M/S. IRB KOLHAPUR INTEGRATED ROAD DEVELOPMENT COMPANY PVT. LTD. AND ANR vs. STATE OF MAHARASHTRA, THROUGH PRINCIPAL SECRETARY, UD-II, URBAN DEVELOPMENT DEPT AND ORS

Full Judgment Text

2014:BHC-AS:23102-DB
1 PIL 179&216.13...
sbw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE  JURISDICTION
PUBLIC INTEREST LITIGATION NO.179 OF  2013
1) Mr. Kiran Anandrao Pawar,
     Age: 37, Occ : Business,
     B Ward, Mirajkar Tikti,
     Mangalwar Peth, Kolhapur416012.

2) Mr. Chandramohan Gangaram Patil,
    Age:56, Occ:Retired,
    R/o 1470 B Ward, Sangar Gali,
    Mangalwar Peth, Kolhapur416012. ..Petitioners
Versus
1) Chief General Manager,
     M/s. IRB Kolhapur Integrated Road
     Development Company Pvt.Ltd.,
     a company incorporated under the
     Provisions of the Companies Act, 1956,
     having its registered office at
     IRB Complex, Chandivli Farm,
     Chandivli Village, Andheri(E),
     Mumbai400 072.
2) Virendra Mhaiskar,
     Director of M/s. IRB Kolhapur
     Integrated Road Development Company Pvt.Ltd.,
     having office at IRB Complex, Chandivli Farm,
     Chandivli Village, Andheri(E),
      Mumbai400 072.
3) Maharashtra State Road Development
     Corporation Ltd. (MSRDC)
     through its Vice Chairman &
     Managing Director, having its
     office at Nepean Sea Road,
     Pridyarshani Park, Mumbai400 006.
1/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

2 PIL 179&216.13...
4) Kolhapur Municipal Corporation
     Through its Commissioner,
     having its officer at
     Main Building, Shivaji Chowk,
     CWard, Kolhapur416002.
5) The Collector of Kolhapur,
     Collector Office Kolhapur,
     Swarajya Bhavan, Nagala Park,
     Kolhapur416003.
6) State of Maharashtra,
     Through Principal Secretary,
     Urban Development Department,
     Mantralaya, Mumbai400 032.
7) SOWIL Pvt. Ltd.,
    Having its office at 689/E Ward,
st
    AK Complex, 1 Floor, Opp.Kudalkar
nd
    Hospital, Shahupuri, 2 Lane,
    Kolhapur416001. ..Respondents
WITH
PUBLIC INTEREST LITIGATION NO.216 OF  2013
1) Subhash Popatrao Wani
     Occupation: Retired employee,
     residing at 'E' Ward, Plot No.27, D.R.
     Bhosalenagar, Rajendra Nagar Road,
     Kolhapur416004.

2) Amar alias Jaisingh Pandurang Naik,
     age: 48, Occ: Advocate,
     residing at 857/2, Randive Colony,
     Kadamwadi Road, Kasba Bawda,
     Kolhapur416006.
3) Shivajirao Prabhakar Parulekar,
    age:58, Occ: retired teacher,
2/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

3 PIL 179&216.13...
    residing at A1, Chavan Colony,
    House No.857/1/1 Salokhe Nagar,
    Kalamba Road, Kolhapur416007. ..Petitioners
Versus
1) State of Maharashtra, through the
     Government Pleader, High Court of
     Bombay.
2) Maharashtra State Road Development
     Corporation (a Government of Maharashtra
     Undertaking), Priyadarshni Park,
     Nepean Sea Road, Mumbai.
3) Municipal Commissioner,
     Kolhapur Municipal Corporation,
     Bhausingji Road, Kolhapur.
4) M/s. IRB Kolhapur Integrated Road
     Development Company Pvt.Ltd.,
     a company incorporated under the
     Provisions of the Companies Act, 1956,
     having its registered office at
     IRB Complex, Chandivli Farm,
     Chandivli Village, Andheri(E),
     Mumbai400 072.
5) SOWIL Pvt. Ltd.,
    Having its office at 689/E Ward,
st
    AK Complex, 1 Floor, Opp.Kudalkar
nd
    Hospital, Shahupuri, 2 Lane,
    Kolhapur416 001. ..Respondents
WITH
WRIT PETITION NO.6646 OF  2013
1) M/s. IRB Kolhapur Integrated Road
     Development Company Pvt.Ltd.,
     a company incorporated under the
     Provisions of the Companies Act, 1956,
3/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

4 PIL 179&216.13...
     having its registered office at
     IRB Complex, Chandivli Farm,
     Chandivli Village, Andheri(E),
     Mumbai400 072.
2)  Virendra Mhaiskar,
     Director of M/s. IRB Kolhapur
     Integrated Road Development Company Pvt.Ltd.,
     having office at IRB Complex, Chandivli Farm,
     Chandivli Village, Andheri(E),
      Mumbai400 072. ..Petitioners
     Versus
1) State of Maharashtra through the
    Principal Secretary, UDII,
    Urban Development, Chief Secretary
    and the Secretary, Home Ministry,
    Government of Maharashtra
    all having their office at Mantralaya,
    Mumbai400 032.
2) Maharashtra State Road Development
     Corporation Ltd. (MSRDC) through its
     Vice Chairman & Managing Director,
     having its office at Nepean Sea Road,
     Priyadarshani Park, Mumbai400 006.
3) Kolhapur Municipal Corporation
     Through its Commissioner,
     having its officer at
     Main Building, Shivaji Chowk,
     CWard, Kolhapur416002.
4) The Collector of Kolhapur,
     Collector Office Kolhapur,
     Swarajya Bhavan, Nagala Park,
     Kolhapur416003.
5) The Superintendent of Police,
    Office of the Superintendent of Police,
4/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

5 PIL 179&216.13...
    Bhausinghji Road, Laxmi Pari,
    Kolhapur416 002.
6) The Director General of Police
     Maharashtra, Maharashtra Police
    Headquarters, S. B. Singh Road,
    Opp. Regal Cinema, Colaba,
    Mumbai400039.
7) Special Inspector General of Police
     Range (Law & Order), Kolhapur,
     Kolhapur Parikshaktra, Kasba
     Bhawda, Maharashtra416008.
8) Maharashtra State Security Corporation,
    30/B, World Trade Centre, Ground Floor,
    Prakash Pethe Marg, Cuffe Parade,
    Mumbai400005. ..Respondents
WITH
              WRIT PETITION NO.10407 OF  2013
1) Shri Shahaji Hindurao Patil,
    Age: Adult, Occ: Agriculturist,
    Residing at  : Aarle, Taluka: Karvir,
    DistrictKolhapur.
2) Shri Padmakar Dattatrya Patil,
    Age: Adult, Occ: Agriculturist,
    Residing at 2942C, Shaniwar Peth,
    Kolhapur. ..Petitioners
              Versus
1) The State of Maharashtra,
   [Summons to be served on the Learned
     Government Pleader appearing for
     State of Maharashtra under Order
     XXVII, Rule 4, of the Code of Civil
     Procedure, 1908].
5/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

6 PIL 179&216.13...
2) The Secretary Urban Development,
     Department Government of
     Maharashtra, Mantralaya,
     Mumbai400 032.
3) Maharashtra State Road Development
    Corporation Ltd. (MSRDC)
    through its Vice Chairman &
     Managing Director, having its
     office at Nepean Sea Road,
     Pridyarshani Park, Mumbai400 006.
4) Kolhapur Municipal Corporation,
   [Summons to be served on the Learned
     Government Pleader appearing for
     State of Maharashtra under Order
     XXVII, Rule 4, of the Code of Civil
     Procedure, 1908].
5) Kolhapur Integrated Road Development
     Company Pvt. Ltd.,
     Having its office at : IRB Complex,
     Chandiwali Farm, Chandiwali Village,
     Andheri(East), Mumbai400 072. ..Respondents
...........
Mr.  Yuvraj P. Narvankar for the Petitioner in PIL No. 179/2013.
Mr. Abhay Nevagi with Sandesh R. Shukla and Mr. Omkar Nevagi i/b.
Abhay Nevagi & Asso. For the Petitioner in PIL No.216/2013.
Mr. A. B. Vagyani, Govt. Pleader with Mr. P. G. Savant, AGP for the
RespondentState.
Mr. J.P. Cama, Senior Counsel, with Mr. Abhijit Adagule for the
RespondentKolhapur Municipal Corporation.
Mr. Janak Dwarkadas, Senior Counsel with Mr. Sharan Jagtiani & Mr.
Virendra Pereira & Ms.Teresa i/b. Divya Shah & Asso. For the Respondent
IRB Kolhapur Integrated Development Co. P. Ltd. and for Petitioner in
WP.No.6646/2013.
Mr. P.P. Chavan, Ms. R. J. Nathani with Mr.Arun Sivach, Mr. Vikas Kumar
Jha i/b. Amarchand & Mangaldas & S.A. Shroff & Co. for the Respondent
MSRDC.
...........
6/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

7 PIL 179&216.13...
       CORAM:  S.C. DHARMADHIKARI
AND
      A. K. MENON, JJ.
th
RESERVED ON : 30 SEPTERMBER, 2014
th
PRONOUNCED ON : 14 OCTOBER,2014
J U D G M E N T (PER S. C. DHARMADHIKARI, J.)
1] At the outset we feel compelled to make certain observations not
only in relation to these two P.I.L’s but in general about such litigation. We
have been observing and noting that citizens claiming to be public spirited
and concerned with social, environmental, administrative and planning
issues approach this Court complaining about either inaction or deliberate
act of omission and commission on the part of the executive. The Hon'ble
Supreme Court in the case of Ayaaubkhan Noorkhan Pathan V/s. State
of Maharashtra and Ors. reported in AIR 2013 Supreme Court 58 held
as under:
“ 7. It is a settled legal proposition that a stranger cannot be
permitted to meddle in any proceedings, unless he satisfies the
Authority/Court, that he falls within the category of aggrieved
persons.
Only a person who has suffered, or suffers from legal injury
can challenge the act/action/order etc. in a court of law. A writ
petition under Article 226 of the Constitution is maintainable either
for the purpose of enforcing a statutory or legal right, or when there
is a complaint by the appellant that there has been a breach of
statutory duty on the part of the Authorities.  Therefore, there must
be a judicially enforceable right available for enforcement, on the
basis of which writ jurisdiction is resorted to. The Court can of
course, enforce the performance of a statutory duty by a public body,
7/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

8 PIL 179&216.13...
using its writ jurisdiction at the behest of a person, provided that such
person satisfies the Court that he has a legal right to insist on such
performance.  The existence of such right is a condition precedent for
invoking the writ jurisdiction of the courts. It is implicit in the
exercise of such extraordinary jurisdiction that, the relief prayed for
must be one to enforce a legal right. Infact, the existence of such
right, is the foundation of the exercise of the said jurisdiction by the
Court.  The legal right that can be enforced must ordinarily be the
right of the appellant himself, who complains of infraction of such
right and approaches the Court for relief as regards the same. (Vide:
State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir
Ahmad & Anr. v. State of U. P., AIR 1954 SC 728; Calcutta Gas
Company (proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962
SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC
2736: (1996) AIR SCW 3424); and Tamil Nadu Mercantile Bank
Shareholders Welfare Association (2) v. S. C. Sekar & Ors., (2009) 2
SCC 784).
8. A “legal right”, means an entitlement arising out of legal rules.
Thus, it may be defined as an advantage, or a benefit conferred upon
a person by the rule of law.  The expression, “person aggrieved” does
not include a person who suffers from a psychological or an
imaginary injury; a person aggrieved must therefore, necessarily be
one, whose right or interest has been adversely affected or
jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of
New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v.
Union of India & Ors., AIR 1977 SC 1361).
12. This court has consistently cautioned the courts against
entertaining public interest litigation filed by unscrupulous persons,
as such meddlers do not hesitate to abuse the process of the court.
The right of effective access to justice, which has emerged with the
new social rights regime, must be used to serve basic human rights,
which purport to guarantee legal rights and, therefore, a workeable
remedy within the farmework of the judicial system must be provided.
Whenever any public interest is invoked, the court must examine the
case to ensure that there is in fact, genuine public interest involved.
The court must maintain strict vigilance to ensure that there is no
abuse of the process of court and that, “ordinarily meddlesome
bystanders are not granted a Visa”.  Many societal pollutants create
new problems of nonredressed grievances, and the court should make
an earnest endeavour to take up those cases, where the subjective
purpose of the lis justifies the need for it. (Vide: P. S. R.
Sadhanantham v. Arunachalam & Anr., AIR 1980 SC 856; Dalip
8/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

9 PIL 179&216.13...
Singh v. State of U. P. & Ors. (2010) 2 SCC 114: (AIR 2010 SC
(Supp) 116 : 2010 AIR SCW 50); State of Uttaranchal v. Balwant
Singh Chaufal & Ors., (2010) 3 SCC 402 : (AIR 2010 SC 2550 :
2010 AIR SCW 1029) and Amar Singh v. Union of India & Ors.,
(2010) 7 SCC 69 : (2011 AIR SCW 3297).
15. In view of the above, the law on the said point can be
summarised to the effect that a person who raises a grievance, must
show how he has suffered legal injury.  Generally, a stranger having
no right whatsoever to any post or property, cannot be permitted to
intervene in the affairs of others.
21. In Vinoy Kumar v. State of U. P., AIR 2001 SC 1739 : (2001
AIR SCW 1641), this Court held:
“Even in cases filed in public interest, the court can exercise the
writ jurisdiction at the instance of a third party only when it is shown
that the legal wrong or legal injury or illegal burden is threatened
and such person or determined class of person is by reason of poverty,
helplessness or disability or socially or economically disadvantaged
position, unable to approach the court for relief. ”
22. Thus, from the above it is evident that under ordinary
circumstances, a third person, having no concern with the case at
hand, cannot claim to have any locusstandi to raise any grievance
whatsoever.  However, in the exceptional circumstances as referred to
above, if the actual persons aggrieved, because of ignorance,
illiteracy, inarticulation or poverty, are unable to approach the
Court, and a person, who has no personal agenda, or object, in
relation to which, he can grind his own axe, approaches the Court,
then the Court may examine the issue and in exceptional
circumstances, even if his bona fides are doubted, but the issue raised
by him, in the opinion of the Court, requires consideration, the Court
may proceed suo motu, in such respect.”
2] When litigants file such applications and claim that they are public
interest litigations they ought to realize that as alert and vigilant citizens
they are expected also to be very reasonable and responsible. It is clear
that the legal system has to operate with a view to promote justice and on
9/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

10 PIL 179&216.13...
the basis of equal opportunity.  It is further apparent that the guarantee is
of justice to all and that is enshrined in Article 21 and 39A of the
Constitution of India and for that purpose there is a mechanism and
system in place.  Those  approaching the Courts of law ought to be aware
and must note that they have approached it because they have faith in and
respect  for it. They know the worth of its independence and impartiality.
The fact that they approach the highest court in the State complaining
about the illegal acts, misdeeds and maladministration or inaction of the
executive demonstrates that they repose trust and confidence in a Court of
law.  They repose such trust and faith because they are of the view that an
impartial and independent adjudicator will take note of their grievances
and complaints and try to redress them within the frame work of law.
Thus, immense hope and trust in the legal system and the courts enables
them to approach the same.
3] If this is how they have understood the guarantee of impartial and
independent justice and forming part of the basic structure of the
constitution, then, they ought not overlook that the preamble to the
constitution of India, the constitutional articles and provisions referred
above, have to be read and construed together with their fundamental
duties as citizens of India and set out in Article 51A.  Article 51A (a) states
10/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

11 PIL 179&216.13...
that it shall be the duty of every citizen of India to abide by the
constitution and respect its ideals and institutions, the national flag and
the national anthem. It is also the duty of every citizen of India to
safeguard public property and to abjure violence. (See Article 51A(i)).
Further the citizen of India is duty bound to strive towards excellence in
all spheres of individual and collective activity so that nation consistently
rises to higher levels of endeavour or achievement. (See Article 51A(j)). If
the institutions created and established under the constitution of India
include the judiciary, then, respect and regard for the judicial system is
expected from citizens and when they claim to be public spirited.
4] In these two Petitions, and which claim to espouse the grievance
and complaint of residents of Kolhapur, we have noticed that the residents
of Kolhapur having approached this Court failed to abide by its highest
traditions, practices and by their conduct demonstrated and proved that
they are not worthy of the corresponding trust that the Judges of this
Court repose in them. Unfortunately, when matters are to be brought
before this Court and in relation to legality and validity of levy, recovery
and collection of toll, then, when they are brought and thereafter the
residents ought not to have taken law in their hands. There is a
constitutional duty to abjure violence. The word “abjure” means
11/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

12 PIL 179&216.13...
renounce. The word renounce means to abandon. It appears that the
Petitioners have completely lost sight of this legal and constitutional duty.
Rather they have acted contrary to it.  There is extensive reference to the
conduct of the residents of Kolhapur and those residing in the vicinity of
that city and which reflects their irresponsible and violent behaviour.  It is
not only the complaint of the contractor/entrepreneur, but of a public
body like Maharashtra State Road Development Corporation as well that
residents of the city attacked toll booths and destroyed them as also
caused injuries to those manning them.  If matters are pending before this
Court  and it is seized of it, then, residents should have not indulged in
such acts.  They have caused destruction of property.  They have created a
situation where their fellow citizens do not feel safe and secure.  A human
being does not attack a fellow human being merely because he does not
agree with his views or opinions. Just as residents are human beings,
officials and employees of public bodies, statutory corporations, Police
Officers and private entities are equally human beings. There is no
reason, therefore, to threaten, challenge or attack them. If one human
being threats another with dire consequences, then, it results in breach of
peace.  There is, then, no harmony and brotherhood.  We must learn to
accept and respect  differing or dissenting opinions and views.  All men
and women do not think alike.  They have freedom to express themselves
12/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

