Safiya Malik

The Jammu and Kashmir High Court has allowed a Public Interest Litigation (PIL) seeking relief for commuters facing toll charges on a deteriorated stretch of National Highway-44. The court directed authorities to reduce toll fees at Lakhanpur and Bann Toll Plazas to 20% of previous rates until the completion of the Delhi-Amritsar-Katra Expressway. It further prohibited the establishment of toll plazas within 60 kilometers of each other and ordered the government to review existing toll rates across all plazas in Jammu and Kashmir and Ladakh. The court observed that toll charges should reflect the quality of road infrastructure and held that collecting full toll on poorly maintained highways violates fair service principles.

The petition was filed by Sugandha Sawhney, a resident of Jammu, seeking exemption from toll charges at Lakhanpur Toll Plaza, Thandi Khui Toll Plaza, and Bann Toll Plaza until the completion of the Delhi-Amritsar-Katra Expressway. The petitioner argued that approximately 60% to 70% of the stretch from Pathankot to Udhampur was still under construction, causing delays, damage to vehicles, and increased fuel consumption. It was submitted that as per Rule 3(1) and Rule 3(2) of the National Highways Fee (Determination of Rates and Collection) Rules, 2008, toll collection should commence only after the completion of a highway section.

The respondents, including the Union of India, National Highway Authority of India (NHAI), and the Union Territory of Jammu and Kashmir, opposed the plea. They contended that toll collection was lawful for completed portions of NH-44. It was stated that the government had already closed Thandi Khui Toll Plaza from January 26, 2024, and redistributed its influence length between Lakhanpur and Bann Toll Plazas. The respondents also submitted that toll rates had been reduced as per Ministry of Road Transport and Highways (MoRTH) guidelines by 25% on stretches undergoing widening, with further reductions after damage to the Tarhan Bridge over Ujh River in July 2023.

The petitioner contended that despite these reductions, commuters were still paying excessive tolls on substandard roads. The petition pointed out that the distance between Sarore and Bann Toll Plaza was only 47 kilometers, violating the 60-kilometer rule under the 2008 Fee Rules. Additionally, it was argued that tolls should not be levied until the highway was fully operational.

The court recorded that the respondents themselves admitted that NH-44 from Pathankot to Udhampur was under construction, with ongoing elevation projects and widening from four to six lanes. It observed:

"The respondents have also averred that due to different nature of construction works being carried out at this highway, service roads/diversions have been provided for the movement of traffic; meaning thereby the four-lane National Highway at most of the places has been reduced to single lane, actually dirt-path has been cleared for the vehicles to use the only alternative, as a result of which the daily use of this under-construction stretch with such deteriorated conditions adds to wear and tear of vehicles."

The court further noted that the principle behind toll collection is to provide well-maintained infrastructure. It stated:

"Once this very highway is in bad shape due to different nature of construction activities, the National Highways Authority of India (NHAI) or the concessionaire managing the toll road cannot collect toll tax from commuters using the highway. This is based on the principle that tolls are collected to provide users with the benefit of well-maintained infrastructure."

Citing the Supreme Court’s decision in DSC-Viacon Ventures Pvt. Ltd. v. Lal Manohar Pandey (2015), the court recorded:

"The reduction, in our view, should be proportionate to the extent of damage suffered by the road or the failure to maintain the same… We are of the opinion that the rate of toll/fee prescribed in terms of notification dated 02.03.2015 should be reduced to half of what is stipulated in the notification. This means that instead of 40% levied by the Government, the rate shall be 20% of the rates earlier in force."

The court also took note of the spacing requirement under the 2008 Rules, stating:

"As per National Highways Fee (Determination of Rates and Collection) Rules, 2008, the spacing between two adjacent toll plazas should be 60 kms… Here, the distance between Sarore Toll Plaza to Bann Toll Plaza using NH-44 is near about 47 kms, which is certainly against the rule position."

The court criticized the respondents for increasing toll charges at Lakhanpur and Bann Toll Plazas immediately after closing Thandi Khui Toll Plaza, instead of suspending collection during ongoing construction. It recorded:

"Instead of suspending the toll collection, the respondents have increased the toll fees at Lakhanpur Toll Plaza and Bann Toll Plaza on the same day when Thandi Khui Toll Plaza came to be closed on 26.01.2024 in order to adjust the toll fees of Thandi Khui Toll Plaza."

The court noted concerns about the employment of individuals with criminal backgrounds at toll plazas, calling it a serious issue of public safety.

The court allowed the PIL and issued the following directives:

"Respondents are directed to withdraw the order/direction regarding redistributing the influence length from Lakhanpur to Udhampur among Lakhanpur and Bann Toll Plazas with effect from 26.01.2024 after the closure of Thandi Khui Toll Plaza. Respondents to withdraw the said order/direction positively within a period of one week from today."

"Respondents are directed to levy only 20% of the toll fee with immediate effect, i.e., the toll fee at Lakhanpur Toll Plaza and Bann Toll Plaza shall be 20% of the rates earlier in force before 26.01.2024 till the National Highway from Lakhanpur to Udhampur gets fully operational for smooth utilization of the public. Respondents to charge the full toll at both these toll plazas only after the issuance of a certificate in this regard by an independent surveyor."

"Respondents are directed not to establish any toll within 60 km of another toll plaza on NH-44. If any toll plaza in Jammu & Kashmir or Ladakh is found to be within 60 km of another, it must be removed within two months from today."

"The concerned Union Ministry must reconsider existing toll rates at all plazas, ensuring fairness for the public. Respondents are directed to take a decision within four months from today."

"Respondents and toll contractors are directed not to employ any individual with a criminal background at toll plazas. All employees must undergo police verification, and any violation will make the concerned SHO/Incharge personally responsible."

The court directed the registry to forward a copy of the judgment to the Union Minister for Road Transport and Highways.

Case Title: Sugandha Sawhney v. Union of India & Ors.
Case Number: WP(C) PIL No.12/2023
Bench: Chief Justice Tashi Rabstan and Justice M.A. Chowdhary

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