DND flyway row: You've not built a road to moon, SC tells Noida Toll Firm

The flyway connecting Delhi and neighbouring Noida will remain toll-free for commuters, with Supreme Court on Friday refusing to stay an Allahabad High Court order restraining Noida Toll Bridge Company Limited from levying the cess, saying it should not claim it has built "a road to the moon".

The apex court, which refused to interfere with the HC order for the time being, said, "let the interim arrangement be there. We will pass some order after Diwali vacation."

A bench, comprising Chief Justice T S Thakur and Justices D Y Chandrachud and L Nageswara Rao, said it will decide on the submission of referring the issue of calculation of toll collected, which has been disputed by the company, to the Comptroller and Auditor General of India (CAG).

When senior advocate A M Singhvi, appearing for the toll collecting firm, was repeatedly assailing the High Court order and seeking an interim stay on it, the bench 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)."

Singhvi said Noida Toll Bridge Company Limited (NTBCL) is a company limited by shares and listed with stock exchanges and abroad including London, and permitting it to collect toll for one or two more months would cause no harm to anyone.

"The balance of convenience is in our favour as I have been collecting toll for last 15 years. If tomorrow it is held that I have the right to collect toll then we cannot go on chasing vehicles for the past toll," he said.

To this, the bench asked "if we hold otherwise, then will you chase vehicle owners to return the money collected. ... You don't lose much and it is only in terms of time you may lose, but if you succeed, you will get extra time".

At the outset, the bench said it wanted to know about the expenses incurred and the "permissible return" the firm wished to get back from the Delhi-Noida Direct (DND) flyway.

Referring to the terms of contract and accounting details with regard to the flyway, Singhvi said the High Court did not take into account all aspects and submitted that factors like interest on construction cost, depreciation and maintenance expenses, which comes to around Rs 12.5 lakh per day, have not been duly considered.

Singhvi said, "I don't mind any independent auditor of the court's choice for auditing the accounts and other aspects ... we have to maintain the stretch as well. There can be a CAG audit." He said the firm will be held liable for everything like accidents and maintenance, but the power to collect toll has been taken away by the High Court verdict.

During the hearing, the Noida Authority shied away from taking a stand on the issue, with its counsel only saying that all facts were placed before the High Court.

"You are not telling your stand. Are you saying that the company has recovered enough and they should be out," the bench asked.

When the counsel said he had no written instruction, the bench shot back saying the authority was not taking the matter seriously. The high court, on October 26, had brought cheers to millions of commuters 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. 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 the Noida Authority."

It 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 years 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.