13 PIL 179&216.13...
differently. If the foundation of a democratic system of governance is
peaceful and nonviolent protest and difference of opinion, freedom of
debate, discussion and exchange of ideas and suggestions, then, such
conduct cannot but be deprecated. We would have been justified in
throwing out these petitions without any adjudication because such acts of
people, citizens and residents reflect that they have no faith and trust in
anybody be it executive or the judiciary. We would have been further
justified in not only throwing out these petitions without adjudication but
penalizing the Petitioners with heavy costs.  We have been experiencing
that nowadays, the executive decisions and powers are challenged by
more than one means. While, protests, demonstrations, morchas,
dharnas, meetings on issues which are subjudice, in a given case could
have been ignored by us but that does not mean that we permit or allow
such a course.
5] No parallel adjudication of legal disputes can be permitted much
less on streets. A mob, unruly and indisciplined, cannot be allowed to
assume control or take charge of legal proceedings. Any such attempt
besides interfering with the administration of Justice and with Court
proceedings and, therefore, contemptuous also defaces and defiles,
defames a Court of law.  It is subversive to the maintenance of a just and
13/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

14 PIL 179&216.13...
orderly society. We would expect the citizens and residents to show
restraint and wait for the outcome of legal proceedings. There may be
delay in delivering the final verdicts therein. That may at times cause
frustration but people of India and particularly those residing in a
progressive and peace loving area like the State of Maharashtra have over
a passage of time developed a temper and habit of tolerance and patience.
Ordinarily, they do not react hastily and irresponsibly. If educated people
react and respond violently, then, less said the better about others. If
education, social and family values have taught people the virtues noted
above, then, they must be reflected in their conduct and behaviour.  They
should realize that when they approach a court of law and that court of
law is bound to hear arguments and submissions of both sides, consider
the entire documentary and other material placed by both sides after
which alone it can render a definitive judgment, then,  this process may be
time consuming but it is the only one which ensures accountability and
answerability of every other organ of the State which is a litigant before
the Court and through it to the entire public. The foundation of a
sovereign, socialist, democratic republic is laid after tremendous sacrifices
and only on attaining Independence and freedom from foreign Rule.  We
cannot give up all this just because a few amongst us are impatient,
intolerant, insensitive.  They should not instigate others and in furtherance
14/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

15 PIL 179&216.13...
of their ulterior motive of causing disturbance and disorder in the society.
By the acts that few residents of the city of Kolhapur have indulged in,
they have only assisted and helped such elements and tarnished not only
their image but of the entire city.   That city which has a great historical
and cultural heritage, which is known for great social reformers and
reformist movements has also few residents who are bent on destroying its
homogeneous and all pervasive culture. If this is emulated by other
residents of the State, we will be leading towards anarchy.  We cannot at
any cost allow our rich social, cultural and democratic heritage to be
destroyed just because some few are bent on doing so.  We expect a better
and disciplined response not only from the residents of the city of
Kolhapur but others in the State.  While we warn all litigants that if there
are such acts  of taking law in their hands and brought to our notice  and
even in pending cases, they  would be viewed strictly and would result in
nonsuiting them, we do not adopt that course in this case in the fond
hope that these remarks and observations will bring a positive change in
the attitude. It is our pain and anguish which makes us record these
observations.
6] We have referred to extensively the conduct of the residents of the
City particularly because they should have been aware of the fact that at
15/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

16 PIL 179&216.13...
their request, the Chief Secretary of the State intervened and stopped the
recovery of toll temporarily.  The stay to such recovery was raised after a
meeting of all experts and representatives was convened by the Chief
Secretary at which there were detailed discussions and deliberations on
the progress reports submitted by the independent experts.  Being satisfied
with the progress and quality of the work and by imposing additional
condition of furnishing a bank guarantee of Rs.25 crores by the contractor
that the stay order was vacated.  Thereafter there were violent attacks and
recovery of toll was disrupted by the residents.  They caused obstruction in
peaceful and legal recovery of toll by the contractor and because of their
disruptive and illegal activities, the contractor sought police protection for
which he filed a Writ Petition being Writ Petition No.6646 of 2013.  An
th
order was passed therein on 28 August, 2013 by this Court.  That Writ
Petition is pending.  In the two P.I.L's initially an order was passed by this
th
Court granting interim stay of recovery of toll. That order dated 27
February, 2014 was challenged in the Hon'ble Supreme Court of India.  By
th
the order dated 5 May, 2014 passed by the Hon'ble Supreme Court of
India, this interim order of the High Court was set aside and IRB was
permitted to resume toll collection.  It is in these circumstances and when
noticing that even thereafter the obstruction and disruption by violent
means continued which has compelled us to make above observations.
16/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

17 PIL 179&216.13...
7] We have further found that repeated petitions and styled as Pubic
Interest Litigations are causing more harm than serving the purpose.  A
P.I.L as the Hon’ble Supreme Court holds is not a usual litigation. It ought
to be exceptional.  If one P.I.L is pending we see no reason or justification
for a second P.I.L and from the same place and espousing the same cause
and of same residents or citizens. In this case, this is a second round,
rather a third round.  Two P.I.L Nos.68 and 82 of 2011 were filed on the
same subject.  While disposing them off, this Court granted limited liberty.
Yet, in this round, same points and grounds and more or less covered by
earlier orders of this Court are raised and argued.  It was strictly not open
to raise them once they are have been given up or argued and considered
in the earlier P.I.L's. The principles of resjudicata and constructive
resjudicata ought to have been present to the Petitioners and if not to
them, their counsel or Advocates.  A counsel's duty to Court is put on the
highest pedestal.  They ought to be aware of the legal consequences of the
earlier orders.  However, we were surprised that unmindful of the earlier
P.I.L's disposal on merits, these matters were argued on same points.  In
this regard, the observations of the Hon'ble Supreme Court in the case of
State of Rajasthan V/s. Surendra Mohnot reported in AIR 2014 SC
2925 are eloquent enough (see para 29 and 30 at page 2935).  Earlier in
the case of Smt. Poonam V/s. Sumit Tanwar reported in AIR 2010
17/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

18 PIL 179&216.13...
Supreme Court 1384 , the Role of Advocates, their duty and their conduct
is underlined in the following words:
“In Thakur Sukhpal Singh V/s. Thakur Kalyan Singh &
Anr., AIR 1963 SC 146, this Court has held that in absence of
proper assistance to the Court by the lawyer, there is no
obligation on the part of the Court to decide the case, for the
simple reason that unless the lawyer renders the proper
assistance to the Court, the Court is not able to decide the
case.  It is not for the Court itself to decide the controversy.
The counsel cannot just raise the issues in his petition and
leave it to the Court to give its decision on those points after
going through the record and determining the correctness
thereof. It is not for the Court itself to find out what the
points for determination can be and then proceed to give a
decision on those points.
In T.C. Mathai & Anr. V/s. District & Sessions Judge,
Thiruvananthapuram AIR 1999 SC 1385 : (1999 AIR SCW
1062), this Court observed:
“The work in a Court of law is a serious and
responsible function.  The primary duty of a…... Court is to
administer..... justice. Any lax or wayward approach, if
adopted; towards the issues involved in the case, can cause
serious consequences for the parties concerned.... In the
adversary system which is now being following in India, both
in civil and criminal litigation, it is very necessary that the
Court gets proper assistance from both sides...... Efficacies
discharge of judicial process very often depends upon the
valuable services rendered by the legal profession.”
In D. P. Chadha V/s. Triyugi Narain Mishra & Ors., AIR
2001 SC 457, this Court has observed as under:
“.......Mutual confidence in the discharge of duties and cordial
relations between Bench and Bar smoothen the movement of
the chariot.  As responsible officers of the Court, as they are
called ––– and rightly, the counsel have an overall obligation
of assisting the Courts in a just and proper manner in the just
and proper administration of justice.”
Thus, in view of the above, law can be summarisd to
18/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

19 PIL 179&216.13...
the effect that, in case, the counsel for the party is not able to
render any assistance, the Court may decline to entertain the
petition.
There is another aspect of the matter. In case,
Petitioner's counsel is not able to raise a factual or legal issue,
though such a point may have a good merit, the Court should
not decide the same as the opposite counsel does not “have a
fair opportunity to answer the line of reasoning adopted” in
this behalf. Such a judgment may be violative of principles of
natural justice. (vide New Delhi Municipal Committee V/s.
State of Punjab AIR 1997 SC 2847) : (1997 AIR SCW 2851).
While dealing with a similar issue, this Court in Re:
Sanjiv Datta (1995) 3 SCC 619 : (1995 AIR SCW 2203)
observed as under:
“Of late, we have been coming across several instances
which can only be described as unfortunate both for the legal
profession and the administration of justice. It becomes,
therefore, our duty to bring it to the notice of the members of
the profession that it is in their hands to improve the quality
of the service they render both to the litigantpublic and to the
Courts, and to brighten their image in the society. Some
members of the profession have been adopting perceptibly
casual approach to the practice of the profession as is evident
from their absence when the matters are called out, the filing
of incomplete and inaccurate pleadings – many times even
illegible and without personal check and verification, the non
payment of court fees and process fees, the failure to remove
office objections, the failure to take steps to serve the parties,
et al. They do not realise the seriousness of these acts and
omissions. They not only amount to the contempt of the
court but do positive disservice to the litigants and create
embarrassing situation in the court leading to avoidable
unpleasantness and delay in the disposal of matters. This
augurs ill for the health of our judicial system..... The legal
profession is different from other professions in that what the
lawyers do, affects not only an individual but the
administration of justice which is the foundation of the
civilised society.”
(Emphasis added)
19/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

20 PIL 179&216.13...
8] As if one is not enough, other one is brought and that is only to seek
publicity for  persons and parties to the cause.  More the merrier cannot be
the rule that can be applied to such issues and matters.  Public causes and
which are to be brought forward and  presented in a serious manner by a
studied and organized approach will alone serve the purpose of PIL.  If it
is a private interest or a publicity interest litigation then it is not PIL.  We
have also noticed that the two Petitions are styled as PIL have been argued
with contradictory stands. We will refer to them but this itself raises
doubts about the genuine nature of the cause.  They have been filed only
after the unlawful acts in the city were highlighted in Writ Petition
th
No.6646 of 2013 and a judicial order was passed therein on 26 August,
2013.  Thus, the timing of institution is important.  If the intent is to knock
out money, to exploit or blackmail, to harass, to threaten, to malign
someone merely because he is performing a public duty and holds a public
office, then, it is not PIL but something else.  Now a days, statements like
“I will drag you to Court” “I will see you in court” reflect the true intent
and purpose of approaching a court of law.  A court of law is not meant to
settle private scores or teach a lesson to anybody.  It is not an arena or
place for power  politics or to show one's might or  money power.   Equally
a court of law is not a place to gain publicity and that too cheaply.  It is not
a column or a page in the newspaper nor is it a television show or serial.
20/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

21 PIL 179&216.13...
It is a very solemn proceeding or matter and one has to substantiate and
to prove every allegation and statement which is made on oath. Every
citizen of this country has taken a oath to uphold and maintain the rule of
law.  He cannot, therefore, use and utilize the legal platform or a court
proceeding to achieve anything of the nature stated above.  There should
be a change not only in the language of litigants but their approach and
mindset. All the more, if they claim to be well informed and well
educated, it is time we ring this warning bell or else the edifice of a strong
and independent judiciary built on the sacrifice of our freedom fighters
and constitution makers will collapse.  If it collapses then none will come
forward to save and protect us and our lives and property. We are not
obliged or duty bound to hear the cases and matters of the citizens and
people whose conduct is bereft of decency, decorum and dignity. They
should remember that they cannot indulge in hooliganism, acts of
nuisance and mischief and then expect mercy and sympathy from Court,
which is termed as Temple of justice.
9] These two Public Interest Litigations have been filed by the
Petitioners claiming to be residents of city of Kolhapur and they are
seeking the following reliefs:
21/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

22 PIL 179&216.13...
Prayers and averments in PIL No. 216 of 2013:
“(a) The Court be pleased to issue writ of mandamus or any
other appropriate writ as deem fit, declaring that Notification
No.KMC/1707/303/CR209/07/UD25 dated 24/01/2008 is
ultra vires and void.
(b) The Court be pleased to issue any other appropriate writ,
order or direction under Article 226 directing that State and
Respondent No.3 has no power to impose toll on municipal
roads.
(c) The Court be pleased to issue writ, order declaring that
section 20(1A) of Bombay Motor Vehicles Tax Act is ultra
vires of constitution as State cannot collect toll under the act
brought into effect basically to consolidate and amend law
relating to taxation of motor vehicles.
(d) The Court be pleased to issue appropriate writ, order
th
declaring that Concession Agreement dated 10 July, 2008 is
ultra vires of constitution, nonest and is violative of
fundamental right of citizens of Kolhapur.
(e) The Court be pleased to issue appropriate writ or
directions declaring that act of Respondent No.1, 2 and 3 in
giving land reserved for sports complex as a part of funding
of project without transparency and ascertaining real value is
arbitrary and therefore, illegal.
(f) The Court may be pleased to issue directions for State as
well as all the local authorities not to give any land of the
Corporation without ascertaining valuation and calling for
bids. The Court may further issue directions that no land
22/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

23 PIL 179&216.13...
owned by Corporation should be given in violation
Maharashtra Municipal Corporation Act.”
10] These reliefs are sought in the following factual background:
The Petitioners are residing at Kolhapur and have their place of
business and residence in the City of Kolhapur.  The Petitioners are paying
the Corporation every year Road Tax along with Municipal Tax. All
household and commercial properties are required to pay Road Tax to the
Municipal Corporation.   Government of Maharashtra issued a Notification
th
on 26 August, 2003 under the Integrated Road Development Project
(IRDP) Kolhapur Scheme. The Government of Maharashtra decided to
develop roads in the city under the said Scheme.  The Government also
proposed collection of toll under section 20 of the Bombay Motor Vehicles
Tax Act, 1958.  The Government gave power to the Respondent No.2 to
collect the toll.
11] The Petitioners state that thereafter, the Respondent No.3 passed
st
Resolution No.180 dated 31 March, 2006 and process for development of
internal roads in the city was started.  The Government of Maharashtra
proposed to create 9 toll booths at various locations. The Government
also decided to impose toll while entering into municipal limits and while
23/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

24 PIL 179&216.13...
going out of municipal limits.  The residents of Kolhapur, right from the
beginning, started opposing toll.  The Petitioners state that no objections
were called from the public at any point of time.
12] The Petitioners state that the Government of Maharashtra issued a
st
revised GR for development of roads on 31 March, 2006 on Build
th
Operate Transfer (BOT) basis.  The first tender was published on 12 May,
th
2007. The bids and tenders were invited again on 29 October, 2007.
Thereafter, M/s. IRB Infrastructure Developers Ltd. along with Modern
Road Makers Pvt. Ltd. and ATR Infrastructure Pvt. Ltd. submitted their bid
th
in consortium. The bid of the consortium was accepted on 27 March,
2008 with a condition that Concession Agreement should be executed
within 30 days.
13] The Petitioners further state that pursuant to the sanction of their
th
bid, a Concession Agreement was executed on 10 July, 2008 amongst the
Respondent Nos.2, 3 and 4. Though the Concession Agreement was
signed, there were differences of opinion between the Respondent Nos.2
th
and 3.  Therefore, the Agreement dated 10 July, 2008 was never acted
th
upon. Thereafter, work order was issued on 9 January, 2009. The
Respondent No.2 approached the Respondent No.3 and informed the
24/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

25 PIL 179&216.13...
latter  that in order to breach the viability gap, the developer should be
provided 30,000 sq. mt. land on a nominal rent of Re.1 per sq. mt. per
year.  The Respondent No.3 passed a Resolution and decided to hand over
a piece of land, initially acquired for timber market and subsequently
reserved for playground, to the Respondent No.2. The said Resolution
th
was passed on 20 April, 2007. The Respondent No.3 decided to give
land on the conditions but which are contrary to the decision of
Respondent No.1 of development of roads on BOT basis. They were
against the interests of Respondent No.3.
14] The Petitioners further state that the Respondent No. 3 decided to
handover the land acquired for timber market to the Respondent No. 2.
The land was originally acquired for a timber market.  However, the said
reservation was changed to 'sports ground'. The said reservation was
changed to commercial with an intention to give the land to the
th
Respondent No. 4. While passing the resolution on 20 April, 2007,
financial implications of the IRDP project were considered by Respondent
No. 3.
15] The Petitioners further submit that pursuant to the Resolution dated
th
20 April, 2007, an agreement was executed between Respondent No. 2
25/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

26 PIL 179&216.13...
th
and 3 on 10 July, 2008. The said agreement inter alia provides for
execution of the IRDP Kolhapur through private sector entrepreneur on
BOT basis with financing by such an entrepreneur and with viability gap
funding by the Respondent No. 3, if any so required.  The said agreement
also provided for funding arrangement of the project. The parties also
agreed for constitution of steering committee under the chairmanship of
the ViceChairman and Managing Director of the Respondent No. 2 and
Commissioner and City Engineer of the Respondent No. 3.
16] The Petitioners further submit that the Maharashtra State Road
Development Corporation (for short the MSRDC), accepted the bid of the
consortium comprising of IRB Infrastructure Developers Ltd., Modern
Road Private Limited and ATR Infrastructure Private Limited and issued
th
letter of acceptance dated 27 March, 2008 to the said consortium
requiring execution of the consortium agreement within 30 days of issue.
The eligibility criteria for the bidders and particularly financial criteria as
per tender document was as under:
I. Eligibility Criteria

Sr.<br>No.	Criteria	Individual<br>Company	Consortium
1	Minimum equity stake	51%	26% for the Lead Member

26/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

27 PIL 179&216.13...

2	Net worth as per the<br>latest audited balance<br>sheet for the period<br>ending not earlier<br>than 31st March, 2006	Rs.72<br>crores	Rs.72 crores for all Consortium<br>Member taken together.<br>Additionally, minimum Net<br>Worth of each Consortium<br>Member shall be proposed equity<br>holding (%) of the Consortium<br>Member (as provided in MOU) X<br>Rs.72 crores.
3	Net Profi After Tax<br>(average of last three<br>years as per audited<br>balance sheet not<br>earlier than 31st<br>March, 2006	Rs.11<br>crores	Rs.11 crores for all Consortium<br>Member taken together.<br>Additionally, minimum Net Profit<br>After Tax of each Consortium<br>Member shall be proposed equity<br>holding (%) of the Consortium<br>Member (as provided in MOU) X<br>Rs.11 crores.

