The Bombay High Court (HC) on Thursday directed the Comptroller & Auditor General (CAG) to submit a detailed affidavit on toll recovery on Mumbai Pune Expressway after probing issues raised in the public interest litigation (PIL) and affidavit submitted by Maharashtra State Road Development Corporation (MSRDC). The HC also asked CAG to audit accounts of MSRDC on the toll recovery issue.
Hearing the PIL filed by Mumbai-based advocate Pravin Wategaonkar and three others that challenges toll collection on the Expressway, a division bench of chief justice Dipankar Datta and justice GS Kulkarni, asked CAG to submit within three weeks an affidavit after probing all allegations in the PIL about toll collection on the Expressway. After auditing accounts of MSRDC, and probing allegations on the PIL as well as the affidavits submitted by MSRDC, CAG has also been asked to submit a detailed affidavit.
The HC asked Maharashtra government and CAG to file reply affidavits in two weeks. CAG has been also asked to give its assessment of issues raised, especially on the 3 October 2019 representation by advocate Wategaonkar to Maharashtra chief secretary based on the CAG report.
The bench also asked Indian Road Builders (IRB), the toll contractor, to be made a party in the case.
The next hearing in this case is scheduled on 21 April 2021.
During the hearing on Wednesday, the bench had summoned attorney general Ashutosh Kumbhakoni to appear before it on Thursday morning.
Advocate Wategaonkar had pointed out that the Motor Vehicle Tax Act requires a build, operate, transfer (BOT) contract between state government and any other entity at whose expense a road project is built. This means the state government must first declare total capital outlay of the project before declaring the rate and period for which toll is to be levied.
He further contended that going by MSRDC affidavit, what exists is only a proposed agreement and there are no documents authorised by government disclosing the total capital outlay for Mumbai Pune Expressway. "As such there is no compliance of law to levy toll," he contended.
In its affidavit, MSRDC had stated that the private entity, sub-contracted by it, to collect the toll and maintain the Expressway, would continue to collect the money till 2030. Initially, the toll was to be collected till 2019; however, due to several reasons, primarily the fact that citizens to evade paying the toll used the National Highway 04, could not recover the amount totalling around Rs3,632 crore, which has now scaled up to over Rs4,000 crore, MSRDC stated.
An irked bench asked whether anyone would believe that project cost recoverable of Rs3,632 crore in 2004 is yet to be recovered?
The HC expressed its displeasure on the affidavit submitted by the MSRDC without any supporting documents, saying this deserves to be rejected in view of the judgement on court affidavits by the Supreme Court.
The bench also asked advocate Wategaonkar whether in his opinion people are getting facilities and proper roads for the toll they pay and who benefits from the toll revenues.
Advocate Wategaonkar responded saying the first question is better directed at the government and the beneficiaries are the toll contractors.
Last month, the HC had asked MSRDC as how long it would continue to collect toll from commuters on the Mumbai-Pune Expressway, now called the Yashwantrao Chavan Expressway.
According to the PIL, the government can collect toll only to recover the capital cost and expenses incurred in toll collection. However, over the past 15 years till 31 July 2019, the actual toll revenue collection is Rs6,733 crore, which is more than the Rs4,330 crore spent by MSRDC.
Earlier in November 2020, Mr Wategaonkar, along with the Pune-based activist Sanjay Shirodkar, had filed a complaint with the anti-corruption bureau (ACB) against top executives of MSRDC and public works department (PWD) for what they call 'illegally floating a tender for toll till 2030 on the Mumbai-Pune Expressway' that caused a loss of around Rs231 crore to the state government.
They claim the loss is caused due to charging a 0.2% stamp duty on sub-concession agreement valued at Rs8,262 crore instead of 3% on the value of the instrument. As per an order from the Bombay High Court, stamp duty payable should have been charged at 3% of Rs8,262 or about Rs247.86 crore. However, they paid just Rs16.52 crore at a rate of 0.2% causing a loss of about Rs231 crore to the exchequer.
In their complaint, the activists had alleged, "Earlier, the state government as well as MSRDC in their compliance report to the public enterprises committee (PEC) admitted that the project cost for the Expressway would be recovered by 2022 and thereafter toll collection will have to be stopped as per an order issued by the Bombay High Court (HC). In violation of the directive from the cabinet infrastructure committee (CIC) and without taking permission from the HC or disclosing recoverable project cost as of August 2019, Radhyeshyam Mopalwar, managing director of MSRDC and Manoj Saunik, the then principal secretary of PWD, undertook tender process for the period August 2019 to April 2030."
"On 20 June 2019, Mr Mopalwar sought permission from Mr Saunik to undertake the tender process for 10 years and two months. On 1 August 2019, the PWD granted permission for the said project. In response to a query filed under the Right to Information (RTI) Act, the planning department stated that no CIC meeting was held between 20 June and 1 August 2019.
"Further, the planning dept stated that an administrative dept cannot vary or improve or take a different decision than the one directed by the CIC. Neither the MSRDC nor the PWD have disclosed the balance recoverable cost of the Expressway to the competent authority or CIC for post tender approval while finalising toll contract for a period of more than three years. As per the Motor Vehicles Tax Act, toll can be levied only to recover the balance recoverable project cost," the complaint says.
Separately, advocate Wategaonkar has filed a complaint with the Marine Drive police station in Mumbai for registering a first information report (FIR) against Ajoy Mehta, former chief secretary, Manoj Saunik, former additional chief secretary in PWD, CP Joshi, secretary for roads and persons associated with Manaj Tollways Pvt Ltd. The activist-lawyer has filed the complaint for what he claims as "criminal conspiracy of fabricating false evidence, fraudulently or dishonestly making of valuable security being consent terms filed in Court in satisfaction of arbitral award of Rs358.79 crore in commercial execution application No 310 of 2019."
In the complaint, advocate Wategaonkar alleges, "...Ajoy Mehta, and Manoj Saunik, who had knowledge of the order passed by governor of Maharashtra on or about 21 November 2019; and other persons fraudulently and dishonestly created a false record that the Bombay High Court has 'directed filing of consent terms by 2 December 2019', engaged with accused persons associated with Manaj Tollways to execute consent terms thereby creating a valuable security."
"Accused persons got the execution application disposed of by way of the High Court's order of 12 December 2019 as well as thwarted prosecution of and challenge to the arbitral award in Pune district court in view of the consent terms. Accused Ajoy Mehta, Manoj Saunik and other persons fraudulently and dishonestly thereby created a valuable right of Rs358.79 crore in favor of the contractor Manaj Tollways Pvt Ltd. Subsequently on 24 February 2020, the High Court noticed the fraud and recorded the facts in its order...," the complaint filed by advocate Wategaonkar says.