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TMI Blog2016 (10) TMI 1400X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of judicial review under Article 226 of the Constitution of India. (c) Selection of Concessionaire in the facts of the case is violative of Article 14 of the Constitution of India and is found to be unfair and unjust. We, however, do not deem it fit to nullify the entire Concession Agreement. (d) 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 of the U.P. Industrial Area Development Act' 1976. Article 13 (Clause) of the Concession Agreement is held to be bad and inoperative in the eyes of law. (e) The method of calculation of the Total Project Cost and appropriation of the User fee collection under Article 14 (Clause) of the Concession Agreement is held to be arbitrary and opposed to Public Policy. Article 14 (Clause) of the Concession Agreement is severed, therefrom. (f) The proposed Amendments do not affect the reliefs which have been prayed for in the petition. It is directed that, henceforth, NOIDA Toll Bridge Company, the Concessionaire shall not impose or recover any User fee/Toll from the commuters for using the DND Flyover. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L FS ). 6. Initially it was charging toll @ Rs. 8/- per entry of car which was later on hiked to Rs. 22/- and then to Rs. 25/- per car w.e.f. 9.2.2012. Similarly two wheelers are charged Rs. 12/- per vehicle. 7. The members of petitioner's Association who are using DND Flyway being aggrieved by the demand of the User fee made inquiry and it then transpired that the NOIDA Authority had authorised the private Company to impose and realise User fee under a Concession Agreement with the said Company known as NOIDA Toll Bridge Company. Under the said agreement, NOIDA Toll Company has been given power to increase the toll charges from time to time. Hence this Public Interest Litigation. 8. The parties have been heard at length, material on record has been examined, in detail. The facts on record of the present Public Interest Litigation (PIL) are:-- A Memorandum of Understanding (MOU) for Yamuna Bridge Project was arrived at on April 7' 1992 between New Okhla Industrial Development Authority (herein after referred to as 'NOIDA'), Delhi Administration (DA) and Infrastructure Leasing Financial Services Limited (hereinafter referred to as 'IL FS') a public financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including preparation and issue of tender and contract documents, finalising the structure for implementation of the Project and lastly collection of toll after commissioning of the Project and ongoing maintenance of the Project till handing over it to NOIDA Authority. (7) NOIDA's responsibility was to provide land and external support i.e. permissions from the concerned authority for execution of the Project. (8) Delhi administration was to act as Nodal agency for conducting technical studies, feasibility report and preparation of DPR for the Project and to assist IL FS and NOIDA Authority to obtain other permission required for the execution of the Project as per the local rules and regulations in force. (9) It was agreed that IL FS shall decide in consultation with Government of U.P. and Union, as the case may be, the rates of toll to be levied on the vehicles intending to use the proposed bridge. The levy of toll shall be based on the benefits provided to the Users. (10) It was agreed that IL FS shall be entitled to recover one time management fee @ 1% of the total cost of the Project as certified by NOIDA Authority at the commencement of the bridge for public use and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Company to effectuate construction of Ashram Flyway contemplated at the Ashram Chowk as a part of the Concession Agreement. The Project was commissioned on February 6' 2001 and the bridge known as DND Flyway with approach roads was opened to traffic on February 7, 2001. On 30.10.2001, Ashram Flyway was commissioned and opened for public. 12. We may also set out the relevant clauses of Concession Agreement dated 12th November, 1997 arrived between the NOIDA Authority, IL FS termed as Sponsor and NOIDA Toll Bridge Project Company Limited referred to as the Concessionaire . 13. It may be noted that the Articles of the Concession Agreement referred to Chapter Heading and the Sections are mentioned as various Clauses of the Concession Agreement. (1) In the opening paragraphs of the Concession Agreement, the reasons to undertake the Project by NOIDA with the support of Concessionaire and Sponsor have been narrated. It states that a study was conducted by National Capital Region Planning Board, a body constituted under the National Capital Region Planning Board Act, 1985 to review the requirements for the development of infrastructure facility in relation to Delhi and NOIDA regions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Concessionaire till the commissioning of the Ashram Flyover. (7) As per Clause (k), Steering Committee decided that the Project be implemented by a Corporate entity promoted by IL FS incorporated in the State of Uttar Pradesh. (8) Pursuant thereto, as per Clause (l) the IL FS incorporated NOIDA Toll Bridge Company Limited for the purposes of execution of the agreement for construction of NOIDA Bridge. IL FS remained as the Sponsor of the Project only. (9) Clause (m) says that the Steering Committee further decided that the Project would be implemented by the Concessionaire through private financing on BOT basis under concessions and authority to be granted by NOIDA Authority in exercise of its powers under the Act and that DG and GOUP shall execute the Support Agreement for making available the land by lease and to extend full cooperation to the Project. (10) Under Clause (o), it is provided that the NOIDA Authority, after obtaining the prior approval of GOUP, shall formulate rules under the provisions of the Act providing for the collection of fee from the users of infrastructure facilities by NOIDA or such person as authorised under the rules for and on behalf of NOIDA. 14. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any other method. 21. Clause (b) of Section 2.3 says that upon the termination of the Concession Agreement, the Concessionaire shall transfer the Project Assets to NOIDA in accordance with the terms of Section 19. 22. Section 2.4 provides for extension of Concession Period and says that in the event the concessionaire is not able to recover the Total Cost of the Project and the Returns thereon upto the date of expiry of 30 years from the Effective Date , the Concession Period shall, without qualification, be extended by NOIDA for a period of two years at a time, until the Total Cost of Project and the Returns thereon is recovered. 23. Section 2.5, however, clarifies that in the event the Concessionaire recovers the Total Cost of Project and the Returns thereon, as determined by the Independent Engineer and the Independent Auditor prior to the date 30 years from the Effective date, the Concessionaire shall transfer the Project Assets to NOIDA, in accordance with the provisions of Article 19. 24. Article 3 contains Conditions Precedent i.e. obligations of the Concessionaire and NOIDA. 25. Relevant Section 3.1 (a) (iv) provides for obligation of NOIDA to formulate regulations unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Period and transfer it to NOIDA in fair condition, subject to normal wear and tear and having regard to the nature of the asset, construction and life of the Project, as determined by the Independent Engineer. 34. Section 8.1 deals with the appointment of the Independent Engineer jointly by Lenders, Concessionaire and NOIDA for the project during the entire term of the Concession Period, who shall issue and sign the Virtual Completion Certificate and Final Completion Certificate. 35. The Independent Engineer alongwith the Independent Auditor shall verify the Cost of Construction of the Project as determined by the Project Engineer under Section 8.3. The Cost of Construction so determined and certified by the Independent Engineer shall be presented to NOIDA and shall be considered for the purposes of computing the Project Cost. 36. Section 8.3 says that the Concessionaire shall have the right to appoint Project Engineer who shall determine the Cost of Construction of the project and submit it to the Independent Engineer for finalization in accordance with Section 8.1(c). Cost of Construction is defined in Section 1.1 as under:-- Cost of Construction: means (a) all costs and expens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsation from NOIDA in accordance with Section 18. Section 13.2 Base Fee Rate (a) The Fee rates set forth below (the Base Fee Rate ) have been determined and set according to 1996 figures and shall be revised to determine the initial fee to be applied to the Users of the Project on the Project Commissioning Date (the Initial Fee Rate ). The Following are the Base Rates: Type of Vehicle fee for a One Way Trip (Rupees) Earth Moving/Construction Vehicles 30.00 For each additional axle beyond 2-axles 10.00 Truck, 2-axles 20.00 Bus, 2-axls 30.00 Light Commercial Vehicle 20.00 Cars and other four wheelers/Three-Wheelers 10.00 Two-Wheelers 5.00 Non-motorized Vehicles Nil Section 13.3 Annual Revision of Fee Rate by the Fee Review Committee Section 13.4 deals with the establishment and constitution of Fee Review Committee Section 13.5 provides contingency in which the existing rates of fee are to be reviewed by the fee Review Committee. Article 14 provides for Total Cost of Project and Calculation of Returns as under:-- Section 14.1 Total Cost of Project (a) The Project Cost shall be determined as on the Project Commissioning Date by the Independent Auditor who shall seek the assistance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the O M Contract (b) all cost of salaries and other employee compensation, (c) all cost of materials, supplies, utilities and other services, (d) all premiums for insurance, (e) all Taxes, other than Corporate Tax payable by the Concessionaire and other duties imposed upon or measured by income or receipts, interest, additions to tax, expenses and other similar costs associated therewith, (f) all franchise, licensing, excise, property and other similar taxes and all costs and fees incurred in order to obtain and maintain all Clearances necessary for the operation and maintenance of the NOIDA Bridge at their full rated capacity (g) all cost of settlement of pending or threatened actions, suits, claims and proceedings and all related fines, judgments and other costs (including, without limitation, attorneys' fees) associated