II. Technical Criteria:
(i) Individual Company Consortium should have
constructed one ROB/Flyover/Bridge costing Rs.7 crores(minimum).  such
st
a bridge should have been commissioned after 31 March, 2001.
(ii) Individual Company or Consortium Member should
st
have constructed after 31 March, 2001 a 4lane road minimum 15 k.m.
or 2lane road of minimum 25 k.m. length.
In the above cases, individual Company or Consortium should have built a
minimum of 5 k.m. road in Municipal areas.
Individual Company or Lead Member should have experience of a BOT
project.
27/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

28 PIL 179&216.13...
Details of financial technical and other liability criteria are available in the
RPF document.
th
17] The Petitioners further state that on 20 May, 2008, Respondent No.
4 requested Respondent No. 2 to accept the Respondent No. 4 as a party
and accordingly Concession Agreement between Respondent No. 2,
th
Respondent No. 3 and Respondent No. 4 was signed on 10 July, 2008.
The Petitioners state that record available with the Registrar of
Companies, Pune, show that Respondent No. 4 is promoted by the
Consortium as a subsidiary company and a subsidiary company of IRB
Limited, IRB Infrastructure Developers Ltd. The Company came into
existence in April, 2008, and, therefore, there is no question of
Respondent No. 4 meeting the eligibility criteria stated hereinabove.
18] The Petitioners state that the said Concession Agreement
authorized the Respondent No. 4 to construct roads within the limits of
the Municipal Corporation and also authorized the said Respondent to
collect toll from the users of the said project.
19] The Petitioners further state that the Concession Agreement dated
th
10 July, 2008 is against the provisions of BPMC Act, 1949 and, more
28/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

29 PIL 179&216.13...
particularly, Section 73 of the said Act.  The Petitioners state that as per
the said provision, the Commissioner, Municipal Corporation, While
entering into any contract on behalf of the Corporation, has to affix the
Common Seal of the Corporation in the presence of two Members of the
Standing Committee upon such a contract and further such a contract
should be signed by two Members of the Standing Committee.  The said
provision is mandatory and failure to comply with the said provision,
prima facie, discloses that the Respondents were in a hurry to give
contract without complying with legal provisions.
20] The Petitioners further state that as a part of the Concession
Agreement, Respondent Nos. 1 to 3 in collusion with each other and in
violation of the provisions of the now Maharashtra Provincial Municipal
Act (“MMCA”) and, more particularly, Section 79 decided to give 30,000
sq. meters under the guise of bridging the viability gap so that the project
period can be curtailed.
th
21] The Petitioners state that first tender was called on 12 May, 2007.
th
Retender was published on 29 October, 2007.  However, there was no
response to the said tender.  The Petitioners state that in the first tender of
th th
12 May, 2007 and in the retender of 29 October, 2007 there was no
29/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

30 PIL 179&216.13...
proposal to offer any land to bridge the gap.  However, strangely, before
th
even floating of the first tender on 12 May, 2007, the Kolhapur Municipal
th
Corporation passed Resolution No. 559 dated 20 April, 2007 deciding to
give 30,000 sq. meters prime land to the developer. In the said
Resolution, it was mentioned that the land will generate an income of
Rs.65 lacs per month. Therefore, in order to bridge viability gap, the
Kolhapur Municipal Corporation agreed to offer 30,000 sq. meters land
acquired for initially a timber market and subsequently reserved for
playground.
22] The Petitioners state that as per Section 79 of MMC Act, any
immovable property belonging to the Corporation, cannot be sold, leased
or otherwise transferred for less than the market value of such premium
rent or consideration.
23] The Petitioners state that the Bombay High Court in the judgment
reported in AIR 2004 BOM 129 in the matter of Vijay Keshav Kumbhar
vs. The Collector and Ors . held that it would not be proper for the
Corporation to execute lease for a period of 30 years at a time and
without calling for tenders.
30/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

31 PIL 179&216.13...
24] The Petitioners state that if it was the intention of the Corporation
to offer land on lease to bridge viability gap, the Corporation should have
called for tenders for development of the property and should not have
offered property directly to the developer without ascertaining the value
of the property or less than the value decided by the Corporation in its
resolution.
25] The Petitioners further state that 30,000 sq. meters land was offered
by Respondent No. 3 without ascertaining the market value or the
premium.  If the estimated Rs.65 lacs revenue per month as an income is
considered, as per the Resolution, the viability gap can be bridged much
earlier.  There is no need to give land on 99 years lease.  The Petitioners
state that if Rs.65 lacs per month is considered as an income, for 99 years,
the amount would be Rs.77,220 lacs, which is far more than the project
cost of Rs.191.56 crores.  Therefore, there would be no reason to pay any
further toll.
26] The Petitioners have, then, given a comparison of the figures
estimated by Respondent No.2 and Indian Road Builders, a parent
company of Respondent No.4.  The figures are contained in a chart at para
8.24 with comments of the Petitioners thereon.  Thereafter in para 8.25,
31/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

32 PIL 179&216.13...
the allegations based on examination of the balance sheet of Respondent
st
No.4 for the financial year ending 31 March, 2013 are set out.
27] In para 8.28 of the Writ Petition this is what is alleged:
“The Petitioners further state that the 30,000 sq. meters
land given to the Respondent No. 4 was further subleased by
the Respondent No. 4 to another company promoted by the
promoters of the Respondent No. 4. The sublease was
rd
registered with the Sub Registrar, Kolhapur on 3 July, 2010.
The sublease is registered by showing consideration price as
Rs.2,67,30,000/ and Stamp Duty of Rs.13,20,000/ is paid”
28] The Petitioners state that in Maharashtra Stamp Duty on transfer,
inter alia, of immovable properties is governed by the provisions of
Maharashtra Stamp Act, 1958. Article 36 of the said Act stipulates the
Stamp Duty payable on lease/sublease and any agreement to let or sublet
or any renewable lease provides for Stamp Duty as under:

Period of lease	Stamp Duty payable
No exceeding 5 years value	5% calculated on 5% of the market value of<br>the property.
Exceeds 5 years but not<br>exceeding 10 years with<br>renewal clause	5% calculated on 25% of the market value<br>of the property.
Exceeds 10 years but not<br>exceeding 29 years with<br>renewal clause	5% calculated on 50% of the market value<br>of the property.
Exceeds 29 years or in<br>perpetuity	5% calculated on 90% of the market value<br>of the property.

32/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

33 PIL 179&216.13...
The market value is to be determined as per the ready reckoner.  However,
strangely, the Respondent No. 4, while executing the sublease, has paid
Stamp Duty of Rs.13,20,000/ though the land is subleased for a period
of 99 years.  AnnexureD is a copy of the sublease deed based on which
the above allegations are made.
29] In para 8.29, it is asserted that the Respondent No.4 has proposed
recovery of toll on the ground that 95% of the work is complete but
Respondent No.3 has admitted that construction to this extent is not
completed.
30] Thereafter a reference is made to the report of the consultant
(Respondent No.5) and it is alleged that the project is provisionally
declared fit for entering into commercial operation.  It is alleged that the
quality of the road work is poor.  The citizens constituted informal group
of 15 persons comprising of architects and civil engineers. They have
inspected 5 roads and their condition can be revealed from their findings.
They are referred to in para 8.32. Thereafter, further allegations with
regard to shifting of utilities and in terms of the Concession Agreement are
made and the correspondence in that behalf is referred.  It is alleged in
para 12, 13 and 14 of the Petition as under:
33/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

34 PIL 179&216.13...
“12. The Petitioners state that in August 2010 the Respondent
No. 3 informed Respondent No. 2 about nonshifting of utilities
and even annexed the copies of the Concession Agreement.
Prior to this Respondent No. 3 also informed the Respondent
No. 2 that as per Clause 7.2 of the Concession Agreement it is
the responsibility of Respondent No. 2 to ensure that the
project is implemented and therefore, informed the Respondent
No. 2 to force Respondent No. 4 to complete shifting of
utilities. Hereto annexed and marked as Exhibit 'H'
collectively are the copies of the said letter.
13. The Petitioners state that the said issue appears to be
resolved at the cost of fundamental rights of the Petitioners as
well as citizens of Kolhapur and at the intervention of
politicians and short cut benefiting the Respondent No. 4 was
adopted.  The Petitioners state that Corporation is duty bound
to provide clean drinking water.  The Corporation had rejected
the earlier proposal of the Respondent No. 4 of providing key
junctions so that water pipelines can be repaired. The
Petitioners state that as per Concession Agreement provision
was made for shifting of existing utilities more particularly
drainage lines and drinking water lines with the intention of
providing easy repairs and avoid contamination of water.  The
cost of shifting of utilities was considered as a part of project
cost.  The Respondent No. 4 while constructing road and save
money decided to put concrete road on the utilities without
shifting.
14. The Petitioners state that strangely the Respondent Nos.
2 and 3 kept on insisting on shifting of utilities repeatedly.  The
Respondent No. 5 also supported Respondent Nos. 2 and 3 on
this count. However, strangely short cut of providing 'T'
Junctions was adopted which is not in the interest of any of the
Parties and is beneficiary to the Respondent No. 4. The said
option is in violation of the Concession Agreement.”
th
31] By referring to a letter dated 12 April, 2013 addressed by the
Corporation to the Principal Secretary, Department of Urban Development,
34/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

35 PIL 179&216.13...
Government of Maharashtra, it has been held that recovery of toll cannot
be permitted and in the given facts and circumstances.
32] Paras 16 to 24, 24A to 24C contain averments with regard to
legality and validity of the provisions enabling levy and collection of toll.
33] Thereafter in para 25 and 26, this is what is alleged:
“25. The Petitioners state that the entire project right from its
inception smacks of corruption and violation of fundamental
rights of citizens of Kolhapur.  It appears that the entire project
is conceived, designed, modified and implemented to
accommodate the Promoters of Respondent No. 4. The
Petitioners state that the land offered along with project was
never put as a part of tender document.  The project cost is
different. The vehicle count is different.  The obligations of
the Respondent No. 4 are not enforced and deviated to
accommodate the Respondent No. 4. The project is not
completed but all are in hurry to impose toll and police
protection is sought from the Hon'ble High Court. The
Petitioners therefore state that all the acts are in violation of
the Article 14 and 19 of the Constitution.
26. The Petitioners state that act of the Respondent Nos. 1
and 2 in collusion with Respondent No. 3 to allow Respondent
No. 4 to build road by ignoring legal obligation of Respondent
No. 3 is arbitrary and is in violation of Article 14 of the
Constitution. The Petitioners further state that neither
Respondent No. 1 nor Respondent No. 3 has legal right to
impose toll under the relevant provisions of the Bombay Motor
Vehicles Tax Act, 1958 on the development of the roads within
municipal limits.  Therefore, the imposition of toll is arbitrary
and violative of fundamental right of Petitioners and other
residence of Kolhapur and therefore, the imposition of toll
requires to be quashed and set aside.”
35/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

36 PIL 179&216.13...
34] In  the grounds, there is an elaboration of the above allegations and
averments. The essential being that as per section 73 of the Bombay
Provincial Municipal Corporation Act, 1949 (now the Maharashtra
Municipal Corporations Act) the Commissioner of Municipal Corporation
while entering into any contract on behalf of the Corporation has to
ensure that the Corporation is not put to loss or prejudiced.  Its interests
cannot be prejudiced by any Act of the Commissioner or the Corporation
particularly when it deprives the Municipal Corporation of any valuable
rights in the immovable property and which is held by it as trustee of the
public. The act of the Respondent Nos.1 to 3 in giving and allotting
30,000 sq. mts. of prime land, acquired initially for timber market and
subsequently reserved for playground to Respondent No.4 on 99 year term
lease under the guise of bridging the viability gap of the Integrated Road
Development Project is in violation of section 79 of the said Act. The
Corporation should have called for the tenders if this land or portion
thereof was to be offered or granted on lease.  It could not have offered it
directly to the developer in this case.  More so, without ascertaining the
market value or the premium.  Even if there was no term or condition to
that effect in the Concession Agreement still the Corporation was obliged
to ensure maximum returns or income for this valuable and prime
immovable property.  The 99 years lease of this property is nothing but
36/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

37 PIL 179&216.13...
giving away the same permanently and for  no benefit.  For these reasons,
as well, the reliefs as prayed and reproduced in the foregoing paragraphs
be granted.
35] It is surprising that this Petition is also filed as a PIL  and when an
earlier Petition being PIL No.179 of 2013 was already filed in this Court.
There also the Petitioners proclaim to be public spirited citizens and have
approached this Court urging that they reside in the city of Kolhapur.
They have filed this Writ Petition so as to protect the interest of residents
of Kolhapur.  They went to espouse their cause so that the city of Kolhapur
gets quality roads.
36] After referring to the State Government Notification dated 24th
January, 2008 for undertaking the Kolhapur Integrated Road Development
Project and appointment of Maharashtra State Road Development
Corporation as developer, the agreements between the Kolhapur
Municipal Corporation and MSRDC have been extensively referred.  The
facts regarding invitation of bids and eventual allotment of the project to
Respondent No.1 therein IRB Infrastructure have been, then, set out.  It is
stated that the letter of acceptance was issued on 27th March, 2008.  The
work started on 1st September, 2009. A Provisional Completion
37/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

38 PIL 179&216.13...
Certificate was issued on 10th October, 2011 certifying 95% completion of
the 7 km roads. A Toll Collection Notification was issued on 17th
December, 2011. Thereafter there was a notification issued on 5th
January, 2012 staying the collection of toll and independent committee
was appointed for technical assessment and status of the project in March
2012.  Then, reference is made in the list of dates and events to another
committee of the Collector, and Commissioner of the Municipal
Corporation for the assessment of the project and its  report submitted on
30th January, 2013.  It is alleged that there was a meeting convened by
the Chief Secretary of the State in which these two reports were
deliberated and discussed.  A fresh survey was directed to be conducted
on account of the variance between the two reports.  However, the fresh
survey proposal was rejected by the Contractor. Thereafter, there is an
allegation that the State lifted or vacated the stay granted to collection of
toll on 13th May, 2013.  After reference to a prior Writ Petition being Writ
Petition no.6646 of 2013 filed by the Respondent No.1, it is stated that
present PIL was filed on 5th September, 2013.
37] What is interesting to further note is that though both Petitions are
styled as Public Interest Litigation, there were divergent and contrary
stand taken in both.  Mr. Narvankar appearing for the Petitioners in PIL
38/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

39 PIL 179&216.13...
Petition No.179 of 2013 submitted that the challenge therein is restricted
to the Concession Agreement dated 10th July, 2008.  He also submits that
the challenge is raised to the tripartite agreement and the toll collection
notification dated 17th December, 2011.  He submits that the toll is a tax
of compensatory nature. It is not comparable with other taxes. He
submits that the amendment by introduction of section 20 in the
Maharashtra Motor Vehicles Tax Act, 1958 would denote that there is
authority and power to levy toll on vehicles.  That power was not there
earlier in the statute. The power to levy assess and collect toll on the
roads and the power to levy assess and collect toll on the vehicles passing
and using roads is now combined into this provision.  Mr. Narvankar has
invited our attention to this section in extenso to submit that though there
is such a power that could not have been exercised presently because of
the obligations under the Concession Agreement.  The Contractor had to
fulfill these obligations and only, then, he is authorized to collect toll.
There is an inbuilt responsibility and corresponding duty in that behalf
and in the Concession Agreement. Mr. Narvankar has invited our
attention to the Concession Agreement and its various clauses but prior
thereto, he invites our attention to the Government Resolution dated 24th
January, 2008 which sets out the decision of development of integrated
roads for the Kolhapur city. This is a revised decision and refers to all
39/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

