NOIDA Toll Bridge Company Ltd. v. Federation of NOIDA Residents Welfare Association and Others

If NOIDA does not do so, the day immediately following the last day of the concession period would be the transfer date and the obligation to transfer the Project would become effective. The language of Clause 2.4 does not say that if the Total Project Cost and returns were not recovered, the concession period would stand extended or be deemed to have been extended. Instead, it specifically vests the discretion to extend it with NOIDA. (d) The recovery of the Project Cost was miscalculated by the High Court as it did not consider the actual rate of return received by the Appellant on the total investment made into the Project, which included not only the costs of construction but also the expenditure towards operation and maintenance, and taxes. The computation of the recovery of the Project cost as stated in the impugned judgment did not consider: (i) the final/actual project cost of Rupees 461.11 crores; (ii) the interest on debt paid by the Appellant till March 2014 (being an amount of Rupees 296.26 crores); (iii) the repayment of principal amount undertaken by the Appellant till March 2014 (being an amount of Rupees 280.36 crores); and (iv) other expenses of Rupees 22.90 crores, and additional taxes such as MAT and FBT, that had been paid by the Appellant, aggregating to Rupees 50.42 crores. In light of this and the fact that the Appellant only collected Rupees 810.18 crores, as on 31.03.2014, means that the Appellant was in loss of Rupees 454.71 crores—which continues to remain recoverable.

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Noida Toll Bridge Company Ltd. v. Federation of Noida Residents Welfare Association and Others

E. Submissions by Respondent No. 2 (NOIDA)

8Copy pinpoint8. Lastly, NOIDA, as represented by Mr. Ravindra Kumar, Sr. Adv. & Mr. Binay Kumar Das, Advocate-on-Record, made the limited submission that the Appellant failed to pay the charges under the permission granted for the display of outdoor advertisements. The outstanding dues on 31.10.2021 were Rupees 37.59 crores. Additionally, the Appellant has not placed on record the amount collected from outdoor advertisements.

F. Issues

9Copy pinpoint9. Having given our thoughtful consideration to the rival submissions at length, the following issues arise for the consideration of this Court: i. Whether the Writ Petition purportedly filed in public interest was maintainable before the High Court? ii. Whether the non-floating of tenders was justified in the instant case? iii. Whether the power to levy fees could be delegated to the Appellant and if so, whether it was a case of excessive delegation? iv. Whether Article 14 of the Concession Agreement read with the formula used therein is opposed to public policy? v. Whether the Total Project Cost and Returns thereon have been recovered by the Appellant? vi. Whether NOIDA is entitled to recover dues from the Appellant, in regards to the display of outdoor advertisements?

G. Analysis

G.1 Maintainability of the Writ Petition before the High Court

10Copy pinpoint10. At the very outset, it is essential to adjudicate the prefatory issue of maintainability before addressing the merits of the present case. In this regard, three primary prongs arise from NTBCL’s contention challenging the very maintainability of the Writ Petition: (i) the locus standi of Respondent No. 1; (ii) ascertaining delay and laches; and (iii) the scope of judicial intervention in a commercial contract such as the Concession Agreement. All of these issues require careful analysis.

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G.1.1. Locus standi of Respondent No. 1

11Copy pinpoint11. NTBCL contended that the petition before the High Court amounted to proxy litigation, initiated by Respondent No. 1 at the behest of NOIDA, allegedly to enable NOIDA to evade its obligations under the Concession Agreement. In support of this contention, NTBCL cited landmark cases such as Chennai Metropolitan Water Supply and Sewerage Board and others v. T.T. Murali Babu1 and Ramana Dayaram Shetty v. International Airport Authority of India,2 arguing that the petition filed by Respondent No. 1 did not satisfy the test of espousing a public cause which is a sine qua non for the maintainability of a PIL.