therewith, other than the actions, suits, claims and proceedings resulting from the negligence or b reach of the Concession Agreement by the Concessionaire (h) all repair, replacement and maintenance costs of the NOIDA Bridge, and all other expenditures of the Concessionaire required under applicable law or under applicable Clearances necessary for the opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (i) to be conducted upon the passage of the number of million standard axles specified in Appendix G or (ii) not regularly scheduled. The Independent Engineer shall determine the necessity, of conducting a major maintenance and certify that the work has been executed in accordance with specifications. Article 17 provides the Events of Default of NOIDA which are not caused by a default of the Concessionaire or Force Majeure as also Events of Default of the Concessionaire and provides that the parties shall have a right (vice-versa) to terminate the agreement in accordance with Article 18. Section 17.1 provides the Events of Default of NOIDA , which if not cured within the time period permitted, shall provide the Concessionaire the right to terminate the agreement in accordance with Article 18. Section 17.2 provides the events of default of Concessionaire, the right to NOIDA to terminate the agreement in accordance with Article 18. Article 18.1 provides for right and obligations of the parties in the event of suspension and termination of agreement in the event of default of both NOIDA and the Concessionaire. Section 18.1 Termination by Concessionaire for a NOIDA Event of Default, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transfer of the Project Assets to NOIDA or its nominated agency. NOIDA shall at its own cost obtain or effect all Clearances and take such other actions as may be necessary for such transfer. Article 25 provides for Constitution and Function of the Project Oversight Board which is a single member body comprising of a Person duly qualified having experience in the field of highways bridge construction or operation and maintenance of roads and bridges or having experience in settling in commercial disputes to be appointed by consensus between NOIDA and the Concessionaire. In the event of no consensus between NOIDA and Concessionaire as to the constitution of the Project Oversight Board, then the Person recommended by the Lenders shall be appointed as constituting the Project Oversight Board. Article 26 provides for dispute resolution proceedings under the Agreement amongst parties to be settled by a panel of arbitrators ((Arbitration Panel) in accordance with the Indian Arbitration and Conciliation Act, 1996 which consist of three parties. Section 27.4 provides for Severance of Terms to be reproduced at an appropriate place. IL FS is projected as the Promoter of the Concessionair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any's Auditor report as on 31.3.2012 is Rs. 2339.69 Crores which increased to Rs. 2955.1 Crores as on 31.3.2013 and Rs. 3448.95 Crores as on 31.3.2014. Till 31.3.2016, the total cost of project based on 20% assured returns reached a figure of Rs. 5,000 Crores plus. This amount will go on increasing further in view of the formula adopted in Article 14 of the Concession Agreement to determine the Total cost of project. The Total cost of Project can never be recovered and the bridge will never be free from levy of Toll. There is no chance of handing over bridge/Project Assets to NOIDA Authority even after 30 years nor NOIDA can terminate the agreement as in that eventuality, it would be under obligation to pay the Concessionaire an amount equal to the Total Project Cost and returns thereon apart from other expenses set out in Article 18.1, outstanding till the termination date. Since the accrued Total Project Cost due to the Concessionaire has reached a astronomical figure of Rs. 5000 Crores (approx), as on 31.3.2016, it is almost impossible for NOIDA to repudiate the agreement. Furthermore, in case of termination even on the Concessionaire Event of Default, liability is fixed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aur Transport Association versus State of M.P. and others 2001 (9) Supreme Court Cases 328, State of U.P. and others v. Devi Dayal Singh and others 2000 (3) Supreme Court Cases 5 Kamaljeet Singh and others v. Municipal Board, Pilkhwa and others 1986 (4) Supreme Court Cases 174 and the Division Bench judgment of Patna High Court in Baldev Chaudhary v. State of Bihar 1997 (2) BLJR 1504 to submit that only the cost of actual construction and some reasonable amount towards maintenance of roads can be recovered that too only by the State Government which can charge the toll tax. 51. Learned counsel for the petitioner also placed reliance upon the judgment of the Apex Court in Janta Hill Truck Owners Association v. Shailang Area Coal Dealer and Truck Owner Association and others 2009 (8) SCC 492 for the purpose that user charges are referable to reasonable amount of fee coupled with services rendered to individual that too by framing rules to regulate the levy. 52. It is urged that the Apex Court in Institute of Law Chandigarh v. Neeraj Sharma 2015 (1) SCC 720 has pronounced categorically that no body can be allowed to make profit with the aid of public property and the authority of allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. It has been assigned role to resolve any dispute that may arise in relation to any decision or findings of the Independent Engineer or the Independent Auditor sans well specified and transparent procedure for selection. 59. The Blog, a case study by Kapil Bajaj displayed by the Planning Commission on its Website dated 29th March, 2011, annexed as Annexure S.A. '2' to the supplementary affidavit dated 9.1.2013, has been referred by the learned counsel for the petitioner to impress upon his arguments. 60. The contention is that this situation has arisen because of the interwoven favourably drafted clauses of the Concession Agreement, for the Concessionaire. The unfair, untenable and irrational clauses in the contract make it arbitrary, unjust, opposed to public policy and amenable to judicial review. 61. In fact, NOIDA Toll Bridge Company instead of treating it as a project of the Public, for the Public is using it as a source for income of the Company creating a situation of clash between Public interest and private interest. In such conflict, the public interest will have to prevail. 62. Article 13 of the Agreement which provides for annual review of fee and revision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owered Steering Committee was established to monitor the progress and to provide directions for the development of the project. The Steering Committee was chaired by the Secretary of the Ministry of Urban Affairs and Development, Government of India (presently Ministry of Urban Development), however, the Ministry of Urban Development has not been made party in the petition. 67. It is a project of National importance. Till the year 1992, certain sectors including infrastructure development projects were always undertaken by the Government either by itself or through Public Sector undertakings, even Banks involved were Public Sector Banks. There were no Private Sector players in road infrastructure till the year 1992. Till 1992 the concept of development of infrastructure facilities with minimal or no financial budgetary support from the Government authority was not known in India. All the entities that had undertaken the construction of Bridges or Roads had done so only as the contractors for the Government, funded out of the budget of the relevant Government or Public Authority. 68. Infrastructure Leasing and Financial Services Limited (IL FS) was a public sector Company, 80% of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction of the flyway with the world class facilities was to ease the pressure on the existing roads. The development of the Bridge connecting South Delhi and NOIDA was in order to foster overall development of the National Capital Region. The 7th five year Planning Commission report recorded that there was lack of funds for maintenance and development of road network. 73. In order to augment the resources, the Highway sector would have to look for private participation in the road construction sector. A Public Private Partnership is characterized by the following elements. 1. Transfer of unencumbered right by way of agreement to the developer for construction of an infrastructure facility. 2. Non government recourse funding:-- Funds to be raised by the developer from debt and equity market at its own risk. 3. Right granted to the developer to collect and appropriate 'User fee' during the Concession period. 4. Grant of development right to the developer to augment the recovery of investment. At the ends of the Concession Period. The infrastructure facility alongwith Project Assets, ultimately is to be handed back to the government by the developer. 74. Reliance is place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween Delhi and NOIDA on a non government recourse basis for the first time in India was not to be executed as a work contract for which tender bid were required to be called for by the Government as there were no funds available to the Government of India or NOIDA Authority to enable such development as a works contract in 1992 nor was there any non government infrastructure developers at that time in 1992 from which a competitive bid could have been called. 79. The execution of the Concession Agreement was preceded by extensive deliberations/consultations over years, after the conceptualization of the project, between various governments, State instrumentalities, financial institutions and multilateral agencies. At different stages, the Government of U.P. and Government of India were involved. 80. The Steering Committee (consisting of representative of Government of U.P., Delhi Government, the Ministry of Urban Affairs and Development, Government of India, the Delhi Development Authority, NOIDA and IL FS) was established to monitor the progress and for development of the project. 81. The Steering Committee decided that the project should be implemented by a Corporate entity prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suade the investor of the regularity of the returns. In absence of the same, the funding of the project would not have been possible. Independent authorities such as independent Engineer, independent Auditor, Project Oversight Board are appointed under the contract to ensure transparent functioning and accountability of the Concessionaire. The NOIDA Authority has full access to the accounts. The Concessionaire being a public listed company, the financial statements of the company are available on the Stock Exchange website as also the official website of the Company. No dispute or grievance has been raised by the NOIDA Authority under the contract. The stand taken by NOIDA Authority in this PIL leads to an inevitable conclusion that NOIDA wants to overreach the contract and use the agency of PIL to secure what is not been available to it under the contract. 