40 PIL 179&216.13...
prior resolutions.  The Government of Maharashtra has decided that roads
worth Rs.220 crores have to be developed by private participation and on
BOT basis.  For implementation of this project, the Department of Urban
Development of the Government of Maharashtra is nominated as the
implementing agency whereas MSRDC is the developer. The clauses of
this Government Resolution have been referred by Mr. Narvankar in some
details.  He invites our attention to clause (16) and (23) to urge that toll
can be collected only after project work is completed to the extent of 95%.
Further, this resolution also sets out the decision to grant on lease 30,000
sq. mts. of land within the municipal limits of Kolhapur city and styled  as
timber market for 99 years.  This would be given to the contractor/agency
nominated for development and maintenance on toll roads.  This is only
on a nominal rent of Re.1/.  However, what the clause sets out is that the
possession of this land or portion to the above extent shall be handed over
to the contractor/agency only on the said agency or contractor incurring
Rs.60 crores on the project work.  Thereafter there are certain conditions
for utilization of this land, imposed on the contractors/agency. Mr.
Narvankar submits that insofar as the Concession Agreement is concerned,
even thereunder there are reciprocal obligations.
38] He refers to the same in some details so as to support his argument
40/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

41 PIL 179&216.13...
that there are terms which are expressly defined. In that regard, he
invites our attention to the definition of the term “Project Completion
Schedule”. He urges that by clause 15.1, the parties agreed that the
project shall be deemed to be complete when the completion certificate is
issued under the provisions of Article 14, whereas the Commercial
Operation date of the project shall be the date on which the provisional
certificate is issued.  There is no dispute about these clauses and the fact
that the term “fee” as defined in the agreement refers to nothing but toll
and the toll notification. However, he submits that the law, namely,
section 20 of the Maharashtra Motor Vehicles Tax Act, 1958 contains an
exception to subsection (1) thereof. The subsection (1) is in absolute
terms and, namely, that after the Bombay Motor Vehicles Tax Act, 1958,
came into effect, no toll shall be levied and collected on any Motor Vehicle
by any other local authority.  The exception is by subsection (1A).  That
was substituted by Maharashtra Act 7 of 2000. That enables levy and
collection of tolls on motor vehicles and trailers drawn by such vehicles.
But subsections (1A), (1B), (1C) and (1D) would demonstrate that
unless and until, the facilities are augmented, the toll cannot be levied and
collected. In the present case, the Petitioners have demonstrated as to
how the recovery of toll is not in accordance with law. In that regard, Mr.
Narvankar has relied upon the allegations and averments in the Writ
41/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

42 PIL 179&216.13...
Petition.  He has also submitted that the legal provisions have been mis
interpreted and misread by the authorities. Even the Toll Notification
th
dated 17 December, 2011 is not in consonance with section 20 of the
above Act.  In that regard, he submits that the notification states that all
the newly constructed bridges, roads, railway flyovers etc. will be deemed
to be 'single unit' for the purposes of section 20, whereas section 20(1D)
provides as follows:
“(1D) Where any additional bridge or tunnel, being the
bridge or tunnel on or below the same stream, river or creek
or road or railtrack including any approach road thereto is
constructed as augmentation of the facility of the use of the
existing bridge, tunnel or road, as the case may be, then, the
net work of such bridges or tunnels including approach roads
thereto shall be deemed to be one single entity for the
purpose of levy of toll, so however, that not more than the
capital outlay of such additional bridge or tunnel including
any approach road hereto and the expenses of collection of
toll shall be recovered.... .”
Thus, it can be seen that the augmentation of the facility of use of the
existing structure and network of such bridges or tunnels including
approach roads thereto shall be deemed to be one single entity. In the
present case, though the roads are built/repaired at several and different
places, they are treated as 'single integrated unit' and notwithstanding
treating them as single unit, tolls are charged at several places/toll nakas.
Further the Petitioners and others would, therefore, be made to pay for
the entire capital outlay at each one of the collection centre and thereby
42/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

43 PIL 179&216.13...
the total amount recovered by the Respondent No.1 would far exceed the
actual cost incurred for the said project.  It is unconscionable that the toll
amount that is sought to be recovered at such several places is
uniform/identical though the expenses incurred for the building/repair for
different roads/pavements would be obviously different. In fact, in the
case of small and intracity roads, it would be virtually impossible to apply
the scheme of section 20 and the same is only meant for application for
larger projects like HighWays and FlyOvers. Therefore, the basic
applicability of the BOT project to the city like Kolhapur is being assailed
by the Petitioners.  There was total nonapplication of mind as to the said
model of revenuecollection and the same is challenged hereby.
39] Mr. Narvankar submits that, alternatively, there is no justification,
whatsoever, for fixation of the toll amount. It is pertinent to note that toll
seeks to recover the cost of capital outlay which includes for the purposes
of this section, the anticipated cost of certain essential on goings or
imminent works, like improvements, strengthening, widening, structural
repairs, maintenance, and also, interest on such outlay at such rate as the
State Government may fix. However, in the present case all the costs
which Municipal Corporation could not afford like cost of land acquisition,
cost of shifting service lines etc. have been added to the Cost of Project
43/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

44 PIL 179&216.13...
thereby making it swollen figure.  The said Cost of Project, then, would be
recovered from the residents of Kolhapur in the form of toll. The said
action would be impermissible as the residents have already been paying
taxes regularly and this levy of toll may amount to doubletaxation.  Thus,
the Petitioners reiterate that the BOT basis is unsuitable for the cities like
Kolhapur and would make the entire project financially unviable for the
common man.  Also there is no clarity in the minds of the residents as to
what is the basis for recovery of toll and the justification thereof.  It is also
pertinent to note that the poor and needy villagers around the city of
Kolhapur may have to visit the centre town frequently and they cannot be
burdened with such unjust levy.
40] Mr. Narvankar submits that toll is compensatory tax but the scheme
is to recover costs incurred on the toll roads which are complete,
constructed, reconstructed and maintained. However, the certificate of
completion as relied upon is only provisional.  Mr. Narvankar has relied
upon the clause 10.3.5 in the agreement to urge that the obligation of the
concessionaire (Respondent No.1) to complete the work and the
consequences of not abiding by the schedule are provided in this clause.
Mr. Narvankar also invited our attention to the cost estimate to submit
that the same is roadwise. Mr. Narvankar, then, submits that the
44/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

45 PIL 179&216.13...
provisional certificate also stipulated that the punch list has not been
complied with.  There are certain tests included in this certificate which
have not been carried out.  Thereafter there have been certain items which
are pointed out and those are stated to be incomplete and/or deficient.
They are specified in the punch list.  In such circumstances, the expert has
recommended that the nature and extent of incomplete work is such that
the Commercial operation of the project should be withheld. He, then,
relies upon the letter at ExhibitP page 303 which has been addressed by
the MSRDC to the Chief General Manager of Respondent No.1 intimating
that the Respondent No.1 is not eligible for commercial operation.
41] Our attention is also invited by Mr. Narvankar to the communication
from MSRDC to one Pravin Indulkar informing him that tests and
inspection by independent architect would be carried out. In such
circumstances, and when these facts are confirmed in the affidavit of the
Municipal Corporation that Mr. Narvankar submits that the Writ Petition
be allowed and the relief be granted.  Mr. Narvankar has specifically relied
upon the affidavit of the Municipal Corporation in Public Interest
Litigation No.68 of 2011 which is AnnexureB collectively to the affidavit
filed by the Corporation in this Writ Petition.  Thus, there is no compliance
with the terms and conditions of the agreement. For these reasons, he
45/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

46 PIL 179&216.13...
submits that the petition be allowed.
42] Mr. Narvankar and Mr. Nevagi had relied upon the following
judgments:
1) AIR 2000 Supreme Court 961
     State of U.P. and others V/s. Devi Dayal Singh;
2) AIR 2011 Supreme Court 2979
     M/s. MSK Projects (I) (JV) Ltd. V/s. State of Rajasthan & Anr.; and
3) AIR 2012 Supreme Court 3408
    Delhi Race Club Ltd. V/s. Union of India and Others.
43] Mr. Dwarkadas, learned senior counsel, appearing for IRD,
Kolhapur, Respondent No.1 in the PIL and the Petitioner in Writ Petition
No.6646 of 2013 submitted that the background facts have to be noted.
He submits that the State Legislature had amended section 20 of the
Bombay Motor Vehicles Tax Act and the definition of the term “Capital
Outlay” is wide and comprehensive. By this amendment, State
Government also inserted a provision for carrying out of infrastructure
projects on built, operate and transfer basis by entering into agreements
with private entrepreneurs who were permitted under the new regime to
collect and retain the toll so collected. He has taken us through the
scheme of section 20 as amended so also the reasons therefor. Mr.
46/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

47 PIL 179&216.13...
Dwarkadas submits that the State Government through Public Works
Department issued a resolution for implementation of the Kolhapur City
th
Integrated Road Development Scheme. That is issued on 26 August,
2003. That is for improving the traffic situation in and around city of
Kolhapur which would benefit the public using the four state highways,
namely, state highway No.174, state highway No.115 and state highway
no.132 and one national highway, namely, national highway no.4 passing
through city of Kolhapur, that will also benefit the public using internal
Kolhapur municipal roads. The Maharashtra State Road Development
Corporation was appointed as a developer/entrepreneur for the project.
The project construction cost was approved. The project was on BOT
basis.  The toll recovery period was 30 years to be finally determined by
Government after financial analysis and the toll recovery would begin
after spending 25% of project cost on substantial work.  The project cost
was to be shared between MSRDC and Kolhapur Municipal Corporation.
44] As this approved cost was financially unviable for the Kolhapur
st
Municipal Corporation, it had passed a resolution No.180 dated 31
March, 2006 whereby project cost was to be borne entirely by a private
party  on BOT basis.  After financial analysis MSRDC was of the opinion
that the project was financially viable  and, therefore, its construction cost
47/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

48 PIL 179&216.13...
should be increased. The land should be offered to the private
parties/BOT contractor for commercial exploitation.  Mr. Dwarkadas relies
upon these events of March, April, 2006 and later on of April 2007
whereunder a resolution was passed by the Kolhapur Municipal
Corporation following the suggestion of MSRDC. The piece of land
admeasuring 30,000 sq. mtrs. which though reserved for timber market
and later for playground was not utilized since 1986.  It was to be given to
the BOT Contractor to make this project viable/feasible and adequately
compensate him.
45] The State Government’s Urban Development Department issued a
revised proposal based on above factors for the implementation of this
project for 49.9 kms of road.  The project construction cost was approved
at Rs.220 crores.  Mr. Dwarkadas submits that the sequence of events with
dates has been set out in the affidavit in reply of the Respondent No.4
Contractor in PIL No.216 of 2013 and there is no denial thereof. Mr.
th
Dwarkadas submits that in pursuance of the notification dated 24
January, 2008 an agreement was executed between the MSRDC and KMC
whereafter MSRDC invited tenders/bids in an open tender process.  The
MSRDC’s proposal in that behalf was responded by the Respondent No.4
and later on due consideration of its offer and bid took place. The
48/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

49 PIL 179&216.13...
Respondent No.4 was awarded the contract and  the appointment is from
th
dated 27 March, 2008.
46] Mr. Dwarkadas has relied upon the Concession Agreement dated
th
10 July, 2008 and some of the clauses therein. They are Article 6.2 (viii),
Article 10.3.2, Article 10.3.5, Article 10.4 and Article 14.2. We shall
wherever necessary reproduce them or refer to them in details so as to
appreciate the rival contentions.
47] Mr. Dwarkadas has laid heavy emphasis on certain other clauses of
the agreement so as to urge that an independent consultant SOWIL Pvt.
Ltd. was appointed for supervision, inspecting the project works and
regular tests were to be conducted by it so as to confirm the compliance
with the terms and conditions of the Concession agreement and/or any
approved variations thereof. He submits that as per the contract, the
appointed date was determined. For the purpose of Article 10.3.5 the
th
appointed date was 9 January, 2009. Mr. Dwarkadas submits that the
entire land was not handed over as is claimed by the Petitioner and there
are claims by the Respondent No.4 that the land stated to have been
handed over was fully encumbered. It was not as per the terms and
conditions of the Concession Agreement. Within 90 days from the
49/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

50 PIL 179&216.13...
appointed date only 7.35 km of land was handed over to IRB. The
balance land/right of way in various stages after removing the
encumbrances came to be handed over between April, August 2009.  At
the end of this period and prior to the provisional completion certificate,
in all, 45 kms of unencumbered land was handed over and IRB carried out
the project work on these lands.  There is a separate Handing Over and
Taking Over Note duly signed by the Concessionaire and Kolhapur
Municipal Corporation.
48] Mr. Dwarkadas has laid great emphasis on the PIL No.68 of 2011
th
being filed in this Court on 29 June, 2011 and a reply thereto by IRB.
Mr. Dwarkadas submits that this Petition was disposed of as the Petitioners
informed the Court that the Government had appointed an independent
committee of technical experts and the toll collection notification has been
stayed.  This Writ Petition was disposed of with limited liberty, namely, to
file a petition only if the Petitioners are aggrieved by technical committee
report.
49] Then, another PIL was filed being PIL No.82 of 2011 alleging that
contrary to the terms of the concession agreement IRB has not shifted all
the utility lines within the entire city of Kolhapur and still they are
50/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

51 PIL 179&216.13...
permitted by the State Government and MSRDC to continue with the
work.
50] Mr. Dwarkadas placed reliance upon the order passed by this Court
on this Writ Petition and which according to him clarifies that by the
Concession Agreement the IRB is to shift only those utility lines which
obstruct the carrying out of the project work. The Court also observed
that the foundation on which the Writ Petition was filed is entirely
erroneous.  Thereafter, he  has invited our attention to the pleadings in
Writ Petition No.6646 of 2013.
51] Mr. Dwarkadas submits that there is an opinion sought from a
retired Secretary in the Department of Public Works, Government of
Maharashtra, Shri M. V. Patil on parameters for issuance of the Provisional
Completion Certificate. Mr. Dwarkadas submits that the independent
consultant has issued the Provisional Completion Certificate after taking
into consideration the recommendations of Shri Patil. There is no
discrepancy between the Provisional Completion Certificate and opinion of
Shri Patil.  Mr. Dwarkadas asserts that IRB has completed successfully 95%
of the project work upon lands handed over under Article 14.2 of the
concession agreement and, therefore, applied for the Provisional
51/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

52 PIL 179&216.13...
Completion Certificate in accordance with Article 10.3.5 and 14.2 of this
agreement.  Mr. Dwarkadas submits that not only IRB completed 95% of
the work of construction of road to the extent of 7.35 kms but has also
completed substantial work on the land handed over  till the date of the
application, namely, 45.485 kms. He relies upon the contents of the
th
application dated 19 August, 2011. Mr. Dwarkadas submits that since
the project was nearing completion and realizing that IRB will be
commencing collection of toll, Toll Virodhi Kruti Samiti, which is an
unorganized group of Kolhapur residents and anti social elements opposed
the collection of toll and sought stay thereof.  They protested violently and
made it impossible for the IRB to continue with the project work.
However, it is pertinent to note that these residents or groups were never
protesting or complaining when the construction was going on and to
their knowledge from 2008 onwards till 2011.  Only on realizing that the
toll collection will begin that such motivated protests started and
therefore, there is no substance in any of these complaints.
52] Mr. Dwarkadas also submits that independent experts and even the
retired Public Works Department Secretary opined that there are definite
parameters to measure the work and, then, to record a satisfaction  about
issuance of Provisional Completion Certificate. He relied upon the
52/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

53 PIL 179&216.13...
contents of the certificates in that behalf and another document styled as
punch list. Mr. Dwarkadas submits that a Provisional Completion
Certificate issued by the consultant was accepted by MSRDC and Kolhapur
Municipal Corporation. That is how the toll collection notification was
issued.
53] Mr. Dwarkadas submits that the toll collection notification and the
th
steps taken have been justified in the affidavit in reply dated 25 February,
2014 of the State Government.  Mr. Dwarkadas submits that the net effect
of the issuance of such notifications is that the IRB is authorized to levy
th st
and collect toll from 20 December, 2011 to 31 March, 2039. He, then,
pointed out as to how the toll collection began but there were violent
protests and police protection was not provided though sought. Mr.
Dwarkadas submits that there is a provision in the Tolls Act, 1851
empowering all Police Officers to assist the parties like IRB and equally the
State and local authority to collect toll.  In that regard, he placed reliance
upon section 5 of (The Indian) Tolls Act, 1851. Mr. Dwarkadas submits
that there  was absolutely no justification for staying the collection of toll.
This was only because of political pressure and in the light of violent
agitation by a unregistered association called Toll Virodhi Kruti Samiti and
agitating section of the society. The State Government constituted a
53/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

54 PIL 179&216.13...
committee of technical experts to ascertain the percentage completion and
quality of project works. This committee consisted of Secretary in the
Department of Public Works, Head of Civil Engineering Department,
Indian Institute of Technology, Bombay, and Head of Civil Engineering
Department of VJTI (Veer Jeejeebhoy Technical Institute). Apart there
st
from, there is a report of the independent consultant dated 21 May, 2012
which is styled as a progress report certificate which demonstrates that
95.61% of work over all lands/roads handed over till then has been
completed.
54] Mr. Dwarkadas relies upon the findings of the committee appointed
by the Chief Secretary of the State and which records that there was
failure to hand over the project land/roads prior to commencement of
work.  The same was not done and even upon roads/land handed over,
the actual development plan width available for work was far less than
what was stipulated in the Concession Agreement, therefore, with the
approval of all parties, modifications were done.  This was on the basis of
availability of land.  Mr. Dwarkadas heavily relies upon the conclusion in
this report that carriageway work is more than 95% complete and for
footpath and drain the area of land which was necessary, and out of
which only 75% land was made available, the entire work is complete.
54/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

