interest. The writ petition is accordingly dismissed, with no order as to costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE bkv