88. Referring to the judgements of Apex Court in Arun Kumar Agarwal v. Union of India, 2013 (7) SCC 1, BALCO Employee' Union (Regd.) v. Union of India, 2002 (2) SCC 333, Villianur Iyarkkai Padukappu Maiyam (supra) and Raunaq International Ltd. v. I.V.R. Construction Ltd., 1991 (1) SCC 492, it is submitted that scope of inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncession Agreement has been provided after long deliberations and consideration with the officers of different departments of the State Government. The possibilities of the breach of agreement cannot be foreseen at this stage nor the effect of such termination on the rights of the parties to agreement are required to be considered by this Court at this stage. Whenever such occasion arises these rights may be subject to consideration by the Arbitrator or the Court in an appropriate proceedings at that appropriate stage. The possibility of advantage to be taken by the Concessionaire is not a ground on which the Court may declare the Concession Agreement to be violative of public policy, so as to attract Section 23 of Indian Contract Act or to declare it inoperative. 95. There is no automatic renewal of the Concession Period due to inability to recover Total cost of the project and returns thereon. Clause 2.4 does not provide for a deemed extension of the Concession period and instead requires NOIDA Authority to extend the Concession Period by two years at a time. If NOIDA does not extend the Concession Period in advance by two years, the day that is immediately following the last day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes liable only in the event of the termination of the Concession period owing to its own defaults which it fails to cure or due to premature or arbitrary termination of the contract. The amount of user fee paid by the commuters is also independent and does not get affected by the increasing value of the total cost of project. 99. There are two methods of accounting. a. Concession account. b. Statutory account; both having different purpose and usage. 100. The Concession accounting is for determining the Cost of project and returns thereon, whereas Statutory accounting determines profit and loss of the company prescribed under the Companies Act. The figures presented by the petitioner do not establish that the project cost has been recovered. There is no material on record to support any conclusion on recovery of project cost nor there exists any basis to allege that the Total Cost of project has been recovered. The Court may appoint a panel of expert to analyze the accounts of the Company namely NTBCL to ascertain the correctness of rival allegation of the parties in this regard. 101. It is further submitted that the NOIDA has been non-cooperative after the DND flyover was commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide regular fee hikes to the NTBCL in terms of the Concession Agreement. Now it cannot take advantage of its own wrong. 103. The company has not been permitted to recover requisite returns in addition to the project cost and thus has been prejudiced at the hands of NOIDA. The state or public authority are not permitted to resile from their promises and responsibility. To support this submission reliance is placed upon the judgement of apex Court in State of Orissa others v. Mangalam Timber Products Ltd., 2004(1) SCC 139 and Monnet Ispat Energy Ltd. v. Union of India, 2012 (11) SCC 1, and Shyam Telelink Ltd. v. Union of India 2010 (10) SCC 165. 104. At this stage, it is submitted by Sri Ajay Bhanot learned Senior counsel for the Concessionaire that Section 27.1 deals with the procedure of amendment to the Concession Agreement. The exercise to amend the terms of the contract was initiated at the behest of NOIDA. The Concessionaire had submitted following proposal and is awaiting clearance by NOIDA/State of U.P.;- a. handing over of the project assets including the DND Bridge to NOIDA in 2031. b. freezing of total cost of project as on March 31, 2011 to be relevant only if NOIDA s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is submitted that the petitioners have not disclosed their credentials in a full and satisfactory manner. Share holders have not been impleaded who are necessary and proper parties to the PIL as they have vital stakes in the project. (NTBCL) is a listed company with more than Eighty thousand share holders. No dividend was paid to them till 2009. Reference is made to Raunaq International Ltd. (supra) and Narmada Bachao Andolan v. Union of India, 2000 (10) SCC 664. 109. It is also submitted that the petition is premature, the extension, if any, to the Concession period will have to be considered at the end of the Concession period. NOIDA is not faced with fait accompli to renew the agreement, the situation and the circumstance inter se the parties at the end of Concession period is only a matter of conjectures and surmises. The question of extension after thirty years will depend upon various variable and unpredictable factors which at this juncture can neither be predicted nor advanced decision based on the situation suppose to prevail at that time can be made. 110. It is lastly submitted that the project has contributed immensely to the growth of the region and economic activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had undertaken to indemnify. 115. On the maintainability of the PIL, preliminary objection has been raised on the same ground as pressed by learned counsels appearing for the Concessionaire, NTBCL. The ground of delay and latches on the part of the petitioners has been vehemently pressed to impress upon the Court that the PIL need not be entertained and that the petitioners have no locus to maintain the PIL. 116. On merits, it is submitted that the petitioners are seeking to challenge the policy decision of the Government of India and the Government of U.P. to undertake the development of the Delhi Noida Bridge on private sector financing. It is settled law that the policy decision of the State is not to be interfered with or substituted by the Courts of law. Reliance is placed upon the Judgement of Apex Court in State of M.P. v. Narmada Bachao Andolan another 2011(7) SCC 639, Jal Mahal (P) Ltd. v. K.P. Sharma and others 2014 (8) SCC 804, Ekta Shakti Foundation v. Government of NCT of Delhi. 2006 (10) SCC ?? 117. On a pointed query made by the Court as to how the contract for development of Public road/bridge was settled in favour of NTBCL with IL FS as the promoter that too witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of IL FS and NTBCL. The allegation that the MOU or the Concession Agreement gave land free of cost to IL FS or the Concessionaire is wrong and without basis. The land has been leased out for a period that is co- terminus with the Concession Agreement and can be used only for the purposes of the project. The majority of the land comprising the project site is river-bed land and not capable of being used under applicable laws for any other purpose nor it has any commercial value. Further-more the majority of the land lie on the Delhi side of the Noida Bridge which is not subject matter of the present PIL. It is urged that in the case of Villianur Iyarkkai Padukappu Maiyam v. Union of India others 2009(7) SCC 561, the Apex Court has held that the development of Port on Build, Operate and Transfer basis can never be equated with intended sale of government lands or transfer of state largesse. 120. Further the Apex Court in the case of Madhya Pradesh v. Narmada Bachao Andolan another, 2011 (7) SCC 639, Jal Mahal Resorts (P) Ltd. K.P. Sharma, 2014 (8) SCC 804, Ekta Shakti Foundation v. Govt. NCT Delhi, 2006 (10) SCC 337 and State of Orissa and others v. Gopinath Dash and others, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n either the general public or NOIDA. 123. The Noida becomes liable to make payment under Section 18.1 of the Concession Agreement of the total cost of project and returns thereon only in the case of Noida events of default. There is no other provision under which the said amount, otherwise becomes payable. The concept of total cost of project and returns thereon is a risk mitigation measure which can be understood best as a risk insurance clause against Noida repudiating the Concession agreement or failing to cure the defects notified to NOIDA resulting in default the Concession Agreement. It was incorporated in order to make the Noida Toll Bridge Project viable for Lenders as well as Investors due to it being the first green field road and bridge project being implemented on private sector financing basis. The said concept has received approval of the Apex Court in Narendra Road lines (supra). 124. It is vehemently urged that the concept of total cost of project and returns thereon has no linkage to the fee being charged from the User of the Delhi Noida Bridge. The fee does not get adjusted on account of high or unachievable Total Cost of Project and Returns thereon. The fee is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad. The Concession Period is 30 years and is not in perpetuity. The Transfer date has been defined in Section 1.1 to mean the day immediately following the last day of the Concession Period , including any extension thereto or earlier termination thereof, in accordance with terms of the Concession agreement. 128. Lastly it has submitted that an amendment stipulating the transfer date removing the concept of extension of Concession Period and the concept of recovery of total cost of project and returns thereon had been submitted by the Concessionaire to Noida in July, 2015 which is under consideration. 129. The public interest litigation process cannot be allowed to be misused in a manner so as to act as a means for the parties to exit long term contracts entered into on the basis of PPP (Public Private Partnership) to develop a large Scale Infrastructure facility. 130. We may notice at this stage that the New Okhla Industrial Development Authority i.e. respondent No. 2 did not file any reply till 31.1.2013 when the matter was taken up by this Court and specific direction was issued requiring NOIDA to make its stand clear, whether it is in favour of continuance of Agreement dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in paragraph '4' that the Concession Agreement executed by NOIDA Authority is not serving public interest. The averment made in paragraph '10' of the affidavit dated 18.2.2013 has been reiterated by NOIDA to reaffirm its stand. 