55 PIL 179&216.13...
Mr. Dwarkadas submits that with regard to quality of work, the committee
expressed its satisfaction and held that the same is good and even the
standard for to and fro movement on both types of pavement is good.
The committee suggested certain remedial measures or minor works and
which have been carried out by the IRB.
55] Mr. Dwarkadas submits that after the Committee’s report, the IRB
pointed out to the State and other authorities that grave and serious loss
and prejudice has been caused as IRB has invested Rs.420 crores into the
project till date out of which Rs.258 crores was debt from a consortium of
public sector banks.  There would be unnecessary increase in expenses if
the stay was not lifted or raised. He relies upon the project progress
th
report/certificate dated 30 January, 2013 and points out that as regards
roads handed over till that date, namely, 46.22 kms. the work was
complete to the extent of 96.88%.  Later on, there was a meeting and held
by the Chief Secretary of the State with high powered officials and Mr.
st
Dwarkadas relies upon the minutes of that meeting held on 1 Febraury,
2013.  Mr. Dwarkadas submits that without prejudice to the legal rights
and contentions, the IRB submitted bank guarantee of Rs.25 crores as
security for completion of balance work.
55/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

56 PIL 179&216.13...
56] Mr. Dwarkadas submits that the Kolhapur Municipal Corporation
itself has not been able to point out nor has it pointed out that the balance
work over the entire 49 kms. of road would be more than Rs.24.50 crores.
Therefore, that was entirely covered by the bank guarantee. Mr.
Dwarkadas submits that after these steps and measures, the Chief
Secretary of the State was satisfied that the stay deserves to be lifted.
That was lifted subject to the condition of submission of bank guarantee as
above. Mr. Dwarkadas submits that these bank guarantees have been
submitted and after the same the Collector of the District directed the
Superintendent of Police to provide police protection for completing the
balance works.  Still this protection was not provided.  That is how the IRB
has filed Writ Petition No.6646 of 2013.  Mr. Dwarkadas has relied upon
the order passed by this Court in the Writ Petition No.6646 of 2013 dated
th
28 August, 2013 in that behalf. He submits that toll collection has
commenced after the police protection was made available.  It is in these
circumstances, that some of the Petitions have been filed after the police
protection was granted and with ulterior motive. Mr. Dwarkadas submits
that in the light of all this, there is absolutely no substance in the PIL
Petitions and they deserve to be dismissed.
57] Mr. Dwarkadas has relied upon the following decisions in support of
56/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

57 PIL 179&216.13...
the above contentions:
1) (2005) 4 Supreme Court Cases 214  in the case of Gujarat
Ambuja Cements Ltd. and Another V/s. Union of India and
Another;
2) AIR 1962 Supreme Court 1406 in the case of Automobile
Transport (Rajasthan) Ltd. etc. V/s. State of Rajasthan and
others;
3) (1975) 1 Supreme Court Cases 375 in the case of G. K.
Krishnan and others V/s. State of Tamil Nadu and others;
and
4) (2006) 7 Supreme Court Cases 241 in the case of Jindal
Stainless Ltd. (2) and another V/s. State of Haryana and
others.
58] Mr. Dwarkadas was supported in his submissions by the other
advocates representing the State Government and MSRDC.  Mr. Chavan,
learned counsel, appearing for the MSRDC clarified that the allotment of
30,000 sq. mts. of land is in terms of the decision taken by the State way
th
back on 26 August, 2003.  The terms and conditions of such allotment
would demonstrate that this is not a one sided bargain or is not a largess
given to the Contractor.  The allotment is not without any corresponding
benefit and to the State and the Public.  In such circumstances, he submits
that even this objection has no merit.
59] Mr. Cama, learned senior counsel, appearing for the Kolhapur
Municipal Corporation, however, submits that the Kolhapur Municipal
Corporation is disputing the factual position about 95% of the project
57/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

58 PIL 179&216.13...
being complete.  He submits that this is a case where a joint survey was
suggested. However, Respondent No.4 has refused to participate in the
joint survey.  He relies upon the evaluation of the work by Commissioner
of Kolhapur Municipal Corporation and the Collector.  He submits that the
th
affidavit filed in Writ Petition No.6646 of 2013 on 26 September, 2013
nd
and the affidavit dated 22 October, 2013 of the civil engineer filed in PIL
No.216 of 2013 would demonstrate that there is a serious dispute about
completion of the work. He justified, however, the grant of 30,000 sq.
mts. of land to the Respondent No.4. He, therefore, submits that
appropriate orders be passed by this Court so as to allow a joint survey.
60] With the assistance of the advocates appearing for the parties, we
have perused both PIL’s, the affidavits in reply, rejoinder and all the
documents.  We have also perused the Annexures to the Petitions and the
affidavits wherever necessary. We have also perused relevant statutory
provisions and the decision brought to our notice.
61] In matters involving challenge to taxing provisions or a law
imposing taxes the principles which have been evolved are well settled.
The legality and validity of the toll is an issue, though given up by the
Petitioners. They ought to be reminded of the above principles. In a
58/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

59 PIL 179&216.13...
recent decision reported in AIR 2012 Supreme Court 2351 , the Hon'ble
Supreme Court ( State of M.P. v/s. Rakesh Kohli ) held as under:
“13. The statute enacted by Parliament or a State Legislature
cannot be declared unconstitutional lightly.  The Court must be
able to hold beyond any iota of doubt that the violation of the
constitutional provisions was so glaring that the legislative
provision under challenge cannot stand. Sans flagrant
violation of the constitutional provisions, the law made by
Parliament or a State Legislature is not declared bad.”
14. This Court has repeatedly stated that legislative
enactment can be struck down by Court only on two grounds,
namely (i), that the appropriate Legislature does not have
competency to make the law and (ii), that it does not take
away or abridge any of the fundamental rights enumerated in
Part – III of the Constitution or any other constitutional
provisions.
25. In Hamdard Dawakhana, the Court also followed the
statement of law in Mahant Moti Das and the two earlier
decisions, namely, Charanjit Lal Chowdhury V/s. Union of
India and others and The State of Bombay and another V/s. F.
N. Balsara and reiterated the principle that presumption was
always in favour of constitutionality of an enactment.
27. A wellknown principle that in the field of taxation, the
Legislature enjoys a greater latitude for classification, has been
noted by this Court in long line of cases. Some of these
decisions are : M/s. Steelworth Limited V/s. State of Assam;
Gopal Narain V/s. State of Uttar Pradesh and another; Ganga
Sugar Corporation Limited V/s. State of Uttar Pradesh and
others, R.K. Garg V/s. Union of India and others and State of
W.B. and another V/s. E.I.T.A. India Limited and others.
28. In R. K. Garg, the Constitution Bench of this Court
stated that laws relating to economic activities should be
viewed with greater latitude than laws touching civil rights
such as freedom of speech, religion, etc.
59/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

60 PIL 179&216.13...
29. While dealing with constitutional validity of a taxation
law enacted by Parliament or State Legislature, the Court must
have regard to the following principles : (i), there is always
presumption in favour of constitutionality of a law made by
Parliament or a State Legislature (ii), no enactment can be
struck down by just saying that it is arbitrary or unreasonable
or irrational but some constitutional infirmity has to be found
(iii), the Court is not concerned with the wisdom or
unwisdom, the justice or injustice of the law as the Parliament
and State Legislatures are supposed to be alive to the needs of
the people whom they represent and they are the best judge of
the community by whose suffrage they come into existence
(iv), hardship is not relevant in pronouncing on the
constitutional validity of a fiscal statute or economic law and
(v), in the field of taxation, the Legislature enjoys greater
latitude for classification.”
62] Before proceeding further, we would reproduce section 20 of the
Maharashtra Motor Vehicles Tax Act, 1958.  That reads as under:
“20. Bar to levy tolls, etc. on motor vehicles. (1) Except as
provided in the Bombay Ferries and Inland Vessels Act, 1868
(Bom.II of 1868) or that Act as applied to the Kutch area of
the State of Bombay, or the Hyderabad Ferries Act, (Hyd. Act
No.II of 1314F) or the Northern India Ferries Act, 1878 (XII of
1878) (and subject to the provisions of subsection (1A), (1
B), (1C) and (1D) on and after the commencement of this
Act, no tolls shall be levied and collected –
(a) on any vehicle, animal or person by the State
Government or by any local board,
(b) on any motor vehicle, by any other local authority:
(1A) Notwithstanding anything contained in sub
section (1), but subject to the provisions of subsections
(1B, 1C and 1D), the State Government may levy and collect
tolls on motor vehicles and trailers drawn by such vehicles –
(i)  passing over any bridge or through any tunnel
     including an approach road thereto or any section of
60/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

61 PIL 179&216.13...
   road or any bypass described hereunder in clauses
     (a) and (b), or
(ii) passing over or through any portion or a part of any
      such bridges or tunnels including the approach roads
     thereto or sections of roads or bypasses, the cluster
      of which is situated in a well defined zone and
declared by the State Government under the said
      clause (a) as one single entity,
   including the motor vehicles and trailers drawn by
   such vehicles benefiting directly or indirectly by the
      augmentation of the facilities in the use of such
bridges, tunnels or approach roads thereto or any
   sections of roads or any bypasses, although while
   enjoying benefit of such augmentation of facilities,
such vehicles may not be required to pass over or
      through the entire cluster of such single entity –
(a) toll may be levied and collected in respect of a bridge
or tunnel including an approach road thereto or any
section or road or any bypass or a cluster of such
bridges or tunnels including approach roads thereto or
section of roads or bypasses situated in a well defined
zone and declared by the State Government, by a
notification in the Official Gazette, as one single entity,
which is newly constructed, reconstructed, improved or
repaired as the case may be, after the commencement of
the Bombay Motor Vehicles Tax (Amendment)Act, 1987,
at the expense of the State Government or at the expense
of any person or body or association of individuals
whether  incorporated or not at the expense of both, that
is to  say, the State Government and any such person or
body or association (or by private entrepreneur or an
agent appointed by the State Government or the State
Public Enterprise authorised by the State Government
in this behalf, by entering into an agreement with such
entrepreneur or agent under the Build, Operate and
Transfer (B.O.T.) Projects) and the total capital outlay
of which construction, reconstruction, improvement or
repairs, as the case may be, is not less than ten lakhs of
rupees; or
(b) in respect of a bridge or tunnel including approach
61/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

62 PIL 179&216.13...
road thereto or section of road or bypass which, in the
opinion of the State Government, is of special service to
the public.
Explanation – For the purposes of this section, the expression
“Capital Outlay” shall include the anticipated cost of certain
essential on goings or imminent works like improvements,
strengthening, widening, structural repairs, maintenance,
management, operation, reasonable returns and interest on
such outlay at such rates as the State Government may fix
until the full amount of such outlay is recovered.
(4) The toll levied under subsection (1A) shall be levied
at such rate and for such period as the State Government may,
from time to time, by notification in the Official Gazette,
declare.
(B) The State Government shall, while determining the
rate of toll and the period for which such toll shall be levied,
have regard to the total capital outlay, the likely collection of
toll, the expenses of collection of toll, and the terms and
conditions of the agreement, if any, entered into with the
private person, body or association of person (incorporated or
not), or agent or entrepreneur by the Government or, as the
case may be, the State Public Enterprise, relating to the period
of collection and retention of the amount of toll by such person,
body, agent or entrepreneur, stipulated in the agreement,
including grant of reasonable reward in cash or in any other
form as an incentive for the early completion of the project,
than the period for completion stipulated in the agreement :
Provided that, the person or body or association of
individuals (whether incorporated or not) or the private
entrepreneur or agent with whom the Government or the State
Public Enterprise has entered into an agreement under the
B.O.T. Project or otherwise, for the construction, re
construction, improvement or repairs, etc. of any road, by
pass, bridge, tunnel, R.O.B., R.U.B., including any approach
road thereto or any bypass etc. as provided in subsection (1
A) shall be deemed to be the agent entitled to collect and retain
the whole or part of the amount of such toll for the services
and benefits rendered by such person, as the State Government
may, by notification in Official Gazette, specify, having regard
to the provisions of clause (B).
62/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

63 PIL 179&216.13...
(1C) The State Government may itself or through its
agent collect the toll levied under subsection (1B) and, where
such collection is made through agent, “or his subagents” shall
be deemed to be persons empowered to collect tolls under this
Act :
Provided that, not more than the capital outlay and
expenses of collection of toll shall be collected under this
Section.
(1D) Where any additional bridge or tunnel, being the
bridge or tunnel on or below the same stream, river or creak or
road or railtrack including any approach road thereto is
constructed as augmentation of the facility of the sue of the
existing bridge, tunnel or road, as the case may be, then the
net work of such bridges or tunnels including approach roads
thereto shall be deemed to be one single entity for the purpose
of levy of toll, so however, that not more than the capital
outlay of such additional bridge or tunnel including any
approach road thereto and the expenses of collection of toll
shall be recovered.  [having regard to the Provisions made in
clause (B) of subsection (1B)].
(1E) The State Government may, by a notification in
the Official Gazette, in the public interest, exempt any vehicle
or class of vehicles from levy of toll under this section.
(2) Notwithstanding anything contained in any law for
the time being in force, but subject to the provisions of [sub
section (1), (1A), (1B), (1C) and (1D)] and this sub
section, no local authority shall, after the commencement of
this Act impose or increase any taxes on motor vehicles :
Provided that –
(a) any taxes, other than tolls, on motor vehicles which
immediately before the commencement of this Act
    were being lawfully levied by any local authority,
       may continue to be levied and collected until
       provisions to the contrary is made by the Legislature
       by law;
(b) nothing in this subsection shall affect the power of
     any local authority to impose, increase or recover in
     respect of motor vehicles a tax falling under entry 52
     in list II in the Seventh Schedule to the Constitution.”
63/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

64 PIL 179&216.13...
63] A perusal thereof would indicate that subsection (1A) was
substituted by Maharashtra Act 7 of 2000. That is to take care of the
prohibition contained in subsection (1). Subsection (1) prohibits levy
and collection of toll on any vehicle, animal or person by the State
Government or by any local board and on any motor vehicle by any other
local authority.  By subsection (1A) the State Government is empowered
and has a discretion to levy and collect tolls on motor vehicles and trailers
drawn by such vehicles which may pass over any bridge or through any
tunnel including a bridge thereto or any section of road or any bypass
described in clauses (a) and (b) of subsection (1A).  Levy and collection
of toll on motor vehicles and trailers drawn by such vehicles is also
permissible.  Similarly, if any such vehicles and trailers drawn by them are
passing over through any portion or a part of any of such bridges or
tunnels including the approach roads thereto or sections of roads or by
passes, the cluster of which is situated in a well defined zone and declared
by the State Government under the said clause (a) as one single entity, the
toll could be levied and collected thereon. It can also be levied on the
motor vehicles and trailers drawn by such vehicles benefiting directly or
indirectly by the augmentation of the facilities in the use of such bridges,
tunnels or approach roads thereto or any sections of roads or bypasses,
although while enjoying benefit of such augmentation of facilities, such
64/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

65 PIL 179&216.13...
vehicles may not be required to pass over or through the entire cluster of
such single entity.  Thus, there is not only a power conferred to levy and
collect toll on motor vehicles and trailers drawn carried by such vehicles
but that could be levied and collected as above.
64] The argument of Mr. Narvankar that the toll could be levied and
collected only in respect of a bridge or tunnel or including the approach
road or any sections of road or any bypass or cluster thereof in a well
defined zone is difficult to accept because section 20(1A)(i) and (ii) are
separated by the word “or”. Therefore the State Government may levy
and collect tolls on motor vehicles and trailers drawn by such vehicles
passing over any bridge or through any tunnel including an approach road
thereto or any section of road or any bypass described in clauses (a) and
(b) or on motor vehicles and trailers drawn by them passing over the
approach road or bridges or tunnels and part of a cluster which is situated
in a well defined zone and declared by the State Government under the
said clause (a) as one single entity.  It is not necessary that the vehicles
must pass over or through every portion or part of any such bridges or
tunnels including the approach roads thereto or sections of road or by
passes of the cluster in a well defined zone and constituting a single entity.
The toll could be levied on motor vehicles and trailers drawn by such
65/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

66 PIL 179&216.13...
vehicles benefiting directly or indirectly by the augmentation of the
facilities in the use of such bridges, tunnels or approach roads thereto or
any sections of roads or any bypasses, although  while enjoying benefit of
such augmentation of facilities, such vehicles may not be required to pass
over or through the entire cluster of such  single entity.  The argument is
that there is no benefit of the bridges, tunnels or approach roads or any
sections of roads or any bypasses because the vehicle owners or the trailer
owners are not required to pass over or through the entire cluster of such
single entity. Even if there is any direct or indirect benefit by the
augmentation of facilities a toll can be levied and collected. In other
words, it can be levied and collected on motor vehicles and trailers drawn
by such vehicles and falling in and covered by section 20(1A) (ii) and it
can also be levied on such motor vehicles or trailers drawn by such
vehicles deriving benefit either directly or indirectly by augmentation of
the facilities in the use of such bridges, tunnels or approach roads thereto
or any sections of roads or any bypasses though they may not be required
to pass over or through the entire cluster of such single entity.  Then, a
construction, improvement or repair can be made of such roads at the
expenses of the State Government or by expenses of any person or any
association of persons whether incorporated or not or at expenses of both,
or by a private entrepreneur or an agent appointed by the State
66/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

