This Article analyses the recent landmark decision of the Hon'ble High Court of Jammu & Kashmir and Ladakh at Jammu in case titled Sugandha Sawhney v. Union of India & Ors. wherein the Hon'ble High Court has ordered for reduction of toll to 20% due to the highway being in a bad shape and has reiterated strict implementation of the 60 km toll rule.
Background
The Petitioner, an Advocate of the Jammu & Kashmir High Court Bar Association at Jammu, filed a Writ Petition through the medium of a Public Interest Litigation against the Union of India, through Secretary, Ministry of Road, Transport & Highways, National Highway Authority of India and the Union Territory of Jammu & Kashmir. The Petitioner sought directions to the said Respondents to exempt collection of toll tax at Lakhanpur Toll Plaza, Thandi Khui Toll Plaza and Ban Toll Plaza till the time that National Highway from Pathankot, Punjab to Udhampur, J&K got full operational. The Hon'ble High Court on 20.12.2023 issued Notice to the Respondents and finally decided the said PIL vide its judgment dated 25.02.2025.
Averments of the Petitioner
The Hon'ble High Court noted the averments of the Petitioner that the stretch of National Highway from Pathankot in Punjab to Udhampur in the UT of J&K is undergoing construction and around 60% to 70% of the stretch of the highway is under construction since 2021 and yet toll is being levied on the general public at the Toll Plaza's on the said stretch of the highway. The Hon'ble Court further noted the grave hurdles, diversions and destruction of the National Highway caused due to the construction activities. The Hon'ble High Court also observed the plight of people whose daily travel times have significantly increased along with increased fuel consumption and wear & tear to the vehicles.
Objections of the Respondents
The Hon'ble Court also noted the objections filed by the Respondents, who pleaded that one of the Toll Plaza at Thandi Khui was closed with effect from 26.01.2024 and the length of the highway has been redistributed from Lakhanpur to Udhampur among Lakhanpur and Bann Toll Plaza. The Respondents further averred that is only the brown field portion of the Highway which is undergoing widening or construction of elevated structures. The Respondents placed reliance on Government of India Gazzette Notification No. H-25016/2/2011-P&P (Toll) dated 16.12.2023 and stated that as per the said Notification, the Respondents have reduced the user fee by 25% of the applicable rates.
Decision of the Hon'ble High Court
The Hon'ble Court noted that Respondents have admitted that the National Highway 44 from Pathankot to Udhampur was undergoing construction under the Delhi-Amritsar-Kathua Expressway. The Respondents had also admitted that due to the undergoing construction service roads and diversions have been provided for the movement of the traffic, meaning thereby that the four-lane highway at most places has been reduced to single lane which in various places was a dirt path. The Court further noted that Respondents had not denied that the highway is in poor and deteriorated condition. The Court observed that, due to the said poor condition of the highway, the commuters were being unfairly charged as they were not getting the quality infrastructure for which they are paying the said toll/ user fee.
The Court further noted the judgment of the Hon'ble Supreme Court of India titled DSC-Viacon Ventures Pvt. Ltd. vs Lal Manohar Pandey1, wherein while deciding the reduction in toll on account of poor maintenance of the road, the apex Court held that the reduction in toll should be 'proportionate to the extent of damage suffered by the road or the failure to maintain the same. Having said that we must hasten to add that there is no empirical data to indicate the extent of road length and the resultant inconvenience to the users of the road. A certain amount of guess work is, therefore, unavoidable in the matter of determining the extent of relief which the road users may be entitled to.' The apex Court thus reduced the user fee to 20% of the rates earlier in force, till such time that the road is repaired.
The High Court further noted the National Highways Fee (Determination of Rates and Collection) Rules, 2008, which states that the spacing between two adjacent toll plazas on the same direction should be 60 km. The Court noted that on National Highway 44 between Pathankot and Udhampur, the distance between Sarore Toll Plaza and Bann Toll Plaza is about 47 Kms, which is contravention of the aforesaid rules. The Court further observed that the Respondents and its contractors have accumulated crores of rupees illegally from the general public by violating the aforesaid rule.
The High Court observed that the Respondents had not denied the distance between the said tolls were less than 60 kms rather the counsel for the Respondents stated at Bar that the Respondents would have no objection to return the excess toll fee collected from the commuters, however the Court noted that despite the said statement, the Respondents were till date charging the same toll fee from the commuters. The Court further held, 'Though the toll fees at the toll plazas contribute to the construction, maintenance, enhancement of high quality road infrastructure, highways, expressways and toll fee is essential for infrastructure development, however, the respondents must ensure for fair and equitable tolling fee and that establishment of these toll plazas should not serve merely as a revenue-generating mechanism or to mint money from the general public'.
In view of the said observations, the High Court allowed the PIL with the following directions:
- Respondents to withdraw Order dated 26.01.2024 regarding redistribution of the influence length of Lakhanpur to Udhampur after closure of Thandi Khui Toll Plaza within one week;
- Respondents to levy only 20% of the toll fee with immediate effect from Lakhanpur Toll Plaza and Bann Toll Plaza of the rates in force before 26.01.2024 until the National Highway is fully operational;
- Respondent directed to not establish any toll within 60 kms one another and further directed to remove any toll in the UT of J&K and UT of Ladakh with 60 kms of one another on the National Highways within two months;
- Union Ministry directed to reconsider the levying of fair and genuine toll fees at Toll Plazas thereby slashing existing toll fees. The said decision be taken within four months;
- Respondents and its contractors shall not employ any person at the toll plaza having criminal background. In case of any deviation from the same the concerned SHO/ Incharge shall be personally responsible for the same.
Post Judgment dated 25.02.2025
Despite the above observations and directions by the Hon'ble High Court, the Respondents have allegedly failed to comply with the said directions. The Petitioners have preferred a Contempt Petition titled Sugandha Sawhney v. Shri. V. Umashanker, Secretary to the Government of India & Ors. bearing CCP(D) No. 6 of 2025 before the Hon'ble High Court of Jammu & Kashmir and Ladakh at Jammu. The Hon'ble High Court vide its Order dated 19.03.2025 issued Notice to the Respondents in the said Contempt Petition for filing of Compliance Report within four weeks and has listed the matter for consideration on 21.04.2025. Furthermore, till date the Respondents including the Union of India and National Highway Authority of India have not appealed judgment before the apex Court. It is to be seen as to when and how the directions of the High Court are implemented and what precedence does this case lay for future expansion and construction of other Highways around the country.
Footnote
1 SLP(C) Nos. 34705-34706 of 2014
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