135. It is also stated that vide letter No. 129 dated 8.7.2011, NOIDA had called upon the Concessionaire to make modifications in the Concession Agreement. 136. With regard to the grant of development rights, the stand taken is that the Sub-Committee consisting of Senior Officers in the Government of U.P. was constituted to examine the matter. The Committee as per its recommendation, suggested that development rights can be given for 4 acres of land and the remaining 32 acres of surplus land has to be returned by the Concessionaire to NOIDA. 137. The Committee also suggested that the income generated by the Concessionaire through these development rights, if granted, be treated as equity of NOIDA in the Company namely NOIDA Toll Bridge Company Limited. 138. The Concessionaire namely NOIDA Toll Bridge Company refused to accept this citing the reasons:-- (a) All the Project assets including lands are mortgaged to the Lenders as security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Concessionaire is authorised under the Concession Agreement to levy the user fee to realise the project Cost. 146. During the course of the argument on 26.7.2016, on a query made by this Court on the issue that the Concession Agreement entered being hit by Article 14 of the Constitution of India as the agreement has not been preceded by any advertisement nor other person working in the field was invited to participate in the process before award of the public contract, an affidavit dated 28th July, 2016 has been filed on behalf of NOIDA, wherein it is admitted that there was no advertisement or tender notice issued by NOIDA. The company namely IL FS was selected for implementation of Delhi-NOIDA Bridge Project (DND Flyway) under the tripartite Memorandum of Understanding (MOU) signed on 7.4.1992 by NOIDA, Delhi Administration and IL FS. 147. It is further submitted by Sri C.B. Yadav, learned Senior Advocate for NOIDA that 68 acres of land has been given by NOIDA Authority and Delhi Government has handed over 342 acres of land. Out of the total area approximately 400 acres of land which was handed over to the Concessionaire, it has utilised only 144 acres of land for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Development which has been duly incorporated in the Office Memorandum No. 3736 dated 4.9.1997. The Cabinet took a decision to authorise NOIDA Authority to finalise the Concession Agreement and the Support Agreement as IL FS has been projected as the company promoted by the Government of India. 152. At this stage, it is submitted by Sri C.B. Yadav, leaned Additional Advocate General appearing for the State that Sri R.K. Bhargawa who was the Chairman of NOIDA Toll Bridge Company since its inception, was the member of Indian Administrative Services. He was Principal Secretary, Urban Planning and Development, Government of India who had ensured the execution of the Project. 153. Referring to Compilation III of the list of documents filed on behalf of the State of U.P., it is submitted that Sri Pradeep Puri who was projected as Director of company was not discharging any function/obligation for the company yet all expenses including the remuneration paid to Mr. Pradeep Puri were added to the project cost. Sri Pradeep Puri in the letter dated 29th August, 2007 sent to the Chief Executive Officer, NOIDA (appended as Annexure A-7, (para '11') to the Supplementary Affidavit No. 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restructuring of Deep Discount Bonds was Rs. 50 Crores which is exorbitant. 156. On the legal prepositions of judicial review, reliance is placed upon the judgment of Apex Court appended with Compilation 'I' and 'II' by Sri C.B. Yadav, learned Additional Advocate General. 157. Specific reference has been made to the pronouncements of Apex Court in ABL International Ltd. another v. Export Credit Guarantee Corporation of India Ltd. and others 2004 (3) SCC 553, Noble Resources Ltd. v. State of Orissa and another 2006 (10) SCC 236, Jagdish Mandal v. State of Orissa and others 2007 (14) SCC 517 and Coal India Limited and others v. Alok Fuels Private Limited through Director and other 2010 (10) SCC 157, to submit that once the State or a NOIDA which is instrumentality of the State enters into a contract, it has an obligation in law to act fairly, justly and reasonably as required under Article 14 of the Constitution of India, Writ Court can issue suitable directions to set right the arbitrary action of the State or its instrumentality. 158. The contractual matter are not beyond the realm of judicial review though its application is limited. Where the public interest is af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Concession Agreement viz- -viz relief prayed for in this petition? Whether this Public Interest Litigation is maintainable:-- 163. The petitioner Association before us represents the cause of its members who are the commuters using the DND Fly over. The petitioners are aggrieved by the continuance of the levy and collection of the Toll/User Fee under the Contract between NOIDA Authority and the Concessionaire as (a) they are required to pay the toll in the name of User Fee , even after the actual cost of construction of the DND flyover and reasonable profits/returns thereon having been recovered by the Concessionaire. (b) The period of 30 years fixed by the Concessionaire for realizing the toll in the name of User Fee is arbitrary and opposed to public policy. The petitioners have challenged the Concession Agreement on various grounds narrated in the preceding part of this judgment. 164. The respondents have vehemently opposed the petition on the ground of maintainability with the assertion that the petitioner Noida Residents Welfare Association was well aware of the execution of the Concession Agreement as well as the construction of the project and commencement of its opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gally, they have approached this Court with a specific contention that the Concessionaire had already realised the investment for construction of the bridge alongwith reasonable interest and hence they are not entitled to recover the User fee any further. The levy of toll/user fee is a continuing cause of action which has been espoused before us by a section of public i.e. the commuters. Serious questions of public interest have been raised before us regarding the validity of the Concession Agreement and its continuance as on date. 168. Public interest in simple terms means that principle of law which holds that no subject can lawfully do that which has a tendency to cause injury to the public or is against the public good. The doctrine of public interest is founded on the current needs of the Community. The issue is always raised with reference to the interest of a Section of the Community. It is thus sufficient to show that the interest of such section of the community is the interest of the Public. The injury or tendency to injure that particular section of the community would be against the Public Interest. However, no satisfactory definition could be found as to what is public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by everyone irrespective of the fact as to whether the user is unmindful of the money, which is being charged by Noida Toll Company or a vigilant person, who objects to realization of toll (user fee), demand of which according to him, is illegal. 175. If vigilant members of the society question the demand of toll (user fee) for use of infrastructure developed over public property, it is not open either to the Commissionaire to allege that they may use other facility as they cannot pay the fee for use of this facility, specifically when the challenge is to the very levy of the fee. The State and its Concessionaire have to meet the challenge on merits rather than taking shelter behind technical objections like the use of other linkages. 176. The plea that this petition has been prompted by NOIDA to avoid its contractual obligation has been so stated before us without any material to support such vague sweeping allegations. The petitioners have stated in so many terms before us that the levy and collection of Toll/User Fee must stop. All other rights and obligations of party to the agreement is of no concern of the petitioners. 177. We further find that Government of India and Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts inherent in its position in a democratic society. The constitutional power conferred on the Government cannot be exercised by it arbitrarily or capriciously or in an unprincipled manner; it has to be exercised for the public good. Every activity of the Government has a public element in it and it must therefore, be informed with reason and guided by public interest. Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated. If the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be liable to be tested for its validity on the touch-stone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid. 12. Now what is the test of reasonableness which has to be applied in order to determine the validity of governmental action. It is undoubtedly true, as pointed out by Patanjali Shastri, J. in State of Madras v. V.G. Rau, that in forming his own conception of what is reasonable, in all the circumstances of a given case, it is inevitable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an action which is inconsistent with or runs counter to a Directive Principle would incur the reproach of being unreasonable. 183. It was, further, held that the concept of public interest must as far as possible receive its orientation from the Directive Principles of State Policy. In paragraph 13, the Apex Court goes on to say:-- 13.- So also the concept of public interest must as far as possible receive its orientation from the Directive Principles. What according to the founding fathers constitutes the plainest requirement of public interest is set out in the Directive Principles and they embody par excellence the constitutional concept of public interest. If, therefore, any governmental action is calculated to implement or give effect to a Directive Principle, it would ordinarily, subject to any other overriding considerations, be informed with public interest. 