67 PIL 179&216.13...
Government or the State Public Enterprise authorized by the State
Government in this behalf by entering into an agreement with such
entrepreneur or agent under BOT basis. It could be a BOT project and
which is newly constructing, reconstructing, improving or repairing the
bridge or tunnel including an approach road thereto or any section or road
or any bypass or a cluster of which is situated in a well defined zone and
declared by the State Government as one single entity.  Provided the total
capital outlay of such construction, reconstruction, improvement or repairs
as the case may be should not be less than 10 lakhs of rupees.  Therefore,
there could not be any challenge to the power of the State Government to
issue a Government notification or Resolution notifying the toll roads in
this case and even within the municipal limits of city of Kolhapur.  They
could be very well within the municipal limits but the power of the State
Government in terms of this provision being wide enough, such roads are
also covered thereunder.  There is no substance in the contention that the
toll is levied at multiple locations to benefit the contractor.  The argument
besides being vague overlooks the statutory scheme.  The statute permits
the recovery so as to cover the costs and expenses and its recovery is for a
specified period.  That also envisages reasonable reward for the contractor.
Thus, a balance is struck and benefit for the public is obtained by
augmentation of facilities. Similarly, the State Government could have
67/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

68 PIL 179&216.13...
nominated MSRDC as a developer and further that developer together
with the State Government or otherwise with the Kolhapur Municipal
Corporation can enter into an agreement with the private entrepreneur.
That is clear from section 20(1A)(a). The State is also empowered to
carry out such exercise in respect of the bridge or tunnel including
approach road or section of road or bypass which in the opinion of the
State Government is of special service to the public.
65] The explanation to this subsection defines the expression “capital
outlay” to include anticipated cost and interest on such outlay at such
rates as the State Government may fix until the full amount of outlay is
recovered so as to not to give any scope for an arbitrary determination or
computation of the capital outlay. That can include anticipated cost of
certain essential on goings or imminent works and which are included
within the purview of the explanation.  In such circumstances, to argue
that the term capital outlay must be understood in a particular way and as
desired by Mr. Narvankar cannot be accepted.  This explanation has been
inserted so that the State Government will have the power to fix the toll
rate or  the quantum of toll and so as to enable it to recover full amount of
such outlay.  Therefore the capital outlay can include the anticipated cost.
That has been defined so as to facilitate the exercise contemplated by
68/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

69 PIL 179&216.13...
section 20 (1B).  That is inserted by Maharashtra Act 17 of 2001.  The
determination of the rate of toll and the period for which it can be levied
will be, with due regard to the matters provided in this clause (1B).
66] Pertinently before us, there is no challenge to the competency of the
State Legislature in enacting this provision and in a composite manner.
Further, it is not the case of the Petitioners that toll cannot be levied and
collected in so far as the roads within the municipal limits of the city of
Kolhapur. Their challenge is that the roads having not been completed
and in terms of the obligations on the contractor the recovery of toll
should not be permitted. Secondly, the understanding appears to be that
only when construction of entire set of roads is complete that the recovery
of toll can commence.
67] Both these contentions suffer from a complete lack of understanding
of the mechanism of toll.
68] To begin with, there is in field The Indian Tolls Act, 1851. That is
Act to levy tolls on public roads and bridges. It is a very short Act
containing Eight (8) sections.  Section 2 of the said Act empowers levy of
tolls on roads and bridges within certain rates and to appoint Collectors so
69/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

70 PIL 179&216.13...
also their responsibilities.   Hence, it is not a correct understanding of the
law. The can be levied and collected on any road or bridge which has
been, or which after the Toll Act is made or repaired at the expense of the
Central or the State Government.  It can be so levied and recovered  by
placing the toll collection under the management of such person as may
appear to the  Central Government, proper.  Then, section 3 thereof sets
out the power of recovery of toll. Section 4 of this Act provides for
exemption from payment of toll and by section 5 the Police Officers are
bound to assist the toll Collectors, when required, in the execution of the
Tolls Act and for that purpose shall have the same powers which they
have in the exercise of their common police duties.  Other sections enable
levy of penalty for offences under the Act and exhibition of table of tolls
and statement of penalties.
69] In 1864, there has been an amendment to this Act and there are
certain powers under the 1851 Act which have been conferred in relation
to some parts of India.  The Hon'ble Supreme Court in the case of M/s.
MSK Projects (I) (JV) Ltd. V/s. State of Rajasthan and Another
reported in AIR 2011 SC 2979 referred to the law and concept of toll.
The Hon'ble Supreme Court in that regard held as under:
“25. Determination of the aforesaid three issues brings us
70/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

71 PIL 179&216.13...
to the entitlement of the private appellant.
The Court is not oblivious to the fact that the State
authorities cannot be permitted to use the collection of toll
fee as augmenting the State revenues. In State of U.P. &
Ors. V/s. Devi Dayal Singh, AIR 2000 SC 961 : (2000 AIR
SCW 617), this Court defined 'toll' as a sum of money
taken in respect of a benefit arising out of the temporary
use of land.  It implies some consideration moving to the
public either in the form of a liberty, privilege or service.  In
other words, for the valid imposition of a toll, there must
be a corresponding benefit.  The Court further held:
“Although the section has empowered the State
Government to levy rates of tolls “as it thinks fit”, having
regard to the compensatory nature of the levy, the rate of
toll must bear a reasonable relationship to the providing of
benefit. No doubt, by virtue of section 8 of the Act, the tolls
collected are part of the public revenue and may be
absorbed in the general revenue of the State, nevertheless
by definition a toll cannot be used for otherwise
augmenting the State's revenue.”
26. In fact, the toll fee under the Tolls Act, 1851 is of
compensatory in nature wherein the Government can
reimburse itself the amount which it had spend on
construction of road/bridge etc.
Clause IV(a) of the statutory notification dated
10.2.1997 which entitled the government to give present
road on toll is reproduced below:
“IV(a) The toll of any of the aforesaid
facilities/constructions shall be levied only for so long as
the total cost of its construction and maintenance including
interest thereupon, and the total expenditure in realisation
of toll has not been realised in full or for a period of 30
years.”
(Emphasis added)
It is evident that Clause IV(a) of th Notification
dated 10.02.1997 envisages that toll can only be collected
as long as total cost of construction and maintenance
including interest thereupon is recovered. A person is
debarred by law and statutory inhibition as contained in
71/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

72 PIL 179&216.13...
Clause IV(a) of the notification from collection of toll
beyond the recovery of cost of construction.
27. Thus, from the above referred provisions, it is
evident that toll fee is compensatory in nature and can be
collected by the State to reimburse itself the amount it has
been spent on construction of the road/bridge etc. The
State is competent to levy/collect the toll fee only for the
period stipulated under the Statute or till the actual cost of
the project with interest etc. is recovered. However, it
cannot be a source of revenue for the State.”
70] Even in the earlier judgments of the Hon'ble Supreme Court and
which have been referred to, namely, State of U.P. and Others V/s.
Devidayal Singh reported in AIR 2000 SC 961, this aspect has been
considered and the understanding there also was that the toll can be
collected only to meet the cost of the construction of the bridge or its
approach road. It can also be levied to meet any extraordinary repair
which it is necessary to carry out in order to maintain the stability of the
bridge or the road as the case may be.
71] In the light of the above if one peruses section 20 and with its
amendments it will be evident that not only the legislature has by
insertion of the subsections enabled levy and collection of tolls on motor
vehicles and trailers drawn by such vehicles but has also set out the mode
and manner in which it is to be levied and collected.  It has also taken into
72/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

73 PIL 179&216.13...
consideration the fact that the roads and bridges will now have to be
constructed with the participation of private entities and to enable them to
do so the agreements with the entrepreneur or agents under the Build,
Operate and Transfer basis will have to be executed.  The contractors or
agents or entrepreneurs would have to be permitted to reimburse
themselves the expenses of construction, improvement, maintenance,
management, repairs and operation of the toll road.  The roads or bridges
or approach roads would have to be stipulated and bearing the capital
outlay the likely duration of collection of toll, the expenses and the terms
and conditions of the agreement all have a bearing on the determination
of the rate of the toll.  The period for which the same can be levied and
collected would have to be determined so as to gauge the likely period
within which the costs and expenses can be reimbursed or recovered.
The period of collection and retention of the amount is also to be
stipulated so as to reasonably reward in cash or any other form the
contractor/private entity for completion of the project earlier than the
period stipulated in the agreement. It is in these circumstances that in
Maharashtra, the legislature has stepped in and made a composite as also
comprehensive legislation.  It is too late in the day to urge that the agent
or the contractor in this case could not have been allowed to collect the
toll.  It is also clear that the law has provided for relief and benefit so that
73/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:12 :::

74 PIL 179&216.13...
after the commencement of the amended Act, the local authority cannot
impose or increase any tax on motor vehicles except as permitted by sub
section (2) of section 20.
72] We are not with Mr. Narvankar on the aspect of levy and collection
of tolls. His argument that the toll should not be permitted to be collected
unless all the roads are completed, is difficult to accept. It does not take
into consideration any of the averments in the Writ Petition and the
allegations.  The Writ Petition does not contain any argument with regard
to the interpretation of the provisions but it being a Public Interest
Litigation and since a argument to the effect has been canvassed that we
are dealing with the same.
73] The argument overlooks the fact that by the notification at
AnnexureA to the memo of PIL No.179/2013 the Urban Development
th
Department of the State of Maharashtra issued a GR dated 24 January,
th
2008 and in furtherance of the GR dated 26 August, 2003 of the Public
Works Department of the State, the Resolution of the general body of the
st
Kolhapur Municipal Corporation dated 31 March, 2006 and the letter of
th
the Kolhapur Municipal Corporation dated 5 January, 2006 all of which
are referred. In the preamble to the 2008 G.R., historical and cultural
74/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

75 PIL 179&216.13...
features or otherwise of the city of Kolhapur and their significance have
been referred.  It has been observed that Kolhapur is an important city in
Western Maharashtra and having a historical and cultural setting. It is also
industrially advanced. Therefore, the State undertook a study and found
that there are about 5 or 6 important temples in the city.  Similarly, near
Kolhapur there are temples of Jyotiba, Katyayani Devi, Narsinghwadi.
Further, there are forts of Panhalgadh and Vishalgadh located nearby.
There are other historical and cultural places within the city of Kolhapur
including those frequented by Public for their beauty and architecture.
There is Kolhapur Ratnagiri State Highway No.204, Kolhapur
Gaganbawda State Highway No.115, Kolhapur Radhanagari State
Highway No.130, and Kolhapur Gargoti State Highway No.132 passing
through the city.  Thus, these are roads linking Kolhapur city to the Kokan
Region and also the western and southern parts of the District itself.
These roads are busy roads. Further, there is a road which is outside the
city on Eastern side and which is the National Highway No.4, Pune
Bangalore.  This road is now part of the National Highway quadrangle or
project of roads in the Prime Ministers link India Scheme.  Since there is
heavy traffic from other parts of the District and Konkan which passes
through the city towards Pune, Sangli, Bangalore that puts additional
pressure on the existing traffic.  That results in traffic Jam and  congestion
75/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

76 PIL 179&216.13...
of  vehicles because of reduction of speed.  That endangers the security of
the pedestrians as well.  For all these reasons, it was envisaged that there
should be an integrated road development project.  The Scheme of such
road development was approved by the Public Works Department of the
State of Maharashtra. However, some aspects in that Government
resolution were unacceptable to the Kolhapur Municipal Corporation.
That is why it passed a resolution No.180 in its General Body meeting on
st th
31 March, 2006. In the light of this, the earlier GR of 26 August, 2003
was cancelled and the further decision was taken.
74] The decision is to incur about Rs.220 crores for the above project
and the project has to be implemented by BOT mode.  The implementing
agency is the Urban Development Department of the State and the
Maharashtra State Road Development Corporation was designated as a
developer so as to improve the conditions of the road and the
management of the traffic as a whole. This developer has been
empowered to carry out the works by inviting interested parties by a  open
tender process.  The scope of the work is as envisaged by AnnexureI to
this GR. Since the project was to be implemented on BOT basis all
ancillary and incidental powers were also vested in the MSRDC. These
powers are set out in clause (i) and (ii) of this GR.  By clause (iii) of this
76/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

77 PIL 179&216.13...
GR all the maintenance work, repair and reconstruction will have to be
carried out by the agency or the contractor who has been termed in the
GR as entrepreneur. He has also to perform all the duties and particularly
of cleaning, removal of debris, clearing of the drainage systems and
operation of service lines cables etc.  The work of acquisition of land has
to be carried out by the Kolhapur Municipal Corporation and it will be the
responsibility of that Corporation so as to make available the land
required for repairing and construction of the roads.  For that purpose it
must remove all encroachments and undertake rehabilitation projects and
schemes so that the land is made available free of encroachment. There
are about 9 toll booths which can be erected for purposes of collection of
toll. Then, to recover all the costs and as above, a piece or parcel of land,
for commercial development on lease for 99 years be allotted to the
entrepreneur.  That is the scheme and the rates of toll, the conditions and
exemptions therefrom as prevailing earlier  have been set out and further
the scheme or project is specifically stated to be covered by section 20 of
the Act.  Therefore, we cannot accept the arguments of Mr. Narvankar to
the contrary.  The project as a whole being integrated is, therefore, beyond
any doubt.  Further, there is a power given to collect the toll and on the
roads which are to be specified in terms of the notifications to be issued.
The collection of tolls is a right conferred on MSRDC and which could be
77/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

78 PIL 179&216.13...
delegated to the entrepreneur. Clause (16) clearly states that once the
project work is completed to the extent of 95%, then, the toll collection
can commence and that is approved.
75] Then, there are stipulations about constitution and composition of
the Steering Committee and which involves the Commissioner of the
Kolhapur Municipal Corporation. The Police authorities were also
involved and they were to cooperate with the Committee so as to
smoothen the traffic flow.  The other stipulations and provisions may not
be relevant except clause 23 which enables handing over 30,000 sq. mtrs.
of land in the timber market limit to the contractor/ entrepreneur.  There
are conditions imposed with regard to use and utilization on this plot of
land for commercial purpose. That is to be in accordance with the DC
Regulations and approved development plan.  The income from the said
Commercial exploitation has to be shared and it must be apportioned in
the ratio of '50:50'.  The entrepreneur was to bear the project cost.  From
the remaining 50%, 10% will be handed over to the MSRDC for
administrative expenses and 40% will be given to the Kolhapur Municipal
Corporation.  The entrepreneur will have to obtain prior permissions for
such commercial use from the concerned department. If there are
additional benefits and advantages on account of changes in the rules
78/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

79 PIL 179&216.13...
such as DC Rules and Regulations resulting in more FSI, then, the
quantum or figure of the income resulting therefrom  shall be determined
by referring to the ready reckoner. Further, a comparative analysis of the
then prevailing market rates would also determine the amount to be
apportioned and shared in the above proportions.  The higher of the rates
would be taken into consideration for this determination.  Further, if the
additional income could be generated at all by the entrepreneur or
contractor and by usage and exploitation as above shall be solely decided
by the MSRDC. The whole intent appears to be to bridge the viability gap
and for that purpose suitable provisions can be made in the agreement.
Upon perusal of all these clauses, we do not think that any special benefit
or advantage has been conferred on the contractor.  The argument of Mr.
Nevagi that a largesse  has been distributed in the form of allotment of
land cannot be accepted if all the clauses of the agreement and
particularly clause 23, 24 and 34 are read together.   It is to bridge the
viability gap and to ensure that the project reaches early completion that
this portion has been handed over.  There is no violation of the mandate of
Article 14 of the Constitution of India. The complaint of Mr. Nevagi,
learned counsel, appearing for the Petitioners in one of the PIL is that 99
years duration of the lease amounts to virtual sale of this land in favour of
the entrepreneur/contractor IRB. That has been done without inviting
79/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

80 PIL 179&216.13...
bids or tenders from the public by a public advertisement or notice.  Mr.
Nevagi submits that public property cannot be disposed of privately. It
must be disposed of by inviting bids and offers from the public and that is
by inserting a notice in that behalf in the leading newspapers published in
and around the locality so also within the State.  By this process anybody
can bid for this property and it will fetch a higher price or value.  That
could be the market price.  It is a huge tract of land admeasuring 30,000
sq. mts. and in a prime area or locality. It is an open plot.  Therefore, in
the garb of bridging the project viability gap, this land could not have
been disposed of in this manner and in favour of the IRB.
76] In this regard, we have carefully considered the rival contentions
and perused the pleadings including affidavits. We find enough
justification for the course adopted by the authorities. Mr. Dwarkadas has
pointed out as to how there was huge gap and the project could not have
been viable. The difference of opinion between statutory authorities
regarding meeting and sharing the expenses on the project led to the
entrepreneur/contractor bearing all the costs.  Now, the costs and which
ordinarily would  have to be borne by this public body will be borne by
the contractor/ entrepreneur. Mr. Dwarkadas has pointed out that the
project cost was financially unviable for the Kolhapur Municipal
80/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

81 PIL 179&216.13...
st
Corporation. It passed a resolution No.180 dated 31 March, 2006
whereby the project cost was to be borne entirely by a private party on
BOT basis.  After financial analysis the MSRDC was of the opinion that the
project was financially viable and, therefore, its construction cost should
be increased.  That is how the land came to be offered to the contractor
for commercial exploitation. The events as referred by Mr. Dwarkadas
from March, April, 2006 and later on of April 2007 would indicate that it
is not to favour the IRB that this decision was taken.  The decision was
taken much prior to execution of the Concessionaire agreement and other
events.  It is not that this land has been sold as claimed by Mr. Nevagi.  His
arguments overlook the contents of the Government Resolution and to
which we have made detailed reference in the foregoing paragraphs.  The
commercial exploitation by the contractor/ IRB is to bridge the gap and
make the project financially viable. Ultimately a private entrepreneur
would not bear the costs of huge projects and of laying and constructing
roads to the extent of 49.99 kms unless there is a reasonable profit and
benefit. It cannot be accepted and in such cases, all the time that
contractors complete the works and the project as a whole on borrowed
moneys or investments.  To bridge the gap of the income generated from
investments and other sources by the contractor and of its own so also the
burden of interest and repayment of installments of borrowed moneys, till
81/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

