In a petition filed by the Federation of NOIDA Residents Welfare Association, the Allahabad High Court expelled the toll on the Delhi-Noida-Delhi (DND). The order will be a great relief for Delhi-Noida commuters.
The petitioners preferred the petition submitting that as per the concession agreement betweenthe NOIDA Authority and the NOIDA Toll Bridge Company, the Company was authorized to impose and realise User fee.The company has been given power to increase the toll charges from time to time.
The Court observed that “certain clauses of the Concession Agreement are affecting the public at large i.e. commuters who are subjected to pay toll for the use of public road in perpetuity due to wrongful arbitrary terms and conditions of the contract, we have no hesitation to hold that the offending clauses can be severed from the rest of the agreement without affecting the contract as a whole and leaving the Concessionaire and Noida Authority to perform their part of contract.” Resultantly, it was held that the selection of Concessionaire in the facts of the case is violativeof Article 14 of the Constitution of India and is found to be unfair and unjust. However, the Court fund it is not necessary to nullify the entire Concession Agreement.
“We are also sure that in the instant case, if we would have gone into the question of decision making process for looking into the validity of the Concession Agreement, we could have quashed the entire Concession Agreement being opposed to Public Policy and hit by Article 14 of the Constitution of India. However, giving due consideration to the fact that the Concessionaire has performed its part of the obligations and the bridge has been constructed and is being used by the Public and the contract has worked for about 15 years, we do not propose to traverse all the contractual obligations and liability of the parties but in order to rectify the situation before us we can take the help of “Doctrine of Severibility” so as to see that only offending clauses of the Agreement to the extent they are harming the “Public interest” i.e. the interest of the commuters are severed from the contract leaving the contracting parties to perform their other obligations.”
The Court further held that the right to levy and collect User fee from the commuters as conferred upon the Concessionaire under the Concession Agreement suffers from excessive delegation and is contrary to the provisions of the U.P. Industrial Area Development Act’ 1976. Article 13 (Clause) of the Concession Agreement was held as bad and inoperative in the eyes of law.
The method of calculation of the Total Project Cost and appropriation of the User fee collection under Article 14 (Clause) of the Concession Agreement was held as arbitrary and opposed to Public Policy. Article 14 (Clause) of the Concession Agreement is severed, therefrom.
While allowing the petition, the Court directed that NOIDA Toll Bridge Company, the Concessionaire shall not impose or recover any User fee/Toll from the commuters for using the DND Flyover.
Read the full text of the Judgment below.
