The Delhi-Noida Direct (DND) flyway will remain toll free for commuters, the Supreme Court today said while disagreeing with Noida Toll Bridge Company Ltd that its refusal to stay Allahabad High Court's verdict would cause the firm irreparable loss.
The apex court said while the company can be compensated later if it succeeds in its appeal, it will be impossible to provide restitution to the lakhs of commuters from whom the toll fee would be collected to repay them on dismissal of the Special Leave Petition (SLP).
A bench headed by Chief Justice T S Thakur also asked the Comptroller and Auditor General of India (CAG) to assist in the matter and verify the company's claim that the total cost of the project has not been recovered and submit a report within four weeks.
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The bench, also comprising Justices D Y Chandrachud and L Nageswara Rao, directed the firm to place before the CAG, the entire record pertaining to recovery of the total project cost of the DND flyover project as per the Agreement.
While declining the firm's plea to stay the high court's October 26 judgement restraining it from levying the cess, the bench said, "We do not agree with the submission that the petitioner (firm) would suffer irreparable loss if the judgment of the High Court is not stayed."
"It will be impossible to provide restitution to the lakhs of commuters from whom the fee would be collected to repay them in the event of dismissal of the SLP.
"On the other hand, if the petitioner succeeds, it can be compensated suitably by extension of time. The balance of convenience is also against the petitioner. Therefore, we are not inclined to grant the interim relief as prayed for," the bench said.
The high court, on October 26, had brought cheers to millions of commuters by ruling that no toll will be collected henceforth from those using the 9.2 km-long, eight-lane DND flyway. The order was passed as the high court allowed a PIL by the Federation of Noida Residents' Welfare Association.
The PIL, filed in 2012, had challenged the "levy and collection of toll in the name of user fee" by the NTBCL.
The firm had challenged the high court verdict saying it
did not take into account all aspects and submitting that factors like interest on construction cost, depreciation and maintenance expenses, which come to around Rs 12.5 lakh per day, have not been duly considered.
To this, the bench said prima facie the issue that arose in the appeal required a detailed scrutiny as conflicting claims have been made regarding recovery of the total cost of the project by the concessionaire.
"To resolve the dispute, it is appropriate that an independent agency is requested to examine the relevant records of the DND flyway. The said agency should examine the reports of the independent auditors appointed by the petitioner and submit a report regarding the correctness of the petitioner's claim that the total cost of the project has not been recovered," it said while asking the CAG to verify the firm's claims.
"The CAG shall be at liberty to call for and examine all such records having a bearing on the financial aspects, as it requires to facilitate its decision. This will include matters and information pertaining to all the benefits which have flowed to the petitioner under the entirety of the agreement, including the utilisation, if any.
"The petitioner shall cooperate in all respects with the CAG and provide all documents, information and details as sought," it said and added that the copy of this order be provided to the CAG expeditiously.
The bench granted three weeks time to the respondents, including the residents' Federation, for filing their replies and listed the matter after four weeks.
The apex court had on October 28 refused to interfere with the HC order restraining the company, saying it will pass directions after Diwali vacations.
On the toll collecting firm's plea for interim stay on HC order, the apex court bench had said, "You have only ten kms of highway and you claim that you have made a road to the moon. ... You have done well but not something (great)."
In an over 100-page judgement, the high court had held "the user fee which is being levied/realised is not supported by the legal provisions relied upon by the Concessionaire (Noida Toll Bridge Company), Infrastructure Leaning and Financial Services (promoter and developer of the project) and Noida Authority.
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The court had said 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 UP Industrial Development Act".
It had noted that "the concessionaire, according to their own financial statements, has recovered Rs 810.18 crore (approx) from toll income from the date of commencement of the project till March 31, 2014 and after deduction of operation and maintenance expenses and corporate income tax, the surplus was Rs 578.80 crore (computed before interest, depreciation, and lease rental received by the Concessionaire)".
"They have further realised user fee/toll two-and-a half-year thereafter between April 1, 2014 and September 30, 2016 which, as per the collection of user fee in the year 2013-14 would work out to an additional sum of Rs 300 crore (approx).
"We are, therefore, more than satisfied that the concessionaire cannot now recover the user fees from the users /commuters of the Noida Toll Bridge the DND Flyover," the high court had said.