12Copy pinpoint12. It is well-established that while public interest litigation serves as an effective tool for addressing the grievances of the public, it must be carefully scrutinised to prevent misuse or abuse by those with ulterior motives. Courts must look beyond the surface to assess whether the litigation has been genuinely initiated in the interest of the public or as a result of mischief.3 The essence of PIL lies in its aim to remedy genuine public wrongs or injuries rather than being driven by personal vendetta or malice.4

13Copy pinpoint13. In Janata Dal v. H.S. Chowdhary, 5 while adjudicating a PIL challenging FIRs filed in the Bofors scandal, this Court elaborated on the rule of locus standi in a PIL. The Court held that there is no rigid litmus test to determine locus standi in a PIL, given the broad contours of such litigations. However, the Court must distinguish between genuine petitions and those filed for private gain or profit. Only individuals acting in good faith and with sufficient interest in the PIL should be permitted to proceed.6 Accordingly, vexatious petitions disguised as PILs, aiming to address personal grievances, deserve rejection at the threshold.

14Copy pinpoint14. In the instant case, Respondent No. 1 is a Society duly registered under the Societies Registration Act, 1860, with the primary objective of promoting the welfare of NOIDA residents. The society acts as a

1 Chennai Metropolitan Water Supply and Sewerage Board and others v. T.T. Murali Babu, (2014) 4 SCC 108. 2 Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489. 3 Balco Employees’ Union v. Union of India, 3 (2002) 2 SCC 333. 4 Dattaraj Nathuji Thaware v. State of Maharashtra, 4 (2005) 1 SCC 590. 5 Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305. 6 Villianur Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 SCC 561.

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Noida Toll Bridge Company Ltd. v. Federation of Noida Residents Welfare Association and Others

bridge between the residents and public authorities, catering to the former’s needs for essential civic amenities. Given this object, it is clear that Respondent No. 1 approached the High Court in good faith, with a view to safeguard the interests of NOIDA residents, who had been subjected to the levy of toll at the DND Flyway under the guise of user fees by NTBCL. Consequently, we do not find any merit in NTBCL’s contention that Respondent No. 1 lacked locus standi in approaching the High Court.

15Copy pinpoint15. As regard to NTBCL’s contentions pertaining to the alleged collusion between Respondent No. 1 and NOIDA, we find that there is not an iota of material on record to substantiate these sweeping insinuations.

G.1.2. Delay and laches

16Copy pinpoint16. NTBCL contended that there was an inordinate delay on the part of the Respondent Association in filing the Writ Petition before the High Court. NTBCL argued that the DND Flyway had been operational since 2001, with the MoU and Concession Agreement having been executed as far back as 1992 and 1997, respectively. Given this, the Writ Petition was filed by Respondent No. 1 only in 2012—nearly 20 years after the execution of the MoU and 15 years after the Concession Agreement. NTBCL asserted that this substantial delay should have been sufficient grounds for the High Court to dismiss the Writ Petition at the outset.

17Copy pinpoint17. This contention, in our considered opinion is wholly misconceived and misdirected. We say so for the reason that firstly, writ proceedings under Articles 32 or 226 are not guided by the provisions of the Limitation Act, 1963, but instead, by the Doctrine of Delay and Laches. Without adverting much into its pith and substance, it is ubiquitous that the doctrine of delay and laches cannot be applied stricto senso to writ petitions invoking public interest jurisdiction, unless the court is satisfied that the party has not approached it with clean hands. It is now well established that while delay is a material factor, there is no fixed period of limitation for invoking jurisdiction under Article 226 and that each case should be considered on its own facts and circumstances, thus allowing for a more liberal approach when applying this doctrine.7 It is indeed beyond any doubt that the

7 R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91; State of Madhya Pradesh and another v. Bhailal Bhai and others, AIR 1964 SC 1006.

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doctrine is not a rigid rule but is rather a practice that is founded on the exercise of sound judicial discretion.

18Copy pinpoint18. In a much more rudimentary sense, it must also be borne in mind that the cause of action in these set of circumstances could have arisen and perhaps actually arose only after expiry of a reasonable period, within which the cost of the Project was expected to be recovered. The filing of the Wri