HC upholds imposition of toll at Mattancherry bridge

KOCHI, FEB. 15. A Division Bench of the Kerala High Court on Friday upheld the Kerala Road Fund Ordinance 2001 imposing user fee on vehicles passing through the newly-built Mattancherry bridge in Kochi and also allowing the builder of the new bridge to collect such fee.

The Bench comprising the Chief Justice, B. N. Srikrishna, and M. Ramachandran upheld the Ordinance while dismissing a batch of writ petitions, including the one filed by the bus operators.

The petitioners contended that the Ordinance, issued by the Government in September, was beyond the competence of the State Assembly as it did not have any power to make legislation on the subject.

It was also contended that the fee could not be described as fee as such. In fact, it was a tax. The petitioners also attacked the provision in the agreement which allowed the Gammon India Limited, the builder of the bridge, to collect the fee.

According to the petitioners, the Kerala Toll Act had empowered only the State Government to collect toll.

The Bench pointed out that when the Act was enacted, the concept of BOT (Build Operate and Transfer) was still a new one.

It had never been tried by the State Government. The Government later thought of bringing in an amendment to the Act, conferring the power of collection of user fee on the builders.

Thus, Section 24 of the Ordinance was enacted to empower the "concessionaire" in the agreement to collect the fee for a specific period so that the builder could recoup his capital.

The judges opined that if the legislation like Section 24 did not infringe the fundamental rights and also if it was within the competence of the legislature, it could be made applicable retrospectively from any date.

A reading of Section 24 would indicate that it was neither discriminatory nor intended to benefit any particular person.

It was intended to get over the difficulties in the implementation of all the BOT agreements.

The court observed that the imposition of the fee could never be said to be unreasonable restrictions on the right of free movement or travel.

The Bench also dismissed the challenge against the order banning the use of old Mattancherry bridge by four-wheelers.

Referring to another contention, the court said that the fee imposed for using the bridge was nothing but a fee as it was to be paid by persons using the bridge.

Had it been a tax, all citizens in the State would have been liable to pay the tax.

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