82 PIL 179&216.13...
the same is covered by the collection of toll, that the decision was taken to
allot or hand over this land and on lease. Therefore, in larger public
interest and to ensure completion of the project work in time that the
decision was taken by the public body.  It being taken more than 6 years
back, no useful purpose will be served by now interfering with the same
and on the grounds urged by Mr. Nevagi.  The public interest having not
been surrendered or sacrificed but to obtain benefits eventually for the
public that this decision is taken.  Pertinently, there are no allegations of
malafides or any ulterior motives.  There are no particulars forthcoming
to substantiate the allegations of favouritism and nepotism either.  In these
circumstances, we are of the opinion that handing over this plot to the
contractor does not harm or contravene the public interest rather it is
subserving the same. Mr. Nevagi does not dispute that the clauses or
th
paras of the Government Resolution dated 24 January, 2008 and the
Concessionaire Agreement have to be read together and harmoniously.
They postulate that the land or potion cannot be used and exploited by
the entrepreneur as if he is the owner thereof or has absolute title to the
same. Its use will be in accordance with the D.C. Rules.  The entrepreneur
will have to obtain prior permissions from statutory Authorities for
commercial use.  The entire income from such user also does not go to the
entrepreneur. He can retain only 50% from the same and utilize it for
82/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

83 PIL 179&216.13...
meeting the project cost and expenses. He will have to hand over the
balance to MSRDC and substantially (40%) to the Kolhapur Municipal
Corporation.  If there was a sale of  the land, then, all these benefits could
never have been obtained by the Public bodies.  The surplus income, its
quantum and how it should be apportioned also has to be determined by
the public bodies and their officials. If there is divesting of title, then,
nothing of this nature is possible.
77] We are of the opinion that to such cases the exception carved out in
the decision of the Hon'ble Supreme Court in the case of Akhill Bhartiya
Upbhokta Congress V/s. State of Madhya Pradesh & Ors. reported in
AIR 2011 SC 1834 will apply. If the decision of allotment of public
property in favour of an individual has been taken in an exceptional case
and there is no total disposal or sale of the property belonging to the
public, then, the arguments to the contrary canvassed by Mr. Nevagi and
Mr. Narvankar cannot be accepted.
78] Additionally, we called upon Mr. Dwarkadas to take instructions as
to why in larger public interest, we cannot impose a further condition on
the entrepreneur/contractor.  We put it to Mr. Dwarkadas that why a open
plot of land which was earlier reserved in the development plan for use as
83/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

84 PIL 179&216.13...
timber market and later as playground should be commercially exploited
to such a extent as to deprive the residents of Kolhapur of open and green
spaces completely. We shared our anxiety with Mr. Dwarkadas and
suggested to him as to why the entrepreneur/contractor cannot make
available to the public open space in the form of a playground so as to
ensure playing area for the children and equally for the residents and
senior citizens. Mr. Dwarkadas submitted that he is not averse to the
course suggested by us. Upon taking instructions, Mr. Dwarkadas has
stated that the contractor/entrepreneur will construct and lay a
playground of a substantial size and area and hand it over to the Kolhapur
Municipal Corporation. He submits that till the playground is laid and
constructed, the contractor/entrepreneur will not commercially exploit the
area or portion carved out for use as a playground.  We direct accordingly.
This area shall be made available and handed over to the Kolhapur
Municipal Corporation within a period of four months from the date of
receipt of copy of this order.  The Kolhapur Municipal Corporation shall
ensure that the playground area after it is handed over to the Kolhapur
Municipal Corporation shall be used only as a playground and kept open
to the sky.  No construction activity shall be permitted therein.  This to our
mind would additionally ensure that the public is not deprived of open
spaces and which are very vital for human existence and orderly and
84/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

85 PIL 179&216.13...
proper growth and development of children and youth. Even the elderly
and senior residents who are inhabitants of the city would be benefited by
making available  additional open space.
79] Now, we have to deal with the arguments of both Mr. Nevagi and
Mr. Narvankar about the project not being completed and in terms of the
clauses of the Concession Agreement. In that regard, we have perused
that agreement in its entirety.  If all the clauses  of this agreement are read
together and harmoniously it would be clear that the same does not
contemplate levy and collection of toll only after full completion of the
project work.  The recovery of toll can commence provided the work is
completed to the extent indicated in these clauses and the cost as
stipulated therein is incurred on the project. With regard to the
satisfactory completion of the project work, there are inbuilt checks and
safeguards in the agreement. The presence of high powered statutory
officials and responsible public bodies together with independent
consultant ensure that the toll recovery does not commence abruptly or
without compliance with the terms and conditions imposed on the
entrepreneur.  These authorities and the committees comprising of experts
from independent institutions assure the public that roads laid meet the
required standards.  They are fit for being used by the vehicles and the
85/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

86 PIL 179&216.13...
public. Such roads together with the pavements and the utilities and
services represent a complete and integrated picture of the project.  The
public body, senior citizens and residents are expected to approach these
independent committees or public officials with grievances and complaint
and bring to their notice any shortcomings, defects, deficiencies in the
project work. They can request these public officials and equally their
representatives to monitor the project and take care of their complaints
and grievances by issuing timely directions to the entrepreneur. This
mechanism is devised in the agreement and in the law itself so that such
mega and huge projects are undertaken and implemented with public
participation. There is a representation given to the public on these
committees and it is by appointing senior officials, independent experts
from reputed engineering and technology institutes such as IIT (Indian
Institute of Technology) and Veer  Jeejeebhoy Technical Institute. Even the
elected representatives can involve themselves by forwarding to the
implementing agencies and authorities the complaints and grievances,
suggestions and views of the public.  In this case, we have found that on
being not fully satisfied with the consultants report, the matter was
referred to the senior official of the Public Works Department and which
official had served in high capacity earlier.  He had retired from service
and was chosen for his competence and impartiality.  He also inspected
86/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

87 PIL 179&216.13...
the site and evaluated the project work independently.  He has arrived at a
satisfaction and it is recorded and contained in his report.  The copies of
the relevant documents, progress reports are available for inspection and
scrutiny by the members of the public.  The highest executive official of
the State, namely, Chief Secretary, convened a meeting of the officials
connected and associated with the project work and sought clarifications
from them and gave directions including staying of the recovery of toll.
We see considerable force in the argument of Mr. Dwarkadas and Mr.
Chavan that the project work has been completed and the progress is as
certified in the same. The contents of these reports having not been
disputed that we are of the opinion that we cannot sit in judgment over
the conclusions therein. The observations, remarks and views in such
reports of experts deserve due regard and respect by this Court. If the
standing, reputation, integrity, experience and expertise of the members of
such committees cannot be doubted in the light of their credentials, then,
all the more, it will be difficult to accept the vague complaints of the so
called public interest litigants.
80] We see considerable substance in the contentions of Mr. Dwarkadas
that the belated challenge to the project, the complaints and grievances at
the fag end are raised so as to stall the recovery of toll. The toll recovery
87/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

88 PIL 179&216.13...
was to commence and when that would have affected these residents that
they come forward to question the entire project.
81] In this regard, it would be proper to refer to the affidavit in reply of
th
the Respondent No.1 dated 28 November, 2013. In that the reference is
made to the earlier PIL No.68 of 2011 which has been disposed of.  In that
th th
PIL two orders are passed by this Court on 12 April, 2012 and 12 July,
2012.  The relevant part of those orders read as under:
“4. Mr. Dada, the learned counsel for the Respondent No.2
th
has not disputed that the Provisional Certificate dated 7
October, 2011 has already been issued by the Respondent
No.5 which demonstrates that 95% work of the project has
been completed and it is open for the Respondent No.4 to
undertake commercial operations.  Similarly, the Notification
th
dated 17 December, 2011 has been issued under the
Bombay Motor Vehicles Act authorising collection of toll on
the specified Nakas.
5. Counsel for the Petitioners has submitted that the
Hon'ble Chief Minister has taken cognizance of the issue and
constituted a Committee to consider whether the work of
Project undertaken by the Respondent No.2 was carried out
strictly in compliance with the terms and conditions of the
contract. The issue is pending before the Committee for
decision and submission of the report to the Hon'ble Chief
Minister has already stayed the collection of toll by the
Respondent No.4 vide order dated 5.1.2012. The learned
counsel for the Petitioners in the above referred facts and
circumstances seeks some time to obtain instructions from
the Petitioners.”
th
82] On 12 July, 2012, the following order came  to be passed:
88/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

89 PIL 179&216.13...
“Counsel for the Petitioners is absent.
Ms Misra appears for the Respondent No.4.
2. The learned counsel for the Respondent No.4 has
brought to our notice the order dated 12.4.2012 passed in the
present proceedings. Perusal of the same shows that for the
reasons stated in the said order, the learned counsel for the
Petitioners sought time to obtain instructions from the
Petitioners to withdraw the Petition with liberty to keep option
open, if the grievance of the Petitioners subsists after the
submission of the report by the Committee to the Chief
Minister. It is contended that though the matter was listed
thereafter on a few occasions, it could not be heard by this
Court. The counsel for the Respondent No.4, in the
circumstances, has prayed that the petition may be disposed of
accordingly.
3. On the backdrop of the above referred facts and in view
of the order dated 12.4.2012, we dispose of the PIL accordingly
with liberty as prayed for.”

The events after this order and development have been, then, set out in
this affidavit.  Paras 7, 8, 9, 10 reads as under:
“7. Notwithstanding the same, not only have the
Petitioners failed to substantiate their allegations with
regard to the alleged defective execution and/or non
completion of the Project works but the Petitioners have
deliberately and/or negligently failed to disclose to this
Court that there are several mechanisms of checks and
balances built within the said Concession Agreement to
ensure that the Project Works are carried out in
conformance with the terms of the Concession Agreement
and permitted variations thereof.
a) I state that there is a Steering Committee appointed
under the said Project consisting of representatives of
Respondent Nos.1, 2, 3 and 4 and the VC&MD of
Respondent No.3 is the Chairman of the Committee.  I state
that this Steering Committee looks into the execution of the
project works and in case of any dispute arising out of
89/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

90 PIL 179&216.13...
and/or in relation to the said Concession Agreement, the
order of VC&MD of Respondent No.3 is final and finding.
b) The Respondent No.1 has under Article 9 of the
Concession Agreement provided a Performance Bank
Guarantee of Rs.11 Crores and a Bank Guarantee of Rs.5
Crores is to be provided for Maintenance of Project Works as
per the Concession Agreement. The said Concession
Agreement also provides that if the Concessionaire is unable
to complete the project works for its own fault and/or fails
to rectify any defective work then the Respondent No.3 can
complete and/or rectify the said work by an independent
contractor and the Concessionaire would be liable to pay the
costs incurred thereto.  Further, it is also pertinent to note
that apart from all the securities provided under the said
Concession Agreement, the Respondent No.1 has also given
additional Bank Guarantees to the tune of Rs.25 Crores for
ensuring that all the Project works shall be completed as per
the Concession Agreement, provided land is handed over to
the Concessionaire.  Annexed hereto and marked Exhibit “C”
th th
is a copy of the said letter dated 15 May, 2013 and 8
June, 2013 of Respondent No.1 forwarding the additional
bank guarantees.
8. Furthermore Respondent No.7 has been appointed as
the Independent Consultant for the said Project who
periodically scrutinizes the project works and issues reports
thereto.  The Respondent No.1 is required to comply with all
such reports as per the directions issued by the Steering
Committee. I state that it is pertinent to note that while the
Petitioners have annexed some of the said Reports of the
Respondent No.7 they have malafidely and/or deliberately
failed to annex other reports of Respondent No.7 which
would show that as per the directions of Respondent No.7
and the Steering Committee, the defects in the project works
have been rectified by Respondent No.1 from time to time.
Further as per Article 13 of the Concession Agreement the
Respondent No.1 has submitted monthly progress reports
with regard to the said project which also contain
photographs of the project site and work done thereon. I
state that these reports are verified by Respondent No.7 and
90/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

91 PIL 179&216.13...
Respondent No.3 by on site visit. Annexed hereto and
marked as Exhibit “DColly” are copies of the photographs
which form part of the monthly progress reports. I crave
leave to refer to an rely upon the said monthly progress
reports and replies to the Independent Consultant's Reports
showing compliance thereof, as and when so required.
9. I state that another contention of the Petitioners
regarding the Project Works and/or another ground for
challenge to the right of the Respondents to collect toll, is
that allegedly the said Provisional Completion Certificate is
fraudulent and/or that Petitioners have not completed 95%
of the project works and/or the same are not of good quality
and/or that when there are several punch list items to be
completed then collection of toll should not have been
permitted.
9.1   I state that such contention of the Petitioners is based
upon the erroneous surmise that even though the project
contemplates a total of 49.99 km of road to be developed,
the Respondent No.1 has developed only 7.3 km of roads
(which is not 95% of project work) and still they have been
considered as eligible to collect toll.
9.2  I state that the Petitioners fail to comprehend that vide
the said certificate Respondent No.7 certified that upon the
lands handed over to the Respondent No.1 within 90 days of
the Appointed date the Respondent No.1 had at the time of
issue of the said Provisional Completion Certificate
completed 95% of the project works. However, the
Respondent No.1 was still carrying on work upon the
remaining lands which were handed over to the Respondent
No.1 in phases, after expiry of the mandatory period of 90
days from the appointed date.
9.3    I state that a perusal of Article 10.3.5 and Article 14.2
of the Concession Agreement the Concessionaire (Respondent
No.1) would show that the Respondent completed its
mandatory obligation and thereafter was entitled to begin
the collection of toll. However, that did not excuse the
respondent No.1 from completing the work on the remaining
91/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

92 PIL 179&216.13...
land. The relevant clause are:
        “Article 10.3.5 – Upon receiving Right of Way in respect
of any land included in the Appendix, the Concessionaire
shall complete the construction works thereon within a
reasonable period to be determined by the Independent
Consultant in accordance with Good Industry Practice;
provided that the issue of Provisional Certificate shall not be
affected or delayed on account of vacant access to any part
of the Site not being granted to the Concessionaire or any
construction on such part of the Site remaining incomplete
on the date of tests on account of the delay or denial of such
access thereto. For the avoidance of doubt, it is expressly
agreed that construction works on all land of the appointed
date shall be completed before the Project Completion Date.
It is further agreed that the obligation of the Concessionaire
to complete the affected construction works shall subsist so
long as MSRDC continues to pay the damages after giving
60 (sixty)days notice thereof to the Concessionaire, the
obligation of the concessionaire to complete such works on
such part of the site shall cease forthwith.
9.4 The Petitioners are fraudulently portraying that the
works listed therein to be completed are of great magnitude
and/or proportion, though a perusal of the punch list  items
with regard to the said 3 roads (7.3 km) clearly shows that
these works constitute a small portion. It is also pertinent to
note that most of the punch list items are regarding work
being carried out upon the remaining land handed over to
the respondent in phases at that the relevant time period.
9.5  I state that in fact despite the resistance from the Toll
Virodhi Kruti Samiti and despite delayed handing over of
land by Respondent No.4 and the prevalent law and order
situation, the Respondent No.1 continued to carry out the
project works as and when possible.  The Respondent No.1's
work has been periodically scrutinized and certificates of
percentage completion of the project work has been
th
periodically issued. I state that by 29 January, 2013 the
respondent completed 96.66% of the Project work upon
46.66 km of land handed over to the Respondent No.1 by
then. I state that still 2 km (approx) land is still to be
92/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

93 PIL 179&216.13...
handed over to the Respondent No.1. I crave leave to refer to
and rely upon Exhibit L to the Writ Petition No.6646 of
2013 which contains a copy of the Progress report of the
project submitted by Respondent No.3 to Respondent No.4
and certified by Respondent No.7. Therefore, the Respondent
is legally contractually and bonafidely entitled to collect toll
upon the said roads.
10. Notwithstanding the aforesaid, I state that apart from
the internal checks and balances and the said provisional
completion certificate, even the technical committee of
Experts appointed by the Chief Secretary vide Notification
th
dated 13 March, 2012, has certified that the quality and
percentage of project works is good and it is pursuant
thereto that the Chief Secretary has lifted the stay on the Toll
th
Collection Notification dated 17 December, 2011. I state
that the Technical Committee conducted an onsite survey
and test of the project for all the project roads and found the
same to be of good quality.  I state that the Petitioners have
distorted and/or misrepresented the statements recorded in
st
the minutes of meeting held on 1 February, 2013 (Exhibit U
to the Petition) during which the Report of the Technical
Committee of Experts was discussed.  I stat that during the
said meeting the Technical Committee categorically stated
that the quality of Project Works and the percentage of
completion thereof is good. However, it is due to the
unfounded objections of the representatives of the said Toll
Virodhi Kruti Samiti and Respondent No.4 (KMC) that the
Chief Secretary wrongly and/or without application of mind
and/or solely under duress sought another Technical
Committee to be appointed.  I state that as Respondent No.1
was not willing to give into the unreasonable and/or
baseless demands of the said Samiti and KMC, Respondent
No.1 did not accept appointment of another technical
th
committee and addressed a letter dated 15 February, 2013
recording the same.  In the said letter the Respondent No.1
called upon the concerned Respondents to lift the illegal stay
upon the Toll Collection Notification. Thereafter, the
Respondent No.6 lifted the said stay upon the operation of
th
the said Toll Collection Notification dated 17 December,
93/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

