SHC dismisses petition of housing society’s residents against collection of toll tax

The Sindh High Court on Wednesday dismissed a petition of a housing society’s residents against the collection of the toll tax and vacated its interim stay order in this regard.

The petitioners had sought a declaration that the collection of the toll tax from them and other residents of the housing society was in violation of a concession agreement as well as Article 15 of the Constitution.

National highway Authority and other respondents submitted that the petition is not maintainable as reliance upon a clause in the agreement has been misconceived as it is only in respect of urban traffic plying before the toll plaza.

They submitted that levy and collection of toll has statutory sanction under Section 10 (2) (vii) of the National Highway Authority Act, 1991, and the remit subsists along the length of the entire 136 kilometers of the M-9 Motorway.

They said that any abridgment of the statutory right would amount to suspension of the relevant law and/or reading the relevant provision as redundant. They submitted that there were numerous residential societies along highways in general and the M-9 Motorway in particular, and if the tailor-made preferential treatment was to be contemplated for a particular segment, then the same would be prima facie discriminatory towards the rest.

The petitioners’ counsel made no endeavour to controvert a single argument articulated on behalf of the respondents.

A high court division bench headed by Justice Agha Faisal observed that irrespective of the fact that the agreement is a contract and enforcement of contractual rights is not amenable in writ jurisdiction, the agreement is a contract between the NHA and construction company, and the petitioners are not a party.

The court observed that no locus standi of the petitioners could be demonstrated before the court and no case is made out to befall them within the meaning of aggrieved persons; as envisaged per Article 199 of the Constitution.

The SHC observed that section 10 (2) (vii) of the National Highway Authority Act 19912 confers the jurisdiction to levy/ collect tolls on the National Highways etc. and absolutely no case was made out to entertain a plea to abridge or countermand the statutory command.

It further observed that Article 153 of the Constitution enshrines protection for freedom of movement and under no stretch of imagination could the levy/collection of toll, in the present facts and circumstances, be demonstrated to infringe thereupon.

The court observed that Section 10 (2) (vii) of the National Highway Authority Act 1991 is in force and it was never the petitioners’ case that it is unsustainable in view of Article 15 of the Constitution. It said the petition is found to be misconceived and dismissed the same vacating the interim stay order in favour of Bahria town residents.