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2015 DIGILAW 504 (KAR)

GMR OSE Hungundhospet Highways Private Limited v. State of Karnataka

2015-04-29

B.MANOHAR

body2015
ORDER : B. Manohar, J. 1. Petitioner in this writ petition has sought for writ of mandamus directing the respondents 1, 2 and 4 to 6 to provide police protection to the petitioner for collection of Toll at Hitnal Toll plaza on Hungund-Hospet Section of National Highway-13 from Km.202 to Km.299 in the State of Karnataka under NHDP Phase-III and for other reliefs. 2. In the writ petition, it is contended that the petitioner is a registered Company engaged, inter alia, in the Infrastructure Development Business like construction of Highways, Airport, River Bridges, Tunnels, Structures, Buildings, etc. The National Highway Authority of India (hereinafter referred to as 'the NHAI' for short) had invited proposals from the interest parties for construction, operation and maintenance of Hungunda-Hospete Section of National Highway (NH-13), in the State of Karnataka (Project Highway) by 4 laning the same for the purpose of augmenting the existing road from Km.202 to Km-299 on Design Build Finance Operate and Transfer basis (DBFOT basis) through international competing bidding process. The consortium comprising M/s. GMR Infrastructure Ltd., and M/s. Oriental Structural Engineers Private Limited, New Delhi submitted its bid for the Project. The NHAI accepted the bid of the consortium for execution of the project and said Concessionaire entered into Concession Agreement dated 22-3-2010. Subsequently, on 19-4-2010 a "State Support Agreement" was entered into between the Governor of State of Karnataka acting through the Chief Secretary of Government of Karnataka and President of India represented by the Joint Secretary, Department of Road Transport and Highways, whereunder the State of Karnataka acknowledges that it will give continued support and grant certain rights and authorities to the Concessionaire. As per clause 2(1)(j) of State Support Agreement, the State Government had undertaken to provide the Concessionaire with police assistance in accordance with applicable Laws and Rules thereunder for regulation of traffic, removal of trespassers and security on the Project Highway. Clause 2(1)(k) of State Support Agreement provides that it is the duty of the State Government to establish and operate traffic aid posts and mobile Police squads in accordance with the applicable policies and practices followed by the State Government. Clause 2(1)(k) of State Support Agreement provides that it is the duty of the State Government to establish and operate traffic aid posts and mobile Police squads in accordance with the applicable policies and practices followed by the State Government. As per the agreement entered into by the NHAI and the State Government, the petitioner-company successfully executed the Project of 6/4 laning of Hungund-Hospet Section of NH-13 from Km.202 to Km.299 in the State of Karnataka under NHPD, Phase-III on DBFOT basis as per the concession agreement and in this regard, the petitioner has spent a sum of Rs. 1650.00 Crores for the entire project. The petitioner has also constructed Hitnal Toll Plaza and started collecting the requisite toll after carrying on the entire work of construction of the elevated road and thereafter maintain and operate the said road. The petitioner submits that concession has been given to the two wheelers, three wheelers, agricultural tractors, and animal drawn vehicles. Further, in order to benefit the local people, special concession in the form of monthly pass has also been provided as per the terms of the agreement. 3. When the matter stood thus, from May 2014, there have been several protests and agitation by local commercial vehicle operators/owners, hampering toll collection activities of the petitioner at Hitnal Toll Plaza resulting in the petitioner losing nearly Rs. 1,00,000/- per day. Apart from that the Kannada Activists headed by Praveen Kumar Shetty Group, Koppala Branch started agitating with regard to collection of toll. On 19-05-2014, some people from the villages of Hitnal, Hosalli, Agalakere, Huligi and Munirabad formed into a mob under the guise of protest demanding waiver of toll fee, blocked all the lanes causing inconvenience to the road users and forcefully opened all the toll gates and threatened the toll collecting staff of the petitioner-Company. In spite of report and complaint, the Police Inspector at Mumrabad Police Station has not taken any action. On 25-09-2014, more than 100 people from nearby locality manhandled the staff of the petitioner, vandalized all the toll goods, administrative block, computers, toll system, etc. causing total loss of more than Rs. 2.00 crores to the petitioner-company. This affected the toll operation being totally hampered for more than 7 hours. It was brought to the notice of the 3rd and 5th respondents, but no timely action has been taken. causing total loss of more than Rs. 2.00 crores to the petitioner-company. This affected the toll operation being totally hampered for more than 7 hours. It was brought to the notice of the 3rd and 5th respondents, but no timely action has been taken. Though the petitioner has sought for intervention of the State Authorities and District Administration, though several meetings were held, State Functionaries have not taken any action. For the development of National Highway, the State entered into Supporting Agreement, hence, it is the duty and responsibility of the State Government as well as the District Authorities to give protection to the petitioner. In view of that the petitioner filed the writ petition with the above prayer. 4. Learned Additional Government Advocate entered appearance for respondents 1, 2 and 4 to 6 and filed statement of objections contending that whenever the petitioner has sought for Police Assistance, the same has been provided to them. Since the NHAI as well as the petitioner have not formed the service road for the surrounding villagers, wherein, everyday they move from their villages to the District Head Quarters, they have to pay toll fees, the petitioners as well as the poor farmers are put to great hardship. When the NHAI establishes the National Highway, duty casts upon the National Highway Authority to establish the service road to the nearby villagers to pass-through the said road everyday. It is impossible for the villagers to pay toll charges every time whenever they move to their District Headquarters for their personal work. On the complaint made with regard to the protest and agitation by the public against the collection of the toll by the petitioner, the concerned Tahsildar and the Police have taken timely action to resolve their problems. In fact, the Tahsildar of Koppal and the Police Inspector of Munirabad Police Station had visited the spot