A.K. Menon JUDGMENT
A.K. Menon, J.
1. Historically speaking toll roads have been in existence since ancient times, be it across plains or mountain passes, through the middle ages till this age as well. The present petitions arise out of a Concession Agreement in respect of a road tolling project. The petitioner in petition No. 5764 of 2015 and 6577 of 2015 ("the petitioners") as the "Concessionaire" was required to widen and develop an existing highway which in the petitioners' words is the gateway from Mumbai to the southern parts of India. The petitioners are required to maintain the road while collecting toll for a concession period of 17 years and 5 months. The highway leads from the island city of Mumbai into Panvel in the Raigad District via Thane. This is the only highway access up to Panvel from where other options are available onwards to Pune such as the Mumbai Pune expressway or old Mumbai Pune road.
2. A few facts may be set out before considering the merits of the case. The petitioners are a private limited company which was awarded a project for construction, operation and maintenance of the road commencing from the junction of Bhabha Atomic Research Centre Junction (CH-140/690) upto Kalamboli Junction (CH-115/800). The contractor was awarded by the State of Maharashtra through it Public Works Department and vide a letter of acceptance dated 15.9.10. The project was awarded on a Built, Operate and Transfer basis (BOT). The respondent No. 1 in the present petition is the State of Maharashtra, respondent No. 2 is the Public Works Department and respondent No. 3 is the Chief Engineer of the Public Works Department. The entire length of the project is 23.09 km and is spread over Mumbai, Thane and Raigad. The project includes collection of toll at plazas at Kamothe and Kopra. It is a welfare project undertaken by respondent Nos. 2 and 3 to strengthen an arterial road.
3. The petitioners entered into a concession agreement with respondent No. 1 on 19 January 2011 ("the agreement") after a competitive bidding process. The agreement provided that after work is completed and a provisional completion certificate is issued, the State would issue a notification under the provisions of the Bombay Motor Vehicles Tax Act, 1958 thereby authorising collection of toll. According to the petitioners there was unjustified delay in issuance of the toll notification by the respondent No. 2 because of which the petitioners suffered losses. The petitioners filed a writ petition in this Court being writ petition (L) No. 3170 of 14 seeking orders directing respondent No. 2 to publish a toll notification as required under the agreement. Under the agreement, the petitioners have been granted the right to collect toll for 17 years and 5 months including the construction period of 3 years.
4. On 23 December 2014, this Court directed respondent No. 2 to issue the notification. The notification was issued on 3 January 2015 as directed, permitting levy and collection of toll from 1 January 2015 but only until 30 June 2015. Even this notification according to the petitioners did not comply with the requirements of the concession agreement, since the respondents had granted additional exemptions beyond what was contemplated under the agreement. In the result, the petitioners complained that its losses were mounting. The notification dated 3 January 2015 contained a schedule appended thereto listing out the tariff for toll collection with description of the vehicles and the amount of the toll to be collected. This included light motor vehicles at serial No. 2A and buses of the Maharashtra State Road Transport Corporation ("MSR........