184. It was thus held that the Government action which fails to satisfy the test of reasonableness and public interest and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, would be liable to be struck down as invalid. The principles which flow as a necessary corollary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law. It is imperative in a democracy governed by the rule of law that governmental action must be kept within the limits of the law if there is any transgression the Court must be ready to condemn it. 186. With regard to the second limitation on the discretion of the Government in the grant of largesse to choose the persons to whom such largesse may be granted, it has been held that in selecting the recipients for its largesse, the Government cannot choose to deal with any person it pleases in its absolute and unfettered discretion. Following principles have been laid down in Ramana Dayaram Shetty (supra) in paragraph '15' as under:-- 15. It is held that The second limitation on the discretion of the Government in grant of largess is in regard to the persons to whom such largess may be granted. It is now well set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person acting in public interest or any act that gives rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element that becomes open to challenge. If it is shown that the exercise of the power is arbitrary, unjust and unfair, it should be no answer for the State, its instrumentality, public authority or person whose acts have the insignia of public element to say that their actions are in the field of private law and they are free to prescribe any conditions or limitations in their actions as private citizens, simplicitor do in the field of private law. Its action must be based on some rationale and relevant principles. In paragraph '24', it was thus observed:-- 24......... .....xxxxxxxx............ that even in contractual relations the Court cannot ignore that the public authority must have constitutional conscience so that any interpretation put up must be to avoid arbitrary action, lest the authority would be permitted to flourish as imperium a imperia. Whatever be the activity of the public authority, it must meet the test of Article 14 and judicial review strikes an arbitrary action. 188 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en public law and private law remedy has now become too thin and practicably obliterated. 27. In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or arbitrary in its decision. Duty to act fairly is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest. 29. ........... xxxxxxxxxxx........ In Sterling Computers Ltd. v. M N Publications Ltd., (1993)1 SCC 445 at page 464 para 28, it was held that even in commercial contracts where there is a public element, it is necessary that relevant considerations are taken into account and the irrelevant consideration discarded. In Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty. In absence of a transparent policy based on objective criteria and without giving any public notice, the allotment of land for establishment of the educational institution was held arbitrary, unreasonable and unjust and opposed to the provisions of Article 14 of the Constitution of India. 192. In City Industrial Development Corporation (CIDCO) (supra), it was observed that whenever the Government dealt with the public establishment in entering into a contract or issuance of licence, the Government could not act arbitrarily on its sweet will but must act in accordance with law and the action of the Government should not smack of arbitrariness. The principles laid down by the Apex Court in Akhil Bhartiya Upbhokta Congress (supra) have been approved in paragraph '38' as under:-- 38. In the case of Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh ors., (2011) 5 SCC 29, this Court while considering the question of legality of allotment of land by the State or its agencies on the basis of applications made by individual, observed as follows:-- 65. What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largess to any pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on flowing directly from the principles embodied in Article 14 of the Constitution of India. (b) Role of Government:-- Considering the Role of Government in the matters of Contract, it is observed by the Apex Court in Ramana Dayaram Shetty, (supra) that the Government is a welfare State and is the regulator and dispenser of special services and provider of a large number of benefits including contracts, licences, quotas, mineral rights etc. The valuables dispensed by Government may take many forms, but they all share One characteristic. That is where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will, and like a private individual, deal with any person it pleases. Its action must be in conformity with such standards or norms and must not be arbitrary or irrational. 195. In Akhil Bhartiya Upbhokta Congress (supra), Justice G.S. Singhvi speaking for the Bench observed in paragraphs '47', '48' and '49' as under:-- 47. When the Constitution was adopted, people of India resolved to constitute India into a Sovereign Democrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Governments and local authorities. Licences are required before one can engage in many kinds of businesses or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largesse in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largesse and with the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed in him by the people. (c) Public interest and Public Policy:-- 199. The Apex Court in Centre for Public Interest Litigation v. Union of India 2012 (3) Supreme Court Cases 1 has held that the natural resources belong to the people, the State legally own them on behalf of its people and from that point of view the natural resources are considered as national assets, more so because the State benefits immensely from their value. The State is empowered to distribute natural resources. However, while distributing, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. 200. In paragraphs '75', '80', '86', '87', '88' and '89', it has been stated as under:-- 75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kshmi Reddy v. State of J K (1980) 4 SCC 1, Common Cause v. Union of India (supra), Shrilekha Vidyarthy v. State of U.P. (1991) 1 SCC 212, LIC v. Consumer Education and Research Centre (1995) 5 SCC 482, New India Public School v. HUDA (1996) 5 SCC 510 and held: 65. What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld cannot be demarcated with precision. Each case has to be examined on its facts and circumstances to find out the nature of the activity or scope and nature of the controversy. 202. In Sterling Computers Limited v. M N Publications Ltd. 1993 (1) SCC 445, it was held that even in commercial contracts where there is public element, it is necessary that relevant considerations are taken into account and the irrelevant considerations discarded. 203. In Union of India v. Graphic Industries Co. 1994 (5) SCC 398, it is held that even in contractual matters, public authorities have to act fairly and if they fail to do so, the enquiry under Article 226 would always be permissible because that would amount to violation of Article 14 of the Constitution. 204. The scope of judicial review in contractual matters came up for consideration before the Apex Court in Tata Cellular (supra) wherein it is observed in paragraphs '70', '71', '72', '73' and '74' as under:-- 70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favoritism. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of judicial control over administrative action. 74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself. 205. S. Mohan J. speaking for the bench of three judges in the case of Tata Cellular (supra) framed two questions for explaining the law on judicial review of administrative action. These questions have been beautifully framed as (i) What is this charming principles of Wednesbury unreasonableness? (ii) Is it a magical formula? In answering these questions, the statement about judicial review by Lord Denning where he emphasises the supervisory nature of the jurisdiction of the Court, has been quoted in paragraph '83' as under:-- 83. A modem comprehensive statement about judicial review by Lord Denning is very apposite; it is perhaps worthwhile noting that he stresses the supervisory nature of the jurisdiction: Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the body may give for its decisions. If it gives no reasons in a case when it may reasonably be expected to do so, the courts may infer that it has no good reason for reaching its conclusion, and act accordingly. See Padfield case (as AC pp. 1007, 1061)1968 AC 997: (1968) 1 All ER 694. 206. Dealing with the concept of reasonableness in administrative law elaborated by Venkatachaliah, J. in G.B. Mahajan v. Jalgaon Municipal Council 1991 (3) SCC 91, it is noted that in the administrative law, test of reasonableness is not by the standards of the 'reasonable man' of the torts law. Emphasis was supplied to what Prof. Wade says in his book on Administrative Law in paragraphs '89' '90' as under:-- 89. This is not therefore the standard of the man on the Clapham omnibus . It is the standard indicated by a true construction of the Act which distinguishes between what the statutory authority may or may not be authorised to do. It distinguishes between proper use and improper abuse of power. It is often expressed by saying that the decision is unlawful if it is one to which no reasonable authority could have come. This is the essence of what is now commonly called Wed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (e) Concept of public policy under Section 23 of the Indian Contract Act:-- 209. We may first refer to Section 23 of The Indian Contract Act, 1872:-- 23. What consideration and objects are lawful, and what not The consideration or object of an agreement is lawful, unless -It is forbidden by law; or is of such nature that, if permitted it would defeat the provisions of any law or is fraudulent; of involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. 