and resolved the problems by advising the people not to agitate at the spot. The petitioner cannot collect the toll from the villagers unless they make provision for their free movement. Hence, it is difficult to provide police assistance to the petitioner for 24 hours. The petitioner cannot collect the toll from the villagers unless they make provision for their free movement. Hence, it is difficult to provide police assistance to the petitioner for 24 hours. Whenever the petitioner has sought for intervention of the District Authority, the meetings have been conducted in the presence of concerned local MLA and local leaders and in the said meetings, the problems faced by the villagers have been discussed in detail and solved their issues. Further the people were advised not to commit any unlawful act against the petitioner and officials of the petitioner. Accordingly, the petitioner is collecting the toll without any obstructions by the public. Whenever they had requested for the police assistance, the same has been given and sought for dismissal of the writ petition. 5. On the other hand, Sri. Shivasai M. Patil, learned counsel appearing for the National Highway Authority of India supported the case of the petitioner and contended that as per State Supporting Agreement, it is the responsibility of the State Government to give protection to the petitioner and give all assistance for development of the Highway. In the instant case, as per the agreement entered into between the parties, the petitioner was permitted to collect the toll and it is the duty of the State Government to provide police assistance. 6. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the relevant records. 7. The records clearly disclose that, petitioner was the highest bidder for the purpose of augmenting existing road from Km.202 to Km.299 on Hungund-Hospete Section of National Highway (NH-13) in the State of Karnataka by 4 laning the same. The agreement was also entered into between the National Highway Authorities and Concessionaire for execution of the project on Design, Build, Finance, Operate and Transfer basis. The State Government also entered into State Supporting Agreement with the Government of India acknowledging that they would give support and grant certain rights to the authorities of the Concessionaire i.e. the petitioner herein. As per the State Supporting Agreement, the duty casts upon the State Government to provide protection to the Concessionaire working under the NHAI. The State Government also entered into State Supporting Agreement with the Government of India acknowledging that they would give support and grant certain rights to the authorities of the Concessionaire i.e. the petitioner herein. As per the State Supporting Agreement, the duty casts upon the State Government to provide protection to the Concessionaire working under the NHAI. It is their duty to provide Concessionaire with the Police assistance in accordance with the applicable Laws and the Rules made thereunder for regulation of traffic, removal of trespassers and security to the Highway project, which was established in the State of Karnataka. 8. The allegation of the petitioner in the writ petition is that in spite of repeated requests, the State Government has failed to discharge its obligation to give police assistance to the Highway project. Under the scheme and the agreement entered into between the parties, it is the duty of the petitioner to develop National Highways under DBFOT basis. Further, the petitioner was permitted to collect the toll by establishing Toll-gate. Entire money of Rs. 1650.00 crores was spent for development of the said stretch of Hungund-Hospete Section of National Highway. Hence, the petitioner is entitled to collect the toll on established toll-gate. However, some of the villagers along with the Kannada Activists manhandled the staff of the petitioner and vandalize the toll-booths, administrative block building, computers, toll system causing loss of more than Rs. 2.00 crores to the petitioner. However, it is the defense of the State Government that whenever the petitioner had sought for police assistance, the State Government has promptly provided the same. Since the NHAI as well as the petitioner have not provided the service road for the nearby villagers, they find it difficult to pass-through the toll-gate by paying toll. Though the petitioner had given assurance in the meeting that they will not collect toll from the local public, they continued to collect the same. In view of the action of the petitioner, the villagers are very much agitated. There was law and order problem, however, the police authorities took prompt action and had advised the people. The records and photographs produced by the petitioner clearly disclose that there was manhandling of their staff, violence and causing damage to the toll-plaza, administrative blocks and in view of that, there was hindrance of toll collection. There was law and order problem, however, the police authorities took prompt action and had advised the people. The records and photographs produced by the petitioner clearly disclose that there was manhandling of their staff, violence and causing damage to the toll-plaza, administrative blocks and in view of that, there was hindrance of toll collection. The issue was brought to the notice of NHAI, Government of Karnataka and Police Officers, the Chief Secretary by his communication dated 13-02-2014 directed the Deputy Commissioner as well as the Police officials to give protection to the employees as well as the toll-plaza The Commissioner of Police North-East Division has also issued directions to the Superintendent of Police, Koppal to give necessary protection for collection of toll. Since the petitioner has invested more than 1650.00 crores for development of National Highway, as per the agreement the petitioner is entitled to collect the toll. In spite of the same, vandalizing took place on 25-09-2014. The State Government is one of the signatory for the State Supporting Agreement. It is an obligation on the part of the State Government to provide protection as per clause 2(1)(j) and (k) of the said Agreement. The policy of the Government of India is to encourage the private persons to involve in the infrastructure development under the development, operation and maintenance of the project National Highway on DBFOT basis. Hence, it is the duty of the respondents to give police protection to the petitioner and the petitioner is entitled for police protection. Accordingly, I pass the following: ORDER "The writ petition is allowed. The respondents 1, 2, 4 to 6 are directed to give police protection for collection of toll at Hitnal Toll Plaza in accordance with law whenever they make a request, and NHAI is also directed to provide alternative service road to the local villagers for their movement."