NHAI can’t force commuters to pay toll, if highway is in pathetic condition: SC

Highlighting the “plight” of harried citizens, the Supreme Court has ruled that the National Highways Authority of India (NHAI) cannot force commuters to pay toll if a highway is kept in a terrible condition.

The public paying toll has the right to demand “unhindered, safe and regulated access” to the road, a Bench led by CJI BR Gavai said, dismissing the NHAI's appeal against the Kerala High Court's order suspending toll collection at Paliyekkara in Thrissur district along NH-544 due to the bad condition of the highway.

"In the meanwhile, let the citizens be free to move on the roads, for use of which they have already paid taxes, without further payment to navigate the gutters and potholes, symbols of inefficiency," said the Bench – which also included Justice K Vinod Chandran.

"Why should a person pay Rs 150 if it takes 12 hours for him to get from one end of the road to the other? A road which is expected to take one hour, it takes 11 more hours and they have to pay a toll as well…," the Bench said during the hearing.

Affirming the high court’s stay on toll collection, the top court said, "We cannot but agree with the reasoning of the High Court that: “The obligation of the public to pay a user fee under statutory provisions is premised on the assurance that their use of the road will be free from hindrances. When the public is legally bound to pay a user fee, they simultaneously acquire a corresponding right to demand unhindered, safe, and regulated access to the road.

“Any failure on the part of the National Highways Authority or its agents to ensure such access constitutes a breach of the public's legitimate expectations and undermines the very basis of the toll regime,” it said in its August 18 order.

Commenting on the Build Operate and Transfer (BOT) system, the top court said it was “a comedy of errors” that the successful bidder extracts much more than what is spent on construction and maintenance.

"That in a democracy, roads are laid on Build Operate and Transfer (BOT) contracts to ensure that the cost is collected from the users, when motor vehicle tax is remitted for their use on roads, is a sad reflection of the free market. That, the successful bidder extracts much more than what is spent on construction and maintenance, is a comedy of errors,” the Bench said.

“That, the roads fall into disrepair due to vagaries of nature and often rank neglect, is the stark reality. That the toll collectors at the booths, often due to understaffing and overwork, behave like satraps, is a fact of life. That the poor citizen is bound to wait for hours, in a queue and in a cramped space, with the engine running but hardly moving, is a tragedy. That, the toll is really on the purse and the patience of the citizen, as also the environment, is the downside,” it said.

The Bench also questioned the NHAI’s commercial wisdom and expressed surprise over the NHAI’s decision to entrust further construction on the road in question built on BOT basis to another contractor when the obligation to maintain the entire stretch was on the Concessionaire under the BOT agreement.