210. Simply put, the section says that in each of such cases where the consideration or object is unlawful or opposed to Public Policy, the agreement is void. 211. As it is understood in legal parlance, the doctrine of public policy has been explained and applied by the Apex Court in the case of Gherulal Parakh v. Mahadeodas Maiya and others, AIR 1959 SC 781. The meaning and concept of public policy with reference to section 23 of the Contact Act, has been discussed elaborately by considering the law decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited (1902 A. C. 484 at p. 491) that no Court can invent a new head of public policy, but the dictum of Lord Davey in the same case that public policy is always an unsafe and treacherous ground for legal decision may be accepted as a sound cautionary maxim in considering the reasons assigned by the learned Judge for his decision . The same view is confirmed in Bhagwant Genuji Girme v. Gangabisan Ramgopal (2) and Gopi Tihadi v. Gokhei Panda (3). The doctrine of public policy may be summarized thus: Public policy or the policy of the law is an illusive concept; it has been described as untrustworthy guide , variable quality , uncertain one , unruly horse , etc.; the primary duty of a Court of Law is to enforce a promise which the parties have made and to uphold the sanctity of contracts which form the basis of society, but in certain cases, the Court may relieve them of their duty on a rule founded on what is called the public policy; for want of better words Lord Atkin describes that something done contrary to public policy is a harmful thing, but the doctrine is extended not only to harmful cases but also to harmful tendencies; this doctrine of public policy is only a branch of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguly and Another, 1986 (3) SCC 156, while expounding the principle governing public policy in the matter of contract between employer and employees, the principle of test of reasonableness or fairness of a clause in contract had been applied in a case where there was inequality of bargaining power. 215. Though the instant case proceeds on a different footing however, for the purpose of understanding the expression public policy or opposed to public policy , under the Indian Contract Act, paragraphs 92 and 93 of the aforementioned judgment, in our opinion, are relevant and quoted as under:-- 92. The Indian Contract Act does not define the expression public policy or opposed to public policy . From the very nature of things, the expressions public policy , opposed to public policy or contrary to public policy are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd are capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which D covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution. 93. The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The case of A. Schroeder Music Publishing Co. Ltd. v. Macaulay, however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. In Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht it [the unruly horse of public policy] more like a tiger, and refused to mount it at all perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balaam's ass which would carry its rider nowhere. But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community. All courts are at one time or the other felt the need to bridge the gap between what is and what is intended to be. The courts cannot in such circumstances shirk from their duty and refuse to fill the gap. In performing this duty they do not foist upon the society their value-judgments. They respect and accept the prevailing values, and do what is expected of them. The courts will, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good. 217. In the case of City Industrial Development Corporation (supra), applying the test of reasonableness and non arbitrariness in government action as per the settled principles discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrariness had a role to play and the allotment made in favour of one group of persons would be against the public policy. The action of CIDCO was found tainted with favoritism based on nepotism and opposed to public policy. 219. In the most recent case of Board of Control For Cricket In India v. Cricket Association of Bihar and others 2015 (3) SCC 251, the concept of public policy has been discussed in paragraph No. 90 to 96. The meaning attached to the expression public policy has been discussed with reference to what has been stated in paragraph No. 92 of the judgement in the case of Central Inland Water Transport Corporation (supra). 220. We only reproduce paragraph Nos. 90, 94 and relevant portion of paragraph No. 96 which are relevant to the fact of this case:-- 90. The validity of Rule 6.2.4 as amended can be examined also from the standpoint of its being opposed to public policy . But for doing so we need to first examine what is meant by public policy as it is understood in legal parlance. The expression has been used in Section 23 of the Contract Act, 1872 and in Section 34 of the Arbitration and Conciliation Act, 1996 and a host of other statutes but has not been given a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-governmental body will be opposed to public policy. ............. 221. The rule of law requiring opportunity to all who may be invited before grant of contact is thus settled. A public Authority cannot adopt pick and choose method while entering into the Public Contract. In cases, the Court is not denuded of the powers to look into the agreement and see whether the clauses of agreement are such as would benefit the private person at the cost of public. 222. There cannot be a doubt that the law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic development taking place in the country. As new situations arise the law has to evolve in order to meet the challenges of such new situations. Law cannot afford to remain static. The Court has to evolve new principles and lay down new norms which arise in a highly industrialised economy. Therefore, when new changes are thrown open, the laws must grow as a social engineering to meet the challenges and every endeavour should be made to cope with the contemporary demands to meet socio-economic challenges under rule of law, either by discarding the old and unsuitable or adjusting legal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt that merely because lowest tender was not accepted by the committee, it cannot be said that the decision was faulty and the Court, therefore, will not substitute the decision of an experts. 227. The judgments relied upon by the Concessionaire on the issue are distinguishable in the facts of the present case. 228. We will, therefore, first proceed to examine as to whether in the facts of the case, there are exceptional reasons for the NOIDA to enter into the Concession Agreement with NOIDA Toll Company and IL FS, without satisfying the requirements of Article 14 of the Constitution of India. 229. From the stand taken by the IL FS and NOIDA Toll Company the reasons disclosed to this Court for not publishing notice inviting tenders in the matter of construction of D.N.D. Flyover are (a) at the relevant point of time there was no private player/institution interested in participating in such road projects, and (b) that IL FS was the proponent of the concept of public private partnership (PPP Model) and was the only agency at the relevant time which could generate money from banks and financial institutions and provide expertise in the matter of such road infrastructures. (c) Lastly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if others were permitted to compete, probably the State/NOIDA could have found more commercially viable project and a better deal. Similarly, there would have been offers much more attractive and much more in the public interest, if a transparent procedure for awarding the contract, as per the law explained by the Apex Court in the case of M/s. Kasturi Lal Lakshmi Reddy (supra), had been adopted by the respondents. 238. We may also record that the execution of the Concession Agreement has not resulted in any benefit either to NOIDA/State owing to the various clauses of the agreement, specifically (a) the clause pertaining to the Total Cost of Project and liability of NOIDA to repay the same, (b) no capping on the total expenditure to be deducted. 239. Role of the then Secretary, Ministry of Urban Development, Government of India;- Additional Advocate General, Sri C.B. Yadav has specifically informed the Court that the Secretary, Ministry of Urban Development, Government of India at the relevant time of the execution of MOU was Sri R.K. Bhargava, an IAS officer. He was infact instrumental in conceptualization of the project and had initially projected that IL FS would undertake the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Toll Bridge. Whether the user fee charge by Noida Toll Company is legally sustainable or not. 243. So far as levy and collection of user fee by the Concessionaire is concerned, submission is that the Concessionaire has been authorized under the Concession Agreement to levy and collect fee from the users of the NOIDA Toll Bridge and appropriate the same for recovery of the investments made plus returns thereon. 244. The Concessionaire has contended that the User fee is being charged under 1998 Regulations which have been framed by NOIDA in exercise of its powers conferred by Sections 6-A read with Section 19 of the Uttar Pradesh Industrial Area Development Act, 1976 (hereinafter referred to as the Act, 1976). The NOIDA in its counter affidavit has only referred to the Concession Agreement for approving the levy and collection of user fee and its revision. 245. To test the abovenoted submissions, we may first go through the relevant provisions of the Act, 1976 as existing on the date of execution of the Concession Agreement:-- Section 6 Functions of the Authority.--(1) The object of the Authority shall be to secure the planned development of the industrial development area. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Government make regulation not inconsistent with the provisions of this Act or the rules mode thereunder for the administration of the affairs of the Authority. (2) In particular, and without prejudice to the generally of the foreboding power, such regulations may provide for all or any the following matters namely- (e) fee to be levied in the discharge of its functions; 247. So far as Section 6-A is concerned, it was introduced/inserted by U.P. Act No. 2 of 1999 w.e.f. 14.8.1998. 248. Relevant Section 6-A reads as under:-- 6-A. Power to authorize a person to provide infrastructure or amenities and collect tax or fee.--Notwithstanding anything to the contrary contained in any other provisions of this Act and subject to such terms and conditions as may be specified in the regulations, the Authority may, by agreement, authorize any person to provide or maintain or continue to provide or maintain any infrastructure or amenities under this Act and to collect taxes or fees, as the case may be, levied therefore. 