94 PIL 179&216.13...
2011. Annexed hereto and marked as Exhibit “E” is the
st
office translation of the minutes of the meeting held on 1
February, 2013 in English language.”
Thus, the project work has been completed in conformity with the
Concession Agreement.
83] In paragraph 25 of this affidavit, this is what is stated:
“25. With reference to paragraph 17, I repeat, reiterate
and confirm all that is stated by me at paragraphs 6(b), 8,
9 and 10 above and deny all that is contrary to and
inconsistent therewith. I state that the Petitioners are
malafidely portraying that allegedly Respondent No.7
(Independent Consultant) has fraudulently issued the
Provisional Completion Certificate and/or that the said
certificate has been issued in contravention of the terms of
the said Concession Agreement.  I state that the Petitioners
are aware that the Provisional Certificate has been issued in
accordance with Article 14.2 of the Concession Agreement.
The said Article 14.2 is reproduced herein below:
“14.2 Provisional Certificate
The independent Consultant may at the
request of the Concessionaire, issue a
provisional certificate of 95% completion in
the form set forth in ScheduleJ (the
“ Provisional Certificate” ). If the test are
successful and the project can be safely and
reliably placed in commercial operation even
though certain works or things forming part
thereof are outstanding and not yet complete.
In such an event, the Provisional Certificate
shall have appended thereto a list, of
outstanding items signed jointly by the
independent Consultant and the
Concessionaire (the “ Punch List” ) provided
94/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

95 PIL 179&216.13...
that the Independent Consultant shall not
withhold the Provisional Certificate for reason
of any work remaining incomplete if the delay
in completion thereof is attributable to
MSRDC.”
I state that a perusal of Article 10.3.5 and Article 14.2
makes it abundantly clear that the said Provisional
Completion Certificate is in compliance with the terms of the
Concession Agreement and has been issued after conducting
appropriate tests and therefore there is no arbitrariness,
malafides, unreasonableness and/or biasness in issue of the
same. The Concessionaire (Respondent No.1 herein) is
entitled to commence the collection of toll upon the entire
project once the Provisional Completion Certificate is issued
and hence all the Respondents have acted in compliance
with the terms of the said Concession Agreement. I state
that admittedly it is the Respondent No.4 which was
obligated to provide land/project site to the Respondent
No.1 (Concessionaire) for the said project, however KMC
delayed in providing the said land.  I crave leave to refer to
any rely upon relevant correspondence and Minutes of
Steering Committee Meeting in this regard.”
84] We, therefore,  find that such repeated complaints and to question
independent consultant's findings and conclusions is not a bonafide
attempt on the part of the Petitioners.  A mere differing or divergent view
of another so called expert would not suffice. We cannot disturb or
substitute the mechanism devised in a agreement solemnly executed by
th
public bodies and the private entrepreneur way back on 10 July, 2008 by
any other agency or body. The agreement cannot be challenged now.
Barring the issue of levy, collection and recovery of toll all stipulations in
95/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

96 PIL 179&216.13...
the agreement remain undisputed or unchallenged.  The agreement is not
violative of public policy.   All this demonstrates as to how PIL Petitioners
do not wish to pay the amount of toll.  The toll notification is issued on
th
17 December, 2011.  That has been issued after the State was satisfied
with the progress of the project. The recovery of toll was stayed
temporarily so as to enable the independent experts and under the
supervision of the Chief Secretary or Chief Minister to assess the project
work again. Their assessment and appraisal having been documented
and based upon which the contractor was called upon to give a bank
guarantee to the tune of Rs.25 crores enables us to hold that there is no
substance in the complaints of the Petitioner.  We have also perused the
affidavit of the Maharashtra State Road Development Corporation.
Narendra Raghunath Bhambure, the Deputy Engineer, filed this affidavit
th
in reply on 16 December, 2013.  In that affidavit, the deponent has stated
as under:
“It is submitted that the Resolution/Notification in respect of
Integrated Road Development Project for Kolhapur was issued
on 24.01.2008 and the Concession Agreement has been entered
into on 10.07.2008. The work of IRDP Kolhapur was
commenced by Respondent No.1 on or about 09.01.2009.  The
Petitioners have sought to challenge the same said notification
and the said Concession Agreement after almost five (5) years
have passed and after more than 95% of the work has been
carried out by the Concessionaire as per the said Agreement.
Thus, the present challenge is nothing but an afterthought at
the stage when toll collection in respect of the said project was
96/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

97 PIL 179&216.13...
to be commenced. Thus, a challenge to the said Notification
and the said concession agreement after almost a period of five
(5) years and after completion of more than 95% of the work is
hopelessly barred by delay and latches on the part of the
Petitioners. I say that the Notification dated 17.12.2011 has
been issued for imposing toll as more than 95% of the work was
completed by the Concessionaire and its merely a consequence
as per the terms and conditions of the Concession Agreement.
The challenge to the said Notification after almost a period of
two (2) years is also barred by delay and latches on the part of
the Petitioners.  I therefore say and submit that on this ground
alone the above Petition deserves to be dismissed with costs.”
The wisdom of the State and public officials in undertaking such project
and implementing it through a private entrepreneur being fully
permissible in law, it cannot be questioned belatedly and all the more
because that is not contrary to law. The decision is not arbitrary or
malafide either.  It is for the benefit of the public.  In this affidavit, this
deponent further states as under:
“I say that MSRDC invited bids for the IRDP Kolhapur on BOT
basis. I say that the Respondent No.1 being the successful bidder,
a Concession Agreement dated 10.07.2008 was entered into
between the MSRDC as the Developer, KMC as the confirming
party and IRB Kolhapur Integrated Road Development Company
Pvt. Ltd. as the Concessionaire to the said Agreement for the
implementation of the project of IRDP Kolhapur. I say that
under the said agreement Respondent No.1 was required to
carry out the project work and undertake the entire project cost,
maintain the project roads for a period of 30 years and in view
of the same the Respondent No.1 was entitled to collect toll for
the entire period of 30 years including the construction period
(concession period) more particularly detailed in the said
agreement. I say that the rights and obligations of the parties
97/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

98 PIL 179&216.13...
have been provided in the said agreement. I say that the
obligations of MSRDC are detailed under Article 6 of the said
concession agreement.  Similarly, the obligations of the KMC are
also detailed under Article 6 of the said Agreement.
I say that an independent consultant namely SOWIl Pvt.
Ltd., Respondent No.7, were appointed by MSRDC for
supervising/overseeing the project work carried out by the
Respondent No.1 so as to maintain the quality as well as for
ensuring that the work is being carried out as per the terms and
conditions of the Concession Agreement.
th
On 5.2.2011, 9 meeting of the Steering Committee was
held in respect of issuance of the provisional completion
certificate of the Kolhapur IRDP to the Respondent No.1.
The Independent Consultant after conducting all the
specified and required tests vide letter dated 10.10.2011 issued a
provisional completion certificate and certified that the
Respondent No.1 had duly completed 95% of the work of the
IRDP Kolhapur as per the Articles 14.2 and 15.1 of the said
Concession Agreement. I say that pursuant thereto a toll
notification dated 17.12.2011 was issued by the State
Government in respect of IRDP Kolhapur detailing the rates of
toll and the corresponding period for which the toll was to be
collected.
I say that there was opposition/agitation from residents of
Kolhapur for payment of toll on the ground that the quality of
work carried out by the Respondent No.1 was not as per
standard and also that 95% of the work was not completed by
the Respondent No.1. I say that therefore on 5.1.2012, the
operation of the said Toll Collection of the IRDP Kolhapur was
temporarily stayed pursuant to the directions of the State
Government.  The work of IRDP Kolhapur could not be smoothly
carried out by the Respondent No.1 due to opposition and
agitation of the residents of Kolhapur.
On 13.3.2012, the Government of Maharashtra
considering the agitation of the residents of Kolhapur for
collection of toll by the Respondent No.1, constituted a
committee of technical experts to ascertain whether the
Respondent No.1 had completed 95% of the project work and
98/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

99 PIL 179&216.13...
also to give the report regarding quality and standard of work as
per the Concession Agreement dated 10.7.2008.
On 12.4.2012, the Technical Committee under the
Chairmanship of Shri Pramod Beri, Indian Institute of
Architecture (Division Kolhapur), Kolhapur, was appointed by
Urban Development Department, Government of Maharashtra to
inspect and verify that the Kolhapur IRDP project was completed
to the extent of 95%.
I say that on receipt of the report from the Technical
Committee in the month of May 2013, the State Government
intimated the Collector, Kolhapur, to get the remaining work of
the project completed through the concessionaire i.e. the
Respondent No.1 herein by taking bank guarantees of Rs.25
crores for performance of the remaining work. The State
Government also lifted the stay granted to the collection of toll. I
say that pursuant to the said decision the Petitioners furnished
the bank guarantees of Rs.25 crores on or about 15.5.2013.
I say that MSRDC vide letter dated 24.5.2013 requested
the Superintendent of Police, Kolhapur, to provide safety and
security for the project and to the staff of the Respondent No.1
involved in the IRDP Kolhapur and to provide full cooperation
and support to the Respondent No.1 considering the agitation
and opposition made by the agitators in respect of collection of
toll of IRDP Kolhapur.
On 18.6.2013, the MSRDC informed the District Collector,
Kolhapur that the commercial operation of the said project was
approved by the Government on and from 20.12.2011 and that
the Respondent No.1 intends to commence toll collection/ the
commercial operation of the above project from 22.6.2013.  The
said letter requested the Collector to make necessary
arrangement for safety and security of the above project to
commence toll collection/commercial operation.
Further at page 1010 of P.I.L. Petition No.179/2013, the deponent points
out how the public is benefited and in the following manner:
“I say that after detail financial analysis of the project duly
99/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

100 PIL 179&216.13...
vetted by Consulting Engineering Services Ltd., Mumbai, the
Consultant appointed for submission of the project report in
the year 2006, the concession period of 30 years for the project
cost of Rs.220 crores was approved by the Cabinet Committee
of Infrastructure in its meeting held on 4.5.2007.  I say that
the State Government took the decision to implement the IRDP
Kolhapur which included widening of 49.49 kilometer roads,
construction of ROB at Temblai Naka and major bridge of
Jayanti Nala, widening/construction of eight (8) minor
bridges, fifty four (54) C.D. Works/slap drains, eighteen (18)
improvements, ten (10) traffic islands, nineteen (19) bus
stops, landscaping, street light poles etc. I say that this was for
the purpose of improving the safety and speedy movem ent of
the traffic on the roads across the city which would
obviously benefit the general public. I say that the details in
respect of the same have also been mentioned in the
Government Resolution dated 24.1.2008.”
85] Lastly, in para 7.16 of this affidavit running page 1015 and 1016,
the deponent states further that :
“With reference to the contentions raised in Paragraph
38 of the Petition, I say that Urban Development Department
Government of Maharashtra vide GR.
No.KMC/2011/683/CR171/UD19 dated 17.12.2011 has
issued Notification declaring that the toll shall be levied on
specified vehicles stated therein. The said notification was
temporarily stayed vide GR. No.2011/683/CR171/Part
2/UD19 dated 13.5.2013. But Respondent No.1 faced
difficult situation for collection of toll, there were frequent
violent attacks on toll booths.  Further Respondent No.1 filed
Writ Petition No.6646 of 2013 for providing Police protection
and this Court ordered dated 26.9.2013 directed police to
provide the protection. ”
86] In view of this overwhelming material and nothing contrary having
100/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

101 PIL 179&216.13...
been brought on record except bare denials in a rejoinder affidavit dated
th
10 December, 2013, that we are of the firm view that public interest will
not be subserved by owe interference with the project or in recovery of
toll. None of the positive assertions in the Affidavit in reply have been
denied.  The contents of the documents cannot be disputed now after the
certificate, reports and Minutes of the Meetings are on record for several
months.  The inspection and meetings at site could have been attended by
the Petitioners.  The averments and allegations in the memo of  PIL and
the Affidavit in rejoinder do not indicate that the Petitioners made any
attempt to participate and give suggestions and views to the experts,
independent consultants or public bodies.  The PIL Petitions appear to be
an afterthought and a counterblast to the entrepreneur's Petition. Mr.
Nevagi also does not dispute that a P.I.L Petition No.82 of 2011 (Amit
Algive and another V/s. State of Maharashtra & Others) was filed in this
Court on the issue of shifting of utilities by the Contractor.  On that P.I.L.
Petition a order was passed on merits, dismissing it.  That order passed on
nd
22 February, 2013 is reproduced in the affidavit in reply of Respondent
No.4 to P.I.L. Petition No.216/2013, Shri Rahul Joshi, the Deponent quotes
this order at page 351 of the paperbook in that P.I.L.  We do not see how
the same issue can be raised again and again and without pointing out any
changed circumstances.  It is pointed out in the affidavit of the MSRDC
101/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

102 PIL 179&216.13...
also that shifting of utilities essential for the project has been done by the
Contractor or Entrepreneur.  The utilities have to  be shifted only after the
public body laying it (for example Municipal drains, sewers, pipe lines) is
made aware of it and fixes or determines a alternate location. Hence, the
vague assertion of the P.I.L. Petitioners without specific details cannot be
accepted. Apart therefrom, there is no rejoinder affidavit on record to
dispute the factual data provided by the contractors of MSRDC in their
reply. We cannot decide a factual and technical dispute in our limited
th
jurisdiction.  The written arguments tendered on 24 February, 2014 also
do not contain any new material. Thus, there is no substance in this
objection as well.  The above three objections or submissions are the only
one raised before us.  We find no basis or foundation for the complaints
made by the Petitioners.
87] Before parting, we would deal with the decisions cited by
Mr. Nevagi. In support of his contention that even in cases where a public
body enters into the contract with a private person and for development of
infrastructure including roads, this Court can in writ jurisdiction interfere
with the decisions of public bodies or with the terms and conditions of the
contract. This can be done even in a public interest litigation is his
contention.
102/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

103 PIL 179&216.13...
88] He places reliance upon the judgment of the Hon'ble Supreme Court
in the case of Noble Resources Ltd. V/s. State of Orissa & Another in
th
Civil Appeal No.4108 of 2006 decided on 13 September, 2006 [2006
(10) SCC 236].
89] There is no dispute about the legal  principle as the conduct of a
State in all fields including a contract is expected to be fair and
reasonable. It cannot act arbitrarily, capriciously or whimsically. In other
words, it should not act contrary to the mandate of Article 14 of the
Constitution of India.  A Writ Petition under Article 226 of the Constitution
of India is maintainable only in such cases and that is how the Hon'ble
Supreme Court has proceeded (see para 14 and 15 in Noble Resources
(supra) as well). In the present case, we have not found anything arbitrary
or violative of Article 14 of the Constitution of India in the terms and
conditions of the contract. We have not found that the conduct of any
public body is unfair or unreasonable. It is not contrary to public interest
either. In these circumstances, no assistance can be derived from this
judgment by Mr. Nevagi.
90] We have also perused the compilation of documents which has been
filed so as to assist the Court by Mr. Nevagi. There is nothing that we
103/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

104 PIL 179&216.13...
have omitted therefrom and which could be said to be germane for our
purpose.  It is not necessary to refer to each and every judgment which
has been cited by Mr. Dwarkadas.  We have applied the very principle and
which is set out in Jindal Stainless Ltd. and Another V/s. State of
Haryana reported in (2006) 7 Supreme Court Cases 241.   Even if toll is
compensatory tax and found to be closer to the concept of a fee still, on
the basis of the overwhelming corresponding benefit that is derived in this
case by the residents and citizens, the levy of toll cannot be said to be
violative of the mandate of Article 14 and 265 of the Constitution of India.
That does not violate the mandate of Article 301 of the Constitution of
India as well.  Once this view of the Hon'ble Supreme Court is noticed,
then, the other judgment cited by Mr. Dwarkadas need not be referred.
91] As a result of the above discussion, both the PIL's fail. They are
dismissed.  For the  reasons recorded above, we pass the following order:
(A) PIL Nos.179 of 2013 and 216 of 2013 are dismissed.
(B) Rule is discharged therein.
(C) In the circumstances of the case, there will be no orders as to
      costs.
(D) As far as Writ Petition No.6646 of 2013 is concerned, we
th
direct that the order passed by this Court on 28 August, 2013 and
104/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::

105 PIL 179&216.13...
th
26 September, 2013 and in terms of the substantive prayer seeking
police assistance and protection shall continue and the same be
provided as and when necessary and in the circumstances narrated
in the said order. As we find that an affidavit as sought by this Court
seeking complete compliance therewith has not been filed, that Writ
Petition shall be placed for compliance of the earlier orders and this
order and direction after eight weeks.
(E) As far as Writ Petition No.10407 of 2013 is concerned, the same
will not survive in the light of our conclusions and final order in the
two PIL Nos.179 of 2013 and 216 of 2013.
   (A. K. MENON, J.) ( S.C. DHARMADHIKARI, J. )
wadhwa
105/105
::: Uploaded on - 26/11/2014 ::: Downloaded on - 01/04/2024 15:32:13 :::