249. In exercise of power under Section 6-A read with Section 19(2)(e) NOIDA framed Regulations, 1998 and enforced it sometime in the month of September, 1998. The relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Developer. The formula prescribed may provide for different rates for different classes of infrastructure. (2) The authority shall have the powers to authorise the developer to collect and appropriate the fee levied under sub-clause (1) in accordance with the Agreement. Developer's rights to collect or appropriate the fee may be assignable to the lenders of the Developer. (3) Where the authority authorizes the Developer to collect and appropriate the Fee in accordance with sub-regulation (2), the agreement shall provide for a mechanism for determination, revision, and publication of the rate of fee. (4) A rate of Fee so determined shall be duly published and exhibited in Hindi Devanagri Script, English, and Urdu at such places and in such manner as may be determined by the Authority. (5) A developer shall maintain and keep such registers and other records as may be directed by the Authority. 250. We may also refer to the relevant Clauses of the Concession Agreement which have already been set out in the preceding part of this judgment. Clause (o) of the agreement and Article 13 which confers a power upon the Concessionaire to levy fee find specific reference here. 251. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . to gather in or together, to collect taxes, to accumulate (things of a similar kind) 259. In the ' Concise Oxford English' Indian Edition, the meaning of these two words given are as under:-- Levy n. (pl. levies) 1. the imposition of a tax, fee, fine, or subscription . Collect v. 1. bring or gather together. 260. The distinction between Levy and Collection with reference to Article 265 of the Constitution of India has been considered by the Apex Court in Assistant Collector of Central Excise, Calcutta Division v. National Tobacco Co. of India Ltd. 1972 (2) Supreme Court Cases 560 wherein it was held that although the connotation of the term levy seems wider and may include both imposition of a tax as well as assessment, yet it cannot be extended to collection . 261. The relevant paragraph '19' is quoted as under. 19. The term levy appears to us to be wider in its import than the term assessment . It may include both imposition of a tax as well as assessment. The term imposition is gene- rally used for the, levy of a tax or duty by legislative provision indicating the subject matter of the tax and the rates at which it has to be taxed. The term assessment , on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elegated or derived authority. The extent and amplitude of the rule making power would depend upon and be governed by the language of the Statute. 264. The Apex Court in the case of Hukum Chand v. Union of India AIR 1972 SC 2427, has held that the Court of law, as a general rule, will not give effect to the Rule made by a Statutory authority, unless satisfied that all the conditions precedent to the validity of the Rules have been fulfilled. 265. The said principle has been cited with approval by the Apex Court in Commissioner of Income-tax, U.P.-II, Lucknow v. Bazpur Cooperative Sugar Factory Ltd. Bazpur, Dist. Nainital AIR 1988 Supreme Court 1263. 266. In Additional District Magistrate (Rev.) Delhi Administration v. Shri Ram 2000 (5) Supreme Court Cases 451, it has been held in paragraph '16' as under:-- 16. It is well recognised principle of interpretation of a statute that conferment of rule-making power by an Act does not enable the rule-making authority to make rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. From the above discussion, we have no hesitation to hold that by amending the Rules and Form P-5, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under:-- It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitution futuris formam imponere debet non praeteritis' __ a new law ought to regulate what is to follow, not the past. (See : Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, 2004 at p.438)........ xxxxxxxxxxxx....................... (emphasis supplied) 273. The Apex Court in its recent judgment in the case of State of Rajasthan Others versus Basant Agrotech (India) Ltd. 2013 (15) SCC 1, after noticing the distinction between the parent Act and the subordinate legislation like rules and regulations framed there-under as well as after noticing the meaning to be attached to Section 14 and Section 21 of the General Clauses Act, 1897, has specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power. 275. The Apex Court has thereafter gone on to hold in paragraph-25 as under:-- 25. On a perusal of the aforesaid authorities there can be no scintilla of doubt that if the power has been conferred under the main Act by the legislature, the State Government or the delegated authority can issue a notification within the said parameters. ...... 276. In the facts of the case, under the confessional agreement/contract not only the base price of user fee has been fixed but the mechanics for enhancement of such User fee from time to time has also been provided. 277. In our opinion, Section 6-A of U.P. Act No. 6 of 1976 does not permit levy of user fee by the Developer. It only permits collection thereof. The Regulations 1998 cannot travel beyond the main Section 6-A of U.P. Act No. 6 of 1976 nor can it infuse life to the confessional agreement/contract by giving retrospective operation to the Regulations 1998. The base user fee had been determined under the agreement itself t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 30 years at the maximum, as suggested by the Concessionaire. The Concession Agreement, contemplates under section 2.3 read with section 2.4 that the Concession period has to be extended beyond 30 years, if the Total cost of the project is not recovered within 30 years from the Effective Date . Going by the formula as per Article 14 read with Annexure 'F' of the Concession Agreement, the total cost of Project is escalating each year. 286. The total Cost of Project as per the Company's Auditor report as on 31.03.2012 was Rs. 2339.69 crores, which increased to Rs. 2951.1 crores as on 31.03.2013, Rs. 3448.95 crores as on 31.03.2015. By 31.3.2016, the total cost of Project as per the formula contained in Article 14 of the Concession Agreement would reach a figure of more than 5000 Crores. The idea of Total cost of the Project under the Concession Agreement:-- 287. Under Section 1.1, the project cost as defined means, the cost of construction and the other Costs of Commissioning to be determined on the project commissioning date by the Independent Auditor in consultation with the Independent Engineer. According to us, after commissioning of the Project, the Concessionaire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of User Fee for indefinite period much beyond the period of 30 years and will continue to tax the public by collecting user fee under the pretext that they have not been able to recover the Total Cost of the Project and the profits thereon. 292. The Independent Auditor in Company's audit report for the year ending on 31.3.2012 after referring to the unrecovered cost of project of Rs. 2339.69 Crores states as under:-- The company considers that they will not be able to earn the assured return under the concession agreement over 30 years. The company has an assured extension of the concession as required to achieve project cost and designated returns. Based on the independent professional expert advice, the estimated life of the bridge has now been considered as 100 years . 293. In the report dated August 29, 2007 Sri Pradeep Puri, the President CEO of NOIDA Toll Bridge Company forwarded to the Chief Executive Officer, NOIDA Authority regarding the proposal for construction of office building adjacent to DND Toll Plaza, submitted as under:-- Though the traffic and revenue of the Project has increased significantly, the Project is still not earning sufficient revenues to ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct upon the Users when we read Section 2.1(b)(iv) of the Agreement, which provides that the Concessionaire will have a right to levy fee and apply the same in order to recover the Total Cost of the Project and Returns thereon. The submission in this regard made by the concessionaire i.e. respondent No. 1 and IL FS, respondent No. 9 is nothing but a desperate attempt to save themselves from the clutches of legal provision and to dissuade the Court from entering into the correctness of the clauses which authorise realization of User fee from the public for an indefinite period under the misnomer of Unrecovered Total Cost of the Project. Actual Cost of Project recovered by the Concessionaire:-- 300. While the petitioners would contend that the total cost of project alongwith reasonable returns has been recovered and, therefore, the Concessionaire now cannot charge user fee. The Concessionaire in reply with reference to clauses of the agreement would contend that it is entitled to realise the user fee as it has not achieved the figure of Total Cost of Project under the agreement which has been entered into with open eyes by the NOIDA. 301. We would, therefore, examine from the records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reproduced hereunder:-- Si. No. Description Amount (in Crores) 1. Total of toll income received from the date of commencing of the Project. 810.18 2. Total of O M expenses from the date of commencing of the Project (Column-5) (214.98) 3. Total of corporate income tax from the date of commencing of the Project (Column-6) (16.40) 4. Surplus after tax but before interest, depreciation and lease rental received from the date of commencing of the Project (Column-7) 578.80 305. The Income of Rs. 810.18 as per own admission of the Concessionaire, was received from the toll collected, till 31.3.2014 from the date of commissioning of the project, surplus after tax was Rs. 578.80 it does not include income from other sources. 306. Furthermore, from a perusal of the Statement of Computation of 'returns and arrears' as on 31, March, 2014, appended at page '488' of the 'CCA' of the Concessionaire and as Annexure S.C.A.-3 (at page 96 of Supplementary Affidavit No. 326053 dated 14.09.2015 filed by the concessionaire), it is clear that the gross revenues i.e. total income from the toll earned by Concessionaire in each year is increasing gradually. 307. From the said doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Accounting on the basis above material is that the Total Cost of Project is many times more than the actual investment in the Project. The Concessionaire had received much more than the money invested in the project plus reasonable profits and interest thereon from the Toll income. This apart, they have also earned income from advertisement and rental income which is not included in the Statement of Computation as on 31.3.2014. 312. As a matter of fact the NTBCL has tried to confuse this Court by referring to different amount in the accounts of the Company at different places of the counter affidavit for suggesting that they have not been able to recover reasonable profits on the investment made. The counter affidavit and supplementary affidavits are infact an attempt to lead this Court to accept that all the projects which had been executed by the Company and the income and losses thereto must also be taken into consideration for dealing the issue in hand. The facts given in the affidavits of Concessionaire in our opinion are not answer to the challenge made by the petitioner. 313. It is sought to be submitted in paragraph '87' of the counter affidavit that the figure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement. Section 2.3(b) provides for transfer of the project assets to Noida in accordance with the terms of the Article 19 upon termination of the Concession Agreement. However, Section 2.4 makes it compulsory that the Concession period be extended for a period of two years at a time, in the event, Total Cost of Project and the returns thereon are not recovered within 30 years. 317. At this stage we may also note of the plea of the Concessionaire in their written statement as also the learned counsels for the Concessionaire and IL FS in their oral submissions that the formula for computing Total cost of project and termination payment may not be touched by the Court as it was devised by the experts as a risk insurance clause against the premature and arbitrary termination of contract by NOIDA, keeping in view that the investors in the project needed adequate returns and insulation from risk, to consider investment in the project. 318. The assertion on page 25 of the written submission dated August 19, 2016 of the Concessionaire (respondent No. 1) is reproduced as under:-- The concept of the Total Cost of Project was (a) devised by experts keeping in view the above mentioned factors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sionaire cannot be justified. 322. It is also noteworthy that the toll plaza has been constructed only on the DND fly-over for realizing toll (user fee) from the commuters. Ashram Fly way, which was constructed on the land given by the Delhi Government, was also agreed as part of the project. It was handed over to Delhi Government after commissioning, however, the cost of construction of Ashram fly-over was added and included as part of the Cost of Project to be realized from the levy of user fee from the commuters of DND fly over. Reference may be taken to the clauses (i) and (j) of the Concession Agreement already set out in the preceding paragraphs of this judgment. We are of the opinion that the NOIDA could itself levy user fee within its territorial limits and not beyond that. For this reason also we record that authorisation by NOIDA to adjust the Cost of Construction of infrastructure (Ashram Flyover) from collection of User fee is without authority. 323. Viewed from any angle, we find that the Concessionaire have been able to recover not only the cost of construction i.e. the Project Cost but also reasonable profits which are being shared with the shareholders in the form o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the objectionable parts of the contract involve illegality and not mere void promises. In one type of case, however, the courts have adopted what amounts almost to a principle of severance by holding that if a statute allows works to be done up to a financial limit without a licence but requires a licence above that limit, then, where works are done under a contract which does not specify an amount but which in the event exceeds the financial limit permitted without licence, the cost of the works up to that limit is recoverable. Secondly, where severance is allowed, it must be possible simply to strike out the offending parts but the court will not rewrite or rearrange the contract. Thirdly, even if the promises can be struck out as afore-mentioned, the court will not do this if to do so would alter entirely the scope and intention of the agreement. Fourthly, the contract, shorn of the offending parts, must retain the characteristics of a valid contract, so that if severance will remove the whole or main consideration given by one party the contract becomes unenforceable. Otherwise, the offending promise simply drops out and the other parts of the contract are enforceable. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract must be read as a whole and it is not open to dissect it by taking out a part treating it to be contrary to law and by ordering enforcement of the rest if otherwise it is not permissible. But it is well-settled that if the contract is in several parts, some of which are legal and enforceable and some are unenforceable, lawful parts can be enforced provided they are severable. 16. The learned counsel for the petitioner, in my opinion, rightly submitted that the court must consider the question keeping in view settled legal position and record a finding whether or not the agreement is severable. If the court holds the agreement severable, it should implement and enforce that part which is legal, valid and in consonance of law. 17. In several cases, courts have held that partial invalidity in contract will not ipso facto make the whole contract void or unenforceable. Wherever a contract contains legal as well as illegal parts and objectionable parts can be severed, effect has been given to legal and valid parts striking out the offending parts. 327. In LIC of India (supra) while considering the question whether the offending clauses in the contract can be severed by an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferential treatment implementing the rule of reservation under Arts. 14 and 16(1) and (4) of the Constitution. 52. It is seen that the respondents are not seeking any direction in their favour to call upon the appellants to enter into a contractual relations of term policy in Table 58. Their privilege and legitimate expectation to seek acceptance of policy of life insurance are their freedom. Instead they sought for a declaration that the policy confining to only salaried class from government, semi- government or reputed commercial firms is discriminatory offending Article 14. Denial thereof to larger segments violates their constitutional rights. We are of the considered view that they are right. They are not seeking any mandamus to direct the appellants to enter into contract of life insurance with them. The rest of the conditions age etc are valid and do not call for interference. The offending clause extending the benefit only to the salaried class in Government, semi-Government and reputed firms is unconstitutional. Subject to compliance with other terms and conditions, the appellant is free to enforce Table 58 policy with all eligible lives. The declaration given, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 21.1.2016 filed by the Concessionaire, the respondent No. 1, which is being considered as under:-- Part 'A'- main amendments:-- (i) The 'Transfer Date' to be fixed as 1st April, 2031 making it clear that the NOIDA bridge shall be handed over to NOIDA by the Concessionaire on that date. (ii) The amendment of Section 2.1(b)(iv) by the following:-- Section 2.1(b), sub Clause (iv):-- determine, demand, collect, retain and appropriate a fees from the Users of the NOIDA Bridge. (iii) The amendment of Section 2.3 fixing the Concession Period (a) to expire by efflux of time at the end of 31st March, 2031 and; (b) the Concessionaire shall have to transfer the NOIDA Bridge to NOIDA in accordance with the terms of Article 19, on the transfer date i.e. 1st April 2013. (iv) Deletion of Section 2.4 (extension of Concession period) and Section 2.5 (earlier termination of concession period)(which provides that the Concessionaire shall transfer the Project Assets to NOIDA upon recovery of the Total Cost of the Project and the Returns thereon). (v) Section 14.1 to be amended as follows:-- Section 14.1 Total Cost of Project For the duration of the Concession Period, the Total Cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawings and other information as may reasonably be required by NOIDA to enable it to continue the operation of the NOIDA Bridge either directly or by it nominated agency. (vii) As a consequence of these amendments, the term 'Returns', 'and Returns thereon' and 'meet the Concessionaire's Returns thereon', wherever appearing, in the unamended Concession Agreement would stand deleted and replaced by the term 'Total Cost of Project', where the context so requires. 334. Submission is that as a consequence of acceptance of the proposed amendment, Total cost of project as on 31.3.2011, to the tune of Rs. 2168 Crores (approx), would be the figure only with reference to Article 18.1 (a) so as to act as a Risk Insurance Measure against arbitrary termination of the Concession Agreement by NOIDA (to repeat, after the amendment is approved). In the event of automatic termination of the Concession Agreement at the end of Concession period so amended, the total project cost shall be deemed to be modified to the extent that 'it has been recovered through collection of fees till the termination date (as certified by the Independent Auditor) in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arguments of the counsels for the respondent Nos. 1 and 9 that the Court may dismiss the writ petition in view of the proposed amendment in the rights of the contracting parties. We have made it clear that we are only concerned with the rights of the Users/Commuters of NOIDA Toll Bridge known as DND Flyway who are being illegally taxed in the name of User fee. 340. Even under the proposed amendment, the condition of recovery of User fees till 2031 by the Concessionaire has been reiterated. The User fee which is being levied/realised is not supported by the legal provisions, sought to be relied upon by the Concessionaire, the IL FS and the NOIDA Authority. 341. For the reasons recorded and the conclusions arrived at, we hold:-- (a) This Public Interest Litigation is legally maintainable. (b) In the facts of the case, interference with the Concessionaire agreement is warranted in exercise of powers of judicial review under Article 226 of the Constitution of India. (c) Selection of Concessionaire in the facts of the case is violative of Article 14 of the Constitution of India and is found to be unfair and unjust. We, however, do not deem it fit to nullify the entire Concession Agree ..... X X X X Extracts X X X X X X X X Extracts X X X X
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